Drake v Chief Executive, Office of Liquor and Gaming Regulation [2013] QCAT 238

CITATION: Drake v Chief Executive, Office of Liquor and Gaming Regulation [2013] QCAT 238 PARTIES: Louis Samuel Drake (Applicant) v Chief Executive, Office of Liquor and Gaming Regulation (Respondent) APPLICATION NUMBER: OCR290-12 MATTER TYPE: Occupational regulation matters HEARING DATE: 22 February 2013 HEARD AT: Hervey Bay DECISION OF: David Lewis, Member DELIVERED ON: 4 April 2013 DELIVERED AT: Hervey Bay ORDERS MADE: 1. The decision of the Commissioner for Liquor and Gaming (being the decision dated 9 August 2012) that the approved manager approval (no. 141421) held by the Applicant be cancelled, is set aside. 2. In substitution for that decision the approved manager approval of the Applicant is suspended for a period of six (6) months from 17 August 2012. CATCHWORDS: APPLICATION TO REVIEW DECISION - Liquor Act 1992 – Cancellation of Approved Managers Approval – grounds for cancellation or suspension – whether holder is a suitable person – OLGR Guidelines – Review conducted on material before original decision maker – when new evidence can be admitted. Liquor Act 1992 ss 21, 33, 34, 42A, 142R, 142ZA, 142ZB, 142ZE. Queensland Civil and Administrative Tribunal Act 2009 ss19, 20. APPEARANCES and REPRESENTATION (if any): -- 1 of 9 -- 2 APPLICANT: In person RESPONDENT: Mr D Robinson of counsel REASONS FOR DECISION [1] On 7 November 2011 the applicant applied to the Office of Liquor Gaming and Racing (OLGR) for an approved manager’s approval under Liquor Act 1992 (the Act). The prescribed form includes a question asking the applicant if he or she has ever been arrested or summonsed or given a notice to appear in relation to an offence, to which the applicant answered yes. The form however does not request any further particulars, and apparently none were sought. [2] OLGR did however seek advice from the Queensland Police Service as to his criminal history, and received advice that his history was clear. On 24 November 2011 his application was granted. [3] On 4 June 2012 a complaint was received by OLGR alleging that the applicant had been charged with fraud “years ago” and that he was the “main suspect” in another matter. As a result of that, the Office sought another police check, which revealed that on 22 July 2011, in the District Court Brisbane, Mr Drake had been dealt with for a fraud offence against section 408C(1)(b) of the Criminal Code, dishonestly obtaining property from another, on various dates in 2006 and 2007. He had pleaded guilty, was discharged absolutely with no penalty imposed and no conviction recorded, but was ordered to pay compensation of $17350. It should be mentioned that this was the only matter disclosed by the police, who presumably had no information about the other rumoured offence. [4] The responsible officers of OLGR considered the matter and subsequently, on 9 July 2012, the Executive Director issued a show cause notice pursuant to section 142ZB of the Act, advising that it was proposed to cancel his approval as an approved manager and calling on him to make representations to show why that action should not be taken. [5] The Office received no response to that notice, and Mr Drake claimed later that he had never received it. In any event, the Office proceeded to consider the matter, and on 9 August 2012 issued an information notice to the effect that it had been decided to cancel his approval, effective from 17 August 2012. [6] Mr Drake did receive this latter notice, albeit not until 15 August, and subsequently brought this application to review that decision. He sought, in effect, that the decision be set aside and his approval re-instated. The legal framework [7] Section 142Q of the Act provides that a person may apply for approval as an approved manager, and section 142R(2) provides that the chief executive may grant the application only if satisfied the applicant is a suitable person. Sub section 142R(3) provides: “In deciding whether the applicant is a suitable person … the chief executive may have regard to… -- 2 of 9 -- 3 (c) whether the applicant is a person of good repute who does not have a history of behaviour that would render the applicant unsuitable to hold the approval.” [8] Section 142ZA(1) gives power for the chief executive to suspend or cancel an approval if he believes on reasonable grounds the person “(b) … is not, or is no longer, a suitable person…” For forming that belief, he may have regard to the matters mentioned in s142R(3), that is the suitability matters relevant to an original application.1 [9] The procedure for suspension or cancellation is that a show cause notice must be issued outlining the proposed action, the grounds and the facts and circumstances, and inviting the holder to show cause why the action should not be taken, within a stipulated period, being not less than 21 days (section 142ZB). After considering the representations, or if there are no representations, the chief executive may, if the proposed action was a cancellation, either cancel the approval or suspend it for a period (section 142ZE(3)(b)). [10] Part 2 of the Liquor Act gives the Tribunal power to review a decision in relation to the suspension or cancellation of an approval as an approved manager.2 The procedures for review by the Tribunal are set out in sections 33 and 34 of the Act. Relevantly the Tribunal must hear and decide the review by reconsideration of the evidence of the chief executive when the decision was made,3 and decide in accordance with the law that applied at the time.4 [11] Despite section 33, the Tribunal may grant leave to a party to present new evidence if 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 if in the circumstances it would be unfair not to allow the party to present the new evidence.5 The tribunal must allow further time for reconsideration of the new evidence and to make further submissions.6 [12] Under the Queensland Civil and Administrative Tribunal Act 2009, the tribunal has all the functions of the original decision maker,7 the purpose of the review is to produce the correct and preferable decision, and the review is by way of new hearing on the merits.8 [13] For completeness, it might be noted that, consequent upon amendments taking effect on 1 January 2013,9 the chief executive is now the commissioner, but under the transitional provisions, acts of the chief executive are taken to be acts of the commissioner, and appeals not finally dealt with are taken to be appeals against the commissioner.10 1 Section 142ZA(2). 