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[2009] QSC 33
General information, not legal advice.
Supreme Court of Queensland
2009-03-06
McMurdo J
Original judgment source is linked above.
ADMINISTRATIVE LAW - JUDICIAL REVIEW - STANDING TO INSTITUTE PROCEEDINGS - PARTICULAR CASES - where the Act limits the number of operating authorities for gaming machines - where the Act regulates the sale and purchase of operating authorities - whether trade competitors are "persons aggrieved" by a decision
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - FAILURE TO OBSERVE STATUTORY PROCEDURE - where an application for gaming machine operating authorities is alleged to be contrary to published guidelines - whether the Chief Executive is thereby bound to recommend refusal pursuant to s 57(8)(ba) Gaming Machine Act 1991(Qld) - whether the Chief Executive's failure to so recommend renders the recommendation invalid - whether the Commission's consideration of the allegedly invalid recommendation constitutes a failure to observe statutory procedure
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - IMPROPER PURPOSES - where the Chief Executive is alleged to have made an incorrect recommendation - whether it is improper for the Commission to take into account an incorrect recommendation
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - IRRELEVANT CONSIDERATIONS - where the Chief Executive is alleged to have made a recommendation inconsistent with published guidelines - whether an incorrect recommendation is an irrelevant consideration
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - RELEVANT CONSIDERATIONS - where the Chief Executive is alleged to have made an incorrect recommendation - whether the recommendation that should have been by the Chief Executive was a relevant consideration and therefore a "procedure ... required by law to be observed"
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - UNREASONABLENESS - where minds might differ about the application of a guideline - whether the Commission's application of the guideline was reasonably open to it
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - APPLYING POLICY AND MERITS OF CASE - where a guideline arises for consideration - where the Commission does not make specific reference in its findings to that guideline - whether the Commission's failure to consider the guideline constitutes a ground of review
Alphapharm v Smith Kline Beecham [1994] FCA 996; (1994) 49 FCR 250
Australian Institute of Marine and Power Engineers v Secretary, Department of Transport (1986) 13 FCR 73
Bateman's Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Limited [1998] HCA 49; (1998) 194 CLR 247
Canberra Tradesman's Union Club Inc v Commissioner for Land Planning (1998) 100 LGERA 276
Rayjon Properties Pty Ltd v Director-General, Department of Housing, Local Government and Planning [1995] 2 Qd R 559
Yu Feng Pty Ltd v Chief Executive, Queensland Department of Local Government and Planning (1998) 99 LGERA 122
Judicial Review Act 1991 (Qld), s 7, s 20(2)(b), s 20(2)(e), s 23(a)
Liquor Act 1992 (Qld), s 58A
R J Gotterson QC, with S Fynes-Clinton, for the applicants
A A Horneman-Wren for the first and third respondents
J Gallagher QC, with P Hastie, for the second respondent
[1] At Southgate Avenue, Cannon Hill, there is what is described as a modern upmarket tavern, which is called "Eleven 17". It is owned and operated by the second respondent ("Liquorland"). In July 2007 the Queensland Gaming Commission granted to Liquorland a gaming machine licence permitting it to install 40 machines in those premises.
[2] The applicants hold licences for gaming machines at their respective premises in the same area. Claiming that they are "persons aggrieved" by the decision to grant the licence to Liquorland, they seek to set aside that decision by these proceedings under the Judicial Review Act 1991 (Qld).
[3] In essence, the applicants claim that the Commission acted inconsistently with its own published guidelines as to the locations and types of premises in which gaming machines should or should not be permitted. The respondents, being the Commission, its Chief Executive and Liquorland, argue that these proceedings are no more than an attempt to have the decision reviewed on its merits and that there is no ground for judicial review. Further, Liquorland argues that the applicants are not persons aggrieved by the decision,[1] on the basis that an interest in preventing business competition is not sufficient.
[4] The Commission's decision to grant this licence was made under the Gaming Machine Act 1991 (Qld) ("the Act"). The applicants have argued their case by reference to the Act as it was on 4 May 2006 when Liquorland's application for the grant of the licence was lodged. They say, and the respondents apparently accept, that subsequent amendments are immaterial.
