TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE
– DUTY OF CARE – GOVERNMENT AND PUBLIC AUTHORITIES
– where the
plaintiffs applied for extended hours permits for their nightclubs to trade
Source
Original judgment source is linked above.
Catchwords
TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE– DUTY OF CARE – GOVERNMENT AND PUBLIC AUTHORITIES– where theplaintiffs applied for extended hours permits for their nightclubs to tradeuntil 5 am – where the policeand the Gold Coast City Council objected tothe permits – where the second defendant declined to grant theplaintiffs’applications – whether as Chief Executive administeringthe Liquor Act 1992 (‘the Act’) the second defendant owed aduty of care to the plaintiffs – whether the asserted duty of care wasconsistent with the terms, scope and purpose of the Act – whether therelationship between the Chief Executive and the applicantsfor extended hourspermits display characteristics answering the criteria for interaction by thetort of negligenceTORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE– STANDARD OF CARE – GENERALLY – where theChief Executiveread briefing notes relating to the decision which summarised police and council
objections but did not read the
voluminous supporting material – whether
the Chief Executive “had regard to” the objections – whether
the
Chief Executive breached the alleged duty of care
TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE
– DUTY OF CARE – GOVERNMENT AND PUBLIC AUTHORITIES
– whether
the State owed the plaintiffs a duty of care to ensure that the Chief Executive
acted in accordance with her obligations
under the Act
TORTS – MISCELLANEOUS TORTS – OTHER CASES – misfeasance
in public office – whether the Chief Executive acted
in excess of power
– whether the Chief Executive acted with malice when declining to renew
extended hours permits – whether
the second defendant was recklessly
indifferent to her alleged lack of power
Liquor Act 1992 (Qld), s 3, s 3A, s 49, s 102,
s 107, s 107C, s 109C, s 116, s 117, s 118,
s 118A, s 119, s 121, s 121A, s 134, s 139
Baume v Commonwealth [1906] HCA 92
(1906) 4 CLR 97, cited
Brodie v
Singleton Shire Council [2001] HCA 29
(2001) 206 CLR 512, distinguished
Colbran v State Of Queensland (2008) Aust Torts Reports
81-958
[2008] QSC 132, cited
Coshott v Woollahra Municipal
Council (1988) 14 NSWLR 675, applied
Crimmins v Stevedoring Industry
Finance Committee [1999] HCA 59
(1999) 200 CLR 1, cited
Graham Barclay Oysters Pty
Ltd v Ryan [2002] HCA 54
(2002) 211 CLR 540, applied
Jones v Department of
Employment [1989] 1 QB 1, applied
Little v Commonwealth [1947] HCA 24
(1947) 75
CLR 94, cited
Minister for Aboriginal Affairs v Peko-Wallsend Ltd
[1986] HCA 40
(1986) 162 CLR 24, cited
Northern Territory of Australia v Mengel
(1995) 185 CLR 307, cited
Perrett v Williams [2003] NSWSC 381, cited
Pyrenees Shire Council v Day [1998] HCA 3
(1998) 192 CLR 330,
distinguished
Rowan v Cornwall (No 5) [2002] SASC 160
(2002) 82 SASR 152, cited
Romeo v Conservation Commission (NT) (1998) 192 CLR 431, cited
SB v State of New South Wales (2005) 13 VR 527, considered
Sanders v Snell [2003] FCAFC 150
(2003) 130 FCR 149, cited
Stuart
v Kirkland-Veenstra [2009] HCA 15
(2009) 254 ALR 432, applied
Sullivan v Moody
(2001) 207 CLR 562, cited
Tickner v Chapman (1995) 55 FCR 316, cited
Tickner v Chapman [1995] FCAFC 1726
(1995) 57 FCR 451, considered
Trent
Strategic Health Authority v Jain [2009] 2 WLR 248, applied
Trevorrow
v South Australia (No 5) (2007) 98 SASR 136, considered
Vairy v Wyong
Shire Council [2005] HCA 62
(2005) 223 CLR 422, cited
Zhang v Canterbury City
Council [2001] NSWCA 167
(2001) 51 NSWLR 589, cited
Judgment (545 paragraphs)
[1]
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DUTY OF CARE - GOVERNMENT AND PUBLIC AUTHORITIES - where the plaintiffs applied for extended hours permits for their nightclubs to trade until 5 am - where the police and the Gold Coast City Council objected to the permits - where the second defendant declined to grant the plaintiffs' applications - whether as Chief Executive administering the Liquor Act1992 ('the Act') the second defendant owed a duty of care to the plaintiffs - whether the asserted duty of care was consistent with the terms, scope and purpose of the Act - whether the relationship between the Chief Executive and the applicants for extended hours permits display characteristics answering the criteria for interaction by the tort of negligence
[2]
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - STANDARD OF CARE - GENERALLY - where the Chief Executive read briefing notes relating to the decision which summarised police and council objections but did not read the voluminous supporting material - whether the Chief Executive "had regard to" the objections - whether the Chief Executive breached the alleged duty of care
[3]
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DUTY OF CARE - GOVERNMENT AND PUBLIC AUTHORITIES - whether the State owed the plaintiffs a duty of care to ensure that the Chief Executive acted in accordance with her obligations under the Act
[4]
TORTS - MISCELLANEOUS TORTS - OTHER CASES - misfeasance in public office - whether the Chief Executive acted in excess of power - whether the Chief Executive acted with malice when declining to renew extended hours permits - whether the second defendant was recklessly indifferent to her alleged lack of power
[1] Until 31 March 2004 each plaintiff conducted nightclubs at Surfers Paradise until 5 am under extended hours permits that were granted from time to time. On 18 March 2004 the second defendant ("the Chief Executive") refused each plaintiff's application for extended hours permits to enable them to trade after 3 am as from 1 April 2004 ("the decisions"). The plaintiffs appealed against the decisions to the Commercial and Consumer Tribunal ("the Tribunal") and on 23 March 2004 requested "interim permits" from the Chief Executive to allow trading to 5 am until the Tribunal made a decision on the appeal.[1] This was to mitigate the loss the plaintiffs were expected to suffer. The plaintiffs' solicitors said that it would be "totally unfair" for their clients to suffer these severe losses if the Tribunal at a later date was to uphold their clients' appeal. They offered to lodge further applications on the understanding that any extended hours permit would only be an interim one and would not prejudice the Department's position in relation to the refusal of the plaintiffs' original applications. The Manager, Licensing Administration took the view that there was no provision in the Liquor Act 1992 (Qld) ("the Act") to grant interim permits. On 24 March 2004 a letter signed by the Chief Executive responded to the plaintiffs' solicitor's inquiry about interim permits by stating: "I do not intend to re-visit my decisions prior to any Tribunal determination".
[31]
[2] Prior to the Tribunal's hearing of the appeal the Chief Executive and the Assistant Commissioner of Police no longer opposed the grant to the plaintiffs of a permit to trade until 5 am, provided "a lockout condition from 3 am" was imposed.[2] On 13 August 2004 the Tribunal delivered its decision to grant extended hours permits to the plaintiffs subject to a lockout condition being imposed. It found that the permits should be subject to the same management conditions as were imposed by the Chief Executive as from 1 April 2004 in respect of other late-trading venues on the Gold Coast. As a result, the decisions of the Chief Executive made on 18 March 2004 were set aside by the Tribunal.
[32]
[3] In these proceedings the plaintiffs claim damages against the Chief Executive and her employer ("the State") for losses they are alleged to have suffered as a result of not being able to trade between 3 am and 5 am from 1 April 2004 until the decision of the Tribunal on 13 August 2004. They pursue causes of action in negligence and misfeasance in public office. They plead that:
[33]
(a) The Chief Executive exceeded her powers under the Act in making the decisions and in writing the letter in which she refused to grant any interim permits to the plaintiffs ("the excess of power issue").[3]
[34]
(b) The Chief Executive "owed a duty of care in the exercise of her functions under the Act in respect of the renewal of the extended hours permits to take reasonable care to avoid foreseeable risk of injury to the Plaintiffs" ("the duty of care issue").[4]
[35]
(c) The Chief Executive breached her duty of care ("the breach of duty issue").[5]
[36]
(d) The Chief Executive knew or ought to have known that she was acting outside her powers under the Act and made the decisions on 18 March and wrote the letter on 24 March 2004 "with knowledge that the need for any recommendation to refuse an extended hours permit must be supported by documentary evidence that can be directly related to the Businesses and that is capable of being defended in any appeal hearing in the Commercial and Consumer Tribunal" ("the issues concerning the Chief Executive's state of knowledge").[6]
[37]
(e) The Chief Executive acted as alleged with malice, with intent to cause loss to the plaintiffs and/or with reckless indifference to the loss to be caused to the plaintiffs by the failure to issue extended hours permits ("the malice issues").[7]
[38]
(f) The State owed a duty of care to the plaintiffs to "ensure" that the Chief Executive "acted in accordance with her obligations under the Act" and to "process and approve the plaintiffs' applications for extended hours permits for the six month period 1 April 2004 to 30 September 2004" ("the State's duty of care issue").[8]
[39]
(g) The State breached its duty of care ("the State's breach of duty issue").[9]
[40]
(h) As a result of the decisions of the Chief Executive on 18 March 2004, her refusal to grant any interim permits to the plaintiffs and the State's negligence, the plaintiffs suffered loss and damage ("the loss and damage issues").[10]
[41]
[4] The defendants contest these matters. They contest the existence of the duties of care that are alleged, that the alleged duties were breached, that the decisions complained of were unauthorised and that the Chief Executive knew or ought to have known that her decisions were outside her powers. They plead that, on the contrary, the Chief Executive honestly and reasonably believed that she was acting within her powers, and made the decisions that she did based upon relevant materials and recommendations. In addition, the defendants plead that the Chief Executive's decisions were made honestly and without negligence with the result that pursuant to s 49 of the Act she does not incur civil liability.
[42]
[5] It will be necessary to deal in greater detail with the specific allegations raised in the parties' pleadings and submissions. In broad outline, the plaintiffs contend that the decisions were in excess of power because:
[43]
(a) there was no "substantiated evidence" from the police or the Gold Coast City Council ("GCCC"), as opposed to mere assertion in the 15 March 2004 Briefing Note upon which the Chief Executive relied;
[44]
(b) the Chief Executive did not "have regard" to the comments and objections that were received from the police and the GCCC because she read summaries of them, and did not read the actual objections;[11] and
[45]
(c) there was no "comparative evidence" of the impact of the various nightclubs in the vicinity of the plaintiffs' nightclubs to the overall amenity concerns expressed by the GCCC and the Department's Liquor Licensing Division.[12]
[46]
(a) the plaintiffs misconceive the nature of the statutory power and the process involved in the renewal of an extended hours permit as requiring the kind of substantiation that might be required in court or disciplinary proceedings.
[47]
(b) in any case, and as the Tribunal found, there was evidence of "problems associated with patrons of the applicants' premises which contribute to the incidents of violence and disorderly behaviour reported by police and officers of the [GCCC] in the vicinity of the Surfers Paradise nightclub precinct ".[13]
[48]
(c) the Chief Executive had regard to the police and GCCC comments and objections, had an accurate summary of them in the 15 March 2004 Briefing Notes, and was not required to read the voluminous objections and comments, which consisted of more than 450 pages.
[49]
(d) there was no obligation to undertake a comparative analysis of
[50]
non-compliance or laxity on the part of other nightclubs or a comparative analysis of the extent to which patrons of the applicants' nightclub were disorderly or contributed to a loss of amenity in the area.
[51]
[7] The plaintiffs complain that they were "singled out" from other premises for
[52]
non-renewal of the permits, that the Chief Executive knew that the evidence put forward by the police and the GCCC did not provide a basis for singling them out and that she failed to take account of the fact that the Gold Coast Regional Office of the Liquor Licensing Division assessed the plaintiffs' compliance as good. The defendants deny that the plaintiffs were "singled out" by the Chief Executive. The applicants' nightclubs and two others out of the 28 licensed premises on the Gold Coast backing the renewal of their extended hours permits were the subject of comments and objections by the police and the GCCC. According to the defendants, if the plaintiffs' nightclubs were "singled out", they were singled out by the comments and objections of the authorities to which the Chief Executive was required to have regard. The defendants also submit that the views expressed by an officer of the Division's Gold Coast Regional Office about the plaintiffs' compliance with the Act and patron behaviour within the premises did not render the decisions invalid or in breach of the alleged duty of care.
[53]
[8] Significantly, the plaintiffs do not contend that the decisions were invalid because no reasonable decision-maker in the position of the Chief Executive would have refused to grant the permits. Although the contention was made by the plaintiffs that the Chief Executive had no evidence of a lack of safety in and around the vicinity of the businesses,[14] this contention could not be sustained since, as the Tribunal found:[15]
[54]
"...police evidence does outline a number of incidents which indicate a direct connection to the applicants' premises. Between 27 January and 22 November 2003 there were 41 such incidents involving Cocktails and Dreams and 34 involving Crazy Horse. The incidents included serious violence of one patron against another, assault occasioning bodily harm, assault, indecent behaviour, offences against the police, obscene and offensive language and disorderly behaviour. A small number of these incidents are confined within the premises, some began inside but continued outside and some occurred when patrons were refused entry to or ejected from the premises...
[55]
The Tribunal agrees there are problems associated with patrons of the applicants' premises which contribute to the incidents of violence and disorderly behaviour reported by police and officers of the Gold Coast City Council in the vicinity of the Surfers Paradise nightclub precinct..."
[56]
The terms, scope and purpose of the statutory regime
[57]
[9] In order to determine the plaintiffs' claims that the decisions were invalid and made in breach of a duty of care, it is appropriate to first consider the statutory regime which gave the Chief Executive the power to renew extended hours permits.[16] The terms and purpose of s 121A are critical to issues of invalidity and alleged abuse of power that arise in connection with the tort of misfeasance of public office. The statutory regime is the first point of reference in determining whether a duty of care was owed to the plaintiffs.[17] The "terms, scope and purpose of the relevant statutory regime" require examination.[18] The question is whether the regime "erects or facilitates" a relationship between the Chief Executive and a class of persons of which the plaintiffs are members that, in all the circumstances, displays sufficient characteristics answering the criteria for intervention by the tort of negligence.[19]
"Renewal of permits for extension of hours beyond 3 a.m.
[60]
(1) As soon as practicable after the chief executive receives an application for renewal under section 121(6) of a permit for extension of hours beyond 3 a.m., the chief executive must tell the following about the application -
[61]
(a) the local government for the area to which the application relates;
[62]
(b) the assistant commissioner for the locality to which the application relates.
[63]
(2) The local government or assistant commissioner may comment on, or object to, the application by giving written comments or objections to the chief executive within 14 days of receiving the chief executive's advice about the application.
[64]
(3) In considering the application, the chief executive must have regard to -
[65]
(a) comments and objections received under subsection (2); and
(c) the impact on the amenity of the community concerned."
[68]
[11] The long title of the Act describes it as an Act "to regulate the sale and supply of liquor and the provision of adult entertainment". The objects of the Act are:[21]
[69]
"(a) to facilitate and regulate the optimum development of the tourist, liquor and hospitality industries of the State having regard to the welfare, needs and interests of the community and the economic implications of change; and
[70]
(b) to provide for the jurisdiction of the tribunal to hear and decide appeals authorised by this Act; and
[71]
(c) to provide for a flexible, practical system for regulation of the liquor industry of the State with minimal formality, technicality or intervention consistent with the proper and efficient administration of this Act; and
[72]
(c) to regulate the liquor industry in a way compatible with -
[73]
(i) minimising harm arising from misuse of liquor; and
[74]
(ii) the aims of the National Health Policy on Alcohol; and
[75]
(e) to regulate the sale and supply of liquor in particular areas to minimise harm caused by alcohol abuse and misuse and associated violence; and
[76]
(f) to regulate the provision of adult entertainment; and
[77]
(g) to provide revenue for the State to enable the attainment of the objects of this Act and for other purposes of government."
[78]
[12] The underlying principle of the Act in relation to the sale and supply of liquor is:[22]
[79]
"(a) a person may obtain a licence to sell or supply liquor as part of conducting a business on premises; and
[80]
(b) liquor may only be sold or supplied on the licensed premises as part of the person conducting a business, on the licensed premises, that is the primary purpose under the licence."
[81]
[13] Part 4 of the Act makes detailed provision for a variety of licences and permits. Part 4 provides for the granting of a variety of permits including an extended hours permit. That permit authorises the holder of the permit to sell liquor at their licensed premises at the times, and subject to the conditions, specified in the permit.[23]
[82]
[14] Section 107C gives the Chief Executive power to impose conditions on licences and permits to, amongst other things:
[83]
minimise harm caused by alcohol abuse and misuse and associated violence; or
minimise alcohol-related disturbances, or public disorder, in a locality.
[84]
[15] Section 109C provides that an applicant for a licence, or a licensee, may apply for an extended hours permit for the relevant premises. Section 116 requires an applicant for certain specified licences or for an extended hours permit that would extend trading hours on a regular basis to satisfy the Chief Executive that it is in the public interest for the application to be granted.[24]
[85]
[16] As soon as practicable after the Chief Executive receives an application to which
[86]
s 116 applies the Chief Executive must tell the local government for the relevant locality about the application. In addition, if the application is for an extended hours permit the Chief Executive must tell the Assistant Commissioner of Police for the relevant locality.[25] The local government or Assistant Commissioner may:[26]
[87]
(a) comment on the reasonable requirements of the public in the locality; or
[88]
(b) object to the grant of the application on the grounds that the amenity, quiet or good order of the locality would be lessened.
[89]
[17] Section 118(1)(c) requires an application for an extended hours permit that would extend trading hours on a regular basis to be advertised. Section 118A enables an application that is required to be advertised to be the subject of written submissions concerning the public interest matters to which the Chief Executive must have regard under s 116.Section 119 allows for a member of the public to object to the grant of the application. Section 121 provides for the applicant and persons who properly made an objection to the grant of an application to attend a conference. In deciding whether to grant an application the Chief Executive must have regard to a variety of matters including the public interest matters referred to in s 116, objections made to the grant of the application and comments from the local government for the area to which the application relates. In the case of an application for an extended hours permit the Chief Executive must have regard to comments from the Assistant Commissioner of Police for the locality to which the application relates. Regard must be had to the impact on the amenity of the community concerned. In the case of an application for an extended hours permit to trade beyond 2 am the Chief Executive must have regard to:
[90]
"(a) the previous conduct of the applicant in discharging any duties under this Act previously placed on the applicant, especially for the premises for which the extension is sought; and
[91]
(b) the applicant's ability to control the noise and behaviour of the number of persons that could reasonably be expected to be on and in the vicinity of the premises if the extension were granted; and
[92]
(c) the suitability of the premises and its facilities for the purpose for which the extension is sought."
[93]
[18] If the Chief Executive grants an extended hours permit for extension of hours beyond 3 am, the permit remains in force for a maximum period of six months and may be renewed only on application to the Chief Executive.[27]
[94]
[19] It is arguable that in order to renew an extended hours permit the applicant must satisfy the Chief Executive that it is in the public interest for the application to be granted. In this matter the Tribunal interpreted the Act as requiring an applicant to renew an extended hours permit to satisfy this public interest element. This view derives support from the fact that each permit has a finite duration, that a successful application under s 121A results in a new permit, and, in this sense, an application to renew under s 121A attracts s 116 because it is, strictly speaking, "an application for an extended hours permit that would extend trading hours on a regular basis".[28] However, the Liquor Licensing Division and the Chief Executive in this case did not treat the applications for renewal as requiring satisfaction of the public interest element of s 116 and advertising of the applications.
[95]
[20] The plaintiffs contend that an application for renewal, unlike an application for a new permit, does not need to satisfy the public interest requirement. The defendants formally submitted that it does, but were content to argue the matter on the alternative basis that the power to renew a permit under s 121A was to be exercised so as to advance the objectives of the Act, and these included "the welfare, needs and interests of the community". I determine the issue concerning the application of s 116 on the basis for which the plaintiffs contend, and which the defendants adopted at the time of the applications, namely that the applications for renewal did not require the Chief Executive to be satisfied under s 116 that "it is in the public interest for the application to be granted". However, the public interest considerations that appear in the Act's objects and the impact on the community and its amenity of renewing extended hours permits would be relevant to the Chief Executive's decision to renew an extended hours permit. A purpose of the Act is to regulate the liquor industry having regard to the welfare, needs and interests of the community. Another purpose is to minimise harm arising from the misuse of liquor. These purposes, the Act's provisions that address noise, the behaviour of persons on and in the vicinity of licensed premises and the amenity of the community indicate that the determination of an application to renew an extended hours permit requires regard to the public amenity and other specified matters and may involve other public interest considerations.
