I hereby officially warn you that a repetition of any of the above incidents will not be tolerated. If further breaches of your licence are detected I may make application under section 90 of the Liquor Control Reform Act 1998 to have you find, and or liquor licence cancelled or suspended.

I will also consider an application under Section 92 of the Liquor Control Reform Act 1998 to have you and persons involved in the management of your company, disqualified from operating licensed premises.

You may also be prosecuted in the Magistrates Court or receive an infringement notice.

A Section 90 application will contain all of the above allegations as well as any further breaches detected and any other relevant matters brought to my attention.

(This warning was given to the licensee, Trimble and Micovski in December 2008.

1. In the opening submissions for the respondent and joined parties, Mr Ribbands with Ms Pearson stated that the characterisation of the particulars alleged by the applicants fell into five categories -

1. In relation to particular 6 relating to the s 90 proceeding failing to have the correct notices displayed. Further, the crowd controller's register on some occasions was not completed correctly, which was the responsibility of Pro-Tech National Security Group ( Pro-Tech Security) (see particulars to s 90 proceeding). These matters were classified as technical breaches by Mr Ribbands and Ms Pearson 2. Drawing a curtain around a sexual explicit dance on an occasion, Mr Ribbands said this was a minor breach because it blocked the view of the security camera. He said further the curtain had now been removed.

1. Internal incidents where there was no fault of the licensee or its managers and directors. Mr Ribbands then gave an example of two patrons starting a fight without warning. He stated that each of these incidents were quickly terminated by the proprietor.

1. External incidents - for example, two drunks fighting with each other; and 2. Crowd controllers letting the licensee down. He stated that the licensee, its managers and directors should not be held responsible for these incidents because the obligation pursuant to clause 2.5 had been fulfilled. He noted that the licensee had subcontracted these obligations to a licensed crowd controller firm Pro- Tech Security.

1. The following relevant sections of the Act state -

(1) For the purposes of this Act, the amenity of an area is the quality that the area has of being pleasant and agreeable.

(2) Factors that may be taken into account in determining whether the grant, variation or relocation of a licence would detract from or be detrimental to the amenity of an area include -

(3) Nothing in subsection (2) is intended to limit the definition of amenity.

(1) For the purposes of this Act, a person is in a state of intoxication if his or her speech, balance, co-ordination or behaviour is noticeably affected and there are reasonable grounds for believing that this is the result of the consumption of liquor.

(2) The Director must issue guidelines containing information about how to determine whether a person is in a state of intoxication for the purposes of this Act, the Casino Control Act 1991 or the Gambling Regulation Act 2003

(a) to contribute to minimising harm arising from the misuse and abuse of alcohol, including by -

(i) providing adequate controls over the supply and consumption of liquor; and

(ii) ensuring as far as practicable that the supply of liquor contributes to, and does not detract from, the amenity of community life; and

(iii) restricting the supply of certain other alcoholic products; and

(iv) encouraging a culture of responsible consumption of alcohol and reducing risky drinking of alcohol and its impact on the community; and

(b) to facilitate the development of a diversity of licensed facilities reflecting community expectations; and

(c) to contribute to the responsible development of the liquor and licensed hospitality industries; and

(d) to regulate licensed premises that provide sexually explicit entertainment.

(2) It is the intention of Parliament that every power, authority, discretion, jurisdiction and duty conferred or imposed by this Act must be exercised and performed with due regard to harm minimisation and the risks associated with the misuse and abuse of alcohol.

(1) A licensee or permittee that is a body corporate may apply to the Director for the approval of a person as nominee of the licensee or permittee.

(1) If a person referred to in subsection (2) considers that a licensee or permittee -

(a) has contravened this Act, the regulations, the licence or BYO permit, or a condition of the licence or BYO permit; or

(b) has contravened a condition of any other approval or consent of the Director under this Act; or

(fa) is a body corporate a director of which has been convicted, whether in Victoria or elsewhere, of an offence punishable by a maximum term of imprisonment of 3 years or more; or

(j) has conducted the business under the licence or BYO permit, or allowed it to be conducted, in a manner that detracts from or is detrimental to the amenity of the area in which the licensed premises are situated; or

(k) is otherwise not a suitable person to hold a licence or BYO permit -

the person may apply to the Tribunal to conduct an inquiry into the licensee or permittee.

(2) The persons who may apply under this section are -

(d) the Council of the municipal district in which the licensed premises are situated.

(1) After conducting an inquiry under this Division and if satisfied that any of the grounds set out in section 90(1) or section 148ZV exist, the Tribunal -

(a) if section 90(1)(f) applies - must make an order -

(ii) suspending the licence or permit for the period specified by the Tribunal; or

(iii) endorsing the licence or permit under section 93;

(b) in any other case - may make any one or more of the following orders -

(ii) an order suspending the licence or permit for the period specified by the Tribunal;

(iii) an order endorsing the licence or permit under section 93;

(iv) an order imposing a fine on the licensee or permittee not exceeding $30 000;

(2) An order varying the licence or BYO permit may include -

(a) a variation of the times outside ordinary trading hours at which the licence or permit authorises the supply of liquor;

(b) a variation of the size or perimeter of the licensed premises;

(c) a variation of a condition of the licence or permit (other than a condition imposed by this Act);

(d) the imposition of a new condition on the licence or permit;

(e) the removal of a condition of the licence or permit (other than a condition imposed by this Act).

(1) If satisfied that a ground for making an order under section 91 or section 148ZV exists, the Tribunal may also order that the licensee or permittee or any director or nominee of the licensee or permittee (if it is a body corporate) or any member of the committee of management or nominee of the licensee or permittee (if it is a club) or any person who, whether directly or indirectly, is concerned in or takes part in the management of licensed premises be disqualified -

(b) from being a director in any body corporate that holds a licence or BYO permit;

(c) from being a partner in any partnership that holds a licence or BYO permit;

(d) from having a beneficial interest (whether directly or indirectly) in the shares of any body corporate that holds a licence or BYO permit;

(e) from in any way (whether directly or indirectly) taking part in, or being concerned in, the management of any licensed premises or any body corporate that holds a licence or BYO permit or any licensed club;

(f) from being employed by any licensed club or any person that holds a licence or BYO permit.

(2) The Tribunal may disqualify a person in all or any of the ways listed in subsection (1) and may make an order under this section even though it does not make any order under section 91.

(3) In imposing a disqualification, the Tribunal must specify the period for which the disqualification is to apply.

(1) If a person referred to in subsection (2) considers that the continuation in force of a licence or BYO permit would detract from or be detrimental to the amenity of the area in which the licensed premises are situated, the person may apply to the Tribunal for an order cancelling or suspending the licence or permit.

(2) The persons who may apply under this section are -

(c) the Council of the municipal district in which the licensed premises are situated.

(1) If the Tribunal on an application under section 94 or 95 is satisfied that the grounds set out in the application exist, the Tribunal may make an order -

(b) suspending the licence or permit for the period specified by the Tribunal; or

(2) Section 91(2) applies for the purposes of subsection (1)(c).

102 Notices required by the Director must be displayed

(1) A licensee or permittee must cause to be displayed on the licensed premises any notice that the Director requires the licensee or permittee to display.

(2) In displaying a notice, the licensee or permittee must comply with any requirements imposed by the Director concerning the size, format or manner of display of the notice.

(a) must not, except in accordance with the licence or BYO permit and this Act -

on the licensed premises or on any authorised premises;

(a) must not supply liquor to a person who is in a state of intoxication;

(b) must not permit drunken or disorderly persons to be on the licensed premises or on any authorised premises.

(5) It is a defence to a prosecution for an offence under subsection (4)(b) for the defendant to prove that -

(a) the defendant did not know that drunken or disorderly persons were on the premises; and

(b) the defendant had taken reasonable steps to ensure that drunken or disorderly persons were not on the premises.

1. Definition of "crowd controller" in s 3 of the Private Security Act 2004 reads as follows -

crowd controller means a person who is employed or retained principally to maintain order at any public place by doing all or any of the following -

any such place, unless that person is doing nothing more than securing or checking that persons allowed admission -

(f) have invitations or passes allowing for admission;

1. Sections 139 and 140 of the Private Security Act 2004 read as follows:

(1) If one or more crowd controllers are employed or retained at a public place, the manager of the activity at the public place for which the crowd controllers are employed or retained, must, for each day for which any such crowd controller is so employed or retained, ensure that there is available at that public place, a register in which the information required to be entered under section 142 may be so entered.

(2) The manager of an activity at a public place at which one or more crowd controllers are employed or retained must ensure that, for each day for which each crowd controller is so employed or retained, the crowd controller properly enters in the register the information required to be entered under section 142.

140 Duties of business licence holder as to register

(1) The holder of a private security crowd controller business licence who provides the services of a person to act as a crowd controller at a public place must, for each day for which the holder so provides those services, provide to the person who is managing the activity for which the services are being provided the register that is required to be made available under section 139(1).

(2) The holder of a private security crowd controller business licence who provides the services of a person to act as a crowd controller at a public place must ensure that, for each day for which the crowd controller so acts, the crowd controller properly enters in the register made available at that public place under section 139(1) the information required to be entered under section 142.

(3) The holder of a private security crowd controller business licence who provides the services of a person to act as a crowd controller at a public place must ensure that a copy of the register made available at that place under section 139(1), in which the information has been entered in accordance with section 142, is obtained and kept in the licence holder's possession at the usual place of business of the licence holder for a period of 5 years from the day on which the information is required to be entered.

142 Information required to be entered in the register

(1) The following information is the information that is required to be entered in a register (made available under section 139(1)) by a crowd controller -

(a) the date of the day on which the crowd controller is acting as a crowd controller; and

(b) the licence number and full name of the crowd controller; and

(c) in the case of a crowd controller whose services are being provided by the holder of a private security crowd controller business licence, the name of the licence holder and address of the usual place of business of the licence holder; and

(d) details of the identification worn by the crowd controller in accordance with this Part; and

(e) in relation to any incident involving the crowd controller, the prescribed details relating to the incident; and

(f) any other information required by the regulations_._

(2) The following information is the information that is required to be entered in a register (made available under section 139(1)) by the manager of an activity at a public place at which one or more crowd controllers are being employed or retained -

the address of the public place at which any such crowd controllers are being so employed or retained.

(3) In this section incident means any action in which a crowd controller -

(a) makes forcible physical contact with a member of the public at or in the vicinity of the place where the crowd controller is so acting; or

(b) restrains a member of the public at, or in the vicinity of, the place where the crowd controller is so acting; or

(c) ejects a member of the public from the place where the crowd controller is so acting.

1. It is noted that at all times Planet Platinum employed an outside firm Pro-Tech Security to provide crowd controllers. The crowd controllers were inducted onto the premises in the first night of duty by either managerial staff of the premises and/or supervisory staff of Pro-Tech Security.
2. It is also noted that in relation to some security staff, the applicants requested that "Pro-Tech Security" should not allow those staff to work at the premises. Those staff included Mohamed Attal and Ashley Smith.

1. Prior to dealing with the facts used by the applicants to substantiate the particulars that the applicants are relying upon, it is convenient if I deal with a number of legal issues that many of the alleged particulars have in common.

1. It is noted that matters affecting amenity are referred to in s 3A of the Act (paragraph 28 of these reasons).
2. Amenity is also referred to in Bar 20's liquor licence and in particular it states :

The licensee should not cause or permit undue detriment to the amenity of the area to arise out of or in connection with the use of premises to which the licence relates ....

1. Mr Ribbands and Ms Pearson submitted that any matters happening entirely within the interior of the premises did not come within the meaning of "the area", as used in s 3A of the Act and in Bar 20's licence. They stated :

Reference to 'the amenity of the area in which the licensed premises are situated' plainly relates to the neighbourhood and not the interior of the premises themselves. If a business operator chooses to operate a business in such a way that it is neither pleasant nor agreeable within, but which has no effect on the surrounding neighbourhood, it cannot invite an application under section 95. It will simply mean that the business suffers because if the amenity is affected internally in the way it is contended, then patrons will not attend.

1. It should be noted that even though Mr Ribbands and Ms Pearson referred to the word "neighbourhood" in their submission, such word is neither used in s 3A of the Act nor the licence.
2. It is clear that subject to the restrictions on the licence, any member of the public may, upon payment of the appropriate fee, enter the premises of Bar 20. These are premises that are open to the public. Therefore, it necessarily follows that the inside of the premises are part of the area referred to in both the Act and the licence. It follows that when I examine the allegations relating to both s 95 and s 90(1)(j) of the Act, I am required to consider both the amenity inside and outside the licensed premises. Further, if there is a disturbance inside the premises, it is very likely that that disturbance will spill outside. For example, if a fight breaks out inside the premises, those involved in the fight will more than likely be ejected from the premises, and thus are likely to create an unpleasant scene on the footpath in front of or near the Bar 20 premises.
3. Further, it should be noted that if members of the public wish to attend Bar 20 premises, they should be able to do so in an atmosphere that, for example, is free from drunkenness and violence. It matters not, in my view, whether that violence is inside or outside the premises.

Application of s 95 to King Street

1. Mr Ribbands and Ms Pearson submitted that it is the consumer of alcohol, rather than the seller, that is responsible for its misuse. In support of that proposition, they relied on the High Court decision of CAL No Pty Ltd v Motor Accidents Insurance Board [2009] HCA 47 at 54 per Gummow, Heydon and Crennan JJ. Their Honours there stated :

Then there are issues connected with individual autonomy and responsibility. Virtually all adults know that progressive drinking increasingly impairs one's judgment and capacity to care for oneself. Assessment of impairment is much easier for the drinker than it is for the outsider. It is not against the law to drink, and to some degree it is thought in most societies - certainly our society - that on balance and subject to legislative controls public drinking, at least for those with a taste for that pastime, is beneficial.

As Holmes J, writing amidst the evils of the Prohibition era, said : 'Wine has been thought good for man from the time of the apostles until recent years'. Almost all societies reveal a propensity to resort to alcohol or some other disinhibiting substance for purposes of relaxation. Now some drinkers are afflicted by the disease of alcoholism, some have other health problems which alcohol caused or exacerbates, and some behave badly after drinking. But it is a matter of personal decision and individual responsibility how each particular drinker deals with these difficulties and dangers.

Balancing the pleasures of drinking with the importance of minimising the harm that may flow to a drinker is also a matter of personal decision and individual responsibility. It is a matter more fairly to be placed on the drinker than the seller of drink. To encourage interference by publicans, nervous about liability, with the individual freedom of drinkers to choose how much to drink and at what pace is to take a very large step. It is a step for legislatures, not courts, and it is a step which legislatures have taken only after mature consideration. It would be paradoxical if members of the public who 'may deliberately wish to become intoxicated and to lose the inhibitions and self-awareness of sobriety' and for that reason are attracted to attend hotels and restaurants, were to have that desire thwarted because the tort of negligence encourage an interfering paternalism on the part of those who run the hotels and restaurants.

1. The respondent's counsel also referred to a decision of mine in Kordister Pty Ltd v Director of Liquor Licensing [2010] VCAT 277 at 65 where, after referring to the CAL decision, I stated :

It is clear from the CAL decision that the responsibility for the misuse of alcohol should be placed on the drinker rather than the seller. I do not take that to mean that the seller has no responsibility. Of course it does. However, that responsibility is the responsibility provided in the statutes and, in particular, the Act. In my view, it is quite wrong to blame the purveyor of alcohol when the alcohol that is purveyed is misused by the ultimate consumer.

1. It should be noted that I quoted the CAL case which incidentally is a case in tort, and wrote the words in Kordister which was in the context of the proceeding I was there deciding. That proceeding was very different to the current proceeding. There my concern was whether the hours of a 24 hour bottle shop should be reduced so that it shut at 11:00pm. A bottle shop is very different in nature from the business that is conducted at Bar 20.
2. Further, as I have said, the CAL case was a case in tort. It did not involve, as the present case does, a statutory obligation on the part of the licensee to make sure patron behaviour was kept within proper limits while the patrons were consuming alcohol - for example, the obligation contained in s 108 of the Act. In the Kordister case, no alcohol was permitted to be consumed in the bottle shop.
3. After alcohol is purchased from a bottle shop, the patron takes that away and consumes it elsewhere. The licensee of the bottle shop has no control whatsoever over where and how it is consumed.
4. In the present proceeding, the alcohol is both purchased and consumed on the Bar 20 premises. As a consequence, the licensee through its nominee and other staff are obliged to provide a supervisory role so that the alcohol is not consumed in a manner that is either a breach of the statute or a breach of the licence. For example, by a person who is drunk or unruly (see s 90, s 95, s 106 and s 108 of the Act and clause 4 of the licence).
5. It should be noted at this stage that during the submissions both parties agreed that there was a distinction between "drunkenness" and "intoxication". The distinction being that drunkenness was a further stage of intoxication. It is noted that s 108(4)(a) forbids the supply of liquor to "a person in a state of intoxication", while s 108(4)(b) forbids "drunken or disorderly persons to be on the licensed premises".
6. Mr Ribbands stated that it was very difficult for the venue operators, in some cases, to determine whether a person was intoxicated or drunk. He stated :

There is however always the possibility, in any venue, those patrons can consume liquor without having to interact with bar staff or crowd controllers. The prospect that 'friends' will obtain alcohol for consumption of another in undesirable quantities, will always allow for an outcome where a person can become intoxicated through no fault of the venue and its staff and through no want in care or attention on the part of the venue or its staff. It is a classic example of the misuse of alcohol by the ultimate consumer which is also balanced by reasonable measures on the part of the licensee to endeavour to thwart such an occurrence.

He thus concluded that the venue should not be held responsible in the situation which he described.