[5] The expressed object of the Act is to ensure that, on balance, the State and the community as a whole benefit from gaming machine gambling.[2] This is to be achieved by:
"allowing gaming machine gambling subject to a system of regulation and control designed to protect players and the community through...[amongst other things] minimising the potential for harm from gaming machine gambling."[3]
[6] A gaming machine licence can be granted only to those who are, or who have applied to become, holders of certain types of liquor licences. In that way gaming machines can be operated only within premises which are the subject of a general liquor licence, a club liquor licence or a licence for particular premises which are prescribed under the Act.[4] Liquorland holds a general licence for the subject premises, as does the first applicant for its nearby establishment which is the Colmslie Hotel. The other applicants are the holders of club liquor licences.
[7] In 2003, the Act was amended to require that operators of machines in premises subject to a general liquor licence should hold not only a gaming machine licence, but also a so-called operating authority for each gaming machine. The number of machines throughout all such premises in the State is now limited by prescription of a maximum number of operating authorities.[5] An operating authority may be traded under the regime set out in Part 3A of the Act. In this way there can be competition between general licensees for operating authorities. But all of that is in addition to the presently relevant requirement for a gaming machine licence, which is granted in respect of specific premises, and indeed for a specified location within those premises.[6]
(a) the commission may, having regard to any recommendation of the chief executive and to such other information or material as the commission considers is relevant, grant or refuse to grant gaming machine licences; and
(b) gaming and the conduct of gaming on licensed premises under this Act is lawful.
(2) Without limiting subsection (1)(a), the other information or material the commission may have regard to includes -
(a) information or material about social and community issues; and
(b) relevant guidelines issued by the commission under section 17..."
[9] The Commission is empowered to issue guidelines by s 17 which provides as follows:
"(3) Without limiting subsection (2), a guideline may give guidance about -
(a) the attitude the commission is likely to adopt on a particular issue; or
(b) how an applicant for a licence, authorisation or approval should deal with issues involved in the proper formulation of the application or supporting material related to the application.
(4) A guideline may be replaced or varied by a later guideline issued under this section."
The guidelines are to be published and available for inspection.[7]
[10] An application for a gaming machine licence is described by s 55A as one "of significant community impact", with the consequence that it must be accompanied by a community impact statement[8] in order "to help the commission assess the social and economic implications of the grant of the application".[9] In preparing its community impact statement, an applicant must have regard to relevant guidelines issued by the Commission.[10]
[11] Such an application must be advertised as required by s 55C. Any member of the public may comment upon it by writing to the Chief Executive, as long as that person is an individual, corporation or other organisation that, in the Chief Executive's opinion, has a proper interest in the locality concerned and is likely to be affected by the grant of the application.[11] The Commission may disregard any comment by a member of the public which is on a subject lying "beyond a scope indicated in the commission's guidelines".[12] By s 55F, the Chief Executive may invite representations from the relevant local government or from any other entity which has, in the Chief Executive's opinion, a proper interest in the matter. In this case, the Chief Executive sought the opinions of, amongst others, the present applicants.
[12] By s 55G the Chief Executive may waive or vary any of these requirements for public notification and consultation. In the present case the Chief Executive waived the requirement for a community impact statement to accompany this application, on the basis that such a statement had accompanied a similar application made by other interests for this same site in September 2005 (which was subsequently withdrawn and replaced by Liquorland's application).
[13] Section 56 provides for the content of an application for a gaming machine licence. In particular, it requires a plan of the premises to which the application relates indicating the proposed locations on the premises in which it is intended to install gaming machines.
[14] Section 57 requires the Chief Executive to consider the application and to make a recommendation to the Commission that it be granted or refused. Section 57(3) requires the Chief Executive, when considering the application, to assess, amongst other things, the suitability of the premises to which the application relates for the installation and use of gaming machines, having regard to the size and layout of, and facilities on, the premises.[13] If he or she considers a proposed location for the installation of the machines unsuitable, the Chief Executive must advise the applicant accordingly and either ask the applicant to submit an amended plan or inform the applicant that the Chief Executive proposes to recommend that the application be refused.
[15] Of particular importance for this case is s 57(8), which provides that the Chief Executive must recommend that a gaming machine licence be refused if:
(ba) the grant of the licence would be contrary to a guideline issued by the commission under section 17; or
(c) the chief executive considers the installation and use of gaming machines on the subject premises is likely to affect adversely -
(d)
(ii) the general use of the premises or the enjoyment of persons using the premises; or
It is to be noted that paragraph (c) would be engaged where the Chief Executive was of a certain opinion, whereas paragraph (ba), on its face, would be engaged by the existence of a fact, rather than according to what the Chief Executive thought was the compliance or otherwise with the guidelines.
