Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Adamson v Independent Liquor and Gaming Authority [2022] NSWCATAD 394 Hearing dates: 2 – 3 May 2022 Date of orders: 14 December 2022 Decision date: 14 December 2022 Jurisdiction: Administrative and Equal Opportunity Division Before: J Gatland, Senior Member Decision: 1. The decision of the Independent Liquor and Gaming Authority to partially refuse to grant an extended trading authorisation decision is set aside. 2. In lieu thereof, the application for an extended trading authorisation is refused in its entirety. Catchwords: LICENSING — Liquor licensing — Hotel licence — Extension of trading hours Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Gaming and Liquor Administration Act 2007 (NSW) Gaming and Liquor Administration Regulation 2016 (NSW), r 7(b) Gaming Machines Act 2001 (NSW) Liquor Act 2007 (NSW) Cases Cited: Aldi Foods Pty Ltd v Independent Liquor and Gaming Authority [2019] NSWCATAD 26 Auld v Independent Liquor and Gaming Authority [2018] NSWCATAD 25 Auld v Independent Liquor and Gaming Authority (No 2) [2017] NSWCATAD 339 Ballesty & Anor v Director of Liquor & Gaming & Ors [2002] NSWSC 1102 BuildPlatinum Pty Limited v Micaleff [2021] NSWCATAP 129 Bun v Independent Liquor and Gaming Authority [2020] NSWCATAD 60 Deacon v National Strategic Constructions Pty Ltd; National Strategic Constructions Pty Ltd [2017] NSWCATAP 185 Kallin Pty Ltd v Independent Liquor and Gaming Authority [2019] NSWCATAD 36 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 R v Kenny [2008] NSWDC 389 Smith v Independent Liquor and Gaming Authority [2018] NSWCATAD 224 Texts Cited: Nil Category: Principal judgment Parties: Helinka Adamson (Applicant) Independent Liquor and Gaming Authority (Respondent) Representation: Counsel: C Ireland (Applicant) A Cheshire SC and M Gaven (Respondent) Solicitors: Hatzis Cusack Lawyers (Applicant) Maddocks Lawyers(Respondent) File Number(s): 2021/00277176 Publication restriction: Nil REASONS FOR DECISION Introduction 1. The applicant, Ms Adamson, is the licensee of the Lakeside Village Tavern at Raymond Terrace which is located in the local government area of Port Stephens in New South Wales (Tavern). 2. Ms Adamson seeks a review of a decision of the respondent, the Independent Liquor and Gaming Authority (Authority) to refuse her application for an extended trading authorisation (ETA) which, had it been granted, would have authorised the trading hours at the Tavern to be extended by one hour each night so that the Tavern would close at 1 AM Monday to Saturday and until midnight on Sundays. 3. Initially, the Authority gave partial approval to Ms Adamson's ETA application. The Authority granted an ETA that permitted the Tavern to trade until 1 AM on Thursday, Friday and Saturday nights and until 11 PM on Sundays. However, at the hearing, the Authority contended that, based on further information which had come to light since its decision, the Tavern should not be permitted to trade beyond the standard trading hours. Alternatively, the Authority contended that its original decision, giving partial approval to the ETA application, should be affirmed. 4. For the reasons set out below, I have determined that the Authority's original decision is to be set aside and that the correct and preferable decision is that Ms Adamson's application for an ETA be refused. The Jurisdiction and Role of the Tribunal 1. Ms Adamson made an application for an ETA in about October 2020. This was a prescribed application as defined under the Gaming and Liquor Administration Regulation 2016, r 7(b). As such, the Authority's decision determining the application is amenable to review by this Tribunal under the Gaming and Liquor Administration Act 2007 (NSW) (Administration Act), s13A and the Administrative Decisions Review Act 1997 (NSW), ss 7 and 9. 2. Previous decisions in this Tribunal have considered the nature of the review by the Tribunal and whether such review is a so-called merits review or a review by way of re-hearing; Auld v Independent Liquor and Gaming Authority (No 2) [2017] NSWCATAD 339; Auld v Independent Liquor and Gaming Authority [2018] NSWCATAD 25 at [7] – [9]. That issue does not arise anymore since the Administration Act, s 13A(2) was repealed shortly after the more recent of those decisions were delivered. The Tribunal is to determine Ms Adamson's application by deciding the correct and preferable decision having regard to the material before it, including any factual material and the applicable law; Administrative Decisions Review Act, s 63. 3. As noted by the Authority in its closing written submissions, in proceedings such as this, neither party bears a legal burden of proof; Smith v Independent Liquor and Gaming Authority [2018] NSWCATAD 224 at [25] but the applicant bears a practical or evidentiary burden in proceedings such as these to ensure there is sufficient evidence before the Tribunal to reach the requisite level of satisfaction required to be reached pursuant to particular provisions of the enabling statute; Auld v Independent Liquor and Gaming Authority [2018] NSWCATAD 25 at [50]. The Applicable Law 1. The principal legislation is the Liquor Act 2007 (NSW) the objects of which (and the matters to which regard must be had when securing such objects) are set out in s 3. These objects are relevant to determining the correct and preferable decision in this case: (1) The objects of this Act are as follows— (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, (b) to facilitate the balanced development, in the public interest, of the liquor industry, through a flexible and practical regulatory system with minimal formality and technicality, (c) to contribute to the responsible development of related industries such as the live music, entertainment, tourism and hospitality industries. (2) In order to secure the objects of this Act, each person who exercises functions under this Act (including a licensee) is required to have due regard to the following — (a) the need to minimise harm associated with misuse and abuse of liquor (including harm arising from violence and other anti-social behaviour), (b) the need to encourage responsible attitudes and practices towards the promotion, sale, supply, service and consumption of liquor, (c) the need to ensure that the sale, supply and consumption of liquor, and the operation of licensed premises, contributes to, and does not detract from, the amenity of community life, (d) the need to support employment and other opportunities in the— (i) live music industry, and (ii) arts, tourism, community and cultural sectors. 1. The objects are reflected in the Liquor Act, s 48(5) which states: (5) The Authority must not grant a licence, authorisation or approval to which a relevant application relates unless the Authority is satisfied, after having regard to— (a) the community impact statement provided with the application, and (a1) any published cumulative impact assessment that applies to the area in which the premises the subject of the application are located, and (b) any other matter the Authority is made aware of during the application process (such as by way of reports or submissions), that the overall social impact of the licence, authorisation or approval being granted will not be detrimental to the well-being of the local or broader community 1. The principal applicable statutory provision, in this case is the Liquor Act, s 49 and most particularly s 49(8), which provides: (8) Restrictions on granting extended trading authorisation The Authority must not grant an extended trading authorisation in respect of licenced premises unless the Authority is satisfied that — (a) practices are in place, and will remain in place, at the licenced premises that ensure as far as reasonably practicable that liquor is sold, supplied or served responsibly on the premises and that all reasonable steps are taken to prevent intoxication on the premises, and (b) the extended trading period will not result in the frequent undue disturbance of the quiet and good order of the neighbourhood of the licensed premises. The Evidence 1. The following material was presented as evidence before the Tribunal at the hearing; 1. the bundle of documents filed by the Authority under the Administrative Decisions Review Act, s 58 (s 58 Bundle). That bundle comprises over 400 pages of material and includes the reasons for the original decision, the entire application as submitted on behalf of Ms Adamson in about October 2020 and further material submitted in about March 2021. The application and further material include detailed attachments such as the community impact statement, alcohol and gambling management plans and statistical data concerning the suburb of Raymond Terrace and the Port Stephens LGA. 2. an affidavit of Anthony Vescio, an inspector appointed under the Administration Act, s 20. Mr Vescio and other inspectors attended the Tavern and observed its operations on Wednesday, 16 March 2022, from 9 PM to 1 AM, Thursday, 17 March 2022, from 9 PM to 2 AM and again on Friday, 18 March 2022, from 8 PM to 2 AM. Exhibited to Mr Vescio's affidavit was a memory stick on which some video footage from parts of Friday, 18 March 2022, was stored. At the hearing, Mr Vescio was cross-examined by counsel for Ms Adamson. 