Qube Ports Pty Ltd v Maritime Union of Australia

1. Brevet Sergeant Osterstock for the prosecution submitted that by permitting loud amplified music to be played and patrons to dance, the respondents operated the premises as a nightclub and breached condition 1 of the Licence. He contended that the consumption of alcohol together with loud music and dancing constituted a nightclub and referred to the definition of "nightclub" in the Macquarie Concise Dictionary:[1]

A place of entertainment open until late, offering food drink, cabaret, dancing, etc. A dance venue which opens from early evening till early morning.

1. Mr Moffa submitted that people dancing to loud music does not mean that the place where that occurs operates as a nightclub. There can be dancing, loud music and alcohol at a birthday party or in a hotel. He submitted that just because the person who booked the venue for a 40th birthday party wanted a DJ to attend to provide music did not make the venue a nightclub.
2. Mr Moffa observed that there is no definition of nightclub in the LL Act, but he referred to a definition of the word in the Emergency Management (Public Activities No 6) (COVID 19) Direction 2020 (EM Direction):

Nightclub includes (but is not limited to) licensed premises under the Liquor Licensing Act 1997 where the principal purpose of, or predominant activity at, the premises is the consumption of liquor, the playing of loud amplified music and dancing;

1. In reply, Sgt Osterstock did not seek to argue that the predominant purpose of the venue was to operate as a nightclub. However, he submitted that as the venue was open to the public and entry was not restricted to persons attending the birthday function, the definition of "nightclub" was satisfied.

1. Whilst the definitions advanced by the parties are of assistance, they should not be used to construe the meaning of "nightclub" without first having regard to the text and context of the Licence. The Licence is not legislation and should not be construed in the same way as legislation. Industrial awards are not interpreted in the same way as legislation:[2]

There are well developed principles concerning the construction of industrial awards and agreements, which take account of the fact that they are commonly drafted by lay persons and lack the precision and clarity to be expected in commercial contracts.

The principles were reviewed recently by Tracey J in Transport Workers' Union of Australia v Linfox Australia Pty Ltd [2014] FCA 829; (2014) 318 ALR 54 at [29]-[41]. It is not necessary to repeat the principles in detail in these reasons. It is sufficient to say that the Court will seek to identify, in an objective way, the meaning intended by the parties to the agreement having regard to the language they have used and, in doing so, avoid a narrow or pedantic approach. In particular, the Court takes account of the circumstance that the drafters of the agreement were likely of a "practical bent of mind" and likely to have been concerned with expressing their intentions in ways understood in the context of the relevant industry and industrial relations environment. As with commercial contracts, the Court will prefer a construction which gives effect to the presumed purpose of the parties.

1. The task is to ascertain the meaning of the Licence conditions.[3] The first step in that regard is to consider text and context. There is no evidence that the premises was advertised as a nightclub so the only enquiry is whether the premises operated as a night club on 31 May 2025.
2. The Licence Decision Notification was made by the delegate of the Liquor and Gambling Commissioner. It is reasonable to assume that the delegate and the author of the Development Approval which contains the two conditions are both familiar with the different types of licences and licensed premises, and that the reference to "a nightclub" in condition 1 is a reference to a venue that operates or functions as a nightclub does.
3. While loud music was playing and patrons were dancing and drinking alcohol on the night in question, it does not necessarily follow that the venue 'operated as a nightclub' in the sense intended by condition 1. A hotel may have loud music playing and patrons dancing late at night. It does not follow that the hotel then operated as a nightclub. A wedding venue can have loud music, dancing and alcohol but not be a nightclub.
4. Courts do not simply adopt dictionary definitions without having regard to the text and context of an expression. For example, the definition of "nightclub" in the Macquarie Dictionary, Sixth Edition, is different to the Macquarie Concise Dictionary definition that the prosecution relies upon:[4]

nightclub/ˈnaɪtklʌb/ noun 1. a place of entertainment, open during the evening, offering food, drink, cabaret, dancing, etc. 2. a dance venue which opens from evening until early morning.