[16] Section 58(2) provides that in making its decision, the Commission must have regard to any supporting material for the application, any relevant community comments upon it or any representations made in response to an invitation under s 55F. Section 58 contains further provisions relating to the Commission's consideration of an application but which apply where it is made by the holder of a club liquor licence. Apart from s 58(2), there is no express requirement for the Commission to have regard to certain things in considering an application for premises under a general liquor licence. But undoubtedly the Commission would have to consider the Chief Executive's recommendation although, as is common ground, it would not be bound to accept it. It is also common ground that the Commission would be obliged to consider the application by reference to its own guidelines, although again, all parties accept that the Commission could depart from its guidelines in an appropriate case. In other words the guidelines are just that, rather than self-imposed limits upon the Commission's powers. Of course, the Commission's discretion is limited by the expressed object of the Act and by the provision, in s 1A, that the object is to be achieved by, amongst other things, minimising the potential for harm from gaming machine gambling. It is with that consideration in mind that the Commission has formulated its guidelines relating to the location and type of premises which are appropriate for gaming machines. These are the particular guidelines upon which the applicants in these proceedings have based their case.
[17] Before going to the guidelines and to the suggested grounds for review, it is necessary to consider an argument of Liquorland, but not of the Commission, as to standing.
[18] Liquorland argues that none of the applicants is a "person aggrieved" in the sense of s 7 of the Judicial Review Act, where this is defined to include a reference "to a person whose interests are adversely affected by the decision". Each applicant says that its interests are affected, at least because of the prospect of competition from the gaming machine business which would be conducted by Liquorland with the benefit of this decision.
[19] In the case of the first applicant, Co-Mac Ltd, the claim for its standing has an additional basis. This derives from the Act's statutory provision for limiting the number of operating authorities for gaming machines within premises the subject of general liquor licences and for the Act's scheme for a regulated market for their sale and purchase. The holder of a general liquor licence has a particular interest in the consistent application of the Act and guidelines made by the Commission under the Act, so that some general licensees are not given an unfair advantage in that market. So what amount to proper requirements as to the location and type of premises for which a gaming machine licence is to be granted should not substantially differ from one premises to another.
[20] Each of these applicants has an interest which is adversely affected by the decision, which distinguishes its position from ordinary members of the public, at least because the practical outcome is the existence of a rival gaming venue. But the interest goes further than that, because if the Act were to be administered improperly, and gaming machine licences were to be granted, inconsistently with the Act, for unsuitable premises, the new competition would be unfair competition. In this way, the applicants, especially Co-Mac Ltd, have a legitimate interest in not just the grant of the licence but in that being in accordance with the Act.
[21] Liquorland's argument strongly relies upon what Thomas J said in Rayjon Properties Pty Ltd v Director-General, Department of Housing, Local Government and Planning,[14] when the relevant decision was that of the Chief Executive Officer of the Local Government Department who determined that an environmental impact statement was not required for an application for a development consent for an extension of a shopping centre. The applicant for judicial review was the operator of a rival shopping centre. It had challenged, as it was entitled, the grant of that consent in the Planning and Environment Court. But the question was whether it had standing to seek judicial review of the decision not to require an environmental impact statement. Thomas J held that it was not a person aggrieved by that decision. The applicant had been seeking to obtain by those proceedings what Thomas J described as a "tactical advantage"[15] by making it more difficult for the development consent to be obtained. It was in that particular context that his Honour observed that:[16]
"An interest in hindering a competitor or obtaining a tactical advantage of this kind is not in my view the sort of interest that the law should encourage or protect."
In Yu Feng Pty Ltd v Chief Executive, Queensland Department of Local Government and Planning,[17] Mackenzie J followed Rayjon in a statutory context which his Honour thought was indistinguishable. Liquorland's argument cites also Alphapharm v SmithKline Beecham[18] and Canberra Tradesman's Union Club Inc v Commissioner for Land and Planning,[19] which are said to support the broad proposition that an interest in the grant of a licence to a commercial competitor is not sufficient to provide standing.
[22] In my view, Liquorland's submission is put too broadly because the present question must be answered, as Gummow J said in Alphapharm,[20] "in the light of the scope and purpose of the particular statute in issue". His Honour continued:
"there is no 'general principle' that a decision under an enactment which favours one corporation cannot relevantly affect the interest of a competitor."
"However, the circumstance that the plaintiff conducts commercial activities in competition with those which it seeks to restrain is not necessarily insufficient to provide it with a sufficient interest in the subject matter of the action."