3. A series of text message exchanges between the inspectors on the dates they were observing the hearing. 4. an affidavit of Adam Purcell dated 4 February 2022, which annexed a report prepared by Mr Purcell and which contained his observations of the Tavern and its surroundings. Mr Purcell's observations of the Tavern were made on Wednesday, 26 January 2022, Thursday, 27 January 2022 and Friday, 28 January 2022. At the hearing, Mr Purcell was cross-examined by senior counsel for the Authority. 5. an affidavit of Ms Adamson dated 12 April 2022. At the hearing, Ms Adamson was cross-examined by senior counsel for the Authority. 6. An excerpt of the Tavern's incident register which is maintained to record incidents of concern including injuries to any patron or staff or any other incident including fights, refusals of service or intoxication. The incident register has not been maintained strictly in accordance with condition 8 of the conditions to be imposed on the grant of the ETA in that Ms Adamson as licensee was required to record the incidents which are required to be recorded in the register. The excerpt produced at the hearing was completed by staff with Ms Adamson only completing a couple of entries directly. At the hearing, the Tribunal was informed that staff were required to make entries into the register as and when required under the guidelines and policies of the Tavern. No evidence was presented as to the level of adherence to those guidelines and policies and so it is not possible for the Tribunal to accept that the excerpt is a complete record of every incident which took place in that period. The first incident in the excerpt is dated 26 June 2020, the last incident is dated 27 April 2022. There are a total of 34 incidents recorded in the excerpt, the more serious of those incidents are more fully described in a second part of the register which was also exhibited at the hearing. Expert Evidence Adduced by Applicant 1. Despite Mr Purcell's affidavit stating that his report contained only his observations, it is apparent throughout that he intended to give expert evidence to the Tribunal. 2. The Tribunal is not bound by the rules of evidence; Civil and Administrative Tribunal Act 2013 (NSW), s 38(2) however, and despite Mr Purcell's willingness to adhere to the expert witness code of conduct, there are several difficulties in accepting much of Mr Purcell's opinions as expert evidence. 3. The rules of evidence are relevant to the operation of procedural fairness. Accepting as evidence the opinions of a person because they are said to possess particular skills, experience or qualifications requires specific matters to be addressed. Absent those specific matters, the weight which can be given to such material is small, particularly in matters, such as this, where all parties are legally represented, and the commercial impact of the decision may be significant; Deacon v National Strategic Constructions Pty Ltd; National Strategic Constructions Pty Ltd [2017] NSWCATAP 185; BuildPlatinum Pty Limited v Micaleff [2021] NSWCATAP 129. 4. The evidence tendered must come from an agreed or demonstrated field of specialised knowledge and there must be an aspect of that field in which the witness can be said to be an expert by dint of his or her specialised training, study or experience which, when applied to the observations made (and any assumptions given) brings forth an opinion based on a proper foundation; Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [85] 5. Mr Purcell's curriculum vitae was not supplied until the conclusion of the first day of the hearing. On reviewing his curriculum vitae; 1. Mr Purcell's work history and experience may be summarised as: 1. Detective Superintendent, NSW Police who retired in 2008 after 27 years of service. In the course of his service as a police officer, Mr Purcell gained an extensive background in public order management and major crime investigation. Additionally, Mr Purcell is a trained hostage and high-risk police negotiator. He states that one of his functional areas of expertise is hospitality industry compliance. 2. Officer in Charge of various licencing units between 1996 and 2003. 3. Two years of experience as a general manager of a hotel in Bondi between about 2008 and 2010. 4. From 2010 to the present day he is the President of the Eastern Suburbs Liquor Accord. Mr Purcell did not explain what his presidential role entailed. 5. Also from 2010 to the present, consultant to various companies on matters of "compliance, workplace health and safety, crisis management and negotiation". 6. From 2011 to the present, training course presenter on matters similar to those for which he provides consulting services. 1. In addition to his training as a police officer, Mr Purcell's relevant training may be summarised as: 1. Certificate IV in Training and Assessment – HBA Consulting, 2008 2. Hotel Licensee's Court (TAFE), 2008 3. Australian Hotels Association Workplace Health & Safety Seminar, 2013 4. Certificate IV in Training and Assessment – Australian Security Academy, 2014 5. Licensee/Advanced Licensee Course – Liquor and Gaming NSW, 2019 1. It is unclear from his report and his curriculum vitae what expertise in a recognised area of specialised knowledge Mr Purcell was said to have. It was even more unclear what specialised area of knowledge was said to be the basis for the opinions contained in his report. 2. Mr Purcell was provided with two letters of instruction, neither of which had been annexed to his report or his affidavit. As with his curriculum vitae, these documents were tendered after the conclusion of the first day of the hearing. The second letter of instruction is a mere clarification. The first letter asks Mr Purcell, among other things, to: 1. make covert observations of the operation of the Tavern from 9 PM until closing time; 2. then to make observations at the two hotels and gaming venues close to the Tavern to see whether patrons of the Tavern "roll on" to those other venues; and 3. comment on the Plan of Management developed for the Tavern (which had been submitted as part of the ETA application) and any improvements that might be made to it. 1. In cross-examination Mr Purcell gave evidence that he in fact specialised more in criminal investigations though he also stated that he had experience, as a serving police officer, in licencing matters. I accept, therefore, that Mr Purcell is aware of the licencing laws and has experience in the enforcement of those laws. Whether this qualifies him as an expert in a recognised field is an entirely different question. 2. Mr Purcell further gave evidence under cross-examination that he had produced in excess of 30 reports for applications before this Tribunal. Of these, about two-thirds were reports provided at the request of the solicitors who act for Ms Adamson in these proceedings. I am not aware of the nature, extent or conclusions of those reports. No evidence was led concerning such matters but Mr Purcell conceded that he had a "structured approach" to his reports and that the phrasing in some of his reports was similar to the report he prepared for these proceedings. 3. It is common for particular persons to be regularly asked to provide observations and reports to firms of solicitors undertaking work similar work for a variety of clients or for a single client in need of similar types of assistance in relation to numerous transactions. No criticism should arise on either the applicant's solicitors or Mr Purcell in that regard. It is surprising, however, given the number of reports produced by Mr Purcell, that the letters of instruction and curriculum vitae did not accompany his report as a matter of course. These were not merely technical deficiencies; without that material, the Tribunal cannot know what questions he was asked to address, what facts and assumptions he was given and what qualifications he possessed. 4. Had those issues been the only problems, Mr Purcell's evidence would not have given the Tribunal any cause for concern. Those matters are, and were, easily rectified. However, the substantive difficulties with Mr Purcell's evidence were numerous and unfortunate. Each of the matters enumerated below impacted upon the weight the Tribunal was able to give to his findings: 1. Though I accept his evidence of being knowledgeable about licencing laws and their enforcement, Mr Purcell's opinions have not been provided from the basis of the application of a known area of specialised knowledge, experience or training. Mr Purcell's evidence is unclear as to what specialised area of knowledge experience or training is said to be applied to his factual observations in forming his opinions. 