Lillywhite v Chief Executive Liquor Licensing Division, Department of Tourism, Fair Trading and Wine Industry Development

SUPREME COURT OF QUEENSLAND

CITATION: Lillywhite v Chief Executive Liquor Licensing Division, Department of Tourism, Fair Trading and Wine Industry Development [2008] QCA 88

PARTIES: REGINALD JOHN LILLYWHITE (applicant/appellant/applicant) v Chief Executive, Liquor Licensing Division, Department of Tourism, Fair Trading and Wine Industry Development (respondent)

FILE NO/S: Appeal No 8915 of 2007 / DC No 913 of 2007

DIVISION: Court of Appeal

PROCEEDING: Application for Leave s 118 DCA (Civil)

ORIGINATING COURT: District Court at Brisbane

DELIVERED ON: 18 April 2008

DELIVERED AT: Brisbane

HEARING DATE: 20 March 2008

JUDGES: McMurdo P, Muir JA and Chesterman J / Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER: Application for leave to appeal dismissed with costs

CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – GENERALLY – where the applicant is a proprietor of licensed premises in Townsville – where the applicant conducts takeaway liquor businesses under general licences – where the respondent imposed a condition on general licences in Townsville that prohibited the sale of takeaway liquor prior to 10 am – where the applicant seeks leave to appeal against the decision of the District Court under s 118(3) District Court of Queensland Act 1967 (Qld) – whether there was an error of law in the decision of the Commercial and Consumer Tribunal – whether the application for leave to appeal should be dismissed / ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – ERROR OF LAW – where the respondent imposed a condition on the applicant’s general licences that prohibited the sale of takeaway liquor prior to 10 am – where the District Court dismissed the applicant’s appeal from the Commercial and Consumer Tribunal – where the appeal to the Tribunal against the respondent’s decision was by way of re-hearing of the evidence – where the authority must act in good faith and not act arbitrarily or capriciously – where the Tribunal was not bound by the rules of evidence – where the discretions conferred upon the respondent by s 107C(1)(c) and s 107C(1)(d) Liquor Act 1992 (Qld) were unconfined – whether the Tribunal breached its duty by making a decision based on findings of fact that were unsupported by probative material – whether the Tribunal erred in law as there was insufficient evidence to sustain the Tribunal’s findings in relation to s 107C(1)(c) and s 107C(1)(d) Liquor Act 1992 (Qld) / LIQUOR LAW – LICENSING – OTHER MATTERS – where the respondent imposed a condition on the applicant’s general licences that prohibited the sale of takeaway liquor prior to 10 am – where the condition was imposed for a period of six months after which a review of the decision was to be made – whether the decision to impose the condition was for a “trial period” which was beyond the respondent’s power / LIQUOR LAW – LICENSING – OTHER MATTERS – where the respondent imposed a condition on the applicant’s general licences that prohibited the sale of takeaway liquor prior to 10 am – whether the Tribunal erred in law in concluding that the condition imposed by the respondent was properly directed to the minimisation of alcohol related disturbances and harm within the terms of s 107C(1)(c) and s 107C(1)(d) Liquor Act 1992 (Qld) / Commercial and Consumer Tribunal Act 2003 (Qld), s 100, s 101, s 47 / District Court of Queensland Act 1967 (Qld), s 118(3) / Federal Court Rules (Cth), O 33, r 3(b) / Liquor Act 1992 (Qld), s 21, s 30, s 31, s 34, s 107B, s 107C(1)(c), s 107C(1)(d), s 116 / A and B v Director of Family Services (1996) 132 FLR 172, considered / Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, considered / Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33, applied / Buck v Bavone (1975) 135 CLR 110; [1976] HCA 24, applied / Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305, considered / Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21, applied / Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985) 162 CLR 24; [1986] HCA 40, applied / Pearce & Anor v Button & Ors (1986) 65 ALR 83; [1986] FCA 51, considered

COUNSEL: M P Amerena, with M A Jonsson, for the applicant / M D Hinson SC, with A A J Horneman-Wren, for the respondent

SOLICITORS: MacDonnells Law for the applicant / Crown Solicitor for the respondent

McMURDO P: I agree with Muir JA that the application for leave to appeal should be dismissed with costs, and with his reasons, subject only to the following observation.

