BBC Capital Pty Ltd ta/s Prohibition Brisbane v The Commissioner for Liquor and Gaming Regulation [2015] QCAT 184

CITATION: BBC Capital Pty Ltd ta/s Prohibition Brisbane v The Commissioner for Liquor and Gaming Regulation [2015] QCAT 184 PARTIES: BBC Capital Pty Ltd t/as Prohibition Brisbane (Applicant) v The Commissioner for Liquor and Gaming Regulation (Respondent) APPLICATION NUMBER: GAR076-15 MATTER TYPE: General administrative review matters HEARING DATE: 25 May 2015 HEARD AT: Brisbane DECISION OF: Member Howard DELIVERED ON: 29 May 2015 DELIVERED AT: Brisbane ORDERS MADE: 1. The decision of the Commissioner for Liquor and Gaming to refuse the application for extended trading hours approval is set aside. 2. BBC Capital Pty Ltd trading as Prohibition Brisbane is granted approval for extended trading hours to 5:00 am Monday to Sunday subject to the usual exclusions prescribed in or pursuant to the Liquor Act 1992. 3. Both parties have liberty to apply in respect of the form of my orders for the next 7 days. CATCHWORDS: GENERAL ADMINISTRATIVE REVIEW – LIQUOR LICENCING – EXTENDED TRADING HOURS APPROVAL – where deemed refusal of application for extended trading hours – whether comments in Parliament about the future intentions of Government can be taken into account in deciding the application Liquor Act 1992 (Qld), s 33, s 34, s 121 -- 1 of 5 -- 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20 Birch Carrol & Coyle v Office of Liquor and Gaming Regulation [2011] QCAT 244 Minister for Aboriginal Affairs and Others v Peko-Wallsend Ltd & Others (1986) 162 CLR 24 APPEARANCES: APPLICANT: BBC Capital Pty Ltd was represented by Mr M. Jones of Liquor & Gaming Specialists Pty Ltd RESPONDENT: Commissioner for Liquor and Gaming Regulation represented by Mr R. Lovrincevic in- house Counsel REASONS FOR DECISION [1] On 6 November 2014 BBC Capital Pty Ltd t/as Prohibition Brisbane (‘BBC Capital’) made application for an extended trading hours approval (together with other applications for change of name, transfer of the liquor licence and for alteration of the premises). The other applications are not before the Tribunal, but it is relevant that BBC Capital is now the licensee for the relevant premises in Fortitude Valley. Under its licence, BBC Capital is entitled to trade between 5:00 pm and 3:00 am daily. It intends to open the premises covered by the licence for trading from early June 2015. [2] On 27 February 2015, the Manager Licensing and the Executive Director of the Office of Liquor and Gaming Regulation completed a memorandum about the application for consideration of the Commissioner for Liquor and Gaming. The memorandum recommended approval of the application for approval of extended trading hours, which would authorise the premises to trade between 5:00 pm and 5:00 am Monday to Sunday. The Commissioner did not make a decision on the application within 30 days of 27 February 2015. BBC Capital filed an application for review in the Tribunal on 17 April 2015. [3] The Liquor Act 1992 (Qld) (‘Liquor Act’) provides that if the Commissioner fails to grant or refuse an application within 30 days after the end of the time for taking of all steps required or permitted in relation to the application, the Commissioner is deemed to have refused the application at the end of the period of 30 days. I am satisfied that all necessary steps required or permitted under the Liquor Act were concluded on 27 February 2015 when the recommendations were made to the Commissioner about the application.1 More than 30 days then passed from when the 1 Adopting the approach taken in Birch Carrol & Coyle v Office of Liquor and Gaming Regulation [2011] QCAT 244, at [31]. -- 2 of 5 -- 3 Commissioner was provided with the application for consideration. No decision was made by the Commissioner. Accordingly, then the Commissioner was deemed to have refused the application for the extended trading hours approval when the review application was filed on 17 April 2015. [4] BBC Capital seeks orders that the Tribunal set aside the deemed refusal and grant the application for approval of extended trading hours so that it may trade between 3:00 am and 5:00 am daily. Any approval must be subject to exceptions prescribed by the Liquor Act. [5] The Commissioner submits that his decision should be confirmed. [6] The purpose of the Tribunal’s review is to produce the correct and preferable decision.2 In the review, the Tribunal effectively stands in the shoes of the decision-maker (in this case the Commissioner) for making the decision. In doing so, the Tribunal is obliged to apply the law that applied at the time the orginal decision (in this case, the deemed refusal) was made,3 on the basis of a reconsideration of the evidence before the Commissioner.4 That said, leave may be granted to present new evidence if in the cirmcumstances it would be unfair not to allow it.5 [7] In the hearing, I gave leave for new evidence, namely a copy of the current licence6 held by BBC Capital to be presented in the proceedings. It reflects the position after the other applications referred to earlier in paragraph [1] had been dealt with. It confirms that the applicant is the holder of the licence. It would have been unfair in the circumstances not to allow it into evidence.7 What is the correct and preferable decision? [8] Provisions about approval for extended trading hours are set out in Part 4, Division 7 of the Liquor Act. Part 5 of the Liquor Act sets out the requirements for and process of dealing with applications under the Liquor Act. It is uncontroversial (and I am satisfied on the basis of the material before the Tribunal)8 that all of the necessary steps were taken to fulfil the requirements of Part 5 for making and progressing the application for extended trading hours. [9] Section 121 sets out the matters to be considered by the Commissioner in deciding whether to grant an application. These include objections,9 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 20(1). 