Adamson v Independent Liquor and Gaming Authority

Material Submitted in the Original Application

1. At the hearing, Ms Adamson relied on the substantial materials submitted by or on her behalf in making the original ETA application as well as the considerations given by the Authority in granting the partial ETA.
2. Those materials were extensive and not only the written application but the detailed consideration given to that application by the Authority. Such consideration is not a matter to be taken lightly, and the Tribunal has taken the material into account, giving due weight to the fact that, while there was some evidence of concerns over the extent to which extended trading by the Tavern may have a negative impact on the local community, the Authority was prepared on the basis of the material submitted to grant a partial ETA to Ms Adamson.
3. At the time the Authority determined that a partial ETA would be granted, it had not sent out inspectors to independently assess the Tavern or verify the matters asserted by Ms Adamson's ETA application. This is not a criticism of the Authority, nor is it intended to suggest that Ms Adamson was in any way misleading in her application. However, as counsel for the Authority submitted in closing submissions at hearing, once the Authority's inspectors attended and observed the management of the Tavern, and the extent to which there was any real demand for gaming it was obliged to bring this information to the Tribunal's attention and make submissions bringing into question the original authorisation.

Community Consultation

1. The ETA was the subject of four objections. The first was from the local primary school principal, Mr Winn. That objection centred on the impact of alcohol consumption and money used for gambling on families attending the school. In an area classed as high-risk and where domestic assault is three times the State average, this objection was soundly made. Mr Winn also expressed concern about increased traffic and noise impacting the quality of sleep for his students. Ms Adamson, in cross-examination, stated that she did not know the appropriate way to handle the concerns or speak to the principal nor did she know the extent of the concern raised by Mr Winn. Ms Adamson also admitted that she did not attempt to contact the school or Mr Winn after the events observed by the Authority's inspectors. In re-examination she stated that she "didn't feel it affected the school" and further, there was no one involved from the school. This was a completely unsatisfactory response given the nature of the incidents involving the inappropriate service of alcohol, violence and noise in the school's catchment area during a school term.
2. The second objection was from a neighbour at the back of the Tavern, Ms Broughton. Her objection made in March 2020 set out that she personally had witnessed many fights and brawls in the Tavern's carpark over the years and that patrons leaving the venue were typically loud and abusive.
3. The third objection was from a person who lived directly across from the Tavern whose signed name I cannot identify with accuracy. The proximity to the Tavern was the stated objection by which I infer a concern about noise disturbance.
4. Ms Adamson did not give evidence that she contacted Ms Broughton or the other neighbour to discuss these concerns before or after March 2022. To the contrary, her evidence was that she was not even unaware of these objections. The Authority, in its original decision did countenance the objections of the neighbours but it was considered the objections were countered by the general community support evidenced by the petition and the lack of any opposition from the NSW Police Force and local community groups.
5. In cross-examination, Ms Adamson was able to name one neighbour only who she spoke to about the events of 18 March 2022. This was a person who lived directly across the street from the Tavern. Ms Adamson's evidence at the hearing was that she spoke with this one neighbour, for whom she only had the name "Irish", on Saturday or Sunday after out the front of the Hotel. Otherwise, her evidence was that no patrons later attending the venue had raised any concerns with her.
6. It was submitted on Ms Adamson's behalf that the evidence did not establish a lack of engagement with the local community. I accept that on a formal level with regard to sporting associations and other community groups there was engagement. Ms Adamson submits that she was not required as part of the community impact statement to engage in a process of surveying or door-knocking. Again, I accept this as a correct statement of the requirements. However, the question to be considered in these proceedings is whether the Tribunal can be satisfied that the overall impact of the ETA will not have a detrimental impact on the well-being of the local and broader community. Relevantly to this question, the impression to be gained by Ms Adamson's evidence concerning her interactions with the community and neighbourhood is that her interactions with neighbours and the community are based primarily on their attendance at the Tavern - there was no evidence that she had attempted or and, in some cases, did not even know about - complaints and concerns of neighbours. Alongside the deficiencies in the petition and the observed patronage numbers over two separate periods, this left the Tribunal with the impression that there was in fact very little community or patron interest in extended trading hours and there was, in some respects, strong opposition to the ETA on the basis that it would have a detrimental impact upon members of the local community in particular.