Subsections 107C(1)(c) and (d) of the Liquor Act 1992 (Qld) ("the Act") are prospective in their terms. But that does not mean that the chief executive would not be entitled to consider evidence of relevant past alcohol related disturbances or public disorder in exercising the discretion to impose conditions on a licence or permit under s 107C.

The applicant has not demonstrated any grounds justifying the grant of leave to appeal under s 118(3) District Court Act 1967 (Qld) from the District Court's decision dismissing the appeal from the Commercial and Consumer Tribunal, in turn dismissing the appeal from the respondent's imposition of conditions on the appellant's general licences issued under the Act.

MUIR JA: The applicant is the proprietor of licensed premises in Townsville in which he conducts liquor bottle shop businesses under general licences issued under the Liquor Act 1992 (Qld) (“the Act”). On 23 November 2006 he was advised by the respondent that he had imposed on all general licences in Townsville which conferred authority to sell takeaway liquor prior to 10 am the condition that “the sale of takeaway liquor is prohibited to 10 am.”

The applicant appealed, unsuccessfully, to the Commercial and Consumer Tribunal under s 30 and s 31 of the Act. He then sought leave to appeal to the District Court under s 100 of the Commercial and Consumer Tribunal Act 2003 (Qld). On 11 September 2007 a judge of the District Court granted the applicant leave to appeal and dismissed the appeal. The appeal to the District Court lay only on grounds of error of law or excess or want of jurisdiction.¹

The respondent wrote to the applicant on 20 October 2006 in the following terms:

“Dear Licensee

Section 111 Liquor Act - Notice of Intention to Vary Licence Conditions

As you know, an Alcohol Management Plan (AMP) was imposed on the community of Palm Island on 19 June 2006, resulting in strict alcohol restrictions.

There is a perceived homelessness and public intoxication problem in the Townsville CBD, Dean Park, The Strand and surrounding areas. Further, a quantity of recent evidence demonstrates that since the introduction of the Palm Island AMP, there has been a worsening in social conditions in and around Townsville, including increased public drunkenness, anti-social behaviour, homelessness and related amenity issues.

In an effort to address these matters the Townsville City Council and local Police have implemented a range of strategic measures, including the introduction of new police move-on powers, increased police beat numbers in the Townsville CBD, Mall and Dean Park, adjusted police rosters to provide early morning police patrols and a range of Council homelessness support and infrastructure.

With reference to my recent discussions held with Townsville licensees in forum conducted on 30 June and 29 September 2006, you are hereby provided with written notice that I intend to vary the existing licence conditions on all General licences in Townsville, to prohibit takeaway liquor sales prior to 10 am for a trial period of six (6) months, after which a review of this decision will be conducted.

Under section 112 of the Liquor Act 1992 you have 14 days, from the date of this letter, to notify me in writing of any objection or comment in respect of this matter.

. . . .

The Liquor Licensing Division will continue to work cooperatively with licensees in the Townsville area to monitor and review the progress of developments in respect of this matter . . . .”

In the letter the respondent invited objections and comments from the applicant. These were provided and considered. In a letter dated 23 November 2006 to the applicant, the respondent advised:

“Dear Licensee

Section 111 Liquor Act- Notice of Intention to Vary Licence Conditions

I refer to my letter of 20 October 2006 regarding the above matter.

After carefully considering the submissions lodged from licensees, I have decided to impose the following condition on all General Licences in Townsville that currently have authority to sell takeaway liquor prior to 10am.

The sale of takeaway liquor is prohibited prior to 10:00 am.

This course of action has been taken to support measures adopted by the Townsville City Council and local police to curb the perceived homelessness and public intoxication problems in the Townsville CBD, Dean Park, The Strand and surrounding areas and to support the Palm Island Alcohol Management Plan.

The condition will take effect from Monday, 4 December 2006. Please find enclosed an updated licence document.

As advised in my previous letter, this condition will be imposed for a period of six (6) months, after which a review of this decision will be conducted.

