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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
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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
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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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32. 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.
33. Both s 137(5)(a) and (b) are satisfied in relation to the above conduct.
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.
40. 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.
41. Both s 137(5)(a) and (b) are satisfied in relation to the above conduct.
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