Woolworths Ltd v Liquor Licensing Board [1998] ACTSC 198 (27 April 1998)

  
  
  
  

  
   

  

   IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

   GALLOP J

  

  

   APPEAL - decision
of the Liquor Licensing Board to give directions to the
appellant - review of that decision by the Administrative Appeals Tribunal,
ACT - appeal to this Court from the decision of the Tribunal.

  

   LIQUOR - sale by an employee of the appellant to a person under
the age of
18 years - vicarious liability of the appellant - defence of responsible
precautions and due diligence - making thereof
- defence made out.

  

   ADMINISTRATIVE LAW - failure of the tribunal to consider material facts.

  

   Administrative Appeals Tribunal Act 1989 (ACT), s46

   Liquor Act 1975 (ACT), ss46, 80, 104B

   Insurance Contracts Act 1984 (Cth)

  

  

   Universal Telecasters (Qld) Ltd v Guthrie [1978] FCA 8;  (1978) 18 ALR 531; 32 FLR 360,
referred to

   Collector of Customs v Pozzolanic [1993] FCA 456;  (1993) 43 FCR 280, followed

   Tesco Supermarkets v Nattrass [1971] UKHL 1;  [1972] AC 153, referred to

   Sullivan v Department of Transport (1978) 20 ALR 323, referred to

  

  

   CANBERRA, 20, 21 April
1998 (hearing), 27 April 1998 (decision)

   #DATE 27:04:1998

  

   Appearances

   Counsel for the Appellant: Mr J Purnell, SC
with

   Mr D Mossop

   Instructing Solicitors: Minter Ellison

  

   Counsel for the Respondent: Mr P Walker

   Instructing Solicitors:
Government Solicitor for the Australian Capital
Territory

  

  

  

   Order:

   1. The appeal be allowed.

   2. The decision
of the Tribunal be set aside.

   3. The decision of the Liquor Licensing Board be set aside.

  

  

  

   GALLOP J

   1. This
is an appeal from a decision of the Administrative Appeals Tribunal
(the Tribunal) delivered on 17 October 1997. The decision of
the Tribunal was
to affirm the decision of the Liquor Licensing Board (the Board) to give a
direction to the appellant, to set aside
the direction actually given and to
return the matter to the Board to work out the terms of a direction in
accordance with the parameters
suggested by the Tribunal.

  

   2. The appellant appeals to this Court pursuant to s46 of the
Administrative Appeals Tribunal Act 1989 (ACT) which provides for a right of
appeal on a question of law from any decision of the Tribunal. The decision of
the Tribunal was
given by way of review of a decision of the Board to issue a
direction to the appellant pursuant to s46(1) of the Liquor Act 1975 (ACT).
The Board had conducted an enquiry pursuant to Part XII of the Liquor Act and
after considering the matter, the Board issued directions to the appellant
pursuant to s46B(2) of the Liquor Act on the grounds that the appellant had
contravened a provision of the Act namely, that it did at about 8.30pm on 17
November 1995
sell liquor to a person under the age of 18 years contrary to
s80(1) of the Liquor Act.

  

   3. The subject sale was made by an employee of the appellant, Mr
Livingstone, who was working on a register in the liquor
section of the
appellant's Dickson store for the first time that evening. There was no
dispute about the sale or the circumstances
in which it took place. The issues
before the Board and on review before the Tribunal focussed on whether the
appellant had established
that reasonable precautions had been taken and due
diligence had been exercised by the appellant to avoid the under age sale that
evening. An offence against s80 of the Liquor Act is an absolute offence
tempered only by subs2 which is in the following terms, " (2) It is a defence
in proceedings for an offence
against subsection (1) if the defendant proves
that -

   (a) the person to whom the liquor was sold or supplied was not less than
16
years of age; and

   (b) at the time the liquor was sold or supplied, that person had displayed
to the defendant identification
of a kind referred to in subsection (2A).

