Butler & Ors v Office of Liquor and Gaming regulation GBBC Pty Ltd [2013] QCAT 226

CITATION: Butler & Ors v Office of Liquor and Gaming regulation GBBC Pty Ltd [2012] QCAT 226 PARTIES: Jill Butler & Ors (Applicant) V Office of Liquor and Gaming Regulation GBBC Pty Ltd (Respondent) APPLICATION NUMBER: GAR236-12 MATTER TYPE: General administrative review matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Richard Oliver, Senior Member DELIVERED ON: 15 May 2013 DELIVERED AT: Brisbane ORDERS MADE: Application to lead new evidence dismissed CATCHWORDS: Evidence – application to lead new evidence under s 34 of the Liquor Act 1992 – where new evidence related to the operation of the business after the licence was granted – where the evidence was not available at the time the decision was made – whether relevant to the granting of the licence with conditions. Queensland Civil and Administrative Tribunal Act 2009 s 20 Liquor Act 1992 ss 33 and 34 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). -- 1 of 3 -- 2 REASONS FOR DECISION [1] The applicants have applied to the Tribunal for a review of a decision of the Office of Liquor and Gaming Regulation to approve the granting of a Commercial Other (Produce/Wholesale) License to GBBC Pty Ltd in respect of the business it conducts as Green Beacon Brewing Co at premises situated at 26 Helen Street, Teneriffe. The license is subject to multiple conditions which include the restriction on the sale of liquor, restrictions on noise and compliance with various statutes relating to the safety of the patrons on the premises and the provision of food. [2] Section 33 of the Liquor Act 1992 says that the Tribunal must decide the review application on the evidence before the Commissioner when the decision was made. Section 34 of the Act permits the reception of new evidence in particular circumstances which include circumstances where a party could not have reasonably be expected to have known of the existence of the new evidence before the decision was made and also in circumstances where it would be unfair not to allow the new evidence. If new evidence is admitted, the review application proceedings must be adjourned to allow the Commissioner to reconsider the decision on the basis of the new evidence. [3] Subsequent to the filing of the application for review the applicants, at a directions hearing, informed the Tribunal that they proposed to apply for leave to present new evidence at the hearing. In October 2012 and November 2012 directions were made about filing the new evidence and submissions in support of the application. The respondents were also directed to file submissions in response. Further directions were made concerning the new evidence on 12 March 2013 and on 26 March 2013. As a consequence of these directions various statements were filed by the applicants together with submissions in support of the application to present new evidence. [4] On 3 May 2013 the Tribunal dismissed the application to present new evidence. The applicants have asked for reasons for that decision as they are entitled to do. These are those reasons. [5] The new evidence sought to be lead relates to the conduct of the business operated by GBBC subsequent to the granting of the license. The business commenced on 26 January 2013 and since that time, the applicants have experienced incidents of excess noise from the premises; people congregating outside the premises and across the road to smoke; objectionable behaviour from patrons including vomiting in the street and urinating; the involvement of police to maintain order; the premises staying open beyond the regulated time; and generally an adverse impact on the amenity of the locality.1 1 Statement of Catherine Scally, Elodie Scally; Peter Scally, Angela Barone, Carmello Scuderi, Carmello Ginardi. -- 2 of 3 -- 3 [6] In the applicants submission they acknowledge that the Tribunal must decide the case on the evidence that was before the Commissioner when the decision was made. However, they also contend that this new evidence falls within section 34(2) of the Act because the Commissioner could not have known about this evidence at the time the decision was made. [7] Obviously that contention is correct. However, the Commissioner can only rely on the evidence that was available at the time the decision was made. This evidence was not available and could never have been available because the business was not in fact operating. It would be incongruous for the Commissioner to grant the licence and then for the Tribunal to consider, in the review application, the conduct of the licensee after the business became operational to determine if the Commissioner’s decision should be confirmed or set aside. This is the function of the conditions that were imposed when the licence was granted. If the licensee does not comply with the conditions of licence, the Commissioner can take appropriate steps to ensure compliance and, presumably, cancel the licence as the ultimate sanction. [8] This is not a case where some evidence was in existence at the time the decision was made, was relevant to the consideration of whether the licence should be granted, and not put before the Commissioner. [9] Although section 20 of the QCAT Act says that it is the Tribunal’s function to produce the correct and preferable decision and must do so by way of a fresh hearing on the merits, section 20 must be read with section 33 of the Liquor Act 1992. It seems to me the intention of s 33 is to limit the evidence the Tribunal can consider to that which was before the Commissioner or under s 34, any evidence that that may have been available at the time the decision was made but not considered by the Commissioner. As the Liquor Act 1992 is the enabling Act it takes precedence over the application of section 20 of the QCAT Act. In these circumstances the application to lead fresh evidence by the applicants is refused. [10] There is a cross application by the GBBC for leave to lead to fresh evidence but that application is only pressed if leave is granted to the applicants to lead new evidence. As that application has been refused it is not necessary for me to consider this further application. In the circumstances that application is dismissed. -- 3 of 3 --