1. In my view, while in some circumstances in the situation described by Mr Ribbands, intoxicated or drunken patrons might not reasonably be able to be identified by the venue staff, in most circumstances, the law would expect such patrons to be properly identified. The drinks are bought from the bar staff at the premises, and consumed at the premises. Therefore, in my view, if enough and proper staff are employed, it would not be a too onerous task on the venue to be able to observe people in the circumstances described by Mr Ribbands. I note that clause 4.1 and 4.2 of the current licence and clause 4.3 of an earlier licence required the licensee to supervise and manage staff to ensure the responsible service of alcohol.
2. There are a number of indicia that have been used by police and others to determine if a person is drunk or intoxicated. For example, their manner of speech, the way they may be wearing their clothes, whether their eyes are bloodshot, coordination, and perhaps the way they walk. In order to identify drunkenness, all those indicia which I have mentioned and possibly some others do not have to be identified. An experienced person, working in an establishment such as Bar 20, should be able to identify people that are drunk relatively easily. Therefore, in relation to the matters where s 108(5) of the Act may be relevant, I will rely on what I have said in order to determine whether, "reasonable steps to ensure that drunken or disorderly patrons were not on premises". (see s 108(5)(b)).
3. An analysis was made of incidents occurring in relation to licensed premises that were permitted to offer sexually explicit entertainment. Leading Senior Constable Bolton identified six premises in the area that were licensed and offered sexually explicit entertainment. She then, by the use of incident reports made by the police, concluded :

Using intelligence gathered from Victoria Police Licensed Premises Incident Reports (LPIR's), I completed a comparison of incidents, of the venues that provide sexually explicit entertainment in King Street, Melbourne, between 1st of June 2008 to 12th July, 2010. The six venues being,

• Showgirls Bar 20
• Spearmint Rhino Gentleman's Club
• Kilkenny Inn Hotel (Goldfingers)
• The Men's Gallery
• Teeze Lounge & Dallas Showgirls
• Centrefold Lounge

• Bar 20 was the only venue with a glassing incident
• 15 of the 36 (42%) violence related incidents relate to Bar 20
• 11 of the 23 (48%) assault related incidents relate to Bar 20
• 33 of the 67 (49%) amenity related incidents relate to Bar 20
• 11 of the 30 (36%) compliance issues related to Teeze Lounge & Dallas Show Girls

1. Mr Ribbands submitted that Senior Constable Bolton's analysis was flawed. First, because the source of information was the incident reports made by the police and some of those incident reports may be for very minor incidents, or there may have been some double-counting because one incident may have involved more than one matter, eg the one incident of assault and amenity may have created two incident report forms. Secondly, Mr Ribbands submitted that comparing the incidents at Bar 20 where the other premises did not take into account the number of people that actually used each premises. He stated that Bar 20 had up to 3000 patrons per week where the other venues had considerably less. Mr Ribbands' support for this proposition came from the evidence of Mr Nicholson, one of the venue's managers, who stated that he had visited the other venues and they were not as busy as Bar 20. He also relied on the evidence of Mr Micovski who stated that the employees of Bar 20 had told him that Bar 20 was the busiest venue. For example, he stated that the security guards who worked at Bar 20 and the other venues had stated that Bar 20 was the busiest. Further, the girls involved in the Bar 20 entertainment said that they were able to obtain more jobs at Bar 20 than at the other places in King Street. Mr Ribbands also criticised the police for not obtaining numbers, which he said would have been readily available from the security person at the door of each venue, as to the amount of people in the particular venue at any one time.
2. It should also be noted that the maximum capacity of the venues varied -

Also there was evidence that Centrefold Lounge had a capacity of 1070. In my view, the Centrefold Lounge is not a relevant comparator as its trading hours are 7:00am to 11:00pm which are very different to the trading hours of Bar 20 which has a 24 hour licence but usually trades from about 8:00pm or 9:00pm until 7:00am on Friday night to Saturday morning and Saturday night to Sunday morning.

1. Further, Mr Ribbands relied on an estimate of 3000 people per week visiting Bar 20.
2. Thus, Mr Ribbands concluded that because more people were in Bar 20 than the other establishments, it is likely that more incidents would occur at Bar 20.
3. While I agree with Mr Ribbands that knowing the maximum capacity of an establishment does not necessarily collate to the amount of people that use such establishment, the figures supplied by Bar 20 and the anecdotal evidence of the busyness of the other establishments is also unsatisfactory. The figure of 3000 patrons per week visiting Bar 20 is at the high end of its scale and may only happen on very odd occasions. As far as the observations of Mr Nicholson are concerned, they were taken at odd occasions, when it was not clear how many patrons Bar 20 had at that time. Further, the fact that the dancing girls at Bar 20 had told Mr Micovski that they obtain more work at Bar 20 than the other establishments does not establish that Bar 20 is the busiest establishment. The highest at which that can be put was that those particular girls were servicing more customers at Bar 20 than the other establishments. This may be because more people at Bar 20 wanted to have private displays of dancing or that the system of private dancing at the other establishments may have been quite different.
4. In relation to the view of the crowd controllers, it is very difficult to place a lot of credence on their views. Crowd controllers working at other premises would necessarily have been at those premises at different times to when they would have been at Bar 20. Thus their comparison is not valid. Given those circumstances, I am unable to form any opinion as to whether Bar 20 is busier or not than the other establishments offering sexually explicit entertainment. What I can draw from Senior Constable Bolton's analysis is that Bar 20 does have considerably more incidents than other establishments. In any event, I am not satisfied that even if Bar 20 is a busier venue than the other sexually explicit entertainment venues that the incidents of which the police made complaint are any less serious and are obviously more numerous. While Mr Devlin acknowledged and I accept that a venue such as Bar 20 is going to have some incidents, the real question is whether those incidents are of a number and nature that better management could have been avoided or they have an adverse effect on the amenity. I accept what was said by the District Court of New South Wales in William v R (unreported 15 October 2010) that -

It does not matter what steps are taken; there will never be a total avoidance of intoxication involving the service of alcohol, whether it be at a hotel, licensed club or a venue such as this (a racecourse where there were approximately 5000 people).

1. Mr Ribbands also said that during the period of 2008 to 2010 inclusive when the incidents in this proceeding arose, the police were conducting blitzes on premises such as Bar 20 to stop alcohol associated violence and misbehaviour . As a result, there were a lot more visits made by police to establishments such as Bar 20. He therefore concluded that the number of incidents were more than normal. This may be so but it does not excuse wrongful conduct by Bar 20 or its patrons. It only means more wrongful conduct was detected.

Responsibility of venue for actions of crowd controllers

1. A number of the particulars in this matter, to which I will refer to below, involve wrongful action, inaction and criminality by crowd controllers.
2. Mr Ribbands and Ms Pearson stated at paragraph 215 of their submissions -

.... We submit that the failings of the crowd controllers are not failings of the licensee with regard to the way that it has conducted the business or allowed the business to be conducted. The evidence does not suggest or allow for a finding that the licensee has turned a blind eye, but rather, when misconduct by the crowd controllers has been brought to management attention, sanctions have been imposed against crowd controllers ranging from suspension to termination.

1. It will be remembered that the licence requires the licensee to employ crowd controllers at the rate of two crowd controllers for the first 100 people in the premises and one crowd controller for every 100 people thereafter. In order to fulfil this obligation, the respondents have employed Pro-Tech Security. It is noted this is the condition of the current licence but I understand the licensing inspector imposed similar requirements pursuant to clause 2.4 of the previous licences.
2. Mr Ribbands and Ms Pearson drew a distinction between crowd controllers that are "employed" as opposed to those that are "retained". See s 139 and s 141 of the Private Security Act 2004.
3. At paragraphs 218 ff of the respondents' submissions, it was submitted that the respondents had fulfilled their obligations by employing Pro-Tech Security to supply security guards in the number prescribed in the licence. It was stated :

There is no defined means as to how those tasks are to be carried out. The occupation is defined by what you do, not how you do it. Thus, maintaining order could be achieved in a passive manner. A crowd controller could be employed to remove a person from the premises, but it is not an essential requirement. See the definition in Section 3. We submit that complaints against the crowd controller that have failed to act :

(a) bear no relevance to the holder of the liquor licence; and

(b) in most instances do not even detract from the holder of the crowd controller's licence.

The effect of the legislation is to prohibit people from carrying out certain tasks unless they are appropriately registered. Registration involves training and licensing which of itself incorporates a supervisory regime.

A person who is employed or retained principally to maintain order at any public place by doing all or any of the following :

(c) screening entry into; or

(d) monitoring or controlling behaviour in; or

(e) removing any person from; or

(f) otherwise maintaining order in -

any such place, unless that person is doing nothing more than securing or checking that person's allowed mission -

(g) have paid for admission; or

(h) have invitations or passes allowing for admission.

It is an offence to carry on an activity as a crowd controller unless you are the holder of a private security individual operator licence that authorises you to carry on that activity.

Crowd controllers are specifically licensed to perform a particular function and the only obligations that is cast upon the liquor licence holder is to engage licensed crowd controllers. By necessary extension, an unlicensed individual is prohibited from being employed principally for screening the entry of patrons etc. If the level of scrutiny by the unlicensed individual is too great he/she infringes section 7 of the Private Security Act 2004. In order to ensure compliance with LCRA (as per clause 3.3. of the licence) PPN (Planet Platinum) is required to employ the licensed crowd controllers. It remains up to the crowd controllers to perform their statutorily defined functions. Moreover, it is illogical to expect trained and licensed security operatives to be scrutinised by untrained and unlicensed individuals.

The concept of 'crowd controllers' is completely foreign to the provisions of the LCRA. The only obligation in relation to crowd controllers is derived from clause 2.5 to 2.6 of the liquor licence. In circumstances where the venue fulfils its obligation under the licence by ensuring the presence of crowd controllers in the appropriate ratio, we submit that the venue has discharged its obligations in relation to the provisions of its licence and is entitled to rely upon the professionalism and licensing applicable to the crowd controllers themselves.

1. Mr Ribbands also referred to Perkins v Redmond Co Pty Ltd [2007] NSWDC 147 at [141-143] for the proposition that the defendant in that case was not vicariously liable for any negligence on the part of its independent contractor as that was not a non-delegable duty.
2. It is clear that the protection offered to a person employing an independent contractor is very different in tort to when the employer has a statutory responsibility. Perkins case was a proceeding related to tortious liability.
3. Further, Mr Ribbands referred to s 7(c) of the Private Security Act which forbade, inter alia, the carrying on of an activity of a crowd controller unless the person is the holder of a private security operator's licence that authorises that person to carry out that activity. He also referred to the definition of "crowd controller" in s 3 of the Private Security Act, and therefore concluded that it was illegal for any person to carry out the activities referred to in the definition of crowd controller unless they were a licensed crowd controller.
4. Mr Devlin submitted that it is improper for the respondents to say that it and they are not responsible for the actions of the crowd controllers as they had employed the crowd controllers pursuant to an agreement with Pro-Tech Security. He said that the responsibility for the management of the establishment and its conduct is the responsibility of the licensee, its directors and managers. (see clause 4 of the licence in regard to the obligation of the licensee relating to the responsible service of alcohol).
5. Mr Devlin referred to s 17 of the Act and stated -

Under s 17 of the Act, it is a condition of every licence that authorises the supply of liquor outside ordinary trading hours, that the licensee

'does not cause or permit undue detriment to the amenity of the area to arise out of or in connection with the use of the premises to which the licence relates'.

1. He also stated that, "a similar amenity condition appears in the corporate respondent's licence in each of the relevant years from 2008-2011".
2. He also referred to s 4 of the Act wherein it was provided (s 4(1)(a)(iii)) that -

one of the objects of the Act is to ensure that as far as practicable, the supply of liquor contributes to, and does not detract from the amenity of community life. Since it is the licensee that is responsible for the supply of liquor, it follows that the licensee is also responsible for the amenity that results from the supply.

1. Mr Devlin then referred to conditions 2.4 and 2.5 of the licence where the licensee is required to employ the crowd controllers. However, the licensee must abide by the conditions on the licence. Mr Devlin then stated:

If the licensee is not responsible for its crowd controllers, then there would be no requirement for the licensee to employ them.

1. The Act bestows upon the licensee the responsibility for meeting its obligations that are both referred to in the Act and in its licence. This is particularly so in relation to a corporate licensee. In Burkes Liquor Laws, 108.65 at p 3593, it is stated :

A company is in no different position from an individual, although the conclusion to be drawn as to the authority may be different in the case of a company, which can only act through its employees or agents. In either case knowledge can only be imputed or attributed to the licensee where the knowledge is possessed by some person exercising authority; that is, in the case of a company, a person placed in such a position that he or she may properly be said to be authorised by the company to deal with the question of drunken persons who may be on the premises.

1. It would also appear that crowd controllers are the agents of the licensee. At p 3594 of Burkes Liquor Law, the learned author states -

The sections of the 1998 Act which impose upon a licensee duties connected with the control and management of the licensed premises should, where possible, be construed as making the licensee responsible for the acts of those to whom such control and management has been temporarily delegated. The imposition of a penalty on a person other than the licensee does not involve the exclusion of the licensee in such a case : Mulherin v Kingston; ex parte Kingston (1912) St R Qd 232. There is a clear distinction as to agency between the case of a licensed person and that of a person not licensed. In the former case, the employee or other person who has sold intoxicating liquors in the licensed house, is presumed to have sold for the benefit of the licensee of that house, and is, therefore properly regarded (until the contrary has been shown) to have acted as the agent of that licensee. Applying this to the case of a salesperson, the person selling is taken, for the purpose of the sale, to be an agent for the shopkeeper. If this were not so, business could not be conducted.

1. It is apparent from looking through the Act that Parliament did not intend that the licensee or the management of a licensed premises would be able to contract out of or abrogate their responsibilities pursuant to the Act or the licence :

(a) section 6 provides instances where the Act does not apply and it will be noted that that section makes no reference to crowd controllers;

(b) section 17 allows a licensee to be given permission to operate for extended hours on certain conditions, in particular that there is no undue detriment to the amenity of the area. Again, there is no mention of crowd controllers or abrogation of responsibility;

(c) section 18 makes it clear that Parliament intended that the director keep a close eye on who is managing licensee companies. It provides that - "a person must not be appointed as or otherwise become a director of a body corporate without the approval of the director";

(d) section 53 provides for liability of joint and incorporated licensees and provides liability on directors and other persons that may be involved in the licensed premises, but clearly not the crowd controller, and section 54 specifically provides for a nominee to be appointed where the licensee is a body corporate. It also provides that the nominee must be approved and provides that if a person ceases to be a nominee, they must notify the Director of Liquor Licensing;

(e) section 80 provides for the persons who may apply to have their name put on a licence. Again, they are people that are in control either as an administrator or guardian or a legal personal representative. It does not allow for any persons such as crowd controllers to be in control of the premises. This section shows again that Parliament intended for the Director of Liquor Licensing to "keep a close eye" on those responsible for running licensed premises;

(f) section 86(b) creates liability for persons whose name is endorsed on the licence ;

(g) section 103 imposes a criminal penalty if the Director of Liquor Licensing is not notified of a change of director of a corporate licensee.

1. Thus, it can be seen that the Act and Parliament clearly intended that the licensee or nominee be responsible for the conduct of the licensed premises. By the fact that the Director of Liquor Licensing has got to be notified of change of directors or change of nominees and in other instances shows that the Parliament could not have intended that a security firm hired by the licensee should absolve the licensee or nominee from any liability.
2. Further, the evidence in this proceeding makes it clear that the licensee, nominee or manager gave instructions to crowd controllers and the crowd controllers accepted those instructions. Examples are :
   • Mr David Santini (a crowd controller) stated : "I would do what the manager says".
   • Mr Nigel Aquilina (a crowd controller) stated : "The manager would give instructions about how the venue is secured".
   • Mr Alexander Kopyev (a crowd controller) stated that he had "no difficulty in following Tristan's (Nicholson) (the manager) directions".
   • Mr Jihad Kattoub (crowd controller) indicated that he accepted instructions from the venue manager.
   • Tristan Nicholson stated : "The duty manager is effectively in charge of the premises" ... "I can ask anyone to leave" ... "I can use crowd controllers" ...
   • Dragan Micovski (the nominee and manager) stated that he assisted in clearing the entrance of the venue and directing crowd controllers to various positions within the vicinity of the venue. This is in relation to a fracas which broke out outside the Bar 20 premises where Micovski became involved (see particular 14 below).
3. For all these reasons, I reject the submissions by Mr Ribbands and Ms Pearson and accept the submissions of Mr Devlin in relation to the use of crowd controllers.
4. It seems clear to me, after considering the matters that I have referred to above, that the licensee nominee, manager and directors bear the responsibility for the management of the licensed establishment. The Act does not intend that any other persons, to whom I have referred, hide behind the actions of crowd controllers. If the crowd controller does the wrong thing insofar as the licensed premises is concerned, that is the responsibility of the licensee, nominee and directors.
5. The Private Security Act does not, in my view, provide any comfort for the liability that would befall the licensee, nominee or directors of the licensee. The Private Security Act sets out a scheme for the registration of crowd controllers and others. It does not impinge or remove any responsibility from the management of the licensee company. As Mr Devlin pointed out, when dealing with the obligation of the management :

This obligation is further buttressed in the case of a premises licensed under the Act. The occupier has a right to refuse permission or eject persons (using reasonable force to remove a trespasser). That right does not end if an occupier on occasions employs/retains a crowd controller.

1. Therefore, I take the view that the wrongful actions of a crowd controller, at the Bar 20 venue, are the responsibility of the licensee, its directors and nominee. The statute does not provide for an abrogation of responsibility.

