Quinlan v Independent Liquor and Gaming Authority

NCAT Administrative and Equal Opportunity|2023-06-08

Reasons for Decision

Mr Quinlan is a sixty-year old man who has worked in the hospitality industry for over forty years. On 13 February 2023, the Independent Liquor and Gaming Authority revoked his responsible service of alcohol competency card and disqualified him from holding a new one until 14 February 2024. At the tribunal hearing on 8 June 2023, I stayed this decision.
For the reasons that follow, I have decided to set aside the decision of the Independent Liquor and Gaming Authority to revoke Mr Quinlan's competency card and to disqualify him from holding one for a period of twelve months.

BACKGROUND

From 2004 to early 2020, Mr Quinlan was the licensee of the Sydney restaurant he had founded. Until July 2018, Mr Quinlan had not come to the attention of the Independent Liquor and Gaming Authority and had no penalty notices issued against him.
This changed in July 2018 when, in the period to October 2019, he was issued with eight penalty notices and fined for hindering and insulting NSW Police. On 13 October 2019, after his restaurant had closed for the night, Mr Quinlan and two patrons became intoxicated. An argument followed and Mr Quinlan was subsequently convicted of two counts of assault occasioning actual bodily harm, for which he received a nine-month sentence to be served by way of intensive corrections order. An apprehended violence order was also issued against him, he was placed on a good behaviour bond (that expired in April this year), his competency certification was suspended for a period of twelve months and he was disqualified for life from holding a liquor licence or from being the manager of a licensed premises or the close associate of a licensee.

12 July 2022 incident

Mr Quinlan was issued with a responsible service of alcohol competency card in November 2020 which allowed him to work in licensed premises. On 12 July 2022, he was working behind the bar at a restaurant in southern Sydney when a group of four men ordered a round of alcoholic drinks that Mr Quinlan then brought to their table.
Fifteen minutes later, four police officers entered the restaurant to speak to the group about an earlier incident at a nearby hotel which, unbeknown to Mr Quinlan, had resulted in one of the men being asked to leave.
In a subsequent police report, the group was observed 'to be showing clear and obvious signs of intoxications…the males were unsteady on their feet, slurring their words, were belligerent and unable to comprehend what police were explaining to them.'
According to the police report: Licensing police reviewed CCTV obtained from the premises and observed that immediately upon entry to the premises the male stumbled at the top of the stairs and raised his arms in the air directly in front of QUINLAN. The male's actions, which are visible to QUINLAN, appear overly animated. At one point, the male places his head on the bar for a short period approximately one metre away from QUINLAN. Whilst QUINLAN is preparing the drinks for the group, the male raises his hand in the air and then moves forward driving his chest into another male pushing him backward. This again occurs directly in front of QUINLAN. The male moves around unsteady on his feet before again moving towards the other male before pushing him in his chest. Whilst this is occurring it appears both males are in some sort of heated discussion. This occurs directly in front of QUINLAN who is approximately 1 metre away. Despite these actions by the male, QUINLAN carries the drinks ordered to the table. First response police who attended the scene and spoke with the male and his friends formed the opinion that the male was well affected by intoxicating liquor with his speech, balance, co-ordination and behaviour being noticeably affected following the male drinking throughout the afternoon. Licensing police who have reviewed the footage have also observed behaviour and actions which are consistent with the opinion of first response police.
The Commissioner of Police (who joined these proceedings as a respondent and took an active role in the hearing while the Independent Liquor and Gaming Authority filed a submitting appearance) made an application to the Independent Liquor and Gaming Authority claiming that Mr Quinlan had served alcohol to intoxicated persons and recommending that his responsible service of alcohol competency card be revoked and Mr Quinlan disqualified from holding another one for 12 months. The Independent Liquor and Gaming Authority acted on this recommendation on 13 February 2023.