That was a claim for the grant of equitable remedies, but it should not be thought that the category of competent applicants for judicial review under the "person aggrieved" test is more confined than under the general law. In Australian Institute of Marine and Power Engineers v Secretary, Department of Transport,[23] Gummow J said:
"The result is that there is a measure of broad agreement as to locus standi both for legal and equitable remedies in public law and in that situation it would be a strange result if the ADJR Act posited, by use of the concept of grievance, some narrower criterion."
[23] As I have explained, each of these applicants has an affected interest which goes well beyond that of a member of the public. In my conclusion each applicant is a person aggrieved by this decision.
[24] The Commission published guidelines in November 2004. Until the final submissions for Liquorland, it seemed to be common ground that these were the relevant guidelines. But Liquorland then referred to guidelines published in May 2007. It plainly appears from the Commission's statement of reasons, that the Commission considered the 2004 and not the 2007 guidelines. In any case any difference is not important.
[25] Although the applicants' case focuses upon those parts of the guidelines as to "location" and "type of facility", it is necessary to set out some other parts to put them in context:
There has been increasing community concern with the growth in the gaming industry in recent years and the effects that this may be having on individuals, their families, the gaming industry and the community generally....
The purpose of this Guideline is to give guidance to potential applicants -
Please note that this Guideline is not exhaustive and the Commission has the legislative ability to require further information from an applicant, if the particular circumstances of the case demand, to enable the Commission to make a fully informed decision...
General Liquor Licence and Club Liquor Licence
One of the pre-requisites for applying for a gaming machine licence is that the applicant must either hold, or have applied to be the holder of, a general liquor licence or club liquor licence. Applicants should be aware that a general liquor licence or club liquor licence DOES NOT give the licence holder an automatic right to a gaming machine licence...
Section 57 of the Act prescribes certain matters that the chief executive must investigate, and make an assessment of, in relation to an application for a gaming machine licence, while section 82 of the Act prescribes matters that the chief executive must assess in making a recommendation in respect of an increase application. In addition to the normal matters that the chief executive must consider, the Commission, in accordance with its powers to take into account social and community issues, has directed the chief executive to also investigate and make an assessment of the following matters -
It is mandatory that all of the above matters are addressed, in addition to the requirements of the Guidelines - Community Impact Statement, for all applications of significant community impact..."
[26] The guidelines relevant to this case are as follows:
Applicants should be aware of the Commission's attitude to the following -
[27] Under each of the applicants' arguments, those guidelines as to shopping centres and convenience locations, bar and grills, restaurants, the dominant purpose of the facility and the need for a "fully integrated facility" were not applied to these premises.
[28] Their first argument is that Liquorland's application was in fact contrary to the guidelines, so that the Chief Executive was bound to recommend its refusal according to s 57(8)(ba). The Chief Executive's recommendation, that the licence be granted, is said to have been thereby "invalid". It is argued that an invalid recommendation was an irrelevant consideration for the Commission, so that when the Commission took it into account, the result was an improper exercise of the Commission's power.[24] Alternatively, it is argued that a valid recommendation was a "procedure" which was required to be observed in relation to the making of the Commission's decision.[25] Either way, the argument is based upon the premise that Liquorland's application was contrary to the guidelines, a matter of fact which is said to be established by the evidence.
[29] Alternatively, the applicants argue that the Commission misconstrued and misapplied its guidelines, and that in considering them the Commission made findings of fact for which there was no evidence and where it was bound to reach a contrary conclusion.
[30] As already noted, it is common ground that the Commission had to consider, but was not bound by, the Chief Executive's recommendation, and was obliged to consider for itself whether the application was consistent with the guidelines. And it was free to depart from its guidelines in an appropriate case. So in these circumstances it is difficult to accept the argument that the Commission was not empowered to grant the application, assuming that the Chief Executive had erred in assessing it.
[31] In the present case, the Commission's decision corresponded with the Chief Executive's recommendation. But suppose the recommendation to grant the licence had been wrong and the Commission had identified it as such. On the applicants' argument that a "valid" or correct recommendation is a pre-requisite of the Commission's power, the Commission would then have no power to refuse the application. In such a case the Commission would have to require the Chief Executive to think again, and to furnish another recommendation. Then there could be a case where the Chief Executive recommended a refusal of the application, having wrongly concluded that it was contrary to one of the guidelines, but the Commission correctly decided to refuse it for another reason. On the applicants' argument, again the Commission would first have to send the application back to the Chief Executive. And if it failed to detect the Chief Executive's error, or had found it unnecessary to consider the point because of its own reason for refusing the application, then on the applicants' argument the Commission's decision would be invalid. These examples suggest that a limitation on the Commission's power, according to whether the Chief Executive had erred, should not be readily implied.
