Cooper & Ors v Commissioner for Liquor and Gaming & Anor [2014] QCAT 627

CITATION: Cooper & Ors v Commissioner for Liquor and Gaming & Anor [2014] QCAT 627 PARTIES: Peter Cooper Sandra Cooper Vladimir Lipsky Raewyl Lipsky Ian Clark Carol Clark Lindsay Crutch Cathie Crutch Thomas Quinn Frances Quinn (Applicants) v Commissioner for Liquor and Gaming (First Respondent) Blackbird Bar & Restaurant Pty Ltd (Second Respondent) APPLICATION NUMBER: GAR162-14 MATTER TYPE: General administrative review matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Deane DELIVERED ON: 2 December 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave is granted for the following documents to be considered by the Tribunal: a. David Moore & Associates Report dated 18 November 2010 b. WHO Guidelines for Community Noise identified as documents 6 and 7 in the Quinns’ submissions c. Plan and Photographs identified as documents 1 in the Quinns’ submissions and the Clarks’ submissions, part 4 d. Google earth image identified as documents 3 in the Quinns’ -- 1 of 8 -- 2 submissions e. Response to the Queensland Ombudsman Liquor Report identified in book of documents p680-681 f. Investigation Running Sheet identified in book of documents p650 – 662. 2. Leave is refused to lead the following evidence: a. correspondence with the QPS identified in the Clarks’ submissions, part 2 b. advertisement of Notice of Application and photograph identified in the Clarks’ submissions, part 6 c. letter to the Attorney- General and the Attorney- General’s reply identified in the Clarks’ submissions, part 5. 3. The following documents were documents before the decision maker when the decision was made for which leave is not required: a. Liquor Report Queensland Ombudsman 2013 b. Documents omitted from the Clarks’ Objection dated 18 November 2013 identified in the Clarks’ submissions, part 1 c. Sequence of Liquor Licences for Queensland Rugby Union Club Inc and Blackbird documents identified in the Clarks’ submissions, part 3 d. letters passing between the Clarks and the Office of Liquor and Gaming Regulation in 2011 and 2013, part of the documents identified in the Clarks’ submissions, part 5. CATCHWORDS: APPLICATION TO REVIEW A DECISION - New evidence – whether leave ought to be granted Liquor Act 1992 (Qld) s 33, s 34 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 28 -- 2 of 8 -- 3 Butler & Ors v Office of Liquor and Gaming Regulation GBBC Pty Ltd [2013] QCAT 226 Drake v Chief Executive, Office of Liquor and Gaming Regulation [2013] QCAT 238 APPEARANCES: APPLICANTS: Ian Clark Carol Clark Thomas Quinn Frances Quinn RESPONDENT: Commissioner for Liquor and Gaming (First Respondent) Blackbird Bar & Restaurant Pty Ltd (Second Respondent) REPRESENTATIVES: APPLICANTS: Ian Clark and Carol Clark, self represented Thomas Quinn and Frances Quinn, self represented RESPONDENT: Commissioner for Liquor and Gaming, First Respondent, represented by Dominic Robinson, Principal Legal Officer, Office of General Counsel, Department of Justice and the Attorney General Blackbird Bar & Restaurant Pty Ltd, Second Respondent, represented by Matthew Jones, Director, Liquor & Gaming Specialists Pty Ltd REASONS FOR DECISION [1] The Applicants have sought review of the Commissioner’s decision to grant an extended trading hours permit. The review is to be conducted by a reconsideration of the evidence before the Commissioner when the decision was made1 unless leave is granted for the review to be decided on new evidence.2 [2] If leave is granted the Tribunal is to adjourn the proceedings to allow the Commissioner to reconsider the decision and allow for further submissions by affected persons.3 [3] Thomas and Frances Quinn have sought leave to present new evidence. Ian and Carol Clark have also sought leave to present new evidence. 1 Liquor Act 1992 (Qld) s 33. 2 Ibid s 34. 3 Ibid. -- 3 of 8 -- 4 [4] The Commissioner does not oppose the applications. The Commissioner also contends that if leave is granted the Tribunal ought to consider new evidence advanced in relation to the ‘only noise complaint made since the decision...was made’.4 Blackbird Bar & Restaurant opposes leave being granted. [5] Leave may be granted if the Tribunal is satisfied that: (a) the party did not know and could not reasonably be expected to have known, of the existence of the new evidence before the decision; and (b) in the circumstances, it would be unfair not to allow the party to present the new evidence.5 [6] New evidence is evidence that was not before the Commissioner when the decision was made.6 [7] Blackbird Bar & Restaurant submits that evidence, which came into existence after the decision was made is not capable of constituting ‘new evidence’. It relies upon Butler & Ors v Office of Liquor and Gaming Regulation GBBC Pty Ltd7 in which the Tribunal refused leave to lead new evidence relating to the conduct of the business subsequent to the granting of the license. In that case the Tribunal considered that this evidence was not evidence which could have been before the decision maker in relation to the grant of the licence and ought not be allowed to be considered in the review of whether a licence ought to have been granted but provided grounds for the possible cancellation of the licence by