2. The report contains observations outside the matters Mr Purcell was instructed to observe and which stray well beyond any area of expertise and certainly any known area of specialised knowledge. Two examples suffice: 1. Firstly, in his report Mr Purcell comments on the way in which the Tavern is built - such as to attenuate or reduce noise impacts on neighbours. Noise impacts on neighbours was a matter considered in the Statement of Reasons provided with the decision under review in September 2021 and in the second letter of instruction Mr Purcell is asked to comment on the potential for disturbance arising from extended trading however Mr Purcell is not an engineer or architect and has not specialised experience on which he may give opinion evidence that might assist the Tribunal on this point. 2. Secondly, Mr Purcell comments that he considered the area immediately around the Tavern and the patrons he observed attending the Tavern "appeared middle class and not disadvantaged". Mr Purcell was not instructed to provide such an opinion and indeed, he professes no specialised knowledge, training or experience in any area of the social sciences that would allow his opinion of such matters to be elevated to admissible evidence. I refer to the government statistics concerning socio-economic disadvantage, crime rates and gambling problems for Raymond Terrace and the Port Stephens LGA below however, by contrast to the views expressed in Mr Purcell's report, the statistical data attached to Ms Adamson's application describes: 1. The Australian Bureau of Statistics Socio-economic index for Areas records households in Raymond Terrace as being among the most socio-economically disadvantaged – in 2020 households in Raymond Terrace were in the lowest 6% of households in New South Wales (contrasting the local government area of Port Stephens as a whole which is in the top 47%); and 2. Raymond Terrace had a rate of alcohol-related domestic assault offences which, in 2020, was more than three times the rate across New South Wales for offences of this kind and more than 50% higher than the rate reported for the Port Stephens local government area; and 3. Raymond Terrace had a rate of malicious damage to property offences which was almost three times the rate for offences of that kind across New South Wales and double the rate for the Port Stephens local government area; and 4. rates of non-domestic assaults and offensive conduct in Raymond Terrace were slightly higher than the rate across New South Wales. 5. Lastly, there was no dispute that the Tavern is located in an area designated as being at the high risk for problem gambling (referred to in the evidence as Band 3, Statistical Area 2 under the Gaming Machines Act, 2001 (NSW)). 1. While Mr Purcell's affidavit was read at the hearing without objection, in having regard to the above matters, the extent to which I am able to give weight to the opinions expressed in his report is limited. 2. Mr Purcell's factual observation of the number of patrons using the Tavern and its gaming room over each night, including the timing and pattern of such attendance and his observations concerning patrons moving from the Tavern to other hotels after closing, were of assistance and, as uncontroverted evidence of fact, those observations are accepted by the Tribunal. As noted above, Mr Purcell's observations were taken in late January 2022, and his observations are discussed below in consideration of the observations of patrons using the Tavern made by the Authority's inspectors in March 2022. The Applicant's Lay Evidence 1. Ms Adamson's affidavit evidence was expressly stated as being in response to Mr Vescio's affidavit. As such, I will consider it further after outlining the respondent's evidence. The effect of her evidence, as evidence in chief, was that: 1. As Licensee, Ms Adamson had significant policies and measures in place with respect to the responsible management of liquor service and consumption, gaming, intoxication prevention and an appreciation of the roles and responsibilities of the Tavern in the community. 2. Ms Adamson detected "significant community support" for an extension to the hours of trading. She deposes to being told by "many patrons" that they wished the Tavern would stay open longer. She submitted with the ETA application a petition to that effect with 182 names and signatures in support of the extension of trading hours. There are at least three problems with the petition which prevent the Tribunal from attributing much weight to it as evidence of current community support for extended trading hours: 1. First there is no evidence that the petition was actually circulated in the community. To the contrary, the evidence tended to suggest the petition was left at reception to the Tavern. The practical effect of this was that only those members of the community who were also customers of the Tavern were invited by it to express an interest in extended hours of trade. While most, if not all petitioners identified themselves as residing in the Port Stephens LGA, this was a self-selecting group of patrons rather than a representation of broad-based community support. The numbers of petitioners are also relatively modest considering that the Authority's inspectors observed about the same number of patrons attending the venue on a single Friday night. 2. Second the petition contains at least five petitioners who are also employees of the Tavern. These include (referring to last names only) Gill, Siddens, Weller, Vizena and Mason. Each of these people is able to be identified as staff by having been referred to as such by Ms Adamson in cross-examination, or their names are recorded in the incident log tendered in the proceedings. While staff may also be local residents, it is clearly not the intention that employees of the Tavern should be petitioners for extended hours at their place of work. 3. A further problem with the petition is that, in the circumstances of the hearing, it is somewhat dated – it was submitted in early 2021, almost a year before the incidents observed by the Authority's inspectors in March 2022. 1. Ms Adamson's evidence is that since she became the licensee of the Tavern in November 2019, she has not received any complaints from local residents about noise. However as was revealed in cross-examination, Ms Adamson has made very little attempt to directly contact and speak to the neighbours of the Tavern. She was able to identify only one neighbour to whom she had spoken about noise and disturbances observed by the Authority's inspectors in March 2022, and even then Ms Adamson was only able to identify that neighbour by a nickname. 2. Ms Adamson had left the premises when the incidents observed by Authority inspectors on 18 March 2022 occurred and 3. Though unfortunate, Ms Adamson asserted that these incidents were the result of having a relatively new duty manager who failed to act appropriately on those evenings and that the manager had his employment terminated after 18 March 2022. 4. Since the incidents of March 2022 described in Mr Vescio's report, Ms Adamson has enrolled all her duty managers in the NSW Advanced Licensee's Training Course, and she has insisted the security company provide her with two licenced security guards instead of one security guard and an RSA marshal as had previously been the arrangement. She has also taken steps to ensure the people who behaved inappropriately on the evening of 18 March 2021 were excluded from attending the Tavern. 1. Ms Adamson was cross-examined by senior counsel for the Authority. The effect of her evidence given under cross-examination was: 1. She had worked as a licensee in all but name for 11 years at a previous establishment before being appointed as licensee at the Tavern. 2. Friday and Saturday nights were the busiest times of trade, and this is reflected in the number of staff rostered for those evenings. For example, Ms Adamson said that the staff roster for the coming Friday evening, up to about 10 PM, comprised: 1. three bar staff; 2. three staff working in the bistro, plus 5 cooks; 3. three managers, including Ms Adamson as the licensee; 4. two security guards – one stationed at the door, the other patrolling the whole establishment (as noted above prior to 18 March, the Tavern had engaged one security guard and one RSA Marshal); 5. a gaming attendant or gaming manager; 6. a bottle shop attendant (assisted by one of the managers); and 7. a driver for the courtesy bus. 1. After 10 PM, when the bistro service had ended and cleared away, Ms Adamson said the number of staff rostered-on would reduce to three bar staff, three managers, two security guards and a bus driver. 2. Ms Adamson gave evidence that it was her practice to be rostered personally on Friday and Saturday nights with two other managers. These are the busiest nights of trade for the Tavern. On quieter nights, one duty manager plus a shift manager who looked after the bottle shop were all that was required. 