Respondent Evidence

1. I will outline, Mr Vescio's written evidence by reference to each of the three evenings when he and the other inspectors attended and observed the Tavern. His evidence was not seriously challenged under cross-examination by Ms Adamson's counsel and, as noted above, Ms Adamson expressly stated that she did not dispute what Mr Vescio had written in his affidavit, including that the inspectors from the Authority had observed and filmed widespread intoxication of patrons, as well noise and disturbance outside in the carpark including an incident where one patron got inside the courtesy bus and sounded its horn. Where relevant, I have also set out Mr Purcell's observations since he was able to attend the tavern for the same nights of the week, though two months earlier.
2. Mr Vescio's affidavit, tendered by the Authority, recorded his observations made during an inspection of the Tavern on the evenings of 16, 17 and 18 March 2022. The inspection was made without notice. Mr Vescio attended and inspected the Tavern with four other inspectors from the Authority.
3. Mr Vescio and the other inspectors conducted "covert surveillance" of the premises, and Mr Vescio identified where each inspector was stationed on each night and then annexed copies of the notes made by each inspector from each evening.
4. Mr Vescio then gave evidence of "a summary of the Inspectors' observations as recorded in the file notes taken by those Inspectors (including my own) made on the [inspection dates]". The difficulty with such an approach is that a witness cannot give evidence about what another person saw or heard. This is the principal basis for the rule against the admission of hearsay evidence. While, as noted above, the Tribunal is not bound by strict rules of evidence, the Tribunal is nonetheless required to assess and attribute weight to evidence, and much of that calculation is based upon principles similar to the rules of evidence. In this case, Mr Vescio's evidence about what other people heard or saw cannot be given very much weight. Rather, the Tribunal has preferred the contemporaneous file notes, records created by other Authority staff and communications between Mr Vescio and other officers to the extent they are relevant. Moreover, Ms Adamson, under cross-examination and in submissions made by her counsel in closing, expressly conceded that she does not dispute what Mr Vescio has written in his affidavit nor the account of the events which occurred on 18 March 2022.

Wednesday, 16 March 2022

1. On Wednesday, 16 March 2022, he and other inspectors observed the operations of the Tavern. The inspectors recorded patron numbers on that evening. Relevantly, patronage at the tavern peaked at 9 PM with 30 people in attendance. By 11 PM, there were only 6 patrons still at the tavern, and no patrons were in attendance by midnight. Of the six patrons still in attendance at 11 PM that evening, none were present in the gaming room, four were located in the sports bar, and two were on the smoker's terrace.
2. The inspectors' observations may be compared with those of Mr Purcell, who observed 7 patrons in the gaming room on a Wednesday evening (albeit the Australia Day public holiday).
3. Mr Vescio's evidence is that on this Wednesday evening, there was a group of young men who entered the tavern early in the evening and proceeded to play on the gaming machines for an extended period of time. It is unclear what period this in fact means and the matter was not clarified at hearing. Mr Vescio's evidence is that these patrons were placing single bets of $5 per spin which, I was informed, was a high individual bet.

Thursday, 17 March 2022

1. On Thursday, 17 March 2022, Mr Vescio gives evidence about the number of patrons attending in the evening. He says patronage peaked at 9 PM with 21 patrons in attendance. By 11 PM there were still 11 patrons at the tavern, and of those, five were located in the gaming lounge and six on the smoker's terrace. However by midnight until closing time at 1 AM, there were no patrons at all in the tavern.
2. Mr Purcell's observations of Thursday, 27 January 2022, were that the patronage of the gaming room was 10 people at midnight and no one at the closing time of 1 AM.
3. Mr Vescio exhibits a surveillance log prepared by another inspector, Mr Grewal. Mr Grewal's surveillance log shows that on Thursday evening, 17 March 2022 at about 11 PM, a patron was seen leaving the Tavern in an intoxicated state - in particular, this patron was at such a level of intoxication that he was observed as being unable to balance himself and had to be assisted by security staff to get onto the courtesy bus to take him home. In her evidence, Ms Adamson did not explain how or why a patron, on a relatively slow night and while she was on duty as manager, was able to be served liquor to the point where he reached this level of intoxication.