Breach of disqualification order

On 6 May 2023, police attended a bowling club in southern Sydney where Mr Quinlan had been working in the bistro, apparently in breach of the disqualification order issued against him on 14 February 2023. Mr Quinlan, who claimed not to have breached the order because he believed it had been stayed on his lodgement of an application for review to this tribunal, was subsequently fined $550.

ISSUES

The following issues arise in this matter. 1. Did Mr Quinlan contravene his obligations relating to the responsible service of alcohol? 2. Did Mr Quinlan contravene his disqualification order by continuing to work on licensed premises until 16 May 2023? 3. Having regard to the answer to the contravention and subject matter questions, was the decision to make the revocation and disqualification order the correct and preferable decision?

Did Mr Quinlan contravene his obligations relating to the responsible service of alcohol?

One of the objects of the Liquor Act 2007 is to regulate and control the sale, supply and consumption of liquor. In line with this objective, the Act prohibits the sale or supply of liquor to an intoxicated person by a licensee, employee or agent of a licensee. (s3(1)(a), s73(2) of the Liquor Act)
Furthermore, a staff member of a licensed premises 'must not sell, supply or serve liquor on the premises' unless they hold a 'recognised competency card with a current RSA endorsement.' (clause 63(1) of the Liquor Regulation 2018)
On application by the Secretary or the Commissioner of Police, the Independent Liquor and Gaming Authority has the power to revoke a recognised competency card and to make an order declaring that a person is disqualified from holding a recognised competency card for a period not exceeding 12 months. (clause 76 (1) of the Liquor Regulation 2018.)
Relevantly to this application, the Independent Gaming and Liquor Authority may only make such an order if satisfied the person has contravened any of those obligations under the Liquor Act or the Liquor Regulation that relate to the responsible service of alcohol, including permitting intoxication on licensed premises. (clause 76(2) of the Liquor Regulation 2018).
If their competency card is revoked or they are disqualified from holding a competency card, a person must not work in any capacity as an employee on any licensed premises. (cl 76(8) of the Liquor Regulations)

Were the men intoxicated when Mr Quinlan served them?