[96]
[21] Section 121A provides that as soon as practicable after the Chief Executive receives an application for renewal under s 121(6) of a permit for extension of hours beyond 3 am, the Chief Executive must tell the local government for the area to which the application relates and the Assistant Commissioner of Police for the locality to which the application relates. The local government or Assistant Commissioner may comment on, or object to, the application by giving written comments or objections to the Chief Executive within 14 days of receiving the Chief Executive's advice about the renewal application.
[97]
[22] The Act has been interpreted by the Tribunal so that "considerable weight" will be given to the views of the local authority as speaking on behalf of the local community and the views of the Queensland Police Service when deciding whether or not to grant or renew extended hours permits. This accords with the Minister's Second Reading Speech on the Liquor Amendment Bill 1994 which introduced extended hours permits. The speech stated:[29]
[98]
"The Bill also provides reform of the extended hours permit system by differentiating between any regular extension of hours after 3 am and those up to that time. From 31 March 1995, all extended hours permits past 3 am will expire and will require renewal every six months from that date. The views of the relevant local government and assistant police commissioner will be invited at the time of each renewal.
[99]
Where sustainable evidence is provided by the local government or the police that the amenity of the area or the functions of those bodies in maintaining the amenity would be assisted by the non-renewal of a permit or all permits in the area, serious weighting will be given to their submissions."
[100]
[23] Licensees that are granted extended hours permits by satisfying the Chief Executive of their suitability, the suitability of their premises, their ability to control noise and the behaviour of patrons on and in the vicinity of their premises, the impact on public amenity and other public interest considerations acquire a permit that may be of substantial value. A purpose of the Act is to facilitate the development of the tourist, liquor and hospitality industries, and, it might be argued, that this purpose, the purpose of providing "revenue for the State" and the welfare of the community are advanced by granting licences and permits to licensees who comply with their duties under the Act. However, the purpose of the Act is not to advance the private interests of licensees who satisfy its requirements. A permit may be cancelled if the Chief Executive is satisfied that the use of the premises in respect of which the permit is held at the times authorised by the permit, or the behaviour of persons entering or leaving the premises at or about those times -
[101]
is causing undue annoyance or disturbance to persons living, working or doing business in the neighbourhood of the premises; or
is causing disorderly conduct in, or in the neighbourhood of, the premises.[30]
[102]
Such a cancellation may cause significant economic loss to the licensee whose permit is cancelled, but the Act provides that compensation is not payable to any person in respect of such a cancellation.[31] The Act confers valuable licences and permits upon persons who satisfy its requirements, but these are granted as a matter of discretion and may be cancelled in certain circumstances without compensation. The Act does not exist for the protection of persons who hold licences and permits.
[103]
[24] The Act seeks to regulate the liquor industry in a way that is compatible with minimising harm arising from misuse of liquor, and the aims of the National Health Policy on Alcohol.[32] The aim of the National Health Policy on Alcohol is the "minimisation of the harm associated with alcohol use while interfering as little as possible with the freedom of individuals to exercise personal responsibility for the use or non-use of alcoholic beverages".[33] This is achieved through various educational and control policies. Paragraph 2.2 of the National Health Policy on Alcohol deals with "availability":
[104]
"The availability of alcohol in Australian society is a reflection of a number of considerations, including the attitudes and values of Australians towards alcohol, which themselves determine such things as the legal minimum drinking age, hours of trading and the number and type of outlets all of which fall within the jurisdiction of the States and Territories.
[105]
Even though there is no single and invariable relationship between alcohol availability and alcohol problems, in every situation where it is proposed to increase availability, the real possibility of increasing problems should be considered. Similarly, the possibility of decreasing problems by reducing availability should also be given serious consideration."
[106]
[25] Some of the Act's objects potentially conflict. One object is to provide revenue for the State "to enable the attainment of the objects of [the] Act and for other purposes of government".[34] The provision of revenue for the State based upon sales of liquor may be enhanced by increased availability and increased sales, whereas increased availability and increased sales may increase, not minimise, harm associated with alcohol use. In general terms, the purpose of the Act is to regulate the sale and supply of the liquor, and a principal object is "the welfare, needs and interests of the community". This differentiates the Act from one which exists for the protection of a class of individuals.
[107]
[26] The Act confers a power on the Chief Executive to grant a renewal of an extended trading permit. It does not confer a right to a renewed permit upon proof of certain matters, or even upon the satisfaction of the Chief Executive that certain matters exist. The exercise of the power, whilst constrained by administrative law principles and the specific matters to which the Chief Executive must "have regard", is not constrained by an exhaustive list of matters.[35] It follows that the Chief Executive is not required to grant a permit under s 121A upon proof that the applicant has previously complied with the Act, or, indeed, upon proof of any other matter.
[108]
[27] The power is contained in an Act that is concerned about the protection of the community, including public safety and the amenity of the community. It is a regulatory provision, not a disciplinary provision, and a permit might be refused by reason of matters beyond an applicant's control. For instance, the noise and behaviour of persons that could reasonably be expected to be outside, but in the vicinity of, the applicant's premises, may be beyond the applicant's ability to control.[36] However, such noise and behaviour is a matter to which the Chief Executive must have regard.
[109]
[28] The terms of the Act, the 14 day timeframe for police and council comments and objections, and the subject matters to which those comments and objections may be directed differentiate the provision from one in which the grant or refusal of a permit, licence, qualification or certificate depends upon proof of certain matters. The police and the council are not required to prove some failure on the applicant's part, or prove that noise or behaviour in the vicinity of the premises is due to the manner in which the applicant conducts its operations. If the police or the council make comments and objections adverse to the applicant, then procedural fairness and sound administrative practice require the applicant to be given an opportunity to respond. The Chief Executive should consider whether the comment or objection can be sustained in the light of the response and other information. However, the process is not one of proof of the kind undertaken in court or disciplinary proceedings.
[110]
[29] The Chief Executive's consideration of comments and objections, and responses to them, occurs in a context in which comments and objections are to be submitted in a fortnight, and in which substantiation or refutation of certain allegations may be difficult. For instance, an allegation of unruly conduct by persons in the street, who are alleged to have been previously in an applicant's premises, or intending to go there, may be difficult to prove and difficult to refute weeks or months after the event. Not all incidents that may be of concern to the police or the council will lead to an arrest or proceedings, or constitute a breach of the applicant's duties under the Act. It may be practically impossible to prove, or disprove, that disorderly conduct in the vicinity of the premises, and loss of amenity, was due to patrons of the applicant's premises, rather than patrons of other nightclubs in its vicinity. Even alleged behaviour of persons on the applicant's premises may be the subject of conflicting accounts which, by their nature, may be difficult to prove or disprove. The example was given in submissions of an allegation of "drink stacking" of 20 drinks at a table occupied by three people, where the explanation was given by the plaintiffs' solicitors that most of the other persons from that table were on the dance floor and it was "not clear" how may patrons purchased the 20 drinks.
[111]
[30] In the administrative, regulatory context in which s 121A operates, in which police and council comments and objections rely on allegations of varying degrees of generality about the past conduct of persons on or in the vicinity of an applicant's premises, and in which neither the police nor the council are required to prove anything, the term "insufficient evidence"[37] assumes a different meaning to its meaning in the context of court or disciplinary proceedings. One reason is the Act does not create an entitlement to a permit upon the proof of certain facts. A second reason is that the criteria by which the Chief Executive determines an application are not exhaustively stated in the Act. A third reason is that considerations such as impact on amenity[38] and the potential for harm arising from misuse of alcohol are matters about which views may reasonably differ in a particular case. Whether or not material, including material in police and council comments and objections, provides "sufficient evidence" is a matter for the Chief Executive's assessment, subject to an appeal by way of rehearing to the Tribunal.
[112]
[31] The plaintiffs' contention that the Chief Executive was obliged to "ascertain whether there was any comparative analysis of non-compliance or laxity on the part of other late-night venues in the vicinity, or evidence as to the level of misconduct associated with other premises in the vicinity"[39] requires consideration of s 121A. Section 121A is premised on there being a single application for renewal of an existing extended hours permit, and does not call for a comparison between the applicant and other applicants. Fairness and good public policy may dictate equal treatment of an applicant whose circumstances are the same as another applicant. However, a comparative analysis is not expressly required by the Act, and does not arise as a matter of necessary implication.
[113]
[32] The Act permits an application under s 121A to be granted or refused according to a broad discretionary power given to the Chief Executive. The Chief Executive in practice may consider an applicant's premises and business in comparison to others, and assess, if possible, their relative contributions to noise, disorder and other problems in their vicinity. However, the Act does not require such an exercise. If the Chief Executive is authorised to refuse an applicant's renewal application on the basis of the matters to which regard must be had under the Act and in order to achieve the Act's purposes, then the Chief Executive's exercise of power is not invalidated because other premises are no better than the applicant's premises and also contribute to noise, disorder and a loss of amenity in the same vicinity.
[114]
[33] In summary, s 121A is part of a statutory regime that is principally concerned with the welfare of the community, not the welfare and protection of applicants for extended hours permits. The Act confers a broad discretionary power on the Chief Executive, who must have regard to the matters specified in s 121A(3). The grant of an application to renew a permit does not arise as a matter of right upon satisfaction by the applicant of stated criteria, or in the absence of proof by the police or the council of their objections. The Chief Executive must have regard to matters, including police and council objections, but ultimately decides an application on its merits and so as to achieve the Act's purposes. Applicants whose interests are adversely affected by a decision have an appeal on the merits to an independent tribunal.
[115]
The role of the Chief Executive and her sources of advice
[116]
[34] The second defendant was the Chief Executive of the Liquor Licensing Division which was responsible for regulating, granting and ensuring compliance with liquor licenses in Queensland.[40] She also was the Director-General of the Department of Tourism, Fair Trading, Racing and Wine Industry Development, which had portfolios for Tourism, Fair Trading, the Office of Racing and Liquor Licensing and Adult Entertainment.[41] There were 600 to 650 staff in the department with 15 regional offices and an operating budget of approximately $55 million. The second defendant's role as Director-General required that she be involved in staff issues, attend many meetings each week, including meetings with the Minister, Executive Directors of the portfolios within the department and with the other Director-Generals, and to discuss reviews of legislation.[42]
[117]
[35] The second defendant chaired or was a member of several boards and committees.[43] These had regular meetings, in some cases monthly, in others every couple of months.[44] She was also required to oversee the administration of various tribunals and appeals tribunals, including the Commercial and Consumer Tribunal, the Racing Appeals Tribunal and the Residential Tenancies Authority.[45] The second defendant also held a position as the government representative for the Kowanyama indigenous community in Cape York.[46] She testified that the role required trips to the Cape, multiple meetings and telephone conferences.[47] She was the contact point for the community, and dealt with their requests.[48]
[118]
[36] The second defendant had a lengthy career in the public service, including serving in the Victorian Public Service until 1995, the Brisbane City Council between 1995 and 1999 and the Queensland Public Service from 1999 until her retirement in July 2007. She became the Director-General of the Department of Tourism and Fair Trading in September 2003, after being the Director-General of the Department of Corrective Services for approximately two and half years. The second defendant was the Director General of the Department from September 2003 to July 2006.
[119]
[37] As Chief Executive the second defendant relied upon advice from the Liquor Licensing Division. An Executive Director oversaw the Liquor Licensing Division,[49] and reported directly to the Chief Executive.[50] A Deputy Director-General, Lorna Andrews, had the role of Acing Executive Director of Liquor Licensing until late 2003.[51] Mr Mike Kelly then occupied the position. Mr Wayne Briscoe was the Acting Executive Director after February 2004.[52]
[120]
[38] Within the Division there was a Liquor Operations Branch, and the Executive Manager of that Branch after January 2004 was Mr Geoffrey Murphy.[53] Mr Murphy was concerned with the objections made by the police and the GCCC, and how the applications should be dealt with by the department.[54] The Executive Manager was responsible to the Executive Director.[55] A Licensing Administration Unit and the Compliance Unit also existed. Mr Mark Farrah was the Manager, Licensing Administration in March 2004.
[121]
[39] Matters were referred to the Chief Executive by Memoranda or Briefing Notes for her information or for a decision to be made. Some of these Briefing Notes would be prepared but never presented to the Chief Executive.[56] In addition, the Chief Executive met with the Executive Director formally once a week, and informally as often as once a day.[57] Where decisions needed to be made on questions such as licensing, the Chief Executive would normally receive the Briefing Notes and an oral briefing at a meeting.[58] Mr Briscoe said it was normal during meetings with the Chief Executive to "go over the Briefing Note itself prior to her [the Chief Executive] signing it".[59] The Briefing Notes would have various options available, and the acting Executive Director of the Division would recommend a preferred option.[60] The second defendant almost always made the decision recommended by the Executive Director.[61] Usually, the meetings would involve 20 or 30 applications for licences that had to be renewed which were given to the Chief Executive in a bundle.[62]
[122]
[40] On occasions the second defendant would refer material to a committee independent from the Liquor Licensing Division if there were any contentious or complex matters which warranted the committee's advice.[63] The committee consisted of the head of the Wine Industry Division, the head of Finance and the head of Corporate Services.[64] The second defendant did not recall whether she referred the plaintiffs' applications to the committee.[65]
[123]
[41] The second defendant would read the Briefing Notes at home or in her office prior to the meeting at which its content was to be discussed.[66] Although the second defendant was busy, she did not contend that she was too busy to take time to properly consider the applications. In fact, she stated that she may have made time within her work schedule to accommodate further consideration of the matter if this had been required.[67]
[124]
[42] Before giving an account of the decision-making process and making findings on factual matters that are in dispute, it is necessary to observe that the focus of the plaintiffs' claims is on what the Chief Executive did or omitted to do, not on the conduct of the persons within the Liquor Licensing Division to whom she looked for advice, or on the adequacy of the decision-making processes adopted by the Liquor Licensing Division. For instance, the issue is not whether someone or other was required to read the voluminous police objections and analyse them, but whether the Chief Executive was personally obliged to read those documents. If the Chief Executive owed the duty of care for which the plaintiffs contend, then the content of that duty and issues in relation to its breach fall to be determined by reference to the standard of care to be expected of such a decision-maker, who necessarily relies on others for oral and written advice. The duty of care contended for by the plaintiffs[68] is said to be owed by the Chief Executive personally, not by the State. Subject to the separate contention that the State owed a duty of care to the plaintiffs to:
[125]
(a) ensure that the Chief Executive acted in accordance with her obligations under the Act;[69]
[126]
(b) process and approve the plaintiffs' applications for extended hours permits for the six month period 1 April 2004 to 30 September 2004;
[127]
this is not a case about an alleged lack of care by officers of the Liquor Licensing Division who provided information, advice and recommendations to the Chief Executive. The State is not alleged to have owed a duty to take reasonable care to avoid foreseeable risk to the plaintiffs in respect of the course of the decision-making process that I will now describe.
[128]
[43] Between 1989 and 2007 the first plaintiff operated two nightclubs in Orchid Avenue Surfers Paradise: 'Cocktails and Dreams' and 'The Party Nightclub'. The second plaintiff has operated the 'Crazy Horse Nightclub', the 'Bourbon Bar' and 'Micky's Café' in Orchid Avenue since 1992. The plaintiffs' licences permitted them to trade until 3 am. After 1996 the plaintiffs traded until 5 am pursuant to extended hours permits that were renewed every six months. The plaintiffs' nightclubs were in close proximity to a number of other nightclubs that were allowed to trade until 5 am.[70]
[129]
[44] During mid-2003 concerns were expressed by the Queensland Police Service and the GCCC about behaviour in Orchid Avenue, which led to the police assembling reports on the behaviour and the GCCC monitoring the situation. The GCCC's objections to extended hours permits were of a general kind, rather than in respect of particular nightclubs.[71] On 27 August 2003 the GCCC restated its long-standing concerns regarding the effect of extended hours permits in Surfers Paradise after 3 am on grounds of public amenity. It referred to the unwelcome interaction between alcohol-affected patrons and other persons using the streets and beaches of Surfers Paradise in the early hours of the morning, litter, noise, intoxicated persons within the precinct, security and safety and public urination by persons who had left nightclubs. The GCCC stated that it was:[72]
[130]
"extremely concerned about adverse amenity impacts, particularly violence in the Surfers Paradise precinct and the contribution of late night trading to loss of amenity."
[131]
[45] In September 2003 the police lodged objections for the following nightclubs: Cocktails and Dreams and The Party,[73] Crazy Horse and the Bourbon Bar,[74] Shooters Saloon Bar and Mybar and The Drink Nightclub and Bad Girls.[75] Four applicants operated these eight nightclubs in Orchid Avenue, Surfers Paradise. The Assistant Commission of Police informed the Executive Director of the Liquor Licensing Division by letter dated 8 September 2003 that records indicated that these eight premises combined allegedly served liquor to 35.7 per cent of offenders arrested for public drunkenness within the Gold Coast district prior to arrest, and were currently licensed to hold over 3,375 patrons.[76] The objections were made on the grounds that if the applications were granted, undue annoyance, disturbance or inconvenience to persons who resided, worked or did business in the locality was likely to happen, or the amenity, quiet or good order of the locality would be lessened. Separate objection reports were prepared in respect of each application. The objection reports contained a general objection to alcohol consumption in Orchid Avenue, and then detailed specific situations of offending behaviour in bars along Orchid Avenue, including the plaintiffs' premises. The reports provided a list of offences and where they were committed.[77]
[132]
[46] On 10 September 2003 a Senior Licensing Officer, Mr Reinhold, sent a Memorandum to Mr Mark Farrah, the Manager, Licensing Administration Unit of the Liquor Licensing Division in relation to the police objection to an extended hours permit for Cocktails and Dreams. The Memorandum addressed the GCCC and police objections and calls for service to the Queensland Ambulance Service ('QAS') to the area of Orchid and Cavill Avenues. Whilst not identifying any direct link between calls for ambulance services and the businesses, the QAS data was said to be relevant and supported the police objection. The Memorandum noted that the incidents referred to by the police did not relate specifically to the businesses or to the 3 am to 5 am period and that the statistics known as "drunk figures" related to the Orchid Avenue generally. The conclusion was reached that Orchid Avenue had a disproportionate number of drunken arrests. As to liquor related incidents, the Memorandum stated:[78]
[133]
"All liquor related incidents in this section relate to Cocktails and Dreams. The incidents represent a detailed collection of incidents including assault occasioning boldily [sic] harm, indecent behaviour, drug offences, public drunkenness, offences against police including assault and resisting arrest, hinder or obstruct and many disorderly conduct instances. The offences are numerous and while not including sexual assault as associated with other premises, are sufficient to describe an atmosphere of illegality that has a direct causal nexus to patrons in and around Cocktails and Dreams..."
[134]
It was noted that most of the offences were over the late night to early morning period, and not all of the incidents were specific to the 3 am to 5 am extended hours period. However, the opinion was expressed that the 3 am to 5 am period could not be considered as a distinct and separate period. The Memorandum concluded:
[135]
"I find that there is a sufficient weight of evidence on which, in the absence of evidence to the contrary, the Chief Executive could reasonably rely on to refuse the application. The police report is supported by local regulatory bodies and reveals endemic patron behaviour problems associated directly with Cocktails and Dreams."
[136]
[47] On 11 September 2003 Mr Reinhold submitted a similar Memorandum in relation to the police objection to the Crazy Horse nightclub. In relation to liquor related incidents the Memorandum stated:[79]
[137]
"All liquor related incidents in this section relate to Crazy Horse. Amongst incidents reported are a range of assaults, disorderly conduct matters, assault causing unlawful wounding, robbery and obscene or offensive language. Some of the assaults are particularly brutal, involving malicious use of glass and violence on one patron by another. The offences are numerous and cannot be written off as simple occurrences in the everyday running of a premises. There is a clear connection between Crazy Horse and the actions of its departing patrons. As with other premises, it is difficult to avoid the conclusion that a common factor is alcohol."