. . . ”

Grounds upon which leave to appeal is sought

The applicant seeks leave to appeal against the decision of the District Court under s 118(3) of the District Court of Queensland Act 1967 (Qld). The applicant contends that leave to appeal should be granted because:

there is a reasonable argument that the primary judge made errors requiring correction;

an appeal is necessary to correct a substantial injustice to the applicants;

the appeal would raise important questions of law having a significance extending beyond the immediate facts of the case.

Statutory provisions relevant to the application for review

The application to review the decision of the respondent was made under s 21 of the Act and s 101 of the Commercial and Consumer Tribunal Act 2003 (Qld). Under s 34 of the Act the appeal to the Tribunal against the respondent’s decision was by way of re-hearing on the evidence before the respondent². The Tribunal was not bound by the rules of evidence and was entitled to “inform itself in any way it considers appropriate.”³ In exercising its jurisdiction under s 21(1) the Tribunal had “the powers and discretions of the [respondent].”⁴

Appeal to the District Court and the grounds of appeal

The appeal to the District Court from the Tribunal’s decision was on the grounds of error of law and excess or want of jurisdiction.⁵ No excess or want of jurisdiction was identified in argument in the District Court or on this appeal. There were alleged errors of law concerning questions of construction of s 107C(1) of the Act. They will be discussed shortly. It was alleged also that the Tribunal erred in law in the following respects:

(a)In concluding, in paragraph 34 of its reasons, that the “revocation of the extended hours permits for trading prior to 10 am in the applicant’s premises outside the CBD is properly directed to the minimisation of alcohol related disturbances within the CBD of Townsville in terms of 107C(1)(d) and is further properly directed to the minimisation of harm on Palm Island in terms of s 107C(1)(c) and is in the public interest.”;

(b)In concluding, in paragraph 35 of its reasons that it was “satisfied that there is a reasonably likely connection between early morning takeaway sales at the applicant’s detached bottle shops and the harm which is occurring from sly grogging in Townsville and from public intoxication in the CBD of Townsville.”;

(c)In failing to find that there was no evidence to justify findings that trading at any time prior to 10am in the applicant’s premises outside the Townsville CBD had no connection with the minimisation of alcohol related disturbances within the Townsville CBD, had no connection with the minimisation of harm on Palm Island, and was not in the public interest;

(d)In not finding that there was no evidence to justify the finding in paragraph (b) above.

The ground that the primary judge and the Tribunal erred in failing to find that the respondent could impose conditions on licences for the purposes described in s 107C(1)(c) and (d) of the Act only if the respondent’s decision was supported by evidence that conduct falling within those provisions had actually occurred

Section 107C of the Act provides:

“(1) The chief executive may impose conditions on licences and

permits -

(a) to ensure appropriate compliance with this Act; or

(b) to give effect to an agreement about the management of premises that has resulted from a conference held under section 121 or a decision of the tribunal; or

(c) to minimise harm caused by alcohol abuse and misuse and associated violence; or

(d) to minimise alcohol related disturbances, or public disorder, in a locality.

(2) Without limiting subsection (1), a condition may, and always could, require that a patron of licensed premises or premises to which a permit relates must not be allowed to enter the premises during a stated period of a day.

Example -

a condition mentioned in section 142AA(4)”

On the hearing before the Tribunal the respondent contended that his decision was within the power conferred on him by s 107C(1)(c) and (d) of the Act.

The applicant argued before the Tribunal and the District Court that the evidence necessary to justify a condition under s 107C(1)(c) is evidence of actual harm having been caused. In the case of s 107C(1)(d), it was asserted that the evidence required is evidence of actual “alcohol related disturbances or public disorder”.

Other arguments advanced in support of this ground of appeal were as follows. Typically, where Parliament intends a (mere) prospective connection to be sufficient to justify a particular outcome, it says so within the statute in clear terms. Section 107C(1) contains no clear expression of any such intention in contrast with provisions of the Act such as s 116(3) and s 116(4). Section 107C(1)(c) and (d) use the past tense.