Friday, 18 March 2022

1. On Friday, 18 March 2022, Mr Vescio and his inspectors recorded a busy night at the Tavern. At the peak of operation, there were 197 patrons in attendance at 8 PM of whom 78 were located in the bistro at that time. The maximum number of patrons observed in the gaming room at any time that evening was 20, this peak was also at 8 PM while Ms Adamson was still on shift. Patronage of the tavern overall declined steadily over the evening such that by 11 PM there were 39 patrons still in attendance, of whom 10 were in the gaming room, 20 were at the sports bar and nine were on the smoker's terrace. The Tavern was closed at midnight because of an incident that occurred in respect of which Mr Vescio and the other inspectors observed and took video footage. It is unclear whether, under less dramatic operating conditions, the patronage of the tavern would have continued at the same or similar levels until closing time or would have followed the trend of the other two nights where the tavern was effectively empty by closing time.
2. Mr Purcell's observations of the gaming room patronage on Friday, 28 January 2022 were that the patronage of the gaming room peaked at about 11 PM when there were 23 people in the gaming room however that number quickly dwindled to 8 people by midnight and with no patrons in the gaming room at the closing time of 1 AM.
3. Mr Vescio's evidence is that some of the group of about eight patrons involved in inappropriate and unseemly behaviour later that evening had been observed at an earlier time on Friday evening, placing bets in the gaming room and some were seen to repeatedly hit the machines with increasing force as a means of encouraging a fortunate result. As I understand his written evidence, which was not seriously challenged on this point, several Tavern staff entered the gaming room throughout the evening to take orders and to clean, but no particular staff member appeared to be responsible for the gaming area of the tavern. The effect of this evidence is that the gaming room was likely to have been operated that evening in a manner consistent with the Tavern's Gaming Plan of Management submitted as Annexure E to its application to the Authority for an ETA. The Gaming Plan of Management provides, among other things, that the gaming room is to be supervised at all times either by a staff member being physically present or by electronic surveillance. No explanation was provided by Ms Adamson for this specific issue however it may be accounted for by the staff shortages she reported in the course of cross-examination. No evidence has been put forward by Ms Adamson concerning electronic surveillance.
4. Mr Vescio and the other inspectors prepared file notes of their respective observations of the evening, these file note record that: 1. by 9:35 PM Mr Vescio interacted with one female patron who, despite being obviously intoxicated (slurred speech, glassy eyes, breath smelling of alcohol, so unsteady on her feet that she leant against the inspector while speaking to him), she was nonetheless holding a glass of white wine, which appeared nearly full (indicating recent service), the glass was estimated by the inspector to have been filled to more than twice the standard serving size. Ms Blunt, another inspector who was with Mr Vescio when this incident occurred, records in her note that this patron appeared to have slurred speech, glassy eyes and leant upon Mr Vescio's arm to stabilise herself. Ms Blunt also records her observations that this patron was holding a glass of wine filled to the top. No explanation was given by Ms Adamson for why this patron was permitted to continue to stay at the venue or obtain further alcohol or why her wine glass was filled in this way. 2. By 10.50 PM, Mr Vescio observed other patrons who were obviously intoxicated and who had been involved in an argument with a young female patron. The young woman was asked to leave. The remaining patrons who had also been involved in the argument were not asked to leave and were observed by Mr Vescio (and separately by Ms Blunt) to be swearing, slurring their words and appearing glassy-eyed. Mr Vescio noted a general increase in levels of intoxication by this time, and neither general nor security staff attempted to assess or address the increasing levels of intoxication among the patrons. These observations appear to be contrary to the Tavern's Alcohol Management Plan accompanying its application for and ETA. 3. In the gaming room on that evening, patrons were observed by Mr Vescio to become increasingly intoxicated while playing on the gaming machines Mr Vescio records one female patron had been playing the same machine from at least two hours having observed at both 9 PM and continuously until after 11 PM. Some of the group of patrons (who would later be part of the car-park incident) were attending the gaming room at 11 PM and were observed holding two drinks each; it is unclear to me whether having two drinks at once contravenes the Tavern's Alcohol Management Plan concerning late-night service of alcohol which states, among other things, "2 drinks per person from 11 to 12". I also note Ms Blunt's observations are not consistent with Mr Vescio's on this point - she records at 11 PM, her observation of the gaming room was that none of the six patrons she saw in the gaming room showed any sign of intoxication. 