[138]
Mr Reinhold stated that the police incident reports presented "a substantiated case for a review of the extended hours trading" and that a sufficient nexus was established between extended hours and the level of public order incidents in and around Crazy Horse. He concluded that there was a sufficient weight of evidence on which the Chief Executive could reasonably rely on to refuse the application for an extended hours permit for Crazy Horse. His general overview was as follows:
[139]
"The police state generally that there are serious street offences occurring in relation to Crazy Horse around the immediate area outside the premises. As with the other three identified premises, common factors are excessive alcohol consumption and extended trading hours. The impacts are a high risk of injury and disturbance to residents, patrons, visitors and police present in the area at this time."
[140]
[48] On 26 September 2003 the Chief Executive gave all licensed premises on the Gold Coast extended hours permits for a further 2 months, ending at 30 November 2003, in order to allow licensees to respond to the objections of the GCCC and the police. The Liquor Licensing Division then monitored the situation for the period between 26 September and 30 November 2003. The monitoring program involved ten compliance visits to the first plaintiff's premises and four compliance visits to the second plaintiff's premises.
[141]
[49] In October 2003 the plaintiffs sought to adopt a voluntary code of behaviour (the 'Gold Coast Licensees Accord')[80] which was decided upon by the Surfers Paradise Licensed Venues Association. The responsibilities of each licensed premises, as listed in the accord, was to maintain a safe and secure environment at licensed premises. This was done through various means, including RSA (Responsible Service of Alcohol) training and providing alcohol-free and low-alcohol drinks. Mr Reinhold described the accord as something that:
[142]
"would certainly address all the issues that recent evidence from the police has revealed. The challenge is always converting the rhetoric to reality."[81]
[143]
[50] On 15 November 2003 the Chief Executive was given a Briefing Note with regard to the extended hours permit applications. This Briefing Note stated that four premises[82] were the subject of detailed objections from the police. The report stated that disciplinary action could be taken against the four, although
[144]
"[w]hile they are obviously the 4 worst in the eyes of the police, much of the evidence in the police objections points to problems in the vicinity of Orchid/Cavill/Elkhorn Avenues".[83]
[145]
The Chief Executive read and made notations on this document.
[146]
[51] Ms Lorna Andrews, the Acting Executive Director prepared a Briefing Note dated 17 November 2003 that reported on the plaintiffs' solicitors' response to the police objections and recommended that the Chief Executive refuse the application for extended trading permits. The note was unsigned, and was not given to the Chief Executive.[84] However, it reflects the Division's attitude at the time.
[147]
[52] An internal memorandum written by the Acting Manager of the Gold Coast Regional Office to the Acting Executive Director of the Liquor Licensing Division, Lorna Andrews dated 20 November 2003 stated that for Cocktails and Dreams and Crazy Horse the level of compliance with the Act was assessed as good.[85] The overall summary of compliance at the premises visited (including Cocktails and Dreams and Crazy Horse) suggested that:[86]
[148]
"The patron behaviour within the premises visited was generally considered good with clear evidence of [responsible service of alcohol] commitment by most premises. This commitment involved active efforts to prevent patrons stockpiling drinks, identifying high risk intoxication issues and addressing them and adequate security staff to deter inappropriate behaviour. However it is felt that in particular with some premises that this commitment was due to the increase (sic) presence of licensing staff after hours.
[149]
The conduct of patrons outside the premises and in public places is another matter and though there were only two observations by liquor staff concerning specific conduct there is always the risk of this conduct occurring. This assessment is based upon the number of young persons moving between premises from about 11 pm onwards and the groups that gather in pedestrian and other public areas. There is evidence that young persons commence drinking outside the precinct at their local clubs or at home and migrate late in the evening or early morning to the precinct where they are eventually denied access to the nightclubs or asked to leave due to the state of intoxication and consequently congregate in the streets and contribute to the disorderly conduct alleged by the QPS."
[150]
This Memorandum appears to be unsigned. When Mr Wayne Briscoe, who later became Acting Executive Director in the Liquor Licensing Division, was asked about the document, he stated that he could not recall it. The Chief Executive also did not recall it.[87]
[151]
[53] An objection to the granting of further permits was received by the Liquor Licensing Division from the GCCC on 25 November 2003. In it the GCCC states its general objection to the granting of extended hours permits beyond 3 am, and lists altercations and incidents observed by GCCC staff in the precinct. Reference is made to, among other premises, Cocktails and Dreams, The Bourbon Bar and Crazy Horse Nightclub.[88]
[152]
[54] On 27 November 2003, the Chief Executive agreed to extend the extended hours permits until 31 March 2004, after receiving a recommendation to that effect in a Briefing Note of the same date. This extension was designed to give the licensees a chance to respond to the police and the GCCC objections. On the same day, a second set of objections were filed by the police against both Crazy Horse and Cocktails and Dreams. Much of the material included in the report was restated from the earlier objections.
[153]
[55] A Briefing Note entitled "Situation - Gold Coast Extended Hours Permit Applications" dated 16 December 2003[89] outlined the evidence and material concerning Crazy Horse and Cocktails and Dreams at that date.[90] This document was signed by Mr Mike Kelly, Executive Director of the Liquor Licensing Division, but it was not signed by the Chief Executive, nor did she have any recollection of reading it.[91] The fact that it was not signed by her indicates that she probably did not receive it.
[154]
[56] There is no dispute that the Chief Executive received a Briefing Note dated the 23 December 2003, and it is likely that she met with its author, Mr Kelly, the Executive Director of the Liquor Licensing Division on 23 December 2003.[92] The plaintiffs submit that the photocopy of the 23 December 2003 Briefing Note that became part of Exhibit 8 bears "vestigial marks" of the Chief Executive's signature, but I do not accept that this is the case, and if it had been signed it is likely that the Chief Executive would have inserted the date that she signed the note. However, no date appears to have been inserted in the space provided in the document. It is probable that Mr Kelly brought the document to his meeting with the Chief Executive and discussed its contents. His recommendation that 30 January 2004 be approved as the final date for receipt of all objections and that the police, GCCC and permit applicants be formally notified was approved and carried into effect.
[155]
[57] I find that it is likely that Mr Briscoe met with the Chief Executive and gave the Briefing Note to her on 23 December 2003. Rather than read and sign the Briefing Note in the absence of its author, as would be her common practice, the Chief Executive probably relied on an oral briefing and approved Mr Briscoe's recommendation that day. It is understandable that nearly six years after the event the Chief Executive could not recall whether or not she read the Memorandum at the time.
[156]
[58] If the Chief Executive read the Briefing Note during the briefing from Mr Briscoe, or was told of its contents then she would have been aware that the police and the GCCC had provided "substantial material" as objectors and intended to lodge further evidence in early 2004. The information that had been provided by the objectors up to that date related to the four specific premises (Shooters, The Drink, Crazy Horse and Cocktails and Dreams) to which the police objected and information about the Surfers Paradise precinct generally. That information had yet to be "formally assessed" and the applicants were to be provided with an opportunity to make a final response. The Briefing Note stated:
[157]
"While substantial material has been provided by objectors, a clear relationship between alcohol related street offences and the operation of a specific premises must be established if any application is to be refused.
[158]
In its decision of 24 November 2003 (which granted a 5 am permit to the Baja Nightclub in Coolangatta) the Commercial and Consumer Tribunal found that the street offence data provided by the QPS in support of their objection "was not sufficiently cogent to warrant refusal". While the evidentiary material provided by QPS in that case was not as substantial as that provided in their current objections to the Surfers Paradise applicants, it was comparable in substance."
[159]
[59] The Briefing Note of 23 December 2003 attached an overview of evidence that had been provided by the police, GCCC and the Liquor Licensing Division's regional office. It noted that incident reports provided by the police did not contain the outcome of the incidents reported, i.e. whether they had been substantiated, were still under investigation or subject to prosecution. It detailed several serious incidents reported by the police in relation to Cocktails and Dreams, including six assaults occasioning bodily harm, one grievous bodily harm and one common assault.[93] It also reported five incidents relating to deficient hospitality practices and seven public order offences on the premises. The incidents reported by the police in relation to Cocktails and Dreams were said to be "a serious cause for concern if they are substantiated" and the document gave examples of various offences and incidents. It commented that, based on the evidence, serious consideration could be given to refusing the permit, if the incidents could be substantiated. In relation to Crazy Horse, the overview referred to 10 public order incidents on the premises, three violence related incidents on the premises and 13 public order matters occurred "off-premises nearby". The comment was made "on the present evidence provided, this may not be persuasive to the degree to consider refusal".
[160]
[60] On 29 January 2004 the third set of objections was received by the Liquor Licensing Division from the police. This time a single report referred to both premises and contained material relating to issues in the Orchid Avenue area.[94] On 30 January 2004 the Liquor Licensing Division received an objection by the GCCC, attached to which were both typed and handwritten reports of GCCC staff who observed incidents in Orchid Avenue.[95]
[161]
[61] In a letter dated 6 February 2004, and received by the Liquor Licensing Division on 9 February 2004, the plaintiffs' solicitors sought to respond to the objections of the police and the GCCC. In essence, the response was about specific instances described by the GCCC's objections of 25 November 2003, and stated that there was insufficient evidence that the persons described in the incidents had come from within the premises as claimed by the GCCC. The responses to some of the police objections also were framed in terms of there being insufficient information about each particular event.[96]
[162]
[62] A further detailed response was given by the plaintiffs' solicitors on 27 February 2004, which attempted to respond to the bulk of the submissions of the GCCC. The response was that there was insufficient information that related to the specific culpability of any of the plaintiffs' premises and incidents on the street.[97]
[163]
[63] In January 2004 Mr Murphy became the Executive Manager of the Liquor Operations Branch within the Liquor Licensing Division, having previously worked as the Manager of Compliance Unit. As Manager of the Compliance Unit he had read the large volume of objections made by the police when they were first lodged and the Council objections.[98] He personally read the later police objections. He and the then Executive Director, Mr Kelly, met with the Assistant Commissioner of Police and the Mayor of the Gold Coast in mid-December 2003.[99] Mr Reinhold, a Senior Licensing Officer and a qualified lawyer was taken "off-line" for the purpose of analysing the police and Council objections. He analysed the numerous incidents appearing in the police objections and his analysis became Appendix B to the Director-General's Briefing Notes dated 15 March 2004.[100] The information contained in those Briefing Notes was discussed by Mr Murphy with the Executive Director, the Manager of Licensing Administration (Mr Farrah) and Mr Reinhold.[101] Mr Murphy was involved in the drafting of the Briefing Notes to the Director-General and agreed with the recommendation contained in each of them. Prior to their submission to the Chief Executive each Briefing Note was signed by Mr Farrah on 15 March 2004. The recommendation contained in it was approved by Mr Briscoe as Acting Executive Director of Liquor Licensing who recorded his approval on each document on 15 March 2004.
[164]
[64] Mr Briscoe, whose evidence I accept, had received regular oral briefings from Mr Murphy and others from the time he commenced as Executive Director of the Liquor Licensing Division in early February 2004 in relation to the applications.[102] He also received Briefing Notes that had been previously prepared[103] and read the police objections with which he was provided and the responses from the plaintiffs' lawyers.[104] He recalled in his evidence that the GCCC and the police were concerned with behaviour in and about all of the premises in the Surfers Paradise nightclub precinct, but that "four stood out as requiring separate consideration".[105]
[165]
[65] From "day one" on the job, Mr Briscoe was aware that the plaintiffs' applications and other applications for renewal of extended hours permits were "high on the radar of everyone".[106] Mr Briscoe discussed the contents of the March Briefing Notes with Mr Farrah and others before they were finalised and signed by Mr Briscoe.[107] He recalled going over the evidence, including the police reports.[108] Mr Briscoe gave the matter serious consideration.[109]
[166]
[66] After the Briefing Notes were sent to the Chief Executive, and before she made her decisions on 18 March 2004, Mr Briscoe was called up to her office to brief her in relation to the issues.[110] The Chief Executive appreciated that there was a very serious decision to be made and, according to Mr Briscoe's recollection, was interested in the evidence upon which the recommendations were based and in going over the police evidence.[111] The concern was that there was sufficient evidence upon which a decision could be made, and so Mr Briscoe highlighted a significant number of incidents that the police suggested were linked to the premises in question.[112]
[167]
[67] The Chief Executive, Ms Ringrose, did not have a specific recollection of her conversations with Mr Briscoe at the time.[113] I accept her evidence in general, including her evidence that no one in the department suggested that there was insufficient evidence to make the decision that she did in relation to the plaintiffs' nightclubs and the two other nightclubs whose applications were refused.[114] The Chief Executive was not provided with the police objections in full, and these were not attached to the Briefing Notes. She would not have read such voluminous documents in the ordinary course because of their "sheer volume" and the time that would have been required to go through them given all of her other work.[115] She required a summary of these voluminous documents because she did not have the time to go through "number crunching".[116] Based upon the Briefing Notes and the recommendations from the Liquor Licensing Division, the Chief Executive formed the opinion that the police and GCCC comments or objections were "cogent and reasonable".[117] She relied heavily upon the Queensland Police objections, as summarised in the Briefing Notes of 15 March 2004, and the advice of her Executive Director that there was sufficient evidence of a relationship between offences in the vicinity of the plaintiffs' premises and the premises to justify refusal of the applications.[118]
[168]
[68] No one suggested to the Chief Executive at the time that a comparative analysis of the plaintiffs' premises and its patrons and other premises was required, and she would have expected advice from the Liquor Licensing Division if they thought it was important. She did not call for a comparative analysis because it was not required under the Act.[119]
[169]
[69] The Chief Executive could not recall at the time of the trial of this matter what was said, if anything, by Mr Kelly on 23 December 2003 about the need for substantiation of the outcome of incidents reported by the police.[120] She was prepared to assume that it is likely that on 23 December 2003 she discussed the issue of substantiation with Mr Kelly, but could not recall specifically what was discussed at the meeting.[121] By the time she came to make the decisions in mid-March 2004 she relied upon what was given to her at that stage of the decision-making process.[122] She made her decisions based upon the advice and information that she received in mid-March 2004. She did not revert in her own mind to the advice of Mr Kelly that had been given some months earlier.[123] The Chief Executive explained in her evidence that she did not address in her own mind the concerns that had been expressed in Mr Kelly's Briefing Note of 23 December 2003 about the quality of police evidence because she took the advice that was given to her by the Liquor Licensing Division on 15 March 2004 on the basis that they were the experts, with their hands on all the information and had considered all the evidence.[124] She did not revert to Mr Kelly's Memorandum of 23 December 2003 because she did not have "an encyclopaedic memory" that could remember every point in every Director-General's Briefing Note that came before her, and did not carry all of the facts in those Briefing Notes in her head after several months had gone by.[125] She relied, instead, on the information and advice contained in the Briefing Notes of 15 March 2004 and the oral briefings given by Mr Briscoe.
[170]
[70] The Briefing Notes in relation to the Crazy Horse Nightclub[126] included appendices that related specifically to incidents connected with that nightclub. The Briefing Note in relation to the Cocktails and Dreams Nightclub also included appendices that described specific incidents in connection with that nightclub.[127] The contents of the 15 March 2004 Briefing Notes upon which the Chief Executive relied in reaching her decisions are addressed in the next part of this judgment.
[171]
[71] On 18 March 2004 the Chief Executive made a decision to refuse an extended hours permit in relation to Crazy Horse Nightclub. On the same day she made a further decision to refuse an extended hours permit in relation to the Cocktails and Dreams Nightclub.
[172]
[72] On 22 March 2004, the Chief Executive approved renewed extended hour permits, subject to a 3 am lockout condition, for the Gold Coast licensed venues that had applied for one save for Shooters Saloon Bar, The Drink Nightclub, Crazy Horse Nightclub and Cocktails and Dreams Nightclub.[128] This followed a Briefing Note to her which recommended this action.[129] This course was recommended because the GCCC evidence with respect to these premises did not identify specifically the patrons from these premises as contributing to the amenity concerns.[130] The GCCC evidence about what occurred on the street, however, was accepted as "cogent and reasonable".[131] Police objections were said to show that there was behavioural problems both in and around licensed premises, which would not be abated with an unrestricted license.[132] Thus, a lock-out condition was said to
[173]
"reduce the movement of patrons between premises and provides for a more gradual flow of patrons out of a locality. This in turn reduces disturbance to amenity in the locality."[133]
[174]
[73] The plaintiffs sought a review by the Tribunal of the decisions made on 18 March 2004 in respect of their applications. As noted above, the first and second plaintiffs, through their solicitors, also sought to have an interim permit to allow the first and second plaintiffs to trade between 3 am and 5 am.[134] This was refused as the view was taken that no provision could be made for an interim permit.[135]
[175]
The decisions and the material relied on by the Chief Executive
[176]
[74] I accept the Chief Executive's evidence that in making the decisions she relied on the information and advice contained in the 15 March 2004 Briefing Notes. It was reasonable for her to do so. To the extent that earlier briefings, particularly the Briefing Note of 23 December 2003, had referred to the need for police and council objections to be substantiated, and to the extent that the Chief Executive might reasonably have been expected some months later to recall these matters, the 15 March 2004 Briefing Notes effectively advised the Chief Executive that the objections had been substantiated.
[177]
[75] Each Briefing Note provided a background in relation to the process and stated that in January 2004 the Assistant Commissioner and the GCCC lodged "further substantial objections" to the renewal of the applicants' extended hours permit and that the applicants' solicitors had lodged submissions in response to the police and GCCC objections. Copies of the plaintiffs' solicitors' submissions were an attachment to the Briefing Note. The Briefing Note stated that the GCCC's submissions were based on observations by Council officers outside of premises in the vicinity of the Surfers Paradise nightclub precinct. It noted that the GCCC did not provide any "direct evidence relating to the applicant's trading, and alleged liquor-related incidents are only third-party observations". The following amenity issues were identified:
[178]
"• 46% of alleged incidents occurred in the Surfers Paradise nightclub precinct.
[179]
10% of all incidents may be considered serious or most serious.
Anti-social and violent behaviour is attributed to long queues at taxi ranks in the early hours.
City Council officers such as street cleaners allege they are being harassed and abused by intoxicated persons towards the end of the extended hours period.
There are large amounts of litter and vomit on the streets resulting in significant clean up costs."
[180]
An analysis of the Council's submissions were attached to the Briefing Note. The Briefing Note stated the response made by the applicants' solicitors, namely that the Council objection failed to contain "any proper evidence against the applicant and in the circumstances, there is no specific reasoning why their extended hours permits should not be granted." In relation to observations specifically relating to Crazy Horse Nightclub it was noted that the applicant was not approached by the Council officer at the time, that the applicant had no knowledge of the incidents and therefore could not respond to it. The note observed that the applicant had not been charged or convicted of any offence in relation to the Council observations, and advised that reliance on that matter would "deny natural justice to the applicant". The Liquor Licensing Division's comment on the Council objections was as follows:
[181]
"It is considered that the Council objections, while providing evidence of amenity concerns in the locality, do not directly identify patrons of Crazy Horse Nightclub as contributing to the concerns.
[182]
The objections are generally based on third-party observations only, which must carry little weight.
[183]
However, the direct evidence of anti-social and violent behaviour, street litter and vomit are cogent and reasonable."
[184]
[76] A similar discussion of Council objections appeared in the Briefing Note in relation to the Cocktails and Dreams Nightclub, however, in that case only one observation by Council officers specifically referring to that nightclub was reported.