The applicant’s contentions were unsustainable and were abandoned by the applicant’s counsel in the course of his oral submissions. The concession was properly made. Despite the concession, it is desirable to consider the construction of these provisions in some detail, as their construction is relevant to the validity of the decisions of the respondent and the Tribunal pursuant to the provisions. Subsections (1)(c) and (d) are prospective in their terms. They contain objects or purposes for which the respondent may impose licence conditions. A condition imposed “to minimise harm caused by alcohol abuse and misuse” necessarily looks to the reduction of such harm in the future. So too with paragraph (d). The reference to “alcohol related disturbances or public disorder” cannot be a reference to past disturbances or disorder. It is quite improbable that the intention underlying S 107C(1)(d) is to confer on the respondent a power, where there has been a disturbance or public disorder in a locality, to impose a licence condition to minimise any such past disturbance or disorder. It is equally improbable that the intention in such a case, was to impose a licence condition which would minimise the consequences of the past disturbance or disorder.

It does, however, make sense to confer on the licensing authority a power to impose conditions directed to bringing about a state of affairs which, for example, would or could “minimise alcohol related disturbances”.

The improbability of the construction advanced by the applicant is illustrated by reference to s 107B, which prevents the respondent from granting an application for a permit unless certain conditions are fulfilled. The section applies if the respondent “reasonably believes that, having regard to the nature of the activity to be conducted under the permit and to minimise harm caused by alcohol abuse or misuse, the applicant” or the applicant’s nominee should undertake the licensee’s course before the permit is granted. The section relates to permits to be granted. It is thus abundantly plain that the words emphasised, which mirror, in part, the words in s 107C(1)(c), can only relate to future matters.

Principles of law applicable to the applicant’s remaining contentions

One limb of the applicant’s argument was based on the proposition that the respondent or the Tribunal can impose a condition under s 107C(1)(c) only if there is evidence before him or it which establishes on the balance of probabilities that the condition will “minimise harm caused by alcohol abuse and misuse and associated violence”. Likewise, the argument was that to rely on s 107C(1)(d) the decision maker must show that the condition would, on the balance of probabilities, “minimise alcohol related disturbances or public disorder” in the locality of the subject licence premises. Those arguments are ill-founded.

In Buck v Bavone⁶ Gibbs J, in discussing statutory provisions which give decision makers “an arbitrary or very wide discretion” observed:

“Whether the decision of the authority under such a statute can be effectively reviewed by the courts will often largely depend on the nature of the matters of which the authority is required to be satisfied. In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached. In such cases the authority will be left with a very wide discretion which cannot be effectively reviewed by the courts.”⁷

After referring to the above passage, Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu ⁸ said:

“This passage is consistent with the proposition that, where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question. It may be otherwise if the evidence which establishes or denies, or, with other matters, goes to establish or to deny, that the necessary criterion has been met was all one way.”

The principles expressed by Gibbs J in Buck v Bavone have been applied in other decisions in the High Court.⁹

Discussing the concept of unreasonableness of the kind identified in Associated Provincial Picture Houses Ltd v Wednesbury Corporation¹⁰ Gleeson CJ and McHugh J in their reasons in Minister for Immigration and Multicultural Affairs v Eshetu observed:

“Even if it . . .[the reasoning of the tribunal] did,[display error] however, there is a serious question whether the suggested error is of the kind to which the Wednesbury principle is directed. We are not here concerned, for example, with the unreasonable exercise of a discretion, and it is difficult to characterise the Tribunal's decision, even on Hill J's view of it, as an abuse of power. Someone who disagrees strongly with someone else's process of reasoning on an issue of fact may express such disagreement by describing the reasoning as "illogical" or "unreasonable", or even "so unreasonable that no reasonable person could adopt it". If these are merely emphatic ways of saying that the reasoning is wrong, then they may have no particular legal consequence.

In Puhlhofer v Hillingdon London Borough Council [1986] AC 484 at 518 Lord Brightman said:

‘Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely.’”¹¹

In Minister for Aboriginal Affairs v Peko Wallsend Ltd¹², Mason J addressed the constraints on a Tribunal’s powers to review decisions by decision makers vested with broad discretions as follows:

“. . .

(b)What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion… If the relevant factors- and in this context I use this expression to refer to the factors which the decision-maker is bound to consider - are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act.

. . .

(d)The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned: Wednesbury Corporation.