1. It must be remembered that harm minimisation in relation to the sale of liquor is pivotal to the legislation. Section 4 makes it clear that Parliament was particularly concerned with minimising harm arising from the misuse or abuse of alcohol, community expectations, responsible development of liquor and licensed hospitality industries and the regulation of licensed premises that provide sexually explicit entertainment.
2. Mr Ribbands submitted that there is at this point an extensive congregation of late night licensed venues in King Street and that any action that may be taken in relation to these inquiries against the respondents will have no effect on the amenity of the King Street precinct. He stated that the King Street precinct commenced at the Casino south of the Yarra and moved north up to and including Lonsdale Street north of the Yarra. He said that Bar 20 was almost in the middle of the precinct. He said that the destination of Bar 20 patrons, is not Bar 20 in itself but the King Street precinct. He therefore concluded that any cancellation or suspension of the Bar 20 licence would have no effect on the amenity of King Street as patrons would merely transfer themselves to one of the other venues.
3. The evidence that King Street rather than Bar 20 being the destination of the patrons appears to be scant at best. Few of the incidents that I will deal with in the particulars gave any indication that the patrons considered King Street rather than Bar 20 the destination. There were examples where patrons had been to other establishments and moved on to Bar 20 or where other establishments had refused permission for patrons to enter that establishment and they had moved on to Bar 20 and vice versa. However, this does not mean that the patrons of Bar 20 would automatically attend the King Street precinct and use another venue if Bar 20 was shut down. Clearly, there are people who want to go to Bar 20 and if that was not operating, they would or would probably not attend King Street at all.
4. In any event, I take the view that patrons having a harmful effect on the amenity should be looked at on a place by place basis. That is, whether the certain acts complained of, which if proved, relate to Bar 20 or to some other establishments. If those acts are acts relating to amenity, and they arose because of the existence of Bar 20, it necessarily follows that it is Bar 20 that is having the harmful effect on the amenity and will continue to have a harmful effect on the amenity so long as Bar 20 maintains current operation and management procedure. It is not to the point to say that if those patrons were in some other venue, they would have a harmful effect on the amenity in and surrounding that venue. The other venues may have better management. The question to be asked is whether Bar 20 and its workings are having a harmful effect on the amenity. If the answer to that question is yes, the next question to be asked is whether the continuation of the Bar 20 licence would detract from or be detrimental to the amenity of the area? If the answer to that question is yes, the next question is what action should be taken by the Tribunal in an attempt to ameliorate that detraction or detrimental effect on the amenity.

1. The two applicants have relied on a large number of events between 2008 and 2010 inclusive to support their applications pursuant to s 95 and s 90. Many of the particulars relating to s 95 and s 90 are based upon the same evidence. I intend to deal with these particulars on a one by one basis except where the same evidence relates to the s 95 and the s 90 particular, in which case I will deal with them together.

1. Particular 1 relates to both s 95 and s 90 proceedings. The s 95 proceeding particular reads as follows :

(a) Patrons conducted themselves in a manner that detracted from and was detrimental to the amenity of the area in which the premises are located in that :

1. patrons behaved in an unruly and disorderly manner outside the premises
2. patrons engaged in fighting with crowd controllers outside the premises

(b) the premises was conducted in a manner that was detrimental to the amenity of the area in which the premises are located in that:

1. crowd controllers failed to exercise effective control over patron behaviour and instigated fighting outside the premises.

Particular 1 (s 90 inquiry) reads as follows :

(a) allow the business to be conducted in a manner that detracts from and is detrimental to the amenity of the area in which the premises is situated; and

(b) fail to exercise sufficient management and control over the licensed premises to ensure that the provisions of the Liquor Control Reform Act 1998 were complied with.

1. The applicants' summary of evidence in support states :

At approximately 4.20 a.m. on Sunday the 1st of June 2008, three drunken male patrons were refused entry into the premises by crowd controllers. The patrons tried several times to enter and became aggressive and insulting towards crowd controllers due to the continuous rejection.

Crowd controllers followed the patrons a short distance from the entrance where they became involved in a physical confrontation in a blind spot area not covered by video surveillance. Still footage from media crews captured crowd controller Mohamed Attal assaulting and kicking one of the patrons. The patron sustained cuts to the head and bleeding on his forehead. Mohammed Attal's employment was subsequently terminated.

The two other crowd controllers, not mentioned in the summary of evidence, involved in this incident were Ashley Smith and Michael Cantori. It is noted that Ashley Smith is referred to in two other particulars that I will deal with in due course. It is apparent that Ashley Smith gave support to Mr Attal.

1. Subsequent to this incident occurring, Micovski contacted Pro-Tech Security and told them that he did not want Attal working at the Bar 20 premises again and that Smith should be suspended for a period of time. I understand that the crowd controller Attal was prohibited from undertaking further duties at Bar 20 and that Ashley Smith was suspended for a period of three months.
2. Anybody walking on the footpath of King Street during the time this incident was occurring and in particular seeing Attal kicking a person who was lying on the ground would be absolutely appalled. In fact, it is not unlikely that people observing an incident such as this would be reluctant to walk down the King Street footpath again when the night entertainment venues were operating. Such persons may also feel unsafe. This incident clearly had a serious detrimental effect on the amenity of the area.
3. For the purposes of the s 95 proceeding, it is not to the point to say, as Mr Ribbands submitted, that "there is no culpability which can be attributed to Bar 20 by reason of the incident". The fact is that s 95 of the Act does not require fault on behalf of the licensee. This is an incident that clearly detracts from the amenity of the neighbourhood, and bearing in mind the other incidents relating to assault in the vicinity of Bar 20, it is likely that such violent unrelenting incidents would be likely to occur in the future. For the reasons I have stated above, I must reject Mr Ribbands' submission that it is the crowd controller and not the licensee or nominee that is responsible for such matters.
4. In relation to the s 90 proceeding, I need to be satisfied on the balance of probabilities using the Briginshaw standard of exactness of proof referred to in Briginshaw v Briginshaw (1938) 60 336, that pursuant to s 90(1)(j) the licensee has allowed the premises to be conducted in a manner that detracts from or is detrimental to the amenity of the area. (When considering the statement of proof required in relation to other particulars in these proceedings, I will apply this standard).
5. It is apparent that in order to stop crowd controllers operating in a rogue fashion, it is necessary to have adequate, proper, good management and supervision. Failing to properly supervise is also a breach of clause 4 of the licence. The way these premises are managed at the time that this incident occurred and in general (see commentary and findings in relation to other particulars), the management does not fulfil the above requirements. One duty manager is not enough to supervise these premises. This incident could likely have been prevented if there was a person with managerial status at the entrance to the premises, supervising the crowd controllers. Thus, I find that insofar as this incident is concerned, the premises have been conducted by the licensee through its agents in a way that contravenes s 90(1)(j) of the Act.
6. Therefore, I find that the subject of these particulars are a breach of s 95 of the Act and in breach of s 90 of the Act.

1. The evidence in relation to Particular 2 only relates to the s 95 proceeding. Particular 2 reads as follows :

(a) Patrons conducted themselves in a manner that detracted from and was detrimental to the amenity of the area in which the premises are located in that :

1. patrons behaved in an unruly and disorderly manner inside the premises

ii. patrons engaged in fighting outside the premises

(b) the premises was conducted in a manner that was detrimental to the amenity of the area in which the premises are located in that:

1. crowd controllers failed to exercise effective control over patron behaviour outside the premises

1. The applicants' summary of evidence in support states :

At approximately 10.40pm on Saturday 12 July 2008, police attended outside the premises responding to a call of patrons fighting inside the venue.

Police observed three males fighting in the area near the premises in flinders Lane. Police arrested a drunken male patron who was fighting with his father. The patron was arrested for being drunk in a public place.

The three patrons had earlier been ejected from the premises by crowd controllers for fighting inside. The patrons continued fighting directly outside the premises in full view of crowd controllers who recorded the incident on a mobile phone instead of exercising control and stopping the violence.

1. The two people involved in the fight at or near the corner of King Street and Flinders Lane were Phil Irvine and Joel Irvine; Phil being the father of Joel. Phil Irvine's other son was trying to break up the fight. Constable Etherington in her witness stated :

Observations at the time showed that both Phil and Joel were heavily intoxicated, both smelt of intoxicating liquor, had blood shot eyes and slurred speech. Joel was very unsteady on his feet and fell over on many occasions having to be helped to his feet each time, he was very abusive and violent even with the police present. Joel had to be restrained and was subsequently lodged for drunk in a public place.

There is no evidence which could lead to any conclusion that the staff of Bar 20 condoned otherwise acquiesced in these individuals being intoxicated on the premises.

1. I find, on the balance of probabilities, that Joel and Phil Irvine were drunk on the premises of Bar 20. The factors referred to by Constable Etherington, clearly lead to the conclusion that Joel Irvine was intoxicated to the point of being drunk. Further, it is clear that Joel Irvine came from the Bar 20 premises where he was ejected. Given those circumstances, it is proper to infer that he was drunk on the premises of Bar 20. Further, as he was fighting with his father and needed to be ejected, it necessarily follows, he was also disorderly. Given those facts, I am able to infer that there was a breach by the licensee of s 108(4) and there is no evidence to suggest that any of the defences available in s 108(5) are available. This is so even though Micovski in his witness statement has commented on the circumstances of Particular 2. In any event, s 95 of the Act does not require fault. It only requires a detrimental breach of amenity that is likely to continue.
2. Given these matters, it necessarily follows that the conduct of both Phil and Joel Irvine detracted from the amenity both inside and outside the premises of Bar 20 within the meaning of s 95. It thus follows that the existence of Bar 20 caused a detrimental effect on the area.

1. Particular 3 solely relates to the section 95 proceeding. The particular reads as follows :

That on the 6th of September 2008 patrons conducted themselves in a manner that detracted from and was detrimental to the amenity of the area in which the premises are located in that :

1. a patron behaved in an unruly and disorderly manner inside the premises
2. a patron behaved in an unruly and disorderly manner outside the premises

iii. a patron punched another patron outside the premises.

1. The applicant's summary of evidence in support states :

At approximately 12.48 a.m. on Saturday the 6th of September 2008, a male patron was ejected from the premises by crowd controllers. The patron behaved in an unruly manner whilst being escorted from the premises. Once outside the premises he continued remonstrating with crowd controllers in full view of the public.

Another male patron exiting the premises has approached and punched the patron in front of crowd controllers, causing a minor injury and bleeding to the male patron.

1. It is noted that Constable Oakley, who attended the scene of the Particular 3 incident, noted that the victim who was ejected from the premises was belligerent and intoxicated.
2. Mr Ribbands submitted that in cross-examination Constable Oakley agreed that his suggestion that the assessment made of the victim being "belligerent and intoxicated" might equally mean "groggy and cranky" because of the punch to the head that he had suffered. Mr Ribbands therefore concluded that there was insufficient evidence for me to find that the victim was intoxicated while in the premises of Bar 20. The difficulty with the submission made by Mr Ribbands is that the security guard on duty at the time (Mr Kenny) informed Constable Oakley that the victim was particularly aggressive while being ejected. It would seem difficult to understand why he would be so aggressive unless he was intoxicated. Given these facts, on the balance of probabilities, it is in the Briginshaw standard. I infer that the victim was intoxicated both on and off the premises.
3. Further, the incident in the street of the victim being assaulted directly related to the premises. Soon after the victim had been ejected, another man leaving the premises assaulted him. Therefore, the incident is directly related to the premises.
4. As I have previously stated, fighting inside and outside the premises has a serious detrimental effect on the amenity of the area.
5. Even if Mr Ribbands is correct in his submission that I should not find that the victim was intoxicated, it makes little difference because this is a particular of the s 95 proceeding. And whether or not he was intoxicated, the whole incident was connected to the Bar 20 venue and clearly had a detrimental effect on the area and if this type of behaviour is allowed to continue, it will continue to have that detrimental effect. Thus, I am satisfied that Particular 3 has been made out.

Particular 4 of s 95 proceeding and Particular 2 of s 90 proceeding

1. Particular 4 of the s 95 proceeding and Particular 2 of the s 90 proceeding are supported by the same facts and evidence.
2. Particular 4 reads as follows :

(b) The premises was conducted in a manner that was detrimental to the amenity of the area in which the premises are located in that crowd controllers assaulted and caused injury to a patron.

That the licensee on the 7th of September 2008 did :

(a) allow the business to be conducted in a manner that detracts from and is detrimental to the amenity of the area in which the premises is situated; and

(b) fail to exercise sufficient management and control over the licensed premises to ensure that the provisions of the Liquor Control Reform Act 1998 were complied with.

1. The circumstances surrounding Particular 4 (s 95) and Particular 2 (s 90) are that Michael Murphy was a guest at a buck's night which was being held in part in Bar 20. It is clear from the evidence of Mr Murphy, which I accept in its entirety, that he had had only a small amount of alcohol to drink that evening and was not drunk or affected by alcohol. After arriving at Bar 20 at 1:00am on 7 September 2008, the guests from the buck's party paid for the groom to be entertained in a private room on the first floor. It will be remembered that condition 3.6 in the licence provided that sexually explicit entertainment was to be visible from the public areas.
2. While the groom was being entertained by a dancer in a private room, Mr Murphy said that while he remained outside, he was talking and occasionally looking in through the large window to the private room. Then he states :

The next thing I knew I was approached by one of the security members. He came up to the buck's' party in general and said to us all 'Fuck off out of here you pervs'. I was shocked at this comment because it wasn't like we were looking through cracks. It was easy to see what was going on through the window and through the door which also consisted of two large glass panes.

This security member then pushed Cameron JOYCE, who was one of our buck's' party. He pushed him to the chest with flat hand indicating to move out of the way of the window. I turned and said to this security member, 'We are just here waiting for our buck who is in there (pointing to the room)'.

I said, 'I am not trying to be smart we are just waiting for our mate'.

At this point another security member came along and asked what was going on. ....

The one that I was talking to initially then said to his work colleague, 'This little smart arse needs to go outside'.

I said, 'I am not being a smart arse and I haven't done anything wrong. I am waiting for a mate in there. Why do I need to go outside?'

(It was at that point that Mr Murphy was taken by two security guards holding one arm each down the stairs and ejected from the venue.)

Once we were outside security let go of my arms. It felt like upon releasing their grip they threw me towards the road where there was a parked car. I stumbled and as I stood up the bald guy came at me again at which point I fended him off again with my left hand. This is when the tall security member again grabbed my left arm and took me to a tree which is located a few metres from the venue front door. The tall guy then held me against the tree with force and I was unable to move. The bald guy then approached me and punched me hard to the nose a couple of times. These punches broke my noise and caused it to bleed uncontrollably. I was in a considerable amount of pain. I then felt my nose and it was pushed to one side. I feared for the worse because my nose had been reconstructed a few years earlier.

The tall guy then let go of me and pushed me towards the corner of the street away from the venue at which point I called police who arrived 20 to 25 minutes later. Police photographed my injuries at the scene and I attended the Sunshine Hospital later that morning.

As a result of my injuries I took four days off work. I further suffered pain to my left wrist from the way I was being restrained and I sustained minor swelling to the right side of my forehead as a result of the punches thrown by security before I was ejected from the venue.

1. It turns out that one of the crowd controllers that ejected and assaulted Mr Murphy was the same Ashley Smith that was involved in Particular 1.
2. The Murphy incident demonstrates disgraceful conduct on the part of the management of the venue. In a venue that has three floors, like the present, there should be at least one manager with authority observing the goings on on each floor at all times. It is not to the point to say that the management is complying with the conditions of the licence by employing crowd controllers. That is a minimum standard that is set. The crowd controllers are not familiar with the intricacies of the licence or the law. Mr Murphy was in the premises, had paid for his admission and was doing something he was perfectly entitled to do. That is, look at his friend in the private room with the dancer. He should not be assaulted on the whim of a crowd controller/controllers simply because they were either upset with him or because they had a wrong belief in what was permissible. That is, it is unclear whether the crowd controllers knew or otherwise whether Mr Murphy was entitled to watch the dance in the private room. It is the job of the management of the venue to ensure that patrons are kept safe. In this particular instance, the management failed badly in that regard. The situation is made even worse when one considers that Mr Murphy did absolutely nothing wrong. While Mr Micovski was the manager on duty at the time of this incident, he did not know the assault was taking place. In my view, this is a serious indictment upon him. Someone in a position of not less than an assistant manager should have known because they should have been on the floor at that time. It is not reasonable to think that security guards are able to do their job properly without some supervision from management in an establishment like Bar 20. Mr Ribbands stated in relation to this incident -

It is unrealistic to expect management, who are untrained and unlicensed, to exercise some element of control over security other than such as directing their attention to an incident that may have been unobserved by security. It is not for management to direct security as to how they should execute their responsibilities. By engaging properly licensed crowd controllers Bar 20 is entitled to rely on their skill, professionalism and statutory responsibility to carry out their functions. In our submission, the actions are Bar 20 are both appropriate and reasonable in all the circumstances of the case. It is not something in respect of which Bar 20 can be attributed any level of culpability.

I have already dealt with the issue of liability of the venue management in relation to relying on the crowd controllers. Just to recap, management has the responsibility for management of the venue and if something goes wrong, it is the management's responsibility : "The buck must stop at the management".

1. Upon reading Mr Micovski's explanation, it is clear, by his description of the incident, that he was at best "asleep at the wheel". At paragraphs 22-24 of his witness statement, he states as follows :

The Register, completed by Jason Kenny, records that a male patron was asked to leave the venue and I was informed that it was as a result of unacceptable behaviour and intoxication. The male patron refused to leave and crowd controllers, Jason Kenny and Ashley Smith, then assisted in his removal from the venue.

Whilst upstairs and in the process of the patron's removal, he attacked Ashley Smith by lunging at his throat and downstairs the patron attempted to punch Ashley Smith.