It is not in dispute that Mr Quinlan was an employee of a licensed premises on 12 July 2022 when he served a round of alcohol drinks to the group of four men who had entered the restaurant at 4.50pm that afternoon. Accordingly, the only question to be determined is whether Mr Quinlan served or supplied the beer to an 'intoxicated person.'
A person is intoxicated if the person's speech, balance, co-ordination or behaviour is noticeably affected and it is reasonable in the circumstances to believe that the affected speech, balance, co-ordination or behaviour is the result of consumption of liquor. (s73(2), s5 of the Liquor Act)
The Intoxication Guidelines, issued by the Independent Gaming and Liquor Authority provide further assistance in determining whether or not a person is intoxicated for the purposes of the Liquor Act, list the following as noticeable signs of intoxication: Speech slurring words rambling or unintelligible conversation incoherent or muddled speech loss of train of thought not understanding normal conversation difficulty paying attention. Balance unsteady on feet swaying uncontrollably staggering difficulty walking straight cannot stand, or falling down stumbling 4 bumping into or knocking over furniture or people. Coordination lack of coordination spilling drinks dropping drinks fumbling change difficulty counting money or paying A difficulty opening or closing doors A inability to find one's mouth with a glass. Behaviour rude aggressive belligerent argumentative offensive bad tempered physically violent loud / boisterous confused disorderly exuberant using offensive language annoying / pestering others overly friendly loss of inhibition inappropriate sexual advances drowsiness or sleeping at bar or table vomiting drinking rapidly.
According to the Court of Appeal judgment of State of NSW v Thomlinson [2018] NSWCA 151, the definition of 'intoxicated' has two parts: 1. That the person's speech, balance, co-ordination or behaviour is noticeably affected, in the sense of being impaired; 2. That the state of affairs described must, in the circumstances, be sufficient to induce a reasonable person to believe 'that the affected speech, balance, co-ordination or behaviour is the result of the consumption of liquor. '
Contained in two COPS events prepared by the police is the following narrative: 1. On 12 July 2022, a group of four men were consuming alcohol at a licensed venue. At 4.35pm, one man was assessed by staff as being intoxicated and asked to leave the hotel. The police were called when the man threatened the manager. 2. Around 4.50pm, the four men entered the restaurant where Mr Quinlan was working behind the bar. Mr Quinlan poured the group one round of alcoholic drinks and took them over to their table. 3. At 5:06pm, police arrived to speak with the group about the earlier incident. According to the police: 1. the four men were showing 'clear and obvious signs of intoxication' which included they were 'unsteady on their feet, slurring their words, were belligerent and unable to comprehend what police were explaining to them'. 2. the man earlier ejected from the hotel was ''well affected by intoxicating liquor with his speech, balance, co-ordination and behaviour being noticeably affected.' He was observed drinking the alcoholic drink he had purchased from Mr Quinlan. 1. On CCTV video footage obtained from the restaurant, the man earlier ejected from the previous hotel is seen to stumble at the top of the stairs into the restaurant. When at the bar, this man raises his hands in the air and moves forward driving his chest into another of the men from his group and pushing him backward and, appears to be unsteady at the bar. According to the police, this man and another man from the group 'appear to be [in] a heated discussion which eventually ceases and which occurs in view of Mr Quinlan.'
Noted in the COPS narrative is the finding that 'licensing Police who reviewed CCTV of the restaurant conclude the observed behaviour and actions of [the man who had earlier been ejected from the previous hotel] are consistent with the opinions of the police who attended the venue on 12 July 2022.'
In a subsequent statement to the Independent Gaming and Liquor Authority, Mr Quinlan denied being in contravention of his obligations under the Liquor Act and the Liquor Regulations: At the time of this new alleged incident of serving intoxicated patrons (12 Julv 2022) I was employed as a bar operative at [the] restaurant and employed by the licensee/approved manager. At the time of the matter referred to by police I followed the process from the Liquor Act 2007 including the Intoxication guidelines issued by Liquor and Gaming along with the venues management plan (which also includes steps set out in Liquor and Gaming NSW's Prevention of Intoxication Guidelines) when dealing with the matter raised by police. The Liquor Act…states - refuse service, ask to leave - call police I served the patrons once and following this they were informed they would not be receiving another drink and would have to leave. I believe the patrons were affected but not to the point of being noticeably affected. At this point I had concerns if I had of continued to serve them, they would have been showing the signs of intoxication. The police then entered the premises and expressed concerns and ask the patrons to leave. The patron's behaviour is only one form of an indicator of intoxication. The behaviour on the premises that day would be less than.. a person's behaviour..maybe at an NRL football match. These grounds are licenced premises. The patrons may have shown some overzealous behaviour that I would not consider inconsistent to other licenced premises. The approved manager reviewed the CCTV footage following the incident and indicated he has knowledge of the patrons asked to leave and indicated this is normal behaviour from them and they are regularly told to 'tone it done and behave or they will be asked to leave.'
In analysing whether the Mr Quinlan's competency card should be revoked and he should be disqualified from obtaining a new one for up to twelve months, the Commissioner of Police relied on the earlier incident noting that according to the two relevant COPS events cited: On 12 July 2022, a group of four males were consuming alcohol at [a hotel]. At 4.35pm, one male was assessed by staff of the [h]otel as being intoxicated and asked to leave the hotel, whereupon he subsequently threatened the manager of the [h]otel who contacted police.
This conflicts with the later submissions by the police that the hotel manager had performed an assessment of the group, determined all were intoxicated and removed them from the premises.'
It is not in dispute that, when making his own assessment as to the state of the group, Mr Quinlan was not aware that one of the men - or, according the conflicting police material, all four men - had earlier been ejected from a hotel for intoxication.

