Birch Carrol & Coyle Limited v Chief Executive, Office of Liquor and Gaming Regulation [2011] QCAT 244

CITATION: Birch Carrol & Coyle Limited v Chief Executive, Office of Liquor and Gaming Regulation [2011] QCAT 244 PARTIES: Birch Carrol & Coyle Limited trading as Event Cinemas v Chief Executive, Office of Liquor and Gaming Regulation APPLICATION NUMBER: GAR414-10 MATTER TYPE: General administrative review matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Mrs Glenice Spender, Member DELIVERED ON: 31 May 2011 DELIVERED AT: Brisbane ORDERS MADE: 1. The time for filing the review application is extended to 21 December 2010. 2. The strike out application is dismissed. CATCHWORDS: Strike out application – deemed refusal Liquor Act 1992, s 31 APPEARANCES and REPRESENTATION (if any): APPLICANT: Mullins Lawyers RESPONDENT: Simon Grant, In-House Principal Lawyer REASONS FOR DECISION Introduction [1] This is an application by the Chief Executive (“the Respondent”) of the Office of Liquor and Gaming Regulation (“the OLGR”) seeking to have struck out an application for review of a “deemed refusal” by the -- 1 of 8 -- 2 Respondent of an application for Change to Licensed Area lodged with OLGR by Birch Carrol & Coyle trading as Event Cinemas (“the Applicant”). [2] The Respondent seeks to strike out the review application on the ground that there has been no decision or “deemed refusal” under section 31 of the Liquor Act 1992 (“the Act”); that the time within which all steps required or permitted under the Act must be taken has not ended; and that the application for Change to Licensed Area continues to be considered under the Act. [3] The application for Change to Licensed Area under section 154 of the Act was lodged on 23 June 2009 and the review application was filed on 14 December 2010. The Applicant submits that a “deemed refusal” has occurred given the “unacceptable delay, inertia or inaction” by OGLR in this case. [4] The Respondent has filed relevant material on the departmental file and the Applicant has filed copies of letters, reports, emails and telephone calls relevant to the decision-making process. The parties have also filed submissions on the strike out application and the jurisdictional issues arising therefrom. [5] The principal issue to be determined on the strike out application is whether or not there has been a “deemed refusal”. If there has been no “deemed refusal”, then the Tribunal has no jurisdiction to review because there is no “decision”, and the review application must be struck out. Factual background [6] On 29 May 2009, the Applicant was granted a Commercial Other (On- Premises) Licence for its Gold Class cinema, bar and connected lounge area within its 11-cinema complex at Robina. The application had included a request for licensing of the V-max cinema within the cinema complex, but the Applicant agreed to excise the V-max cinema from the application because the Respondent needed to give more consideration to that aspect of the application. [7] On 23 June 2009, the Applicant lodged a Form 24 Application to Change the Licensed Area, noting in a covering letter that OLGR had agreed to waive the application fee, the usual minimum requirements, and advertising requirements for the new application. A notation on the OLGR database as it stood at 2 June 2010 confirms that on 13 July 2009 advertising for the Change of Licensed Area application had been waived (p 84 Appeal book). This was understandable, as licensing of the V-max cinema had been advertised as recently as March 2009 as part of the original application in respect of the 11-cinema complex. [8] On 23 July 2009 the Respondent sent a letter to the Applicant setting out four areas of concern in respect of the application, namely: lighting, density, security and minors. In a letter dated 21 September 2009 Mullins -- 2 of 8 -- 3 Lawyers, on behalf of the Applicant, provided written submissions addressing the four key areas of concern raised by the Respondent. [9] In a letter dated 25 September 2009, the Respondent set out further and better particulars in relation to the four mentioned key issues concerning the application, and requested a further written response. [10] In its response dated 24 February 2010, Mullins Lawyers, on behalf of the Applicant, set out a detailed 25-page submission-in-reply and attached a risk-assessed management plan (“RAMP”). [11] On 19 April 2010 the Applicant and its lawyers met with OLGR officers Smith and Russell at which time the Applicant was informed of an internal dispute within OLGR as to whether or not the application should be approved. The Applicant was informed that the Respondent may need to develop a new Guideline for the handling of applications of this type and that a review of how these matters were managed interstate may need to be conducted. [12] On 20 May 2010, Mullins Lawyers filed a further detailed 10-page submission, on behalf of the Applicant, including advice and