act civil & administrative...

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

COMMISSIONER FOR FAIR TRADING v HH & HD PTY LTD ACN 612 450 861 (Occupational Discipline) [2018] ACAT 126

OR 17/2018

Catchwords: OCCUPATIONAL DISCIPLINE — liquor license — “on licence” — consent orders — supply to young person — supply to intoxicated person — failure to comply with Risk-Assessment Management Plan — failure to report incidents — no previous breaches — reprimand — disqualified from applying for future licence

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 65, 66Liquor Act 2010 ss 27, 183, 187

Subordinate legislation cited: ACT Civil and Administrative Tribunal Regulation 2009 s 4

Tribunal: Presidential Member MT Daniel

Date of Orders: 10 December 2018Date of Reasons for Decision: 13 December 2018

AUSTRALIAN CAPITAL TERRITORY )CIVIL & ADMINISTRATIVE TRIBUNAL ) OR 17 of 2018

BETWEEN:

COMMISSIONER FOR FAIR TRADINGApplicant

AND:

HH & HD PTY LTD ACN 612 450 861Respondent

TRIBUNAL: Presidential Member MT Daniel

DATE: 10 December 2018

ORDER

By Consent:

Pursuant to Section 55 of the ACT Civil and Administrative Tribunal Act 2008, by

consent of the parties, the Tribunal makes the following final orders in this matter.

1. Pursuant to section 66 of the ACT Civil and Administrative Tribunal Act 2008,

the following orders are imposed:

(a) The respondent, being the previous owner of Soundbox Karaoke Bar, is

publicly reprimanded;

(b) The respondent is required to pay an amount of $20,000 to the Australian

Capital Territory; and

(c) The respondent is disqualified from applying for a liquor licence or liquor

permit for a period of 18 months.

2. The hearing dates listed from 10 to 12 December 2018 are vacated.

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The Tribunal notes:

To make it clear that the current owners of the Soundbox Karaoke Bar in Dickson are

not involved in any proceedings involving Soundbox Karaoke Bar, the Applicant and

the Chief Minister Treasury and Economic Development Directorate (CMTEDD) will

always refer to the ‘previous owners’ of the Soundbox Karaoke Bar when referring to

these proceedings (OR 17/2018).

…………Signed………………..Presidential Member MT Daniel

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REASONS FOR DECISION

1. In these proceedings the Commissioner for Fair Trading sought orders for

occupational discipline against the respondent, a licensee under the

Liquor Act 2010 (Liquor Act).

2. The application for disciplinary action was filed on 28 August 2018. The parties

participated in mediation on 15 October 2018 which led to the issues in dispute

being narrowed significantly. The parties continued discussions and on

7 December 2018, the last business day before the hearing was due to

commence, an application for interim orders was filed, including proposed

consent orders and a statement of agreed facts.

3. In the Statement of Agreed Facts, the parties agreed that the respondent, the

previous owner of Soundbox Karaoke Bar and former holder of an ‘on licence’

for those premises, was responsible for a number of serious breaches of the

Liquor Act. These breaches occurred between 2 June 2017 and 25 November

2017, and consisted of:

(a) failure to comply with conditions of a liquor licence;

(b) supplying liquor to an intoxicated person;

(c) supplying liquor at the premises in unopened containers;

(d) allowing a child or young person to consume liquor at the premises and be

in an adults-only area of the premises;

(e) failure to comply with an approved Risk-Assessment Management Plan;

(f) failure to report incidents to the Commissioner within 24 hours; and

(g) conducting a prohibited promotional activity1 at the premises.

1 A promotional activity is an activity that encourages rapid consumption of alcohol: the agreed facts referred to the licensee selling spirits either as ‘shots’ or as a full bottle

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4. This short summary does not reflect the objective seriousness of some of the

breaches, which on different occasions included patrons (one a minor) being

transported to hospital by ambulance; being found unconscious in a trail of

vomit; and violently scuffling with other patrons, all apparently due to

intoxication and lack of monitoring by staff. The statement of agreed facts

setting out the detail of these incidents is reproduced at the end of these reasons.