   (2A) For the purposes of subsection (2), the identification is an item that
-

   (a)
contains information that indicates that the person displaying it is 18
years of age or more;

   (b) contains a photo that could
reasonably be taken to be the person
displaying it; and

   (c) is 1 of the following:

   (i) a licence issued under the Motor Traffic
Act 1936;

   (ii) a proof of age card;

   (iii) a document equivalent to a document referred to in subparagraph (i)
or (ii) that
has been issued in a State or another Territory;

   (iv) a passport." Section 104B(3) relates to the Conduct of directors,
servants
and agents and reads,

   " (3) Any conduct engaged in on behalf of a body corporate or a natural
person by a director, servant or
agent of the body, or a servant or agent of
the person, within the scope of his or her actual or apparent authority is to
be taken,
for the purposes of this Act, to have been engaged in also by the
body or person unless the body or person establishes that reasonable
precautions were taken and due diligence was exercised to avoid the conduct."
The Board was not satisfied that the appellant had
established that it took
reasonable precautions and exercised due diligence to avoid the conduct. On
review, the Tribunal likewise
was not so satisfied. The Tribunal had before it
the transcript of the proceedings before the Board and additional oral and
documentary
evidence. It made certain findings of fact. It found that,

   "... Mr Livingstone worked his first shift in the liquor section on
the
Friday in question, starting about 4 pm in the afternoon. He was called in
because another, experienced, employee was not able
to be at work that
afternoon. Earlier that week he had received training elsewhere in the store,
including training on the cash registers
used in the general section of the
store. There was some uncertainty as to whether he had any training in respect
of the liquor section
before the Friday, but ... he had not received specific
training on the register in the liquor section until the Friday afternoon.
The
registers in the liquor section differed from the registers in the general
section of the store in that they were designed to
throw up a warning signal
which said "Check ID" when sales of certain kinds of liquor likely to be
bought by under-age persons were
rung up. ... on that afternoon, if not
earlier, Mr Livingstone was told about his obligations with respect to
under-age sales, including
Woolworths' policy that no sale should be made to a
person who appeared to be under 21 without requesting ID. ... he did not,
until
after the sale in question took place, sign a declaration stating that
he understood that he was not to sell liquor to persons under
18 and that he
was to ask for proof of evidence of age from any person who did not look to be
more than 21." 7. After observing that
it was a busy evening when it was known
by the manager of the liquor section that there was likely to be trouble with
young people
because of some function that was being held that night, the
Tribunal reviewed some of the evidence as follows, "Mr Morey (the Manager
of
the liquor section) gave evidence, both before the Board and before the
Tribunal, that he thought there was likely to be some
trouble that evening and
that he warned his staff accordingly. He also gave evidence that when Mr
Livingstone was put on the register
about 7 pm he stood watching him for some
45 minutes, perhaps an hour, to see how Mr Livingstone performed. Mr Morey
said that he
considered that Mr Livingstone was competent, and capable of
being left to work the register without that kind of close supervision.
Moreover, working next to Mr Livingstone on another register was Mr Mether, an
experienced employee, who was asked to keep an eye
on Mr Livingstone. Mr
Livingstone was told that he should look to Mr Mether for help if he were in
any difficulty. Mr Morey and another
experienced employee were available also
to give assistance, but were in fact engaged in other duties in the liquor
store that evening.

   There was some dispute as to whether Mr Livingstone was given any specific
instructions as to what features to look for in assessing
whether a customer
was under 21, such as height, appearance and weight but I think on balance
that he probably was told this. The
critical issue, I believe, is that the
making of these judgments is a matter of experience. Mr Meagher, who had
territory-wide responsibility
for Woolworths' liquor stores, told the Tribunal
that a person like Mr Mether, who was a student and who had siblings of his
own,
was the kind of person he would look to employ because of his experience
with young people. Mr Morey was adamant that, in his judgment,
Mr Livingstone
was capable of being on a register that evening notwithstanding his limited
training and lack of experience. That
may well have been his judgment, but the
issue before the Tribunal is whether, in his forming that judgment and putting
Mr Livingstone
on the register, Woolworths had taken reasonable precautions
and had exercised due diligence to avoid the under-age sale of liquor.
The
evidence showed that another experienced employee was available to fill in for
the person unable to come to work and that, indeed,
it was the normal practice
for this to happen. The only explanation given for not following this practice
was that Mr Morey had thought
Mr Livingstone to be capable of doing the job he
was asked to do.