CCTV Footage

Contained on file is CCTV video footage of the restaurant (without audio) on 12 July 2022 from 4.50pm, when the four men arrive, to 5.20pm. The footage is taken from two angles: the bar and the main lounge.
As the bar is to the side of the main lounge, Mr Quinlan (who, it is not disputed, was behind the bar) cannot be seen. From my observation of the footage, I accept Mr Quinlan's evidence that, when behind the bar, he could not see patrons coming down the stairs into the restaurant. On this basis, I accept Mr Quinlan's evidence that he hadn't been able to see one of the men (who I will refer to only as Luke) stumble on the stairs. I also accept Mr Quinlan's evidence that from behind the bar, there is no sightline into the lounge room where the four men were sitting.
Without the benefit of an audio recording, the group's demeanour can only assessed from the video coverage. On my viewing of this footage, I cannot be satisfied that the men were clearly intoxicated. They are all animated, Luke particularly so. The CCTV footage of the bar shows his gestures to be grand and somewhat exaggerated. He is able to walk without any trouble and his motor skills are good: he takes off a bulky jumper without incident and quickly and easily knots it around his waist. He manages his drink without spilling it, easily takes his wallet out of his back trouser pocket and has no trouble paying Mr Quinlan before returning his wallet to his pocket. Later when he is seen at a table arm-wrestling with one of the other men, he appears focused and controlled.
At 4.55pm Luke sees two women he seems to know and they are chatty and affectionate with him. Later, Luke is in front of the bar swinging his arms around while another of the men seems to be encouraging him to be less exuberant.
At 5.04pm, the restaurant manager is speaking to other patrons in the lounge room area, and at 5.05pm she walks over to Luke, gives him a pat and indicates for him to be quiet. At 5.06 four police officers arrive at the restaurant and at 5.07 they talk to Luke, who replies in an animated manner. One other man from the group is in range of the camera and by 5.09pm, each of the four men are speaking to a police officer, at least two of whom are taking notes and one of whom is wearing a surgical mask. By 5.12pm, Luke has stretched out his hand to shake a police officer's hand. Following the police officer's lead, Luke gives him a friendly fist bump instead.
At 5.14pm, Mr Quinlan clears the table where the group had been sitting, taking three or four glasses with him. By 5.17pm, all four men appear to have left the restaurant.

Mr Quinlan's evidence

Mr Quinlan described himself as a good judge of intoxication, an assessment he makes by taking a bit of time to watch the patrons. With this in mind, on 22 July 2022, he served the four men one round of drinks. When they ordered a second round, Mr Quinlan had formed the view that the men would soon be showing signs of intoxication and told them this would be their last drinks,
Mr Quinlan told the tribunal that he had known the four men since they were children, describing Luke as 'always hyperactive, sometimes a handful, never too good to have him around for too long.' In retrospect, he would have removed him from the restaurant earlier but at the time, he assessed Luke as simply being exuberant.
In an (undated) letter to this tribunal, Mr Quinlan wrote that: [t]he alleged incident occurred in July 2022 between 4.30pm and 5pm. Unbeknown to myself and [my manager], four males had been involved in an argument at [a hotel] approximately 300 metres from [the restaurant]. The males entered [the bar restaurant] and were served a round of drinks. They appeared to be in good spirits and did not seem intoxicated. When they ordered the second round, I informed them that this would be the last and for them to move on. Before they could receive this round, police entered the bar and engaged the four men and removed them…I assume for the argument at the hotel.
Mr Quinlan told the tribunal that the bar blocked his view of anyone entering the restaurant via the flight of stairs to the side of the bar and that patrons only came into his sightline when they were at the bar itself. Furthermore, the layout of the restaurant meant that, from the bar, Mr Quinlan couldn't see where the four men were sitting. Mr Quinlan told the tribunal that because the manager had a better view of the group 'we made a joint decision to move them on.'