[32] I accept that a recommendation by the Chief Executive is something which must occur before the Commission makes its decision. I accept also that the Chief Executive is bound to make that recommendation according to the requirements of s 57. However, I do not accept that an error by the Chief Executive in arriving at the recommendation results in the position being as if there had been no recommendation at all. To impliedly limit the Commission's power in that way would not promote the object of the Act, or the purpose of the requirement for an assessment by and recommendation from the Chief Executive. Instead, in some cases at least, it would unduly hamper the operation of these provisions for licensing, such as in the cases I have instanced. Accordingly, I reject the applicants' argument that a correct recommendation by the Chief Executive was a "procedure ... required by law to be observed in relation to the making of the decision".
[33] The alternative argument based upon the suggested invalidity of the recommendation is that an incorrect recommendation is an irrelevant consideration, so that by considering that recommendation, the Commission improperly exercised its power. In the present case however, it is clear that the Commission reached its own conclusion that the application complied with its guidelines. This is not a case where the Commission has assumed the facts to be those put forward by the Chief Executive. I do not accept that the Commission was to consider the recommendation only if the recommendation was correct. It was relevant that the Chief Executive was of the view that the application complied with the guidelines, and there was nothing improper in the exercise of the Commission's power for the fact that the Commission considered that matter before making up its own mind on the same question.
[34] The applicants argue that the location and "type of facility" of these premises make them inconsistent with the guidelines as to those matters. As to the location, the applicants say that there is no other conclusion open but that the premises are within a shopping centre or convenience location which, according to the relevant guideline, "are generally considered inappropriate locations for gaming machines". They say that the only proper characterisation of the premises is that they are a bar and grill or a restaurant (or both) which, according to a guideline, "are considered unsuitable as gaming venues". Thirdly, they argue that "the dominant purpose of the facility" is not "the serving of alcohol", contrary to another guideline. And fourthly, they say that these premises are contrary to the guideline that "the facility must also be a fully integrated facility [and that] gaming must be only an ancillary service forming an integral part of the whole facility".
[35] Both the applicants and Liquorland tendered extensive evidence on these questions. Much of it consisted of opinion evidence as to whether in this case there is a shopping centre or convenience location or whether there is a bar and grill or a restaurant. This was despite it being apparently common ground that these terms, as used in the guidelines, have no special trade or industry meaning. The guidelines should then be read according to the ordinary meaning of the words but with an understanding of the relevant statutory context, including any relevant provisions of the Liquor Act 1992 (Qld). Nor was I assisted by any opinion as to the appearance of Liquorland's premises, which was well proved by the photographs in evidence. As requested by all parties, I had a view of the subject premises (as well as those of each of the applicants) for the suggested purpose of better understanding that evidence.
[36] Before turning to each of these arguments, it is necessary to describe Liquorland's premises. They are close to the corner of Wynnum Road and Southgate Avenue. On one side of them, there is a McDonald's restaurant, which is on the corner. It has its own car park and there is a high fence separating it from Liquorland's premises and its car park. No one now suggests that the McDonald's restaurant is an impediment to the grant of this licence. The Liquorland premises consist of a large shop selling liquor to be taken away, described by some as a bottle shop and by others as a "liquor barn", and an adjoining area where there are dining tables and chairs, smaller tables with chairs, a bar and an area presently used as a "lounge", but which is proposed for the gaming machines. From outside the liquor barn appears to be an attached but distinct structure. There is no internal access between the liquor barn and the rest of the premises. Each has its own entrance effectively opening to a covered walkway next to the car park. The part of the premises which is not the liquor barn has prominent signage with the name of the premises ("Eleven 17") and the description "Bar Restaurant Café". There is no sign such as "hotel" or "tavern". Some of the tables and chairs are inside, some are outside. The total area which is subject to the liquor licence is 1207m2, of which 952m2 is publicly accessible. The liquor barn appears to occupy more than half of the publicly accessible area and the so-called gaming room would occupy 110m2 of the balance.
[37] Between these premises and Southgate Avenue is a car park, to which there are two entries from that street. One of them leads directly to a laneway between Liquorland's "Bar Restaurant Café" and another building which houses a number of shops. The laneway is the means of access for service vehicles going to that other building and to Liquorland's premises. There is a pedestrian crossing across the laneway for people walking between the other building and Liquorland's building. At the front of the other building there is more car parking. In practice, that car park area and the area in front of Liquorland's premises are used as one car park.