1. In making this statement, it appears to me that Mr Micovski was attempting to give a one-sided version of the Murphy incident which version had little similarity to what actually happened. Even after seeing the CCTV footage, Mr Micovski wrote : "It shows that the patron's removal was difficult and he was forcefully resisting his removal".
2. The only action which Mr Micovski took appears to be that he requested Ashley Smith's dismissal by Pro-Tech Security. It is somewhat surprising that he did not institute a different system to stop this type of event happening again.
3. I totally reject the submission of the respondents that "the actions of Bar 20 are both appropriate and reasonable in all the circumstances of the case".
4. Insofar as both proceedings are concerned, it is abundantly clear that both inside and outside the premises, the amenity of the area was vastly impaired by this happening. Other patrons in the upstairs part of the area, I have no doubt, would have been most uncomfortable, upset and felt unsafe by this incident. Those patrons include the friends of Mr Murphy that were attending the buck's' party and others.
5. Outside the premises, I also have no doubt that passers-by would have been horrified by what was taking place and the assault that was happening on Mr Murphy. The requirements of s 95 have been made out in regard to this particular.
6. In relation to the s 90 application, I have already stated that the conduct of management in this particular instance was disgraceful. I do not resile from that statement. There is no doubt that this incident comes within the ambit of s 90(1)(j) in that the premises have been allowed to be conducted in a manner that detracts from or is detrimental to the amenity of the area in which the licensed premises are situated.
7. Further, in my view, if the management had been doing their job properly in this situation, the incident may never have happened. The crowd controllers could have been told that Mr Murphy was doing exactly as he was entitled to do. I also note at this stage that Particular 12 relating to the s 90 proceeding, involving police covertly in the premises, it is alleged that a crowd controller stopped the policeman going downstairs because he was not with a girl who was going to perform a private dance. I will deal with that incident in turn.

Particular 5 relating to the s 95 proceeding and Particular 3 relating to the s 90 proceeding

That on the 14th of September 2008 a patron conducted himself in a manner that detracted from and was detrimental to the amenity of the area in which the premises are located in that he behaved in an unruly and disorderly manner inside and outside the premises.

1. Particular 3 in relation to the s 90 proceeding relates to the same evidence as Particular 5 in the s 95 proceeding. Particular 3 states :

(b) allow the business to be conducted in a manner that detracts from and is detrimental to the amenity of the area in which the premises is situated; and

(c) fail to exercise sufficient management and control over the licensed premises to ensure that the provisions of the Liquor Control Reform Act 1998 were complied with.

1. The applicants' summary of evidence in support states :

At approximately 2.41 a.m., on Sunday the 14th of September 2008 crowd controllers ejected a male patron from the premises for causing disruptive behaviour with other patrons.

Police approached the male patron after he was observed quarrelling with crowd controllers. The patron directed his abuse towards police and was observed to be in a state of drunkenness. He was removed from the area and arrested for being drunk in a public place.

1. Leading Senior Constable of Police, Shane Davies, made a statement which was tendered in evidence, and which Constable Ormiston deposed to the same being true and correct. Constable Ormiston was accompanying Leading Senior Constable Davies on 14 September 2008 (which was the night of the incident referred to in these particulars). At paragraph 27 of Davies' statement (as corroborated by Ormiston), it is stated :

ORMISTON said, 'Arrest him (Mr Stock), he's too drunk and he is only going to continue to cause problems'.

1. While it is conceivable that Stock consumed alcohol after he left the premises, in my view, on the balance of probabilities, I believe that is most unlikely. In all probability, Stock became drunk or was admitted drunk into the Bar 20 premises and that is why he was ejected. It is also noted that in paragraph 3 of the statement, Leading Senior Constable Davies refers to the fact that he saw Stock being ejected from the Bar 20 premises and he observed him as follows -

STOCK's eyes were bloodshot and he smelt strongly of intoxicating liquor.

1. With that description, I formed the view that Stock was drunk on the premises.
2. It is clear that the actions of Stock were unruly both in the premises and outside the premises. In my view, as I have previously stated, this is sufficient to have a detrimental effect on the amenity of the area. Thus, I form the view that the requirements of s 95 are made out in regard to this incident.
3. It seems clear that Stock was drunk and disorderly on the premises.
4. It is inconceivable that the management of the Bar 20 venue either did not know that Stock was drunk and disorderly on the premises or had taken reasonable steps to ensure that he was not drunk or disorderly, that is a defence (pursuant to s 108(5)) which must be made out by the licensee. Mr Micovski who was on duty that night has made a witness statement to which he deposed about the circumstances surrounding this incident. In making that statement, he made no mention as to when Stock was first observed to be drunk or disorderly. He only gave the version of what he saw on the CCTV camera.
5. If one looks at the reality of this situation, either Stock was drunk when he entered the premises or he became drunk when he was on the premises. If he was drunk when he entered the premises, then he should not have been allowed to enter. If he became drunk while he was on the premises, then he should not have been served alcohol to the point whereafter he was drunk. Given these circumstances, in my view, it seems clear, on the balance of probabilities, that Stock was certainly disorderly on the premises and either allowed to be on the premises when he was drunk and/or served alcohol when he was drunk. In this regard, Mr Micovski's statement does not appear to throw any light on the issue.
6. Given those circumstances, I find that in relation to the s 90 proceeding, this particular is made out.

Particular 6 in relation to the s 95 proceeding and Particular 4 in relation to the s 90 inquiry

(a) Patrons conducted themselves in a manner that detracted from and was detrimental to the amenity of the area in which the premises are located in that :

1. patrons behaved in an unruly and disorderly manner inside the premises

ii. patrons engaged in fighting inside the premises

iii.patrons behaved in an unruly and disorderly manner outside the premises

(b) The premises was conducted in a manner that was detrimental to the amenity of the area in which the premises are located in that:

1. crowd controllers failed to exercise effective control over patron behaviour outside the premises

That the licensee on the 27th of September 2008 did :

(a) permit drunken and disorderly persons to be on licensed premises contrary to s 108(4)(b) of the Liquor Control Reform act 1998; and

(b) allow the business to be conducted in a manner that detracts from and is detrimental to the amenity of the area in which the premises is situated; and

(c) fail to exercise sufficient management and control over the licensed premises to ensure that the provisions of the Liquor Control Reform Act 1998 were complied with.

1. The applicants' summary of evidence in support states :

At approximately 12.15 a.m. on Saturday the 27th of September 2008, police observed a drunken male loitering outside the premises. The drunken male was belligerent with crowd controllers and had earlier been ejected from the premises for causing a fight. The drunken male was arrested for being drunk in a public place and was identified as a patron of the premises.

Approximately 15 minutes later police attended the premises in response to a complaint of assault inside the 'smoker's room' of the premises. Police inspected the surveillance images and recognised the victim as a drunken male who had earlier been involved in a separate incident within the previous hour elsewhere in the CBD. Crowd controllers could offer no explanation as to why this drunken patron was allowed entry into the premises.

Police also intercepted recently departed patrons who were leaving the area and were implicated in the assault. One of the patrons was arrested for being drunk in a public place.

At approximately 11.59 p.m. police attended the premises and observed crowd controller Michael Mantzaris performing duty without wearing a suitable identification tag contrary to requirements specified in the Private Agents Act.

Police spoke to a group of patrons waiting to enter the premises. Police identified two males as argumentative and alcohol affected. Police signalled crowd controllers to decline entry to the two males. Mantzaris made a statement to the males suggesting that entry requirements may be relaxed once police left the area.

1. In relation to these matters, Mr Ribbands made the following submissions :

Sahib did not take any action with the crowd controller for his contravention of the regulations in failing to have the reference to 'security' on his identification tag. It is also relevant to note that notwithstanding only 210 patrons were there on the night, crowd controllers were still maintaining queues outside and restricting patron numbers. In the context of the s 90 application, we submit that this matter is trivial and of no concern.

Bagnato described another allegation involving an intoxicated person. He spoke to two males who had been evicted from Bar 20 for fighting. He had been advised of this fact by a crowd controller and subsequently determined that the victim of the assault was Snell - he is the same person who is subsequently arrested by Fraser. He apprehended the individuals and arrested one for being drunk. The other was not arrested.

Fraser said that he viewed security footage and observed a 'small brawl' between 3 or 4 people in the smoking room. One of them was identified as Snell who had been seen by the officer earlier that night at another location. Fraser asked the crowd controller why Snell was allowed into Bar 20. Apparently he received no reply from the crowd controller which was clarified as he had just stood there, shrugged his shoulders and said nothing.

Notwithstanding the lack of reply it is important to note that no criticism was made of the action of the crowd controller. One might think in circumstances where it was to be alleged that a drunk had been allowed in to the premises, that a reply would be sought. The issue was not pursued by Fraser. Conversely, it is reasonable to infer that Snell may not in fact have been intoxicated when he entered Bar 20 which would explain the actions of the crowd controllers in allowing him entry.

Michael confirms that the police have no issue with the actions of the crowd controllers. This is because nothing arose from his initial conversation with the crowd controller for him to come back and deal with either the crowd controller or the management of Bar 20. He also accepted that Manly, the person whom he arrested, could have skolled 5 shots at Bar 20 to cause him to be drunk.

The point being that the real issue is once again the question as to knowledge of any intoxicated person being actually on the premises. Whilst it could be said that a patron became intoxicated on the premises, we submit that the real question to consider is as to whether that situation was allowed to occur knowingly by Bar 20 or that Bar 20 otherwise turned a blind eye to the situation. The evidence, in our submission, shows that in all respects when it comes to dealing with intoxicated patrons Bar 20 has been vigilant although at times circumstances are such that person may become intoxicated before that fact is appreciated by staff. This falls fairly within the parameters of s 108(5) LCRA.

1. In relation to s 95 issues, the fact that there was an assault happening in the smoker's room of the premises and the fact that when Snell was evicted and he was loitering around the street outside the premises, in my view, is more than sufficient to detract from the amenity of the area. That is the area both inside and outside the premises.
2. Mr Ribbands in his submission stated that Mr Snell could have become drunk by skolling "5 shots at Bar 20 to cause him to be drunk". This is complete supposition on the part of Mr Ribbands even though such a proposition was agreed by the police to be possible. In any event, it is the management of Bar 20 that have control of those premises and it is their duty to observe if someone is skolling 5 shots of an alcoholic drink. If it was not observed then, in my view, there was insufficient managerial staff present on the premises. It seems clear to me that the management had little or no idea what was happening in the smoking room prior to the assault occurring and it may have been occurring for some time before management even became aware of the matter. Given these circumstances, I have formed the view that pursuant to s 108(4)(b) the management had permitted Mr Snell to be both drunk and disorderly on the premises. Further, the business was conducted in a manner that allowed Mr Snell to detract from or be detrimental to the amenity of the area where the licensed premises was situated. Thus, I find that insofar that this allegation concerns the s 90 proceeding, it is made out.

(a) Patrons conducted themselves in a manner that detracted from and was detrimental to the amenity of the area in which the premises are located in that :

1. patrons behaved in an unruly and disorderly manner inside the premises

ii. patrons engaged in fighting inside the premises

1. The applicants' summary of evidence in support states :

At approximately 11.20 p.m. on Saturday the 15th of November 2008 police observed a drunken male patron stumbling and attempting to walk up the stairs. The patron followed police outside the premises and was unable to stand up on his own without support.

Director and nominee Dragan Micovski agreed that the patron was drunk. He provided the following explanation : 'No the boys haven't obviously picked him up'.

1. The applicants' summary of evidence correctly summarises the evidence of Acting Sergeant of Police - Jonathan Parish - who made a statement and gave evidence at the hearing.
2. It was also noted that in Acting Sergeant Parish's statement, the person who urinated on the back of the other person admitted to being intoxicated and did not want to take any further action against that other person.
3. Mr Ribbands submitted that there was insufficient evidence for me to find that the patron who did the urinating was in fact drunk. I disagree with that submission on the basis that he admitted to Acting Sergeant Parish that he in fact was drunk. That evidence has not been contradicted.
4. Further, it is clear that urinating on another person is unruly and disorderly behaviour inside the premises as is smashing a pot glass on the head of another person. Further, it is clear on the evidence that there was fighting on the premises.
5. Mr Ribbands also submitted that because the actions happened on the premises rather than outside the premises that it did not affect the amenity. However, I have already found that incidents on the premises do affect the amenity and this falls into that category. Thus, Particular 7 of the s 95 proceeding is made out.

That the licensee on the 31st of October 2008 did :

(a) supply the liquor other than in accordance with the liquor licence applicable to the premises, contrary to s 108(10(a)(i) of the Liquor Control Reform Act 1998; and

(b) permit the consumption of liquor otherwise than in accordance with the liquor licence contrary to s 108(1)(a)(iii) of the Liquor Control Reform Act 1998; and

(c) fail to display on the licensed premises the notices required to be on display pursuant to s 102(1) of the Liquor Control Reform Act 1998; and

(d) fail to exercise sufficient management and control over the licensed premises to ensure that the provision of the Liquor Control Reform Act 1998 were complied with.

1. The applicants' summary of evidence in support states :

At approximately 4.15 p.m. on Friday the 31st of October 2008, police attended the premises and observed that current s 102 notices were not on display.

An old and superseded 'No Proof No Purchase' s 102 signs were displayed on the ground floor and first floor of the premises in breach of the Act. The notices required updating to inform patrons of the regulatory increases and to show a $7,000 maximum penalty was applicable for breaches.

Police also inspected that the 'private entertainment dance rooms' located on the premises. Police, from a public area, were unable to view the entertainment which was being provided to a patron in one of the 'private rooms'. Liquor was being supplied in breach of the following condition :

SPECIAL CONDITIONS TO APPLY WHEN SEXUALLY EXPLICIT ENTERTAINMENT IS BEING PROVIDED

3.6 There shall be no sexually explicit entertainment provided in areas that are not visible from the public areas of that part of the licensed premises used for the provision of sexually explicit entertainment.

Manager Sarah Mylrea told police she was not familiar with the 'house rules' conditions on the licence and would inform director and nominee Dragan Micovski.

1. The summary of evidence fairly represents the evidence of Sergeant Frank Holzer. He gave evidence in relation to this Particular.
2. Insofar as the complaint that Sergeant Holzer could not see inside one particular private room where dancing was taking place, his own evidence suggests that if he were to walk down a corridor and then turn right through a doorway, he was able to view the dancing. This would suggest to me that the respondent was not in breach of the licensing condition in relation to private dancing on this occasion.
3. In relation to the question of signs, Mr Ribbands has admitted that not having the correct signs was a minor and technical infringement and I agree with this categorisation. However, there is technically a breach in relation to this particular.

Particular 8 in relation to the s 95 proceeding and Particular 7 in relation to the s 90 proceeding

(a) A patrons conducted himself in a manner that detracted from and was detrimental to the amenity of the area in which the premises are located in that the patron was in a drunken state whilst inside the premises

(b) The premises was conducted in a manner that was detrimental to the amenity of the area in which the premises are located in that a drunken patron was found on the premises.

That the licensee on the 15th of November 2008 did :

(a) permit drunken and disorderly persons to be on licensed premises contrary to s 108(4)(b) of the Liquor Control Reform Act 1998; and

(c) allow the business to be conducted in a manner that detracts from and is detrimental to the amenity of the area in which the premises is situated; and

(c) fail to exercise sufficient management and control over the licensed premises to ensure that the provisions of the Liquor Control Reform Act 1998 were complied with.

1. The applicants' summary of evidence in support states :

At approximately 11.20p.m. on Saturday the 15th of November 2008 police observed a drunken male patron stumbling and attempting to walk up the stairs. The patron followed police outside the premises and was unable to stand up on his own without support.

Director and nominee Dragan Micovski agreed that the patron was drunk. He provided the following explanation: 'No the boys haven't obviously picked him up'.

1. This is a correct summary of the evidence and it is clear on the evidence that there was a drunken male inside the premises.
2. Mr Ribbands submitted that this incident was caused by the failure of crowd controllers "to properly screen patrons before entry into the premises and it is not something for which culpability can be attributed to Bar 20".
3. For the reasons I have given above, I do not believe that the dichotomy that Mr Ribbands suggests existed between crowd controllers and the management of Bar 20. In my view, the management is responsible for the management of crowd controllers and particularly admitting a drunk patron onto the premises. Further, it would not have been very difficult for the management to have picked up the crowd controller on the monitor inside the premises or for an assistant manger to stand with the crowd controller at the doorway to the premises. However, Mr Micovski, who was the manager on the premises of that night, failed to pick up the drunken patron and in fact made a statement : "Boys haven't obviously picked him up".
4. Mr Ribbands also relied on the defence in s 108(5) of the Act. In my view, Mr Micovski failed to take reasonable steps to ensure that the drunk was not on the premises. As I have previously stated, it is the management's obligation to know what is going on within the premises. In this particular instance, the management failed in relation to that obligation.
5. Therefore, I find the particulars in both proceedings have been made out as both a breach of s 90 and s 95 of the Act.

Particular 9 of the s 95 proceeding and Particular 8 of the s 90 proceeding

That on the 30th of November 2008 the premises was conducted in a manner that was detrimental to the amenity of the area in which the premises are located in that :

(a) An off duty crowd controller engaged in behaviour likely to result in violence.

(b) Crowd controllers failed to exercise effective control over patron behaviour outside the premises.

(a) allow the business to be conducted in a manner that detracts from and is detrimental to the amenity of the area in which the premises is situated; and

(b) fail to exercise sufficient management and control over the licensed premises to ensure that the provisions of the Liquor Control Reform Act 1998 were complied with.

1. The applicants' summary of evidence in support states :

At approximately 4.15 a.m. on Sunday the 30th of November 2008, police observed a male a short distance from the premises, running away from off-duty crowd controller Ashley Smith who was yelling 'come here and I'll sort you out'.

A crowd controller observed police approaching and warned Smith that police members were present. The crowd controller yelled 'Ash, cops. Leave it and go inside'. The crowd controller allowed Smith to re-enter the premises.

Smith told police that he was not working at the time and that he decided to take action against a male who threatened his colleagues.

Nominee and director Dragan Micovski told police that Smith was not an employee and that crowd controllers should not have assisted Smith who had instigated a fight outside the premises.