the Commissioner. [8] The Tribunal has previously granted leave to admit new evidence in circumstances where the applicant had no opportunity to place evidence before the decision maker because he did not receive a copy of the show cause notice.8 [9] There was no similar procedural issue in the Butler case but a procedural issue is raised by the Applicants. [10] I am not satisfied that the terms of s 34 necessarily preclude the granting of leave to permit the consideration by the Tribunal of evidence, which came into existence after the decision was made. The definition of new evidence combined with the terms of s 34(1) do not clearly require such a limitation to be imposed. The second reading speech says little more than to repeat the terms of the section and in my view does not provide additional guidance as contended for by Blackbird Bar & Restaurant’s representative in support of its contention that evidence which came into existence after the decision was made cannot be ‘new evidence’. 4 650-662. 5 Liquor Act 1992 (Qld) s 34(1). 6 Ibid s 34(3). 7 [2013] QCAT 226. 8 Drake v Chief Executive, Office of Liquor and Gaming Regulation [2013] QCAT 238. -- 4 of 8 -- 5 Quinn Application Liquor Report Queensland Ombudsman 2013 [11] I am satisfied that the Ombudsman’s report9 was a document before the decision maker when the decision was made and therefore does not require leave for it to be considered by the Tribunal. [12] The Quinns contend that this document is not ‘new evidence’ but rather has been omitted by the Commissioner from the book of relevant documents. They submit that the report was delivered to the Commissioner in support of the objections. The Quinns’ objection10 referred to this report, expressly incorporated the report ‘by reference’ and indicated a copy was delivered. The Commissioner submits that whilst a copy was not within the file he was at all material times aware of the report. David Moore & Associates Report re Bella Creek Road Development 18 November 2010 [13] I give leave for the David Moore & Associates report dated 18 November 201011 to be considered by the Tribunal. [14] The Quinns seek leave to rely upon this document to discredit the acoustic reports considered by the decision maker. It is effectively rebuttal evidence, which they were unable to place before the decision maker because they were refused access to the acoustic reports. [15] Blackbird Bar & Restaurant oppose leave being granted on the grounds of relevance as the report does not appear to be in respect of liquor licensing premises and submits it would not be unfair not to allow it to be presented. [16] The Tribunal is not bound by the rules of evidence12 although I accept that the matters raised may affect the weight the Tribunal is prepared to give to such evidence. [17] I accept that as the Quinns were refused access to the acoustic reports on the balance of probabilities they did not know and could not reasonably have been expected to know of the existence of this report because they were unaware of the identity of the author of the acoustic reports. [18] If they had been allowed access to the acoustic reports they would have had an opportunity to place before the decision maker rebuttal evidence. I find it would be unfair not to allow the Quinns to present this evidence. 9 Quinns’ submissions folder document 5. 10 Statement of Reasons and book of documents at 276 [57]-[61]. 11 Quinns’ submissions folder document 4. 12 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 28. -- 5 of 8 -- 6 WHO Guidelines for Community Noise [19] I give leave for the WHO Guidelines for Community Noise13 to be considered by the Tribunal. [20] Blackbird Bar & Restaurant oppose leave being granted on the grounds that it is not apparent when the Quinns became aware of the document and on the grounds of relevance as the documents are not specific to liquor licensing premises and submits it would not be unfair not to allow them to be presented. [21] I accept that as the Quinns were refused access to the acoustic reports on the balance of probabilities they did not know and could not reasonably have been expected to know of the existence of these documents because they were unaware of the issues raised in the acoustic reports and therefore the issues they may need to address. [22] If they had been allowed access to the acoustic reports they would have had an opportunity to place before the decision maker rebuttal evidence. I find it would be unfair not to allow the Quinns to present this evidence. Photographs of subject and adjacent premises14 and Google earth image comparing distance from subject premises to alternatives locations15 [23] I give leave for these documents to be considered by the Tribunal. [24] The Quinns also seek leave to rely upon these documents to discredit the acoustic reports considered by the decision maker. [25] The Quinns acknowledge that these documents were brought into existence after the decision was made. I accept that as the Quinns were refused access to the acoustic reports it was not possible to gather evidence to challenge points made in Mr Moore’s reports prior to receiving a copy of the reports. [26] If they had been allowed access to the acoustic reports they would have had an opportunity to place before the decision maker rebuttal evidence. I find it would be unfair not to allow the Quinns to present this evidence. Clark Application Documents omitted from Clark Objection 18 November 2013 [27] I am satisfied that the five documents listed were documents before the decision maker when the decision was made and therefore do not require leave for them to be considered by the Tribunal. 