   Evidence was given to the Board by Ms Ven, the liquor manager
at the
Woolworths' Belconnen Mall store, who had previously been liquor manager at
the Dickson store. Ms Ven was not called by Woolworths
to give evidence before
the Tribunal, but the transcript of her evidence to the Board is, of course,
in the T documents and is, in
that form, part of the material available to the
Tribunal. In her evidence, Ms Ven described the policy for staff training at
Dickson
during her time there. She told the Board,

   "They were given check out training, basically, out in the checkout area by
the store
staff trainer. They would then spend, approximately, four hours in
the liquor department learning the register in training, not actually
serving,
and once they had completed their eight hours basic training, they were then
utilised in the department under supervision
at least for five or six shifts
by myself."" 8. The Tribunal then said that in putting an operator without
previous experience and
after only a brief training on a liquor register, on
such a register for the first time on a busy Friday evening when trouble was
expected, Woolworths had not fulfilled their obligation to take reasonable
precautions and to exercise due diligence to prevent the
sale of liquor to
under-age persons. The Tribunal said this conclusion was adequately
established by the evidence and the fact that
Mr Morey (the manager of the
liquor section) formed a judgment to the contrary did not constitute a
reasonable precaution or due
diligence. He ought not to have taken the risk
and he ought to have followed the practice of having a more experienced
employee take
over the register on the night in question. After referring to
Universal Telecasters (Qld) Ltd v Guthrie [1978] FCA 8;  (1978) 18 ALR 531 at 534;  [1978] FCA 8; 32 FLR
360, the Tribunal held that Woolworths failed to ensure that an inexperienced
operator was not put on a liquor register at
a busy time and having put Mr
Livingstone on the register on the evening in question, the degree of
supervision was inadequate to
ensure that he did not fail to avoid under-age
sales."Grounds of Appeal" 9. By its amended notice of appeal, the appellant identified
many grounds of appeal which it contended raised questions of law. I do not
propose to set out at length the grounds relied upon.
The attack upon the
Tribunal's decision was, in effect, that the Tribunal applied the wrong test
in considering the question whether
the appellant had taken reasonable
precautions and exercised due diligence in the conduct of its business and the
measures it had
in place to ensure that offences against the Liquor Act, in
particular sales to under-age persons, did not occur. It was further argued
that the Tribunal failed to take into account the
totality of the evidence
before it in relation to the system employed by the appellant to combat
under-age drinking."A question of
law or fact?" 10. In my opinion, and despite the submissions on
behalf of the respondent to the contrary, those grounds do raise
questions of
law and accordingly the appeal properly lies. It is well recognised that it is
often difficult to discern whether litigation
involves a question of law or
fact. Many attempts have been made to state the principles for resolving that
sort of issue. The leading
case, it seems to me, is Collector of Customs v
Pozzolanic [1993] FCA 456;  (1993) 43 FCR 280. A Full Court of the Federal Court (Neaves,
French and Cooper JJ) identified five general propositions which
emerge from
the cases. The fifth such proposition is that the question whether facts fully
found fall within the provision of a statutory
enactment properly construed is
generally a question of law: Hope v Bathurst City Council [1980] HCA 16;  (1980) 144 CLR 1 at
7 per Mason J with whom Gibbs, Stephen, Murphy and Aickin JJ agreed;
Australian National Railways Commission
v Collector of Customs (SA) [1985] FCA 312;  (1985) 8
FCR 264 at 379 (Sheppard and Burchett JJ). The Court also said, at 286, that,