[185]
[77] The plaintiffs' responses to the GCCC objections in late 2003 and early 2004, and their submissions in these proceedings, tend to overlook the fact that the Chief Executive was not required to be satisfied that disorderly, noisy and other anti-social behaviour by persons in the vicinity of the applicant's nightclubs was as a result of a breach by the applicants of their duties under the Act, or was unlawful. Section 121A(3) required the Chief Executive to have regard to, amongst other things, the applicant's ability to control the noise and behaviour of the number of persons that could reasonably be expected to be in the vicinity of the premises if the extension was granted and the impact on the amenity of the local community. The Council's objections were principally directed to amenity issues, and objections based upon observations by Council officers suggesting that certain incidents related specifically to the plaintiffs' nightclubs were said to carry little weight. That said, reference to the plaintiffs' solicitors' responses in relation to certain alleged incidents does not support the conclusion that the Council allegations were "unsubstantiated". The plaintiffs' solicitors' objections included contentions that there was a lack of evidence that individuals were "unduly intoxicated" and made submissions about matters such as the failure to provide a prior opportunity to respond to allegations. Council's evidence of a female who was "throwing up on the steps" of Cocktails and Dreams Nightclub and who the Council said had been seen leaving the nightclub with a companion was met with the response that "no assessment has been made as to whether either of the females were unduly intoxicated and there is no evidence that any offence was committed by our client".[136] More generally, a rhetorical question was asked why, if any offence was supposedly committed by the applicant, the applicant had not been "duly charged". The plaintiffs' solicitors responded to general observations that although the objections named the plaintiffs' premises "it is not in the context of any offences being committed and we therefore fail to see the relevance of these 'Observations'". These passages provide some indication of the plaintiffs' response to specific Council objections, which tended to be dismissive of them on the grounds that the incidents alleged by the Council did not disclose the commission of any offences. Because the Briefing Note did not recommend that any weight be placed upon the Council's objections in relation to specific incidents it is unnecessary to dwell on this aspect. The Briefing Note was fair to the plaintiffs in stating that because the applicant had not been charged or convicted of any offence in relation to the Council observations, to give any weight to it would be to "deny natural justice to the applicant".
[186]
[78] The Council's principal objections related to amenity issues and these concerns could not be described as unsubstantiated. The Briefing Note referred to evidence of anti-social and violent behaviour in the street, street litter and vomit, and the plaintiffs' solicitors' objections did not contest these things. Television and additional video footage showing general behaviour in Orchid Avenue was said to not relate "directly" to the applicants' premises.[137] As to problems associated with the noise and behaviour of patrons in the vicinity of the premises, the plaintiffs' solicitors submitted that it had not been "specifically suggested that any of these problems occurred directly in the vicinity of our clients' premises", and that their clients ensure to the best of their ability that their premises were controlled by vigilant security providers at all times on and around their premises. These submissions did not detract from the Council's evidence of anti-social behaviour in the vicinity of the plaintiffs' premises. Instead, they related to the plaintiffs' inability to control that behaviour and the Council's inability to prove that the adverse impact on the amenity of the local community that arose from these problems could be said to be the plaintiffs' responsibility.
[187]
[79] In summary, each Briefing Note indicated that the Council's objections on the grounds of amenity were substantiated. It was not for the Council, or the Liquor Licensing Division, to prove that street problems were the result of the plaintiffs' failure to discharge their responsibilities under the Act. It was the fact of disorder and loss of amenity that was at the heart of the Council's objections, and the Council did not carry an onus of proving that such problems were the result of the plaintiffs' failure to control such behaviour. Finally, so far as issues of proof and substantiation are concerned, the Tribunal subsequently observed:[138]
[188]
"It seems highly likely that, in the vicinity of the applicants' premises, there would be large numbers of people moving in and out of the precinct or between venues located along Orchid Avenue, making it extremely difficult to distinguish the relative contribution of any particular premises to the general problem of street disturbance and disorder."
[189]
[80] Each Briefing Note of 15 March 2004 summarised the police objection to renewal of the relevant applicant's extended hours permit. The police objection was described as being based on:
[190]
"• Liquor-related incidents directly involving the applicant's staff and patrons;
[191]
Video recordings of anti-social and violent behaviour in the Orchid Avenue/Cavill Avenue locality;
Queensland Fire and Rescue Authority incidents (calls for service, building report into the condition of the nightclub and patron numbers on the premises); and
Queensland Ambulance Service incidents."
[192]
[81] The Assistant Commissioner of Police attributed these incidents to a combination of:
[193]
the intoxicated state of patrons seeking to enter premises, on premises, and leaving premises; and
the relative condition of the premises which constitute a risk to patron and general public safety in and around the premises."
[194]
The police objections were supported by video evidence of incidents in the Surfers Paradise precinct.
[195]
[82] The Briefing Note in relation to the Crazy Horse Nightclub stated that the analysis of the police submissions revealed:
[196]
"• 34 reported incidents associated with Crazy Horse between 27 January and 22 November 2003, with:
[197]
(a) 6 considered most serious (assault occasioning bodily harm, serious assault);
[198]
91% of all incidents occurred either on the premises or in the vicinity and involved patrons from the nightclub.
44% of all incidents occurred between 3:00 a.m. and 6:00 a.m.
59% of all incidents occurred on Friday and Saturday nights.
79% of all incidents occurred between midnight and 6 am.
83% of the most serious incidents occurred between midnight at 6 am and
67% of the most serious incidents occurred on the premises."
[199]
An analysis of the police submission was an appendix to the Briefing Note. An analysis of police video evidence was attached as a further appendix to the Briefing Note.
[200]
[83] The Briefing Note contained an accurate summary of the applicant's response to the police objections. It stated, amongst other things:
[201]
"In the subsequent submissions, the applicant reiterates that the QPS objections fail to contain any proper evidence and does not establish a case against the applicant and argues that the 34 incidents contained in the police objections either did not occur specifically at Crazy Horse or were not brought to the immediate attention of the applicant and he cannot suitably respond. Further, few, if any, incidents occurred after 3 am and all lacked enough particulars and cannot be properly investigated by the applicant.
[202]
Furthermore, the police have failed to establish that any offenders were unduly intoxicated and no one was charged with being drunk in a public place.
[203]
In relation to the video footage, the applicant complains that the footage provides no indication that the persons involved in these incidents are in any way directly related to the subject premises. Therefore, the applicant submits the video footage should not be taken into consideration in the decision-making process."
[204]
An analysis of the applicants' solicitors' responses were attached as an appendix to the Briefing Note.
[205]
[84] The Division's advice to the Chief Executive in relation to the police objections was as follows:
[206]
"The police objections contain a large amount of data and incidents that directly relate to the applicant's ability to control the behaviour of patrons in and around the licensed premises. The information is considered to be cogent and it is considered that it does establish an adverse case against the applicant.
[207]
An analysis of the incidents contained in the objections from police demonstrates significant behavioural problems in and around Crazy Horse with a large number of calls for service that can reasonably be attributed to alcohol consumption.
[208]
The police objections are cogent and reasonable and should be given considerable weight in the decision making process."
[209]
[85] The police evidence was said to clearly demonstrate:
[210]
"(i) there are significant problems on the applicant's premises, and in the immediate vicinity, which result in unnecessary disturbance to the amenity, quiet and good order of the locality; and
[211]
(ii) the applicant does not have the ability to control the behaviour of the number of persons that could reasonably be expected to be on or in the vicinity of the premises if the applicant's extended hours permit to trade beyond 3:00 a.m. was renewed."
[212]
The Briefing Note canvassed a variety of issues, addressed the matters to which the Chief Executive was required to have regard and concluded that there were sufficient grounds to refuse to renew the applicant's extended hours permit.
[213]
[86] A similar Briefing Note was prepared in relation to the application in respect of Cocktails and Dreams Nightclub. In that case, the Division's analysis of the police submissions revealed:
[214]
"• 41 reported incidents associated with Cocktails and Dreams between 27 January and 22 November 2003, with:
[215]
(a) 13 considered most serious (grievous bodily harm, serious assault, fighting and irresponsible service of liquor);
[216]
95% of all incidents occurred either on the premises or in the vicinity and involved patrons from the nightclub.
22% of all incidents occurred between 3:00 a.m. and 6:00 a.m.
39% of all incidents occurred on Thursday nights when discounted drink promotions were offered.
62% of the most serious incidents occurred on Thursday nights and
62% of the most serious incidents occurred on the premises."
[217]
[87] Each Briefing Note dated 15 March 2004 indicated that police objections provided substantial grounds to conclude that the relevant application should not be granted. It canvassed three options: granting the application, granting the application subject to a lockout condition and refusing the application. It recommended that the third option be endorsed. This option was described as follows:
[218]
"That you refuse the application under Section 121A of the Liquor Act 1992 having regard to the substantial comments and objections received revealing that:
[219]
(i) there are significant problems on the applicant's premises, and in the immediate vicinity, which result in unnecessary disturbance to the amenity, quiet and good order of the locality; and
[220]
(ii) the applicant does not have the ability to control the behaviour of the number of persons that could reasonably be expected to be on or in the vicinity of the premises if the applicant's extended hours permit to trade beyond 3:00 a.m. was renewed.
[221]
If this option is preferred, there is every indication that the applicant would appeal the decision to the CCT."
[222]
[88] Neither Briefing Note stated, nor inferred, that the police or GCCC objections were unable to be substantiated. A reasonable reader of the 15 March 2004 Briefing Notes would conclude that the police objections were substantial and substantiated. In their submissions the plaintiffs effectively acknowledged this by stating that "the words of the Briefing Note sought to elevate the unsubstantiated status of police assertions as evidence".[139]
[223]
[89] The defendants submit that the Chief Executive knew as at 23 December 2003 that the police and GCCC objections were "unsubstantiated", and that the Briefing Note dated 18 March 2004 did not contain any further substantiation. I decline to make such a finding. Understandably, given the passage of time since December 2003 and the fact that these proceedings were not commenced until 10 April 2006, the Chief Executive had difficulty in recalling whether or not she read the Briefing Note dated 23 December 2003. If she did, or if she was told on 23 December 2003 of its contents by its author, then she would not have formed the view that police and GCCC objections were "unsubstantiated". She would have realised that substantial material had been provided by objectors, that certain specific incidents reported by the police were yet to be substantiated, and "the relevant information will be provided in December 2003".[140] Some months later when the Chief Executive received the Briefing Notes of 15 March 2004 she was entitled to act on the basis that the analysis of reported incidents relied upon by the police substantiated the number and nature of the incidents that were summarised in the Briefing Note. The Chief Executive was entitled to rely upon the Briefing Note and the analysis that her department had undertaken of reported incidents associated with each nightclub and the other matters raised in the police and GCCC objections. It was not a matter that reasonably required her to investigate which of the incidents referred to in the overview of evidence as at 23 December 2003 had been substantiated, and which further incidents, if any, had been relied upon by the police and analysed by her department. She was entitled to rely upon her department's analysis of the police objections, including its analysis of the 34 reported incidents associated with Crazy Horse and 41 reported incidents associated with Cocktails and Dreams. The Briefing Notes did not suggest that these incidents were unsubstantiated. They indicated that police and GCCC objections were substantial and substantiated.
[224]
[90] The plaintiffs seek a finding that the Chief Executive was reckless as to her lack of power.[141] The basis for this finding is submitted to be that the Chief Executive knew that the police and GCCC evidence was "unsubstantiated" as at 23 December 2003, and that she knew that the Briefing Notes dated 15 March 2004 did not contain any further substantiation.[142] For the reasons that I have given, I do not accept these contentions. As at 23 December 2003 she did not know that the evidence was 'unsubstantiated'. The Briefing Note of that date reported that the outcome of incidents reported by police had yet to be substantiated and that it was expected that relevant information would be provided by the police. At the time she made the decisions, the Chief Executive's state of information and belief concerning the substantiation of the police and GCCC objections was based upon the Briefing Notes of 15 March 2004, which were to the effect that the objections were substantial and had been substantiated. The Chief Executive was not reckless as to the need for substantiation. To the extent that she might reasonably have been expected in mid-March 2004 to recall details of her 23 December 2003 briefing by Mr Kelly, she was entitled to base her decision on the up-to-date Briefing Notes. They did not suggest that incidents, including incidents reported by police that had been analysed by the Division and reported upon in the Briefing Notes, were unsubstantiated. On the contrary, the Briefing Notes suggested that the incidents reported by police (34 in respect of Crazy Horse and 41 in respect of Cocktails and Dreams) had been analysed. The information from police objections about incidents involving persons in or in the vicinity of each applicant's premises had been assessed to be "cogent" and the police objections in their entirety were said to be "cogent and reasonable" and to warrant "considerable weight" in the decision-making process. I decline to find that the Chief Executive was reckless as to alleged deficiencies in the material and, as a consequence, reckless as to a lack of power to make the decisions.
[225]
[91] I do not accept the validity of criticisms made in the plaintiffs' submissions that the Chief Executive in her testimony sought to "compartmentalise the decision as being only based on the material in the 18 March 2004 Briefing Note".[143] Her evidence emphasised her reliance on that Briefing Note, and there is nothing unacceptable in such evidence. It was appropriate for the Chief Executive to focus upon the Briefing Note dated 15 March 2004 in making the decisions that she did on 18 March 2004. The Briefing Notes presented the current state of information, analysis and advice. It was not reckless of her to rely upon the Briefing Notes to the exclusion of the oral and written briefing that she had received in late 2003. The current Briefing Notes supported the conclusion that "substantial comments and objections" had been received that revealed that:
[226]
"(i) there are significant problems on the applicant's premises, and in the immediate vicinity, which result in unnecessary disturbance to the amenity, quiet and good order of the locality; and
[227]
(ii) the applicant does not have the ability to control the behaviour of the number of persons that could reasonably be expected to be on or in the vicinity of the premises if the applicant's extended hours permit to trade beyond 3.00 a.m. was renewed."
[228]
[92] I formed a favourable view of the Chief Executive's approach to her duties and the manner in which she gave her evidence. She adopted a conscientious approach to her responsibilities, and did not simply "rubber stamp" recommendations without regard to the material upon which those recommendations were based. She relied on both oral and written briefings, and took the time required to read Briefing Notes like the Briefing Notes of 15 March 2004. If the Chief Executive had suspected deficiencies in the material placed before her, then it is improbable that she would not have raised the matter with those who advised her. It is improbable because she adopted a conscientious approach to considering the matter. It is also improbable because each Briefing Note stated that there was "every indication that the applicant would appeal the decision" to the Tribunal. It is improbable that the Chief Executive would have recklessly disregarded deficiencies in the material in circumstances in which she would have known that those deficiencies would be highlighted in proceedings before the Tribunal.
[229]
[93] The Chief Executive was not reckless as to deficiencies in the material. On the contrary, the 15 March 2004 Briefing Notes informed her that the objections were substantial, and that incidents reported by the police in their objections had been analysed by the Liquor Licensing Division and found to be cogent.
[230]
[94] The plaintiffs plead[144] numerous grounds upon which the Chief Executive is alleged to have exceeded her powers under the Act, although some would not, if proven, establish an excess of power. Several of these matters are also relied upon as particulars of breach of the duty of care alleged in para 60. I shall address each in turn.
[231]
(a)The Chief Executive took into account in making her decision factors alleged to be related to lack of safety in and around the vicinity of the businesses, yet she had no such evidence of any lack of safety in or around the businesses
[232]
[95] The Chief Executive's decisions were not cast specifically in terms of "lack of safety" in and around the vicinity of the businesses. However, each Briefing Note upon which she relied stated that the police evidence "clearly demonstrates:
[233]
(i) there are significant problems on the applicant's premises, and in the immediate vicinity, which result in unnecessary disturbance to the amenity, quiet and good order of the locality; and
[234]
(ii) the applicant does not have the ability to control the behaviour of the number of persons that could reasonably be expected to be on or in the vicinity of the premises if the applicant's extended hours permit to trade beyond 3.00 a.m. was renewed."
[235]
There was evidence to support these findings. The existence of such evidence was confirmed by the Tribunal.
[236]
(b) The Chief Executive gave undue weight to objections raised by the QPS, in circumstances where the objections of the QPS were not based in fact or on any proper evidence
[237]
[96] The police objections were based on police reports of incidents and the Queensland Police Service's assessment of the behaviour of persons in and around each of the applicants' nightclubs. The fact that incidents were disputed by the applicants and, in many cases, did not lead to charges, did not make them unsubstantiated. The incidents relied upon by the police and their objections in general were analysed by the Liquor Licensing Division and found to be cogent. The plaintiffs have not established that the police objections "were not based in fact or on any proper evidence". The weight to be accorded to the police objections was a matter for the Chief Executive. I do not find that the Chief Executive gave undue weight to the police objections. She was entitled to, and advised to, give them considerable weight. However, if she had given them "undue weight", this would not have rendered her decisions invalid.[145]
[238]
(c) The Chief Executive engaged in a joint enforcement strategy in conjunction with the QPS, in circumstances where it is not any function of the second defendant under the Act to consider such matter in connection with the granting of any extended hours permit
[239]
[97] There was no inhibition on the Chief Executive engaging in a joint strategy with police to reduce harm arising from the misuse of liquor and to minimise problems in and around the plaintiffs' nightclubs and the Surfers Paradise nightclub precinct in general. The minimisation of harm arising from misuse of liquor and enhancing the amenity of the vicinity were consistent with the objects of the Act and a proper purpose for the exercise of the Chief Executive's power.
[240]
(d) The Chief Executive took into account detailed and salacious material provided to her by the QPS allegedly in relation to the businesses, but in fact such evidence did not relate to the businesses, but rather to other neighbouring licensed businesses
[241]
[98] This ground is not established. The police objections related to specific incidents and also to problems in the Surfers Paradise nightclub precinct in which the plaintiffs' premises were located. The material was relevant to issues concerning the behaviour of persons in the vicinity (and each applicants' ability to control such behaviour) and the amenity of the precinct.
[242]
(e) The Chief Executive decided to grant extended hours permits to every other one of the neighbouring licensed businesses, with the exception of the plaintiffs' businesses, Shooters Saloon Bar and The Drink Nightclub
[243]
[99] The plaintiffs' businesses were not "singled out" by the Chief Executive for differential treatment in circumstances in which they were in no different situation to those of other applicants. The plaintiffs' nightclubs and two other venues were the subject of specific objections by the police, and the Act required the Chief Executive to have regard to those police objections. The police objections were analysed by the Liquor Licensing Division and found to provide substantial grounds upon which to refuse the applications.
[244]
[100] Each application had to be considered on its merits. Other applicants were granted extended hours permits, subject to a 3 am lockout condition. Incidentally, the imposition of such a lockout condition was the subject of an unsuccessful appeal to the Tribunal. The objections relating to the plaintiffs' nightclubs and two other nightclubs, and the evidence upon which the Chief Executive relied differentiated those nightclubs from other nightclubs which applied for extended hours permits. The Chief Executive was not required to treat all applications the same way. She was not advised to. Such advice was reasonable and the Chief Executive acted reasonably in relying upon it in the circumstances.
[245]
(f) The Chief Executive failed to take into account relevant matters for the consideration of the grant of a permit pending the determination of the plaintiffs' proposed appeals to the Commercial and Consumer Tribunal
[246]
[101] The "relevant matters" which the Chief Executive is alleged to have failed to take into account are not particularised and the plaintiffs' submissions do not specifically address this point. The decision to not grant "interim permits" was based upon advice that there was no power to do so. In any case, the plaintiffs' solicitors did not submit that there had been a change in circumstances or other developments which justified a reconsideration of the decisions. This ground is not established. Incidentally, prior to the hearing before the Tribunal the Chief Executive offered to issue to the plaintiffs extended hours permits on conditions that included the imposition of a 3 am lockout and provision of extra security personnel. This offer was declined.
[247]
(g) The Chief Executive failed to take into account all proper evidence as to the proper grant of an extended hours permit in the circumstances of the plaintiffs' businesses, as set out in paragraphs 46 and 47 of the plaintiffs' pleading
[248]
[102] Paragraphs 46 and 47 of the plaintiffs' pleading canvass a variety of matters which principally go to the merits of the decisions, rather than their validity. A number of these matters have already been addressed by me. The applicants plead that the GCCC's objections was not supported by any "direct evidence" relating to the businesses. The GCCC objection contained limited evidence relating specifically to the plaintiffs' businesses, but included matters that were relevant to the Chief Executive's decision, including amenity issues.
[249]
[103] The plaintiffs plead that the police objections was not supported by evidence that was sufficient to conclude that there were "major deficiencies in management" of the businesses so as to justify refusal of the applications. The Chief Executive was not required to conclude, and the police objection did not need to establish, that there were such major deficiencies. Likewise, the fact that neither of the plaintiffs had been convicted of any alcohol-related offences under the Act in respect of the period under review, whilst relevant, was not a matter which made the decisions unreasonable, let alone in excess of power. The fact that a two month compliance program conducted between September 2003 and November 2003 revealed the plaintiffs' compliance with the Act and responsible service of alcohol practices was good was not decisive. The 15 March 2004 Briefing Notes reported in the case of Cocktails and Dreams Nightclub that the Gold Coast Regional Office currently had two liquor infringement reports being investigated and that no other adverse matters were reported. The Briefing Note in respect of Crazy Horse Nightclub reported that the Gold Coast Regional Office had no adverse matters to report in relation to that nightclub. These matters, which went in the plaintiffs' favour, did not make it unreasonable to make the decisions which the Chief Executive did, and they do not lead to the conclusion that she exceeded her powers or acted unreasonably in making those decisions.
