Penplay Pty Ltd v Independent Liquor and Gaming Authority [2023] NSWCATAD 52

Penplay Pty Ltd v Independent Liquor and Gaming Authority [2023] NSWCATAD 52

A hotel licensee does not commit a category 2 demerit offence nor incur demerit points within the meaning of section 144C of the Liquor Act 2007 (NSW) unless the licensee has itself been convicted, issued a penalty notice, or had a penalty enforcement order made in respect of the relevant offence; the commission or payment of a penalty notice by an employee does not suffice to trigger the demerits regime against the licensee without due process against the licensee.

Parties
Applicant: Penplay Pty Ltd; Respondent: Independent Liquor and Gaming Authority
Jurisdiction
Australia
Judgment Date
10 March 2023
Procedural Posture
Administrative Review / Merits Review; Decision After Hearing
Outcome
The Respondent's decision is set aside; no substitute order imposed.
Legal Topics
Demerit Points Regime, Vicarious Liability, Statutory Construction, Remedial Actions Under Liquor Act, Issuance of Penalty Notices
Administrative Law Liquor Licensing Demerit Points Regime Vicarious Liability Statutory Construction Remedial Actions Under Liquor Act Issuance of Penalty Notices

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Parties

Penplay Pty Ltd

Applicant

Independent Liquor and Gaming Authority

Respondent

Procedural Posture

Administrative Review / Merits Review; Decision After Hearing

Legal Issues

  1. 1 Whether a licensee can commit a category 2 demerit offence and be subject to remedial action under section 144T of the Liquor Act 2007 (NSW) in the absence of a conviction, penalty notice or court attendance notice having been issued to the licensee; whether demerit points are automatically incurred by a licensee when an employee has received and paid a penalty notice for selling liquor to a minor but no penalty notice or court attendance notice has been issued to the licensee; proper construction of Part 9A and section 149 of the Liquor Act; whether the Tribunal may impose conditions on the licence under section 53 of the Liquor Act and section 63(2) of the ADR Act

Ratio Decidendi

A hotel licensee does not commit a category 2 demerit offence nor incur demerit points within the meaning of section 144C of the Liquor Act 2007 (NSW) unless the licensee has itself been convicted, issued a penalty notice, or had a penalty enforcement order made in respect of the relevant offence; the commission or payment of a penalty notice by an employee does not suffice to trigger the demerits regime against the licensee without due process against the licensee.

Court Disposition

The Respondent's decision is set aside; no substitute order imposed.

Orders

  • The Respondent's Decision under review is set aside.