PARTIES:	RHONWOOD PTY LTD

		v

		NT LIQUOR COMMISSION
								First Defendant

					ERIC RAEBURN
						Second Defendant

					ROBYN DIANE POWER
						Third Defendant

TITLE OF COURT:	SUPREME COURT OF THE 
		NORTHERN TERRITORY

JURISDICTION:	ORIGINAL

FILE NO:	41/97 (9704757)

DELIVERED:	12TH JUNE 1997

HEARING DATES:	20TH MAY 1997

JUDGMENT OF:	MILDREN J

CATCHWORDS:

Administrative Law - NT Liquor Commission - suspended plaintiff’s liquor licence - employee failed to comply with s 121(1) - to remove intoxicated persons - was this a breach by the licensee - construction of s 121(1) - principles of vicarious liability in licensing cases - interpretation of s 124AAA(1).

Legislation

Criminal Code N.T.
Liquor Act N.T.

Cases

Underdown v Egan (1970) 15 FLR 495 applied
Raabe v Gee (1958) N.T.J. 566 considered
Mousell Brothers v London and North Western Railways [1917] 2 KB 836 applied
Text

Dr Glanville William Criminal law: The General Part 1953 Edition

REPRESENTATION:

Counsel:

	Plaintiff:	Mr A Wyvill
	First Defendant:	Mr S Southwood
	Second Defendant:	Mr S Southwood
	Third Defendant:	Mr S Southwood

Solicitors:

	Plaintiff:	James Noonan Solicitors
	First Defendant:	Solicitor for the Northern Territory
	Second Defendant:	Solicitor for the Northern Territory
	Third Defendant:	Solicitor for the Northern Territory

Judgment category classification:	B
Judgment ID Number:	970007
Number of pages:	10

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

No. 41/97 (9704757)

		BETWEEN:

		RHONWOOD PTY LTD
			Plaintiff

		AND:

		NORTHERN TERRITORY LIQUOR 
		COMMISSION
			First Defendant
					ERIC RAEBURN
						Second Defendant
					ROBYN DIANE POWER 
						Third Defendant

CORAM:	MILDREN J

REASONS FOR JUDGMENT

(Delivered 12 June 1997)

	This is an application for relief in the nature of certiorari directed at the decision of the Northern Territory Liquor Commission (the Commission) to uphold complaints laid by the second and third defendants, as a result of which the Commission suspended the plaintiff’s licence to sell liquor in respect of premises known as The Walkabout Arnhem Land Resort Hotel.

	The second and third defendants are Inspectors of Licensed Premises appointed pursuant to s 18 of the Liquor Act.  At about 2.00 am on 23 November 1996 these Inspectors, in the course of their duties, attended at the plaintiff’s premises in the course of which two persons who were intoxicated were found on the premises.

	The plaintiff’s nominee, Mr Don Miller, was not on the premises at the time.  The plaintiff’s premises have a number of bars.  It is not clear in which bar or part of the licensed premises these two persons were found.  The Inspectors spoke to a bar manager, a Mr Brett Ryan, who was on the premises; it is not clear precisely in what part of the premises he was at this time.

	It is not clear whether the complaint lodged by the second and third defendants to the Commission was made against the applicant or Mr Miller, or both, but nothing turns on this.  The complaint was lodged pursuant to s 48(2) of the Act.  The complaint does not specify adequately what the complaint is about, but again, no objection is taken to this.  It is clear that the parties understood the complaint to be that the licensee failed to comply with ss 121(1) of the Act.

	Section 121 of the Act provides:

“121.	POWER TO EXCLUDE OR REMOVE PERSONS

	(1)	A licensee or employee of the licensee shall, or an inspector may, exclude or remove a person, not being a bona fide resident of the licensee’s licensed premises, from the licensed premises if the person is intoxicated, violent, quarrelsome, disorderly or incapable of controlling his behaviour.
	(1A)	A licensee, an employee of the licensee or an inspector may exclude or remove from the licensee’s licensed premises -

	(a)	a bona fide resident of the premises, if that resident is intoxicated, violent, quarrelsome, disorderly or incapable of controlling his behaviour;

	(b)	subject to any other law in force in the Territory, any person (including a bona fide resident), if the presence or continued presence of the person on or at the premises would or might -

		(i)	render the licensee liable to a penalty under this Act or any other law in force in the Territory; or

		(ii)	in his opinion, disrupt the business of the licensee or unreasonably interfere with the wellbeing of other persons lawfully on the premises; or

	(c)	for or during a period not exceeding 12 months from the time a person was found guilty of any offence relating to the possession or supply of a drug on licensed premises, that person.

