Sideris v Independent Liquor and Gaming Authority

NCAT Administrative and Equal Opportunity|2018-07-24

Overview

Mr Sideris has applied for a stay of the decision by the Independent Liquor and Gaming Authority to impose two long-term banning orders against him. The banning orders prohibit Mr Sideris from entering or remaining on high risk venues in two precincts - the Kings Cross precinct and the Sydney CBD entertainment precinct. The banning orders are for 12 months from 14 July 2018 until 13 July 2019. The trigger for the decision to make the banning orders was an altercation with a person outside the Beresford Hotel in Surry Hills on 3 March 2018. It is alleged that Mr Sideris was intoxicated when he punched a person in the face.
Mr Sideris submits that it is in the interests of justice for a stay to be granted because the banning orders restrict his freedom of movement. He wants the banning orders suspended until the Local Court decides whether he or not he is guilty of three offences including assault occasioning actual bodily harm. He is subject to bail conditions which prevent him from being intoxicated and from entering the Surry Hills Police Command area for non-work related purposes. According to Mr Sideris, these bail conditions lessen the need for the banning orders.
The Commissioner of Police was joined as a party. His representative points out that banning orders may be imposed where an individual has been charged with a serious indictable offence, not only when they have been convicted of such an offence. Furthermore, the banning orders will automatically be revoked if the charges against Mr Sideris are withdrawn or dismissed: Liquor Act 2007 (NSW), s 116G(7A). Mr Sideris provided no evidence that his interests would be adversely affected by the banning orders. Mr Sideris lives in Bondi and works in Randwick. According to the Commissioner, there are numerous options for him to attend licenced venues other than the high risk venues in the Kings Cross and Sydney CBD entertainment precincts.
For the reasons I give below, I have decided not to grant a stay.

Jurisdiction and parties

There is no dispute that the Authority had power to make the banning orders and that those orders are reviewable by the Tribunal: Liquor Act, s 116H(1). The Tribunal has power to make an order "staying" or "otherwise affecting the operation" of the banning orders: Administrative Decisions Review Act 1997 (NSW), s 60(2).

Allegations

The police Facts Sheet contains the following allegations. At approximately 12:20 am on 3 March 2018, staff at the Beresford Hotel asked Mr Sideris to leave the premises because he was intoxicated. Mr Sideris was eventually escorted from the premises and restrained by five security guards after becoming aggressive towards staff. Although Mr Sideris was allowed to leave the area, he returned and engaged in a further physical altercation with security personnel, during which it is alleged that Mr Sideris punched the victim in the face. Mr Sideris was again restrained before police arrived and arrested him.
Mr Sideris was charged with the following three offences: 1. excluded person remaining in vicinity of licensed premises, contrary to s 77(8)(a) of the Liquor Act; 2. common assault, contrary to s 61 of the Crimes Act 1900 (NSW), and 3. assault occasioning bodily harm, contrary to s 59(1) of the Crimes Act.
Mr Sideris has pleaded not guilty to each of the charges. The matter is next listed for mention before the Local Court on 30 August 2018 but it is unlikely that it will be listed for hearing before November 2018. Bail conditions are in place, which include a condition that he not be intoxicated in a public area and that he not enter the Surry Hills Police Command for non-work related purposes. The Surry Hills Police Command includes the Sydney CBD, but does not include the Kings Cross precinct.

Power to stay a decision

The Tribunal's power to suspend the operation of the banning orders is in s 60 of the Administrative Decisions Review Act 1997 (NSW): Section 60 provides: "(1) Subject to this section, an application to the Tribunal for an administrative review under this Act of an administratively reviewable decision does not affect the operation of the decision under review or prevent the taking of action to implement that decision. (2) On the application of any party to proceedings for an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal may make such orders staying or otherwise affecting the operation of the decision under review as it considers appropriate to secure the effectiveness of the determination of the application. (3) The Tribunal may make an order under this section only if it considers that it is desirable to do so after taking into account: (a) the interests of any persons who may be affected by the determination of the application, and (b) any submission made by or on behalf of the administrator who made the decision to which the application relates, and (c) the public interest."
Mr Sideris bears the burden of persuading the Tribunal that a stay order should be made: New South Wales Bar Association v Stevens [2003] NSWCA 95 at [88]. Section 60(2) and (3) give the Tribunal a single discretionary power to make a stay order or to refuse to make such an order taking into account all relevant considerations: Loveday v Commissioner for Fair Trading [2018] NSWCATAD 80 at [8]. In Loveday at [8], the Tribunal held that the words "to secure the effectiveness of the hearing" in s 60(2) include a situation where "the applicant will suffer irreparable loss in the sense that no recompense for it can be obtained if the application is ultimately successful". The Tribunal cited Re Pelling and Secretary, Department of Aviation [1984] AATA 179; (1984) 5 ALD 638 at 639 in support of that proposition.
In AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81 at [129], the Court of Appeal explained the exercise of the discretionary power to order a stay in the following way: "There is an express statutory power for the Tribunal to grant or refuse a stay or other order "as it considers appropriate to secure the effectiveness of the determination of the application". In other words, the purpose of granting a stay or other order is connected with the determination of the application. "[S]ecur[ing] the effectiveness of the determination of the application" involves matters such as ensuring that the lapse of time before the determination is actually made does not deprive the review of practical point. It also involves considering the possibility that the result of the review might be that the decision is affirmed, with the consequence that if a s 60(2) order is granted the decision that the review ultimately decides was correct has not been implemented during the period of the s 60(2) order."

