QUESTION 1 DOCTRINE OF PRECEDENT

Judge Windu of the District Court of Queensland has to decide whether a

nightclub can be liable for the actions of its patrons. The plaintiff in the
present case was threatened and physically assaulted by a patron of the
Chalmuns Cantina, a nightclub that serves dinner to its patrons on the
footpath outside the club.

The Cantina has a licence to serve food and

beverages on the footpath. Mr Ponda had been drinking heavily at a table

situated on the footpath of the club. When he saw Mr Greedo (the plaintiff)
walk past his table, he yelled obscenities at him and threatened to turn him
into Bantha Fodder (a foul smelling mush).
Greedo and punched him in the stomach.

He then chased after Mr

Independent of any criminal

action, Mr Greedo has brought an action (for damages of $230,000) against

the Chalmuns Cantina, on the basis that they breached a duty of care
owed to him, by failing to monitor the drunken state of their patrons eating
and drinking on the footpath.

You may assume that there is no Commonwealth or State legislation that

relates to the issue and that the issue is governed by the common law.
There are six decisions on not materially different facts that have been
handed down by other Courts:

1.

Finn v Rey Nightclub, a 1969 decision of the Privy Council, on appeal

from the High Court of Australia, which held that damages could be
obtained against a nightclub for not monitoring the drunken state of its
patrons.

2.

Hans v Chewies Good Time Bar, a 1971 decision of the Full Court of
the High Court of Australia on appeal from the Tasmanian Court of Appeal.
The Court held that damages could not be recovered against a club that did
not monitor the alcoholic intake of its customers.

Entertainment Premises Control Act 2013

3.

Kylo Ren v Poes Drinking House, a 1972 decision of the District Court
of Queensland which held that a club could not be liable for failing to
monitor its patrons.

4.

Kanata v Wookies Den of Sin, a 2004 decision of the Full Court of the
High Court of Australia on appeal from the South Australian Court of
Appeal. In this decision, the High Court was comprised of six members due
to illness.

The ultimate decision of the court was that a nightclub is

responsible for monitoring the drunken state of its customers. The Court
however was evenly split in reaching this decision. The decision of the High
Court explicitly mentioned the earlier High Court decision of Hans v
Chewies Good Time Bar, but refused to follow it.

5.

Abrams v Lucas Watering Hole, a 2013 decision of the Queensland

Court of Appeal which held, in a unanimous judgment, that a nightclub
cannot be held liable for the monitoring of patron intoxication whilst eating
and drinking on a footpath. The Court did not refer to Kanata v Wookies
Den of Sin.

6.

Beebop v Rocksteady Club, a 2015 decision of the Victorian Court of

Appeal, which held that a nightclub cannot be held liable for failing to
monitor its drunken patrons. No reference was made to previous cases,
apart from Abrams v Lucas Watering Hole.

Which case should Judge Windu of the Queensland District Court

follow? Why?
[18 marks]

Entertainment Premises Control Act 2013

Question 2 Court

(a) Referring to
does the
jurisdiction to

Hierarchy

question one, why

District Court have
hear this matter?

(b)If one of the

parties wanted to
appeal the
ultimate decision of
Judge Windu in
the District Court,
which court
would they
immediately appeal to? Would the unsuccessful party need leave or
approval to make this appeal?
[2 marks]

Question 3 Statutory Interpretation

See over page. You may assume that the following statute has been
validly passed by the Queensland Parliament and is within its
constitutional power.

Entertainment Premises Control Act 2013

QUEENSLAND

Entertainment Premises Control

Act 2013
Current as at 29 May 2015
[Assented to 12 February 2013]

Entertainment Premises Control Act 2013

Queensland

Entertainment Premises Control

Act 2013
Contents
Page
Part 1

Preliminary

Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3

Main objects . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3

Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3

Part 2

Responses to physical and verbal incidents

Requirement not to use excessive force . . . . . . . . . . . .

4

Penalty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4

Part 3

Noise minimisation

Regulation of music noise . . . . . . . . . . . . . . . . . . . . . . . .

4

Defences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4

Entertainment Premises Control Act 2013

Part 4

Glassing offences

Intentional injury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5

10

Responsibility of licensee . . . . . . . . . . . . . . . . . . . . . . . . .
5

Part 5

General offences

11

Food to be sold by nightclubs. . . . . . . . . . . . . . . . . . . . . . . .

5

12

Display of obscene advertising material. . . . . . . . . . . . . . . .

5

Part 6
13

Liability
Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5

Entertainment Premises Control Act 2013

Entertainment Premises Control Act

2013
[as amended by all amendments that commenced on or before 29 May 2015]

An Act to provide for the safety and enjoyment of

patrons attending nightclubs, pubs or bars, and for
other purposes

Part 1

Preliminary

Short Title
This Act may be cited as the Entertainment Premises Control

Act 2013.