   "The appealable error of law must arise
on the facts found by the Tribunal
or must vitiate the findings made or must have led the Tribunal to omit to
make a finding it was
legally required to make ." (My emphasis.) 12. As is
apparent from what is set out above in respect of the Tribunal's findings of
fact, the Tribunal did make certain findings of fact, but did not make
findings in respect of all aspects of the appellant's system
to ensure that
under-age sales did not occur."Reasonable precautions and due diligence" It was common ground that the
Tribunal purported
to apply the test for determining whether a defence of
reasonable precautions and due diligence had been made out as laid down in
Universal Telecasters (Qld) Ltd v Guthrie (supra) per Bowen CJ at p534,

   "The second aspect concerns the defence under s 85(1) that Universal
Telecasters "took reasonable precautions and used due diligence". While these
are plain English words, which have
to be applied as they stand, it appears to
me that two responsibilities which Universal Telecasters would have to show it
had discharged,
in order to establish this defence, would be that it had laid
down a proper system to provide against contravention of the Act and
that it
had provided adequate supervision to ensure the system was properly carried
out. Universal Telecasters did institute a system
and did provide for
supervision. The mere fact that its system and supervision has proved
inadequate to prevent error, does not necessarily
establish that its system is
defective. Even the best systems may break down due to human error. It is
necessary to make a judgment
about the system and the provision for
supervision." 14. In that case, the appellant had been convicted on a charge
under s53(e) of the Trade Practices Act 1974 (Cth) which prohibits the making
of false or misleading statements concerning the existence of or amounts of
price reductions. In
defence, the appellant sought to rely upon s85(1), which
provides a defence where the defendant establishes that the contravention was
due to reliance on information supplied by another
person or to the act or
default of another person, and that he had taken reasonable precautions and
exercised due diligence to avoid
the contravention. The Court held that the
appellant had not established a defence under s85(1) since it had not taken
reasonable precautions to avoid the contravention. In purporting to apply the
test laid down in Universal
Telecasters (Qld) Ltd v Guthrie, the Tribunal said
at p426.3 of the Appeal Book,

   "In Universal Telecasters (Qld) Ltd v Guthrie
... Bowen CJ held that the
expression "due diligence" in a parallel provision in the Commonwealth Trade
Practices Act was to be taken to require (1) the establishment of a proper
system to provide against contravention of the statute, and (2) the
provision
of adequate supervision in the operation of that system. In the present case,
Woolworths failed to ensure that an inexperienced
operator was not put on a
liquor register at a busy time. Having put Mr Livingstone on the register on
the evening in question, the
degree of supervision provided was inadequate to
ensure that he did not fail to avoid under-age sales." 16. It was submitted on
behalf
of the appellant that in that passage of its judgment the Tribunal had
clearly misconceived the proper test or failed to apply it
properly. The focus
of the Tribunal's decision in that passage is directed to the circumstances
surrounding the non-compliance rather
than the system put in place by the
appellant to prevent such non-compliance. It was submitted that, insofar as
the Tribunal refers
to supervision of staff to ensure that breaches did not
occur, the Tribunal has misapprehended the proper test. The test does not
relate to supervision of staff to ensure that breaches do not occur but to
supervision of staff to ensure that the system is complied
with.

  

   17. It was further submitted that the Tribunal incorrectly equated a
failure of judgment of one of the appellant's
employees with a lack of due
diligence on the appellant's part. The Tribunal failed to distinguish between
those matters which formed
part of the system and the merits of the judgments
made by individual employees.

  

   18. The relevant question is not " Did the
employees make the correct
judgment in the circumstances?". The very existence of the due diligence
defence makes it clear that they
may not have. Rather the question is "Was the
system put in place that relied upon the judgments of those employees an
objectively
reasonable one to ensure compliance?" If the Tribunal had
correctly perceived the test to be applied, it would not have identified
the
question as it did. The correct question was whether the system of relying on
Mr Morey to make a judgment based on the demonstrated
competence of the
employee was a reasonable one to ensure compliance. A mere error of judgment
by an employee cannot construe a lack
of diligence on the part of an employer
if it is reasonable for an employer to establish a compliance system that
relies upon the
employee making that judgment.