3. Ms Adamson conceded that the staff levels on the evening of Friday, 18 March 2022 when the inspectors from the Authority were attending the Tavern, were less than the number she described as being the roster for the weekend after the hearing of this matter. On 18 March 2022, Ms Adamson was only one of two managers on shift at the Tavern. She had worked a long shift which started at 7 AM. Consequently, she left the premises at about 9 PM after working a shift of about ten hours. According to Mr Vescio's evidence, patronage at the Tavern at 9 PM was about 121 people, and at 10 PM, it was about 70 people. Ms Adamson's departure meant that after 9 PM, there was only one manager on duty at the Tavern and that duty manager was newly hired. Ms Adamson accounted for this in her evidence by explaining that for a period of about two years leading up to March 2022, she had found it difficult to fill staff positions, and there had been staff shortages as a result. As a consequence, by 18 March 2022, having managed to hire a new manager, she also had to allow another manager to take a period of leave. In spite of the staffing shortages, Ms Adamson stated in cross-examination that she nonetheless felt confident the premises were staffed adequately when she finished her shift at about 9 PM that evening. Her evidence in cross-examination was that it was "pretty quiet" when she departed. 4. Ms Adamson's evidence concerning her response to the events of 18 March 2022 lacked clarity. The Tribunal was left with the impression that while the event was deeply concerning to Ms Adamson, she sought to minimise what had occurred and overstate the speed and effectiveness of the actions she took on becoming aware of what had happened. In particular, Ms Adamson's evidence was that: 1. She did not dispute what Mr Vescio had written in his affidavit, including that the inspectors from the Authority had observed and filmed widespread intoxication of patrons, as well noise and disturbance outside in the carpark including an incident where one patron got inside the courtesy bus and sounded its horn; 2. The incidents that occurred on Friday, 18 March 2022 should never have happened and she had been "let down" by the way in which the duty manager performed on the night, though she accepted that, as Licensee, she was responsible for what had taken place; 3. Ms Adamson's initial responses in cross-examination were to the effect that, on receiving an email from Mr Coombes (one of the Authority's inspectors) she immediately took steps to find out what had occurred and had got through by Saturday morning (ie the morning after 18 March 2022); 4. On then questioning the duty manager, she received a different account and had to investigate the matter and review the CCTV footage from the Tavern's cameras, a process she described as being "quite tedious"; 5. According to her affidavit evidence, Ms Adamson terminated the duty manager's employment on the Monday following the incident (i.e., 21 March 2022). In cross-examination, Ms Adamson admitted that this was not correct and her affidavit evidence had the potential to mislead. The incident register in fact showed the duty manager recording incidents in the register until 27 March 2022. Ms Adamson conceded that the duty manager had continued to work shifts at the Tavern – though she stressed as a bar attendant only – for a further week and he was only terminated by notice ten days after the incident on about 28 March 2022. The incident register in fact suggests he was working for a further nine days before his termination. Ms Adamson accounted for the delay in terminating the duty manager's employment as being the result of having to carefully review and investigate the matter before deciding to terminate the duty manager. Apart from the apparently tedious effort in reviewing the CCTV footage and interviewing staff, there was no evidence of what Ms Adamson did to carefully review and investigate the matter which could justify such a languid response. Material Submitted in the Original Application 1. At the hearing, Ms Adamson relied on the substantial materials submitted by or on her behalf in making the original ETA application as well as the considerations given by the Authority in granting the partial ETA. 2. Those materials were extensive and not only the written application but the detailed consideration given to that application by the Authority. Such consideration is not a matter to be taken lightly, and the Tribunal has taken the material into account, giving due weight to the fact that, while there was some evidence of concerns over the extent to which extended trading by the Tavern may have a negative impact on the local community, the Authority was prepared on the basis of the material submitted to grant a partial ETA to Ms Adamson. 3. At the time the Authority determined that a partial ETA would be granted, it had not sent out inspectors to independently assess the Tavern or verify the matters asserted by Ms Adamson's ETA application. This is not a criticism of the Authority, nor is it intended to suggest that Ms Adamson was in any way misleading in her application. However, as counsel for the Authority submitted in closing submissions at hearing, once the Authority's inspectors attended and observed the management of the Tavern, and the extent to which there was any real demand for gaming it was obliged to bring this information to the Tribunal's attention and make submissions bringing into question the original authorisation. Community Consultation 1. The ETA was the subject of four objections. The first was from the local primary school principal, Mr Winn. That objection centred on the impact of alcohol consumption and money used for gambling on families attending the school. In an area classed as high-risk and where domestic assault is three times the State average, this objection was soundly made. Mr Winn also expressed concern about increased traffic and noise impacting the quality of sleep for his students. Ms Adamson, in cross-examination, stated that she did not know the appropriate way to handle the concerns or speak to the principal nor did she know the extent of the concern raised by Mr Winn. Ms Adamson also admitted that she did not attempt to contact the school or Mr Winn after the events observed by the Authority's inspectors. In re-examination she stated that she "didn't feel it affected the school" and further, there was no one involved from the school. This was a completely unsatisfactory response given the nature of the incidents involving the inappropriate service of alcohol, violence and noise in the school's catchment area during a school term. 2. The second objection was from a neighbour at the back of the Tavern, Ms Broughton. Her objection made in March 2020 set out that she personally had witnessed many fights and brawls in the Tavern's carpark over the years and that patrons leaving the venue were typically loud and abusive. 3. The third objection was from a person who lived directly across from the Tavern whose signed name I cannot identify with accuracy. The proximity to the Tavern was the stated objection by which I infer a concern about noise disturbance. 4. Ms Adamson did not give evidence that she contacted Ms Broughton or the other neighbour to discuss these concerns before or after March 2022. To the contrary, her evidence was that she was not even unaware of these objections. The Authority, in its original decision did countenance the objections of the neighbours but it was considered the objections were countered by the general community support evidenced by the petition and the lack of any opposition from the NSW Police Force and local community groups. 5. In cross-examination, Ms Adamson was able to name one neighbour only who she spoke to about the events of 18 March 2022. This was a person who lived directly across the street from the Tavern. Ms Adamson's evidence at the hearing was that she spoke with this one neighbour, for whom she only had the name "Irish", on Saturday or Sunday after out the front of the Hotel. Otherwise, her evidence was that no patrons later attending the venue had raised any concerns with her. 6. It was submitted on Ms Adamson's behalf that the evidence did not establish a lack of engagement with the local community. I accept that on a formal level with regard to sporting associations and other community groups there was engagement. Ms Adamson submits that she was not required as part of the community impact statement to engage in a process of surveying or door-knocking. Again, I accept this as a correct statement of the requirements. However, the question to be considered in these proceedings is whether the Tribunal can be satisfied that the overall impact of the ETA will not have a detrimental impact on the well-being of the local and broader community. Relevantly to this question, the impression to be gained by Ms Adamson's evidence concerning her interactions with the community and neighbourhood is that her interactions with neighbours and the community are based primarily on their attendance at the Tavern – there was no evidence that she had attempted or and, in some cases, did not even know about – complaints and concerns of neighbours. Alongside the deficiencies in the petition and the observed patronage numbers over two separate periods, this left the Tribunal with the impression that there was in fact very little community or patron interest in extended trading hours and there was, in some respects, strong opposition to the ETA on the basis that it would have a detrimental impact upon members of the local community in particular. Respondent Evidence 1. I will outline, Mr Vescio's written evidence by reference to each of the three evenings when he and the other inspectors attended and observed the Tavern. His evidence was not seriously challenged under cross-examination by Ms Adamson's counsel and, as noted above, Ms Adamson expressly stated that she did not dispute what Mr Vescio had written in his affidavit, including that the inspectors from the Authority had observed and filmed widespread intoxication of patrons, as well noise and disturbance outside in the carpark including an incident where one patron got inside the courtesy bus and sounded its horn. Where relevant, I have also set out Mr Purcell's observations since he was able to attend the tavern for the same nights of the week, though two months earlier. 