[38] That other building has a sign describing it as "Southpark Convenience Centre". It contains a café, a hairdresser, a bread and pastry shop and a shop selling fruit and vegetables and some other food, which some witnesses fairly described as a convenience supermarket. Another witness Mr Craven, who is a town planner called by Liquorland, described it as "not a full-line supermarket, but a specialist food outlet - basically a large delicatessen" and he described the other shops as being "generally drop-in facilities". He said that:
"Southgate Convenience Centre is not a large, enclosed shopping centre - such as an Indooroopilly or Chermside - nor one in which patrons perform routine or essential shopping trips - such as the centre anchored by a full-line supermarket like Woolworths or Coles. Rather, as its name suggests, it is one to which patrons resort to perform occasional, specialty food or convenience shopping."
[39] The first relevant guideline is that "shopping centres, convenience locations and other public areas are generally considered inappropriate locations for gaming machines". It appears to be common ground that this is to be understood as meaning that the licensed premises, within which the gaming machines are to be located, should not be within a shopping centre or a so-called convenience location. The apparent policy reflected by this guideline is that the public, when out shopping, should not be easily diverted to a gaming facility.
[40] In this case, there should be no doubt that the building which describes itself as the Southgate Convenience Centre is a shopping centre or convenience location. The question is whether Liquorland's premises could be regarded as outside that centre, as the Commission found was the case. The Commission's relevant findings, according to its Statement of Reasons, were as follows:
"1. Eleven 17 is a modern upmarket tavern incorporating an integrated range of facilities including bar, bottle shop and indoor and outdoor dining...
The Tavern is located in the Southgate Corporate Park, a commercial precinct.
The Tavern is located in its own separate complex to others in the commercial precinct and has its own car park area.
Neighbours to the Tavern include a gourmet fruit and vegetable store and a McDonald's.
The McDonald's is located immediately next door to the Tavern. However' it is well separated by a large aluminium fence.
The gourmet fruit and vegetable store is not of a convenience nature."
In its reasons, the Commission wrote that it gave weight to various matters including the following:
"• The Tavern's location in a separate complex with its own car park area.
[41] Accordingly, the Commission made its own assessment of the applicability of this guideline to Liquorland's application and decided on several bases that the application was not inconsistent with the guideline. In some respects, its reasoning is fairly open to criticism. For example, if it was intending to say that the area which describes itself as the Southgate Convenience Centre is not a shopping centre or convenience location, then it would be difficult to see how that view could be held. And to say that the Tavern was located within a "corporate/commercial precinct" does not seem relevant, if nevertheless, within that precinct there is a shopping centre which includes these premises. But the Commission has also reasoned that the so-called tavern is in "a separate complex with its own car park area". In the Commission's view then, at least one reason why the shopping centre guideline was inapplicable was that Liquorland's building was not part of something else.
[42] Whether a detached building might yet be properly regarded as part of a shopping centre or convenience location is largely a matter of impression. It is possible to identify many ways in which there is a connection between these two buildings, such as the pedestrian crossing between them and the use of the car park as I have described. The applicants' case is that by mutual easements, those going to Liquorland's premises may use the car park in front of the other building and vice versa. As I read the easements that is not strictly so: the easements relate to a relatively small part of the entire car parking area and seemed designed to ensure the common use of the entry and exit at the end of the driveway leading to the lane between the buildings. Be that as it may, the practical position is that the area in front of one building is not displayed to the public as available only to that building.
[43] An assessment of whether Liquorland's building is to be regarded as within the
so-called Southgate Convenience Centre would be made with the purpose of this guideline kept in mind. In saying that the licensed premises were in a "separate complex", the Commission appears to have thought it unlikely that customers shopping at the Centre would be diverted to the Tavern.
[44] Minds could differ about the application of this guideline, but I am not persuaded that the Commission's conclusion in this respect was not open to it.
[45] Next there is the "bar and grill" or "restaurant" guideline. The applicants' case that these premises are a bar and/or a restaurant, starts from the not unpromising position that the signage promotes them as "Bar-Restaurant-Café". The applicants rely also on the fact that in the community impact statement prepared on behalf of the earlier applicant for this site, which was one of the documents considered by the Commission on Liquorland's application, the premises were described as follows:[26]
"There is no public bar (in the traditional sense) intended for the venue, principally because the Applicant does not intend for the venue to have facilities which are often a major source of concern for community groups in relation to Hotels (ie, public bars which may often contain binge-drinkers). Public bars can also disenfranchise certain members of the community for similar reasons, whereas the "bistro type" facility intended will be more inclusive for a broader range of patrons. The main emphasis will be on the provision of a high standard of quality meals, an extensive on-premises retail packaged liquor outlet, together with the ancillary entertainment of a gaming room."
