Tourism, Sport and Racing, Department of, Chief Executive v Rigas, Licensee, Shooters Bar P/L

[2001] QSC 312

SUPREME COURT OF QUEENSLAND

File No S10177 of 1999
[2001] QSC 312

BETWEEN:

CHIEF EXECUTIVE DEPARTMENT OF
TOURISM, SPORT AND RACING

Appellant

AND:

A RIGAS, LICENSEE, SHOOTERS BAR PTY LTD

First Respondent

AND:

LIQUOR APPEALS TRIBUNAL

Second Respondent

MOYNIHAN J – REASONS FOR JUDGMENT

DELIVERED ON:

22 August 2001

HEARING DATE:

3 August 2001

ORDER:

1. The Tribunal’s reprimand of the first respondent is set aside.

2. The appeal and cross-appeal are dismissed.

CATCHWORDS:

LIQUOR LAW – LICENSING – LICENSING TRIBUNALS GENERALLY – REVIEWS, APPEALS AND CASES STATED – QUEENSLAND – where the respondent appealed from a decision of the Liquor Appeals Tribunal.

LIQUOR LAW – LICENSING – FORFEITURE, CANCELLATION, SUSPENSION OR SURRENDER OF LICENCE – GENERAL – whether there is power to make orders under s 137 of the Liquor Act 1992 (Qld) when cause is shown under s 136 of the Liquor Act 1992 (Qld).

COUNSEL:

Mr B Thomas for the Appellant

Mr P J Roney for the First Respondent

SOLICITORS:

Crown Solicitor for the Appellant.

Hynes Hartnett Lawyers for the First Respondent

1. This is an appeal from a decision of the Liquor Appeals Tribunal.  It arises from a show cause notice given by the appellant to the first respondent, the holder of a licence under the Liquor Act 1992 (the Act). The Tribunal appeared to abide the outcome of the appeal and otherwise took no part in the proceedings before me.

1. The appellant’s notice called on the first respondent to show cause why action should not be taken under ss 136 and 137 of the Act. Section 136 is to the effect that the Chief Executive may cancel a licence if satisfied, relevantly for present purposes, the licensee had failed to comply with the Act or a condition specified in the licence, or that the licensee is not a fit and proper person to conduct business under the authority of the licence. In that context the appellant’s show cause notice specified and gave particulars of a number of incidents.

1. Section 137 of the Act, to which the show cause notice also referred, deals with “possible disciplinary orders” which can be “made instead of or in addition to” cancellation. It will subsequently be necessary to consider the provisions of ss 136 and 137 in more detail.

1. A person to whom a show cause notice is given is entitled to be heard on the matter of the cancellation of their licence (s.136(4)).  If sufficient cause is not shown the licence may be cancelled.  In this case a hearing was conducted by the appellant’s delegate to determine whether cause was shown. 

1. It is sufficient for present purposes to note that the delegate found against the first respondent in respect of a number of the incidents specified and particularised by the show cause notice, declined to find against him in respect of others and made no findings about the remainder. 

1. After hearing submissions the appellant’s delegate issued a warning in respect of one of the incidents and required the respondent to pay specific amounts attributed separately to five incidents which totalled $7,300 in purported reliance on s 137(1)(f). Since the first respondent’s licence was not cancelled it is implicit that cause was shown why it should not have been, although the published reasons do not specifically deal with that. Nor do they give any insight into why the orders for payment were considered the appropriate outcome or how the individual amounts were arrived at. It is at the least desirable that they should have done so although in the light of subsequent events that is irrelevant to the outcome of this appeal.

1. The first respondent appealed to the Tribunal against the findings and the orders made.  The Tribunal set aside or varied certain findings and upheld others.  It considered that “the aggregation of matters alleged against the first respondent could warrant cancellation if no exculpatory material was put forward”.  In the event the Tribunal was satisfied cause had been shown.  It set aside the delegate’s orders, reprimanded the first respondent and directed the appellant to institute prosecutions in respect of specified statutory offences. 

1. The appellant contends that the Tribunal erred in law in setting aside the payment orders. Since the Tribunal took a different view of the facts than that upon which the appellant’s delegate had acted, the issue of power under s 137 subsequently canvassed aside, it was for the Tribunal to deal afresh with the consequences of its findings.