It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power.”¹³ (footnotes deleted)

The discretions conferred on the decision maker by s 107C(1)(c) and (d) are unconfined. The decision maker is required to act in good faith and to not act arbitrarily or capriciously. The decision maker is not required by s 107C(1) to consider any particular facts in making a decision to impose conditions in respect of the matters in paragraphs (c) and (d). Nor is the decision maker, with the exception stated later, obliged to hold an enquiry or to determine any facts before imposing a condition. The Tribunal’s position differs from the respondent’s in that it is required to give reasons for its decisions. It may be inferred from that, from its status as a Tribunal and from its obligation to afford natural justice, that it is obliged to find and state the facts on which it bases its decisions. However, in making its determination, the Tribunal is confined to the evidence before the respondent.¹⁴

The primary judge proceeded on the basis that the applicant would succeed on the appeal if he demonstrated that there was no factual basis for the Tribunal’s decision. In his reasons the primary judge referred to the separate reasons of Mason CJ and Deane J in Australian Broadcasting Tribunal v Bond¹⁵. Mason CJ, in his reasons, referred to the necessity that “the decision to make a finding must be based on some material that tends logically to show the existence of facts consistent with the finding”¹⁶. Deane J observed that “ . . . it was necessary that any findings of fact made by the Tribunal, upon which a reviewable decision was based, were supported by some probative material which is properly before the Tribunal.”¹⁷

In its proposed notice of appeal to this court, the applicant relied on the matters relied on in his appeal to the District Court. The alleged errors of law were the primary judge’s failure to find that the Tribunal’s findings referred to in paragraph 7 were erroneous and his failure to find that the Tribunal’s decision was made without probative evidence.

Even if a decision maker makes erroneous findings of fact, it does not follow that there is an error of law which vitiates the decision¹⁸. However, the making of findings and the drawing of inferences without any evidence to support them is an error of law¹⁹.

Contentions of the applicant in relation to the admissibility and probative value of the evidence

It was contended that although the Tribunal was not bound by the rules of evidence, it was bound to act judicially and thus would be in breach of its duty “if findings of fact upon which a decision is based are unsupported by probative material and if inferences of fact upon which such a decision is based cannot reasonably be drawn from such findings of fact.”²⁰ It was further submitted that the Tribunal should generally apply the rules of evidence unless it identifies a sound reason justifying departure. In that regard reference was made to Pearce & Anor v Button & Ors²¹ and A and B v Director of Family Services²².

Pearce & Anor v Button & Ors was a case in which a judge of the Federal Court reviewing an administrative decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth) admitted evidence, which would otherwise have been inadmissible under O 33 r 3(b) of the Federal Court Rules (Cth) which provides:

“3. The court may at any stage of the proceedings –

. . .

dispense with compliance with the Rules of Evidence where such compliance might occasionally involve unnecessary or unreasonable expense or delay, . . . ”

The evidence admitted under the rule was described as “hearsay on hearsay” and it was common ground that it was critical to the outcome of the case. All members of the Court were of the view that the rule, couched in wide terms, should be construed according to its ordinary and natural meaning. In the course of his reasons Lockhart J said in relation to the rule:

“The rule is not confined to dispensing with the Rules of Evidence to facilitate the proof of merely formal matters, but a judge should be slow to invoke it where there is a real dispute about matters which go to the heart of the case.”²³

Spender J observed, concerning the words “unnecessary or unreasonable expense or delay”, “such terms are inherently relative. What is quite unnecessary or quite unreasonable will vary with the particular circumstances, and with the nature of the evidence sought to be admitted, but the paramount consideration in such a determination must be justice between the parties.”²⁴

It is apparent from the foregoing discussion that there is a considerable gulf between the way in which a court, bound by the Rules of Evidence, should apply a provision such as O 33, r 3(b) of the Federal Court Rules (Cth) and the application of a provision which exempts a Tribunal from the Rules of Evidence and authorises it to “inform itself in any way it considers appropriate.”

A and B v Director of Family Services concerned an appeal to a judge from the decision of a magistrate under s 78 of the Children’s’ Services Act 1986 (ACT). The Children’s’ Services Act contained a provision that in respect of relevant proceedings “the court is not bound by the Rules of Evidence and may inform itself in any manner it thinks fit.” Higgins J observed in relation to the provision that “. . . it should be recognised that such provisions do not render the Rules of Evidence irrelevant. They should still be applied, unless, for sound reason, their application is dispensed with.”²⁵ His Honour’s observations were obiter as his Honour found that the Magistrate’s orders, on their face, were made invalidly.