2 Section 21(1)(ed). 3 Section 33(1)(a). 4 Section 33(1)(b). 5 Section 34(1). 6 Section 34(2). 7 QCAT Act, section 19. 8 QCAT Act, section 20. 9 Fiscal Repair Amendment Act 2012, Part 5. 10 Liquor Act 1992, sections 311, 313. -- 3 of 9 -- 4 The Applicant’s case [14] In his application, the Applicant stated that without his licence, he was unable to continue working, and that without work he would be unable to repay the monies he owed, and referred to hardship over the last few years. [15] He expanded on his grounds for review in his submission, where he dealt with the issue of the fraud charge. He stated that he had borrowed money from a friend in 2005/06, but had subsequently had been unable to repay. He said it had been a civil matter, and it was always his intention to repay, but the lender had chosen to pursue the matter through criminal channels, and charges had been brought in 2011. His solicitor had advised him to plead guilty, that the outstanding money would be handed to SPER for collection (which it was) and that there would be no further ramifications. [16] He said he had had a “turbulent” last few years, including a marriage breakdown, and had moved to Hervey Bay where he had been given a job as general manager of a local hotel, and had undertaken weekly psychology sessions. He was earning $600 per week, of which SPER was taking $150 (and was demanding a lump sum of $8000 as well) and that he had to support himself and pay maintenance for his 3 children from the balance. If he lost his approval, he said, he would be set back 5 years, he would no longer be able to service the debt, or look after his children. [17] In support of his case, the Applicant produced references from his employer, and from another local business operator. Both were very supportive. The employer said that he was “organized, efficient, extremely competent, and has an excellent rapport with people of all ages.” The other reference spoke of his handling of situations with fairness and calmness. The Respondent’s case [18] In its report leading to the initial show cause notice, and in its subsequent decision to cancel the approval, the OLGR had referred to a related gaming licence matter (not the subject of this application for review) and expressed the view that if the Applicant should remain a licensed gaming employee the integrity of gaming may be jeopardised; and that further, the approval under the Liquor Act should be the subject of similar cancellation. [19] The report prepared as part of the decision making process11 cited a case scenario from the Suitability Guidelines (referred to in more detail below) where the recommended action in the case of an offence committed in the capacity of approved manager was cancellation. Of course this was not an offence committed in that capacity. [20] Counsel for the Respondent prepared a comprehensive submission which expanded on these matters and responded to the Applicant’s submission. As part of that process, and on the basis that he was responding to new evidence produced as part of the Applicant’s submission12, the 11 OLGR memorandum dated 2 August 2012. 12 Pursuant to Liquor Act section 34. -- 4 of 9 -- 5 Respondent obtained and produced the Police form QP9 which outlined more detail of offences. In essence this revealed four offences, committed between 2 June 2006 and 29 November 2007, in each of which it was alleged the Applicant had obtained monies by way of loan on the basis of false information that he had property that he was proposing to sell to repay the loans. The amounts involved ranged from $2200 to $6500, and totalled $17350. The same lender was involved in each matter. [21] Based on these facts, the submission said that the chief executive had determined that the Applicant was not a suitable person as he did not have the necessary integrity and character to work as an approved manager; and that he posed an unacceptable risk to the integrity of the industry as his actions potentially affected the community, and the public perception of honesty and integrity operating within licensed premises. I cannot see that the decision as conveyed to the Applicant included these reasons, and even the internal reports seem to have referred to such issues in respect of the gaming licence issue rather than the Liquor Act approval, but it is perhaps a reasonable outline of particulars of the general suitability argument relied upon. [22] The submission argued that the Applicant could not rely on his submission that the debt was a civil matter as he had pleaded guilty to a criminal charge. [23] Further, it was submitted that as the Applicant was still working at the same hotel, albeit in another capacity,13 his current employment would not be affected. [24] In summary, the Respondent submitted that the approved manager was the physical manifestation of the corporate licensee, and is as responsible as the licensee when in control of the premises; that he has specific responsibilities in relation to closed circuit television, and incident and training registers; and that the decision of the chief executive was in accord with the Suitability Guidelines. Evidence and findings [25] Before proceeding to the substantive matter before the Tribunal, it may be helpful