Casey v Galimberti & ors [2006] VSCA 232

1 Under the Liquor Control Reform Act 1998 ("the Liquor Act"), a licensing inspector can apply to the Victorian Civil and Administrative Tribunal ("the Tribunal") for it to conduct an inquiry under s.90(1) of the Liquor Act.[1] The inquiry authorised by that provision is "an inquiry into [a] licensee or permittee."

2 The applicant, Kevin Casey, is a licensing inspector appointed under the Liquor Act. He applied to the Tribunal for an inquiry into a licensee. Vietnamese Recreational and Cultural Club Inc was the licensee of premises at 17 Leeds Street, Footscray, known as "Club Leeds". Mr Casey applied for an inquiry having formed the view that the licensee was not a suitable person to hold a licence: s.90(1)(k).

3 In his application, Mr Casey named a number of persons as respondents, in addition to the licensee itself. The present respondent, Mr Galimberti, was one of them. The naming of additional respondents was an error. In the recent decision of Hauer v Lord,[2] the President of the Tribunal expressed the view that the only parties to an inquiry under s.90 were the applicant and the licensee. No other person is specified either in the VCAT Act[3] or in the Liquor Act as a party to such an inquiry. I respectfully agree.

4 What should have occurred, but did not, was an application under s.60 of the VCAT Act for joinder of the proposed additional respondents. Where (as here) the applicant intends to seek orders under s.92 of the Liquor Act against persons other than the licensee, it is clearly desirable that an application to add such other persons as parties be made as soon as practicable after the originating application is filed. In Hauer, Morris J suggested that this should be done at the first directions hearing. Once again, I respectfully agree. In the event, nothing turns on the failure of Mr Casey to have had Mr Galimberti made a respondent to his application.

Jurisdiction and powers of the Tribunal

5 The Tribunal is a creature of statute. It has such jurisdiction as is conferred on it by Victorian legislation - referred to in the VCAT Act as "enabling enactments".[4] Under some enactments, the Tribunal is given a review jurisdiction; under others, it has original jurisdiction. Subsection 90(1) of the Liquor Act confers on the Tribunal an original jurisdiction, a jurisdiction to inquire. It is that jurisdiction which Mr Casey invoked when he filed his application.

6 The filing of the application was also the institution of a "proceeding" in the Tribunal. The term "proceeding" is defined in s.3 of the VCAT Act to include "an inquiry conducted by the Tribunal". The VCAT Act confers on the Tribunal general powers which are exercisable by the Tribunal in a proceeding.[5] For this purpose, the inquiry into the licensee was the proceeding before the Tribunal.

7 In addition, the Liquor Act gives the Tribunal specific powers which are exercisable in connection with the inquiry jurisdiction conferred by s.90(1). Sections 91 and 93 confer powers exercisable in relation to the licence itself (cancellation, suspension, variation, or endorsement), while s.92 confers powers exercisable in relation to the licensee and persons falling into one or other of the following categories:

• any director or nominee of the licensee (if it is a company);

• any member of the committee of management or nominee of the licensee (if it is a club);

• any person who is concerned in or takes part in the management of licensed premises.

(I will refer to persons falling within these categories as "relevant persons").

8 The issue which arises in this appeal may be stated shortly. The Tribunal has already made an order under s.92 against the licensee. (The circumstances in which that order was made are set out below). The Tribunal having exercised the s.92 power against the licensee, two questions arise:

1. Does the Tribunal have power under s.92(1) to make orders against any other persons?

2. If so, does the Tribunal have power to receive further evidence on matters relevant to that exercise of power?

Before addressing those questions, it is necessary to describe the circumstances in which they arise.

The consent order against the licensee

9 On 28 April 2004, a compulsory conference was held in the proceeding.[6] Mr Casey as applicant was represented by counsel, as were the licensee and Mr Galimberti and all of the other named respondents but one.