I readily accept that the Rules of Evidence*,* based as they are on the cumulative wisdom and experience enshrined in judicial decisions, are relevant. However, whatever approach may have been appropriate in relation to a hearing under the Children’s Services Act 1986 (ACT), it is not the case that the Tribunal acting under s 47(4) of the Commercial and Consumer Tribunal Act 2003 (Qld) should act on the premise that the Rules of Evidence apply unless, for sound reason, their application is dispensed with. Such an approach imposes a procedural limitation on the Tribunal which is not to be found in the language of the evidentiary provision and, indeed, is inconsistent with it. Section 47(3) also makes plain the legislative intention that the Tribunal not adopt procedures appropriate for a court. It provides:

“The proceeding is to be conducted with as little formality and technicality and with as much speed as the requirements of this Act and a proper consideration of the matters before the Tribunal permit.”

As the hearing before the Tribunal was a re-hearing on the evidence before the respondent²⁶ no question of excluding evidence arose. It was for the Tribunal to determine the weight, if any, it should give that evidence.

In challenging the opinion evidence relied on by the respondent and the Tribunal, the applicant relied on observations of Heydon JA in Makita (Australia) Pty Ltd v Sprowles²⁷ concerning the admissibility of expert opinion evidence. In paragraph [85] of his reasons Heydon JA observed:

“In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of "specialised knowledge"; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be "wholly or substantially based on the witness's expert knowledge"; so far as the opinion is based on facts "observed" by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on "assumed" or "accepted" facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of "specialised knowledge" in which the witness is expert by reason of "training, study or experience", and on which the opinion is "wholly or substantially based", applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ's characterisation of the evidence in HG v R [1999] HCA 2*;* (1999) 197 CLR 414 (at 428[41]), on "a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise".”

It may be accepted that the above principles apply to the determinations of courts and to Tribunals bound by the Rules of Evidence. It may be accepted also that the above passage and other parts of the reasons contain valuable direction as to the use to which expert opinion evidence may be put and the weight which ought be attached to it. But as the Tribunal was limited to the evidence before the respondent, and was not bound by the Rules of Evidence it is impossible to conclude that it could not attach some weight to the evidence before the respondent of views of persons in authority living and working in the subject area, who as part of their general duties had responsibilities of their own in connection with the matters in s 107C(1)(c) and (d). Those persons were equipped, by virtue of their respective callings, experience and observations, to give informed opinions about the likely conduct of homeless indigenous people seeking supplies of alcohol and the consequences of the purchase and consumption of alcohol by such persons. Their opinions on the likely conduct of “sly groggers” was also worthy of weight, as were the opinions of other Townsville publicans on such matters. It is significant, of course, that the Tribunal was deciding whether, in its discretion, the subject condition ought be imposed for the subject purposes or one of them.

The Tribunal’s findings and their factual foundation

In paragraph 35 of its reasons the Tribunal did not find, as a fact, that alcohol purchased from the applicant’s premises had been consumed or purchased in an exercise of “sly grogging” or so as to cause “public intoxication in the CBD of Townsville.” The finding was that there “is a reasonably likely connection between early morning takeaway sales at the applicant’s detached bottle shops” and such harm. At the commencement of the paragraph the point was made that s 107C(1)(d) allowed the imposition of a condition on premises in one locality to minimise harm or disturbance in another “provided there is evidence of a connection between the operation of the affected premises and the harm or disturbance occurring in the other locality.”

It is implicit in the finding of “a reasonably likely connection” that the Tribunal concluded that the nexus between early morning trading at the applicant’s premises was sufficient to permit the conclusion that the subject condition could be imposed for the purposes expressed in s 107C(1)(d). The reference to “sly grogging” appears to be a reference to the purchase of alcohol in Townsville for consumption on Palm Island.

The Tribunal concludes in paragraph 34 of its reasons that the subject condition “is properly directed to the matters in s 107C(1)(c) and (d).”