1. It will be remembered that the Ashley Smith referred to in this proceeding, is the same Ashley Smith referred to in Particular 1 of the s 95 proceeding and a further particular wherein Mr Smith's employer was requested not to use Mr Smith at the premises since the incident referred to in Particular 4 of 7 September 2008.
2. It is clear that Mr Smith was helping the crowd controllers at the front door and in fact the crowd controllers attempted to help Mr Smith evade the notice of police by yelling out to him, "Ash, cops. Leave it and go inside".
3. Again, Mr Ribbands suggested that failings of a crowd controller should not be bestowed upon the management. For the reasons already given, I do not agree with this submission. Mr Ribbands also suggested that the crowd controller "let the side down". This, in itself, suggests that the crowd controllers and the management were on the same side and it is the management's duty to supervise the crowd controllers, such supervision was sadly lacking on this occasion.
4. Clearly, having people fighting in the street at or near the vicinity of Bar 20, especially where one of them, such as Mr Smith, was clearly involved in some type of relationship with the crowd controllers on duty falls back on the management. Further, the fighting in the street is and does affect the amenity of the area and, in my view, it is incumbent upon the management to have control over these areas and know what is going on. That might even mean having someone at the CCTV screens in real time so that there may be some control, or a employee with managerial status being stationed at the entrance to supervise goings on.
5. Thus I find that Particular 9 in relation to the s 95 proceeding and Particular 8 in relation to the s 90 proceeding have been made out.

Particular 9 in relation to the s 90 proceeding

That the licensee on the 19th of December 2008 did :

(a) fail to ensure that a crowd controller properly entered in the register the information required to be entered under section 142 contrary to s 139(2) of the Private Security Act 2004; and

(b) fail to exercise sufficient management and control over the licensed premises to ensure that the provisions of the Liquor Control Reform Act 1998 were complied with.

1. The applicants' summary of evidence in support states :

At approximately 11.46p.m. on Friday the 19th of December 2008, police attended the premises and observed that a crowd controller had failed to sign the crowd controller's register as required by the Private Security Act 2004.

Infringement notice 339615356 was issued to crowd controller Elios Anabtawi for failing to enter details in the register. Director Dragan Micovski was spoken to regarding this issued and stated 'No, I didn't realise'.

1. It is to be noted that even though an infringement notice was given to the crowd controller for his failure to comply with the obligations to enter the information on the register, no action was taken against the licensee. However, Mr Ribbands acknowledged that there was a breach of the Private Security Act by Bar 20 in that it failed to ensure the crowd controller had entered the information that is required by s 139(2) of the Private Security Act.
2. I agree with Mr Ribbands that this failure is a "minor compliance issue which, of itself, has no adverse inference on Bar 20". However, it nonetheless is the obligation of the management to ensure that the register is properly filled out.

Particular 10 of s 95 proceeding

That on the 27th of December 2008, patrons conducted themselves in a manner that detracted from and was detrimental to the amenity of the area in which the premises are located in that patrons engaged in fighting inside the premises.

1. The applicants' summary of evidence in support states :

At approximately 2.30a.m. on Sunday the 27th of December 2008, police attended the premises in response to a report of fighting.

The fighting began when a patron knocked over a table which led to a physical confrontation with another patron and a crowd controller. Two patrons returned to the premises and became involved in the fight. Crowd controllers ejected the three patrons from the premises.

1. Mr Ribbands suggested that because this incident occurred within the premises, it could not constitute a detriment on the amenity of the area. I have already dealt with this point in that the detriment inside the premises is a detriment to the area and clearly there was fighting inside the premises. In any event, as the windows of the smoking room were opened to King Street, such fighting could be observed by any person who may be walking along King Street.
2. Mr Ribbands also commented on the fact that Constable King admitted in relation to this particular incident, the crowd controllers had not done anything wrong. That may be so. However, in relation to the s 95 proceeding, it is not relevant to the proceeding as to whether there has been wrongful acts by the crowd controllers and/or management. What is relevant is whether the amenity of the area is affected. In this particular instance, it was so affected. Thus, I find Particular 10 of the s 95 proceeding is made out.

Particular 11 in relation to s 95 proceeding and Particular 10 of the s 90 proceeding

(a) Patrons conducted themselves in a manner that detracted from and was detrimental to the amenity of the area in which the premises are located in that :

1. the patrons were in a drunken state whilst inside the premises
2. patrons behaved in an unruly and disorderly manner outside the premises

(b) the premises was conducted in a manner that was detrimental to the amenity of the area in which the premises are located in that:

1. drunken persons were permitted on the premises
2. crowd controllers failed to exercise effective management and control over patrons.

That the licensee on the 31st of January 2009 did :

(a) permit drunken and disorderly patrons to be on licensed premises contrary to s 108(4)(b) of the Liquor Control Reform Act 1998; and

(c) allow the business to be conducted in a manner that detracts from and is detrimental to the amenity of the area in which the premises is situated; and

(d) fail to exercise sufficient management and control over the licensed premises to ensure that the provisions of the Liquor Control Reform Act 1998 were complied with.

1. The applicants' summary of evidence in support states :

At approximately 11.55p.m. on Saturday the 31st of January 2009, police attended the premises and observed a queue of male patrons waiting to enter the venue. The majority of the patrons had originated from party buses arriving outside the premises.

Police arrested a drunken patron after observing that the patron had just been allowed entry by crowd controllers despite being in a drunken state. A second drunken male patron followed police inside the premises and was also arrested for being drunk in a public place.

Police conducted an inspection of the premises in company with director and nominee Dragan Micovski and observed a drunken male patron with dishevelled clothing, being assisted downstairs.

Police arrested a number of drunken patrons inside and outside the premises who were behaving in an aggressive and unruly manner for being drunk in a public place.

1. These particulars relate to patrons who entered the premises from a party bus. Patrons from the party bus had special arrangements via the tour company with the management of Bar 20. Those arrangements consisted of the party bus patrons entering from a different side of the doorway to the other patrons, and the person in charge of the party bus tour paying for their entrance. The patrons of the party bus were given special treatment, in that they had priority entrance to the premises as opposed to those patrons who were just waiting in the queue to enter in the normal way.
2. Because there were so many patrons in the premises that were drunk, it is clear that the crowd controllers at the front door did not do any proper check on the patrons to see whether or not they were intoxicated. This view is supported by the evidence in relation to Particular 13 which also relates to a party bus. That particular will be dealt with below.
3. Mr Ribbands conceded that the crowd controllers did not do their duty. He further conceded that the failure of the crowd controllers to detect intoxicating persons on the premises was a lapse in standards which was conceded by the management. As I have previously stated, a lapse of this nature by the crowd controllers must and should be visited upon the management.
4. It must also be noted that s 108(5) cannot be used as a defence by the management or the joined parties in relation to this particular. In this case, the crowd controllers should have known that the patrons were drunk when they entered the premises and should have known that they were unruly and be removed immediately. That knowledge is, for the reasons I have given, visited upon the management of the premises. As I have previous said on a number of occasions, the management of these premises failed in their duty to ensure that the premises were conducted in a proper manner. Again, here it would be relatively simple for the management to have an assistant manager at the entrance or at the very least have someone of managerial status observing monitors in real time. The management failed to do either. Thus, I find that the two sets of particulars relating to the incident on 31 January 2009 are made out.

Particular 12 of s 95 proceeding

That on the 9th of February 2009 patrons conducted themselves in a manner that detracted from and was detrimental to the amenity of the area in which the premises are located in that

(a) patrons behaved in an unruly and disorderly manner inside the premises

(b) patrons engaged in fighting inside the premises

1. The applicants' summary of evidence in support states :

At approximately 2.00a.m. on Sunday the 9th of February 2009, police attended the premises in response to an assault inside the premises.

A patron was punched in the mouth by another patron when he approached a female dancer. The patron's teeth were knocked out of his mouth onto the floor. Another patron struck the victim on the back with a pool cue. Four male patrons were involved in the fight. Crowd controllers ejected the assailants from the premises.

The victim was conveyed to hospital by ambulance. The victim will require extensive dental reconstructive surgery.

1. This is a correct summary of the evidence relating to this particular. In relation to this incident, two brothers Dino and Livio Falcone were visiting the premises. Dino Falcone was hit by another patron who was talking to one of the dancers with Livio Falcone.
2. Mr Ribbands referred to the evidence of the crowd controllers Northfield and Santini who confirmed that the incident was sudden. He referred to the fact that Mr Santini said that prior to the incident : "He had been maintaining a close watch on the floor and he had seen nothing which indicated there was any level of intoxication or troublesome behaviour that warranted his intervention". Also there was CCTV footage which showed Mr Santini's head moving from left to right which indicated that he was keeping a close watch on the movements and behaviour of the patrons.
3. Mr Ribbands said that as there was no fault on the part of the crowd controllers and nothing could have been done by them or the management to prevent this incident, a finding should not be made against Bar 20 as a result of this incident.
4. Section 95 does not require a fault. To breach s 95 it is required that the incident would detract from or be detrimental to the amenity of the area. I have already dealt with the matter of whether the area extends to inside the premises and have found that it does. I have also already dealt with the issue of fighting which has a very negative effect on the area, sufficient for the same to be detrimental. Further, if this type of behaviour were to continue, it would have a detrimental effect on the area.
5. Given these circumstances, I find that the particulars have been made out.

Particular 13 of the s 95 proceeding and Particular 11 of the s 90 proceeding

(a) Patrons conducted themselves in a manner that detracted from and was detrimental to the amenity of the area in which the premises are located in that :

1. patrons were drunk on the premises and in the area
2. patrons behaved in an unruly and disorderly manner outside the premises
3. patrons engaged in fighting outside the premises

(b) The premises was conducted in a manner that was detrimental to the amenity of the area in which the premises are located in that:

1. drunken patrons were allowed on the premises
2. crowd controllers failed to exercise effective control over patron behaviour outside the premises.

That the licensee on the 21st of February 2009 did:

(a) permit drunken and disorderly persons to be on licensed premises contrary to s 108(4)(b) of the Liquor Control Reform Act; and

(c) allow the business to be conducted in a manner that detracts from and is detrimental to the amenity of the area in which the premises is situated; and

(d) fail to exercise sufficient management and control over the licensed premises to ensure that the provisions of the Liquor Control Reform Act 1998 were complied with.

1. The applicants' summary of evidence in support states :

At approximately 11.05pm on Saturday 21st February 2009 police observed between fifteen to twenty male patrons intending to enter the premises. A drunken male who claimed to be a party bus passenger was arrested outside the premises for being drunk in a public place.

Police entered the premises and observed a drunken male patron in the entrance area who stated he had consumed liquor in large quantities. The drunken patron was arrested for being drunk in a public place.

Police re-attended outside and observed a large number of drunken male patrons. The drunken males made abusive and derogative comments to police and members of the public passing through the area. This situation was brought to the attention of crowd controller, Jason Kenny who replied: 'There's not much we can do, they're all pissed from a party bus'.

Police re-entered the premises and removed a second drunken male patron from the upstairs area of the premises. Police were subjected to further abuse coming from the open windows of the premises. Upon re-entry into the premises, police arrested another drunken male patron who was inciting trouble.

These incidents were brought to the attention of director and nominee Dragan Micovski.

I accept the applicants' summary as a true and correct summary of the evidence.

1. It will be noticed that the particulars in these two proceedings are very similar to the particulars in Particular 11 relating to the s 95 proceeding and Particular 10 relating to the s 90 proceeding.
2. It is also noted that the evidence in support of these particulars has a similarity with the evidence of particulars 11 (s 95) and 10 (s 90).
3. It is also noted in relation to these particulars that "police were subjected to further abuse coming from the open windows of the premises".
4. After conceding that the management in relation to these particulars should have been more vigilant, Mr Ribbands submitted that there was a temporary lapse in vigilance. However, he said that after this incident, the management refused to take any more bookings from party bus tours and have thus cured the problem in relation to party buses.
5. However, it will be noted that on the first renewal of the licence of Bar 20 after this incident, clause 1.7 was inserted which forbade an agreement between the management and party bus operators.
6. For the reasons which I have stated in relation to Particular 11 (s 95) and Particular 10 (s 90), I find that these particulars have been made out.

Particular 12 of s 90 proceeding

(a) supply liquor other than in accordance with the liquor licence applicable to premises, contrary to s 108(1)(a)(i) of the Liquor Control Reform Act 1998; and

(b) permit the consumption of liquor otherwise other than in accordance with the liquor licence contrary to s 108(1)(a)(iii) of the Liquor Control Reform Act 1998; and

(c) fail to exercise sufficient management and control over the licensed premises to ensure that the provisions of the Liquor Control Reform Act 1998 were complied with.

1. The applicants' summary of evidence in support states :

At approximately 1.00a.m. on Sunday the 8th of March 2009, police attended the premises and observed approximately 300 patrons in attendance. Police intending to inspect the 'private rooms' located in the basement of the premises were stopped by crowd controllers from entering the basement area where sexually explicit entertainment was taking place.

Upon being granted entry to the basement, police were met with insult and hostility by a female entertainer who was performing a private dance on a patron. The female entertainer drew the curtains closed preventing police for having a clear view of the activities taking place within the room. At the time liquor was being supplied to and consumed by patrons in breach of the following licence condition :

SPECIAL CONDITIONS TO APPLY WHEN SEXUALLY EXPLICIT ENTERTAINMENT IS BEING PROVIDED

3.6 There shall be no sexually explicit entertainment provided in areas that are not visible from the public areas of that part of the licensed premises used for the provision of sexually explicit entertainment.

Director and nominee Dragan Micovski told police that some female dancers did not like other patrons watching, but realised that the licensee had done wrong.

1. While occurring on different nights and a different floor, the action of the crowd controllers in this particular instance had a feature in common with the action of the crowd controllers in Particular 4 (s 95) and Particular 2 (s 90), which will be remembered was the incident relating to Mr Murphy. That is, on each occasion, the crowd controllers were doing their best to stop patrons viewing private dancing, which was contrary to the provisions of the licence (see condition 3.6). However, it should be noted that on this occasion, the security guards attempted to stop Constable Kenny and Senior Constable Rees from entering the basement because they were not accompanied by a dancing girl. Further, it is noted that when the two police officers arrived at the basement area, the dancers screamed out at them : "Don't look in you perverted cunt, you want this you pay for it". It was at that point that the dancer closed the curtain into the room making it impossible for the police officers to see in. That again was a breach of the condition of the licence.
2. Mr Ribbands in his submission noted that the police officers issued an infringement alleging that as the curtain was drawn, the respondent was in breach of its licence. However, that infringement notice was withdrawn. It is also noted that Senior Constable Kenny stated in cross-examination that the infringement notice would have been withdrawn because either the proceedings were inconsequential and they did not warrant the waste of police resources or, alternatively, the prosecution did not believe that the police would be able to procure a finding of guilt.
3. It should be noted that the present proceeding is not a criminal proceeding and that the standard of proof is different in this proceeding to a criminal proceeding. That is, a criminal proceeding requires proof beyond reasonable doubt. This proceeding requires proof on the balance of probabilities although as I have previously stated, there must be an exactness of proof as referred to by the High Court in Briginshaw.
4. However, I do accept that in relation to the curtain, the incident was of a minor nature. I am far more concerned about the incident where the police officers were attempted to be stopped from entering the basement. This is something that should have been observed by the management and was not. It was a clear breach of the licence relating to sexually explicit entertainment. Thus, I have come to the conclusion that the allegation is made out.

Particular 14 in relation to s 95 proceeding

(a) Patrons conducted themselves in a manner that detracted from and was detrimental to the amenity of the area in which the premises are located in that :

1. patrons engaged in fighting inside the premises
2. patrons engaged in a brawl outside the premises
3. a patron kicked a female police officer in the face causing an injury

(b) The premises was conducted in a manner that was detrimental to the amenity of the area in which the premises are located in that:

1. crowd controllers failed to exercise effective control over patron behaviour outside the premises.

1. The applicants' summary of evidence in support states :

At approximately 1.00a.m. on Sunday the 5th of April 2009 a large number of patrons were involved in a brawl inside the premises. The brawl continued outside the premises requiring the response of numerous police units.

Police observed approximately 150 alcohol affected males involved in the fracas. Many of the males were patrons of the premises. The participants in the fracas were either fighting with each other or remonstrating with police who were in the process of restoring order and arresting some of the drunken males.

A drunken male who had been arrested kicked a female police officer in the face after repeatedly abusing her. The female officer received an injury requiring hospital attendance.

1. Mr Ribbands has correctly stated that there is no evidence linking the person who kicked Constable Doyle in the face with any patron from Bar 20.
2. However, I am convinced that the brawl involving a large number of people in King Street emanated directly as the result of an incident that occurred inside the smoking room at Bar 20. When the patrons that were involved in the brawl were led outside the premises, a number of other patrons from the Bar 20 premises also exited those premises on to the footpath. Thus, it was the incident inside Bar 20 that directly started the fight in King Street. That does not mean of course that every person involved in that fight came from Bar 20. What it does mean is that I am convinced that if it had not been for the actions of the patrons of Bar 20, the brawl would never have occurred.
3. Because of the brawl occurring in King Street, it was necessary for the police to cordon off part of the footpath, and also as a result of the brawl and the necessity of police cars to park and double-park in the area, a lane of King Street was cordoned off and it thus necessarily had an effect on the traffic movement going south on that street.
4. Mr Ribbands also emphasized the point that a lot of this brawl occurred outside the next door nightclub called "Inflation". Therefore, I should not blame Bar 20 for the incident. However, there is a clear temporal connection between the males being evicted from Bar 20 after the fight in the smoking room which caused the broken window and the brawl. Therefore, I am of the view that the brawl was a direct result of the fight taking place inside Bar 20 and those males being removed to the footpath.
5. Whether or not there was any fault on Bar 20 is not to the point. The point is that the incident occurred because of the operation of the premises. Clearly, an incident of this magnitude has a very detrimental effect on the amenity of the area involved. Thus, I find that Particular 14 has been made out save and except (a) iii of this particular.

Particular 15 in relation to the s 95 proceeding

That on the 25th of April 2009 a patron conducted himself in a manner that detracted from and was detrimental to the amenity of the area in which the premises are located in that the patron assaulted and injured another person.

1. The applicants' summary of evidence in support states :

At approximately 10.00p.m. on Saturday the 25th of April 2009 a patron was assaulted inside the premises by another patron, following a disagreement over a football match. The victim sustained swelling and bruising to the head and was conveyed to hospital by ambulance.