to say something about the impact of sections 33 and 34 of the Act on the conduct of these matters. As mentioned above, section 33 provides that the review is to be conducted on the basis of the material before the original decision maker, and that new evidence can only be introduced (under section 34) if it was not known, or could not reasonably have been known at the time, and that it would be unfair to exclude it. [26] On the basis of these provisions, counsel for the Respondent objected to the introduction of new evidence by the Applicant that while he was still working at the hotel, he was liable to lose that job if his application was unsuccessful as he was being kept on temporarily in the hope that his managers role could be reinstated. [27] This argument raised the question of the admissibility of a whole range of evidence that was not before the original decision maker, including much 13 His application for a stay of the decision was refused. -- 5 of 9 -- 6 of the Applicant’s material, and his references, and the Respondent’s QP9 evidence. The problem arose because (the Applicant claimed, and the Respondent conceded) the Applicant had not received the original show cause notice. The postal advices indicated that the notice had been signed for on 12 July 2012, but by someone who was obviously not the Applicant. The Applicant’s first knowledge of the matter came when he received the decision notice, dated 9 August 2012, which he said was received by him on 15 August. [28] In those circumstances, the Applicant had no opportunity to make submissions for the original decision. On a literal reading of the section then, all of his evidence was new, and unless unknown to him and not reasonably knowable, should be excluded. [29] Counsel for the Respondent did not seek to advance this position, but rather submitted that since the Applicant had no knowledge of the original decision-making, he did not know that there was a need for evidence, and therefore it was not evidence available to him. Put another way, while the facts which would form the evidence were obviously known to him (eg his financial circumstances etc) it was not known to him that the facts were evidence, having no knowledge of any relevant proceedings. The Respondent had therefore proceeded on the basis that the Tribunal had allowed him to advance the new material,14 and that they had had an opportunity to respond. [30] Such an interpretation might be said to strain the language of section 34 somewhat, but given that all parties had been prepared to proceed on that basis throughout, and given that the somewhat prescriptive terms of the section would otherwise work a very considerable injustice, the Tribunal was prepared to accept that interpretation. [31] On this basis, new evidence given at the hearing should also have been allowed in, although subject to the requirement to allow the Respondent time to respond further. The fact that the Applicant knew of the proceedings before the date the cancellation took effect (but after the date of the decision) cannot affect this, as he was denied the chance to make the submissions before the decision was made. [32] In any event, the new evidence at the hearing was more or less confined to comments about the threat to his job. As on any view the cancellation of an approval of this nature was likely to have some impact on his employment, even if simply making him more vulnerable in the marketplace, the inclusion or exclusion of the evidence was not such as to affect the result. However if necessary I find that the evidence should be allowed, and that, given the nature of the evidence, there was a reasonable opportunity for the Respondent to respond at the hearing. [33] As to the substantive issue, the Act itself gives little guidance. As mentioned above, section 142R requires the chief executive to be satisfied the applicant is a suitable person to hold the approval, and in deciding that issue he “may” have regard to whether the applicant is “of good repute, 14 The directions hearing had for example ordered him to file new evidence by a certain date. -- 6 of 9 -- 7 who does not have a history of behaviour that would render the applicant unsuitable.” Beyond that the Act does not elaborate, although notably while it empowers the chief executive to obtain a copy of the applicant’s criminal history, a criminal record of itself is not a bar to granting an approval. [34] The Act15 does however empower the chief executive to issue guidelines to inform people as to the attitude he is likely to adopt on a particular matter, and how he administers the Act. Pursuant to that power, there are two relevant documents, the Suitability Guidelines for Approved Managers and the Compliance Enforcement Guidelines, each of which was produced by the Respondent. [35] On the matter of receipt of information disclosing criminal offences, the Suitability Guidelines state that the chief executive might determine the situation does not warrant further action, for example where the offences are not significant, or “where offences or conduct are of a serious nature but occurred some time ago (› 5 years).”16 At paragraph 5.1.2 it states that for offences involving fraud, consideration should be given to the amount misappropriated, and the period in which the offences were committed; and at 5.3 it provides that consideration should be given to the period during which no adverse information has been identified, and suggests a period of two years for less serious matters, and five years for more serious ones. [36] Other factors to consider are the number and type of offence, whether there was a pattern of offences, the court findings, mitigating or aggravating circumstances, and the issue of financial hardship.17 [37] The Guidelines refer to a number of scenarios. These include (scenario 4) social security fraud where full restitution is made, where the recommendation