information as to how applications of this nature are managed in other state jurisdictions. [13] On 4 June 2010 Mullins Lawyers made a telephone enquiry of Officer Smith who had been assigned to investigate the application. During that phone call Officer Smith advised that no one at OLGR was in favour of the Applicant’s application but there appeared to be no apparent lawful reason to refuse the application. Neither Officer Smith nor any other officer advised the Applicant that a further community impact statement (C.I.S.) in addition to the one provided with the original application, or further advertising, were required. [14] On 2 July 2010 Officer Smith submitted to Officer Leotta, Manager Licensing, a decision memorandum of advice which set out three optional decisions and recommended that as there was presently insufficient evidence to refuse the application, a heavily-conditioned approval would be satisfactory. [15] On 5 July 2010, 10 August 2010, 30 August 2010 and 6 September 2010, Mullins Lawyers, on behalf of the Applicant, requested advice of the Respondent as to whether or not a decision had been made. [16] On 14 July 2010 Officer Smith advised Mullins Lawyers that he had completed his decision memorandum and on 25 August 2010 he further advised that he had reported to OGLR management, following his enquiries with interstate jurisdictions, that there had been no issue with licensing of V-max cinemas there. Officer Smith did not advise the Applicant that it was necessary to lodge a further C.I.S. or to undertake further advertising. -- 3 of 8 -- 4 [17] On 19 October 2010 and 29 October 2010, Mullins Lawyers sent emails to OLGR requesting that a decision be made and warning that the Applicant was considering a s 31 “deemed refusal” application. There was no reply to these emails. [18] On 16 November 2010 the Executive Director of OLGR, Officer Moynihan telephoned Mullins Lawyers and advised that the Respondent was not in a position to make a decision and was considering requiring a full C.I.S. and advertising, but said that she would confirm these requirements in writing if it was decided to insist on such requirements. [19] On 14 December 2010 the Applicant filed a review application in the Tribunal registry. The application was stamped as “received” on that date. There is a further stamp dated 21 December 2010 on the face of the application bearing the words “filed at the insistence of the applicant”. The application was not served on the Respondent until 22 December 2010. The delay in serving the Respondent was the result of uncertainty on the part of registry staff as to the validity of a review application which was not accompanied by a copy of the relevant decision. [20] The Tribunal is satisfied that the effective date of filing of the application for review of a “deemed refusal” under s 31 was 14 December 2010. The Applicant was not to blame for the delay caused by registry staff making necessary investigations with respect to an unfamiliar type of review application. [21] On 21 December 2010, the Chief Executive gave written notice to the Applicant requiring provision of a further C.I.S. and further advertising of the application for Change of Licensed Area. The Law [22] The application for Change of Licensed Area was made under s 154 which provides: “154 Alteration etc. and maintenance of licensed premises (1) The owner, licensee or other person in control of licensed premises must not, without the chief executive’s approval, alter, rebuild, change or increase the area of the licensed premises. Examples for subsection (1)— 1 The licensee of a detached bottle shop in a shopping centre changes the relevant leasing arrangements by reducing the overall area the shop is to occupy. Therefore the licensee must apply for the chief executive’s approval to alter the licensed premises permanently. 2 An RSL club is the licensee of a licensed club and wishes to erect a tent next to its licensed premises to provide liquor on Anzac Day. Therefore the licensee must apply for the chief executive’s approval to increase the area of the licensed premises for that occasion. -- 4 of 8 -- 5 Maximum penalty—25 penalty units. (2) For subsection (1)— (a) in giving an approval, the chief executive must have regard to the business that is the principal activity conducted under the licence; and (b) a change in the area includes not using a part of the licensed premises as if the part were not licensed premises. (3) Before giving an approval, the chief executive may ask the applicant to give the chief executive a management plan relating to the proposed alteration, rebuilding, change or increase. (4) The management plan must include information the chief executive considers appropriate having regard to— (a) the business that is the principal activity conducted under the licence; and (b) the nature of the alteration, rebuilding, change or increase. (5) If the chief executive asks the applicant for a management