1. The situation in this matter is similar to a number of other matters that I have dealt with already. That is, there was a fight inside the premises. I have already rejected Mr Ribbands' submission that happenings inside the premises do not reflect on the amenity. On that basis, it necessarily follows that a fight inside the premises does affect the amenity and is detrimental to it. Given those circumstances, Particular 15 is made out.

Particular 16 in relation to the s 95 proceeding and Particular 13 in relation to the s 90 proceeding

That on the 12t of December 2009 the premises was conducted in a manner that was detrimental to the amenity of the area in which the premises are located in that :

(a) A crowd controller engaged in behaviour likely to result in violence;

(c) Crowd controllers failed to exercise effective control over patron behaviour outside the premises.

That the licensee on the 12th of December 2009 did :

(a) allow the business to be conducted in a manner that detracts from and is detrimental to the amenity of the area in which the premises is situated; and

(b) fail to exercise sufficient management and control over the licensed premises to ensure that the provisions of the Liquor Control Reform Act 1998 were complied with.

1. The applicants' summary of evidence in support states :

At approximately 1.14a.m. on Saturday the 12th of December, a group of patrons were intending to enter the premises. A male from the group approached a crowd controller to discuss the likelihood of gaining entry into the premises.

During the discussion the crowd controller pushed the male on the chest forcing him back off the steps onto the footpath. The crowd controller approached the male and punched him in the face. Other males from the group and another crowd controller intervened. The victim sustained bruising to the mouth.

1. In this particular instance, it is clearly correct that the male referred to in the evidence of the particulars was assaulted by the crowd controller when the crowd controller should have been more restrained. It is also clear, as Mr Ribbands said, that the crowd controller was provoked. While there may have been provocation that is no defence for the crowd controller acting in the way he did. Further, as I have previously stated, in these type of circumstances, the management of Bar 20 is responsible for the acts of the crowd controller.
2. Further, it should be noted that the crowd controller has now been removed from undertaking further duties at Bar 20. Nonetheless, the interaction between the crowd controller and the patron certainly does have a detrimental effect on the amenity of the area, and this type of incident is likely to continue into the future. Further, as I have previously found, the management is responsible for the acts of the crowd controller, and therefore Particular 13 is also made out in relation to s 90(1)(j) of the Act. It is not acceptable for a crowd controller to assault a patron. If the entrance was properly supervised by managerial staff, the assault by the crowd controller would be unlikely to have occurred. Thus, in elation to both proceedings Particular 16 (s 95) and particular 13 (s 90) have been made out.

Particular 17 in relation to the s 95 proceeding and Particular 14 in relation to the s 90 proceeding

Patrons conducted themselves in a manner that detracted from and was detrimental to the amenity of the area in which the premises are located in that :

1. patrons behaved in an unruly and disorderly manner outside the premises
2. patrons engaged in fighting with crowd controllers outside the premises
3. a patron engaged in fighting with another patron inside the premises
4. a patron engaged in fighting with another patron outside the premises.

(b) The premises was conducted in a manner that was detrimental to the amenity of the area in which the premises are located in that:

1. a crowd controller assaulted a member of the public outside the premises.

(b) allow the business to be conducted in a manner that detracts from and is detrimental to the amenity of the area in which the premises is situated; and

(b) fail to exercise sufficient management and control over the licensed premises to ensure that the provisions of the Liquor Control Reform Act 1998 were complied with.

1. The applicants' summary of evidence in support states -

At approximately 12.05a.m. on Tuesday the 9th of March 2010 two drunken male patrons were refused entry by crowd controllers. One of the drunken males remonstrated with crowd controllers.

Crowd controller Alexander Kopyev struck the remonstrating male patron in the face causing a minor injury. The drunken males left the area and then returned within a few minutes.

Another drunken male patron was ejected by crowd controllers for fighting with a male friend inside the premises. The ejected drunken patron continued fighting with his friend at the front of the premises. Crowd controllers intervened and separated the drunken patrons and directing them away from the front of the premises.

The ejected drunken patron has accidentally bumped into the drunken patron who had earlier been assaulted by crowd controller Kopyev. The ejected drunken patron has then punched this person, causing the victim to fall and strike his head on the footpath thereby sustaining a laceration to his head that required hospitalisation.

1. In order to deal with these two particulars, it is convenient to note that the male patron who was struck by Mr Kopyev was a man called Lindroos and the person described as the "ejected drunken patron" was a man called Hunter.
2. It is also noted that as a result of Mr Kopyev's action in striking Lindroos, he was subsequently removed from undertaking his duties at Bar 20.
3. Mr Ribbands commented that Mr Lindroos, while being subpoenaed to appear, declined to attend. He also noted that Mr Lindroos was intoxicated, provocative and confrontational.
4. In relation to Mr Lindroos not attending, I am unable to draw any inference in relation to that, as he had been subpoenaed and, in my view, the applicants had used all reasonable endeavours to obtain Lindroos' attendance to give evidence. Short of requesting a judicial member of this Tribunal to issue a bench warrant, there is nothing further the applicants could have done to secure Lindroos' attendance. Such a request in a proceeding such as this with so many particulars would, in my view, have been excessive. Further, pursuant to s 98 of the Victorian Civil and Administrative Tribunal Act 1998, I allowed Mr Lindroos' statement to be tendered in evidence and give it the weight that I deemed appropriate bearing in mind that he was not cross-examined and also bearing in mind that the applicants had done all that they reasonably could have for Mr Lindroos to attend. While I accept that Mr Lindroos was drunk, Mr Kopyev's actions were quite inappropriate and, as I have previously found, those actions must bear upon the conduct of the management of Bar 20.
5. I also note Mr Ribbands' submission that the crowd controller Mr Aqualina stated that Bar 20 was "a less robust and more peaceful environment than other clubs and venues". He also stated that -

The dynamics was 'one dimensional' in that the attention of all patrons was primarily directed in the one direction, namely the stage.

1. It is clear that Mr Hunter when he was evicted from Bar 20 was in a drunken state. Clearly, in my view, while the management eventually had him ejected through the crowd controllers, he was so aggressive that I am able to infer that his state of drunkenness was such that it probably should have been detected earlier. Clearly, he was also disorderly on the premises and that is probably why he was in fact ejected.
2. Taking all these matters into consideration, I am satisfied that the amenity of the area was affected by the happenings described in these particulars. Through the actions of the management in allowing Mr Hunter to remain on the premises until he was ejected and the actions of the crowd controller Kopyev in assaulting Mr Lindroos, there was a breach by the management, in that the business was conducted in a manner that detracts from the amenity of the area (s 90(10(j)) and the management did not exercise sufficient control over the licensed premises which led to these two terrible incidents in the street and Mr Lindroos obtaining injuries that required hospitalisation.
3. Thus I am satisfied that both sets of particulars (17 (s 95) and 14 (s 90)) have been made out.

Particular 18 in relation to the s 95 proceeding

That on the 13th of May 2010 a patron conducted himself in a manner that detracted from and was detrimental to the amenity of the area in which the premises are located in that :

(i) a patron assaulted and injured another patron inside the premises;

(ii) crowd controllers failed to exercise effective control over patron behaviour inside the premises.

1. The applicants' summary of evidence in support states :

At approximately 3.30 on Thursday the 13th of May 2010, an unknown male patron struck another patron. The victim sustained an injury to his nose that required medical treatment. The unknown male patron was allowed to remain on the premises for approximately 6 minutes after the assault.

1. It should be noted that the assailant in this matter was dressed in clothes usually worn by members of the "Fink" motorcycle gang. Further, when the assailant was finally escorted from the premises, a number of other persons dressed in similar clothes left the premises with him.
2. It is noted that the person who was assaulted in relation to this particular is a Riccardo Piana who at the time was a trainee pilot.
3. It is also noted that after the occurrence of the incident involved in this particular, there was no crowd controller at the entrance of Bar 20 premises which, in itself, is a breach of the licence (see clause 2.6 of the licence).
4. Mr Ribbands submitted that it was essential for the two crowd controllers to be assisting Mr Piana, the victim in this proceeding, and it was not surprising that a crowd controller was not at the door at the relevant time.
5. The licence requires a crowd controller to be at the door entrance at all relevant times. The fact that there was only one other crowd controller on duty at the entrance and the licence did not require any more than one other crowd controller to be on duty, does not really assist the management. The licence requirements are a minimum requirement for crowd controllers. However, in a premises such as Bar 20, where the main room which was open at this time was not on the same level as the entrance to the premises, clearly only having two crowd controllers for the entire premises was insufficient and good management would have realised that having one crowd controller on the first floor and one at the entrance could cause difficulties. It is not unusual for a patron who is being ejected to need at least two crowd controllers to carry out the ejection. That situation necessarily means that a crowd controller would have needed to leave the front door which happened in this particular instance. However, it should be noted that the crowd controller leaving the front door did not form part of Particular 18.
6. Mr Ribbands stated that because the staff of the venue including the crowd controllers were more concerned with the health of Mr Piana than the eviction of the offender, it was reasonable that the offender was allowed to remain in the premises for a further six minutes. He also stated that the offender did nothing wrong within that time.
7. Allowing the offender to remain in the premises for the six minutes after the assault, in my view, sends a wrong message to the other patrons, who may have observed the incident. The message that it would send is that it minimises the severity of the conduct of the assailant. This is a very important factor the management is required to keep a large body of people who are drinking in order. Leaving the assailant in the premises for six minutes after the assault may be taken as an invitation to others to do the same thing.
8. Mr Ribbands has also said that because the incident was within the confines of the premises, it cannot constitute a detriment to the amenity of the area. I have already dealt with this argument and disagree with the same.
9. Taking all these matters into account, I have come to the view that Particular 18 of the s 95 proceeding has been made out and there was a detriment to the amenity of the area.

Particular 19 in relation to the s 95 proceeding and Particular 5 of the s 90 proceeding

1. the patron behaved in an unruly and disorderly manner inside the premises
2. the patron behaved in an unruly and disorderly manner outside the premises

(b) allow the business to be conducted in a manner that detracts from and is detrimental to the amenity of the area in which the premises is situated; and

(b) fail to exercise sufficient management and control over the licensed premises to ensure that the provisions of the Liquor Control Reform Act 1998 were complied with.

1. The applicants' summary of evidence in support states :

At approximately 10.15 p.m. on Saturday the 25th of October 2008, a drunken male patron was ejected from the premises after crowd controllers found his vomiting in the toilets.

The drunken male patron was found in a drunken state arguing with a friend and members of the public outside the Rialto Towers in Collins Street. The drunken male patron was arrested for being drunk in a public place.

1. The male patron referred to in the summary of the evidence was a Mr Carnibella who was evicted with another person named Mr Sivan. Mr Ribbands said the evidence was insufficient for me to be satisfied that Mr Carnibella was drunk while on the premises of Bar 20. He stated that the crowd controllers' register showed that a person was evicted from the Bar 20 premises at 9.00pm, and that it is reasonable to assume that person was Mr Carnibella. It was not until 9:45pm that Mr Carnibella was spoken to by police outside the Rialto in Collins Street. Mr Ribbands therefore submitted -

In our submission, it is reasonable to infer that the eviction at 9:00pm describes the same individuals who were observed by the police at 9:45pm. The 45 minute difference in time also supports the inference that the 9:00pm eviction involved Carnibella given that the injuries observed on Carnibella at 9:45pm showed the presence of dried blood, thereby suggesting the elapse of some degree of time. No one can account for what might have happened to Carnibella within the 45 minutes from when he left the premises (when there was no sign of blood) to the time when he was seen to be injured in Collins Street some 45 minutes later.

There is no evidence which would permit a finding that Bar 20 allowed an intoxicated person to be on the premises. To the contrary, the evidence shows that Bar 20 staff acted properly in evicting Carnibella for being troublesome. Constable Delaney fairly agreed that neither he nor anyone else was in any position to consider what alcohol Carnibella may have consumed nor what drugs he may have ingested, in the intervening time from his eviction from Bar 20 to the time of his observation by police.

1. However, Senior Constable Wilson in his witness statement stated as follows :

I also spoke to security who ejected him (Mr Carnibella) from the premises. They stated that they located CARNIBELLA in the toilets. He was 'puking', and drunk'. As a result of this he was ejected, peacefully and without incident, although he was verbally, but not physically aggressive towards security. I checked the security register and verified that the incident had been recorded.

1. In my view, the hearsay evidence of Senior Constable Wilson which originated from the crowd controller is sufficient in this particular instance for me to be satisfied that Mr Carnibella was drunk while on the premises. While it is of course possible for somebody to vomit without being drunk, I accept in this instance that Mr Wilson was told that Mr Carnibella was drunk by the crowd controller, and one would assume that with a crowd controller's training, would know a drunk patron from a sick patron. It should also be remembered that I am not bound by the rules of evidence. (see s 98 of the VCAT Act).
2. Given these circumstances, I am satisfied that Mr Carnibella acted in an unruly and disorderly manner inside and outside the premises and caused a detriment to the amenity of the area when doing so. That detriment to the amenity also extends to s 90(1)(j) of the Act. Further, I am of the view that Mr Carnibella should have been detected by the management or its staff prior to becoming so sick from alcohol prior to the time he was vomiting.
3. Therefore, I find that both Particular 19 of the s 95 proceeding and Particular 5 of the s 90 proceeding have been made out.

(a) The premises were conducted in a manner that was detrimental to the amenity of the area in which the premises are located in that :

1. crowd controllers failed to exercise effective control over patron behaviour inside the premises

1. The applicants' summary of evidence in support states :

At approximately 2.50 a.m. on Sunday the 23rd of November 2008, police observed a drunken male patron inside the premises seated on a couch. The drunken male patron was being assisted to his feet by friends. The drunken male patron appeared to be in a semi conscious state requiring hospitalisation. The male was conveyed to hospital by ambulance.

1. It is noted that the semi-conscious drunk patron was the groom associated with a buck's night hosted at Bar 20 premises.
2. Mr Ribbands suggested that there was no evidence that Bar 20 had condoned or otherwise allowed the individual concerned to become inebriated. He further speculated that :

... the individual concerned probable arose as a consequence of his 'friends' supplying alcohol to him on his buck's night. The rapid ingestion of shots of alcohol could easily overwhelm a person who is encouraged to skol them. It is hard to envisage how this individual could become so disabled, other than by skolling alcohol or ingesting drugs. In either instance it is the conduct of the patron that is at fault, not the conduct of the venue.

1. I do not accept this submission because it is the duty of the management to monitor the conduct of patrons while the patron is in the premises. A well managed venue would have detected that the patron who became semi-conscious was reaching that state long before he did. It is only supposition on the part of Mr Ribbands that that patron may have skolled a number of shots of strong alcohol. However, even if he did, I believe that that is something that should have been observed by the management of the venue. The shots of alcohol would have had to be purchased from the bar at the venue and that should have sent a message to the management itself. Further, in all probability, it should have been within the knowledge of the venue that a buck's night was taking place at the venue, and that at buck's nights such a skolling procedure is not unusual. Therefore, a much closer eye should have been kept on the group of patrons of which the semi-conscious patron was one. Having a patron that is so drunk that he needs to be conveyed to hospital, suggests that there is serious detriment in regard to the amenity of the area. This being a particular pursuant to s 95 of the Act, it does not matter whether or not the management at the venue did the right thing. What does matter is that there was a drunk and semi-conscious patron in the venue that needed to be carried out and hospitalised, which of itself creates a detriment to the area. Other patrons should not be subject to having to see such a happening. Therefore, I find that this particular has been made out.

(a) A patron conducted himself in a manner that detracted from and was detrimental to the amenity of the area in which the premises are located in that :

1. the patron behaved in an unruly and disorderly manner inside the premises

1. the patron discharged a missile to the injury of a crowd controller inside the premises
2. the patron behaved in a quarrelsome manner with police inside the patrons
3. the patron behaved in an unruly and disorderly manner outside the premises.

1. The applicants' summary of evidence in support states -

At approximately 12.40 a.m. on Sunday the 18th of January, police attended the first floor of the premises where a crowd controller reported an assault by a male patron.

The crowd controller identified a male patron as the assailant who had thrown a glass across the room in his direction and that he was struck near the eye by the flying glass. Police spoke to the male patron who refused to leave the premises and instead quarrelled and remonstrated with police.

The male patron was forcibly removed from the premises by police and crowd controllers. The male patron was issued with an infringement notice for his quarrelling with police and failing to leave licensed premises.

1. Mr Ribbands submitted that there was nothing that the management or crowd controllers could have done to prevent this incident and that there was no evidence to support the fact that the patrons may have been drunk. Further, he has stated that because this incident took place within the premises, it cannot affect the amenity of the area.
2. While as a statement of fact, Mr Ribbands' submissions may be correct, because this is a s 95 proceeding, I only need to be satisfied that the actions described in this particular created a detriment to the amenity of the area. As I have previously stated, the area includes the inside of the premises.
3. Therefore, I hold the view that behaviour of the male patron in this case of throwing a glass and being quarrelsome and remonstrating with police, is sufficient to indicate that there is a detriment of the amenity in the area of the premises. This being the case, Particular 21 pursuant to the s 95 proceeding is made out.

That on the 27th of May 2010 a drunken patron conducted himself in a manner that detracted from and was detrimental to the amenity of the area in which the premises are located in that the drunken patron behaved in an unruly and disorderly manner outside the premises.

1. The applicants' summary of evidence in support reads :

At approximately 5.31 a.m. on Thursday 27th of May 2010 police attended outside the premises in response to a report of a drunken male causing a disturbance outside the premises.

Police observed a drunken male patron sitting on the curb who stated that he had been ejected from the premises. The drunken male patron was arrested for being drunk in a public place.