[250]
[104] The plaintiffs complain that neither the Liquor Licensing Division nor the Chief Executive carried out any comparison between the operations of the plaintiffs' businesses with neighbouring licensees businesses so as to justify the "differential treatment" between the businesses whose applications were refused and other businesses whose applications were approved. In their submissions the plaintiffs refer to the absence of any evidence of a comparison between nightclubs, such as to identify the plaintiffs' businesses "as being in whole or even in part responsible for the concerns held by the police and Council".[146] For the reasons given in discussing the terms, scope and purpose of the Act, I conclude that the Chief Executive was not required by the Act to undertake such a comparison. In addition, the relevant power was not limited to concerns about the operation of each business. Whilst regard was required to the previous conduct of the applicant in discharging any duties under the Act and on the applicant's ability to control the noise and behaviour of persons that could reasonably be expected to be on or in the vicinity of the premises, the Act permitted an application to be refused if the circumstances justified it, even in respect of an applicant whose conduct had been good. A licensee might comply with its obligations and efficiently conduct its business operations but not be entitled to an extended hours permit if the circumstances justified the Chief Executive's exercise of discretion against granting such a permit. For instance, the conduct of patrons after they had left the applicant's premises or the conduct of persons in a public area intending to seek entry to a nightclub may be disorderly and otherwise adversely affect the amenity of the local community.
[251]
[105] The Chief Executive was entitled to rely upon the 15 March 2004 Briefing Notes and to make the decisions that she did. As to the ground of invalidity alleged in para 57(g), a failure to take into account what is described in para 57(g) as "proper evidence" does not disclose an excess of power. I also decline to find that the Chief Executive failed to take into account "all proper evidence" and decline to find that the matters relied upon by the plaintiffs amounted to a breach of the alleged duty of care. The Chief Executive took account of proper evidence and, contrary to the plaintiffs' submissions, the police objections did not lack "substantiation".[147]
[252]
[106] I also find that it was reasonable for the Chief Executive to not undertake the comparison exercise which the plaintiffs contend should have been undertaken prior to reaching her decisions. The material before her concluded that there were significant problems in the immediate vicinity of the plaintiffs' premises which resulted in unnecessary disturbance to the amenity, quiet and good order of the locality. It also was to the effect that the plaintiffs did not have the ability to control the behaviour of persons who could be expected to be in the vicinity of their premises. The material permitted the Chief Executive to conclude that there were significant problems in the vicinity of the plaintiffs' nightclubs, and that persons hoping to enter, or patrons who had left, those nightclubs contributed to it. The Act did not require the Chief Executive to investigate the relative contribution made by patrons of other nightclubs to the disturbance to the amenity, quiet and good order of the locality. In addition, there were practical limits on what could be done to assess the relative contribution of different nightclubs to these problems. This point was made by the Tribunal when it stated:[148]
[253]
"In total, there are 8 late-night licensed venues in The Mark, 3 other venues immediately opposite, 4 venues a little further along Orchid Avenue and 1 venue fronting Cavill Mall, but connected to The Mark by a pedestrian passageway. There is a taxi rank directly opposite The Mark and long queues of people waiting for cabs has been identified as a major problem. It seems highly likely that, in the vicinity of the applicant's premises, there would be large numbers of people moving in and out of the precincts or between venues located along Orchid Avenue, making it extremely difficult to distinguish the relative contribution of any particular premises to the general problem of street disturbance and disorder."
[254]
[107] The practical difficulties of investigating and assessing the relative contribution of patrons of particular nightclubs to the general problem of street disturbance and disorder in the vicinity of the plaintiffs' nightclubs emerges from part of the submissions of the plaintiffs' solicitors dated 27 February 2004, which highlighted the lack of utility of information about where an intoxicated person was served his or her last alcoholic drink. As was pointed out, if a person was drunk and incoherent, one might wonder whether they could actually remember where they had their last drink or indicate this clearly to the police. Even if the information provided to the police was correct, the person may have had only one drink at the last premises which put them over the limit, whereupon they were removed from the premises. In any case, as the plaintiffs' solicitors noted "[i]t is a well known fact that Surfers Paradise patrons move regularly between one venue and the next and patrons could become confused as to where they last attended causing them to give misleading information to the police, particularly if they are well and truly under the influence of alcohol". These observations tend to highlight the lack of utility in interviewing drunk or disorderly persons who contribute to street disturbances about the place where they had their last drink. More generally, I do not consider that it was reasonable in the circumstances for the Chief Executive to undertake an investigation or analysis in an attempt to assess the relative contribution of persons who wished to enter, or who had left, the plaintiffs' premises to the general problem of street disturbance and disorder in the vicinity. An analysis of incidents in the objections from the police demonstrated significant behavioural problems in and around the plaintiffs' premises that could reasonably be attributed to alcohol consumption.
[255]
(h) The Chief Executive singled out the Plaintiffs from the neighbouring licensed businesses and rejected the plaintiffs' application for permits in circumstances where there was no proper basis for so doing
[256]
[108] I previously addressed the allegation that the Chief Executive singled out the plaintiffs. In short, the police objections and comments, not the Chief Executive, "singled out" the plaintiffs' nightclubs and two other nightclubs as warranting special comment and objection. To the extent that the decision-making process singled out the plaintiffs' nightclubs and the two other nightclubs to which objection was taken, this was for the legitimate reason that they, and not others, were the subject of police objection.
[257]
(i) The Chief Executive stated wrongly that there were significant problems on the Plaintiffs' premises in circumstances where the evidence available to her was to the contrary, namely that the plaintiffs' conduct was in fact as set out in paragraph 36 of the plaintiffs' pleadings,[149] which she knew
[258]
[109] In her statement of reasons in respect of each application, the Chief Executive concluded that the behaviour of patrons in and around the premises caused "significant problems on and around" the nightclub after 3 am.[150] There was evidence that supported this finding. The evidence is conveniently summarised in paragraph 25 of the Tribunal's reasons and included evidence of incidents both inside and outside the nightclubs. The compliance investigation undertaken between September and November 2003 did not contradict this evidence. It related to the plaintiffs' compliance, but did not address, and was not required to address, the police evidence and other material that was analysed in early 2004 and upon which the Chief Executive reached her decision.
[259]
(j)The Chief Executive determined that the Plaintiffs did not have the ability to control the behaviour of the number of persons that could reasonably be expected to be on or in the vicinity of the businesses if the extended hours permits were renewed, in circumstances where it was unreasonable for her to expect that the plaintiffs could control behaviour of all such persons
[260]
[110] The relevant finding by the Chief Executive was founded upon the Briefing Notes of 15 March 2004. It is erroneous to interpret the contents of the Briefing Notes as involving an expectation that the plaintiffs could control the behaviour of all such persons, particularly persons who were outside the nightclub premises and effectively beyond the plaintiffs' control. It was reasonable for the Chief Executive to have regard to the inability of the plaintiffs to control such persons and their behaviour.
[261]
(k) The Chief Executive knew that the Plaintiffs' premises were suitable and had been cleared by the QFRA
[262]
[111] The fact that the Queensland Fire and Rescue Authority regarded the plaintiffs' premises as suitable in terms of their fire status is irrelevant, and, like some other subparagraphs relied upon by the plaintiffs in their pleading in connection with an alleged excess of power or breach of duty, the plaintiffs' submissions did not specifically address the point. The Chief Executive did not base her decision in connection with the suitability of the premises. While the suitability of the premises and its facilities were a relevant matter,[151] nothing turned on this issue.
[263]
[112] A number of the matters pleaded in subparagraphs 57(a)-(k) of the plaintiffs' pleading do not disclose a ground that, if established, would constitute an excess of power. For example, giving "undue weight" to matters does not amount to an error of law or invalidate an administrative decision. A failure to take account of a matter will go to the validity of the decision if the matter was a "relevant consideration" in the sense discussed in Peko-Wallsend,[152] namely one which the decision-maker was bound to have had regard. However, I have dealt with each of the matters pleaded in paragraph 57 since the plaintiffs rely on certain matters both as an alleged excess of power and as particulars of a breach of the Chief Executive's alleged duty of care.
[264]
[113] I conclude that the matters pleaded in subparagraphs 57(a) - (k) do not establish that the Chief Executive exceeded her powers under the Act. To the extent that these matters canvass the merit of the decisions (as distinct from their validity) and the reasonableness of the Chief Executive in reaching them, the points advanced by the plaintiffs are not established. The Chief Executive's conduct in making the decisions was reasonable in the circumstances, including the information and advice upon which she reasonably relied. It will be necessary to return to this aspect in discussing the breach of duty issue.
[265]
[114] The plaintiffs plead that the Chief Executive "owed a duty of care in the exercise of her functions under the Act in respect of the renewal of the extended permits to take reasonable care to avoid foreseeable risk of injury to the plaintiffs".[153] The pleading states that:
[266]
(a) to read the comments and objections from the Gold Coast City Council and the Assistant Commissioner of Queensland Police, and the Plaintiffs' responses thereto;
[267]
(b) to make enquiries of Michael Kelly, Mark Farrah or Wayne Briscoe, as to the evidentiary basis for the grant or refusal of the applications;
[268]
(c) to ascertain the attitude of the Licensing Division's investigating officers in respect of the applications for extended hours permits;
[269]
(d) to ascertain whether there was any comparative analysis of non-compliance or laxity on the part of other late-night venues in the vicinity, or evidence as to the level of misconduct associated with other premises in the vicinity;
[270]
(e) to enquire as to the two liquor infringement reports referred to by her investigators' comments in the Cocktails and Dreams briefing note;
[271]
(f) to ensure there was sufficient evidence to grant or refuse the applications;
[272]
(g) to decide the applications only with the benefit of the matters referred to in subparagraphs (a) - (f) herein."
[273]
These particulars are in the nature of particulars of the content of the duty of care in the circumstances of the particular case. The threshold issue is whether the Chief Executive owed to the plaintiffs a duty of care to take reasonable care to avoid foreseeable risk of injury to them. The first point of reference is to the relevant statutory framework.[154] Reference to the statute is necessary to determine whether the duty was owed by the repository of a statutory power, and how that duty might be said to arise out of the relationship created by the statutory provision. As Gummow and Hayne JJ stated in Graham Barclay Oysters Pty Ltd v Ryan:[155]
[274]
"The existence or otherwise of a common law duty of care allegedly owed by a statutory authority turns on a close examination of the terms, scope and purpose of the relevant statutory regime. The question is whether that regime erects or facilitates a relationship between the authority and a class of persons that, in all the circumstances, displays sufficient characteristics answering the criteria for intervention by the tort of negligence."
[275]
In Stuart v Kirkland-Veenstra Gummow, Hayne and Heydon JJ stated:[156]
[276]
"Evaluation of the relationship between the holder of the power and the person or persons to whom it is said that a duty of care is owed will require examination of the degree and nature of control exercised over the risk of harm that has eventuated, the degree of vulnerability of those who depend on the proper exercise of the relevant power, and the consistency or otherwise of the asserted duty of care with the terms, scope and purpose of the relevant statute. Other considerations may be relevant."
[277]
(a) the terms, scope and purpose of the relevant statute;
[278]
(b) the "salient features" relied upon by the plaintiffs in contending that a duty of care was owed to them, including what is submitted to have been their "vulnerability";
[279]
(c) the consistency, or otherwise, of the asserted duty of care with the terms, scope and purpose of the Act.
[280]
An additional matter for consideration is whether other cases in a similar statutory setting have recognised a duty of care.
[281]
[116] I have previously addressed the terms, scope and purpose of the Act. It is unnecessary to repeat my examination of it. I concluded that s 121A is part of a statutory regime that is principally concerned with the welfare of the community, not the welfare and protection of applicants for extended hours permits. The purposes of the Act may be advanced by the financial viability of licensees, and granting licences and permits to persons who are suitable to hold them and whose previous conduct demonstrates a record of discharging duties imposed upon them under the Act. Section 121A(3) requires the Chief Executive to have regard to, amongst other things, the previous conduct of the applicant in discharging any duties under the Act previously placed on it and the applicant's ability to control the noise and behaviour of persons that could reasonably be expected to be on or in the vicinity of the premises. An applicant whose previous conduct is good and who has the ability to do these things may justify, in the circumstances of a particular case, a favourable exercise of the power to renew a permit. However, these aspects of
[282]
s 121A and the public interest in granting licences and permits to suitable applicants does not transform the Act into one that exists for the protection of licensees and their economic interests. The Act exists to regulate their conduct and the conduct of other participants in the liquor industry, having regard to the welfare, needs and interests of the community.
[283]
[117] Section 121A does not expressly require the Chief Executive to have regard to the economic and other consequences to an applicant of a refusal to renew an extended hours permit. The power to grant or refuse an application to renew such a permit is one that is exercised to promote the objects of the Act, and these are predominantly objectives that seek to minimise adverse social consequences arising from the misuse of alcohol and to promote the public interest.
[284]
[118] The terms of s 121A and the fact that the statutory power to grant an application to renew a permit is contained in an Act which principally exists to serve the public interest, rather than protect the interests of members of a specific group or class, at once distinguishes this case from cases in which a statute exists for the protection of a class of individuals of which the plaintiffs are members. This case might be compared with SB v State of New South Wales[157] in which Redlich J found a duty of care on the defendant to exercise its statutory power in a case in which there was a statutory relationship of guardian and ward and the purpose of the statute was to protect children. Similarly, in Trevorrow v South Australia (No 5)[158] Gray J found that a duty of care existed in the case of a statutory scheme that created a close relationship between the State of South Australia and Aboriginal children, being "a scheme designed to protect through that relationship."[159]
[285]
[119] The plaintiffs rely upon s 49 of the Act in support of their argument that a duty of care was owed. Section 49 provides:
[286]
(1) A person engaged in giving effect to this Act does not incur civil liability for an act done or omitted to be done honestly and without negligence under, or for the purposes of, this Act.
[287]
(2) A liability that would, but for this section, attach to a person attaches instead to the State."
[288]
[120] The plaintiffs submit that, as a matter of statutory construction, the inclusion of the words "and without negligence" in s 49 expressly opens up a potential claim for negligence in respect of the renewal of the grant of a permit under s 121A. I do not agree. Section 49 assumes that a person would incur civil liability, but for the operation of that section. It does not address the circumstances in which such a liability arises. It is apt to apply to any form of civil liability, including torts such as trespass and defamation. In effect, it protects a person engaged in giving effect to the Act from civil liability for an act done or omitted to be done honestly and without negligence under, and for the purposes of, the Act, and imposes that liability instead upon the State. It does not address the circumstances in which a duty of care will be imposed on an individual. Section 49C neither supports nor forecloses the existence of a duty of care of the kind pleaded by the plaintiffs.[160]
[289]
[121] The "salient features"[161] upon which the plaintiffs rely in their submissions are:
[290]
(b) their reliance on the defendants' conduct to protect them;
[291]
(d) the defendants' knowledge of these factors; and
[292]
(e) the fact that the Chief Executive had the power, the exercise of which could minimise the risk of injury to the plaintiffs.[162]
[293]
[122] As to (b) - (e), the Chief Executive knew by reason of the plaintiffs' solicitors' letter that the plaintiffs sought a favourable exercise of her power to grant their applications. The Chief Executive knew of the potential economic impact of her decision on the plaintiffs.[163] However, a statutory power to act in a particular way, coupled with the fact that, if the power is not exercised, it is reasonably foreseeable that harm will ensue, is not sufficient to establish a duty to exercise the power.[164] The reference by the applicant to the element of reliance drawn from earlier cases, is inapposite. The doctrine of general reliance no longer commands acceptance.[165] There was no evidence that the plaintiffs specifically relied on the Chief Executive to exercise her power so as to protect their interests. The Chief Executive did not undertake to exercise the power so as to protect the plaintiffs' interests, and any reliance by the plaintiffs upon her to do so would have been unreasonable in the light of the statutory provisions and the absence of any relationship between the Chief Executive and the plaintiffs requiring her to take positive action for their benefit.[166]
[294]
[123] As to the issue of vulnerability, the plaintiffs submit that they were "clearly vulnerable", as without their permits they could not trade beyond 3 am.[167] The defendants accept that the plaintiffs were "vulnerable" in one sense, but submit that they could have taken steps to protect their interests from harm. They submit that the plaintiffs could have altered the conduct of their business such as to alleviate the problems with amenity and good order which led the Chief Executive to refuse the permits. This addresses the issue of duty of care by reference to the circumstances of the particular case, rather than by reference to the relationship created by the statute between the repository of the power and the class of persons to whom a duty of care is alleged to have been owed. However, the submission serves to identify that some matters within the control of an applicant may be altered so as to alleviate matters of concern to the Chief Executive. As already discussed, some matters to which the Chief Executive may have regard, including problems with amenity and good order outside the premises, may be outside the control of an applicant, and, in that regard, an applicant may be said to be vulnerable to a refusal to grant a permit on those grounds.
[295]
[124] The more substantial point developed by the defendants in oral submissions about the vulnerability of the plaintiffs to economic loss from a refusal of an application was that it is addressed by the statutory appeal on the merits to an independent tribunal. In response, the plaintiffs contended that it was not to the point that they could appeal, since pending their appeal being heard they would be without their permits. I consider that the existence of an appeal is relevant to the existence of a duty of care.
[296]
[125] In Jones v Department of Employment[168] Glidewell LJ considered whether a government officer owed a duty of care in considering the plaintiff's claim for unemployment benefits. His Lordship stated:
[297]
"Having regard to the non-judicial nature of the adjudication officer's responsibilities, and in particular to the fact that the statutory framework provides a right of appeal which, if a point of law arises, can eventually bring the matter to this court, it is my view that the adjudication officer is not under any common law duty of care."
[298]
"Indeed in my view it is a general principle that, if a government department or officer, charged with the making of decisions whether certain payments should be made, is subject to a statutory right of appeal against his decisions, he owes no duty of care in private law. Misfeasance apart, he is only susceptible in public law to judicial review or to the right of appeal provided by the statute under which he makes his decision."
[299]
Slade LJ agreed that the imposition of a duty of care was contrary to the scheme of the Act in circumstances in which there was a statutory right of appeal.[169] The right to receive the benefit was conferred by the Act and the same Act conferred rights of appeal for the protection of aggrieved claimants. Caulfield J agreed with the judgments delivered by Glidewell and Slade LJJ.
[300]
[126] The determination in that case of whether a duty of care was owed occurred in the context of the "two stage test" to establish a duty of care under English tort law, including whether it was "just and reasonable" for a public officer to be under a duty of care at common law in the circumstances. However, the considerations adopted by the Court of Appeal in that case to the effect that a duty of care was inconsistent with the framework of the Act are relevant considerations under Australian tort law. In Coshott v Woollahra Municipal Council[170] Wood J regarded these considerations as decisive in concluding that there was no duty of care in the context of a statute which required a Council to process and determine a development application and which provided a statutory right of appeal from a deemed refusal.
[301]
[127] The plaintiffs in supplementary written submissions note that Jones and Coshott pre-date the High Court's adoption of an approach based on "salient features", as in Graham Barclay Oysters Pty Ltd v Ryan. However, that case and more recent High Court authority identify as a relevant feature the consistency or otherwise of the asserted duty of care with the terms, scope and purpose of the relevant statute.[171] The existence of a right of appeal diminishes the vulnerability of the plaintiffs to the exercise of the Chief Executive's power. The entitlement to trade until 5 am depends on the favourable exercise of a statutory discretion, and the Act addresses the interests of aggrieved applicants by granting them a right to appeal.
[302]
[128] The recognition of a duty of care in this case would be inconsistent with the statutory regime that addresses the interests of aggrieved applicants by conferring upon them a statutory right of appeal. It is not a sufficient response to this consideration that the statutory appeal may not provide the same remedy by way of compensation as an action in tort. The issue is not whether the remedy by way of appeal provides the same financial result as a common law claim would. The issue is that the recognition of a common law claim is inconsistent with a statutory scheme that deliberately provides a form of remedy by way of an appeal.[172]
[303]
[129] The plaintiffs' submissions on duty of care are not framed in terms of the issue of control, being a feature that is emphasised in leading cases which consider whether a common law duty of care exists. In Brodie v Singleton Shire Council Gaudron, McHugh and Gummow JJ stated:[173]
[304]
"[I]t has become more clearly understood that, on occasions, the powers vested by statute in a public authority may give it such a significant and special measure of control over the safety of the person or property of citizens as to impose upon the authority a duty of care. This may oblige the particular authority to exercise those powers to avert a danger to safety or to bring the danger to the knowledge of citizens otherwise at hazard from the danger. In this regard, the factor of control is of fundamental importance."