2. Mr Vescio's affidavit, tendered by the Authority, recorded his observations made during an inspection of the Tavern on the evenings of 16, 17 and 18 March 2022. The inspection was made without notice. Mr Vescio attended and inspected the Tavern with four other inspectors from the Authority. 3. Mr Vescio and the other inspectors conducted "covert surveillance" of the premises, and Mr Vescio identified where each inspector was stationed on each night and then annexed copies of the notes made by each inspector from each evening. 4. Mr Vescio then gave evidence of "a summary of the Inspectors' observations as recorded in the file notes taken by those Inspectors (including my own) made on the [inspection dates]". The difficulty with such an approach is that a witness cannot give evidence about what another person saw or heard. This is the principal basis for the rule against the admission of hearsay evidence. While, as noted above, the Tribunal is not bound by strict rules of evidence, the Tribunal is nonetheless required to assess and attribute weight to evidence, and much of that calculation is based upon principles similar to the rules of evidence. In this case, Mr Vescio's evidence about what other people heard or saw cannot be given very much weight. Rather, the Tribunal has preferred the contemporaneous file notes, records created by other Authority staff and communications between Mr Vescio and other officers to the extent they are relevant. Moreover, Ms Adamson, under cross-examination and in submissions made by her counsel in closing, expressly conceded that she does not dispute what Mr Vescio has written in his affidavit nor the account of the events which occurred on 18 March 2022. Wednesday, 16 March 2022 1. On Wednesday, 16 March 2022, he and other inspectors observed the operations of the Tavern. The inspectors recorded patron numbers on that evening. Relevantly, patronage at the tavern peaked at 9 PM with 30 people in attendance. By 11 PM, there were only 6 patrons still at the tavern, and no patrons were in attendance by midnight. Of the six patrons still in attendance at 11 PM that evening, none were present in the gaming room, four were located in the sports bar, and two were on the smoker's terrace. 2. The inspectors' observations may be compared with those of Mr Purcell, who observed 7 patrons in the gaming room on a Wednesday evening (albeit the Australia Day public holiday). 3. Mr Vescio's evidence is that on this Wednesday evening, there was a group of young men who entered the tavern early in the evening and proceeded to play on the gaming machines for an extended period of time. It is unclear what period this in fact means and the matter was not clarified at hearing. Mr Vescio's evidence is that these patrons were placing single bets of $5 per spin which, I was informed, was a high individual bet. Thursday, 17 March 2022 1. On Thursday, 17 March 2022, Mr Vescio gives evidence about the number of patrons attending in the evening. He says patronage peaked at 9 PM with 21 patrons in attendance. By 11 PM there were still 11 patrons at the tavern, and of those, five were located in the gaming lounge and six on the smoker's terrace. However by midnight until closing time at 1 AM, there were no patrons at all in the tavern. 2. Mr Purcell's observations of Thursday, 27 January 2022, were that the patronage of the gaming room was 10 people at midnight and no one at the closing time of 1 AM. 3. Mr Vescio exhibits a surveillance log prepared by another inspector, Mr Grewal. Mr Grewal's surveillance log shows that on Thursday evening, 17 March 2022 at about 11 PM, a patron was seen leaving the Tavern in an intoxicated state - in particular, this patron was at such a level of intoxication that he was observed as being unable to balance himself and had to be assisted by security staff to get onto the courtesy bus to take him home. In her evidence, Ms Adamson did not explain how or why a patron, on a relatively slow night and while she was on duty as manager, was able to be served liquor to the point where he reached this level of intoxication. Friday, 18 March 2022 1. On Friday, 18 March 2022, Mr Vescio and his inspectors recorded a busy night at the Tavern. At the peak of operation, there were 197 patrons in attendance at 8 PM of whom 78 were located in the bistro at that time. The maximum number of patrons observed in the gaming room at any time that evening was 20, this peak was also at 8 PM while Ms Adamson was still on shift. Patronage of the tavern overall declined steadily over the evening such that by 11 PM there were 39 patrons still in attendance, of whom 10 were in the gaming room, 20 were at the sports bar and nine were on the smoker's terrace. The Tavern was closed at midnight because of an incident that occurred in respect of which Mr Vescio and the other inspectors observed and took video footage. It is unclear whether, under less dramatic operating conditions, the patronage of the tavern would have continued at the same or similar levels until closing time or would have followed the trend of the other two nights where the tavern was effectively empty by closing time. 2. Mr Purcell's observations of the gaming room patronage on Friday, 28 January 2022 were that the patronage of the gaming room peaked at about 11 PM when there were 23 people in the gaming room however that number quickly dwindled to 8 people by midnight and with no patrons in the gaming room at the closing time of 1 AM. 3. Mr Vescio's evidence is that some of the group of about eight patrons involved in inappropriate and unseemly behaviour later that evening had been observed at an earlier time on Friday evening, placing bets in the gaming room and some were seen to repeatedly hit the machines with increasing force as a means of encouraging a fortunate result. As I understand his written evidence, which was not seriously challenged on this point, several Tavern staff entered the gaming room throughout the evening to take orders and to clean, but no particular staff member appeared to be responsible for the gaming area of the tavern. The effect of this evidence is that the gaming room was likely to have been operated that evening in a manner consistent with the Tavern's Gaming Plan of Management submitted as Annexure E to its application to the Authority for an ETA. The Gaming Plan of Management provides, among other things, that the gaming room is to be supervised at all times either by a staff member being physically present or by electronic surveillance. No explanation was provided by Ms Adamson for this specific issue however it may be accounted for by the staff shortages she reported in the course of cross-examination. No evidence has been put forward by Ms Adamson concerning electronic surveillance. 4. Mr Vescio and the other inspectors prepared file notes of their respective observations of the evening, these file note record that: 1. by 9:35 PM Mr Vescio interacted with one female patron who, despite being obviously intoxicated (slurred speech, glassy eyes, breath smelling of alcohol, so unsteady on her feet that she leant against the inspector while speaking to him), she was nonetheless holding a glass of white wine, which appeared nearly full (indicating recent service), the glass was estimated by the inspector to have been filled to more than twice the standard serving size. Ms Blunt, another inspector who was with Mr Vescio when this incident occurred, records in her note that this patron appeared to have slurred speech, glassy eyes and leant upon Mr Vescio's arm to stabilise herself. Ms Blunt also records her observations that this patron was holding a glass of wine filled to the top. No explanation was given by Ms Adamson for why this patron was permitted to continue to stay at the venue or obtain further alcohol or why her wine glass was filled in this way. 2. By 10.50 PM, Mr Vescio observed other patrons who were obviously intoxicated and who had been involved in an argument with a young female patron. The young woman was asked to leave. The remaining patrons who had also been involved in the argument were not asked to leave and were observed by Mr Vescio (and separately by Ms Blunt) to be swearing, slurring their words and appearing glassy-eyed. Mr Vescio noted a general increase in levels of intoxication by this time, and neither general nor security staff attempted to assess or address the increasing levels of intoxication among the patrons. These observations appear to be contrary to the Tavern's Alcohol Management Plan accompanying its application for and ETA. 3. In the gaming room on that evening, patrons were observed by Mr Vescio to become increasingly intoxicated while playing on the gaming machines Mr Vescio records one female patron had been playing the same machine from at least two hours having observed at both 9 PM and continuously until after 11 PM. Some of the group of patrons (who would later be part of the car-park incident) were attending the gaming room at 11 PM and were observed holding two drinks each; it is unclear to me whether having two drinks at once contravenes the Tavern's Alcohol Management Plan concerning late-night service of alcohol which states, among other things, "2 drinks per person from 11 to 12". I also note Ms Blunt's observations are not consistent with Mr Vescio's on this point – she records at 11 PM, her observation of the gaming room was that none of the six patrons she saw in the gaming room showed any sign of intoxication. 