Consideration

The Liquor Act expressly provides that banning orders may be imposed against a person who has been charged with a serious indictable offence involving violence in certain circumstances: Liquor Act, s 116G(3). There is no requirement for the Authority to wait until the person has been found guilty of such an offence before imposing a banning order. Furthermore, any banning order will automatically be revoked if the charges against the person are withdrawn or dismissed: Liquor Act, s 116G(7A). Consequently, the fact that Mr Sideris has been charged with, but not convicted of, a relevant offence does not necessarily justify a stay being granted.
Apart from restricting his civil liberties, Mr Sideris does not say how his interests are being adversely affected by the banning orders. I understand that Mr Sideris lives in Bondi and works in Randwick. There was no evidence that his job requires him to enter high risk venues in either of the precincts to which the banning orders apply. To the extent that it may be argued that the banning orders are a constraint on his civil liberties, the Commissioner noted that banning orders apply to 150 premises in two areas. A search of current liquor licensing details indicates that the Sydney local government area has over 2000 venues at which alcohol may be consumed on the premises. There are also many venues where Mr Sideris can consume alcohol in Randwick and Bondi. For those reasons I give this consideration very little weight.
Bail conditions are in place which prevent Mr Sideris from being intoxicated and from entering the Surry Hills Police Command area for non-work related purposes. But, as the Commissioner submitted, the bail conditions do not entirely address the protective purposes banning orders are intended to serve. The bail conditions do not cover the Kings Cross area, nor do they prevent Mr Sideris from entering high risk venues. Bail conditions may be cancelled or varied at any time, whereas the banning orders apply to particular venues for up to 12 months. I give very little weight to the fact that the bail conditions are in place.
One of the objects of the Liquor Act which is relevant to the imposition of banning orders is s 3(1)(a) (a) to regulate and control the sale, supply and consumption of liquor in a way that is consistent with the expectations, needs and aspirations of the community,
The policy objective of a banning order is primarily directed at the reduction of alcohol-related violence at, or emanating from, specified high risk venues in the Kings Cross precinct and the Sydney CBD precinct: Commissioner of Police v Monastirski [2017] NSWCATAP 225 at [31]. A banning order is intended to protect the public from further violent incidents occurring in or within the vicinity of those venues. I give this consideration significant weight. Mr Sideris' application for a stay of the Authority's decision to impose long term banning orders is refused.

Orders

The Commissioner of Police, NSW Police Force is joined as a Respondent.
The request by Anders Sideris to stay the decision made by Independent Liquor and Gaming Authority on 4 July 2018 to impose long term banning orders for the Kings Cross and Sydney CBD precincts is refused.
Independent Liquor & Gaming Authority is to give to the Tribunal and all other parties the following material: documents under s 58 of the Administrative Decisions Review Act 1997 on or before 23 August 2018.
Anders Sideris is to give to the Tribunal and all other parties the following material: evidence including statements, documents and submissions on or before 06 September 2018.
Independent Liquor & Gaming Authority is to give to the Tribunal and all other parties the following material: all evidence in reply, submissions and a summary of legal arguments on or before 20 September 2018.
The proceeding is listed for hearing on 26 September 2018 at 10 am at John Maddison Tower, Level 10, 86-90 Goulburn Street, Sydney for 3 hours.
The publication or broadcast of the name of the victim identified in the Police Fact sheet is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW). Note: A Reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

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: 01 August 2018

At a glance

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Decision date

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Judgment (7 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (5)