5. The parties agreed that the respondent’s conduct in these respects constituted

grounds for occupational discipline pursuant to the Liquor Act.

The Tribunal’s power to make the proposed consent orders

6. Section 183 of the Liquor Act sets out the grounds for occupational discipline in

relation to licensees. Section 187 of the Liquor Act then provides that an

application for occupational discipline may be made to the Tribunal.

7. Section 65 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act)

sets out the factors the Tribunal should consider when making orders for

occupational discipline, and section 66 sets out the orders that may be made.

8. The facts as agreed clearly constitute grounds for occupational discipline. Thus

it was open to the Tribunal to make orders for occupational discipline under

section 66 of the ACAT Act.

Are the proposed consent orders appropriate?

9. In making the orders, I have considered the factors set out in section 65(3) of

the ACAT Act, and noted that the respondent has not been the subject of

disciplinary proceedings previously. On the other hand, the respondent had only

held a licence for some 9 months at the time of the first incident. The

respondent no longer holds a licence, consequently some of the orders sought in

the original application, directed at ensuring future compliance with the Liquor

Act, are not appropriate.

10. The orders now proposed by the parties are appropriate in the context of a

former licensee, with a short history of serious breaches. The respondent is to be

disqualified from applying for a licence for a period of 18 months. If it were to

apply for a liquor licence after that time, it will have to satisfy the applicant as

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to suitability and that it can be relied upon to comply with its legal obligations

under the Liquor Act.2

11. The maximum fine available in relation to a corporation is $25,0003. The

$20,000 fine proposed is appropriate given the seriousness of the breaches, and

their repetition over a short period of time. The fine imposed also serves as a

deterrent to similar conduct both to the respondent, should it seek to be licensed

again in the future, and more generally.

12. Finally, I consider that it is appropriate to publically reprimand the respondent

for its breaches of the Liquor Act summarised above. There were a number of

failures to meet the requirements of the legislation, occurring over a 6 month

period. The incidents were serious and had the potential to cause more harm

than they did. This reprimand is both a formal statement of the Tribunal's

disapproval of the former licensee’s conduct, and a message to other licensees

and the public that a higher standard of conduct is expected, and legally

required, of licensees.

………………………………..Presidential Member MT Daniel

2 Liquor Act 2010 section 273 ACT Civil and Administrative Tribunal Regulation 2009 section

4

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ANNEXURE 1

Statement of Agreed Facts

Background

1. HH & HD Pty Ltd (the Respondent) was a licensee under Part 2 of the Liquor

Act 2010 (ACT) (Liquor Act). The Respondent’s licence was an “on licence”,

which authorised the Respondent to sell liquor at a single licensed premises and

in open containers for consumption at the premises and at the licensed times.

The Respondent’s subclass was a bar licence (previously known as a tavern/bar

licence) with the relevant premises being at unit 5, 4 Woolley Street, Dickson in

the ACT (also referred to as 4/14 Woolley Street, Dickson). The bar is called

Soundbox Karaoke Bar (Soundbox).

2. The application for occupational discipline was filed in the ACT Civil and

Administrative Tribunal (ACAT) by the Commissioner for Fair Trading (the

Commissioner) on 28 August 2018. The Respondent sold the “Soundbox

business” to X.W.Y Pty Ltd on 23 August 2018.

3. The Respondent’s licence was transferred to X.W.Y Pty Ltd on 9 November

2018, meaning the Respondent no longer holds a licence. Pursuant to s 174 of

the Liquor Act, a licensee is defined to include a “former licensee” for the

purpose of Part 11 of the Liquor Act (Complaints and Occupational Discipline).

This means that the Respondent can still be subject to occupational discipline

proceedings as a former licensee, although the available remedies are more

limited.

4. Relevantly, all licensees under the Liquor Act are subject to the condition that

the licensee must comply with the Liquor Act (s 31(1)(a)).

5. The Liquor Act provides the following:

(a) Section 13(1) makes it an offence for a licensee to fail to comply with a

condition of the licensee’s licence.

