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[2006] VCAT 347
General information, not legal advice.
Victorian Civil and Administrative Tribunal
2006-03-08
Original judgment source is linked above.
The applicant has a number of exceed PCA charges with high readings;
The applicant has never undergone any alcohol treatment/awareness course following his convictions.
The applicant appears to find excuses for his behaviour rather than accepting responsibility.
4 The applicant has three convictions for a blood alcohol content in excess of .05. He pleaded to all three. The first of these offences occurred on 12 November 1976 with a reading of .180. He was fined $80 and his licence was cancelled for 12 months from 1 February 1977. The second occurred on 1 September 1994 and in that case the reading was .171. He was fined $500 and his licence was cancelled for 17 months from 11 January 1995. The third occurred on 24 May 2002 with a reading of .179; he was fined $800 and his licence was cancelled for a period of 34 months from 23 October 2002.
5 On 18 and 25 August 2004 he underwent the Drink Driver Education Program and was appropriately interviewed by a psychologist for the purposes of a Licence Restoration Report on 1 July 2004 and 1 July 2005. His licence was successfully restored.
6 The Tribunal heard from a number of witnesses from whom it ascertains that in recent years, there has been something of an internecine struggle at the Club with some parties feeling aggrieved about the actions of others.
7 In the course of the struggle, various allegations have been made to the effect that Mr Kelly, the nominee put forward by the Club, had been driving whilst disqualified. Of the witnesses who gave evidence each was either partisan or had an axe to grind; none could be styled as unbiased or independent. I make no findings in relations to the allegations although it is clear that the allegations were of concern to the regulator as the evidence was collected for this hearing. Various parties say they saw Mr Kelly driving, other say the opposite. If the evidence is to be believed, at least four policemen knew of this quite serious allegation and nothing eventuated as a result. Even on a reduced standard of proof I cannot be satisfied that the allegations have been made out. Had I been so satisfied I would have regarded it as a serious blight on Mr Kelly's suitability.
8 It is clear that, absent these three convictions, Mr Kelly would have been an eminently suitable candidate. His business background, his willingness to undertake the role on a voluntary basis, his extracurricular welfare work, all speak of a man respected in his community and with considerable business acumen. Much of the concern emanating from the Director stems from the attitude taken by Mr Kelly in explaining the three events and, as the police witness saw it, his failure to take responsibility for his actions.
9 And it is true that even when giving evidence before this Tribunal Mr Kelly maintained his expressed belief that he was not affected by the alcohol at the time and that he had a particular metabolic problem arising from his cancer and its treatment and that his problem was not with his drinking "but with his readings." Unlikely, illogical and frankly silly as that may be, to my mind it is not something that merits such disapproval as to forever taint Mr Kelly. Clearly he is ashamed of his conduct and clearly he now no longer drinks even though this is a situation forced on him for health reasons, rather than as an act of contrition. He has suffered two bouts of cancer in recent years and underwent surgery for cancer of the oesophagus in April 2004.
10 The test is one of "suitability" and in the absence of any statutory guidance as to what might be taken into account in assessing "suitability" one must view it in the context of the particular legislation. For that reasons I think little is to gained from a consideration of cases on suitability in, for instance, the prostitution service industry or the gaming legislation where that term is used.
11 The objects of the legislation are set out in section 4 of the Act. That provides that the objects are -
(a) to contribute to minimising harm arising from the misuse and abuse of alcohol by-
(i) providing adequate controls over the supply and consumption of liquor; and
(ii) ensuring as far as practicable that the supply of liquor contributes to, and does not detract from, the amenity of community life; and
(iii) restricting the supply of certain other alcoholic produces; and
(b) to facilitate the development of a diversity of licensed facilities reflecting community expectations; and
(c) to contribute to the responsible development of the liquor and licensed hospitality industries.
12 In the case of a club licence, section 10 of the Act sets out the licensee's authority to supply liquor on licensed premises to members, authorized gaming visitors and members' guests.
13 Subsection (4) states that a licence is subject to -
(a) a condition that the rules of the club comply with Schedule 1 (except to the extent determined by the Director under section 25(1)(a)); and
(b) a condition that the secretary of the club keep on the licensed premises, in a form and manner approved by the Director -
(i) a members register containing the name and address of each member of the club and particulars of payment of the last subscription for membership paid by the member; and
(ii) in the case of a club in respect of which a venue operator's licence is in force, a register of authorised gaming visitors containing the name and residential address of each authorised gaming visitor admitted to the licensed premises and the date of that admission; and
(c) a condition that the registers be kept open for inspection at any time by a licensing inspector, an authorised member of the police force, the Director or a person employed under Part 3 of the Public Administration Act 2004 in the administration of this Act who is authorised in writing by the Director; and
(d) a condition that the secretary of the club ensure that there are kept proper accounts and records of the transactions and affairs of the club and such other records as will sufficiently explain the financial operations and financial position of the club; and
(e) the condition set out in section 16 (compliance with planning scheme); and
(f) if the licence authorises the licensee to supply liquor outside ordinary trading hours, the condition set out in section 17(1); and
(g) any other conditions determined by the Director and specified in the licence.