1. Two Suns would satisfy definition 1 above without playing loud music. That illustrates why care needs to be taken in adopting dictionary definitions without having regard to the text and context of an expression.
2. The definition of "nightclub" in the EM Direction is purposive in my view. It asks whether the main purpose of a venue is to operate as a nightclub. In my view, condition 1 has a purposive element and is directed to venues that operate as, and are held out to operate as, a nightclub. Two Suns operates primarily as a venue for functions. It is also able to serve alcohol to the general public, but it is not a nightclub and was not operating as a nightclub on the night in issue. The patrons who were dancing were attendees at a birthday function, not members of the general public. The evidence shows that the premises hosts multiple types of functions, and at times, more than one function at the same time. That is not consistent with how a nightclub is operated.
3. In The Curious Squire,[5] a venue operating under a Restaurant Licence was subject to a prosecution. One of many issues was whether "the provision of live entertainment involving loud music being undertaken by a DJ indicates that the prime use of the premises was not that of a restaurant".[6] Gilchrist J found that it did not:[7]

The second basis for alleging a breach of this condition is based upon the assertion that the entertainment being provided was not ancillary to the prime use of the premises as a restaurant. The police contend that the fact that live entertainment involving loud music being played by a DJ establishes that to be so.

In my view to reach that conclusion here would be to take a very stereotypical view of what entertainment ancillary to the prime use of the premises as a restaurant should be. As I said earlier, the music was not so loud as to prevent patrons from conversing with one another, it was not continuous and at least some of it was relatively subdued. No one would seriously suggest that if the entertainment comprised of a string quartet playing Vivaldi following a degustation meal with matched wines that the entertainment was not ancillary to the prime use of the premises as a restaurant. Why should it make any difference that the meals were pizzas, the liquor consumed was beer and shots, and the music was contemporary and played over loud speakers?

1. The music complained of in this case may have been louder than the music complained of in The Curious Squire, but the relevant finding for present purposes was that the venue did not change character but remained a restaurant despite music playing and a limited meal service operating.
2. In my view, the loud music and dancing that took place at the premises in this case do not change the nature of the operation of the premises, nor do they mean that the venue was operating as a nightclub. The main purpose of the premises is to host functions. The Complaint arose from a private function.
3. However, while I have rejected the prosecution's construction of condition 1 of the Licence, if there are other instances of loud music being played late at night and people dancing, it may be able to be found or inferred that the venue operates as a nightclub. Repeated instances of such behaviour might suggest that a material purpose of the premises is to operate as a nightclub. The decision would turn on fact and degree in all the circumstances. Such a finding cannot be made in these circumstances.
4. The main mischief the Complaint is directed to is Two Suns permitting loud music to be played late at night contrary condition 2 of the Licence. That mischief is addressed and caught by ground 2 of the Complaint. The level of the music being played on the night in question went beyond the level of background music and the respondents acknowledge that.
5. In the Licence Decision Notification, the delegate noted that the Licence application stated:[8]

The entertainment provided with the venue will consist of standard commercial background music and instrumentals, along with local acoustic and DJ performers for functions as requested by clients specific to their event atmosphere.

1. The delegate observed that condition 2 of the Licence was imposed by the Development Approval given by the Adelaide City Council and was "somewhat at odds"[9] with the venue engaging DJs. The delegate was correct in making that observation. In the future, the licensee will need to be clear with prospective customers that any entertainment or performer they wish to engage at a function needs to observe condition 2.
2. Ground 1 of the Complaint is dismissed. The matter will be listed for plea and submissions in relation to grounds 2 and 3.

[2] Qube Ports Pty Ltd v Maritime Union of Australia [2018] FCAFC 72 [64]-[65] (White J, Mortimer and Bromwich JJ agreeing).

[3] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 [78].

[4] The Macquarie Dictionary Online definition is materially the same as the Sixth Edition definition.

[5] [2014] SALC 23.

[8] Exhibit P2, Decision Notification, 5.