4. At about 11:20 PM, a patron, whom I will refer to as White-shirt. From the video footage obtained by the inspectors, he is clearly intoxicated, yet he is served alcohol and then goes into the bar area to collect it. No bar staff attempt to stop him or move him on. The video footage obtained by Mr Vescio shows this incident and also records that, as he leaves the bar, he appears to speak as he passes a group of patrons standing around a small table who react to him as he walks past. Ms Blunt's observations are that White-shirt walks aggressively from the bar to the smoker's terrace and says, loudly, "I am going to fucking sort this out". This seems consistent with the reaction of the other patrons at the Tavern as he passes them. Ms Blunt records that minutes later, another patron, whom I will refer to for clarity as Grey-shirt and who had been earlier involved in the argument that resulted in the young woman being asked to leave, comes out from the smoker's terrace. Ms Blunt records his appearance as being: "very dishevelled, his face sweaty, and he had a large amount of liquid spilt all down the front of his shirt". Ms Blunt records her observations that after some argument and shouting at staff, Grey Short is asked to leave the premises at about 11:33 PM. The next minute, Ms Blunt records another shouting argument taking place between a man in a black t-shirt and another male patron. This argument was rapidly diffused by the duty manager. 5. Mr See, another inspector who was positioned in the carpark that evening, records seeing White-shirt being ejected from the Tavern by a security guard at about 11:35 PM, White-shirt promptly urinates on the wall of the Tavern, an action photographed by Mr Coombs, the fourth inspector attending that evening Mr See includes the photograph in his file note. Mr Coombes' surveillance log records that while urinating, White-shirt is yelling threats to the patrons over the wall in the smoker's terrance. At about 11:53 PM, White-shirt climbs the wall of the Tavern apparently to gain access to the smoker's terrace, Mr Coombs takes a photograph of this also. Mr See then records his observation that a few minutes after entering the Tavern via the wall, White-shirt leaves the Tavern by climbing to the top of the wall and making "an uncontrolled descent into the garden". He is seen by Mr See a minute or so later with a ten-pack of drinks which he could only have obtained from the Tavern. Mr Vescio's note records seeing White-shirt approach the bar, be refused service, speak to bar staff and then receive a take-away carton of approximately 10 ready-mixed alcoholic drinks. Mr Vescio observes that White-shirt speaks in an inappropriate and threatening manner to another patron before walking out of the bar unsteadily. 6. Mr Coombe's surveillance log in the period from 11:30 PM to midnight records that the security guard stationed at the door had stepped inside the tavern twice. The security guard is seen briefly, but the Authority's inspectors do not observe any sufficient measures taken by the Tavern to ensure patrons are kept safe, and the neighbourhood is undisturbed. Indeed, Ms Blunt's note records that at about 11:56 PM, he spoke to the RSA or security staff and told them "there is a fight", which resulted in the staff going back inside the Tavern. 7. In addition to the commotion and antics of White-shirt and the patrons who had been asked to leave, the inspectors also recorded their observations of excessive noise – in particular, yelling by patrons on the smoker's terrace, including at one stage, a chant of "skull, skull, skull". 8. The inspectors then, at about 11:56 PM, observed a group of patrons, including White-shirt and Grey-shirt, gathered in the carpark. At the hearing, the Authority presented video footage of about 15 minutes of what then occurred. The footage shows a large number of patrons standing around in a manner that suggests a physical fight is imminent. The camera footage in the first few minutes does not show punches being thrown between the patrons however it is obvious from the words being said by a man in a pink hooded top that White-shirt has punched or hit a man in a green t-shirt (who appears to be associated with Grey-shirt). Mr Coombe's log records his observation that at 11:59 PM, White-shirt started throwing punches at a man in a green shirt. From the video footage, the security staff appear from inside the Tavern, they stop and observe the scene, staying in a position of observation for about 30 seconds before the duty manager arrives strides out to the group of patrons. At this point in the video, an older man in a black hooded top starts to shout "get away" over and over. The sound recording in the video clearly captures loud shouting and arguing coming from the carpark throughout. The noise is so loud that the residents in the houses opposite the car park could have been disturbed. White-shirt, who has by about midnight has removed his shirt but remains identifiable by his distinctive shoes, which are white on the top and red on the bottom, is yelling and can be seen stalking back and forth. The duty manager speaks to Grey-shirt who has a bottle of some kind in his hand from which he drinks throughout. The duty manager then walks towards White-shirt, having to push back Grey-shirt once again on his way. The duty manager is filmed speaking to White-shirt and the man in the pink hooded top, White-shirt walks away and the Duty Manager uses hand gestures to direct patrons to leave in different directions before noticing that White-shirt has rounded back and is walking towards Grey-shirt. Grey-shirt responds to White-shirt by pushing or hitting White-shirt's chest. he appears to push Grey-shirt further away before going over to White-shirt. White-shirt is led away by the man in the pink hooded top towards the Duty Manager, at which point the footage shows the Duty Manager seemingly responding to a threat from White-shirt by pushing White-shirt over and White-shirt falls onto the ground. Grey-shirt then walks over to the Duty Manager and strikes him, while White-shirt walks up to the Duty Manager, yelling. The security guard, at this stage, appears to try and stand between the Duty Manager and White-shirt, though he says nothing. 9. Grey-shirt is then filmed speaking to the man in the green shirt, the large stain down the front of his shirt is evident. The man in the pink hooded top appears to be explaining or trying to diffuse the fight in a manner which should have been adopted by any of the staff of the Tavern. The man in the pink hood can be heard repeatedly saying "he was drunk". 10. After a few minutes the fight appears to be over, and the crowd starts to disperse. Grey-shirt remains in the carpark speaking to a man and a woman for several minutes. Five minutes after being pushed over, White-shirt returns to the front door of the Tavern and can be seen speaking to the duty manager. Other patrons then are filmed leaving the Tavern, and another man wearing a black t-shirt and denim shorts is filmed urinating for about 20 seconds in the carpark across from the courtesy bus. A patron is shown getting into the large silver vehicle next to the urinating man with an open beer bottle in hand. 11. The man in the black hooded top man is then filmed leaving the Tavern. In that footage, his manner of walking is such that suggests he is so intoxicated that his balance has been affected and he teeters backwards with each slow step he makes. He appears to take lean on or receive some assistance from a woman in a white t-shirt who is accompanying him and behind them with the RSA marshal is walking slowly appearing to monitor and watch where the man and women are going. 