Background information

Mr Quinlan and the four police officers who attended the restaurant assessed the state of intoxication of the four men on the basis of very different information. The police officers knew that the four men had just been ejected from their previous venue. Mr Quinlan did not know this. He had, however, known the four men since childhood and was aware that Luke was 'hyperactive, sometimes a handful.' The CCTV footage appears to corroborate this: of the four men, Luke seems to be the one who can't stay still.
In accordance with State of NSW v Thomlinson [2018] NSWCA 151, a person is intoxicated if: 1. the person's speech, balance, co-ordination or behaviour is noticeably affected, in the sense of being impaired; 2. the state of affairs described is, in the circumstances, sufficient to induce a reasonable person to believe 'that the affected speech, balance, co-ordination or behaviour is the result of the consumption of liquor. '
On the evidence before me, it would be possible to term Luke's behaviour as noticeably affected, given his grand gestures and exuberant manner. Given the circumstances, however - namely that Mr Quinlan had known Luke since childhood, had found him 'always hyperactive and a bit of a handful and was not aware that, minutes earlier, Luke had been ejected a nearby hotel - I cannot be satisfied that the state of affairs described are sufficient to induce a reasonable person to believe that Luke's affected behaviour was the result of the consumption of liquor.
Having viewed the CCTV coverage: 1. I cannot be satisfied that the balance, co-ordination or behaviour of the other three men is noticeably affected, in the sense of being impaired; 2. I cannot be satisfied that the balance and co-ordination of Luke is noticeably affected, in the sense of being impaired.
Given there is no audio on the CCTV recording, I am unable to be satisfied that the speech of any of the four men is noticeably affected, in the sense of being impaired.
For these reasons, I cannot be satisfied that, in serving a round of alcoholic drinks to the four men, Mr Quinlan contravened his obligations relating to the responsible service of alcohol.

Did Mr Quinlan contravene his disqualification order by continuing to work on licensed premises until 16 May 2023?

As set out above, a person must not work in any capacity on any licensed premises in New South Wales while they are disqualified from holding a competency card, including one for the responsible service of alcohol. (cl 76(8) of the Liquor Regulations 2018)
From 2021 to 16 May 2023, Mr Quinlan worked at a licensed bowling club despite the revocation of his responsible service of alcohol competency card on 13 February 2023.
When questioned by police, Mr Quinlan said he understood that the revocation of his competency card meant the was not allowed to work on licensed premises but believed the revocation and disqualification order had been stayed when he lodged an application for review with this tribunal. He was fortified in this belief when 'no-one told me I shouldn't be coming into work.
On 17 May 2023, Mr Quinlan was issued with a penalty notice for contravening his disqualification order by working at a licensed premises for the entire period of disqualification until 16 May 2023' (cl 76(8) of the Liquor Regulations).
On the evidence before me, I am satisfied that Mr Quinlan breached his disqualification order by working at the bowling club after his competency card had been revoked and the twelve-month disqualification order issued.
Having found Mr Quinlan to be a frank and open witness during the hearing, I accept his evidence that he wrongly believed the revocation and disqualification order was stayed on the lodgement of his application for review to this tribunal. Whilst this does not excuse the breach, on the evidence before me, I am satisfied that Mr Quinlan didn't breach the order intentionally. I am satisfied that since October 2019, he has worked hard both to stay employed in the hospitality industry in a more limited capacity and to address his alcohol consumption, by seeking medical and psychological assistance.
I am satisfied that he has been appropriately sanctioned for the breach of his disqualification order with the imposition of a penalty of $550..

Having regard to the answer to the contravention and subject matter questions, was the decision to make the revocation and disqualification order the correct and preferable decision?