4. At about 11:20 PM, a patron, whom I will refer to as White-shirt. From the video footage obtained by the inspectors, he is clearly intoxicated, yet he is served alcohol and then goes into the bar area to collect it. No bar staff attempt to stop him or move him on. The video footage obtained by Mr Vescio shows this incident and also records that, as he leaves the bar, he appears to speak as he passes a group of patrons standing around a small table who react to him as he walks past. Ms Blunt's observations are that White-shirt walks aggressively from the bar to the smoker's terrace and says, loudly, "I am going to fucking sort this out". This seems consistent with the reaction of the other patrons at the Tavern as he passes them. Ms Blunt records that minutes later, another patron, whom I will refer to for clarity as Grey-shirt and who had been earlier involved in the argument that resulted in the young woman being asked to leave, comes out from the smoker's terrace. Ms Blunt records his appearance as being: "very dishevelled, his face sweaty, and he had a large amount of liquid spilt all down the front of his shirt". Ms Blunt records her observations that after some argument and shouting at staff, Grey Short is asked to leave the premises at about 11:33 PM. The next minute, Ms Blunt records another shouting argument taking place between a man in a black t-shirt and another male patron. This argument was rapidly diffused by the duty manager. 5. Mr See, another inspector who was positioned in the carpark that evening, records seeing White-shirt being ejected from the Tavern by a security guard at about 11:35 PM, White-shirt promptly urinates on the wall of the Tavern, an action photographed by Mr Coombs, the fourth inspector attending that evening Mr See includes the photograph in his file note. Mr Coombes' surveillance log records that while urinating, White-shirt is yelling threats to the patrons over the wall in the smoker's terrance. At about 11:53 PM, White-shirt climbs the wall of the Tavern apparently to gain access to the smoker's terrace, Mr Coombs takes a photograph of this also. Mr See then records his observation that a few minutes after entering the Tavern via the wall, White-shirt leaves the Tavern by climbing to the top of the wall and making "an uncontrolled descent into the garden". He is seen by Mr See a minute or so later with a ten-pack of drinks which he could only have obtained from the Tavern. Mr Vescio's note records seeing White-shirt approach the bar, be refused service, speak to bar staff and then receive a take-away carton of approximately 10 ready-mixed alcoholic drinks. Mr Vescio observes that White-shirt speaks in an inappropriate and threatening manner to another patron before walking out of the bar unsteadily. 6. Mr Coombe's surveillance log in the period from 11:30 PM to midnight records that the security guard stationed at the door had stepped inside the tavern twice. The security guard is seen briefly, but the Authority's inspectors do not observe any sufficient measures taken by the Tavern to ensure patrons are kept safe, and the neighbourhood is undisturbed. Indeed, Ms Blunt's note records that at about 11:56 PM, he spoke to the RSA or security staff and told them "there is a fight", which resulted in the staff going back inside the Tavern. 7. In addition to the commotion and antics of White-shirt and the patrons who had been asked to leave, the inspectors also recorded their observations of excessive noise - in particular, yelling by patrons on the smoker's terrace, including at one stage, a chant of "skull, skull, skull". 8. The inspectors then, at about 11:56 PM, observed a group of patrons, including White-shirt and Grey-shirt, gathered in the carpark. At the hearing, the Authority presented video footage of about 15 minutes of what then occurred. The footage shows a large number of patrons standing around in a manner that suggests a physical fight is imminent. The camera footage in the first few minutes does not show punches being thrown between the patrons however it is obvious from the words being said by a man in a pink hooded top that White-shirt has punched or hit a man in a green t-shirt (who appears to be associated with Grey-shirt). Mr Coombe's log records his observation that at 11:59 PM, White-shirt started throwing punches at a man in a green shirt. From the video footage, the security staff appear from inside the Tavern, they stop and observe the scene, staying in a position of observation for about 30 seconds before the duty manager arrives strides out to the group of patrons. At this point in the video, an older man in a black hooded top starts to shout "get away" over and over. The sound recording in the video clearly captures loud shouting and