plan under subsection (3), the chief executive must not give the approval unless the applicant complies with the request. (6) The licensee of licensed premises must keep the premises clean and in good repair. Maximum penalty—25 penalty” [23] There is relevantly no requirement for advertising included in s 154. [24] Section 31 provides: “31 Failure to notify about decision (1) This section applies if the chief executive fails to notify an applicant of the grant or refusal of an application within 30 days after the end of the time within which all steps required or permitted by this Act to be taken relating to the application must be taken. (2) For the purposes of a review by the tribunal, the chief executive is taken to have given to the applicant notice of a decision to refuse the application at the end of the period of 30 days Pursuant to section 31”. Discussion [25] The Respondent submits that the application to vary the licensed area involved in effect an application to vary the licence conditions of the existing licence to allow minors to be present on the premises and this amounted to a variation of licence which is required to be advertised under section 118 of the Act. [26] The Tribunal does not accept this argument. It was not, in the Tribunal’s view, appropriate for the Applicant to apply for a variation of licence conditions to allow non-exempt minors to be present on the proposed increased licensed area, because it was within the discretion of the Chief Executive in approving the variation of licensed area application to impose whatever conditions it deemed fit in respect of the operation of the V-max cinema. -- 5 of 8 -- 6 [27] It was neither appropriate nor necessary for the Applicant to nominate what conditions should be imposed, by way of an application for variation of the licence conditions which had been imposed on the existing licence, from which the V-max cinema had been excised. The Applicant at no stage prior to 14 December 2010 made an application to vary the existing licence conditions. The advertising requirement under section 118 does not apply to the application under s 154 which the Applicant submitted. The Chief Executive in the Chief Executive’s discretion can order advertising of such an application but the Chief Executive did not do so until 21 December 2010. [28] The Tribunal in reviewing the “deemed refusal” and standing in the shoes of the Chief Executive would have the power to order advertising of the s 154 application, but, in the Tribunal’s view, the Chief Executive was prohibited by the principles of procedural fairness, which will be discussed later, from ordering advertising on 21 December 2010. [29] The Chief Executive also submits that the Applicant has failed to meet the requirement to lodge a fresh RAMP, in addition to the RAMP which was approved in respect of the original application in respect of the cinema complex. The Tribunal is satisfied that the requirement under s 154 to lodge a RAMP was complied with on 24 February 2010 when the Applicant resubmitted the RAMP which had been approved under the original application before the V-max cinema was excised. At no stage did the Respondent inform the Applicant that the RAMP submitted on 24 February 2010 was not approved or was otherwise deficient. [30] The Tribunal further finds that the lodging of the RAMP on 24 February 2010 was the last and final mandatory requirement on the part of the Applicant under the Act. However the Applicant was permitted at any stage before a decision was made to take a further step by making a further submission, which it did on 20 May 2010. [31] The last step required on the part of the Respondent was the submission, in the normal course of the decision-making process, of a decision memorandum of advice to the decision-maker, setting out recommendations as to the decision to be made. This memorandum took the form of the Community Interest Analysis and recommendations submitted by Officer Smith to Officer Leotta on 2 July 2010. [32] Pursuant to s 31, the Respondent’s delegate was required to make a decision by 1 August 2010, which was the date 30 days after the last step required or permitted to be made by either party. [33] The Tribunal finds that a “deemed refusal” under s 31 occurred on 1 August 2010, as no decision had been made within 30 days of the final step in the decision-making process under the Act. [34] The purpose of s 31 in the Tribunal’s view is to provide a statutory remedy to an applicant where there is procedural unfairness as a result of -- 6 of 8 -- 7 unreasonable delay in making a decision or failure on the part of the decision-maker to make a decision: see Kioa v West (1985) 159 CLR 550. [35] Procedural fairness in the particular circumstances of this case required the making of a decision by 1 August 2010 and, in the Tribunal’s view, the Respondent was not lawfully permitted to act inconsistently with procedural fairness by requiring any further