(b) Section 18 of the Liquor Act defines the limits of an “on licence” licence.

Relevantly, a licensee is only authorised to sell liquor in open containers

for consumption at the premises (s 18(b)).

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(c) Section 105 makes it an offence if an employee of the licensee supplies

liquor to another person; and the other person is intoxicated and the

supply happens at the licensed premises (s 105(3)).

(d) Section 114 makes it an offence if a child or young person consumes

liquor or low-alcohol liquor at the licensed premises (s 114(1)).

(e) Section 120(1) makes it an offence for a child or young person to be in an

adults-only area of the licensed premises of the licensee.

(f) Section 127 makes it an offence for a licensee to fail to comply with an

approved Risk-Assessment Management Plan (RAMP) in force for the

relevant licensed premises (s 127(1)), or for the licensee’s employees to

do so (s 127(3)).

(g) Section 132 makes it an offence if a person is a licensee and does not give

the commissioner a report under s 131 within 24 hours after an incident

happened (s 132(1); s 130).

(h) Section 137(1) makes it an offence for a licensee to conduct a prohibited

promotional activity at the licensed premises.

6. The Commissioner considers that the Respondent contravened the above

provisions of the Liquor Act on the basis of the matters set out below. The

Respondent concedes that the below contraventions took place.

7. Accordingly, grounds for occupational discipline exist in relation to the

Respondent.

2 June 2017

8. At approximately 11.40pm on 2 June 2017 members of the Australian Federal

Police (AFP) were notified that two females had been transported by the ACT

Ambulance Service (ACTAS) from Soundbox. The females had been

transported to hospital due to their level of alcohol intoxication.

9. One of the females was born 17 April 2000 and was at the time 17 years of age.

The other female was over the age of 18 years.

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10. On attendance at the Soundbox premises, AFP members requested a copy of the

CCTV footage as relates to the two females within the premises. No such

footage has been provided to the AFP. The Respondent has indicated that the

only person able to extract this data was away at the time of the request. The

Respondent is of the view that the employees had forgotten to provide a copy

when the AFP returned the following day and that the AFP did not reiterate

their request for the CCTV.

11. It is a requirement of the RAMP that such footage be retained for 3 weeks and

provided to the Commissioner, Investigators, or Police as requested. The failure

to provide the footage is a contravention of the Respondent’s approved RAMP.

Section 127(1) of the Liquor Act makes it an offence for a licensee not to

comply with the approved RAMP.

12. Subsequent enquiries with the Respondent’s employees who managed

Soundbox, saw the following admission made: “These young ladies were

regulars and there were no checks done on identification for either of them”.

The employee also stated that “this was not a common occurrence for the

business.”

13. As the under-age female consumed alcohol on the premises, the Respondent

contravened section 114(1) of the Liquor Act which provides it is an offence if a

person is a licensee and a child or young person consumes alcohol at the

licensed premises.

14. The Respondent had also failed to comply with the approved RAMP in that it

had not checked the identification of the young person who became intoxicated.

Further non-compliance has occurred as the Respondent’s staff have not

identified intoxicated people and dealt with them as required. Section 127(1)

Liquor Act makes it an offence for a licensee to fail to comply with an approved

RAMP.

3 June 2017

15. AFP members attended the Soundbox premises on 3 June 2017 to carry out a

compliance check.

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16. Whilst conducting this check in one room police observed bulk alcohol in the

form of a full case of beer sitting on a table. The bottles were unopened. Staff

informed police the patrons had purchased the beer at the premises.

17. Sale of the unopened beer bottles is in contravention of section 18 Liquor Act,

which provides the licence is for the sale of alcohol in open containers.

18. Police also observed a male lying on a lounge within the main karaoke room. A

trail of vomit went from the male’s mouth to the floor. The male appeared to be

unconscious. Other occupants of the room appeared to be highly intoxicated.

19. Within the room and near to the unconscious male, police observed 2 empty, 1

litre bottles of Johnny Walker Blue Label Scotch Whisky, 2 empty jugs, which

they were informed had contained beer, and multiple empty shot glasses.