[305]
In this case one is not concerned with a statute that confers a power for the safety or welfare of a class of persons or for the protection of their property. The statutory framework is distinguishable from cases like Pyrenees Shire Council v Day[174] in which the power was conferred for the protection of the person or property of a class of persons of which the plaintiffs were a member, and the circumstances gave rise to a duty to exercise the power for their protection. In this case the Chief Executive was not given the power to renew a permit in order to protect the interests of the class of persons of whom the plaintiffs are members. She is not alleged to have undertaken to exercise that power in order to protect their interests.
[306]
[130] This case is not analogous to cases in which a power vested in an official gives "a measure of control over the safety of the person or property of citizens".[175] The control over the economic interests of the class of persons of which the plaintiffs are members to operate licensed premises until 5 am arises in the context of a statute which confers a power for purposes that do not include the protection of those economic interests.
[307]
[131] The defendants submit that an additional reason why no duty of care arises is that imposing liability in negligence would be in respect of "core policy-making" or "quasi-legislative functions".[176] By contrast, the plaintiffs submit that each decision was clearly an "administrative or operational decision", affected only the plaintiffs and was no more than the application of "a set of statutory guidelines". They submit that there was no issue of overall policy or liquor administration.[177]
[308]
[132] The parties' respective submissions seek to make a distinction between "policy" and "operational" decisions. Such a distinction is unhelpful. It has been the subject of comment and criticism.[178] Although the term "core policy-making" can be found in the authorities[179] as Professor Aronson stated, the switch from "policy" to "core policy" is as fraught in law as it is in politics.[180]
[309]
[133] Substantial authority can be found in support of the proposition that a common law duty of care does not attach to "quasi-legislative" functions.[181] However the exercise of the statutory power to grant or refuse an application for an extended hours permit cannot fairly be described as a "quasi-legislative function".[182]
[310]
[134] Rather than categorise the exercise of power in this case as an exercise in policy or an operational decision, it is preferable to turn to the statute, and the purposes for which the power is conferred. These include the regulation of the liquor industry, the minimisation of harm from the misuse of alcohol and the advancement of public interests, including public amenity. The terms of s 121A, the objects of the Act in which the power is conferred and the width of the discretion conferred upon the Chief Executive to refuse an application serve to highlight that policy considerations, including harm minimisation, the implementation of the aims of the National Health Policy on Alcohol and public amenity concerns inform the exercise of the power.
[311]
[135] A duty of care to not cause economic loss to applicants for permits potentially conflicts with the public responsibilities of the Chief Executive in administering the Act and in achieving its objects.[183] This is not a case in which the statutory power is conferred for the safety, welfare or protection of a class of persons of whom the applicants are members. It is a case in which the exercise of the discretionary power to refuse an application for renewal may be inimical to the economic interests of the plaintiffs. In the circumstances, the recognition of the duty of care contended for by the plaintiffs is not consistent with the terms, scope and purposes of the Act.
[312]
[136] The plaintiffs were unable to point to an authority in which a duty of care was found to exist in respect of the exercise of a statutory power similar to the power under consideration in this case. If the duty contended for by the plaintiffs exists it would form part of the single and unified common law of Australia.[184] It would be surprising if the duty contended for by the plaintiffs, or a similarly-formulated duty of care, had not been recognised in the context of statutes that regulate industries by the awarding of permits and licences or in the context of other legislation, including town planning legislation, in which provision is made for applications to be made for the granting of permits and approvals. The absence of a duty of care in an analogous case is a further reason for caution in recognising the duty of care contended for by the plaintiffs.
[313]
[137] In seeking to distinguish Coshott,[185] which involved a property development application in which a statutory right of appeal was conferred, the plaintiffs submitted that "it is easy to see why public policy would constrain the imposition of a duty" in such a case, and cited the following passage from the judgment of
[314]
"The plaintiffs could not have had any legitimate expectation that their application would necessarily be approved, and they could not have relied on a favourable exercise of the powers conferred upon the consent authority. The outcome of their application depended on the many factors referred to in s 90, and the response of any persons qualified to lodge an objection to the proposal."
[315]
However this passage serves to highlight parallels, rather than points of distinction, between the statutory regimes in that case and this. In both cases the plaintiff could not have reasonably relied on the favourable exercise of the power, the exercise of which depended upon a variety of considerations and regard to the contents of objections. The fact that the applications in this case were for renewal of permits, and not an original grant, does not, as the plaintiffs submit, provide a relevant point of distinction between this case and Coshott. An application for renewal depends upon the favourable exercise of a discretion which may be influenced by a wide range of factors relevant to public amenity and the community's interests.
[316]
[138] After reserving my decision in this matter, I invited the parties to make supplementary submissions in relation to an authority which was not referred to during argument. That authority is the recent decision of the House of Lords in Trent Strategic Health Authority v Jain.[187] In that case the appellant suffered economic loss as a result of an ex parte application made by a health authority to a magistrate for the cancellation of the registration of the appellant's nursing home. An order was made by the magistrate cancelling the registration. That order was overturned some months later on appeal to a Registered Homes Tribunal. By the time the appeal was heard the appellants had suffered substantial economic loss. They sought a remedy in tort and contended that the authority owed them a duty of care in preparing and making the application to the magistrate for cancellation of their registration. The House of Lords unanimously agreed that the authority did not owe a duty of care to the appellants as proprietors of the home. Lord Scott, with whom the other members of the House of Lords agreed, stated:[188]
[317]
"In making the application the authority is exercising a statutory power. The purpose of the power is the protection of the residents in the home in question. It might be fair and reasonable to conclude that the authority did owe a common law duty of care to the residents of a nursing home or a care home if conditions at the home warranting the exercise of the authority's statutory powers had come to the authority's attention but nothing had been done. But to conclude that an authority exercising, or deciding whether to exercise, its statutory powers owed a duty of care also to the proprietors of the home seems to me much more difficult."
[318]
Lord Scott considered a line of authority consisting of cases where the exercise of statutory powers conferred for the protection of a certain class of persons will or may impinge on the interests of others. This line of authority was said to demonstrate that:[189]
[319]
"...where action is taken by a State authority under statutory powers designed for the benefit or protection of a particular class of persons, a tortious duty of care will not be held to be owed by the State authority to others whose interests may be adversely affected by an exercise of the statutory power. The reason is that the imposition of such a duty would or might inhibit the exercise of the statutory powers and be potentially adverse to the interests of the class of persons the powers were designed to benefit or protect, thereby putting at risk the achievement of their statutory purpose."
[320]
[139] The present case does not involve a power which is conferred for the protection of a clearly identified class of persons, such as persons whose safety or amenity may be affected by the grant of an application to renew an extended hours permit. Instead, as previously discussed, the power exists as part of a statutory scheme that regulates the sale and supply of liquor so as to serve a variety of interests including community welfare and the minimisation of harm arising from misuse of liquor. The relevant power may be said to exist for the protection of the community whose safety or amenity may be adversely affected by the granting of extended hours permits and, more generally, so as to serve the public interest. The exercise of the statutory power by refusing an application so as to advance these interests will impinge on the interests of an applicant for such a permit.
[321]
[140] The decision in Trent Strategic Health Authority turned, in part, on the fact that the purpose of the power was to protect the interests of the residents in nursing homes and the interests of the proprietors of nursing homes that they should remain open for that use were "in potential conflict" with the interests of residents.[190] In this case the purpose of the power exercised by the Chief Executive cannot be said to be to protect the interests of a certain class of individuals. Instead, a different issue of potential conflict arises. The power to grant or refuse an application to renew an extended hours permit exists to advance a variety of interests, including the public interest in minimising harm from misuse of liquor, adverse impacts on public amenity, public safety and other community interests. The imposition of a duty of care to protect the interests of an applicant whose economic interests may be adversely affected by the refusal of an application to renew an extended hours permit may conflict with the exercise of such a statutory power. The statutory power exists to regulate the sale of liquor having regard to, amongst other things, the welfare, needs and interests of the community. It does not exist to protect the economic interests of applicants. The potential conflict between the interests that the Act exists to advance and the interests of applicants provides a reason why the recognition of a duty of care is not consistent with the terms, scope and purpose of the Act. This conclusion is fortified by the fact that the statutory scheme protects the interests of aggrieved applicants by supplementing judicial review remedies with a statutory appeal on the merits.
[322]
[141] The vulnerability of the plaintiffs to economic loss as a foreseeable result of the unfavourable exercise of the statutory power conferred upon the Chief Executive is insufficient to establish a duty of care. That vulnerability is a feature of a statutory regime that confers permits of limited duration on licensees and also confers a broad discretionary power upon the Chief Executive to not renew those permits. That vulnerability is ameliorated by a statutory appeal to an independent tribunal. Examination of the terms, scope and purpose of the relevant statutory regime leads me to conclude that it does not erect or facilitate a relationship between the Chief Executive and the class of persons of which the plaintiffs are members, namely applicants for renewal of extended hours permits, that displays sufficient characteristics to impose a common law duty of care. The power conferred on the Chief Executive is not conferred for the protection of applicants for permits and the proper exercise of the power may be inimical to their private interests. The duty of care contended for by the plaintiffs is not consistent with the terms, scope and purposes of the Act. Accordingly, I conclude that the plaintiffs have not established that the Chief Executive owed to them the duty of care which they allege.
[323]
[142] Although I have concluded that the Chief Executive did not owe the plaintiffs the duty of care which they allege, I shall proceed to make findings in relation to allegations that she breached the alleged duty of care. Two matters should be mentioned before doing so. The first is that the plaintiffs do not plead or contend that in the circumstances of the case the Chief Executive was bound to approve the applications. For instance, they do not plead that no reasonable decision-maker in the Chief Executive's position would have made the decisions that she did. The second is that the defendants do not seek to characterise the case as one involving the failure to exercise a statutory discretion.[191] I shall deal with the breach of duty issue by reference to the plaintiffs' particulars of breach:
[324]
(i) Failing to read the comments and objections from the Gold Coast City Council and the Assistance Commissioner of Queensland Police, and the plaintiffs' responses thereto
[325]
[143] The fact that the Chief Executive did not read the voluminous comments and objections from the GCCC and the police, as distinct from the summary of them contained in the 15 March 2004 Briefing Notes, was not pleaded by the plaintiffs as a ground of invalidity. Instead, as part of their written submissions on the requirement for the Chief Executive to "have regard" to those comments and objections, the plaintiffs submitted that the Chief Executive failed to "have regard" to such comments and objections because she did not read them.[192] Accordingly, I deal with the issue in the present context.
[326]
[144] The police objections were voluminous, amounting to more than 450 pages. They included extensive data about incidents. They required analysis. The incidents relied upon by the police in their objections were analysed by departmental officers, and this proved to be a significant exercise. The Briefing Notes of 15 March 2004 included an analysis of the incidents as an annexure. It was not suggested to Mr Murphy, or any other witness, that the analysis of the data was inaccurate. There was no submission by the plaintiffs that the Briefing Notes did not accurately summarise the contents of the police and Council objections.
[327]
[145] Section 121A(3) required the Chief Executive to "have regard" to the comments and objections of the GCCC and the police. The plaintiffs submit that it was not sufficient to read the Briefing Notes. In reliance upon Tickner v Chapman they submit that her legal obligation required "an active intellectual process directed at that representation or submission".[193] They further submit that the Chief Executive could not simply rely on an assessment of their worth by others.
[328]
[146] Tickner v Chapman considered the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth). Section 10(1)(c) of that Act required the Minister to consider a report given to him under s 10(4) and any representations attached to the report before making a declaration affecting an area that he was satisfied was a "significant Aboriginal area". The Act incorporated a policy of public involvement in the process and granting or withholding a declaration had potentially grave consequences. The Act was interpreted as requiring the Minister to personally consider the representations. Black CJ concluded that the requirement that the Minister personally consider the report and any representations attached to it arose because the powers and functions of the Minister under s 10 were specifically excluded from the power of delegation conferred by s 31(1) of the Act.[194]
[329]
[147] O'Loughlin J at first instance considered that there needed to be "substantial personal involvement" on the part of the Minister who was required to consider the written material, but this did not mean that the Minister had to read "every word of every document; A busy Minister was entitled to receive assistance from his staff".[195] O'Loughlin J concluded, however, that the Minister did not give any consideration to the representations at all. This finding was upheld on appeal. It was not sufficient for the Minister to consider another document, namely the report, which was thought by a member of his staff "adequately to reflect" the representations.[196] Black CJ concluded that the Minister's "consideration" of a representation involved "an active intellectual process directed at the representation".[197] This did not mean that the Minister was denied the assistance of a staff member in the process of considering the representations. This included the preparation of a summary of technical supporting material. Black CJ observed:[198]
[330]
"I would not rule out the possibility of some representations being quite capable of effective summary, yet there would be other cases where nothing short of personal reading of a representation would constitute proper consideration of it."
[331]
[148] Burchett J reached a similar conclusion concerning the Minister's duty to consider representations. The Minister was required "to apply his own mind to the issues raised by these documents".[199] Burchett J stated:[200]
[332]
"To do that, he must obtain an understanding of the facts and circumstances set out in them, and of the contentions they urge based on those facts and circumstances. Although he cannot delegate his function and duty under s 10, he can be assisted in ascertaining the facts and contentions contained in the material. But he must ascertain them. He cannot simply rely on an assessment of their worth made by others."
[333]
[149] Kiefel J also concluded that the obligation to consider the representations was "clearly personal to the Minister" and was expressly made non-delegable.[201] The obligation to consider required "the Minister to have regard to what was said in the representations, to bring his mind to bear upon the facts stated in them and the arguments or opinions put forward and to appreciate who was making them".[202]
[334]
[150] The defendants submit that there is a difference between a statutory requirement to "consider" and the requirement in s 121A to "have regard to". I do not consider that there is a material difference between these requirements. As noted, in Tickner v Chapman Kiefel J concluded that the obligation to consider the representations required the Minister to have regard to what was said in them. In Zhang v Canterbury City Council[203] Spigelman CJ (with whom Meagher and Beazley JJA agreed) stated that an obligation to "take into consideration" matters was an obligation of a similar character to that which has been found to be imposed by a statutory obligation to "have regard to" identified matters. The requirement to "have regard to" demands that a decision-maker call their attention to the relevant matters.[204]
[335]
[151] A relevant point of distinction between the statute in this case and the statute considered in Tickner v Chapman is that the Minister in the latter case was personally required to exercise the function and duty under s 10 of the Commonwealth Act. By contrast, the power under s 121A of the Act was able to be delegated. In the present matter the power was not delegated, however, the fact that it could be delegated rather than exercised by the Chief Executive personally supports the defendants' contention that the Chief Executive was not required to personally read all of the objections and summaries. Even in the different statutory context of the Commonwealth Act considered in Tickner v Chapman, the Full Federal Court recognised that the Minister, who could not delegate his function and duty under the relevant section, could be "assisted in ascertaining the facts and contentions contained in the material".[205]
[336]
[152] In Minister for Aboriginal Affairs v Peko-Wallsend Ltd[206] Gibbs CJ considered the duty of the Minister under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) to consider the matters mentioned in s 50(3) of that Act in determining whether land should be granted to a land trust. His Honour stated:[207]
[337]
"Of course the Minister cannot be expected to read for himself all the relevant papers that relate to the matter. It would not be unreasonable for him to rely on a summary of the relevant facts furnished by the officers of his Department. No complaint could be made if the departmental officers, in their summary, omitted to mention a fact which was insignificant or insubstantial. But if the Minister relies entirely on a departmental summary which fails to bring to his attention a material fact which he is bound to consider, and which cannot be dismissed as insignificant or insubstantial, the consequence will be that he will have failed to take that material fact into account and will not have formed his satisfaction in accordance with law."
[338]
[153] I conclude that the statutory obligation upon the Chief Executive to "have regard to" the comments and objections required her to bring her mind to bear upon the facts stated in those objections and the arguments or opinions put forward in them. However, the Chief Executive was not personally required to read data contained in voluminous objections, provided the data was accurately summarised in the material which she in fact read. So far as arguments or opinions put forward in the objections were concerned, the Chief Executive had to give personal consideration to those matters, and could not simply rely upon someone else's assessment of their worth. Otherwise the Chief Executive would not be having regard to the arguments and opinions that had been put forward but to "someone else's view of them".[208] However, the Act did not preclude the Chief Executive from relying upon departmental officers to analyse data about incidents and to report their analysis in the helpful way that they did. In the circumstances it was reasonable to rely upon the analysis of the numerous incidents reported by the police. It was reasonable, in the circumstances, for the comments and objections of the Council and the police to be summarised in the Briefing Notes.
[339]
[154] The proper discharge of the Chief Executive's statutory duties required her, like any other Director-General, to have assistance in the form of oral and written briefings. The proper discharge of her statutory functions was likely to be assisted, rather than impeded, by the proper analysis and summary of voluminous material. The fact that the Chief Executive relied upon the Briefing Notes does not mean that she did not "have regard to" the objections and comments which were accurately summarised in them. She brought her attention to bear on the matters raised in the comments and objections.
[340]
[155] I have reflected on whether the Chief Executive simply relied on someone else's assessment of the worth of the comments and objections. The Briefing Notes assessed the objections to be cogent and reasonable, and the Chief Executive relied on that assessment. However, the Briefing Notes also accurately conveyed the substance and content of the comments and objections, and I find that the Chief Executive applied her mind to the matters raised by the comments and objections, and made her own assessment of them. I conclude that she had regard to them.
[341]
[156] In the circumstances, which include the volume of the submissions, the need to summarise them and the accuracy of that summary, I do not consider that it was unreasonable of the Chief Executive to rely upon the Briefing Notes, rather than call for, and read, the comments and objections in their entirety. The Briefing Notes also accurately summarised the plaintiffs' lengthy responses, whilst attaching copies of the same, and it was reasonable for the Chief Executive to rely upon these summaries.
[342]
(ii)Failing to make enquiries of Michael Kelly, Mark Farrah or Wayne Briscoe, as to the evidentiary basis for the objections and comments.
[343]
[157] The Chief Executive relied upon both oral and written briefings during the decision-making process. She spoke to Mr Briscoe, the Acting Executive Director of the Liquor Licensing Division, around the time of making the decisions. Mr Farrah was the Manager, Licensing Administration who, along with Mr Briscoe, submitted the Briefing Notes for the Chief Executive's consideration. If the Briefing Notes raised matters requiring clarification, or omitted matters, then it would have been appropriate for the Chief Executive to make enquiries of these officers. Mr Kelly had occupied the position of Executive Director prior to the appointment of Mr Briscoe to act in that role. He orally briefed the Chief Executive on 23 December 2003. The evidence does not persuade me to conclude that the oral and written briefings given by Messrs Kelly, Farrah and Briscoe required the Chief Executive to make further enquiries of them as to the evidentiary basis for the objections and comments. This point was not developed in the plaintiffs' submissions on breach.[209]
[344]
(iii)Failing to ascertain the attitude of the Licensing Division's investigating officers in respect of the applications for extended hours permits
[345]
[158] The attitude of the Liquor Licensing Division as a whole was apparent from the Briefing Notes. Each Briefing Note advised that the Gold Coast Regional Office did not report any adverse matters in relation to the plaintiffs' nightclubs, save that two liquor infringements reports were being investigated in respect of the Cocktails and Dreams nightclub. The Chief Executive did not fail to ascertain the attitude of the Division to the applications.
[346]
(iv)Failing to ascertain whether there was any comparative analysis of non-compliance or laxity on the part of other late-night venues in the vicinity, or evidence as to the level of misconduct associated with other premises in the vicinity
[347]
[159] The proper discharge of the Chief Executive's powers and functions in dealing with the plaintiffs' applications did not require her to enquire whether there was a "comparative analysis" of the kind suggested. The Act did not contemplate or require such a comparative analysis. The plaintiffs' applications and the applications of numerous other applicants were the subject of separate consideration by the Liquor Licensing Division and the plaintiffs' applications, including objections to them, were considered on their merits.