Main objects
The main objects of this Act are
(a) to ensure that security incidents occurring in pubs or
nightclubs are dealt with in a way that protects patrons;
and
(b)to respect the physical integrity of patrons, in light of their
security risk, when escorting them from a pub or nightclub;
and
(c) to ensure that the noise produced by nightclubs is
appropriate with reference to the location of a nightclub
and its hours of operation; and
(d)to minimise the harm caused to patrons through violent
actions at drinking establishments; and
(e) to minimise the potential for harm at drinking
establishments by prohibiting the serving of alcohol in a
regular glass container; and
(f) to protect patrons from exposure to obscene advertising
materials; and
(g)to promote sobriety by ensuring that alcohol is served in
conjunction with nutritious food.

Entertainment Premises Control Act 2013

Definitions
The dictionary in schedule 1 defines particular words used in

this Act.

Part 2
incidents

Responses to physical and verbal

Requirement not to use excessive force

(1) Any person who uses excessive force when responding to a
nightclub incident commits an offence.
(2) Any person who uses excessive force without the occurrence of a
nightclub incident commits an aggravated offence.

Penalty
(1) If any person commits an offence under part 2 of this Act, he will
be subject to a penalty of (a) 2 years imprisonment or 100 penalty units; or
(b) if the offence is an aggravated offence under part 2 of this
Act 4 years imprisonment or 200 penalty units.

Part 3
6

Noise Minimisation

Regulation of music noise

Any nightclub that is responsible for producing excessive noise
of any kind between the hours of 11pm and 3am commits an
offence.
Maximum penalty - 100 penalty units.

Defences
A nightclub does not commit an offence under this part if

Entertainment Premises Control Act 2013

(1)it has obtained an extended operating hours noise

exemption; or
(2)the excessive noise was not within the control of the
nightclub; or
(3)the excessive noise only lasts for a short duration.
Example
A period of excessive noise lasting for 15 minutes or less would be
considered a short duration.

Part 4

Glassing Offences

Intentional injury
If a person commits a glassing at a drinking establishment
that results in an injury, she will have committed an offence.
Penalty 100 penalty units or two years imprisonment

10

Responsibility of licensee
A licensee must not sell any liquid to a person in a regular
glass container.
Penalty 50 penalty units

Part 5

11

General Offences

Food to be sold by nightclubs

A nightclub must offer food for sale to its patrons.
Penalty 50 penalty units

12

Display of obscene advertising material

It is an offence for a drinking establishment to display an
obscene picture in the vicinity of its premises.
Penalty 50 penalty units

Entertainment Premises Control Act 2013

Part 6
13

Liability

Liability
Where a nightclub or drinking establishment is in breach of
any section under this Act, the licensee of the nightclub or
drinking establishment is to be held liable for any penalty
imposed.

Schedule 1

Dictionary

drinking establishment includes any bar, nightclub, tavern or

beer hall.
excessive force means the physical application of force that is not
proportionate to the situation.
excessive noise means a decibel reading of 90 measured from one
metre outside a venue, originating from any guitar, bass guitar,
trumpet, drum kit, choir, or any other source.
food means casseroles, stir fries, roast dinners or any other meal.
glassing means any act of violence by a person that involves the
use of regular glass
incident includes an event involving punching, kicking, spitting or
any other act of aggression
injury means any cut, laceration, scrape, tear, gash, welt, burn or
hurt.
licensee means the person who holds the licence to operate a
nightclub or drinking establishment.
nightclub means any venue which is open from 9 pm to 3 am and
where entertainment is provided by an orchestra, band, disc jockey
or performer.
obscene picture means a picture displaying female nudity.

Entertainment Premises Control Act 2013

regular glass means glass other than tempered glass.

sell includes supply.

Entertainment Premises Control Act 2013

Endnotes

Index to endnotes
Page

2
Date to which amendments incorporated. . . . . . . . . . . . . . . . . . . . . . . . . . .
..............7
3
Key . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . .7
4
Table of
reprints . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . .8
5
List of
legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . .8
6
List of
annotations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.....9

Date to which amendments incorporated

This is the reprint date mentioned in the Reprints Act 1992, section 5(c). Accordingly, this
reprint includes all amendments that commenced operation on or before 3 June 2013.
Future amendments of the Entertainment Premises Control Act may be made in
accordance with this reprint under the Reprints Act 1992, section 49.