  

   19. In Universal Telecasters (Qld) Ltd v Guthrie the court referred to
Tesco Supermarkets
v Nattrass [1971] UKHL 1;  [1972] AC 153. That was a case where the
defendants, a body corporate owning supermarket stores, were charged with an
offence under
the Trade Descriptions Act 1968 (UK). They sought to raise a
defence under s24(1) on the grounds that the commission of the offence
was due
to the act or default of another person, namely, the manager of the store at
which it was committed, and that they had taken
all reasonable precautions and
exercised all due diligence to avoid the commission of such an offence. The
defendants were convicted
before justices who found nevertheless that the
defendants had set up a proper system so that they had complied with s24(1)(b)
and
that the manager had failed properly to carry out his part in the
operation of the system, the commission of the offence being due
to his act or
default in failing in his duty of supervision. The defence failed on another
aspect. On appeal, the Divisional Court
dismissed the appeal against the
finding on that other aspect and also held that the defendants had not made
out the defence provided
by s24(1).

  

   20. On appeal to the House of Lords, it was held that the defence of all
reasonable precautions and all due diligence
had been made out and the appeal
was allowed. At p179, Lord Morris of Borth-y-Gest posed the question of how a
company takes all
reasonable precautions and exercises all due diligence. He
said, "The very basis of section 24 involves that some contraventions
of the
Act may take place and may be contraventions by persons under the control of
the company even though the company itself has
taken all reasonable
precautions and exercised all due diligence and that the company will not be
criminally answerable for such
contraventions." Later, at p181, his Lordship
said,

   "If the company had taken all reasonable precautions and exercised all due
diligence to ensure that the machine could and should run effectively then
some breakdown due to some action or failure on the part
of "another person"
ought not to be attributed to the company or to be regarded as the action or
failure of the company itself for
which the company was to be criminally
responsible. The defence provided by section 24(1) would otherwise be
illusory." The appellant
also relied upon the following passage from the
speech of Lord Diplock at p203,