arguing coming from the carpark throughout. The noise is so loud that the residents in the houses opposite the car park could have been disturbed. White-shirt, who has by about midnight has removed his shirt but remains identifiable by his distinctive shoes, which are white on the top and red on the bottom, is yelling and can be seen stalking back and forth. The duty manager speaks to Grey-shirt who has a bottle of some kind in his hand from which he drinks throughout. The duty manager then walks towards White-shirt, having to push back Grey-shirt once again on his way. The duty manager is filmed speaking to White-shirt and the man in the pink hooded top, White-shirt walks away and the Duty Manager uses hand gestures to direct patrons to leave in different directions before noticing that White-shirt has rounded back and is walking towards Grey-shirt. Grey-shirt responds to White-shirt by pushing or hitting White-shirt's chest. he appears to push Grey-shirt further away before going over to White-shirt. White-shirt is led away by the man in the pink hooded top towards the Duty Manager, at which point the footage shows the Duty Manager seemingly responding to a threat from White-shirt by pushing White-shirt over and White-shirt falls onto the ground. Grey-shirt then walks over to the Duty Manager and strikes him, while White-shirt walks up to the Duty Manager, yelling. The security guard, at this stage, appears to try and stand between the Duty Manager and White-shirt, though he says nothing. 9. Grey-shirt is then filmed speaking to the man in the green shirt, the large stain down the front of his shirt is evident. The man in the pink hooded top appears to be explaining or trying to diffuse the fight in a manner which should have been adopted by any of the staff of the Tavern. The man in the pink hood can be heard repeatedly saying "he was drunk". 10. After a few minutes the fight appears to be over, and the crowd starts to disperse. Grey-shirt remains in the carpark speaking to a man and a woman for several minutes. Five minutes after being pushed over, White-shirt returns to the front door of the Tavern and can be seen speaking to the duty manager. Other patrons then are filmed leaving the Tavern, and another man wearing a black t-shirt and denim shorts is filmed urinating for about 20 seconds in the carpark across from the courtesy bus. A patron is shown getting into the large silver vehicle next to the urinating man with an open beer bottle in hand. 11. The man in the black hooded top man is then filmed leaving the Tavern. In that footage, his manner of walking is such that suggests he is so intoxicated that his balance has been affected and he teeters backwards with each slow step he makes. He appears to take lean on or receive some assistance from a woman in a white t-shirt who is accompanying him and behind them with the RSA marshal is walking slowly appearing to monitor and watch where the man and women are going. 12. The horn of the courtesy bus is blown twice, and the duty manager comes over to it to discover that a patron has entered the driver's seat and used the horn - possibly to hurry the driver to take him home. According to Ms Blunt's note, the patron was obviously intoxicated; slurring his words and shouting. Ms Blunt observed the same patron climb back in the bus and press the horn again at about 12:20 PM. 13. About eight minutes into the footage, White-shirt walks back into the carpark. He can be seen holding a box. As he walks along, he drops the box. He can be heard yelling and Mr Coombs, from his position, records what he says in his log. White-shirt then kicks the box causing a number of drink cans to fall out and roll along the ground. White-shirt picks up one can and throws it onto a red car nearby. White-shirt continues walking to the bus shelter with an unsteady gait, leaving the man in the pink hooded top to collect the other cans. This footage accords with Ms Blunt's observations in her notes. Grey-shirt by this stage has also walked further down the street towards the bus shelter. 14. At about nine-and-a-half minutes into the footage, White shirt is seen stepping out onto the road near the bus shelter and throwing something, with some force, across the road into the houses neighbouring the Tavern. White-shirt can be seen and heard on the video kicking a large sign for the bottle shop located near the bus shelter. Then, Grey-shirt and White-shirt can then be seen fighting on the road near the bus shelter where they continue to push and shove each other until the end of the footage. Mr Vescio records that by 12:50 PM, both Grey-shirt and White-shirt were still present and that Grey-shirt was yelling threats into his phone in a manner that Mr Vescio could hear from 30 - 40 metres away.
5. Much was made at the hearing about Mr Vescio's account of White-shirt nearly hitting his head when pushed over by the duty manager. Nothing turns on this point. The obvious fact is he was pushed over and fell to the ground and, luckily for all involved, White-shirt appeared entirely uninjured as a result.