10 Following the compulsory conference, a senior member of the Tribunal made consent orders in the following terms:

"1. That the first respondent be disqualified:

(a) from holding a licence or BYO permit;

(b) from having a beneficial interest (whether directly or indirectly) in the shares of any body corporate that holds a licence or BYO permit;

(c) from in any way (whether directly or indirectly) taking part in, or being concerned in, the management of any licensed premises or any body corporate that holds a licence or BYO permit or any licensed club;

from 15 July 2004, unless an extension of time in relation to disqualification is granted by the Tribunal prior to 15 July 2004.

2. That the disqualification referred to in Order 1 hereof be for a period of 5 years, to commence from 15 July 2004, subject to any extension referred to in paragraph 1.

3. Nothing in these orders should prevent the application being heard against the seventh, ninth and tenth respondents, commencing on 2 August 2004.

6. The applicant have leave to withdraw the proceeding against the second, third, fourth, fifth and sixth respondents and the proceeding is withdrawn against those respondents."

11 The first order, disqualifying the licensee, was an exercise of the Tribunal's power under s.92(1). No order was made under s.91.

12 When he filed his original application, Mr Casey also filed what he described as "Application under s.92". That document gave notice that -

"at the completion of the application under s.90(1)... and prior to the decision being handed down by the Tribunal, an application [will] be made under s.92(1)(a) - (f)... to disqualify all the respondents."

When it was subsequently recognised that there was no provision for a separate application under s.92, the purported s.92 application was replaced by a document headed "Notice of potential orders under s.92".

13 Having obtained the disqualification order against the licensee, Mr Casey wished to have the Tribunal make the foreshadowed disqualification orders against the other respondents. Mr Galimberti applied to have the proceeding dismissed, on the ground that the Tribunal had no jurisdiction to continue the s.90 inquiry. As set out in his Honour's reasons, the essence of Mr Galimberti's application was that:

"... the applicant's material and the circumstances of the case do not permit the Tribunal to make the jurisdictional findings of fact necessary to invoke the jurisdiction of the Tribunal to make disqualifying orders under s.92 of the Act".

14 A Vice-President of the Tribunal upheld Mr Galimberti's submission, and ordered that the proceeding be dismissed. Mr Casey now appeals from that order, by leave granted on 6 April 2006.

15 In his ruling, Vice-President Dove accepted the following account (put forward in submissions filed on behalf of Mr Casey) of what had occurred at the time the consent orders were made:

"6. On the 28th of April, 2004, Senior Member Davis, who sat as the Tribunal on that day, considered whether he was 'satisfied that a ground for making an order under s.91 existed'. He declared he was so satisfied as the licensee, through its counsel, admitted the facts alleged against it in the application and the particulars annexed, and additionally the licensee was consenting to the Tribunal making an order by consent..."

16 His Honour further noted that Mr Casey, through his solicitor, had stated that:

"By consent, and upon the senior member being satisfied that grounds set out in s.90(1)(f) exist[ed] and in accordance with s.91 of the Act [it was] ordered..."

17 In his Honour's view, the statements attributed to the senior member required the conclusion that an inquiry had been conducted. His Honour asked:

"For how otherwise could he achieve the satisfaction that he expressed?"

Moreover, in his Honour's view, Mr Casey was precluded from asserting that an inquiry had not been held.

The inquiry into the licensee had ended

18 There is no challenge to the Tribunal's conclusion that the s.90(1) inquiry into the licensee had ended - indeed, must have ended - in order for the order against the licensee to have been made. This concession was, in my view, rightly made.

19 It is clear from the introductory words of s.91(1) that the powers which that subsection confers are not exercisable until after the inquiry has taken place. Subsection 91(1) begins as follows:

"After conducting an inquiry under this Division and if satisfied that any of the grounds set out in s.90(1) exist, the Tribunal [may]..."

Subsection 92(1) begins with these words:

"If satisfied that a ground for making an order under s.91 exists, the Tribunal may also order that..."

20 In my view, the language is clear and unambiguous, and leads to the following conclusions.

1. The power conferred by s.91(1) is exercisable only if two conditions are satisfied. Those conditions are that the Tribunal has -

• satisfied itself that one of the s.90(1) grounds exists.

2. Section 92 is a companion provision to s.91. It is subject to the satisfaction of exactly the same pre-conditions. The word "also" emphasises that the s.92 powers are additional to the s.91 powers.