[46] The Commission found that the relevant premises were all of that area which is subject to the general liquor licence, so that they included the liquor barn, and as a whole constituted "a modern upmarket tavern incorporating an integrated range of facilities including bar, bottle shop and indoor and outdoor dining".
[47] A general liquor licence is granted under Division 2 of Part 4 of the Liquor Act 1992 (Qld), which at the time of this decision, provided by s 58A as follows:
"(1) The primary purpose of a business conducted under a general licence is the sale of liquor for consumption on the premises, or on and off the premises, together with the provision of meals and accommodation as required under the licence.
(2) The authority under a general licence to sell or supply liquor does not apply unless a business is conducted on the licensed premises with a primary purpose as mentioned in subsection (1)..."
[48] Accordingly, a business conducted under a general liquor licence need not have a restaurant, but where it does, the provision of meals must not be its primary purpose.
[49] On any sensible view, there is a restaurant within Liquorland's premises, as Liquorland promotes them by its signage. But Liquorland argues that "the Chief Executive and the Commission were entitled not to characterise the premises as a bar and grill or restaurant" and that "this is a factual issue and is not the type of dispute which could found relief". It sought to support its argument by opinion evidence from a Mr Michael Simpson. He is a solicitor, now working in the Middle East but previously employed by Deacons, the solicitors for Liquorland, from 2003 to 2005. In that capacity, he acted for TC and F Kelly Pty Ltd in preparing that community impact statement which supported its earlier application for this site. In his affidavit, he swore that Liquorland's premises:
"would not ordinarily be described as a bar/grill or restaurant because [they] provide the full compliment [sic] of integrated services required or expected of a general licensed facility, including a bar, restaurant and on-premises retail packaged liquor facility (but not including gaming, to which these proceedings relate)."
But it is not for Mr Simpson to interpret the guideline and his opinion is not presently relevant.
[50] At one point, Liquorland's point appeared to be that premises the subject of a general liquor licence could not be described as a restaurant, because although many such premises contain a restaurant, they contain other things as well. The difficulty with that submission is that these guidelines are expressed to apply to applications for gaming machine licences made by holders of general liquor licences or club liquor licences. The guideline about restaurants must be given some meaning for such applicants and their premises. By s 56, the Act provides that holders of prescribed liquor licences are also eligible for a gaming machine licence. But it cannot be supposed that this guideline about restaurants was intended only for them, at least because it would seem nonsensical for a particular licensee to be prescribed as an eligible applicant if at the same time, its premises were inconsistent with the guidelines. And the guidelines themselves refer only to general liquor licences and club liquor licences. Accordingly, some sense has to be made of this guideline in the context of premises under a general liquor licence, where any restaurant could not be the only or even the principal business which was conducted.
[51] For the Commission, it is argued that the application of this guideline, like that in relation to shopping centres, is a matter of impression or opinion upon which reasonable minds might differ and that there is no demonstrated reviewable error by the Commission in this respect. However, it is difficult to identify any view which the Commission did have about this guideline. There is no reference to this particular guideline in the Commission's statement of reasons and nor is there any finding as to whether these premises, or any part of them, constitute a restaurant as that term is used in the guideline. The same may be said of the Chief Executive's recommendation. The closest he came to the point was in stating his observations that:
"• Eleven 17 offers all the facilities normally provided at a modern tavern - the sale of on premises and off premises liquor, dining and the provision of entertainment.
If anything, this would suggest that the provision of food is relatively more important in these premises, which would make it more likely that the restaurant guideline was relevant.
[52] Yet on 2 April 2007, the Chief Executive had received a (further) submission from the statements for the applicants in opposition to Liquorland's application which included a contention that:
"The subject premises are, having regard to the relatively small bar area and significantly larger dining area, appropriately characterised as a 'bar and grill' or 'restaurant' [and] the adjoining 'liquor barn' type retail outlet is not integrated with a facility which serves food and drinks."