14 Schedule 1 to the Act stated that the rules of a club -
(a) must preclude the payment of any amount to an officer or servant of the club by way of commission or allowance from the receipts of the club for the supply of liquor;
(b) must provide that a visitor to the club must not be supplied with liquor in the club premises unless the visitor is -
(i) a guest in the company of a member of the club; or
(ii)if the club admits authorised gaming visitors, an authorised gaming visitor admitted in accordance with the rules of the club;
(i) be admitted as an honorary or temporary member of the club (if the club has these types of membership); or
(ii)be exempted from the obligation to pay the ordinary subscription for membership of the club -
unless the person is of a class specified in the rules and the admission or exemption is in accordance with the rules;
d) except in the case of a club primarily for sporting purposes, must provide that a person under the age of 18 years cannot be admitted to membership of the club;
(e) must provide for a management committee of the club with responsibility for the affairs of the club;
(f) must provide that the members of the management committee of the club be elected for a term of not less than 12 months by members of a class of members that constitutes not less than 60% of the total membership of the club, excluding temporary or honorary members and persons who are members by reason only of reciprocal arrangements with another club and persons whose rights as members are limited to rights as social, gaming or neighbourhood members;
(i) must provide that the facilities of the club are provided and maintained from the joint funds of the club;
(ii)except as otherwise permitted under the Liquor Control Reform Act 1998, must not enable any person to receive a greater profit, benefit or advantage from the club than that to which any member is entitled;
(iii)must provide for periodic meetings of the management committee and the recording of minutes of the meetings;
(iv)must provide -
(A) that not less than two weeks may elapse between the date of nomination and the date of election of ordinary members; and
(B) that the names and addresses of persons proposed for election as members of the management committee of the club shall be displayed in a conspicuous place in the club premises for not less than one week before the date of the election; and
(C) for the election of members of the management committee by the general body of members; and
(D) for the keeping of records of members voting at an election of members; and
(h) must provide for the keeping of records of guests; and
(i) in the case of a club in respect of which a venue operator's licence is in force, must provide that an authorised gaming visitor must -
(i) produce evidence of his or her residential address before being admitted to the licensed premises; and
(ii) carry identification at all times whilst on the licensed premises; and
(iii) comply with any relevant rules of the club whilst on the licensed premises.
15 What can be seen from this lengthy set of requirements is that the legislation is a full explication of the objects of the Act - that is, a set of rules aimed at ensuring harm minimisation, proper controls over the consumption and selling of alcohol, the proper management of the licensed body and generally prescribing methods to ensure the safe and efficient running of the institutions concerned. Many of those requirements relate to administrative tasks, many involve a supervisory role. And it is to that end that all staff and responsible officers must complete the requisite training courses and attain some proficiency in, and understanding of the rules and liquor law generally.
16 Mr Kelly has completed the necessary training and his business background ensures that he understands the importance of the rules and regulations about who can attend the club, who can be served with liquor, what forms and procedures must be completed and followed and what general riders there are on public attendance at the Club. I am satisfied that his background and more recent training are such that he will ensure that the necessary controls are in place and that the supply of liquor at the Club will not in any way detract from the amenity of community life. The police witness told the Tribunal that in his view that community expectations will not be met if someone with Mr Kelly's drink-driving history is permitted to be nominee. I am not satisfied this is so. Rather I expect the community would be more concerned with the proper and efficient running of the Club in the future as distinct from a concentration on its nominee's past conduct.
17 I am satisfied that in recent months Mr Kelly has undertaken some improvements to the running of the Club and although Mr Wheeler's evidence was that some of those steps were already in place during his time as a member, it is not in dispute that new and better displayed signage has been implemented. Further, according to Mr Hansen (the president), Mr Stone (the operations manager) and Ms Buckler ( a supervisor at the club) whose evidence I accept, Mr Kelly is a conscientious manager of staff who has a high regard for the rules and is well regarded by staff. I was assisted in coming to this view by the evidence of the psychologist Ms Fitzgerald.
18 Much of the evidence which was against Mr Kelly concentrated on his past but I am not satisfied that those matters should continue to be held against him. I am satisfied that he suitable for the role of nominee and I am satisfied he will fulfil that role with care and concern.
19 The decision of the respondent is set aside aside and there is substituted therefore a decision that Raymond Angus Kelly is a suitable person to be nominee of the applicant.
West Heidelberg RSL Sub-Branch Inc
Director of Liquor Licensing