21 So much was common ground between the parties to the appeal. What follows, I think, is that the making of the order against the licensee under s.92(1) entailed the conclusion that the inquiry into the licensee had been concluded. Had it not been, the purported order would have been beyond power. Even if the senior member had said nothing about his state of satisfaction (as to the existence of a ground under s.90(1)), the making of the order under s.92(1) would have implied necessarily that the Tribunal was so satisfied. By consenting to the order, the licensee was acknowledging that grounds existed for the Tribunal to be so satisfied. In upholding the order, as he does, Mr Casey too must be taken to accept that the conditions for the exercise of the power were satisfied.

22 Of course, if the Tribunal were giving reasons for the decision, it would be expected that the Tribunal's state of satisfaction, and the reasons for it, would be made explicit. In the circumstances, however, there was no occasion for the Tribunal to give reasons, the licensee having signified its consent to the disqualification order.

Does the Tribunal have power under s.92 to make orders against the other persons?

23 In my opinion, upon the completion of an inquiry under s.90 the Tribunal has available to it the full range of powers under ss.91, 92 and 93. Moreover, the exercise of one of those powers against the licensee does not exhaust that power if there are other persons against whom the power is exercisable.

24 Mr Holdenson for Galimberti maintained that, once the order of 28 April 2004 had been made against the licensee, the Tribunal had exhausted all of its powers in connection with the s.90 inquiry. That submission is untenable. There is nothing in the language of the provisions which could justify, let alone require, such a narrow reading of the Tribunal's powers. For his part, Mr Larkins, for the second and third respondents, had no hesitation in conceding that the s.92(1) power was still available against other persons, notwithstanding the prior making of an order under s.92(1) against the licensee.

25 It follows that, although the inquiry into the licensee is completed and an order has been made against the licensee, Mr Casey is entitled to ask the Tribunal to make orders against other relevant persons. The critical issue concerns the material on which the Tribunal can act.

Can the Tribunal receive further evidence?

26 According to Ms Kennedy for Casey, the continued availability of the power under s.92(1) in relation to other relevant persons meant that the Tribunal not only had the power to receive further evidence relevant to the question of whether that power should be exercised, but had the ordinary obligation of a decision-maker to take into account any matter placed before it which was relevant to the (possible) exercise of the power. She frankly acknowledged that this submission amounted to saying that the power under s.92 had to be treated as if it were a free-standing statutory power.

27 The submission for the respondents was that, on the assumption that the power under s.92(1) was still available, there was no power in the Tribunal to receive further evidence. The power under s.92(1) was exercisable - if at all - on the basis of the information obtained in the course of the (now-concluded) inquiry under s.90(1).

28 In my view, the respondents' submission must be upheld. The critical phrase which conditions the exercise of the powers - "after conducting an inquiry" - means not only that the inquiry must be complete before the powers are exercisable, but also that the powers are exercisable - if at all - on the basis of what the Tribunal has seen and heard in the course of the inquiry, and on no other material. I see no room for any other interpretation. The jurisdiction on which the Tribunal embarks is a jurisdiction to conduct an inquiry into the licensee. There is no power of inquiry into relevant persons as such.

29 Ms Kennedy conceded that the inquiry into the licensee was completed "insofar as that inquiry enabled the Tribunal to decide that it had the requisite state of satisfaction in relation to a ground under s.90(1)." Nevertheless, she argued, the "proceeding" continues, in order for the Tribunal to decide whether to make orders under s.92 against other persons. Hence the evidence-gathering powers of the Tribunal, conferred by provisions such as s.98 of the VCAT Act, are still available.

30 With respect, I cannot accept that submission. The Liquor Act makes provision for one inquiry, and one inquiry only. It is an inquiry into the licensee under s.90(1). The conferral of the power under s.92, to make orders in relation to persons other than the licensee, shows that Parliament contemplated that matters might emerge in the course of the inquiry into the licensee which would warrant the making of orders against relevant persons connected with the licensee. But there is nothing in the legislation to warrant the view that Parliament had in mind that, following the conclusion of the inquiry into the licensee, the Tribunal could conduct further hearings, and collect further evidence, directed only at the question whether orders should be made under s.92 against such persons.