20. Staff were unaware of the unconscious male. Police eventually told the

occupants of the room to leave the premises due to their level of intoxication.

21. The approved RAMP provides that intoxicated people will be identified and

dealt with by specified means. This has not occurred and so the RAMP was not

complied with on this date. Section 127(1) Liquor Act makes it an offence for a

licensee to fail to comply with an approved RAMP.

22. The Respondent’s approved RAMP provides for full camera surveillance to

ensure safety in the workplace. Staff had failed to monitor the footage, such that

they were unaware of the unconscious male who had vomited in the main

karaoke room. Section 127(1) Liquor Act makes it an offence for a licensee to

fail to comply with an approved RAMP.

23. Section 137(1) Liquor Act makes it an offence for a licensee to conduct a

“prohibited promotional activity” at the licensed premises. Section 137(5)

defines prohibited promotional activity as an activity that:

(a) encourages excessive or rapid consumption of liquor; or

(b) is prescribed by regulation.

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24. Both s 137(5)(a) and (b) are satisfied in relation to the above conduct.

Permitting the sale of full cases of beer, shots and litre bottles of spirits is an

activity which encourages excessive or rapid consumption of liquor (s 137(5)

(a)). Section 137(1) makes it an offence for a licensee to conduct a “prohibited

promotional activity” at the licensed premises.

17 June 2017

25. On 23 June 2017 Access Canberra Inspectors attended the Soundbox premises

and spoke to management of the licenced premises. During this discussion the

Incident Log was observed.

26. The Incident Log noted that on 17 June 2017 ACTAS had attended the premises

to tend to a male patron due to the patron’s level of intoxication.

27. CCTV footage of the incident revealed that upon arrival at the premises the

male was seen to have affected balance and coordination, displayed in the

manner he walked, dealt with his money and attempts to operate the karaoke

machine. The male was subsequently served alcohol by a staff member at the

premises.

28. Pursuant to section 105(3) it is an offence for an employee of the licensee to

supply liquor to an intoxicated person.

29. The male subsequently slumped unconscious in his seat at 1.35am. Staff did not

become aware of the male’s condition or attend upon him until 2.13am. ACTAS

attend the unconscious male at 2.24am.

30. Failure of the staff to effectively use the CCTV cameras to monitor patrons to

ensure safety in the workplace is not in compliance with the approved RAMP.

Section 127(1) of the Liquor Act makes it an offence for a licensee to fail to

comply with an approved RAMP.

31. When at the premises on 23 June 2017 the Access Canberra Inspectors also

observed a drinks menu that stated ‘shots’ of alcohol could be purchased, as

could full bottles of spirits.

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(a) encourages excessive or rapid consumption of liquor; or

(b) is prescribed by regulation.


Permitting the sale of shots and full bottles of spirits is an activity which

encourages excessive or rapid consumption of liquor (s 137(5)(a)). Section

137(1) makes it an offence for a licensee to conduct a “prohibited promotional

activity” at the licensed premises.

1-2 July 2017

34. At approximately 9.40pm on 1 July 2017 AFP officers attended the Soundbox

premises to conduct a compliance check.

35. In room number 4 police observed three males. Police also observed an open

bottle of Jim Beam bourbon sitting on the coffee table in the room. The bottle of

Bourbon was three quarters empty. Other unlabelled bottles were observed,

which the males claimed to be tea.

36. Identification was requested of the males, two of whom could provide it and

were over the age of 18 years. The third male could not provide photo

identification but provided a bank card. A check by police confirmed the male

was born on 21 June 2000 and so was 17 years of age. The male was also heard

to tell police he was 17.

37. The 17 year old male indicated he had not been consuming the liquor in the

room.

38. A condition of the Respondent’s licence is that all public areas of the licensed

premises will be an adults-only area from midnight. No children or young

people may be in these areas except in accordance with the Liquor Act. CCTV

footage subsequently obtained by Access Canberra Inspectors showed the

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underage male remained on the premises and was present on the premises after

12:00am.