12. The horn of the courtesy bus is blown twice, and the duty manager comes over to it to discover that a patron has entered the driver's seat and used the horn – possibly to hurry the driver to take him home. According to Ms Blunt's note, the patron was obviously intoxicated; slurring his words and shouting. Ms Blunt observed the same patron climb back in the bus and press the horn again at about 12:20 PM. 13. About eight minutes into the footage, White-shirt walks back into the carpark. He can be seen holding a box. As he walks along, he drops the box. He can be heard yelling and Mr Coombs, from his position, records what he says in his log. White-shirt then kicks the box causing a number of drink cans to fall out and roll along the ground. White-shirt picks up one can and throws it onto a red car nearby. White-shirt continues walking to the bus shelter with an unsteady gait, leaving the man in the pink hooded top to collect the other cans. This footage accords with Ms Blunt's observations in her notes. Grey-shirt by this stage has also walked further down the street towards the bus shelter. 14. At about nine-and-a-half minutes into the footage, White shirt is seen stepping out onto the road near the bus shelter and throwing something, with some force, across the road into the houses neighbouring the Tavern. White-shirt can be seen and heard on the video kicking a large sign for the bottle shop located near the bus shelter. Then, Grey-shirt and White-shirt can then be seen fighting on the road near the bus shelter where they continue to push and shove each other until the end of the footage. Mr Vescio records that by 12:50 PM, both Grey-shirt and White-shirt were still present and that Grey-shirt was yelling threats into his phone in a manner that Mr Vescio could hear from 30 – 40 metres away. 1. Much was made at the hearing about Mr Vescio's account of White-shirt nearly hitting his head when pushed over by the duty manager. Nothing turns on this point. The obvious fact is he was pushed over and fell to the ground and, luckily for all involved, White-shirt appeared entirely uninjured as a result. Findings Consideration of the overall social impact of the ETA Application 1. The Tribunal on review must not grant an application unless it is satisfied that the overall social impact of the ETA will not be detrimental to the well-being of the local or broader community; Liquor Act, s 48(5) having regard to the material set out in the subparagraphs to that section. 2. As the Tribunal in Bun v Independent Liquor and Gaming Authority [2020] NSWCATAD 60 at [73], observed: … the Tribunal must be actually satisfied that the overall social impact of the proposal will not be detrimental. 1. The term "overall social impact" was considered in extensively in Kallin Pty Ltd v Independent Liquor and Gaming Authority [2019] NSWCATAD 36 where, at [20], the Tribunal stated: As suggested in Macedon Ranges Shire Council, the meaning of "overall social impact" will be influenced by the subject matter and purpose of the Liquor Act. Clearly the Act is concerned with the minimisation of harm associated with misuse and abuse of liquor (including violence and other anti-social behaviour), as well as ensuring that the sale, supply and consumption of liquor contributes to, and does not detract from "the amenity of community life" (s 3(2)). Therefore in my view, these factors, where relevant, will inform the meaning of "overall social impact". The Act also refers to other social impacts such as the balanced development of the liquor industry and of related industries such as the live music, entertainment, tourism and hospitality industries. 1. When considering the overall social impact, the Tribunal is required to take into account both positive and negative aspects; Smith v Independent Liquor and Gaming Authority [2018] NSWCATAD 224 at [30]. A similar approach was taken in Ballesty & Anor v Director of Liquor & Gaming & Ors [2002] NSWSC 1102 at [149] where Kirby J considering an appeal against an extension of gaming machine activity in a registered club said: Where there was a significant number of machines in the local community, or a significant part of the local community, and where the incidence of problem gambling was already high, or the projected increase likely to be major, these matters would obviously be relevant. They would alter the character of the disbenefit, clearly making it worse. However, that disbenefit, with that character, would still have to be compared with the social and economic benefits to the local community. Did the disbenefit, in that aggravated form, so outweigh the benefits, that the application should be refused? 1. The approach set out by Kirby J on Ballesty and by the Tribunal in Smith are aligned, and I respectfully adopt that approach in considering whether the disbenefits outweigh the benefits identified as arising from the ETA application. 2. In considering the overall social impact of the ETA application I have also had regard to the Authority's published Guideline entitled "Consideration of social impact under section 48(5) of the Liquor Act 2007" (Guideline 6) which, as its title suggests, sets out definitions as well as the mandatory and discretionary considerations and procedure the Authority undertakes in considering applications including those such as Ms Adamson's. The date of Guideline 6 produced as part of the bundle of authorities is dated 13 October 2021. While Guideline 6 is not a document that binds the Tribunal in this matter, it is informative of the approach to be taken and the Tribunal may have regard to such documents; Administrative Decisions Review Act, s 64(4); Aldi Foods Pty Ltd v Independent Liquor and Gaming Authority [2019] NSWCATAD 26 at [17]. Benefits of the ETA Application 1. Ms Adamson submitted that the benefits of the service provided to the community by the extension of trading hours were not in doubt. I disagree with this submission based upon the observations of patronage numbers provided by Mr Purcell and Mr Vescio which showed that very few patrons actually attended the Tavern in the extended trading hours permitted by the Authority at first instance. It was conceded by Ms Adamson that patron numbers rapidly declined after the closure of the Tavern's bistro. The evidence showed that the Tavern effectively closed early such was the lack of demand on the two Wednesday evenings observed. 2. These observations, together with the deficiencies of the petition and the manner in which community interest was asserted, mean that benefit to the community arising from granting the ETA was not at all apparent after all the evidence was presented and the submissions of both parties was considered. On the contrary, there appeared to be a distinct lack of interest in patrons attending the Tavern during the extended trading period. 3. Some limited evidence was led by both Ms Adamson and the Authority concerning the migration of patrons attending the gaming room after closing time. The observations of Mr Purcell and Mr Vescio and the other inspectors was that there was not significant migration of patrons from the Tavern after closing time to other venues though there was some dispute as to which the closest or most likely migration venue was. Since the number of patrons having been observed migrating from the venue was in the low single digits, this issue is neither a benefit nor a negative factor to be considered. Negative Impacts of the ETA Application 1. Ms Adamson submitted that there was no objective evidence counting against the extended trading hours for Monday to Wednesday evenings and that these evenings were the only ones to be considered by the Tribunal. I accept that these evenings may have been the initial focus however the Authority at the hearing contended that the Tribunal should remove the partial ETA and, as a consequence, has such placed in issue every evening of extended trade. It is correct that each evening is now to be considered. 2. No unfairness arises from this given the evidence presented by Ms Adamson from Mr Purcell only effectively addressed those evenings where extended trading had been allowed originally, and Ms Adamson's evidence was that the quiet nights were nights other than Fridays and Saturdays. 3. I have concluded that the following matters are factors that indicate negative impacts on the community by reason of the fact that, if permitted the extended trading hours will necessarily allow more patrons to consume alcohol and gamble for longer periods across each day of the week: 1. The statistical data of the socio-economic indicators for the local area as attached to Ms Adamson's application which show that households in Raymond Terrace as being among the most socio-economically disadvantaged in New South Wales and that a rate of alcohol-related domestic assault and malicious damages offences in Raymond Terrace is more than three times higher than the rest of the State; and 2. The observations of the Authority's inspectors who reported manifest negative social impacts – including intoxication, acts of physical violence, public urination, noise disturbance and attempts at vandalism. 