   "Where Parliament in creating an offence of "strict
liability" has also
provided that it shall be a defence if the person upon whom the duty is
imposed proves that he exercised all
due diligence to avoid a breach of the
duty, the clear intention of Parliament is to mitigate the injustice, which
may be involved
in an offence of strict liability, of subjecting to punishment
a careful and conscientious person who is in no way morally to blame.
To
exercise due diligence to prevent something being done is to take all
reasonable steps to prevent it. It may be a reasonable step
for an employer to
instruct a superior servant to supervise the activities of inferior servants
whose physical acts may in the absence
of supervision result in that being
done which it is sought to prevent. This is not to delegate the employer's
duty to exercise all
due diligence; it is to perform it. To treat the duty of
an employer to exercise due diligence as unperformed unless due diligence
was
also exercised by all his servants to whom he had reasonably given all proper
instructions and upon whom he could reasonably
rely to carry them out, would
be to render the defence of due diligence nugatory and so thwart the clear
intention of Parliament
in providing it." 23. In answer to the submissions on
behalf of the appellant directed to the Tribunal's failure to apply the test
for due diligence properly, counsel for the respondent submitted that before
the Tribunal the appellant had not argued that Mr Morey's
failure to supervise
Mr Livingstone did not demonstrate reasonable precautions and due diligence.
The case was conducted by the appellant
before the Tribunal, so it was
submitted, on the basis that Mr Morey's assignment of Mr Livingstone to cash
register duties in the
liquor section of the supermarket was reasonable in all
the circumstances and that the Tribunal was not asked to find that the defence
was made out notwithstanding Mr Morey's failure properly to supervise Mr
Livingstone. I do not think that that criticism is valid.
I was referred to
the appellant's written submissions (Exhibit 1 before me) and to passages of
the transcript before the Tribunal
where counsel for the appellant addressed
the Tribunal on the basis that even if Mr Morey had made a mistake that did
not necessarily
indicate a lack of reasonable precautions and diligence. See,
for example, pages 379, 382, 415 and 416-7 of the Appeal Book. In my
view,
failure to raise the defence before the Tribunal would not impede an appeal to
this court on a demonstrated error of law. 25.
In my opinion, the grounds of
appeal directed to the application of the wrong test or the wrong application
of the proper test by
the Tribunal have been made out. Further, in my opinion,
the Tribunal gave too much weight to the fact that the system broke down
at
the point of sale and in adopting as the issue before it whether Mr Morey, in
forming a judgment that Mr Livingstone was capable
of being on the register
and putting him on the register, the appellant had taken reasonable
precautions and exercised due diligence
to avoid the under-age sale of liquor.
I would allow the appeal on those grounds alone, but there are other reasons
why the appeal
should be allowed. 27. The Tribunal did not make a total
assessment of the appellant's system. Its approach was simply to look at
the
failure that occurred in the sale by Mr Livingstone and to conclude that the
system was not adequate on that account. That approach
would only be correct
if the failure involved in the sale was such that no system that could involve
such a failure could constitute
the exercise of due diligence. For example, a
complete failure to advert to the question of compliance with s80 of the
Liquor Act would not amount to due diligence to prevent breaches of s80 and
the Tribunal would be justified in not examining the scope of the system
further. However, that was not the case. Although Mr
Livingstone was
relatively inexperienced, the system provided for him to have had previous
register training such that he was aware
of his obligations not to sell to
persons under 18 years. He had been observed for half to one hour by Mr Morley
in the operation
of the register and had been assessed to be competent. Whilst
on the register, he was supervised by another experienced employee
(Mr Mether)
during the relevant period.

  

   28. It does not appear that the Tribunal had regard to those specific
measures which
were part of the appellant's system to ensure compliance. The
Tribunal was under an obligation to give reasons for its decision including
findings of material questions of fact (the Administrative Appeals Tribunal
Act 1989, s44(4)). The absence of any finding as to the appellant's overall
system indicates a failure to have regard to matters which, had the correct
approach been adopted, would have been central to the defence of due
diligence.

  

   29. A similar approach by the Commonwealth
Administrative Appeals Tribunal
was roundly criticised by a Full Court of the Federal Court in Sullivan v
Department of Transport
(1978) 20 ALR 323. After referring to the identical
statutory requirement in the Administrative Appeals Tribunal Act 1975 (Cth),
Deane J, at p348-349 identified the failure of the Tribunal to direct its
attention to the considerations properly relevant
to the determination of the
matter before it and said that the consequence of that failure was that the
proceedings before the Tribunal
miscarried in that the Tribunal failed to
deal, by reference to the relevant considerations, with a matter which arose
for its determination
and which it purported to determine.

  

   30. I refer also to the remarks of Fisher J at p352-353 where he said in
that case that,
insofar as the Tribunal had not made any findings of material
facts, it must have considered that such facts were not material. As
facts
were material, the Tribunal had failed to take account of material facts and
in so doing, erred in law. In my opinion, the
same situation has arisen in
this matter before the Tribunal and that is another ground why the appeal
should be allowed."Powers
of the Supreme Court on appeal" Section 46(5) of the Administrative
Appeals Tribunal Act 1989 provides as follows,

   " (5) The Supreme Court shall hear and determine the appeal and may make on
the appeal-

   (a) an order
affirming or setting aside the decision of the Tribunal;

   (b) an order remitting the case to be heard and decided again, either
with
or without the hearing of further evidence, by the Tribunal in accordance with
the directions of the Court; or