	(2)	A person to whom subsection (1) or (1A) is applicable shall immediately leave licensed premises on being requested to do so by the licensee, an employee of the licensee, an inspector or a member of the Police Force.

	(3)	A member of the Police Force shall, on the demand of the licensee, an employee of the licensee or an inspector remove or assist in removing from licensed premises a person who has been requested by the licensee, an employee of the licensee or an inspector in accordance with subsection (2), to leave the premises.

	(4)	A licensee, employee of a licensee, inspector or a member of the Police Force exercising a power under this section may use such force as is reasonably necessary for the purpose.”

	It was conceded before the Commission that s 121(1) had been breached by an employee of the applicant.  Who this employee was, is not identified.  

	The applicant’s argument before the Commission was that, as Mr Miller was absent from the premises at the time, even though he is deemed by virtue of s 25(3) of the Act to be the person licensed in respect of the premises, no breach of s 121(1) was committed by the licensee.  The Commission held, in effect, that s 121(1) imposed a strict obligation upon the licensee as well as upon the applicant’s employee, and as neither of them had excluded or removed from the premises the two intoxicated persons, a breach of the Act by the licensee had been proved.  Accordingly, the provisions of s 66(1)(b) permitted the Commission to suspend the applicant’s licence.

	I do not consider that the Commission’s construction of s 121(1) of the Act is correct.  First, it would require reading the word “or” as “and”, in order to cast an obligation on both the licensee and the employee.  Of course, it sometimes happens that “or” is interpreted to mean “and” or even “and/or”.  Mr Southwood, counsel for the defendants, submitted that the purpose of s 121(1) was to ensure that “intoxicated, violent and quarrelsome etc” persons were removed from licensed premises for the public good, and accordingly the interpretation contended for enhanced that purpose.  I do not accept that contention.  The Act does not require the licensee to be upon the premises at all times.  Although the Act contemplates that it is the licensee who is the person expected to conduct the business on the premises, it is plain that a licensee cannot be physically in every bar or part of the licensed premises at all times when the premises are open to the public.  He must, therefore, act through employees and rely on others, in the running of the business.  It is difficult to see how the purpose is enhanced by casting an obligation both on the licensee as well as the licensee’s employee.  Prima facie, the word “employee” would include anyone at all in the licensee’s employ, and is not restricted to say, the bar manager, and includes sub-contractors: see s 4(2).

	It is a reasonable assumption that those parts of the premises which are licensed and open to the public will not be left unattended by any member of the licensee’s staff.  Further, a breach of the section is a regulatory offence (see ss 124(1) and 124AA(1)) and no specific defence is provided by s 124AA to a licensee or employee that he was not on the premises at the time, did not know that the intoxicated person was there, and had taken reasonable steps to ensure s 121(1) was complied with: cf. the provisions of the former Licensing Ordinance 1939-69 considered by Blackburn J in Underdown v Egan (1970) 15 FLR 495.  

	It would seem an unduly harsh construction of s 121(1), not only to impose an offence upon the licensee, but on every employee of the licensee, including his sub-contractors, whether they were on the premises or not, and whether they knew of the existence of the intoxicated person’s presence or not.  Further, it is difficult to see how a person can exclude or remove another if the former is unaware of the latter’s existence.  Mr Southwood contended that ss 121(1) must be construed as being limited to those employees whose terms of employment require them to work in licensed areas, such as bar persons, waiters and waitresses, bar managers and the like, and subcontractors such as bouncers, and would not include porters, cleaners, receptionists, pool attendants, cooks or clerical staff; but even if this be so, the problem remains that it cannot have been the intention of the legislature that staff, not physically on the relevant part of the premises at the time, could commit an offence against s 121(1) when they are fast asleep in their beds.  And if this is so in relation to the staff, why should it not also be so with the licensee? Mr Southwood suggested a further limitation, so far as employees are concerned, namely that they must be acting in the course of their employment.  But if that be so, why should it not be so with the licensee as well, if the licensee is not performing his employment duties, because he is on leave, asleep, or otherwise engaged in doing something else?  Mr Southwood suggests that the difference is that the licensee is the person responsible for the management of the business, and so he is, but unlike earlier and more draconian legislation, the Liquor Act no longer requires the licensee to be personally present on the premises at all times when the licensed areas of the premises are open to the public, or even to reside on the premises, and this Act imposes the obligation not just on the licensee, but on the licensee or his employees.  I think the legislature had in mind the practical difficulties and injustice likely to be caused, and sought to impose the obligation upon the person, whether it be the licensee or his employee, in the relevant part of the premises at the relevant time.

