Chief Executive, Department of Racing v Universal Lounge Pty Ltd & Anor [2001] QSC 2

{)-{)-0fft . . or, 002-.~I S . 'R• . B. . in. Queensland Government tate . e po rt Ing urea u ~ OepartmentoffusUcundAttomey~ral Trans·cript of Proceedings Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. - . SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION MUIR J No 10843 of 2000 CHIEF EXECUTIVE, DEPARTMENT OF TOURISM AND RACING and UNIVERSAL LOUNGE PTY LTD (ACN 091 966 522) and MR TREVOR ALLINGHAM AS MEMBER OF THE LIQUOR APPEALS TRIBUNAL BRISBANE .. DATE 02/01/2001 JUDGMENT REVISED COPIES ISSUED State Reporting Bureau Date 31 l I D ( Appellant First Respondent Secorid Respondent ,lh Floor, The Law Courts, George Street, Brisbane, Q, 4000 1 Telephone: (07) 3247 4360 Fax: (07) 3247 5532 -- 1 of 7 -- - 02012001 Tl-2/JW14 M/T 8927/2001 (Muir J) HIS HONOUR: The question for determination on this appeal is whether section 35 and perhaps some other provisions of the Liquor Act authorise a member of the Liquor Appeals Tribunal to issue an interim adult entertainment permit pending the hearing and determination of an appeal from a decision of the Chief Executive refusing an application for grant of the permit. The issue on this appeal arose in this manner. On 24 November 2000 the appellant Chief Executive refused an application to grant the first respondent Universal Lounge Pty Ltd an adult entertainment permit on the basis that Universal was not a "suitable person" to provide adult entertainment within the meaning of the Act. On about 29 November 2000 Universal lodged a notice of appeal with the Liquor Appeals Tribunal against that decision. Universal also made application to the Tribunal for a stay of the Tribunal's order under section 35(1) of the Act. The application was heard by a member of the Tribunal sitting as a single member pursuant to section 35(2) of the Act. The Tribunal ordered that the decision of the appellant to refuse the grant of the permit be stayed. It further 2 JUDGMENT 1 10 20(~ C 30 C 40 50 60 -- 2 of 7 -- / __ _ I ,....._ ___/ 02012001 Tl-2/JW14 M/T 8927/2001 (Muir J) directed the appellant to issue to Universal an adult entertainment permit for the period from 1 December 2000 up to and including Friday, 5 January 2001. The purpose of the direction, as the Tribunal perceived it, was to "maintain the status quo" pending the hearing of an appeal from the appellant'sdecision. Section 35, under which the Tribunal purported to act, provides as follows: 35. (1) On application of an appellant filed with the registrar of the Tribunal, an order may be made that a decision subject to the appeal - (a) be stayed; or (b) be given effect only to a specified extent. (2) An order under subsection (1) may be made - (a) if application for the order is made before the hearing of the appeal starts - by the member of the Tribunal who is to preside at the hearing; or (b) if application for the order is made after the hearing of the appeal starts - by the Tribunal constituted for the appeal. (3) An order under subsection (1) may impose conditions on which it is to be effective. 3 JUDGMENT 1 10 20 30 40 50 60 -- 3 of 7 -- 02012001 Tl-2/JW14 M/T 8927/2001 (Muir J) 1 (4) An order that imposes conditions has effect only while all the conditions are complied with. (5) Subject to subsection (4), an order under subsection (1) has effect until - (a) the appeal is determined or properly withdrawn; or (b) the Tribunal otherwise orders on the 10 chief executive's application. (6) Unless an order under subsection (1) (a) has effect, a decision subject to appeal to the 20(_, Tribunal remains in force and is to be given (- effect by all persons concerned. Mr Cooper SC who appears for Universal submits inter alia that the Tribunal had power to act as it did pursuant to section 35 either taken by itself or read together with other provisions of the Act and in particular section 21. Section 21 relevantly provides: 21. (1) The Tribunal has jurisdiction to hear and determine appeals made to it against decisions of the chief executive in relation to - (a) the grant or refusal of a licence or permit or the renewal of an extended hours permit; or ... (2) In exercise of its jurisdiction, the Tribunal - 4 JUDGMENT 30 C 40 50 60 /I -- 4 of 7 -- 02012001 Tl-2/JW14 M/T 8927/2001 (Muir J) (a) has - (i) the powers and discretions of the chief executive in respect of the matter under appeal; and (ii) the powers otherwise conferred on it by this Act; and (b) has the duties imposed by this Act on the chief executive in respect of the matter under appeal; and (c) is subject to the limitations imposed by this Act on the chief executive in respect of the matter under appeal. I will return to a consideration of section 21 shortly. The effect of the Tribunal's decision was not to grant a stay of Universal's application. There was nothing to stay, the application had been refused. It was to grant an interim permit pending appeal. There is nothing in section 35 which authorises such a course of action. Section 21 does not assist Universal. It gives the Tribunal in the exercise of its appellate jurisdiction "the powers and discretions of the Chief Executive in respect of the matter under appeal." It further states that the Tribunal in the exercise of its jurisdiction "is subject to the limitations imposed by this Act on the Chief Executive in respect of the matter under appeal." 5 JUDGMENT 1 10 20 30 40 50 60 -- 5 of 7 -- 02012001 Tl-2/JW14 M/T 8927/2001 (Muir J) The appellant Chief Executive in granting adult entertainment permits is constrained by section 107A. That section provides that the Chief Executive may grant such an application only if satisfied that the applicant is a suitable person to provide adult entertainment in a licensed premises. There is no suggestion here that the Tribunal was so satisfied. The basis of the Tribunal's determination was that the balance of convenience required the granting of a stay to maintain the status quo pending a determination on the merits of the question of fitness. One may be sympathetic with the Tribunal's approach which was a just and sensible one. However in the absence of a power on the part of the Chief Executive to grant an interim permit pending the determination of an application 1 10 30 for a permit and a determination of the question of fitness ( under section 107A_ there could be no such power vested in 40 the Tribunal on appeal . 1 There is no scope for the implication of a power. Sections 35 and 21, in particular, set out the relevant powers of the Tribunal. It is a statutory body and must derive its powers from the statute under which it is constituted or by which it is empowered. Mr Cooper advanced other arguments. One was that to make a declaratiop in respect of the legality of the course of 6 JUDGMENT l_./ 50 60 -- 6 of 7 -- 02012001 T1-2/JW14 M/T 8927/2001 (Muir J) action adopted by the Tribunal would be of no effect. He submitted that a permit consequent upon the Tribunal's determination had already issued and that such a permit was "only defeasible subject to the provisions of the Act." It followed, he submitted, that the court was merely being asked to give an advisory opinion. It seems to me that there is no difficulty in giving the appellant the declaratory relief which it seeks. Having regard to the view which I have just expressed the issue of any permit was beyond power and is a nullity. Accordingly I allow the appeal. I set aside the Tribunal's decision given by its member Mr Allingham on 30 November 2000. I declare that the permit exhibit BMO13 to the affidavit of Brian Michael O'Shea filed herein on 18 December 2000 is void. I order that the respondent Universal Lounge Pty Ltd pay the appellant's costs of and incidental to the appeal to be assessed. 7 JUDGMENT 1 10 20 30 40 50 60 -- 7 of 7 --