[348]
(v)Failing to enquire as to the two liquor infringement reports referred to by her investigators' comments in the Cocktails and Dreams Briefing Note
[349]
[160] These two liquor infringement reports were of no consequence in the
[350]
decision-making process, and it was reasonable of the Chief Executive to not make further enquiries as to them.
[351]
(vi)Failing to have regard to the Liquor Licensing Division's assessment that patron behaviour at the applicants' premises was generally considered good, with clear evidence of Responsible Service of Alcohol commitment
[352]
[161] An attachment to Mr Kelly's Briefing Note of 23 December 2003 reported on the outcome of compliance observations that had been undertaken by the regional office. It reported that:
[353]
"The patron behaviour within the premises visited was generally considered good with clear evidence of RSA commitment by most premises. This commitment involved active efforts to prevent patrons stockpiling drinks, identifying high risk intoxication issues and addressing them and adequate security staff to deter inappropriate behaviour. However it is possible that this commitment is due to their knowledge of the increased presence of licensing staff.
[354]
From approximately 11:00 pm onwards, Licensing Officers have observed large gatherings of people in public areas in Surfers Paradise, and a large volume of patrons moving between night-clubs.
[355]
There is anecdotal evidence that some people start drinking earlier at private residences and other licensed premises before travelling into Surfers Paradise. Some licensed premises provide a courtesy bus at close of trade and Licensing Officers are aware that some courtesy buses transport patrons, in various states of intoxication, to Surfers Paradise. If unduly intoxicated persons are refused entry to premises, they to tend to congregate on the street and cause problems."
[356]
This information formed part of the background information which came to the Chief Executive's attention during the lengthy decision-making process. The subsequent Briefing Notes of 15 March 2004 were completed with the benefit of analysis of the behaviour of persons both inside and outside the nightclubs, and the Chief Executive made her assessment of the matters to which s 121A required her to have regard. In the circumstances, the proper discharge of her responsibilities did not require her to have separate and specific regard to the reported outcome of the earlier regional office's compliance program. She was informed of the fact that the regional office did not object to the renewals and had no adverse matters other than the two liquor infringement reports that were being investigated.
[357]
[162] If the Chief Executive had given separate and specific regard to the regional office report then it is unlikely that her decision would have been different. The fact that during a period of compliance visits patron behaviour within the premises was considered generally good, with clear evidence of a commitment by most premises to the responsible service of alcohol, did not entitle the applicants to a renewal. The regional office report was qualified with the observation that "it is felt in particular with some premises that this commitment was due to the increased presence of licensing staff after hours".[210] If anything, the regional office report highlighted one consequence of a commitment by licensees to the responsible service of alcohol. As the 23 December 2003 Briefing Note stated, if "unduly intoxicated persons are refused entry to premises, they tend to congregate on the street and cause problems." The regional officer report reported on the disorderly conduct of persons outside the premises who were said to "congregate and contribute to the disorderly conduct alleged by the QPS."
[358]
(vii)Failing to ascertain if there was evidence of a clear relationship between alcohol related street offences and the operation of the plaintiffs' premises
[359]
[163] Section 121A, and the matters to which the Chief Executive was required to have regard, were not confined to alcohol-related "street offences". They related to broader matters including impact upon public amenity and the noisy behaviour of persons who could reasonably be expected on and in the vicinity of the premises if the extension was granted. The Act did not require proof of a "clear relationship" between alcohol-related street offences and the operation of the plaintiffs' premises before an application could be refused. This particular of breach of duty picks up an expression used in the 23 December 2003 Briefing Note which stated, in part:
[360]
"While substantial material has been provided by objectors, a clear relationship between alcohol related street offences and the operation of a specific premises must be established if any application is to be refused."
[361]
However, the evidence summarised in the Briefing Notes did conclude that there was a relationship between the plaintiffs' nightclubs and problems on and in the vicinity of them which resulted in "unnecessary disturbance to the amenity, quiet and good order of the locality". In the circumstances, the Chief Executive did not breach her alleged duty of care in the manner alleged. There was evidence of significant problems on and in the immediate vicinity of the plaintiffs' premises which resulted in unnecessary disturbance to the amenity, quiet and good order of the locality.
[362]
(viii)Deciding the application without the matters referred to in subparagraphs (i) - (vii) herein
[363]
[164] For the reasons given above, the matters in subparagraphs (i) - (vii) did not preclude the Chief Executive from deciding the applications.
[364]
(ix)Refusing the permits when there was insufficient evidence to do so, and where there was no evidence of liquor infringement reports against the premises
[365]
[165] The objections of the GCCC and the police were substantial and substantiated. I have addressed this matter previously. In the administrative and regulatory context of s 121A, there was sufficient evidence to refuse the applications, and the fact that there was no evidence of liquor infringements reports against the premises does not alter this conclusion.
[366]
(x)The matters in subparagraphs 57(a), (b), (f), (g), (h), (i) and (j) of the plaintiffs' pleading
[367]
[166] I addressed these factual matters in the course of considering the alleged excess of power. For the reasons previously given, I consider that the matters raised in these subparagraphs of the plaintiffs' pleading are not established. In essence, the plaintiffs complained that the Chief Executive took into account matters about which she had no evidence, gave undue weight to police objections, failed to take into account relevant matters when considering the grant of an interim permit, "singled out" the plaintiffs from other businesses and reached wrong conclusions about the existence of problems on or in the vicinity of the applicants' nightclubs and the plaintiffs' ability to control the behaviour of persons who could reasonably be expected to be on or in the vicinity of those businesses. For the reasons that I have earlier given, I consider that the criticisms made in these subparagraphs of the plaintiffs' pleading cannot be sustained. In determining the alleged breach of duty, I am not required to consider whether the decisions made by the Chief Executive were the right decisions in the circumstances. The weight given by the Chief Executive to the police objections and other matters was entrusted to her judgment, however, it was appropriate for her to give substantial weight to the police objections. There was evidence upon which she could reasonably act in reaching the conclusions that she did. I have previously rejected the allegation that the Chief Executive "singled out" the plaintiffs.
[368]
[167] I have earlier concluded that the Chief Executive did not owe the plaintiffs the duty of care alleged. I conclude that any such duty was not breached.
[369]
Issues concerning the Chief Executive's state of knowledge
[370]
[168] The plaintiffs plead that the Chief Executive knew or ought to have known that she was acting outside her powers under the Act and made the decisions on 18 March and wrote the letter on 24 March 2004 "with knowledge that the need for any recommendation to refuse an extended hours permit must be supported by documentary evidence that can be directly related to the Businesses and that is capable of being defended in any appeal hearing in the Commercial and Consumer Tribunal".[211]
[371]
[169] I have previously made findings of fact, and rejected the plaintiffs' contention that the Chief Executive had "reckless indifference to the invalidity of her decisions or lack of power". I found that the Chief Executive did not act in excess of her powers under the Act. I found that she was not reckless as to the validity of her decisions. The plaintiffs did not seek a finding of fact that the Chief Executive actually knew that she lacked the power to make the decisions that she did, or that she knew that the decisions were invalid. Their submissions were couched in terms of reckless indifference.
[372]
[170] The plaintiffs' submissions on recklessness, like their pleadings on actual or constructive knowledge of invalidity, require consideration of the state of the Chief Executive's knowledge, information and belief as at 18 March 2004 when she made the decisions. These matters may be summarised as follows so as to deal with the matters pleaded by the plaintiffs in relation to the Chief Executive's state of knowledge at the relevant dates:[212]
[373]
(a) The Chief Executive had some knowledge, by way of background, of matters that had been raised with her in late 2003 in the process of receiving oral and written briefings.
[374]
(b) It was not reasonable to expect the defendant as at 18 March 2004 to have a recollection of the details of the state of the evidence and the Liquor Licensing Division's analysis (or lack thereof) of the police and Council objections as at 23 December 2003.
[375]
(c) It was reasonable as at 18 March 2004 for the Chief Executive to rely on the Briefing Notes of 15 March 2004, supplemented by oral briefings by Mr Briscoe, as to the current position with the respective police and Council objections, the plaintiffs' responses to them and the Division's recommendations in relation to these matters.
[376]
(d) The Chief Executive knew that the plaintiffs would suffer economic loss if the applications for renewal of the permits were not granted.
[377]
[171] I turn to consider the plaintiffs' allegations that the plaintiffs made the decisions on 18 and 24 March 2004 "with knowledge that the need for any recommendation to refuse an extended hours permit must be supported by documentary evidence that can be directly related to the Businesses and that is capable of being defended in any appeal hearing in the Commercial and Consumer Tribunal".[213] The Chief Executive knew of the need for Council and police objections to be substantiated. She knew, by virtue of the contents of the Briefing Notes, of the matters to which she was required to have regard pursuant to s 121 and s 121A of the Act. The Briefing Notes informed the Chief Executive of issues both in relation to the plaintiffs' premises and matters relating to the locality in which it was related, including evidence from the Council of anti-social and violent behaviour, street litter and vomit. They reported on the plaintiffs' responses to Council and police objections and that an analysis of incidents contained in the objections from police demonstrated "significant behavioural problems in and around" the nightclubs that could reasonably be attributed to alcohol consumption. She knew, by virtue of the oral and written briefings that she received, that problems on and in the vicinity of the plaintiffs' premises were relevant insofar as they featured in objections to which she was required to have regard or related to the amenity, quiet and good order of the locality. In that sense, she knew that the material had to be related to the plaintiff's businesses. However, she did not know, and the Act did not require her to be satisfied, that there had to be "documentary evidence" that "directly related" these matters to a failure by the plaintiffs to conduct their businesses properly or to breaches of the Act. The Briefing Notes of 15 March 2004 stated that there was every indication that the plaintiffs would appeal a decision to the Tribunal. In this context, the Chief Executive knew that her decisions would need to be defended in any appeal to the Tribunal.
[378]
[172] I have rejected the submission that the Chief Executive was reckless as to deficiencies in the material, or was reckless as to whether her decision was in excess of power or otherwise invalid. I additionally find that she did not know, nor ought to have known, that she was acting outside her powers under the Act.[214] She did not in fact act outside her powers.
[379]
[173] The plaintiffs plead, on the basis of the matters alleged in their pleading with respect to the alleged invalidity of the decisions and the Chief Executive's state of knowledge, that her acts were:
[380]
(b) made with the intent of causing loss to them.[215]
[381]
I have rejected the basis for the contention that the Chief Executive's acts were malicious. I decline to find that the Chief Executive was malicious. In particular, I conclude that the plaintiffs have failed to establish that the Chief Executive made the decisions with reckless indifference to their invalidity or her alleged lack of power. This was the basis upon which the plaintiffs submitted that I should conclude that her decisions were made maliciously.
[382]
[174] The plaintiffs persisted in their oral submissions with the contention that the Chief Executive intended to cause them loss. The Chief Executive's knowledge that her decisions would cause the plaintiffs' economic loss cannot be equated with an intention to injure them for the purpose of establishing the tort of misfeasance in public office. There was no "targeted malice", namely an intention to injure the plaintiffs.[216] The knowledge that an administrative decision will cause an aggrieved party economic loss should not be transformed into an intention to cause economic loss, and I decline to find that the Chief Executive intended to cause the plaintiffs loss.
[383]
[175] There was no dispute between the parties concerning the elements of this tort, although both acknowledged that the limits of the tort are not precisely defined.[217] The elements of the tort of misfeasance in public office are:
[384]
(e) which causes loss or harm to the plaintiff.[218]
[385]
The essence of the plaintiffs' case on misfeasance in public office was that the Chief Executive exceeded her powers and was aware of "the shortcomings in the evidence provided to her about the matters that she was required to consider under s 121A of the Act".[219] I have declined to find that the Chief Executive's decisions were invalid or unauthorised. I have also determined that her decisions were not malicious. As a consequence, the plaintiffs have failed to prove the elements of the tort of misfeasance in public office.
[386]
[176] In the circumstances, it is unnecessary and possibly inappropriate[220] to address the circumstances in which an employer will be vicariously liable for the tort of misfeasance in public office and to determine whether the State would have been vicariously liable if the Chief Executive had committed that tort. The plaintiffs' submissions did not specifically address the issue of vicarious liability for the tort of misfeasance in public office despite the matter being placed in issue by the defence.[221] As to vicarious liability, the defendants' additionally relied in their submissions on the principle that the State is not liable where the employee was exercising an independent duty cast upon him or her by the law.[222]
[387]
[177] The plaintiffs plead that the State owed a duty of care to the plaintiffs to "ensure" that the Chief Executive "acted in accordance with her obligations under the Act" and to "process and approve" the plaintiffs' applications for extended hours permits for the six month period 1 April 2004 to 30 September 2004. This alleged duty is different in content, and more demanding than, the duty of care which the plaintiffs allege was owed to them by the Chief Executive. The matters which led me to conclude that the Chief Executive did not owe a duty of care to the plaintiffs also lead me to conclude that the State did not owe a common law duty of care to, in effect, protect the plaintiffs' economic interests. In short, the Act does not erect or facilitate a relationship between the State (which itself is not the repository of the power) and applicants for extended hour permits that shows sufficient criteria for intervention by the tort of negligence.
[388]
[178] I turn to consider the specific duty pleaded in subparagraph 60A(a) of the plaintiffs' pleading, namely that the State owed a duty of care to the plaintiffs to "ensure" that the Chief Executive "acted in accordance with her obligations under the Act". The Chief Executive's obligations under the Act are pleaded to be to:
[389]
(a) consider applications for extended hours permits;
[390]
(b) have regard to the matters in s 121A(3) of the Act in force as at March 2004;
[391]
(c) exercise her powers properly for the purposes of considering all such applications for extended hours permits.[223]
[392]
To the extent that the last of these matters import public law considerations, the common law duty of care contended for amounts to a duty to ensure that the decision-maker was free from administrative law error. No authority was cited to support the recognition of such a private law duty of care in a statutory context similar to s 121A. Public law requires the holders of statutory powers to consider applications, have regard to matters required by statute and to exercise their powers properly. It provides remedies for failure to observe these public law duties. A State, a public authority or a government official may also owe a duty of care in certain circumstances, and the common law has developed principles governing liability in negligence in such cases. These principles do not require a State to "ensure" that the holder of a statutory power of the kind exercised by the Chief Executive in considering the plaintiffs' application is free from administrative law error. In addition to the general considerations earlier discussed with respect to the duty of the holder of the statutory power to exercise the power with reasonable care, the existence of judicial review remedies and, in this case, a statutory appeal on the merits is a further reason as to why the duty of care contended for should not be recognised. I conclude that the State did not owe a duty of care to the plaintiffs to ensure that the Chief Executive acted in accordance with her obligations under the Act. The Act does not erect or facilitate a relationship that justifies recognition of such a duty and the recognition of such a duty is inconsistent with the statutory scheme.
[393]
[179] The second duty which the State is alleged to have owed the plaintiffs was to "process and approve" the plaintiffs' applications. The applications were processed. The State was not under a duty to approve them. There is no allegation that the repository of the power was bound to approve them, and no basis exists to contend that the State was bound to do so. I conclude that the State did not owe the duty of care pleaded by the plaintiffs.
[394]
[180] The plaintiffs plead that the State breached its alleged duty of care, but their pleading is not precise as to the matters set out in it which were relied upon in support of the alleged breach. I do not find that the Chief Executive failed to act in accordance with her obligations under the Act. I accordingly find that the State did not fail in its alleged duty to ensure that the Chief Executive acted in accordance with those obligations. I have declined to find that the State owed the plaintiffs a duty of care to approve their applications. It was for the Chief Executive, as the repository of the power, to either approve or decline to approve the plaintiffs' applications. I decline to find that the State was in breach of a duty of care in not approving the plaintiffs' applications.
[395]
[181] For completeness, and because the plaintiffs place particular reliance on the success that they achieved in the Tribunal, I mention certain matters in relation to the Tribunal's decision. The Tribunal did not sit in judgment on the Chief Executive's decision. Its determination was by way of rehearing on the evidence that was before the Chief Executive. By the time of the Tribunal's decision, the GCCC had withdrawn as a party before the Tribunal and there had been a number of decisions of the Tribunal where extended hours permits had been granted to nightclub operators in the Surfers Paradise precinct subject to the imposition of a "lockout condition". The Chief Executive and the Assistant Commissioner of Police no longer opposed the grant to the plaintiffs of a renewal of the permits with the imposition of a lockout condition from 3 am, however, the Chief Executive sought the imposition of additional conditions relating to extra security. Whilst the Tribunal considered all options, including the refusal of permits altogether, it is unsurprising in the circumstances of the positions adopted by the police and the Chief Executive that it allowed the appeal, set aside the Chief Executive's decisions and granted extended hours permits, subject to a lockout condition and other management conditions, including conditions as to security. The Tribunal concluded that there was "insufficient evidence before us to determine that the management of the applicants' premises demonstrates a laxity or culture of
[396]
non-compliance with the Act to such an extent as to justify the complete refusal of a permit to trade beyond 3 am". It also observed that it did not have any evidence before it as to the level of misconduct, if any, associated with other premises in the vicinity, nor was any comparative analysis of non-compliance or laxity on the part of other late night venues in the vicinity undertaken by the Chief Executive at the time of her decision.[224] It noted that the Acting Executive Director Liquor Licensing Division stated that when considering whether a premises should have its extended trading hours renewed, it was not the practice of the Division to rely on the complaints and investigation history of another specific nightclub, licensee or nominee except insofar as those matters impact on the amenity of the community concerned. Against that background, the Tribunal concluded that it had insufficient evidence before it, because of the operation of s 34(1) of the Act[225] to come to the view that "the applicants' premises contributes more than proportionally to the general problems of public behaviour evident in the nightclub precinct of Surfers Paradise or that the standard of management differs substantially from that in other similar premises".[226] The Tribunal concluded that to treat the plaintiffs' premises differently to those granted permission to trade beyond 3 am subject to a lockout condition implied that in some way the problems at their nightclubs were more severe than those elsewhere. Against this background, the Tribunal was satisfied that the extended hours permits should be granted subject to a lockout condition and be subject to the same management conditions as were imposed by the Chief Executive as from 1 April 2004 in respect of other late-trading venues on the Gold Coast.
[397]
[182] The decision of the Tribunal was a decision on the merits, based upon the submissions made to the Tribunal at a time when neither the Chief Executive nor the police opposed the grant of renewals subject to the imposition of a lockout. It would be wrong, therefore, to interpret the Tribunal's decision as going to the validity of the Chief Executive's decisions or as establishing that her decision was made with a lack of care. The Tribunal simply reached a different decision to that of the Chief Executive. The Act did not require the Chief Executive to undertake the comparative analysis of non-compliance or laxity on the part of other late-night venues in the vicinity. Further, as previously stated, the Tribunal accepted the police evidence concerning incidents which indicated "a direct connection to the applicants' premises"[227] and agreed that there was evidence of[228]
[398]
"problems associated with patrons of the applicants' premises which contribute to the incidents of violence and disorderly behaviour reported by police and officers of the Gold Coast City Council in the vicinity of the Surfers Paradise nightclub precinct."
[399]
[183] In summary, the Tribunal's decision, based upon the positions adopted by the parties before it at the hearing on 23 July 2004, does not mean that the Chief Executive was in error in making the decisions that she did in March 2004, let alone that her decision was in excess of power. The Tribunal's decision does not support the proposition that the State was under a duty of care to approve the applications, and the matters pleaded in the statement of claim do not disclose a basis to conclude that the State breached its alleged duty of care in not approving the applications.
[400]
[184] The first plaintiff pleaded that it suffered a loss, including alleged reduction in the capital of its business, in the sum of $1,632,325. The second plaintiff pleaded a loss, including alleged reduction in the capital value of its business, in the sum of $1,150,952. These claims were based on assumptions (and an expert report which expressly adopted those assumptions) about the duration of the financial impact upon those businesses of the decisions. These assumptions were at odds with the plaintiffs' evidence at trial.
