AH Belmont Pty Ltd t/as American Wings & Burger v Office of Liquor and Gaming Regulation [2023] QCAT 469

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: AH Belmont Pty Ltd t/as American Wings & Burger v Office of Liquor and Gaming Regulation [2023] QCAT 469 PARTIES: AH BELMONT PTY LTD T/AS AMERICAN WINGS & BURGER (applicant) v OFFICE OF LIQUOR AND GAMING REGULATION (respondent) APPLICATION NO/S: OCR244-23 MATTER TYPE: Occupational regulation matters DELIVERED ON: 26 October 2023 HEARING DATE: Decision on the papers HEARD AT: Brisbane DECISION OF: Senior Member Aughterson ORDERS: The application to stay a decision is dismissed. CATCHWORDS: GAMING AND LIQUOR – ADMINISTRATION – LIQUOR LICENSING – FORFEITURE, CANCELLATION, SUSPENSION OR SURRENDER OF LICENCE – GENERALLY – where the applicant applied to the Tribunal for review and stay of the decision to cancel its liquor licence and disqualify the licensee and Director from holding a licence – where the grounds for cancellation and disqualification included a series of allegations of non- compliance with the Liquor Act 1992 (Qld) – where the applicant submitted that it had been unaware of the obligations of its liquor licence – whether to grant stay of cancellation and disqualification decision Liquor Act 1992 (Qld), s 3(a), s 30 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(2), s 22(3), s 22(4) Willmott v Carless [2021] QCATA 132 APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) -- 1 of 6 -- 2 REASONS FOR DECISION [1] On 26 October 2023 the Tribunal made a decision that the application to stay the decision of the respondent in this matter be dismissed. On 2 November 2023, the applicant filed a request for reasons for that decision. The reasons are now provided. [2] On 5 October 2023, the applicant filed an application to review a disciplinary decision of the respondent made under the Liquor Act 1992 (Qld) (‘the Act’). The disciplinary action taken was cancellation of the licence issued in relation to the applicant’s business and disqualification of the licensee and the Director from holding a licence or permit under the Act for a period of three years. [3] On 5 October 2023, the applicant also filed an application to stay that decision. Directions were issued on 12 October 2023 inviting submissions from the parties in relation to the stay application. Submissions were filed by both parties, with the respondent opposing the stay application. [4] Underlying the action taken by the respondent is a series of allegations of non- compliance with the Act from 25 April 2023 to 4 August 2023, including consumption of liquor contrary to the licence and sale of liquor not being recorded correctly. Reference is made to a minor consuming liquor at the premises and allowing consumption of liquor at a time not permitted under the licence. In August 2023, a summons was issued by the Queensland Police – Brisbane Liquor Unit detailing 13 charges under the Act. That matter is presently before the courts. [5] In relation to disciplinary action taken under the Act, s 30 of the Act allows a person to apply to the Tribunal for review of the decision, ‘as provided under the QCAT Act’. Where, as here, there is no reference under the enabling Act to staying a decision of the respondent the relevant provisions of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) apply. By s 22(3) of the QCAT Act, the Tribunal may stay the operation of a decision where review proceedings have started under that Act. Section 22(3) and (4) provide: (3) The tribunal may, on application of a party or on its own initiative, make an order staying the operation of all or part of a reviewable decision if a proceeding for the review of the decision has started under this Act. (4) The tribunal may make an order under subsection (3) only if it considers the order is desirable after having regard to the following— (a) the interests of any person whose interests may be affected by the making of the order or the order not being made; (b) any submission made to the tribunal by the decision-maker for the reviewable decision; (c) the public interest. [6] In addition to the matters listed under s 22(4) of the QCAT Act, it is also appropriate to take into account whether the applicant has an arguable case on the review and whether the balance of convenience favours a stay.1 1 See Willmott v Carless [2021] QCATA 132, [12]. -- 2 of 6 -- 3 [7] The grounds for the disciplinary action and the relevant allegations may be summarised as follows (in the disciplinary grounds it is stated that allegations 1, 2 and 3 are supported by Brisbane City Council City Safe Camera footage): (1) Allowing consumption of liquor outside trading hours; in particular, on 25 April 2023 and 7 May 2023, supplying liquor to patrons for consumption outside trading hours. On the first of those occasions, when questioned by police the Director stated that he was not aware of the licence obligations. On the second of those occasions, when questioned by police the Director ‘could not provide a lawful reason’. An infringement notice was issued on 7 May 2023. (2) Sale