In its reasons, after referring to the contention by the applicants that:
"The premises conflict with the Commission's guidelines regarding the suitability of the premises..."
the Commission more specifically referred to the contention that:
"An aspect of the unsuitability of the premises is their inappropriate dominant purpose because of the floor area of the respective facilities, unreliable figures in the [community impact statement] and the lack of integration of the facilities."
But that "aspect of unsuitability" was distinct from the point that the premises were unsuitable because they were, in essence, a restaurant.
[53] In my view the Commission has not considered the application of the restaurant guideline. The present applicants as objectors raised the point, and the Commission was bound to consider it. And where the premises were fairly promoted as a "Bar/Restaurant/Café", the dining area was relatively large and the liquor barn was in an apparently separate structure without any direct access from the rest of the premises, the restaurant guideline arose for consideration. The result is that at least upon this basis, there is a demonstrated ground for review of the Commission's decision. However, it is not established that a consideration of the restaurant guideline would have resulted in a refusal of Liquorland's application.
"The dominant purpose of the facility must either be the serving of alcohol in the case of a hotel or the provision of services to members in the case of a club."
All parties accept that the reference to a hotel is to any premises which are the subject of a general liquor licence. The applicants' argument focuses upon the words "serving of alcohol" which they distinguish from the sale of alcohol. They argue that it refers only to alcohol which is supplied for consumption on the premises and not to that which is sold in the liquor barn. On the evidence of the gross income from bar sales, dining and the liquor barn and the likely income from the gaming machines, I accept that the gaming income would well exceed the income from the sale of liquor for consumption on the premises and that the combined income of those two activities would be well less than the income from the liquor barn.
[55] Accordingly, if the supply of alcohol in the liquor barn is the "serving of alcohol", it is not said that this decision would be contrary to the guideline. If the sales from the liquor barn were excluded as not being the service of alcohol, then the position could be different: the dominant purpose of the facility as a whole would not be the serving of alcohol, but nor would it be gaming. Measured by gross income, it would be the sales through the liquor barn.
[56] According to s 58A of the Liquor Act 1992 as set out above, the primary purpose of a business conducted under a general licence could be the sale of liquor for consumption on and off the premises, and this would allow for the takeaway sales to exceed other liquor sales, as undoubtedly occurs in many premises holding such a licence. In such cases, according to the applicants' argument, the application of the guideline would preclude the grant of a gaming machine licence, no matter how small was the gaming activity compared with the supply of alcohol for consumption on the premises. The respondents' argument that "serving of alcohol" in this guideline means the supply of alcohol seems more suited to the apparent purpose of the guideline, and should be preferred. The result is that the applicants' argument on this point fails.
[57] The applicants say that this guideline was not met because the liquor barn is not fully integrated with the balance of the premises.
[58] Again several witnesses offered their opinion on the question. For example, the solicitor Mr Simpson said that the liquor barn was fully integrated because it was "directly contiguous" with the restaurant. Another witness for Liquorland, Mr Craven, seemed to disagree. The meaning of this guideline is strongly indicated by its words "detached gaming areas will not be acceptable". The gaming area here would not offend that statement. The gaming area could certainly be described as fully integrated with the restaurant and bar (which is the basis for the restaurant argument). The term "fully integrated facility" is imprecise and its application is largely a matter of impression. I am not persuaded that the Commission was bound to find that Liquorland's proposal was contrary to this guideline.
[59] The outcome is that the applicants have demonstrated a ground for reviewing this decision, which is that it was an improper exercise of the Commission's power because the Commission failed to consider its guidelines in one respect. It will be ordered that the decision of the Commission of 24 July 2007 be set aside and the matter be referred to the Commission for further consideration according to these reasons for judgment. I will hear the parties as to costs.
[1] Judicial Review Act 1991 (Qld) s 7.
[15] [1995] 2 Qd R 559, 562.
[16] [1995] 2 Qd R 559, 562.
[20] [1994] FCA 996; (1994) 49 FCR 250, 272.
[22] [1998] HCA 49; (1998) 194 CLR 247, 266.
[23] [1986] FCA 443; (1986) 13 FCR 124, 132. See the other cases cited for this point in Aronson, Dyer and Groves Judicial Review of Administrative Action (4th ed) p 787.
[26] Pages 52-53 of the exhibits to the Affidavit of Tracy Joy Dare.
Co-Mac Pty Ltd & Ors
Queensland Gaming Commission & Ors
(1994) 49 FCR 250
(1986) 13 FCR 73
(1998) 194 CLR 247
(1998) 100 LGERA 276
(1998) 99 LGERA 122
(1986) 13 FCR 124