According to the Commissioner of Police: 1. Mr Quinlan's recent compliance record consists of a series of serious contraventions that display a disregard for the public interests to which the regulatory scheme under the Act is directed; 2. the 22 July 2022 incident indicates that this disregard continues, despite Mr Quinlan's criminal convictions and the exercise of some of the Authority's most significant regulatory powers in respect of the 2019 incident. 3. the revocation order is necessary and appropriate because it will force Mr Quinlan to complete further responsible service of alcohol training before obtaining the necessary qualifications to return to work on licensed premises involving the supply or service of liquor. 4. a disqualification order of 12 months is appropriate 'so as to discourage future breaches'.
Admitting that alcohol had been a problem for him between 2017 and 2019, Mr Quinlan told the tribunal he'd had a breakdown at work in 2019 which resulted in the assault and his being barred for life from holding a liquor licence. Since then, he has sought help from doctors and a psychologist who encouraged him to create a clear division between his home and work life. For three months, he attended the rehabilitation centre, Odyssey House. He told the Tribunal that he no longer has problems with his drinking as he is no longer working in an environment where there is a lot of alcohol.
Mr Quinlan told the tribunal that he has not worked behind a bar or served alcohol since July 2022 and that his former job at the bowling club involved making coffee, serving food, helping in the kitchen, polishing cutlery and washing plates. Since being made aware that the revocation and disqualification order had not been stayed on the lodgement of his application for review to this tribunal, he has not worked at the bowling club. Because he is sixty years old and now has a criminal record, he has found it difficult to find other work.
Contained on file is an email from Mr Quinlan's former manager confirming that he can return to work at the bowling club when he is allowed to be employed in licensed premise.'
As Mr Quinlan has already been penalised for working in a licensed premises without a responsible service of alcohol competency card, I have not taken this unintentional breach into consideration when determining whether the decision to make the revocation and disqualification order was the correct and preferable one.
As set out above, I cannot be satisfied that, in serving a round of alcoholic drinks to the four men, Mr Quinlan contravened his obligations relating to the responsible service of alcohol. For this reason, I cannot accept that the decision to make the revocation and disqualification order the correct and preferable decision.

Conclusion

For the reasons set out above, I am not satisfied that a reasonable person with Mr Quinlan's knowledge would have assessed the four men to be intoxicated. I accept Mr Quinlan's evidence that he didn't know Luke had been earlier ejected from a hotel but was aware of the four men's background and temperaments. Given his knowledge that Luke had always been 'hyperactive', and, as confirmed by the CCTV video coverage, that his motor skills were good on the afternoon in question and he did not appear unsteady on his feet, it was reasonable for Mr Quinlan to assess Luke as being exuberant rather than intoxicated. There is nothing on the CCTV to satisfy me that the three other men were intoxicated: none were unsteady on their feet or displayed any clear signs of intoxication.
I accept that Mr Quinlan breached his disqualification order by working at the bowling club without a responsible service of alcohol competency card. For the reasons set out above, however, I am satisfied that: 1. the breach was not deliberate; 2. Mr Quinlan honestly but mistakenly believed the disqualification and revocation order had been stayed on the lodgement of his application for review to this tribunal; 3. he has already been appropriately sanctioned for this breach.
Considering all the evidence before me, I am not satisfied that Mr Quinlan was in breach of s73(2) of the Liquor Act by supplying liquor to an intoxicated person and whilst I accept that he mistakenly breached his disqualification order, I am satisfied that he has been adequately sanctioned for this breach.
On this basis, the correct and preferable decision is to set aside: 1. the decision of the Independent Liquor and Gaming Authority on 13 February 2023 to disqualify Mr Quinlan from holding a competency card for twelve months 2. the decision of the Independent Liquor and Gaming Authority on 13 February 2023 to revoke Mr Quinlan's competency card so that the card, due to expire on 19 November 2025, can be restored to him.

ORDERS 1. The decision of the Independent Liquor and Gaming Authority on 13 February 2023 to revoke the applicant's responsible service of alcohol competency card is set aside. 2. The decision of the Independent Liquor and Gaming Authority on 13 February 2023 to disqualify the applicant from holding a competency card from 14 February 2023 to 14 February 2024 is set aside.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 December 2023

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