31 The language of the provisions is to the opposite effect. As I have said, the Tribunal has jurisdiction to conduct one inquiry, and one inquiry only. The investigation of matters relating to relevant persons must occur - if at all - in the course of the "inquiry into the licensee", and only to the extent that it is relevant to that inquiry.

32 What Mr Casey was proposing was a further hearing, expected to last up to seven days, in which numerous witnesses would be called on both sides. That evidence is seen to be necessary because, at the time the consent order was made against the licensee, no evidence had been taken by the Tribunal, and no findings of fact made.

33 For the reasons I have given, the Tribunal has no power to conduct any such hearing. The only task remaining to the Tribunal is to consider whether there is material already before it, from the now-completed inquiry, which would justify the making of orders under s.92 against any other person. There being no such material, it is clear that there is no basis upon which that power could lawfully be exercised.

34 It follows, in my view, that the appeal must be dismissed. No occasion arises, accordingly, to review the order for costs made against Mr Casey in the Tribunal.

35 It was submitted for Mr Casey that the Tribunal's conclusion, which I would uphold, would be likely to inhibit the licensing authorities from doing what Mr Casey did in this case viz reaching agreement with the licensee about appropriate orders, and reserving his position against relevant persons. It is not possible for this Court to assess the practical implications of this result. But, as I suggested in argument, and as Morris J suggested in Hauer, there would always be scope for the licensing inspector to negotiate a statement of agreed facts, both with the licensee and with the individuals against whom orders were sought, before any orders were made. This procedure is regularly used by the Australian Competition and Consumer Commissioner in proceedings brought under Part IV of the Trade Practices

36 It follows from what I have said that the removal of the licensee as a party (by order of the Tribunal made 28 July 2005) was of no particular significance. The inquiry into the licensee had long since finished, though the question of the exercise of powers in connection with the inquiry remained open. As Morris J said in Hauer, for so long as the applicant for the inquiry is seeking orders under s.92, the proceeding cannot come to an end. The removal of the licensee as a party would not, of itself, terminate the proceeding - at least where (as would ordinarily occur) the other persons against whom orders were sought had themselves been made parties to the inquiry proceeding.

37 We have had the benefit of reading the draft reasons of the President in this matter. His Honour has, with respect, sufficiently outlined the circumstances and issues that are relevant to the appeal, as well as the applicable legislative provisions, so there is no need to restate them here. Suffice it to say that, for present purposes, the appeal raises the question whether the Victorian Civil and Administrative Tribunal ("the Tribunal"), when considering a request for an order under s.92(1) of the Liquor Control Reform Act 1998 ("the Act") against a person other than the licensee in respect of whom the Tribunal has concluded an inquiry contemplated by s.90(1) of the Act, is empowered to receive evidence bearing on that matter. We respectfully agree with his Honour's conclusion that the Tribunal's power to make an order under s.91 or s.92 of the Act is not properly exercisable until after the inquiry contemplated by s.90(1) has taken place. We also agree with the learned President that, once the Tribunal completes a s.90(1) inquiry and is satisfied that a ground set out in that provision has been made out, it has a "full range of powers" under ss.91 and 92 to make appropriate orders. And the exercise of the power under those provisions to make an order against the licensee who was the subject of the s.90(1) inquiry does not deprive the Tribunal of power to make orders against other relevant persons. Thus, in the present case, Mr Casey was entitled to seek orders under s.92 against Mr Galimberti and others notwithstanding that the Tribunal has made a disqualification order against the licensee.

38 Relevantly, however, Maxwell, P. went on to conclude that the Tribunal has no power to conduct a hearing or receive evidence in relation to orders sought pursuant to s.92. His Honour considered that such a power is to be exercised, if at all, on "what it saw and heard in the course of the inquiry, and no other material." We are of the view, however, that, for the following reasons, the Tribunal is not so confined in what it can do in that regard.