There is evidence which supports the imposition of the condition.

It is surely not unreasonable to conclude that the imposition of later opening hours for licensed premises may assist in minimising the matters referred to in s 107C(1)(c) and (d). In particular, one would think that the respondent would need little evidence to justify a conclusion that it was appropriate to shorten the opening hours of liquor outlets “to minimise harm caused by alcohol abuse and misuse and associated violence.” Responsible persons in positions of authority with substantial knowledge of relevant conditions in and about Townsville were of the opinion that the proposed change in opening hours would assist in relevant respects.

The evidence, which was discussed by the primary judge at some length, shows that the respondent acted initially in response to concerns expressed to him by some Townsville licensees. The licensees referred to a resolution by “stakeholders” at “the January Safety Summit in Townsville” to the effect that the respondent reconsiders the re-implementation of licence conditions to prevent takeaway liquor sales prior to 10 am. The basis for the request was alleged “patron abuse” particularly by “homeless persons” acquiring liquor prior to 10 am.

An Alcohol Management Plan (“AMP”) which placed severe restrictions on the sale and availability of alcohol took effect on Palm Island in mid 2006.

There was evidence before the respondent that liquor outlets in Townsville were generally accessible to Palm Island residents who were travelling to Ingham and beyond to obtain liquor supplies.

The respondent convened a meeting of interested persons, including the holders of liquor licences in Townsville, to discuss “liquor licensing issues in connection with the sale and supply of takeaway liquor in Townsville prior to 10 am.” After that meeting, the respondent wrote to the Chief Executive Officer of the Townsville City Council and the Assistant Commissioner of Police of the North Queensland Police Region concerning the matter. He received written responses from the Chief Executive Officer and the Assistant Commissioner.

Both of those officials supported later opening hours for takeaway sales. The Assistant Commissioner was of the opinion that “the proposed takeaway liquor sales restrictions will serve to reduce the public drunkenness issues in the Townsville inner city area . . .”. The Chief Executive Officer said that: “It is the strong view of the Council that a major contributor to the problem is early morning, pre 10 am sales of alcohol.”

In the statement of reasons given by the respondent at the Tribunal’s request, the respondent referred to a meeting with representatives of the Townsville City Council on 29 September 2006 between the Executive Director of the Liquor Licensing Division, in which Council representatives gave the opinion that “for any prohibition on takeaway sales to be effective, it would need to be applied to the entire Townsville area and suburbs.” Reference was made to a suggestion in that regard by the Assistant Commissioner.

In a meeting on 30 June 2006, between the Executive Director of the Liquor Licensing Division and the Assistant Commissioner, the Assistant Commissioner advised “that while the Palm Island AMP had only been in operation a fortnight, there had been some displacement of Palm Island people, particularly chronic alcoholics to Townsville, most notably the Townsville CBD, Mall, Strand and Dean Park.” The Commissioner advised that “. . . sly grog offenders will think nothing of spending $20 or $40 on a cab fare to travel to the suburban areas on Townsville’s outskirts to gain access to sly grog.”

The respondent and the Tribunal had before them further evidence of the displacement of Aboriginals from Palm Island to Townsville as a result of the Alcohol Management Plan and of their living in public places. That evidence included a report of Mr Matthews, the Acting Principal Liquor Compliance Officer, Indigenous Licensing Unit and a statement by Ms Hunter, a client support worker with St Luke’s Nursing Service, Townsville.

On the hearing of the appeal, counsel for the applicant focussed his argument based on alleged absence of evidence on the finding in relation to “sly grogging” in paragraph 35 of the Tribunal’s reasons. It was argued that it was improbable that persons wishing to acquire alcohol in Townsville for consumption on Palm Island would travel to the applicant’s premises at Bohle²⁸, located some 19 kms from the Townsville City Centre, rather than use some more convenient location, or wait an hour for another liquor outlet to open. The appellant’s argument in this regard has some force, but even in this regard, it cannot be said that there is a complete absence of probative evidence. There is evidence that sly groggers were prepared to travel considerable distances and pay substantial taxi fares in order to obtain liquor. It is a logical assumption that extended trading hours may make a liquor outlet more convenient or attractive to some persons wishing to purchase alcohol, whether they are “sly groggers” or not.