3. The finding by the Authority, based on reports it collates that the intensity of gaming at the Tavern is higher than compared with other hotels in the local area and the Port Stephens local government area; and 4. The Tavern is located in an area designated as being at the highest risk for problem gambling, being a Band 3, Statistical Area 2 under the Gaming Machines Act, 2001 (NSW). 1. Further, I have had regard to the Authority's initial recommendation to allow a partial grant of ETA in response to the original application. That recommendation was based on the comprehensive plans submitted by Ms Adamson, the petition, the lack of objection from local police and community organisations and the willingness to submit to additional conditions and restrictions on operation in order to allow extended trading to occur balanced with several points of concern. The 12 additional conditions are still offered by Ms Adamson in her closing submissions however it is not the conditions but the observance and adherence to them which is a cause of concern for Tribunal. All those conditions were in force on 18 March 2022 and, it would seem, they were either disregarded or ineffective. I note that, at the time of making the recommendation, the Authority had not sent its inspectors out to observe the operation of the Tavern. 2. Having considered the evidence of both the asserted benefits and the negative impacts of the extended trading hours I am not satisfied, as I am required to be so satisfied that pursuant to the Liquor Act, s 48(5) the overall social impact of the ETA will not be detrimental to the well-being of the local or broader community. Consideration of matters relevant to the Liquor Act, s 49 1. The Authority (and now the Tribunal) must not grant an ETA unless satisfied that practices are in place, and will remain in place, at the licensed premises that ensure as far as reasonably practicable that liquor is sold, supplied or served responsibly on the premises and that all reasonable steps are taken to prevent intoxication on the premises; Liquor Act, s 49(8). 2. The footage showed graphically that by the end of the night on 18 March 2022, the Tavern and, by extension Ms Adamson as its licensee, had failed to adhere to the conditions of its liquor licence including the failure to adhere to its own Alcohol Management Plan by continuing to serve patrons to intoxication and by failing to manage intoxication. The Liquor Act expressly requires those exercising functions under it, which includes Ms Adamson as a licensee, to secure the objects of the Act by having due regard to the need to minimise the harm associated with misuse and abuse of liquor including harm arising from violence and other anti-social behaviour; Liquor Act, s 3(2)(a). The evidence before the Tribunal obtained by the Authority's inspectors demonstrates that this did not occur. 3. These failures observed by the Authority's inspectors on 17 and especially on 18 March 2022 were compounded by poor control of patrons leaving the premises – including the failure to diffuse physical and verbal conflicts, and the continued sale of alcohol to patrons who had been asked to leave and who were visibly intoxicated. This created an environment of noise and violence that were entirely acceptable. Ms Adamson attributes these failures to the individual duty manager and security staff and not to any systemic failings at the Tavern, nor does she appear to address the fact that the underlying issue was not the poor control of conflict and the failure of management, but the failure of all staff monitor and refuse service to patrons who were approaching intoxication. In re-examination, Ms Adamson gave evidence to the effect that it was possible to eliminate intoxication by intervening and refusing service before the point of intoxication. 4. The written submissions made for Ms Adamson refer the Tribunal to the decision of R v Kenny [2008] NSWDC 389 where Blackmore SC DCJ said: If it is accepted, as it must be in my view, that no matter what steps are taken it will never be possible to prevent some intoxication on a licensed premises. The real question is whether the steps taken to monitor the patrons in an attempt to ensure that intoxication does not occur, are all the reasonable steps that could be taken in the circumstances. In Rolf v Willis (1916) 21 CLR 152 Chief Justice Griffith put the matter in this way: "In our opinion the phrase reasonable steps to prevent drunkenness means such steps as ought reasonably to be taken by way of precaution against the occurrence of drunkenness on the premises under any circumstances that may reasonably be anticipated and to prevent its continuance when its existence is discovered." 1. I respectfully concur with what is said in Kenny. However, Ms Adamson did not in fact take all reasonable steps to prevent intoxication given the very obvious fact that on the nights randomly chosen by the Authority's inspectors, extensive intoxication of several patrons attending the Tavern was readily observed. There was evidence of intoxication on Thursday evening as well as Friday which remained unexplained by Ms Adamson. The failures of Friday night did not arise because of new staff - the duty manager had been employed for at least six weeks by this time and other bar staff were long-standing employees. Further, while I accept that Ms Adamson has taken further measures to address the intoxication problems observed by the Authority, she has produced no evidence to show that the new measures she has introduced are effective of the outcome she has sought. The only material the Tribunal has before it is the incident register which, as noted above, is subject to some limitations as to accuracy and completeness. 2. Ms Adamson does not address how she has overcome the staff shortages she identified in her evidence as being a root cause of the failure. The labour market is, of course, a wider issue, but the evidence led by Ms Adamson as to how she intended to attract and retain suitable staff in current labour market conditions was not clear – the current shift roster she produced showed several more staff being rostered on but there was no evidence of the actual shifts worked or whether this rostered staffing levels were, in fact, sufficient for the level of patronage at the Tavern. 3. Ms Adamson sets out in detail the measures she has taken since this evening to adhere to the law and guidelines and her own plans. Her counsel submitted that this showed the detailed steps she had taken to ensure that those events were not repeated and that there was no evidence before the Tribunal to suggest that such incidents would occur again and that the Tribunal could be confident that a decision in favour of Ms Adamson would be consistent with the matters set out in the Authority's original recommendation to partly approve the ETA. I do not accept this submission, the evidence presented at the hearing by the Authority was graphic and disturbing, and Ms Adamson's evidence concerning the way in which she responded to those incidents was not, as her counsel submitted "rapid and effective" or "prompt and decisive", the evidence showed instead that she was slow to respond, hesitant and bureaucratic in her approach. 4. The evidence presented in its totality by the parties did not give the Tribunal any confidence that the multiple incidents of service to intoxicated patrons, intrusive noise, violent and other atrocious behaviour and poor management observed by the Authority's inspectors had been sufficiently addressed and would not be repeated. Decision 1. For the reasons set out above, I am not satisfied that, on balance, the overall social impact will not be detrimental to the local community. I am unable to say whether the overall social impact will not be detrimental to the broader community and therefore cannot be satisfied on this point either. 2. Accordingly, for the reasons also set out above and having regard to the object of the Liquor Act, the Tribunal is not satisfied, as required under Liquor Act, s 49(8), that both practices are in place, and will remain in place, at the Tavern that will ensure as far as reasonably practicable that liquor is sold, supplied or served responsibly on the premises and that all reasonable steps are taken to prevent intoxication on the premises. Nor is the Tribunal satisfied that the extended trading period will not result in the frequent undue disturbance of the quiet and good order of the neighbourhood of the licensed premises – the evidence establishes that there was undue disturbance suffered by the neighbourhood as observed by the Inspectors. Absent that satisfaction, pursuant to the Liquor Act, s 49(8), the Tribunal must not grant the ETA. 3. Having regard to the evidence and the findings set out above, I consider the correct and preferable decision in this case is to refuse Ms Adamson's ETA application in its entirety. Orders 1. The decision of the Independent Liquor and Gaming Authority to partially refuse to grant an extended trading authorisation decision is set aside. 2. In lieu thereof, the application for an extended trading authorisation is refused in its entirety. 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: 14 December 2022