Consideration of the overall social impact of the ETA Application

1. The Tribunal on review must not grant an application unless it is satisfied that the overall social impact of the ETA will not be detrimental to the well-being of the local or broader community; Liquor Act, s 48(5) having regard to the material set out in the subparagraphs to that section.
2. As the Tribunal in Bun v Independent Liquor and Gaming Authority [2020] NSWCATAD 60 at [73], observed: … the Tribunal must be actually satisfied that the overall social impact of the proposal will not be detrimental.
3. The term "overall social impact" was considered in extensively in Kallin Pty Ltd v Independent Liquor and Gaming Authority [2019] NSWCATAD 36 where, at [20], the Tribunal stated: As suggested in Macedon Ranges Shire Council, the meaning of "overall social impact" will be influenced by the subject matter and purpose of the Liquor Act. Clearly the Act is concerned with the minimisation of harm associated with misuse and abuse of liquor (including violence and other anti-social behaviour), as well as ensuring that the sale, supply and consumption of liquor contributes to, and does not detract from "the amenity of community life" (s 3(2)). Therefore in my view, these factors, where relevant, will inform the meaning of "overall social impact". The Act also refers to other social impacts such as the balanced development of the liquor industry and of related industries such as the live music, entertainment, tourism and hospitality industries.
4. When considering the overall social impact, the Tribunal is required to take into account both positive and negative aspects; Smith v Independent Liquor and Gaming Authority [2018] NSWCATAD 224 at [30]. A similar approach was taken in Ballesty & Anor v Director of Liquor & Gaming & Ors [2002] NSWSC 1102 at [149] where Kirby J considering an appeal against an extension of gaming machine activity in a registered club said: Where there was a significant number of machines in the local community, or a significant part of the local community, and where the incidence of problem gambling was already high, or the projected increase likely to be major, these matters would obviously be relevant. They would alter the character of the disbenefit, clearly making it worse. However, that disbenefit, with that character, would still have to be compared with the social and economic benefits to the local community. Did the disbenefit, in that aggravated form, so outweigh the benefits, that the application should be refused?
5. The approach set out by Kirby J on Ballesty and by the Tribunal in Smith are aligned, and I respectfully adopt that approach in considering whether the disbenefits outweigh the benefits identified as arising from the ETA application.
6. In considering the overall social impact of the ETA application I have also had regard to the Authority's published Guideline entitled "Consideration of social impact under section 48(5) of the Liquor Act 2007" (Guideline 6) which, as its title suggests, sets out definitions as well as the mandatory and discretionary considerations and procedure the Authority undertakes in considering applications including those such as Ms Adamson's. The date of Guideline 6 produced as part of the bundle of authorities is dated 13 October 2021. While Guideline 6 is not a document that binds the Tribunal in this matter, it is informative of the approach to be taken and the Tribunal may have regard to such documents; Administrative Decisions Review Act, s 64(4); Aldi Foods Pty Ltd v Independent Liquor and Gaming Authority [2019] NSWCATAD 26 at [17].

Benefits of the ETA Application

1. Ms Adamson submitted that the benefits of the service provided to the community by the extension of trading hours were not in doubt. I disagree with this submission based upon the observations of patronage numbers provided by Mr Purcell and Mr Vescio which showed that very few patrons actually attended the Tavern in the extended trading hours permitted by the Authority at first instance. It was conceded by Ms Adamson that patron numbers rapidly declined after the closure of the Tavern's bistro. The evidence showed that the Tavern effectively closed early such was the lack of demand on the two Wednesday evenings observed.
2. These observations, together with the deficiencies of the petition and the manner in which community interest was asserted, mean that benefit to the community arising from granting the ETA was not at all apparent after all the evidence was presented and the submissions of both parties was considered. On the contrary, there appeared to be a distinct lack of interest in patrons attending the Tavern during the extended trading period.
3. Some limited evidence was led by both Ms Adamson and the Authority concerning the migration of patrons attending the gaming room after closing time. The observations of Mr Purcell and Mr Vescio and the other inspectors was that there was not significant migration of patrons from the Tavern after closing time to other venues though there was some dispute as to which the closest or most likely migration venue was. Since the number of patrons having been observed migrating from the venue was in the low single digits, this issue is neither a benefit nor a negative factor to be considered.