step to be taken by the Applicant after 1 August, unless the Applicant before filing a s 31 review application waived its entitlement to lodge such an application by consenting to the imposition upon it of further requirements by the Respondent. [36] The “deemed refusal” could be reviewed by the Respondent and could be confirmed or another decision could be substituted for it during the period while the Respondent was still seized of the s 154 application between 1 August 2010 and 14 December 2010, and it was not procedurally unfair to do so. However pursuant to s 31 it was procedurally unfair to require the Applicant to take any further steps if it did not agree to do so. [37] The Applicant had clearly not waived its entitlement to bring a review application when it sent warning letters to the Respondent on 19 October and 29 October 2010. The Tribunal is not satisfied on the basis of Mr Schatz of Mullins Lawyers’ and Officer Moynihan’s respective file notes of their conversation of 16 November 2010, which are extremely brief, that Mr Schatz, on behalf of the Applicant, waived the Applicant’s entitlement to bring the review application. The Tribunal is not satisfied that Mr Schatz agreed that the imposition of onerous and time-consuming requirements for a further full C.I.S. and further advertising was “reasonable”, when Officer Moynihan expressed her “preliminary view” in that regard in the conversation. [38] Pursuant to the combined operation of s 33 of the Queensland Civil and Administrative Tribunal Act 2001 (“the QCAT Act”) and s 31(2) of the Act, the Applicant was required to file the review application within 28 days of the “deemed refusal”. The Applicant was thus required to file the review application within 28 days of 1 August 2010. However under s 61 of the QCAT Act the Tribunal may extended the period within which a person must make an application. [39] The difficulty for the Applicant in meeting the 28-day time limit was that it had no right to be informed of the internal decision-making process of the OLGR or when the last step in that process, namely a decision memorandum of advice, was submitted to the Respondent for decision. The Applicant could never know when the period for filing a review application for a “deemed refusal” expired. The delay in lodging the review application was caused because of those circumstances and because of the Applicant’s reasonable conduct in giving warnings to the Respondent of its intention to file such an application, thus giving the Respondent the opportunity to make a decision. -- 7 of 8 -- 8 [40] The Tribunal is not satisfied that in the circumstances there is any prejudice to the Respondent if an extension of time in which to file the review application is granted. The Tribunal considers that it is appropriate that the time for lodging of the review application be extended to 14 December 2010, but to meet any argument that, contrary to the Tribunal’s finding, the application was not formally filed until 21 December 2010, the Tribunal will order that the time for filing the review application be extended to 21 December. [41] Upon the filing of the review application on 14 December 2010 the Tribunal became seized of the application for Change of Licensed Area and the Respondent was then functus officio. The Respondent thus had no power to require in its written notice of 21 December 2010 that the Applicant take further steps in respect of the application by way of advertising and the provision of a further full C.I.S. The Respondent was also, as the Tribunal has found, prohibited from taking such steps on the basis of procedural fairness. Even if the Respondent did not become functus officio until it was served with the review application on 22 December, the notice of 21 December was of no legal effect because the imposition of further requirements on the Applicant after 1 August 2010 constituted a breach of the principles of procedural fairness. [42] While it is acknowledged that the application under s 154 raises important concerns and is likely to have implications for future licensing of cinemas throughout the State, there was, in the Tribunal’s view, no reasonable excuse for the Respondent’s failure to make a decision over the 18-month period between the lodging of the Change of Licensed Area application and the filing of the review application. The Applicant alleges and the Tribunal accepts that the Respondent’s protracted failure to make a decision has adversely impacted on the Applicant’s cinema premises and business plan. The inordinate delay which has occurred here is the very sort of delay which in the Tribunal’s view s 31 of the Act is meant to address. Conclusion [43] The Tribunal finds that the application for review has been lawfully instituted pursuant to s 31 of the Act, and the Tribunal has jurisdiction to hear and determine the application. The Tribunal will order that the strike out application be dismissed. -- 8 of 8 --