	Further support for this view is to be found in s 123A which provides:

“Where the actions of a person employed by a licensee would constitute an offence against this Act, the licensee may be prosecuted for the offence (whether or not the person employed is also prosecuted) as if the licensee had personally performed those actions.”

	This section applies only to “actions”, not to omissions, or the non-performance of a duty, and as the draftsman would be perfectly well aware of the difference between an act and an omission, I infer that the failure to cast a similar obligation upon licensees for the omissions of others is deliberate.

	Alternatively, Mr Southwood sought to support the Commission’s decision on the basis that, on the true construction of the Act, a licensee is vicariously liable for the acts and omissions of his employees.  He referred me the judgement of Kriewaldt J in Raabe v Gee (1958) N.T.J. 566, for the proposition that, this being a breach of a licensing law, vicarious liability can be inferred, as a matter of construction.

	The principles pursuant to which the question of whether or not vicarious liability, in licensing cases, may be imputed to licensees are discussed in a number of authorities to which Kriewaldt J referred at length in his judgement.  In summary, they may be stated as follows.  First, the prima facia rule is that a master is not to be made criminally liable for the acts of his servant.  Secondly, it is only in those cases, where there is an absolute prohibition or duty created by the statute that an exception may arise.  Thirdly, whether the Act has this effect or not depends on “the object of the statute, the words used, the nature of the duty laid down, the person upon whom it is imposed, the person by whom it would in ordinary circumstances be performed, and the person upon whom the penalty is imposed: Mousell Brothers v London and North Western Railways [1917] 2 KB 836 at 845 per Atkin J (as he then was).  In the development of those principles, it was long recognised that licensees were not to be held liable for every act of their servants, but only for those acts which were within the scope of their servant’s employment.

	Assuming that the obligation cast was one of absolute duty, (which I do not accept), and that it was within the scope of the employment of, say, a barman to “exclude” or “remove” an intoxicated person on the licensed premises, but he failed to do either, should the subsection be construed as casting a breach of the duty upon the licensee, even though he was not present?  For the reasons given, the object of the statute is not enhanced by doing so.  The law has already cast the obligation on the barman, and imposed a penalty upon him for not doing so.  The words used by the statute, in their ordinary meaning, do not do so.  The penalty is not imposed upon the licensee vide s 123A.  Ordinarily the duty would be performed by the person in charge of the bar who was physically present.  Applying the tests suggested by Atkin J there is no vicarious liability on the part of the licensee.  I should also add that there is nothing to show that the Commission concluded that the employee who admittedly breached s 121(1) did so at the behest of the licensee, or that his acts can be attributed to the licence by reliance upon the principle of qui facit per alium facit per se.
	Further, although it is not necessary to do so, I doubt whether a principal can be held vicariously liable in the Northern Territory, in view of s 2 of the Criminal Code, except as provided by the Code itself (c.f. ss 8, 12 and 13, none of which apply to this case) or except as may be provided for expressly by the legislature.  I agree with Dr Glanville William’s comment in Criminal Law: The General Part, 1953 Edition, para 85, quoted with approval by Blackburn J in Underdown v Egan, supra, at 499, that the principle of construction applying vicarious liability to public licensees is one “which ought never to have been introduced.”

	Finally, although the point was not argued, I express my doubts about whether the Commission was in any event empowered to reach a finding that a breach of s 121(1) had occurred and suspend the licence, in view of the provisions of s 124AAA(1) of the Liquor Act.  That subsection would seem to imply a power of suspension for a breach of s 121(1) only in relation to a finding of guilt of a licensee by a court, and then only for the maximum periods prescribed by s 124AAA(2).  It is to be noted that in this case, not only was there no finding of guilt by a court, but the period of the suspension imposed appears to have exceeded the maximum permitted by s 124AAA(2)(a).  However, I make no formal pronouncement on this point, which can await another day.

	It is not in contention that, if the Commission misconstrued s 121(1), and had wrongly found that the plaintiff had committed a breach of the Act, it lacked power to suspend the plaintiff’s licence, and certiorari would lie.

	Accordingly, the decision of the Commission is quashed, and the defendants are ordered to pay the plaintiff’s costs.