1. In relation to this incident, Constable Tasiopoulos was called to the premises at 5:31am on 27 May 2010. In Constable Tasiopoulos' statement, he describes what he observed when he arrived at the venue at 5:48am on that day. He stated -

At approximately 5.48am we arrived at BAR 20 and I observed a male who I now know to be Ahbinan VEMUGANTI sitting on the curb with his feet in the gutter outside BAR 20. Senior Constable MALLOCH and I approached the VEMUGANTI, who was leaning forward supporting his upper body with his elbows on his knees and smelt strongly of alcohol and seemed unsteady even though he was seated. I formed the opinion that he was drunk.

1. Mr Ribbands submitted that there was insufficient evidence for me to find that this particular was made out because it was not clear when the offender was ejected from the premises.
2. The record of interview between Constable Tasiopoulos and the person Mr Vemuganti (who was alleged to be the drunken person) stated as follows :

I went into BAR 20 had a few drinks and then they kicked me out.

Even though Mr Vemuganti did not believe he was drunk, it is reasonable to assume that if the crowd controllers of the venue told Mr Vemuganti that he was drunk, that he probably was, particularly in light of the fact that the police formed the view that he was drunk when they saw him banging on the door of the venue.

1. Mr Devlin submitted that I should accept Mr Vemuganti was drunk because Constable Tasiopoulos was not cross-examined on this point.
2. While I accept that Mr Vemuganti was drunk on the premises, Mr Ribbands has raised the issue of s 108(5). He said that it would be a defence for the venue management that they had taken reasonable steps to ensure that a drunken and unruly person was not on the premises behaving in a disorderly manner.
3. However, I note that this is a particular pursuant to the s 95 proceeding, s 108(5) does not really apply to that type of proceeding. What has in fact happened in this particular is that a drunk and disorderly person was removed from the premises and then continued to act in that manner on the footpath. As such, he was causing a disturbance detriment in the amenity of the area. It may well be that he also caused a disturbance in the amenity of the area inside the premises. However, I do not need to find that. It is sufficient I find that his behaviour caused a detriment to the amenity outside which these circumstances suggest that he did. Someone banging on the door for the length of time that Mr Vemuganti did in this situation certainly would be detrimental to the amenity of that area. Such an action could make a passerby feel very uncomfortable. Clearly, the detriment in this circumstance would be far less than other circumstances, for example, fighting on the street. However, nonetheless, it is a detriment. Therefore, the particular is made out.

1. It should be noted that there were additional particulars served on the respondent on 7 December 2010 making particulars 24 to 27 inclusive, and further additional particulars were served on 2 February 2011, which are Particulars 28 to 31 in relation to the s 95 proceeding.

(a) A drunken patron conducted himself in a manner that detracted from and was detrimental to the amenity of the area in which the premises are located in that :

1. the drunken patron behaved in an unruly and disorderly manner outside the premises

1. the drunken patron behaved in physically aggressive manner likely to cause violence outside the premises.

1. The applicants' summary of evidence in support states :

At approximately 4.50 a.m. on Saturday the 22nd of May 2010, crowd controllers called for police assistance with a drunken male patron who was being refused entry to the premises and was behaving in an argumentative and aggressive manner.

As police members were walking towards the premises, the drunken male patron approached police and motioned to be handcuffed and arrested. The drunken male became physically aggressive and assaulted police. The drunken male tried to bite the chest of a police officer and had to be subdued with capsicum spray before he was arrested and removed from the area for being drunk in a public place.

The drunken male patron was charged with refusing to state his name and address, use threatening words, resisting arrest and assaulting a police officer.

1. Mr Ribbands submitted that there was no evidence that the drunk person involved was ever on the premises of Bar 20. He stated that the only evidence was that he was outside those premises. However, in his oral evidence, Senior Constable Schulte gave evidence that the person involved was at one stage on the premises. Mr Ribbands further stated that as the person involved would have become drunk prior to that fact being appreciated by staff, the defence in s 108(5) of the Act applies.
2. As with a number of other particulars, s 95 of the Act is a section that relates to amenity. Clearly, the person referred to in the particulars was drunk and was making a nuisance of himself in King Street. As a consequence, he was affecting the amenity of those who may wish to use that street. Here, as I have said in other particulars, the fact that there may not have been any fault on the part of the venue, does not prevent the particular from being made out. Section 95 of the Act does not require fault on the part of the licensee. What is required is to show that the activity carried on by the licensee causes a detrimental effect on the amenity of the area. Clearly, in my view, the person concerned in this particular was having a detrimental effect on the area and whether he was in the premises or not, it was the premises that attracted him to the position where he was. Therefore, it necessarily follows that the conduct of the premises in relation to this particular was having a detrimental effect in the area. Therefore, I find the particular is made out.

Patrons conducted themselves in a manner that detracted from and was detrimental to the amenity of the area in which the premises are located in that :

1. patrons engaged in fighting outside the premises
2. patrons engaged in physically aggressive conduct likely to frighten members of the public

(b) the premises were conducted in a manner that was detrimental to the amenity of the area in which the premises are located in that:

1. crowd controllers failed to exercise effective control over patron behaviour outside the premises.

1. The applicants' summary of evidence in support states :

At approximately 4.00a.m. on Friday the 9th of July 2010 police patrolling the area observed two male patrons fighting in King Street near the entrance of the premises. One of the patrons was observed holding the other by the neck against a wall and a crowd controller was observed to be watching the incident and failing to restore order in the area.

1. Again, Mr Ribbands has addressed me on the issue of culpability of the crowd controllers and the management of the premises. He said in this particular instance there was no culpability on the part of the management of the venue.
2. As I have said previously, having patrons fighting in King Street in the area of the Bar 20 premises suggests that the patrons in fact were there as a result of the matters conducted in the premises of Bar 20. Further, as I have previously said, persons fighting in the street do cause a very unpleasant situation for a passerby and detriment to the area. This is an example of that situation. Under those circumstances, I find that Particular 25 has been made out.
3. Further, there were submissions put to me that the persons concerned in the fight should have been restrained prior to the arrival of police. Mr Ribbands said that crowd controllers have no power of arrest beyond that of an ordinary citizen.
4. However, again, that is not to the point, because s 95 of the Act is a matter of amenity, not crowd controllers or the management breaching their duty.

Particular 26 in relation to the s 95 proceeding and Particular 15 in relation to the s 90 proceeding

(a) Patrons conducted themselves in a manner that detracted from and was detrimental to the amenity of the area in which the premises are located in that :

1. patrons behaved in a disorderly manner in the premises
2. patrons were found to be in a drunken state in the premises

(b) the premises was conducted in a manner that was detrimental to the amenity of the area in which the premises are located in that:

1. crowd controllers failed to exercise effective control over patron behaviour in the premises.
2. bar staff supplied liquor to intoxicated patrons
3. bar staff supplied liquor to drunken patrons
4. drunken patrons were on the licensed premises

(a) supply liquor other than in accordance with the liquor licence applicable to the premises, contrary to s 108(1)(a)(i) of the Liquor Control Reform Act 1998; and

(b) permit the consumption of liquor otherwise than in accordance with the liquor licence contrary to s 108(1)(a)(iii) of the Liquor Control Reform Act 1998; and

(c) supply liquor to a person in a state of intoxication contrary to s 108(4)(a) of the Liquor Control Reform Act 1998; and

(d) permit drunken and disorderly persons to be on licensed premises contrary to s 108(4)(b) of the Liquor Control Reform Act; and

(f) allow the business to be conducted in a manner that detracts from and is detrimental to the amenity of the area in which the premises is situated; and

(g) fail to exercise sufficient management and control over the licensed premises to ensure that the provisions of the Liquor Control Reform Act 1998 were complied with.

(c) fail to exercise sufficient management and control over the licensed premises to ensure that the provisions of the Liquor Control Reform Act 1998 were complied with.

1. The applicants' summary of evidence in support states :

At approximately 1.30 a.m. on Sunday the 15th of August 2010, police covertly attended the premises. There were approximately 250 patrons in attendance and liquor being supplied to and consumed by patrons; sexually explicit entertainment was being provided. During a period of approximately one hour and half police conducted covert surveillance inside the premises and made the following observations :

• A drunken male patron who had earlier been detected in an intoxicated state at another licensed venue in Melbourne's docklands precinct was consuming liquor and obtained a private dance before leaving the premises
• A drunken male patron was consuming liquor and lit a cigarette before being asked to leave by crowd controllers
• A drunken male patron staggered upstairs from the smoking area and bar staff supplied liquor to the drunken patron
• A waitress served liquor to two drunken male patrons
• A drunken patron was observed spilling liquor on a female entertainer (one of the males referred to in the previous dot point)
• Two drunken males were provided with sexually explicit entertainment and then were supplied liquor (males referred to in dot point 4)

The drunken male patrons referred to in dot points 4, 5 ad 6 were presented to the director and nominee. Dragan Micovski ordered crowd controllers to remove the drunken patrons from the premises.

Police inspected the operation of the closed circuit surveillance system for compliance and found that the surveillance system was not operating in accordance with licence requirements.

At the time liquor was being supplied and consumed by patrons and sexually explicit entertainment was provided in breach of the following licence conditions:

SPECIAL CONDITIONS TO APPLY WHEN SEXUALLY EXPLICIT ENTERTAINMENT IS BEING PROVIDED

2.1 All doorways and windows are to be screened so as to prevent any viewing of the sexually explicit entertainment from outside the premises or from any part of the premises used for other purposes.

2.2 The licensee shall install and maintain a surveillance recording system able to clearly identify individuals, which shows time and date and provides continuous images of all entrances and exits, bars and entertainment/dance floor areas. The surveillance recording system must operate at all times when the venue is open to the public. A copy of the recorded images must be available upon request for immediate viewing or removal by Victoria Police or a person authorised by the Director of Liquor Licensing, or otherwise retained for at least one month. The positioning of cameras is to be to the satisfaction of the Licensing Inspector or Compliance Inspector. The surveillance recording system as described above must also be installed in any such other areas of the licensed premises as the Director of Liquor Licensing may require.

Police observed that the video footage recorded by a number of surveillance cameras positioned through the venue was dim, and lacked the clarity and definition required by the licence conditions. Police observed that a camera operating in one of the private dance entertainment areas only provided partial coverage of the area.

Director and nomine Dragan Micovski did not provide police with any explanations or admit to any of the breaches.

1. These particulars arose out of a covert operation by the police at the premises, and an interview that was conducted by the police with Mr Micovski.
2. Mr Ribbands said that Mr Micovski in his interview disputed that the persons who Senior Constable Stones suggested were drunk were in fact not. However, in this particular instance, I have come to the view that policemen in Senior Constable Stones' position have a considerable knowledge of when a person is drunk or otherwise. The dispute by Mr Micovski that one patron was not drunk, does not appear to be made with any real conviction. I was not convinced of the accuracy of Mr Micovski's belief when giving evidence.
3. Mr Ribbands has suggested that because the police have over-emphasized certain matters, such as spilling a drink on a dancer, I should find that their evidence has been over-emphasized. It may well be that only a small part of the drink was splashed on the dancer and not the whole drink, that does not in itself suggest that a patron was drunk. However, the other evidence surrounding the drunkenness of the patrons appear to be quite substantial. The fact of a patron staggering upstairs clearly suggests that that patron is drunk and he was observed to be served alcohol by the bar staff. It is extremely difficult, in these type of situations, for the police to catch the management "in the act" of serving patrons while they are drunk. In my view, the management has been caught out.
4. Mr Ribbands also commented that the member of staff was not called by the police. He therefore said that the principle of Jones v Dunkel (1959) 101 CLR 298 should apply. However, the bar staff are staff of the first respondent and, as their own staff, it would have been more appropriate for them to call the staff than the police. Given those circumstances, I would have thought that it would have been the Bar 20 management that would have called the relevant member of the bar staff, not the police. No explanation was offered as to why Bar 20 did not call those relevant staff members. Thus, I believe rather than drawing the inference that Mr Ribbands suggests against the police, it is proper to draw that inference against Bar 20 itself. That is, the staff member's evidence would not have assisted the respondents. Further, Constable Stones reports that the patron himself said: "Mate, I'm smashed". I take that to mean the patron admitted to being drunk.
5. In relation to the situation of the explicit sexual entertainment not being able to be viewed pursuant to clauses 2.1 and 2.2 (ability to have CCTV footage to be viewed by police), Mr Ribbands made the following submission :

Thee was also an allegation that the dance area in one of the private rooms in the basement was unlawfully restricted by curtain. In our submission, this issue seems to have been put to rest in the course of cross-examination where the layout of the room was explained to include two open doors which provided for public visibility whether or not the curtain was drawn. We concede that had there been private dancing being undertaken in the right hand side of the room that it would have been an infringement of the licence as that half of the room did not have a CCTV camera as required by clause 2.2 of the liquor licence. There was no dancing in the part of the room which did not have a camera.

1. On the whole of the evidence, for the purposes of the allegation in regard to the curtain, I accept the submission of Mr Ribbands. However, the other parts of this particular are made out, both relating to the amenity issue and permitting and serving drunk persons on the premises.
2. I consider this to be a very serious matter because there is an important onus on the management of the premises to ensure that drunk people are not on the premises and they are not served with alcohol. In this particular instance, that is exactly what happened. It is the management's duty to ensure that this did not happen.
3. Both Mr Micovski and senior Constable Barry made it clear that they believed Mr Sobarzo was the patron that was evicted was "intoxicated". In fact, Senior Constable Barry stated that : "SOBARZO appeared highly intoxicated, agitated and very unsteady on his feet".
4. Mr Ribbands' submitted that Bar 20 had no reason to believe that Mr Sobarzo was intoxicated before they started to evict him from the premises. However, as I have previously stated, this is an application pursuant to s 95 of the Act and, as such, his actions were such as to amount to a detriment on the amenity. Even those actions were performed inside the premises. I refer to what I have previously said in relation to amenity on the premises.
5. In relation to Particular 15 of the s 90 proceeding, I find that on the balance of probability, the drunken male patron was drunk when he entered the premises as he had previously been seen by police in a drunken state in another venue that evening. Further, the drunken male patron was seen by police staggering in the premises and being served alcohol and provided with sexually explicit entertainment. Providing alcohol to a patron while drunk is in breach of s 108(1) and (4) of the Act.
6. The management must take responsibility for these actions and, as I have stated previously, should have made observations about what was going on at the entrance and inside the premises. They did not or, if they did, they did not act upon it. These actions have led to a breach of amenity within the premises as well as the breach referred to in Particular 15. Thus, I find that Particular 15 has been made out.

Particular 28 in relation to the s 95 proceeding

That on the 17th of July 2010 a patron conducted himself in a manner that detracted from and was detrimental to the amenity of the area in which the premises are located in that the patron assaulted and injured another patron.

1. The applicants' summary of evidence in support states :

At approximately 5:28 a.m. on Saturday the 17th of July 2010, a male patron was assaulted by another male patron. The patron was punched to the back of the head and chin several times, sustaining minor injuries.

1. Like a number of other particulars, Mr Ribbands has addressed me on the lack of culpability by Bar 20. However, as I have stated previously, the test in s 95 matters is not one of culpability by the venue but is one of detriment to the amenity. Clearly, in this particular instance, one patron assaulting another patron, has a considerable detriment to the amenity. As I have previously said, other persons should not have to view such goings on or be concerned for their own safety. Under these circumstances, Particular 28 is made out.

Particular 29 in relation to the s 95 proceeding

That on the 6th of November 2010, a patron conducted himself in a manner that detracted from and was detrimental to the amenity of the area in which the premises are located in that the patron indecently assaulted a female entertainer and was then forcibly removed from the premises.

1. The applicants' summary of evidence in support states :

At approximately 5.40 a.m. on Saturday the 6th of November 2010 three male patrons were seated at a pole dancing table situated on the first floor of the premises. A female dancer approached the patrons to invite them for a private dance. One of the patrons then reached out and grabbed her breast.

Crowd controllers requested the three male patrons to leave the premises. The male patrons refused to leave and were forcibly removed from the premises.

Police spoke to the three male patrons outside the premises and observed that they were in a state of intoxication. The patrons were argumentative and confrontational with police outside the premises and were ordered to leave the area.

1. Mr Ribbands again addressed me as to culpability of the venue together with whether or not the patrons were intoxicated. But, as I have said previously, the issue in s 95 applications is not one of fault. It involves whether there has been a detriment to the amenity of the area.
2. In an establishment such as Bar 20, it is very important that patrons do not touch the dancers. Once touching of dancers happens, there is then a fine line between a venue with sexually explicit entertainment and a brothel. Bar 20 is not a brothel and not intended to be such. Therefore, it is very important that patrons abide by the rules and "look but do not touch".
3. However, I agree that the odd incident of this nature is almost inevitable when sexually explicit entertainment is involved. However, that does not mean that it is not a breach, as the incident had a detrimental effect on the amenity of the area. However, I consider the breach in this particular circumstance, to be minor as it seems to be a one off and was quickly acted upon.

Particular 30 in relation to the s 95 proceeding

That on the 4th of December 2010 patrons conducted themselves in a manner that detracted from and was detrimental to the amenity of the area in which the premises are located in that patrons engaged in fighting outside the premises.

1. The applicants' summary of evidence in support states :

At approximately 6.20 a.m. on Saturday the 4th of December 2010 police attended outside the premises in response to a report of a theft.

Police observed two recently departed male patrons shouting in an aggressive nature and fighting in the middle of the road outside the premises impeding traffic that had to swerve to avoid the patrons. Police separated both patrons and observed two deal bags containing what police believed to be cocaine near one of the patrons. Police arrested one of the patrons for trafficking cocaine in the premises.

1. It does appear that this particular incident occurred more as a result of a dispute between somebody selling and purchasing illicit drugs than alcohol.
2. Also, I note that while the persons involved in the fight in Flinders Street had previously been at Bar 20, the incident in fact took place south of Flinders Street near the aquarium. This I would estimate is approximately 150 metres from Bar 20.
3. Again, Mr Ribbands has made submissions in regard to the culpability of the venue. However, there does need to be some causal connection in relation to s 95 allegations between the venue and the incident complained of. While both patrons involved in the fight had been to the venue, there does not really appear to be any causal relationship between what happened at the venue and what happened south of Flinders Street. This was a drug deal gone wrong. It could just have easily happened in a suburb of Melbourne as in King Street. Given those circumstances, I do not find that the operation of the venue relates to the matters complained of. Therefore, Particular 30 is not made out.