39 It seems to us that, in broad terms, the scheme of Division 1 of Part 6 of the Act is to empower the Tribunal to determine the following principal matters:

(a) whether those associated with the operation of liquor outlets have been conducting them, or have otherwise acted in that context, contrary to legal requirements;

(b) if not, what orders are appropriate to remedy the situation.

An important plank of this scheme is to enable those charged with the administration of the industry to have these matters determined in the one proceeding before the Tribunal albeit, where appropriate, at different times and at sequential hearings. Thus, s.90(1) of the Act enables a person such as Mr Casey to apply to the Tribunal to conduct an inquiry into "the licensee", essentially for the purpose of determining whether the contention that one or more of the circumstances described in s.90(1) has been made out. As the learned President pointed out, such an application is a "proceeding" within the meaning of s.3 of the Victorian Civil and Administrative Tribunal Act 1998 ("the VCAT Act"). Importantly, we think that this is the only "proceeding" that can be instituted under Division 1 of Part 6.

40 Thus, it seems to us that the Act contemplates that, once the inquiry is concluded and at least one of the circumstances described in s.90(1) of the Act has been established, the second aspect of the proceeding can be pursued, namely, the securing of an appropriate order under ss.91 and/or 92. It is plain enough, we think, that, under the terms of the VCAT Act that govern proceedings before the Tribunal, it can generally receive, following a substantive hearing, further evidence on subsidiary matters such as costs, the terms of proposed orders and the like. Similarly, we think, there is nothing in the legislation that places a restriction on the Tribunal's ability to receive further evidence when considering a request for an order under s.92. This is unsurprising, given that such an application or request for an order under s.92 may raise issues that are materially different from those canvassed during the inquiry. The ambit of an inquiry is limited in the sense that it is conducted into "the licensee" and, in that context, is concerned with whether one or more of the factual situations described in s.90(1) has been established. On the other hand, the exercise by the Tribunal of powers under s.92 is essentially concerned with determining whether it is appropriate that a disqualification order be made against a person, be that the licensee or a related party. This may involve the consideration of a range of matters that have not been raised for consideration at the inquiry.

41 It may be that, ordinarily, on an application for an order under s.92 no further material needs to be placed before the Tribunal in addition to that presented at the inquiry. That may be the case where the order that is sought is against the licensee who may have had the opportunity to deal with matters relevant to that claim at the inquiry. But that will not necessarily be the situation where an order is sought against a person who was not privy to the inquiry. Usually, a claimant like Mr Casey would not present, at the inquiry, material relating to such a person. Rather, one would expect that this material would be put forward at the time when an order under s.92 is sought and the Tribunal has to consider whether, and if so how, it should exercise its powers. The presentation of such material at that stage of the proceeding would be plainly relevant to its consideration of the matter and would enable the person concerned to confront it. We think that the situation so contemplated by the Act is in many ways similar to one where the court determines in a civil proceeding first the question of liability and then, at a later hearing, the question of damages, in the course of which it receives evidence on that issue.

42 In the present context, for example, where the inquiry was confined to the licensee, the Tribunal may not have received much by way of material that was relevant to the question whether a s.92 order should be made against a related party. Thus, if Mr Casey were unable to put such evidence before the Tribunal in support of an application for a s.92 order, the provision would lose much of its utility and we think that this was not intended by the legislature.

43 In the circumstances, we consider that the appeal should be allowed, that his Honour's orders be set aside and the proceeding be remitted to the Tribunal for further hearing according to law.

[1] A licensing inspector is authorised to make that application by s.90(2)(c) of the Liquor Act.

[2] [2006] VCAT 739.

[3] Victorian Civil and Administrative Tribunal Act 1998 s.59(1)(a).

[4] See ss.40, 42(1) and 43.

[5] See generally VCAT Act Part 4.

[6] The Tribunal has power under s.83(1) of the VCAT Act to require the parties to a proceeding to attend a compulsory conference.

[7] See, for example, ACCC v Leahy Petroleum Pty Ltd (No. 3) [2005] FCA 265; (2005) 215 ALR 301 at 304 [9] and 322-3 [114]-[118].