Key
Key to abbreviations in list of legislation and annotations

Key Explanation

Key Explanation

AIA = Acts Interpretation Act 1954

(prev) = previously

amd = amended

proc = proclamation

amdt = amendment

prov = provision

ch = chapter

pt = part

def = definition

pubd = published

div = division

R[X] = Reprint No. [X]

Entertainment Premises Control Act 2013

exp = expires/expired

RA = Reprints Act 1992

gaz = gazette

reloc = relocated

hdg = heading

renum = renumbered

ins = inserted

rep = repealed

lap = lapsed

(retro) = retrospectively

notfd = notified

rv = revised version

num = numbered

s = section

o in c = order in council

sch = schedule

om = omitted

sdiv = subdivision

orig = original

SIA = Statutory Instruments

Act 1992
p = page

SIR = Statutory Instruments

Regulation 2002
para = paragraph

SL = subordinate legislation

prec = preceding

sub = substituted

pres = present

unnum = unnumbered

prev = previous

List of legislation

Entertainment Premises Control Act 2013 No. 5

date of assent 12 February 2013
commenced on date of assent
Nightclub Security Act 2013 No. 9
date of assent 20 February 2013
commenced on date of assent
Entertainment and Noise Act 2013 No. 17
date of assent 15 March 2013
commenced on date of assent
Glassing Violence and Licensed Premises Act 2013 No. 19
date of assent 30 March 2013
commenced on date of assent
Entertainment Premises Control Amendment Act 2015 No. 25
Date of assent 29 May 2015
ss 12 commenced on date of assent
Remaining provisions commenced on 31 March 2015, the day the Bill for
this Act was
Introduced into the Legislative Assembly (see s 2)

List of annotations

Entertainment Premises Control Act 2013

Main Objects
s2

amd 2015 No.25 s 3

Requirement not to use excessive force

s4
ins 2013 No. 9 s 6
Penalty
s5

ins 2013 No. 9 s 7

Regulation of music noise

s6
amd 2013 No. 17 s 34
Defences
S7
Liability
s8

amd 2013 No. 17 s 35

ins 2013 No. 17 s 41
rep 2015 no. 25 s 7

Intentional injury
s9
amd 2013 No. 19 s 4
Responsibility of licensee
s 10
ins 2013 No. 19 s 21
Food to be sold by nightclubs
s 11
ins 2015 No. 25 s 4
Display of obscene advertising material
s 12
ins 2015 No. 25 s 5
Liability
s 13

ins 2015 No. 25 s 7

Dictionary
Sch 1
def food
ins 2015 No. 25 s 8
def licensee
amd 2015 No. 25 s 8
def nightclub
amd 2015 No. 25 s 8
def obscene picture
ins 2015 No. 25 s 8

The Entertainment Premises Control Act 2013 (Qld) (EPCA) has been
recently amended. During his speech made to Queensland Parliament on
31 March 2015, when introducing the amending legislation, the Minister
for the Arts and Entertainment made the following comments:
The EPCA has been in force for over two years now and it is very
pleasing to note that instances of violence at nightclubs have

Entertainment Premises Control Act 2013

drastically declined. We are confident, however, that we can

achieve even better results in terms of the safety and amenity of
nightclubs if we require them to make hearty and nutritious meals
available to patrons. It is well known that drinking on an empty
stomach can heighten the effects of alcohol, and that drunkenness
far too frequently results in senseless violence.
We are also introducing a further measure to clean up the nightclub
scene. You will be aware that there have been recent complaints
made to the Anti-Discrimination Commission about the display in
nightclubs, and other drinking establishments, of sexually
provocative advertising material which is demeaning of women.
This Government will not tolerate offensive sleaze and, as such, the
Act as amended will prohibit the display of such images.
We have also taken the opportunity to make some other
amendments that we hope will promote compliance and make the
Act easier to understand.
Note that s 2 of the relevant amending legislation, the Entertainment
Premises Control Amendment Act 2015 (Qld) reads as follows:
2 Commencement
Sections 12 commence on date of assent. Remaining provisions
are taken to have commenced on the day the Bill for this Act was
introduced into the Legislative Assembly.
Clarissa Charm owns a company, Charming Pty Ltd, which has a licence
to operate Charming Comedy, a club in Fortitude Valley. It opens late at
9pm and closes early at 3am. Clarissa advertises her club as follows:
Enjoy Charming Comedy, Brisbanes newest entertainment
experience! Sip fine French Champagne or simply slam down a beer
while you are amused by the hottest comedians from around the
world.

Entertainment Premises Control Act 2013

Charming Comedy has been making a tidy profit from the sale of alcohol
the comedy is really just a way to encourage people to come to the club
to drink.
When Clarissa found out about the amendments to the EPCA requiring the
sale of food, she hurriedly ordered some chips and chocolate style
vending machines. They were installed on the day the amending
legislation was assented to, 29 May 2015. Clarissa was also concerned
that the pictures displayed at the entrances to the male and female rest
rooms at Charming Comedy might breach the amended Act: a picture of
the famous statue of the Venus de Milo identified the female rest rooms,
and a picture of the equally famous statue, Michelangelos David,
identified the male rest rooms. She removed the pictures on 15 May
2015.
On 1 June 2015, Clarissa received a notice in the mail stating that
Charming Comedy was being investigated for breaching sections 11 and
12 of the Act.
Advise Clarissa.

[30 marks]