Particular 31 in relation to the s 95 proceeding

(a) Patrons conducted themselves in a manner that detracted from and was detrimental to the amenity of the area in which the premises are located in that :

1. patrons engaged in fighting outside the premises

(b) The premises were conducted in a manner that was detrimental to the amenity of the area in which the premises are located in that :

1. crowd controllers failed to exercise effective control over patron behaviour outside the premises.

1. The applicants' summary of evidence in support states :

At approximately 7.15 a.m. on Friday the 24th of December 2010 off-duty police observed a fight in progress involving two male patrons outside the premises. A male patron was forced to the ground by the another male patron who repeatedly assaulted him. Crowd controllers observed the assault but were ineffective.

Police observed both male patrons covered in blood and a large area of the footpath and wall outside the premises contaminated with a substantial amount of blood spatter from the assault.

Police arrested a patron for assault and injury related offence. The victim sustained facial and hand injuries and was transported to hospital.

1. This is yet another incident of patrons being ejected from the venue and then fighting outside the venue.
2. Mr Ribbands noted that there was in fact two incidents involved in these persons fighting and that in the first incident, the crowd controllers did intervene, but in the second they did not.
3. Rather than the crowd controllers breaking up the fight between the two patrons, it was left to Acting Detective Sergeant Holmes, who on his way to attend a Christmas Eve party at his work, who noticed the disturbance that was happening in King Street. He noticed that the men were fighting and the crowd controllers were only observing, not breaking up the fight. As a consequence, he parked his car and attempted to stop the fight.
4. In my view, after hearing descriptions of the evidence, the people concerned were very lucky that Acting Detective Sergeant Holmes happened to be driving by. If he had not stopped when he did, it is easily conceivable that serious injury may have occurred.
5. Mr Ribbands submitted -

By engaging properly licensed crowd controllers Bar 20 is entitled to rely on their skill, professionalism and statutory responsibility to carry out their functions. It is unrealistic to expect management, who are untrained and unlicensed, to exercise some element of control over security other than such as directing their attention to an incident that may have been unobserved by security. It is not for management to direct security as to how they should execute their responsibilities. The inaction by crowd controllers was their own doing.

1. As I have stated previously, I do not agree that the venue management is entitled to rely on the professionalism of crowd controllers particularly when it is an issue of amenity rather than fault. This is an issue of amenity. As I have previously stated, it is detrimental to the amenity of the area to have people fighting as was the situation here. Further, because Acting Detective Sergeant Holmes felt that it was necessary for him to intervene in the situation, it meant that he parked his vehicle in a spot at 7:15am in the morning that would necessarily interfere with the free flow of traffic along King Street, that is King Street in a southerly direction. That itself is a detraction of the amenity of King Street insofar as drivers are concerned. That is, directly related to the incident that occurred as a result of patrons that have previously been in Bar 20.
2. In those circumstances, I find that Particular 31 in relation to s 95 proceedings is made out, particularly having regard to the time of day when people are walking to work and the traffic is heavy in King Street

Particular 32 in relation to the s 95 proceeding

(a) a patron conducted himself in a manner that detracted from and was detrimental to the amenity of the area in which the premises are located in that :

1. the patron engaged in a fight outside the premises

(b) the premises was conducted in a manner that was detrimental to the amenity of the area in which the premises are located in that:

1. crowd controllers failed to exercise effective control over patron behaviour and instigated fighting outside the premises
2. crowd controllers allowed a known potentially violent patron re-entry into the premises.

1. The applicants' summary of evidence in support states :

At approximately 4:35am on Tuesday the 28th of December 2010 crowd controllers ejected a drunken male patron from the premises. The male patron remonstrated with crowd controllers outside the premises and was argumentative and physically aggressive which led to a minor physical altercation between the patron and a crowd controller.

The drunken male patron continued remonstrating with crowd controllers causing a disturbance outside the premises. Another male patron (Chris) became involved and drew the drunken male patron away from outside the premises where he assaulted the drunken male patron and threw him on the ground before re-entering the premises unchallenged by crowd controllers.

The male patron then had a verbal argument with another drunken male patron inside the patrons by the pool tables. At approximately 6.05a.m. the male patron left the premises and struck the drunken male patron with whom he had had a disagreement at the pool tables.

The drunken male patron was seriously injured and was transported to hospital with potentially life threatening injuries.

1. The male patron involved in both the 4.35am incident and the 6.05am incident has the name of Chris. The man whom he struck in the 6.05am incident was wearing a bag and became known as the "man with the bag".
2. It is noted that the crowd controller at the door of the premises when Chris was involved in the 4.35am incident, was Christopher Robley. Mr Nicholson, the duty manager, was watching on. Mr Robley was grateful for the assistance that Chris had given him in relation to the patron who had been arguing with Mr Robley in the 4.35 am incident.
3. After the incident, Mr Robley allowed Chris to re-enter the premises, despite having observed him assault another person. Mr Robley was so grateful for the assistance that Chris had given him in relation to the patron who had been arguing with Mr Robley, that Mr Robley shouted both Chris and his companion to drinks from the bar (bourbon and coke). Apparently those drinks were what Mr Robley described as "knock off drinks" supplied by the management. The management denied that two drinks were supplied to the staff but said only one was to be supplied. Also, the management was unable to explain how Mr Robley was supplied two drinks on this occasion. Further, the management stated that the "knock off drinks" were not to be given to patrons. It was unable to be explained how Mr Robley obtained two drinks on this occasion and how the bar staff were permitted to serve them to Chris and his companion.
4. It was not until a short time before closing that Mr Nicholson noticed that Chris was back in the premises. It necessarily follows that Mr Nicholson was not paying sufficient attention to what was going on in the premises between 4:35am and just before closing (approximately 6:00am). Mr Nicholson said that he did not know that Chris had been re-admitted until just before closing. I regard it as quite unsatisfactory that the management should not know who is entering and who is in the premises. If one person is unable to perform the manager's duties properly, there should be more people on duty as managers.
5. It should also be noted that the injuries that the "man with the bag" received in the second incident was so severe that they were life threatening.
6. Mr Ribbands relied on the evidence of Chris' companion Mr Krabo. Mr Krabo said that he and Chris had consumed a lot of alcohol and were drunk. However, he admitted they had also been taking "speed" which can camouflage the effect of alcohol.
7. Mr Krabo said :

We (Chris and himself) bar hopped before we got to Bar 20 and probably went into at least 15 bars. When we got to Bar 20 we were pretty drunk. We stayed at Bar 20 until closing.

1. It is clear that if Chris had not been allowed back into the venue after the 4:35am incident, the later incident would not have taken place. So, to that extent, Mr Robley and the venue are responsible for that incident happening. Further, if Mr Nicholson had been doing his job in a satisfactory manner and observing the patrons that were in the premises, he would have realised that Chris was in the premises and had him ejected a lot sooner. It is intolerable that a patron who is an assailant in matters connected to Bar 20 was readmitted.
2. In relation to the fact that Mr Nicholson did not have Chris ejected when he saw him at the venue shortly before closing time, Mr Ribbands stated :

... there was no utility in creating a possible confrontation by insisting upon an eviction.

1. I do not accept that the venue could not have known about Chris and his companion's drunkenness as submitted by Mr Ribbands. While the ingestion of speed may to some extent have disguised that condition, there were a number of other factors which should have alerted an observant management to the fact that both were drunk. First, is the 4.35am assault by Chris on the other patron. That is not something that usually occurs with somebody who is sober. Secondly, Chris was allowed back into the venue. That is also somewhat strange; for a man to come out of the venue and then assault someone and then return is quite out of the ordinary. Finally, there were incidents at the pool table between Chris and the "man with the bag" that should have given management and crowd controllers every indication that Chris was affected by alcohol to the extent of drunkenness. While I am not an expert in intoxication, watching the CCTV footage, I gained the impression that Chris and Mr Krabo were drunk.
2. In any event, as I have said many times before in these reasons, fault is not a requirement for s 95 proceedings. In this particular case, two assaults occurring in King Street, in the vicinity of the premises, is something that certainly affects the amenity of the area. I repeat, the citizens of Melbourne and visitors thereto should be free to walk around the streets, including King Street, without witnessing fights. Further, such incidents would make anyone who was walking around King Street feel unsafe. It is wrong that people should feel unsafe anywhere particularly in a public place like King Street. Even more so when there would have been a lot of people on their way to work (ie after 6:00am).

1. Mr Devlin has made a submission that the management of the venue does not learn by its mistakes. He noted that the management was served a warning on 8 December 2008 which was in effect the first 10 incidents referred to in the s 95 particulars. In spite of this warning, the management of the venue did not appear to change the way they conducted business. As seen by the number of incidents that occurred after that time, it is apparent that the management of the venue were either incapable or unwilling to try and adopt better procedure that would stop the incidents from taking place. The only alteration in the procedure was after the incident in February 2009 relating to the second party bus incident (Particular 13 of s 95 and Particular 11 of s 90) was when party buses were stopped from attending. It was unclear as to the circumstances of this happening, however, it does appear that in the first licence renewal issued after these events, ie 1 January 2010, party buses were not permitted in accordance with the licence.
2. I have already dealt with the submission by Mr Ribbands that taking action against the venue's licence would not help the amenity in King Street because, as he submitted, the patrons would go elsewhere. He said : "King Street is the venue, not Bar 20". I have already stated that I do not agree with this submission. I also believe that comparing the number of incidents that have occurred at Bar 20 with other sexually explicit establishments, those incidents at Bar 20 are far out of proportion to the other venues. I do not accept the submission of Mr Ribbands that those extra incidents occurred because Bar 20 had more patrons. I am not satisfied that Bar 20 did have more patrons at the relevant time.
3. I am satisfied that if Bar 20 was a better managed venue, these incidents, although not ceasing altogether, would be considerably less. It is noted that the venue not only did not mend its ways after the warning, it did not mend its ways after the first proceeding was served or the second proceeding. To make this clear, the s 95 proceeding was originally issued in January 2010. The situation had not improved when further particular to the s 90 proceeding was issued on 24 September 2010. Then, the situation still not having improved, further particulars were issued on 7 December 2010 and 2 February 2011.
4. It is clear that the management of the venue has had many chances to improve its ways but has failed to do so. I find that it and its management are either unwilling or unable to manage this venue in a proper manner. Mr Trimble as Chief Executive of the respondent would or should have known about the warning, the issue of proceeding but did either nothing or not enough to improve the situation. Mr Micovski as manager seems to have taken little or no action to stop these litany of events continuing. Further, there seems to have been little discussion about these problems at Board level. The respondent being a public company surprisingly could not produce minutes of any such discussion. Mr Trimble offered, what I believe to be an unsatisfactory excuse, that board meetings were difficult because Mr Micovski worked at night and slept during the day.
5. I also find that the venue itself attracts people, many of whom seem to have a pugnacious character and are willing to indulge themselves in a fight both inside and outside the premises. The management has no plan to stop these people offending. This is a clear breach of the amenity of the area.
6. The venue has been run in a way, in my view, that clearly runs contrary to the objects of the Act contained in s 4. The objects of the Act are clearly harm minimisation. In the second reading speech of the Liquor Control Reform Act, on 8 October 1998, the Minister introducing the Bill, Dr Naphthine stated :

The challenge for the government is to establish a legislative framework in respect of the sale of liquor that contributes to minimising the harm that can occur as a consequence of the abuse and misuse of alcohol while facilitating the development of the industry and meeting the expectations of the community regarding availability and appropriate opportunities for consumption of liquor ...

Minimization of harm resulting from the sale and supply of liquor is to be the principal purpose of the Act.

1. In this particular instance, I must pay considerable attention to the purposes of the Act in minimising harm. This venue has appeared to cause a situation where there is considerable harm. On at least two occasions of the particulars to which I have referred, the injuries have been extremely serious, and there has been hospitalisation required in relation to a number of persons who are patrons at the venue. In my view, if this venue is allowed to continue operating, things will not improve. It is likely to continue on the same path of incidents that breach the Act or the licence.
2. As previously stated, Mr Ribbands has referred to the fact that a great deal of problems at the venue have arisen from the patrons themselves or from the conduct of crowd controllers. This may be, but for the reasons I have given, the respondents must bear considerable responsibility for this matter. In over 13 days of hearing this matter and hearing both Mr Trimble and Mr Micovski, I formed the view that they were both willing to minimise the incidents that have occurred and blame others, such as crowd controllers and the patrons themselves. They seem to have considerable difficulty in accepting that "the buck stops with them". This being the case, it is difficult to see the management taking any steps to improve the situation. In fact, no plan was outlined that would assist in curbing the detrimental effect that Bar 20 was having on the amenity of the area.
3. Further, it should be noted, as I have previously mentioned, that in relation to the s 95 proceeding, the proof of fault is not necessary. What needs to be shown is that the amenity of the area is affected. Outlining all the matters to which I have referred, I am satisfied that, "the continuation in force of a licence or BYO permit would detract from or be detrimental to the amenity of the area in which the licensed premises are situated ..". In this case, both proceedings have shown that there is little hope if this venue's licence is allowed to continue, of the type of incidents that have occurred, stopping. There is every reason to believe that they will continue.
4. Mr Ribbands suggested that there were no proceedings served or relied upon between 1 January 2011 and the commencement of this hearing. That may be so, but it dos not necessarily follow that the management of the venue has mended its ways. Mr Ribbands had the opportunity to cross-examine both applicants in each proceeding - Inspector Hodgkin and Inspector Ross. He did not ask either of those applicants whether there had been any further incidents in the premises since 1 January 2011. He suggested that Mr Devlin should have asked such a question. However, Mr Devlin was not to know until submissions were made that the submission would be made that the venue had mended its ways since 1 January 2011. Thus, I will disregard this submission.

1. The purpose that I must bear in mind when making a determination is the protection of the public, deterrence, maintenance of proper standards of licensed venues and in maintaining the reputation and confidence in the liquor industry. Put another way, any determination I must make should be in the public interest, which I am bound to protect.
2. It was made clear by Murphy J in the Supreme Court in Inglese Pty Ltd v Estate Agents Board [VSC unreported 15 August 1998] that in licensing matters, the public interest is a combination of protection of the members of the public and maintaining standards in the industry. The outcome is not to be punitive in nature although the respondent may perceive it as such.
3. Further, I must examine the fitness of the management and the respondents to continue to hold the licence. In Director of Consumer Affairs v Jay Jacq Pty Ltd (SCV unreported 4 May 1998), his Honour Nathan J at p 11a stated-

In considering the issue of the fitness or propriety of an applicant for a licence, the nature, number and date of those convictions must be relevant considerations to be borne in mind. In some circumstances, as this is one, those factors establish that a person, found to have behaved in such a way, could not be a person who could be seen as fit to deal with the members of the public or to hold a licence under the Act. The convictions and behaviour go to the very substance of the honesty, integrity and reliability of a motorcar trader.

1. The same may be said of those that hold and manage establishments such as Bar 20. These proceedings have uncovered a litany of incidents in the last three years which are quite disgraceful and which have had a serious effect on both the amenity of the area and the citizens and visitors to the City of Melbourne. The findings that I have made in relation to each particular are clear. Mr Ribbands submitted that the penalty against the respondents should be a small fine, nothing short of cancellation of the respondents' licence and suspension of its directors will fix the problem.
2. I am satisfied that no amount of fine or suspension are likely to make any difference to this particular venue conducting itself in the manner that it has or, those that manage it conducting themselves in a different way.
3. It is clear from the way the case was put on behalf of the respondents in both proceedings, that in most of the cases, the management of the venue do not believe that anything wrong has happened as a result of their management. They are unable to see how their management could have improved the situation. They have taken the course of blaming others, in particular the public themselves and the crowd controllers. In my view, that is not a reasonable course for a responsible licensee to adopt. I agree with Mr Devlin's submissions at paragraph 64 when he stated :

To do nothing will mean that the incidents will continue. It is submitted that either the management of the venue will not change its style of management or alternatively it is the way the venue trades that is causing the trouble.

1. A strong message must be sent to other licensed operators that unless licensed premises are managed in a proper manner and do not create a detriment to the amenity of the area, a severe penalty will be given. In this case nothing short of cancellation of the respondents' licence and suspension of its nominee and directors will suffice. The management of this venue has put the safety of the people who visit the premises and those in the surrounding area at risk. It is a privilege to be allowed to serve liquor and it is required to be done with adherence to the laws and the licence and without adverse effect on the amenity of the area. Given the circumstances of this proceeding, nothing less than the penalties I propose would satisfy the collective conscience of the people of Victoria.
2. These orders will be :
   1. In relation to the s 95 proceedings, Licence No 31917161 held by Planet Platinum Limited is cancelled from 28 days after the date hereof.
   2. In relation to the s 90 proceedings, Licence No 31917161 held by Planet Platinum Limited is cancelled from 28 days after the date hereof.
   3. Planet Platinum is disqualified from undertaking any activity described in s 92(1)(a), (c), (d) and (e) of the Liquor Control Reform Act 1998 for a period of 18 months commencing 28 days from the date hereof.
   4. I am satisfied that the grounds set out in s 90(1) of the Liquor Control Reform Act 1998 exist and as such, John Trimble and Dragan Micovski are suspended from holding a licence pursuant to the Liquor Control Reform Act 1998 or a BYO permit and disqualified from undertaking any activity referred to in s 92(1)(a)-(f) of the Liquor Control Reform Act 1998 inclusive for a period of 18 months. This order is stayed for a period of 28 days from the date hereof.

1. I have considered imposing a fine in addition to the orders I have referred to above. However, in light of the orders I intend to make, I do not believe a fine would serve any useful purpose.