1. It follows that strictly speaking the setting aside of the payment orders was incidental to the Tribunal dealing with the matter in the light of its conclusions which as I have said differed from those on which the appellant’s delegate proceeded. It is conceivable however that the Tribunal proceeded on the basis that an order for payment was not open because show cause proceedings were not criminal and s 137(1)(f) did not empower imposition a monetary payment “as the equivalent of a fine in criminal proceedings”. Certainly it is part of the appellant’s case that the Tribunal proceeded on that basis and so erred in law.

1. The first respondent submitted that there was no power to make orders under s 137 when cause had been shown under s 136. That view does not seem to have been canvassed before the Tribunal.

1. The first respondent filed a cross-appeal which by and large, traversed the issues raised by the notice of appeal.  So far as grounds 5 and 6 of the cross-appeal are concerned however they are not responsive to the appellant’s appeal but raise independent grounds of appeal by the first respondent. The appellant therefore contends they are caught by s 24(2) of the Act, and were not made within 28 days of the date of the Tribunal’s decision. The point appears to be well taken.

1. Section 136(5) of the Act relevantly provides:

“If at the time and place specified in the notice to show cause, or to which the matter is adjourned, sufficient cause is not shown to the satisfaction of the chief executive, the licence may be cancelled by order of the chief executive.” (emphasis supplied)

1. Section 137 provides:

“Other possible disciplinary orders

137.(1)  In a proceeding to show cause why a licence should not be cancelled, the chief executive may, by order-

(a)        suspend the licence for a specified period or until further ordered by the chief executive;  or

(b)        require licensed premised to be closed for a specified period;  or

(c)        vary the licence by-

(i)         specifying in the licence a condition to which it is to be subject;  or

(ii)       otherwise limiting the authority conferred by the licence; or

(d)        reduce the times at which the licensee may conduct business under authority of the licence;  or

(e)        disqualify the licensee from holding any licence for a specified period or until further ordered by the chief executive; or

(f)        require the licensee to pay to the department an amount of not more that $10 000;  or

(g)        reprimand the licensee.

(2)      An order under subsection (1) may be made instead of, or in addition to,  an order for cancellation of the relevant licence.”

1. In my view the combined effect of these provisions in the event cause is not shown is to confer a discretion to:

(a)        cancel a licence;

(b)        cancel a licence and act on such of the provision of subs (1) as then applicable;

(c)        not to cancel the licence but to act on such of the provision of subs (1) as are applicable to the circumstances.

If cause is shown the powers conferred by s 137 do not apply.

1. These conclusions flow as a consequence of the emphasised aspects of s 136 and s 137(2). The outcome is consistent with a passage in the Minister’s introductory speech relied on by the first respondent where it was said “if cause is not shown the Chief Executive may suspend the licence, etc in terms of s 137(1)”.

1. It follows that in my view s 137(1)(g) did not apply to give the Tribunal power to reprimand the first respondent or to give the Chief Executive power to make orders for payment in purported reliance on s 137(1)(g).

1. Although on the view I have taken it is strictly unnecessary to do so having regard to the course of the proceedings before me and before the Tribunal  it may be useful to advert to some other aspects of the matters raised by the appeal. 

1. For reasons canvassed earlier it is doubtful that the setting aside the payment order constitutes an error of law. The Tribunal is clearly correct in its view that it would be an improper exercise of the Chief Executive’s power to initiate show cause proceedings under s 136 when satisfied that the conduct in issue was an offence appropriately dealt with by a fine.

1. The Tribunal is also correct in concluding that show cause proceedings are regulatory and not criminal; see s 3 particularly subsection (b) of the Act and parts 4 and 5 dealing with licenses and permits.  See also Ooi v Medical Board of Queensland [1997] 2 Qd R 176 and Adamson v Queensland Law Society Incorporated [1990] 1 Qd R 498.

Nevertheless seeking to confine the power given by s 137(1)(g), as the Tribunal did, to circumstances where there is a correlation:

“. . . with the Department’s involvement in administering the Act and ensuring that the licensee complies with the Act.  On a practical level, it might reflect the Department’s costs in investigating any breaches of the Act, monitoring the licensee, and preparing and conducting the show cause proceeding”.

may reflect too limited a view of s 137(1)(f). The power is expressed to provide for disciplinary orders against licence holders in the context of a regulatory system. This is however not the occasion to explore the ambit of the power.

1. In the event the Tribunal’s reprimand of the first respondent must be set aside, the appeal is otherwise dismissed as is the cross-appeal.