   (c) such
other order as the Court, in its discretion, thinks appropriate
having regard to its decision." 33. The appellant urged that if the
appeal was
allowed, this Court should finally dispose of the matter rather than remit it
to the Tribunal for further hearing. Having
regard to the fact that the
proceedings have already been heard by the Liquor Board and the Tribunal, it
was submitted that it was
in the interests of both parties for the matter to
be finalised by this Court. That course was not opposed by the respondent if
the
appeal is to be allowed. Accordingly, I proceed to consider whether the
defence of reasonable precautions and due diligence was established
on the
evidence before the Tribunal. 35. There was extensive evidence before the
Tribunal about the system which the appellant had
in place to ensure
compliance. In the first place, the evidence before the Board was before the
Tribunal. That evidence itself was
quite extensive. It included the evidence
of Mr Mether, an employee of the appellant. He gave evidence of the training
he was given
by the appellant before he started selling liquor. His evidence
established that the appellant had in place a system of videos for
the
instruction of staff and brought to the attention of its staff the necessity
to check the age of purchasers so as to ensure that
under-age sales did not
take place.

  

   36. Special memoranda were circulated to staff and they were required to
sign as an indication
that they had perused the memoranda. Special precautions
in this respect were taken. In respect of the month of November 1995, because
of the end of year parties to be expected and the likelihood that persons of
school-leaving age might endeavour to purchase alcohol,
the evidence also
established that the appellant employed responsible staff with considerable
experience in the trade being persons
who were well aware of their
responsibilities in relation to the sale of liquor to juveniles. The appellant
had stressed at frequent
intervals its policy that the staff must be careful
to ensure that liquor not be supplied to juveniles and in case of doubt,
identification
was to be called for. Further, that in the absence of such
identification proving that the customer was of full age, service was
to be
refused. There were ongoing reminders to staff of legal obligations, orally,
by automatic register reminders, staff meetings,
circulation of reminders from
the liquor authorities, a communication book, training manual and the
abovementioned staff declarations.
38. That sort of evidence was repeated on
the hearing before the Tribunal in the form of oral evidence from responsible
staff of
the appellant and the production of documents. The evidence before
the Tribunal, if not before the Liquor Board, established that
the appellant
caused to be prominently displayed notices confirming the requirement that
young people produce identification if any
doubt as to their age was
entertained.

  

   39. There was extensive signage within the shop in relation to the
prohibition of
sales to persons under 18 and the requirement to provide
identification. The staff were aware of their obligations. They were
continually
reminded by the "check identification" alarms on the cash
registers. The enforced policy was that if there was any doubt as to whether
a
person was under 21, then identification should be requested. In other words,
the age of 21 rather than 18 years was chosen in
order to minimise the risk of
sales to persons under 18 years.

  

   40. The liquor store itself was separate from the supermarket
contrary to
the situation in other establishments. The effect of that was to increase
control over liquor sales and hence prompt
compliance with the law. Shortly
before the subject sale, the appellant had held a special meeting of staff
members at which they
were again reminded of the need for great care to be
taken to avoid the sale of liquor to juveniles. On the very evening in
question,
Mr Morey had warned staff of the possible presence of juveniles.
That staff included Mr Livingstone.

  

   41. I have not reviewed
all the evidence of the system because it was so
extensive. Suffice it to say that it might reasonably have been inferred from
the
whole of the evidence that the appellant's compliance system was of a
higher standard than of other licensees in Canberra. No suggestion
was made to
the contrary.

  

   42. I conclude that if the Tribunal had considered all the material facts
and not failed to take
account of material facts, it must have come to the
conclusion that the appellant took reasonable precautions and exercised due
diligence
to avoid the under-age sale which took place. It is appropriate
therefore to allow the appeal, set aside the decision of the Tribunal
and make
the order which the Tribunal should have made in all the circumstances,
namely, to set aside the decision of the Liquor
Licensing Board to give a
direction to the appellant. I shall hear counsel on the question of costs.