3 Liquor Act, s 33(1)(b). 4 Ibid, s 33(1)(a). 5 Ibid, s 34. 6 Exhibit 2. 7 In accordance with Liquor Act, s 34(2), the hearing was adjourned after the granting of leave. Upon resumption of the hearing, the Commissioner’s representative stated that the Commissioner’s decision was unaltered by the new evidence. 8 See Exhibit 1. 9 Liquor Act, s 121(1)(b) (and s 119) and s 121(2) (and s 119A). -- 3 of 5 -- 4 comments from the local government,10 comments from the police district officer for the locality.11 For an application for extended trading hours approval, several specified, (broadly-speaking) compliance-related matters concerning the licencee and the premises must be considered.12 [10] There were no public objections.13 Objections were not made by the Queensland Police Service,14 the Local Member of Parliament,15 the Brisbane City Council,16 or the then Minister for Justice and Attorney- General.17 Internally, the compliance officer within the Office of Liquor and Gaming Regulation raised no issues.18 [11] As discussed earlier, the General Manager, Licensing and the Executive Director, Office of Liquor and Gaming Regulation, both signed a memorandum to the Commissioner, Liquor and Gaming Regulation, on 27 February 2015. It set out matters in respect of compliance with the requirements and the lack of objection. It recommended that the Commissioner grant the application for approval of extended trading hours. [12] The Commissioner submits that he declined to make a decision on the application (resulting in the deemed refusal) on the basis of proposed amendments to the Liquor Act. The Commissioner points to a speech made by the Honourable Attorney-General and Minister for Skills and Training in the Queensland Parliament on 26 March 2015, wherein the she stated that in respect of the Queensland Government, We are also introducing a raft of measures to tackle alcohol fuelled violence….That means we will be bringing legislation before this house to stop pubs and clubs serving alcohol after 3:00 am and introducing a 1:00 am lockout.19 [13] BBC Capital argues that the relevant requirements in deciding the application are set out in the Liquor Act. While conceding that s 121 may not be exhaustive, it argues that the relevant matters must be determined in accordance with the scope, purpose and subject matter of the Liquor Act.20 Further, it submits that statements made in Parliament about possible future changes to the legislation cannot possibly be within scope of relevant considerations. They are, it argues, no more than a statement of future intention to amend the legislation. It argues that there is nothing about the merits of the application itself which suggest the application 10 Ibid, s 121(1)(c). 11 Ibid, s 121(1)(d). 12 Ibid, s 121(1)(g). 13 Exhibit 1, p 96-7, p 106-7. 14 Ibid, p 72. 15 Ibid, p 67-8, p 106-7. 16 Ibid, p 50-1, p 106-7. 17 Ibid, p 69-70, p 106-7. 18 Ibid, p 96-7. 19 Ibid, p 129. 20 Minister for Aboriginal Affairs and Others v Peko-Wallsend Ltd & Others (1986) 162 CLR 24. -- 4 of 5 -- 5 should be refused. BBC Capital points out that there are some 31 other premises within the immediate (Fortitude Valley) locality which have approval to trade until 5:00 am. 21 [14] The Commissioner notes that one of the main objects of the Liquor Act is to regulate the liquor industry in a way compatible to minimising harm and the potential for alcohol abuse.22 However, he can point to nothing in the material before the Tribunal, other than the comments in Hansard themselves, that raises potential for harm. The Commissioner submits that he considers it is inappropriate that approval be given in light of the statement recorded in Hansard. Apparently, he considered it would be pre-emptive to approve it. He accepts that there is no written policy at this stage and no indication about when any changes may be advanced by Government or might ultimately take effect. [15] The Commissioner’s representative acknowledges that a significant number of BBC Capital’s competitors in its immediate locality are entitled to trade under existing approvals until 5:00 am. [16] While not doubting the resolve or intention of the Government to make legislative changes in due course, that is not a matter which is relevant to deciding whether BBC Capital’s application for approval of extended trading hours is granted. The comments made in Parliament are not relevant to this application made by BBC Capital. In deciding the application, the Tribunal must, as the Liquor Act mandates, apply the legislation as it existed at the date of the deemed refusal. Although the decision to grant or refuse the approval involves an exercise of discretion, only those matters which are relevant can be considered. I accept that the relevant considerations are limited by the objects, scope and subject matter of the Liquor Act. I am satisfied that the statement in Parliament about intended future legislative changes is not a relevant consideration for deciding an application made in compliance with the existing law. [17] All of the technical requirements for the application have been met. There are no objections made nor any adverse comments raised by any party entitled to be consulted. There are no compliance related concerns. I am satisfied that, in the ordinary course, the correct and preferable decision is for the application to be granted. [18] I make orders accordingly setting aside the deemed refusal and granting approval for BBC Capital’s trading hours to be extended to 5:00 am, subject to the usual limitations on trading (for example, on Christmas Day, New Year’s Eve Good Friday and Anzac Day) as prescribed by the Liquor Act. Both parties have liberty to apply for the next seven days in relation to the form of my orders. 21 Exhibit 1, p 82-4. 22 Liquor Act, s 3(a)(i). -- 5 of 5 --