39. There is no evidence that the young person was in the care of an appropriate

adult (as defined at s 120(4) the Liquor Act) and that adult could reasonably be

expected to responsibly supervise the young person. There is no evidence the

young person had, before the time of the offence, shown the Respondent or an

employee of the Respondent an identification document identifying that he was

an adult (s 120(7)). Section 13(1) of the Liquor Act makes it an offence for a

licensee to fail to comply with a condition of its licence. Section 120(1) of the

Liquor Act makes it an offence for a child or young person to be in an adults-

only area of the licensed premises of the licensee.




a. encourages excessive or rapid consumption of liquor; or

b. is prescribed by regulation.


Permitting the sale of full bottles of spirits is an activity which encourages

excessive or rapid consumption of liquor (s 137(5)(a)). Section 137(1) makes it

an offence for a licensee to conduct a “prohibited promotional activity” at the

licensed premises.

25 November 2017

42. On 30 November 2017 the Commissioner was informed by ACT Policing

Crime Sergeant of an incident that occurred at the Soundbox premises on 25

November 2017. CCTV from the Respondent was subsequently obtained.

43. The CCTV footage shows six males in a karaoke room. There appeared to be

two bottles of wine on the tables in the room, along with unidentified liquid in

two jugs. The males appeared to be intoxicated based upon their movements and

lack of coordination.

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44. One of the males picked up a bottle of wine from the table and appeared to try

to drink from the bottle. He then swung the bottle toward two males sitting next

to him. This appears to be an unprovoked act. The wine bottle has hit one of the

males in the head with a glancing blow. The other males have intervened and

taken the wine bottle away.

45. Another male then appears to lean over the couch and attempt to restrain the

two males swung at from standing up and leaving. The male who initially

swung the bottle then appears to hit himself in the head with the bottle. The

male who had been struck then appears to say something to the male who had

been leaning over trying to restrain him, at which time the restraining male has

pushed the male who received the initial blow to the head. Four of the males are

then seen pushing and shoving one another in what can be described as a

scuffle, though no punches appear to have been thrown.

46. After a period of time the two males who were originally swung at and

restrained from leaving were escorted out of the room by another man in the

room. The rest of the males then leave the room.

47. During the scuffle the door to the room is ajar. No staff members attend the

room during the scuffle.

48. The approved RAMP provides that the entire area of the licensed premises will

be under full camera surveillance to ensure safety in the workplace. It also

provides that staff will identify disorderly people and ask them to behave or

leave and if they refuse to leave, the licensee will call the police. From the

inaction of the staff during and after the scuffle, the staff have not complied

with the RAMP. Section 127(1) Liquor Act makes it an offence for a licensee to

fail to comply with an approved RAMP.

49. The Respondent has acknowledged that it failed to monitor the premises, but is

of the view that the people were happy and having a good time and so there was

nothing in their behaviour to warn staff that a scuffle might occur. The

Respondent has also noted that the disturbance was short-lived and was resolved

by the persons involved leaving the premises.

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50. Section 131 Liquor Act require a licensee to provide a report of an incident (as

defined in section 130 Liquor Act). The blow to the person’s head with the wine

bottle and the scuffle meets the definition of an incident. No incident report was

made of such. It is an offence pursuant to section 132 Liquor Act to fail to

report an incident within 24 hours of the incident occurring.

Previous non-compliance

51. The Respondent held a licence in relation to Soundbox between 1 September

2016 and 9 November 2018.

52. Prior to the contraventions in June 2017, there has been no previously recorded

non-compliance by the Respondent.

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HEARING DETAILS

FILE NUMBER: OR 17 / 2018

PARTIES, APPLICANT: N/A

PARTIES, RESPONDENT: N/A

COUNSEL APPEARING, APPLICANT

COUNSEL APPEARING, RESPONDENT

Chris McKeown

SOLICITORS FOR APPLICANT Emma Buckland

SOLICITORS FOR RESPONDENT John Feeney

TRIBUNAL MEMBERS: Presidential Member MT Daniel

DATES OF HEARING: 10 December 2018

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