[401]
[185] Mr Garardi is and was a director and shareholder of the first plaintiff which traded under the names "Cocktails and Dreams" and "The Party Nightclub". Mr Garardi also undertook the actual operation of those nightclubs at the relevant time. The second plaintiff owned and operated the nightclub businesses that traded as "Crazy Horse Nightclub", "The Bourbon Bar" and "Mickey's Café". During the relevant period these businesses were managed principally by Mr Garardi's then business partner, Mr Mick Pikos. At the relevant time Mr Garardi and Mr Pikos would meet regularly to discuss the trade of the plaintiffs' businesses. The business association between Mr Garardi and Mr Pikos ended in October 2006. Mr Garardi was the only witness for the plaintiffs apart from Mr Wood, who provided an expert report. Mr Garardi described the impact of being required to close at 3 am as "devastating". Because other clubs were subject to a "lockout", customers at the plaintiffs' nightclubs learned that they had to leave the plaintiffs' nightclubs well before 3 am in order to queue and gain entry to other clubs before 3 am.[229] The businesses lost regular clientele who would go elsewhere and remain there up to and after 3 am. The business also had difficulty in retaining and attracting staff, including bar staff that attracted customers.[230] After the businesses were permitted to trade until 5 am pursuant to the permits granted by the Tribunal they took some time to recover. Mr Garardi thought that the first plaintiff's business did not recover until well into the 2005 financial year.[231] He thought that that the businesses did not recover until after March 2005.[232] The second plaintiff's business recovered "a little bit earlier",[233] namely early in 2005.
[402]
[186] The parties and the experts agreed about the loss suffered by each plaintiff between 1 April 2004 and 30 August 2004 (when the plaintiffs resumed 3 am to 5 am trading) namely:
[403]
The second period is the period after 1 September 2004 until each business recovered. Based on Mr Garardi's evidence this was the period until 1 April 2005 (seven months) in the case of the first plaintiff and "a little bit earlier"[234] (until 1 March 2005 or six months) in the case of the second plaintiff.[235] The recovery date could not be defined with precision, and I will adopt, in the plaintiffs' favour, periods of eight and seven months respectively for this second period. Expert witnesses, Mr Vincent and Mr Wood, produced reports and a joint statement which became exhibit 10. Mr Vincent estimated the first plaintiff's loss for the period between 1 September 2004 and 31 August 2005 to be $338,605 or a loss per month of $28,217.[236] He estimated the second plaintiff's loss during the same period as $238,165 or $19,847 per month.[237] Mr Vincent's assessment was based upon an estimate of notional sales, which averaged two year's income for the business. Mr Wood did not agree with this approach in circumstances in which there was a decline in the first plaintiff's business in the six months prior to the loss of the permit Mr Vincent was not able to identify the reasons for the apparent downturn.[238] Mr Vincent explained that the averaging over a period of two years was likely to produce a more accurate estimate of loss. He accepted that Mr Wood's approach of adopting figures in the period immediately prior to the closure would be appropriate if one was assessing loss for the following month. However, it was inappropriate in assessing loss that extended over a longer period of months.[239] I accept that Mr Vincent's approach is justified in circumstances in which the period of loss is several months in circumstances in which the business' trade may be subject to short-term variations from month to month and seasonal variations. There is no evidence to suggest that the short-term decline in the first plaintiff's business prior to the five month closure period was due to endemic problems or reflected a long-term trend.
[404]
[187] Mr Wood adopted a different approach to the assessment of loss which assumed that:
[405]
(a) had each plaintiff taken steps to mitigate its loss by incurring additional advertising and promotion costs, it would have recovered to expected levels by 30 September 2004 or approximately one month after the extended hours permits were reinstated;
[406]
(b) the additional advertising and promotion costs required to effect recovery of the plaintiffs' sales over a one month period was $50,000, or $25,000 per venue being about 1.5 times the average annual advertising expenditure incurred in the 2003 and 2004 years;
[407]
(c) the loss of net profit incurred by each plaintiff during the one month period was equal to the average monthly loss assessed in the period 1 April 2004 to 31 August 2004.[240]
[408]
Mr Wood assessed loss based upon a loss of profits during the relevant period and the incurring of such additional expenditure. He provided a sensitivity analysis in respect of different amounts of additional advertising costs and additional months to recover.[241]
[409]
[188] I am disinclined to adopt this approach. It makes various assumptions about the additional advertising expenditure that would be required to effect recovery, and the period required for the recovery to occur. Mr Wood's views were prepared in circumstances in which failure to mitigate was a live issue. I do not find that the plaintiffs failed to mitigate in failing to incur additional advertising costs. I consider that the plaintiffs were best-placed to assess the benefit of additional advertising costs and that the evidence does not permit me to conclude that it failed to mitigate by incurring additional advertising costs. The plaintiffs redirected their existing advertising to promote the fact that each business was able to trade until 5 am. The assumptions made by Mr Wood about the impact of additional advertising are not supported by the evidence, and therefore I do not adopt his calculations of loss.
[410]
[189] Mr Wood also advanced a criticism of Mr Vincent's approach in prorating losses. This criticism has some validity in circumstances in which sales would have been reduced on account of other factors.[242] This criticism has some validity, but will assume significance if the other factors were so significant that expected sales would have been less on account of other factors.[243]
[411]
[190] Notwithstanding this criticism of this aspect of Mr Vincent's methodology, I consider that Mr Vincent's calculations provide a reliable, general guide to the quantum of loss after 1 September 2004.
[412]
[191] I generally accept Mr Garardi's evidence about the impact of the decisions on the plaintiffs' businesses. I accept his evidence that smoking laws, which did not come into full effect until 1 July 2006, did not adversely affect the plaintiffs' businesses during the relevant period and, if anything, had a positive effect on the businesses.[244] Account is required to be taken of the effect which a lockout condition would have had if the plaintiffs had been given extended hours permits, subject to a lockout condition, after 1 April 2004. I find that had permits been granted they would have been subject, like other businesses, to a lockout condition. Mr Garardi gave evidence that the plaintiffs "learnt to live with the lockout", and that a lockout "can also be a lock-in so that if you gain customers before 3 am, they are actually locked in."[245] However, I do not consider that this evidence, or any other evidence, suggests that the imposition of a lockout condition would have benefited the plaintiffs' business. A lockout condition was resisted by the plaintiffs.[246] An offer of an extended hours permit subject to a lockout condition was rejected. One reason for this may have been some uncertainty about the impact which a lockout condition would have. However, it is clear that the plaintiffs and other nightclubs regarded a lockout condition as likely to have an adverse financial impact on their businesses. Another nightclub unsuccessfully appealed against the imposition of such a condition and the Tribunal found that such a condition "undoubtedly would be some degree of economic impact on all venues".[247]
[413]
[192] I find that the imposition of a lockout condition would have had an adverse impact upon the plaintiffs' businesses. The effect of that impact cannot be assessed with any precision in the light of the evidence. The plaintiffs' submissions do not specifically address the impact which a lockout condition would have had upon the loss and Mr Vincent's calculations did not bring into account any reduction on account of it.
[414]
[193] In the circumstances, I consider that a reasonable approach to assessing damages is to discount the loss assessed by Mr Vincent by 20 per cent on account of the likely adverse impact of a lockout condition.
[415]
[194] Damages will be assessed for the period after 1 September 2004 as follows:
[416]
(a) First plaintiff - $28,217 per month x 8 months = $225,736
[417]
(b) Second plaintiff - $19,847 per month x 7 months = $138,929
[418]
[195] The defendants pleaded that the plaintiffs failed to mitigate their loss by not undertaking advertising and promotional activities additional to those that they had undertaken prior to 1 April 2004. I accept Mr Garardi's evidence that attempts were made to rejuvenate the business using advertising and other promotional methods. I consider that the plaintiffs took appropriate steps to recover business once permits were granted and that the defendants have failed to prove that additional advertising and promotional activities would have warranted the additional expense. In short, the defendants have failed to discharge the onus of proving that the plaintiffs failed to mitigate their loss.
[419]
[196] The assessment of loss may be summarised as follows:
[420]
Discounted by 20% on account of impact of lockout condition
[421]
Discounted by 20% on account of impact of lockout condition
[422]
[197] If the plaintiffs had been entitled to recover damages then it would have been appropriate to award interest at the rate of nine per cent per annum in accordance with the Supreme Court Act 1995 from the date of their loss.
[423]
[198] The decisions made by the Chief Executive on 18 March 2004 were made under a statutory regime that is principally concerned with the welfare of the community, not the welfare and protection of applicants for extended hours permits. The Act confers a broad discretionary power on the Chief Executive, who must have regard to the matters specified in s 121A(3) of the Act. The grant of an application to renew an extended hours permit does not arise as a matter of right upon satisfaction by the applicant of stated criteria, or in the absence of proof by the police or the council of their objections.
[424]
[199] The Chief Executive did not exceed her powers under the Act in making the decisions and in writing a letter in which she refused to grant any interim permits to the plaintiffs. She was entitled to give substantial weight to police and council objections. As the Tribunal later found, police evidence concerning incidents indicated "a direct connection to the applicants' premises" and there was evidence of "problems associated with patrons of the applicants' premises which contribute to the incidents of violence and disorderly behaviour reported by police and officers of the Gold Coast City Council in the vicinity of the Surfers Paradise nightclub precinct." The 15 March 2004 Briefing Notes upon which the Chief Executive reasonably relied effectively advised her that the objections had been substantiated.
[425]
[200] The Chief Executive was not reckless as to whether her decisions were in excess of power or otherwise invalid. She did not in fact act outside her powers. She was not reckless as to the need for substantiation. The Briefing Notes did not suggest that these incidents were unsubstantiated. They indicated that police and council objections were substantial and substantiated.
[426]
[201] The Chief Executive did not owe to the plaintiffs the duty of care alleged. The vulnerability of the plaintiffs to economic loss as a foreseeable result of the unfavourable exercise of the statutory power is a feature of a statutory regime that confers permits of limited duration on licensees and also confers a broad discretionary power upon the Chief Executive to not renew those permits. That vulnerability is ameliorated by a statutory appeal to an independent tribunal. Examination of the terms, scope and purpose of the relevant statutory regime leads to the conclusion that it does not erect or facilitate a relationship between the Chief Executive and the class of persons of which the plaintiffs are members, namely applicants for renewal of extended hours permits, that displays sufficient characteristics to impose a common law duty of care. The power conferred on the Chief Executive is not conferred for the protection of applicants for permits and the proper exercise of the power may be inimical to their private interests. The duty of care contended for by the plaintiffs is not consistent with the terms, scope and purposes of the Act.
[427]
[202] In any case, the Chief Executive did not breach the alleged duty of care. The claim in negligence against her is not established.
[428]
[203] The Chief Executive's decisions were not invalid or unauthorised. She was not malicious. As a consequence, the plaintiffs have failed to prove two of the elements of the tort of misfeasance in public office.
[429]
[204] The State did not owe the duty of care pleaded by the plaintiffs. In any case, the alleged duty was not breached. The plaintiffs' claims against the State therefore are not established.
[430]
[205] The result is that the proceeding should be dismissed. Subject to any submissions on costs, the order of the court will be:
[431]
2. The plaintiffs pay the defendants' costs of and incidental to the proceeding, including reserved costs, to be assessed.
[432]
[2]Surfers Paradise Rock & Roll Café P/L & Anor v Chief Executive Liquor Licensing Division, Department of Tourism, Fair Trading and Wine Industry Development & Anor[2004] QCCTL 6 at [42] (the decision became part of Exhibit 8, vol 4 starting at 1305). A "lockout condition" describes a condition that patrons "must not be permitted entry or re-entry to any part of the premises after 3.00 am on the day where trading occurs beyond 3.00 am, except where the exit and re-entry to the premises after 3.00 am is an emergency situation".
[433]
[3] Further Further Amended Statement of Claim ("FFASOC") para 57.
[434]
[11] This matter was not pleaded as a ground upon which the Chief Executive was alleged to have acted beyond power.
[435]
[13]Surfers Paradise Rock & Roll Café & Anor v Chief Executive of Liquor Licensing Division supra at [34].
[436]
[15]Surfers Paradise Rock & Roll Café & Anor v Chief Executive of Liquor Licensing Division supra at [25] and [34].
[437]
[16] The Act has been amended since the relevant decisions. The Act in force at the time appears in Reprint No 7 of the Liquor Act1992 (Qld).
(a) the previous conduct of the applicant in discharging any duties under this Act previously placed on the applicant, especially for the premises for which the extension is sought; and
[441]
(b) the applicant's ability to control the noise and behaviour of the number of persons that could reasonably be expected to be on and in the vicinity of the premises if the extension were granted; and
[442]
(c) the suitability of the premises and its facilities for the purpose for which the extension is sought.
[443]
[24] Pursuant to s 116(4), in deciding the public interest relating to an application, the Chief Executive must take into account certain information and must also have regard to:
[444]
"(a) the existing and projected population and demographic trends in the locality; and
[445]
(b) the number of persons residing in, resorting to or passing through the locality, and their respective expectations; and
[446]
(c) the likely health and social impacts that granting the application would have on the population of the locality; and
[447]
(d) an assessment of the magnitude, duration and probability of the occurrence of the health and social impacts; and
[448]
(e) the proximity of the proposed licensed premises to identified sub-communities within the locality, including, for example, schools and places of worship, and the likely impact of those sub-communities; and
[449]
(f) other information the Chief Executive considers relevant to the reasonable requirements on the public for liquor and related services in the locality; and
[450]
(g) the objects of the Act as mentioned in s 3 and the underlying principle of the Act as mentioned in s 3A."
[451]
[27] The Act s 121(6). References are to the Act as it applied at the relevant time. More recent amendments have extended the duration of extended hours permits to 12 months.
[452]
[29] Second Reading Speech for the Liquor Amendment Bill1994 by R J Gibbs, Minister for Tourism, Sport and Racing, 19 October 1994, Hansard at 9674.
[453]
[35] Section 107ff contain a variety of restrictions on the grant of an application for a licence or permit.
[66] Transcript at 3-6 l 48-3-7 l 45 and 2-94 ll 48-50.
[458]
[69] These obligations are separately pleaded in para 55 of the FFASOC as being to:
[459]
(a) consider applications for extended hours permits;
[460]
(b) have regard to the matters in s 121A(3) of the Act in force as at March 2004;
[461]
(c) exercise her powers properly for the purposes of considering all such applications for extended hours permits.
[462]
[71] Letter from Manager, Statutory Planning at the GCCC, to the Executive Director, Liquor Licensing Division, Exhibit 8, vol 2 at 325.
[463]
[72] Letter from Director, Planning and Environment and Transport to the Executive Director, Liquor Licensing Division dated 27 August 2003, Exhibit 9, tab 2.
[464]
[73] Queensland Police Service: First Objection Report: Extended Hours Permit Cocktails and Dreams Nightclub Surfers Paradise at Exhibit 8, vol 2 at 409-513.
[465]
[74] Queensland Police Service: First Objection Report: Extended Hours Permit Crazy Horse Nightclub Surfers Paradise at Exhibit 8, vol 2 at pp 326-408.
[466]
[77] Queensland Police Service: First Objection Report Crazy Horse Nightclub Surfers Paradise at Exhibit 8, vol 2 at 349; Queensland Police Service: First Objection Report: Extended Hours Permit Cocktails and Dreams Nightclub Surfers Paradise at Exhibit 8, vol 2 at 436.
[467]
[82] Described as Shooters, The Drink, Crazy Horse and Cocktails and Dreams.
[468]
[85] Memo from Brian Davis to Lorna Andrews, subject 'Liquor Licensing Compliance program - Surfers Precinct Sept - Nov 2003' dated 20 November 2003, at Exhibit 8, vol 2 at 574.
[469]
[86] Memo from Brian Davis to Lorna Andrews, subject 'Liquor Licensing Compliance program - Surfers Precinct Sept - Nov 2003' dated 20 November 2003, at Exhibit 8, vol 2 at 575-576.
[138]Surfers Paradise Rock & Roll Café P/L & Anor v Chief Executive Liquor Licensing Division, Department of Tourism, Fair Trading and Wine Industry Development & Anor supra at [24].
[143] Plaintiffs' submissions para 79. The Briefing Note is dated 15 March 2004 and was signed by the Manager, Licensing Administration and also by the Acting Executive Director, Liquor Licensing on 15 March 2004. It was signed by the Chief Executive on 18 March 2004. References in the plaintiffs' submissions to the 18 March 2004 Briefing Note should be taken to refer to the Briefing Note dated 15 March 2004 that was signed by the Chief Executive on 18 March 2004.
[148]Surfers Paradise Rock & Roll Café P/L & Anor v Chief Executive Liquor Licensing Division, Department of Tourism, Fair Trading and Wine Industry Development & Anor supra at [24].
[491]
[149] Paragraph 36 pleads that as at 27 November 2003 they had been found to be compliant, that there was no substantiated police objections to their business and that the GCCC had not provided any substantiated evidence.
[158] (2007) 98 SASR 136 at 348-362 [1012]-[1070].
[498]
[160] Although s 49 was pleaded as a ground of defence on behalf of the second defendant, the defendants' submissions did not rely upon it, and it is unnecessary in the light of my later findings on liability to further address it.
[499]
[161]Graham Barclay Oysters Pty Ltd v Ryan (supra) at 597-598 [149]; see also Colbran v State of Queensland[2008] QSC 132; (2008) Aust Torts Reports 81-958 at [61860] - [61864]; [127] - [140], which was cited by the plaintiffs as a recent example of the application of the "salient features test". The finding of a duty of care in that case by the consideration of all of the circumstances does not dictate the same result in the materially different circumstances and different statutory regime involved in this case.
[166] See Aronson "Government Liability in Negligence" [2008] MelbULawRw 2; (2008) 32 MULR 44 at 69 in which Professor Aronson refers to the common law's fundamental opposition to requiring defendants to take positive action for the benefit of plaintiffs beyond certain familiar categories, and that many of these concern situations in which the plaintiff and defendant are already in a relationship requiring care on the defendant's part towards the plaintiff.
[171] (supra) at 597-598 [149]; Stuart at 459-460 [113].
[509]
[172] Recent English authority on this aspect is discussed in Booth and Squires The Negligence Liability of Public Authorities, Oxford University Press, 2006, paras 4.65-4.70.
[179]Crimmins v Stevedoring Industry Finance Committee supra at 36-39, 50-51.
[516]
[180] Aronson "Government Liability in Negligence" supra at 55.
[517]
[181]Crimmins v Stevedoring Industry Finance Committee supra at 20-21, 62, 101; Vairy v Wyong Shire Council supra at 451.
[518]
[182] Compare, for example, the declaration in Chapman v Luminis Pty Ltd (No 4)[2001] FCA 1106; (2001) 123 FCR 62 at 133-134 [259]-[263] which was akin to a regulation, involved the exercise of delegated legislative power and was found to be legislative in nature.
[191] As to a failure to exercise a power or to consider its exercise, see Wotherspoon "Translating the public law 'may' into the common law 'ought': The case for a unique common law cause of action for statutory negligence" (2009) 83 ALJ 331; Aronson, "Government Liability in Negligence" supra at 66-73.
[522]
[192] Plaintiffs' submissions paras 76(b) and 83. Reliance was placed in these submissions on the failure to read as resulting in an excess of power.
[222]Little v Commonwealth[1947] HCA 24; (1947) 75 CLR 94 at 114; Baume v Commonwealth[1906] HCA 92; (1906) 4 CLR 97; see the Queensland Law Reform Commission Vicarious Liability Report No 56, 2001 pp 41-58 where the Commission criticises the principle and recommends legislation to alter the rule.
[539]
[224]Surfers Paradise Rock & Roll Café P/L & Anor v Chief Executive Liquor Licensing Division, Department of Tourism, Fair Trading and Wine Industry Development & Anor supra at [35].
[540]
[225] Which provides that the appeal is by way of rehearing on the evidence that was before the Chief Executive.
[541]
[226]Surfers Paradise Rock & Roll Café P/L & Anor v Chief Executive Liquor Licensing Division, Department of Tourism, Fair Trading and Wine Industry Development & Anor supra at [35].
[542]
[235] The plaintiffs' submissions para 93 contend for a period of loss in the case of the first plaintiff of a further ten months and a further five months for the second plaintiff. However, the period of ten months seems to be based upon a proposition that the first plaintiff's business did not recover until about July 2005, which is inconsistent with Garardi's evidence. His evidence was that they had recovered after March 2005: Transcript at 1-102 ll 1-5.
[241] Exhibit 10 at para 2.1.8-2.1.9, 3.1.8, 3.1.9.
[545]
[247]Fame & Fever Night Club Pty Ltd et al v Chief Executive, Liquor Licensing Division & Gold Coast City Council & Assistant Commissioner Melville[2004] QCCTL 5 at [193].