However, the condition can be justified by reference to S 107C(1)(c). The respondent does not need to rely on S 107C(1)(d). As was discussed earlier, there is ample evidence supporting the imposition of the condition under the former provision.

Having regard to above matters, it is impossible to conclude that the respondent acted arbitrarily or capriciously or that no reasonable decision maker could have decided to impose the subject condition. Nor has the Tribunal’s decision been shown to have been made without the support of “some probative material” properly before it, or that “inferences of fact upon which [the] decision is based cannot reasonably be drawn from such findings of fact.”

Was the condition qualified or temporary in nature?

The applicant sought leave to argue another ground not raised in its application or in the previous hearings. It was that the decision to impose the condition was invalid as it was imposed for a trial period and beyond the respondent’s power. In a letter to the applicant of 20 August 2007 the respondent advised:

“The condition took effect from Monday 4 December 2006 and was imposed for a period of six (6) months, after which a review of the decision would be conducted.”

The respondent had written in his letter of 23 November 2006 to the applicant:

“As advised . . . this condition will be imposed for a period of six (6) months, after which a review of this decision will be conducted.”

On 7 September 2007, after the hearing of the District Court appeal, the respondent wrote to the applicant’s solicitors referring to a mistaken belief professed by the applicant that the condition had been imposed for a finite period of six months. The letter stated:

“A preferred view, both in fact and according to relevant case law, is that the condition was imposed pursuant to s. 107C of the Liquor Act 1992 with permanent effect. However, the Chief Executive indicated that a review would be undertaken after 6 months, with the intention of deciding whether the situation causing the original imposition of the condition had improved to a sufficient extent, as to render the condition no longer required”

…

“Clear authority exists on the inability of the Chief Executive to authorise a ‘trial period’, which effectively places a time limit on a decision. (See David Peters Loganholme Pty Ltd v Chief Executive Liquor Licensing Divison DTFTWID [2005] CCT LR 030-05).”

The language used by the respondent in his letter of 23 November 2006 was ambiguous. Although it was represented that the condition would be imposed for a period of six months, it was implicit in the words “after which a review of this decision will be conducted” that the condition would not expire automatically at the conclusion of the six month period. The condition endorsed on the applicant’s General Licence on 23 November 2006 was simply, “The sale of takeaway liquor is prohibited prior to 10.00 am.”

It was the decision to impose that licence condition which was the subject of the application to review made to the Tribunal. It was also that condition which the respondent stated he was imposing in his letter of 23 November 2006. Properly construed, the letter communicates the imposition of the condition and represents that the respondent will review his decision after six months. It is significant that the licence, amended to include the condition, accompanied the letter and was referred to in it. The point thus lacks substance.

Conclusion

It follows from the foregoing that, on the appeal to the District Court, no error of law was established and the appeal was properly dismissed.

As none of the prospective grounds of appeal upon which the applicant proposes to rely have been shown to be arguable, no purpose will be served by allowing the application for leave to appeal.

I would dismiss the application for leave to appeal with costs.

CHESTERMAN J: I agree that the application for leave to appeal should be refused with costs for the reasons given by Muir JA.

Footnotes

1. Commercial and Consumer Tribunal Act 2003 (Qld) s 100(1). ↩

2. Liquor Act 1992 (Qld) s 34(1) [For jurisdiction see also s 21 of the Act]. ↩

3. Commercial and Consumer Tribunal Act 2003 (Qld) s 47(4). ↩

4. Liquor Act 1992 s 21(2) and see also Commercial and Consumer Tribunal Act 2003 (Qld) s 47(2). ↩

5. Commercial and Consumer Tribunal Act 2003 (Qld) s 100(1). ↩

6. (1975) 135 CLR 110. ↩

7. Buck v Bavone (1975) 135 CLR 110 at 118 – 119. ↩

8. (1999) 197 CLR 611 at 654. ↩

9. Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 105 CLR 259 at 275 - 276 and Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297 at 301. ↩

10. (1948) 1 KB 223. ↩

11. (1999) 197 CLR 611 at 626 ↩

12. (1985) 162 CLR 24 ↩