Negative Impacts of the ETA Application

1. Ms Adamson submitted that there was no objective evidence counting against the extended trading hours for Monday to Wednesday evenings and that these evenings were the only ones to be considered by the Tribunal. I accept that these evenings may have been the initial focus however the Authority at the hearing contended that the Tribunal should remove the partial ETA and, as a consequence, has such placed in issue every evening of extended trade. It is correct that each evening is now to be considered.
2. No unfairness arises from this given the evidence presented by Ms Adamson from Mr Purcell only effectively addressed those evenings where extended trading had been allowed originally, and Ms Adamson's evidence was that the quiet nights were nights other than Fridays and Saturdays.
3. I have concluded that the following matters are factors that indicate negative impacts on the community by reason of the fact that, if permitted the extended trading hours will necessarily allow more patrons to consume alcohol and gamble for longer periods across each day of the week: 1. The statistical data of the socio-economic indicators for the local area as attached to Ms Adamson's application which show that households in Raymond Terrace as being among the most socio-economically disadvantaged in New South Wales and that a rate of alcohol-related domestic assault and malicious damages offences in Raymond Terrace is more than three times higher than the rest of the State; and 2. The observations of the Authority's inspectors who reported manifest negative social impacts - including intoxication, acts of physical violence, public urination, noise disturbance and attempts at vandalism. 3. The finding by the Authority, based on reports it collates that the intensity of gaming at the Tavern is higher than compared with other hotels in the local area and the Port Stephens local government area; and 4. The Tavern is located in an area designated as being at the highest risk for problem gambling, being a Band 3, Statistical Area 2 under the Gaming Machines Act, 2001 (NSW).
4. Further, I have had regard to the Authority's initial recommendation to allow a partial grant of ETA in response to the original application. That recommendation was based on the comprehensive plans submitted by Ms Adamson, the petition, the lack of objection from local police and community organisations and the willingness to submit to additional conditions and restrictions on operation in order to allow extended trading to occur balanced with several points of concern. The 12 additional conditions are still offered by Ms Adamson in her closing submissions however it is not the conditions but the observance and adherence to them which is a cause of concern for Tribunal. All those conditions were in force on 18 March 2022 and, it would seem, they were either disregarded or ineffective. I note that, at the time of making the recommendation, the Authority had not sent its inspectors out to observe the operation of the Tavern.
5. Having considered the evidence of both the asserted benefits and the negative impacts of the extended trading hours I am not satisfied, as I am required to be so satisfied that pursuant to the Liquor Act, s 48(5) the overall social impact of the ETA will not be detrimental to the well-being of the local or broader community.

Consideration of matters relevant to the Liquor Act, s 49

1. The Authority (and now the Tribunal) must not grant an ETA unless satisfied that practices are in place, and will remain in place, at the licensed premises that ensure as far as reasonably practicable that liquor is sold, supplied or served responsibly on the premises and that all reasonable steps are taken to prevent intoxication on the premises; Liquor Act, s 49(8).
2. The footage showed graphically that by the end of the night on 18 March 2022, the Tavern and, by extension Ms Adamson as its licensee, had failed to adhere to the conditions of its liquor licence including the failure to adhere to its own Alcohol Management Plan by continuing to serve patrons to intoxication and by failing to manage intoxication. The Liquor Act expressly requires those exercising functions under it, which includes Ms Adamson as a licensee, to secure the objects of the Act by having due regard to the need to minimise the harm associated with misuse and abuse of liquor including harm arising from violence and other anti-social behaviour; Liquor Act, s 3(2)(a). The evidence before the Tribunal obtained by the Authority's inspectors demonstrates that this did not occur.
3. These failures observed by the Authority's inspectors on 17 and especially on 18 March 2022 were compounded by poor control of patrons leaving the premises - including the failure to diffuse physical and verbal conflicts, and the continued sale of alcohol to patrons who had been asked to leave and who were visibly intoxicated. This created an environment of noise and violence that were entirely acceptable. Ms Adamson attributes these failures to the individual duty manager and security staff and not to any systemic failings at the Tavern, nor does she appear to address the fact that the underlying issue was not the poor control of conflict and the failure of management, but the failure of all staff monitor and refuse service to patrons who were approaching intoxication. In re-examination, Ms Adamson gave evidence to the effect that it was possible to eliminate intoxication by intervening and refusing service before the point of intoxication.
4. The written submissions made for Ms Adamson refer the Tribunal to the decision of R v Kenny [2008] NSWDC 389 where Blackmore SC DCJ said: If it is accepted, as it must be in my view, that no matter what steps are taken it will never be possible to prevent some intoxication on a licensed premises. The real question is whether the steps taken to monitor the patrons in an attempt to ensure that intoxication does not occur, are all the reasonable steps that could be taken in the circumstances. In Rolf v Willis (1916) 21 CLR 152 Chief Justice Griffith put the matter in this way:

"In our opinion the phrase reasonable steps to prevent drunkenness means such steps as ought reasonably to be taken by way of precaution against the occurrence of drunkenness on the premises under any circumstances that may reasonably be anticipated and to prevent its continuance when its existence is discovered."

1. I respectfully concur with what is said in Kenny. However, Ms Adamson did not in fact take all reasonable steps to prevent intoxication given the very obvious fact that on the nights randomly chosen by the Authority's inspectors, extensive intoxication of several patrons attending the Tavern was readily observed. There was evidence of intoxication on Thursday evening as well as Friday which remained unexplained by Ms Adamson. The failures of Friday night did not arise because of new staff - the duty manager had been employed for at least six weeks by this time and other bar staff were long-standing employees. Further, while I accept that Ms Adamson has taken further measures to address the intoxication problems observed by the Authority, she has produced no evidence to show that the new measures she has introduced are effective of the outcome she has sought. The only material the Tribunal has before it is the incident register which, as noted above, is subject to some limitations as to accuracy and completeness.
2. Ms Adamson does not address how she has overcome the staff shortages she identified in her evidence as being a root cause of the failure. The labour market is, of course, a wider issue, but the evidence led by Ms Adamson as to how she intended to attract and retain suitable staff in current labour market conditions was not clear - the current shift roster she produced showed several more staff being rostered on but there was no evidence of the actual shifts worked or whether this rostered staffing levels were, in fact, sufficient for the level of patronage at the Tavern.
3. Ms Adamson sets out in detail the measures she has taken since this evening to adhere to the law and guidelines and her own plans. Her counsel submitted that this showed the detailed steps she had taken to ensure that those events were not repeated and that there was no evidence before the Tribunal to suggest that such incidents would occur again and that the Tribunal could be confident that a decision in favour of Ms Adamson would be consistent with the matters set out in the Authority's original recommendation to partly approve the ETA. I do not accept this submission, the evidence presented at the hearing by the Authority was graphic and disturbing, and Ms Adamson's evidence concerning the way in which she responded to those incidents was not, as her counsel submitted "rapid and effective" or "prompt and decisive", the evidence showed instead that she was slow to respond, hesitant and bureaucratic in her approach.
4. The evidence presented in its totality by the parties did not give the Tribunal any confidence that the multiple incidents of service to intoxicated patrons, intrusive noise, violent and other atrocious behaviour and poor management observed by the Authority's inspectors had been sufficiently addressed and would not be repeated.

Decision

1. For the reasons set out above, I am not satisfied that, on balance, the overall social impact will not be detrimental to the local community. I am unable to say whether the overall social impact will not be detrimental to the broader community and therefore cannot be satisfied on this point either.
2. Accordingly, for the reasons also set out above and having regard to the object of the Liquor Act, the Tribunal is not satisfied, as required under Liquor Act, s 49(8), that both practices are in place, and will remain in place, at the Tavern that will ensure as far as reasonably practicable that liquor is sold, supplied or served responsibly on the premises and that all reasonable steps are taken to prevent intoxication on the premises. Nor is the Tribunal satisfied that the extended trading period will not result in the frequent undue disturbance of the quiet and good order of the neighbourhood of the licensed premises - the evidence establishes that there was undue disturbance suffered by the neighbourhood as observed by the Inspectors. Absent that satisfaction, pursuant to the Liquor Act, s 49(8), the Tribunal must not grant the ETA.
3. Having regard to the evidence and the findings set out above, I consider the correct and preferable decision in this case is to refuse Ms Adamson's ETA application in its entirety.

Orders

1. The decision of the Independent Liquor and Gaming Authority to partially refuse to grant an extended trading authorisation decision is set aside.
2. In lieu thereof, the application for an extended trading authorisation is refused in its entirety. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 December 2022