or supply contrary to the licence or permit; in particular, on a number of occasions between 21 May and 4 August 2023, selling or supplying liquor to patrons outside licensed trading hours. The incident on 4 August 2023 occurred the day after the applicant participated in an Office of Liquor and Gaming Regulation intervention meeting. An infringement notice was issued on 21 May 2023. (3) Sale of liquor to a minor. On 14 June 2023, the minor was supplied with numerous alcoholic beverages by staff of the premises. The minor became heavily intoxicated, vomited outside the venue and lost consciousness, before being treated by ‘Chaplain Watch volunteers’. (4) Failure to comply with record keeping requirements. There were specified instances of failure to accurately record and itemise liquor sales as required by the Act. (5) On 7 May 2023, failure to produce licence or permit on request in accordance with the Act. An infringement notice was issued on that day. (6) Failure to display particulars on the premises in accordance with the Act on 21, 27 and 28 May 2023. On the latter occasion, the Director had made no attempt to display the previously identified signage. (7) Failure to comply with the conditions of the licence; in particular, on 27 May 2023 and 15 July 2023 a bar staff member did not hold an appropriate Responsible Service of Alcohol Statement of Attainment. (8) Failure to comply with the provisions of the Act in relation to advertising. [8] In relation to the application to stay a decision, the applicant made submissions through its legal representative, Wilson Law Practice. In relation to the allegations made, it is submitted that: (a) the applicant first held a liquor licence on 1 March 2023 and a meeting held with the Office of Liquor and Gaming Regulation on 3 August 2023 ‘was the first time they became aware of the limitations on the Liquor Licence’. (b) In relation to the incident on 4 August 2023 (see ground 2 at [7], above), the applicant submits that on the previous evening the customer brought his own bottle of liquor to consume on the premises and that the bottle was left behind the bar pending his return in the early hours of the following morning. It is stated that upon his return an employee of the applicant poured shots from the bottle before returning it to the customer and that the customer was not charged for the shots. -- 3 of 6 -- 4 (c) The allegation of 25 April 2023 (see ground 1 at [7], above] involves empty bottles being outside the premises and the applicant and staff are not aware of who left the bottles there. (d) In relation to the allegation at ground 5 and the allegations at ground 6, so far as they relate to 21 May 2023, the applicant was not aware of the requirements prior to the meeting with the Office of Liquor and Gaming Regulation on 3 August 2023. (e) In relation to ground 3, it is submitted: At no time did the Applicant recall supplying liquor to a minor for money or free. The Applicant holds food licence [sic] which allows customer [sic] to come and eat food at the premises. The particular girl in question was with adults sitting outside. [9] In relation to those submissions, it is noted (using the same numbering as at [8], above): (a) It is not stated why there was a lack of awareness, or lack of an endeavour to become aware, of the limitations on the liquor licence prior to the meeting held on 3 August 2023, including in circumstances where infringement notices had been issued on 7 and 21 May 2023: see grounds 1, 2 and 5 at [7], above. In its submissions, the applicant acknowledges receiving the infringement notices, but disputes their validity.2 However, in the submissions it is not said why the issuing of the infringement notices did not at least put the applicant on notice that there were limitations on the liquor licence. (b) In relation to the incident of 4 August 2023, while the applicant submits that the alcohol in question belonged to the customer no submission is made in response to the allegation that the customer is depicted on camera footage, including the making of a payment on the premises’ EFTPOS machine. (c) None of the allegations involve leaving empty bottles outside the premises as submitted by the applicant. The allegation of 25 April 2023 involved the supply of liquor outside licensed trading hours. (d) In relation to ground 6, the submissions made by the applicant do not address the allegations of ongoing non-compliance evidenced by the inspections of 27 and 28 May 2023. It is not said why the issuing of the infringement notices on 21 May 2023 did not put the applicant on notice of the required particulars to be displayed on the premises. (e) The submissions of the applicant do not address the allegations made in relation to ground 3, noted at [7] above, which are said to have been recorded on camera footage. [10] In relation to s 22(4)(a) of the QCAT Act (the requirement to have regard to the interests of any person whose interests may be affected by the making of the order), the applicant submits, under the heading ‘Prejudice’: The applicant has been unfairly prejudiced