is one month’s suspension if no conviction was recorded, or six month’s if one was. Where a conviction is recorded and restitution not made the recommendation is cancellation (scenario 5). For a dishonesty offence while carrying out the duties of an approved manager, or while employed in the industry, the recommendation is cancellation (scenario 7). [38] The Compliance Enforcement Guidelines contain a precedent register, that is of actual decisions of OLGR. Of these, some seven were charges of stealing or fraud or the like as a servant. The amounts of money involved (where noted) ranged from $1280 to $9750. Penalties ranged from 70 hours community service, and a bond in the two least serious cases, to three years imprisonment in the most serious. No conviction was recorded in four of the matters. In all cases the approval was cancelled. The register does not give any indication of the period between the offences and the departmental action. [39] There are two matters where the action taken fell short of a cancellation. One was a case of three charges of possession of a dangerous drug, 15 Section 42A. 16 Suitability Guidelines, paragraph 4.1.1. 17 Paragraphs 5.3 to 5.5. -- 7 of 9 -- 8 where the manager was fined $900 with no conviction recorded, and in that case OLGR issued a warning. The other (case 1 in the list) was where there had been 2 charges of obtaining financial advantage relating to social security payments. The defendant pleaded guilty, and was sentenced to six months imprisonment but was released on a three year good behaviour bond. A conviction was recorded. The amount involved was $14,643. The action taken was suspension of the approval for one month. Again no information is given as to any lapse of time. [40] The conclusion one can draw from the much more lenient approach in case 1 is that it did not involve dishonesty as a servant. As well, while it is not clear from the precedent facts, the employer in the servant cases was presumably the licensed establishment, bringing those cases within the more serious cases of being committed as an approved manager or within the industry, as per scenario 7 referred to above. [41] There have apparently been no Tribunal decisions on this type of matter under these provisions, and therefore no guidance is to be had there. [42] The charges in the Applicant’s matter were in many respects similar to case 1. The Applicant sought to explain that the matter was in effect really a civil matter where he had come before the criminal court only because of a choice of remedy by the complaint. One might say his case was that it only just fell over the line as a criminal matter. The Respondent did not accept that, relying on the fact that the Applicant did plead guilty. [43] One of the difficulties in assessing the seriousness of this charge is that the Tribunal had to rely on only limited material. In this case, as in many that come before the Tribunal no doubt, this was limited to the police Form QP9 and a version of the events from the Applicant. Prosecution forms like the QP9 are of their nature the police version of the events, and one cannot tell what allegations were accepted or contested by the defence, or for that matter withdrawn by the prosecution, nor what was accepted by the court. There are no particulars of the submissions of the defence, nor any details of the sentencing remarks of the judge. An unrepresented applicant may not have sufficient grasp of the original proceedings to explain the circumstances of the case with sufficient accuracy to be relied upon. These difficulties could be overcome by obtaining a transcript of the sentencing remarks, or even an affidavit from the defence solicitor at the time, but neither was available here. [44] What was available was the outcome, which was that no penalty was imposed and no conviction was recorded. This is of course about as lenient an outcome as one can get, and suggests that the sentencing judge placed a low level of moral culpability on the defendant. On that basis, it would be seen as less serious than precedent case 1 mentioned above. [45] There is also the fact that the offences were committed about five years before the show cause notice was issued. The first was a little more than six years earlier, the second just over five years and just under five years in the other two. This brings the matter (almost) within the guidelines for lesser or no action as referred to above, and indeed one of the -- 8 of 9 -- 9 investigating officers had noted at the outset that he had reservations about the matter for that reason, but thought they should proceed with the show cause at that stage. [46] Taking those matters into account, and also taking into account the excellent references provided, the Applicant’s financial circumstances, his desire and need to repay the original loans, his other family commitments, and the impact that a cancellation would have or be likely to have on his employment, the Tribunal concludes that cancellation is not warranted. While some sanction may be appropriate, the events as a whole, and in that context, are not sufficient to find that he is not a suitable person to hold an approval. [47] Counsel for the Respondent, while not having instructions to consent to a period of suspension, quite properly conceded that a suspension for a period of six months was not inappropriate, and the order of the Tribunal will be that the decision of the chief executive to cancel the Applicant’s approved managers approval be set aside, and in lieu that approval be suspended for six months, such suspension to date from 17 August 2012. [48] As more than six months had elapsed at the time of the hearing, I announced the decision at the hearing. It is noted however that Counsel for the Respondent has requested written reasons pursuant to section 122 of the QCAT Act, and these reasons are provided accordingly. -- 9 of 9 --