13 Quinns’ submissions folder documents 6 and 7. 14 Quinns’ submissions folder documents 1 and 2. 15 Quinns’ submissions folder document 3. -- 6 of 8 -- 7 [28] The Clarks contend that the five documents listed are not ‘new evidence’ but rather have been omitted by the Commissioner from the book of relevant documents. The Clarks’ objection16 expressly incorporated the documents by reference. The Commissioner acknowledges that the documents were in his possession. Queensland Police Service correspondence with OLGR [29] Leave is refused to lead evidence of correspondence with the QPS.17 [30] Each of the documents is dated prior to the date of the decision.18 The correspondence is from or to the Clarks and therefore does not satisfy the first limb of the test in s 34. Sequence of Liquor Licences for Queensland Rugby Union Club Inc and Blackbird [31] I am satisfied that the two documents listed were documents before the decision maker when the decision was made and therefore do not require leave for them to be considered by the Tribunal. [32] The two documents are not ‘new evidence’. I accept that the Commissioner had knowledge of the contents of the register of licences at the time the decision was made. Second Acoustic Report19 [33] I give leave for these documents to be considered by the Tribunal. [34] These documents are the same plan and photographs20 for which the Quinns sought leave. Leave is granted for the reasons set out earlier. Investigation Running Sheet21 [35] I am satisfied that the letters passing between the Clarks and the Office of Liquor and Gaming Regulation in 2011 and 2013 were documents before the decision maker when the decision was made and therefore do not require leave for them to be considered by the Tribunal. [36] Leave is refused to lead evidence of the letter to the Attorney- General and the Attorney- General’s reply. [37] The Clarks seek to leave to lead evidence of complaints in respect of the nearby premises known as Fridays to give context to the investigation running sheet, included in the book of documents. The Clarks identify a number of letters. Four of the letters passed between the Clarks and the 16 Statement of Reasons and book of documents at 132 [6]; 136 [28]-[29]; 138 [42]. 17 Clarks’ submission dated 23 September 2014, part 2. 18 2 April 2014. 19 Clarks’ submissions dated 23 September 2014, part 4. 20 Quinns’ submission folder, documents 1. 21 Clarks’ submissions dated 23 September 2014, part 5. -- 7 of 8 -- 8 Office of Liquor and Gaming Regulation in July and August 2013 and appear to directly relate to the matters in the Investigation Running Sheet. Another letter is dated 5 December 2011 and appears to relate to an earlier complaint. These documents were in the Commissioner’s possession when the decision was made. [38] The Clarks seek leave to lead evidence of a letter from the Clarks to the Attorney-General dated 3 March 2014. It is dated prior to the date of the decision. The correspondence is from the Clarks and therefore does not satisfy the first limb of the test in s 34. The Clarks seek leave to lead evidence of the Attorney–General’s response. Whilst the response is dated after the decision and therefore was not known to the Clarks before the decision I find that it would not be unfair not to allow the Clarks to present the evidence given the letter to the Attorney-General will not form part of the evidence. Advertising Notice of Application for Blackbird Licence [39] Leave is refused to lead evidence of the notice of application and photograph of the notice taken by Mr Clark in November 2013. [40] Each of the documents is dated prior to the date of the decision and were known to the Clarks prior to the decision. They therefore do not satisfy the first limb of the test in s 34. Commissioner’s Application [41] I give leave for the response to the Ombudsman’s report and the Investigation Running Sheet22 to be considered by the Tribunal. [42] The Commissioner submits that if leave is granted to the Quinns and the Clarks to lead new evidence he ought to be allowed to lead evidence detailing his response to the Ombudsman’s report and evidence of the investigation of a noise complaint made since the decision was made. [43] The response to the Ombudsman’s report in the form sought to be lead is a document, which was not in existence before the decision was made. I find that given that the Ombudsman’s report is in evidence it is not unfair to allow the response to also be lead. [44] The Investigation Running Sheet sets out evidence of inspections and actions relating to a complaint during the period 25 April 2014 to 3 September 2014. This evidence came into existence after the decision was made. [45] Given that the Applicants have raised an issue about complaints handling I find that it would not be unfair to allow this evidence to be considered. 22 Book of documents 650-662. -- 8 of 8 --