as the OLGR have unilaterally made decisions not in the best interests of the Applicant and the public and based on 2 It is stated that no evidence has been provided in support of the allegations. On the other hand, in relation to the infringement notices referred to in grounds 1 and 2, the respondent refers to observations made by police officers and to the record of a Brisbane City Council City Safe camera. -- 4 of 6 -- 5 allegations against the Applicant which they have failed to provide evidence or afforded the Applicant the opportunity of natural justice. The applicant has a right to be heard and the presumption of innocent to proven guilty [sic], which the OLGR has failed to afford the applicant this opportunity. [11] No submission is made as to how the applicant’s interests might be affected if the stay is not granted. For example, it is not stated whether the applicant has any other business interests and there is no reference to any financial impediment or impact on staff. In that context, it is noted that the applicant is legally represented and the submissions were prepared by its legal representative. [12] In relation to the alleged denial of natural justice by the Office of Liquor and Gaming Regulation, the respondent submits that, in relation to the proposed disciplinary action, a notice to show cause was issued to the applicant on 4 August 2023, a response to which was received on 2 September 2023. It is further submitted that the respondent afforded the applicant two opportunities to discuss the proposed disciplinary action, but on both occasions the applicant cancelled the meetings. In response, the applicant submits: ‘This meeting was unable to be held due to the time constraints of the Solicitor and also the lack of deadline warning provided’. It is also said that there was ‘insufficient time to gather documents to assist in the case of the Applicant’. [13] In any event, any denial of procedural fairness by the Office of Liquor and Gaming Regulation is not to the point. This is a stay application, so that the question is one of whether a person’s interests might be affected should a stay be granted or refused. Also, in relation to the Tribunal hearing, it is noted that the review before the Tribunal is by way of a fresh hearing on the merits: see s 20(2) of the QCAT Act. On that basis, the applicant has the opportunity to fully present its case before the Tribunal, notwithstanding what might or might not have happened at an earlier time. [14] The Tribunal should also consider the public interest: see s 22(4)(c) of the QCAT Act. The respondent submits that consideration should be given to the interests of members of the public, particularly those who are underage. Reference is made to the main purposes of the Liquor Act, which include at s 3(a): to regulate the liquor industry, and areas in the vicinity of licensed premises, in a way compatible with— (i) minimising harm, and the potential for harm, from alcohol abuse and misuse and associated violence; and Examples of harm— • adverse effects on a person’s health • personal injury • property damage (ii) minimising adverse effects on the health or safety of members of the public; and (iii) minimising adverse effects on the amenity of the community; … [15] The respondent submits that any financial hardship to the business does not outweigh the rights of the community as reflected in the main purposes of the Act. It is also submitted that the respondent has an interest in being able to effectively regulate the liquor industry -- 5 of 6 -- 6 in the way prescribed by the Act. Reference is made to the number of allegations over a short period of time and the serious allegation in relation to the supply of alcohol to a minor. [16] In the circumstances outlined, the application for a stay should be refused. While no conclusions should be drawn as to the ultimate outcome of the review application, it is not clear that the applicant has an arguable case. [17] The submission of the applicant that it was not aware of its licence obligations until the intervention meeting of 3 August 2023 begs the question of what steps it took to inform itself of those obligations, particularly after the issuing of the earlier infringement notices. It is noted that under s 107(1) of the Act, one of the considerations as to whether an applicant for a licence is a fit and proper person to hold a licence is: whether the applicant demonstrates knowledge and understanding of the obligations of a licensee or permittee of the relevant kind under this Act; [18] Further, in relation to some of the disciplinary grounds, in its submissions the applicant either does not address the precise allegation made or makes no response at all. [19] Also, as noted at [11] above, the applicant has made no submission as to how its interests might be affected by the refusal of the stay application. Further, no response is made to the submissions of the respondent as to the impact of any granting of a stay on the public interest and its role as a regulator. [20] The application to stay a decision is dismissed. -- 6 of 6 --