Casey v Vietnamese Recreational and Cultural Club

[34]

13 Various orders were made on directions hearings between 28th April, 2004, and 28th July, 2005, to which detailed reference is not required.

14 On 28th July, 2005, a further directions hearing was held. Amongst orders made, were those removing what were described as the second and third other parties as parties to the proceeding. Further, the first respondent, the Vietnamese Recreational & Cultural Club Inc., the licensee, was removed from the proceeding.

15 On the hearing of the application before me, for the seventh respondent, Mr Grace submitted that an order should be made dismissing the proceeding. It was put that any basis for an inquiry has been removed by virtue of the following. First, no inquiry pursuant to s.90 of the Act has been conducted. As the licensee has consented to orders pursuant to s.92 of the Act, any orders made under that section could be made only if the Tribunal were satisfied after an inquiry pursuant to s.90, that one or more of the grounds set out in s.90(1) exist. It was put that the satisfaction required under s.91 can arise only in the manner identified in the introductory words to s.91(1), namely, "after conducting an inquiry". It was put by Mr Grace that, in the present case, the orders made on 28th April, 2004, were made under s.92 without any orders being made against the licensee under s.91 of the Act. Further, the licensee has been released from the proceeding. By reason of the fact that the licensee is no longer a party, no inquiry can be held now because findings under s.91 of the Act cannot be made, and without a basis for making such findings, no orders under s.92 might be made, for orders under s.92 of the Act are dependent upon findings being made under s.91 of the Act. By reason of the s.92 orders made on 28th April, 2004, and the release of the licensee, no legal basis for an inquiry exists.

16 Further, it was submitted that as the order made on 28th July removed the licensee as a party, there is no subject left for a s.90 inquiry, as such an inquiry, by express statement in s.90, can relate only to the licensee and, by seeking to have that party removed, the applicant must be taken to have determined not to continue the inquiry against it. Instead, the applicant has determined wrongly to seek an inquiry against the seventh, ninth and tenth respondents and such an inquiry is beyond the powers given to the Tribunal by s.90 of the Act.

17 These submissions were supported by Mr Larkins of counsel for the ninth and tenth respondents.

18 An unintended measure of support for the result sought by the respondents appears to be given at paragraph 6 of the response of the applicant to the seventh respondent's submissions. That part of the response is in these terms:-

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33 The statements of Senior Member Davis require the conclusion that an inquiry had been conducted, for how otherwise could he achieve the satisfaction that he expressed. Indeed, in the light of these assertions by the applicant and the making of the orders at its behest, it is precluded from asserting that an inquiry has not been held.

34 Further, it seems to me that by obtaining the removal of the licensee as a party to the proceeding, the applicant leaves no room for doubt that he is seeking an inquiry pursuant to s.90 into the seventh, ninth and tenth respondents. Section 92 does not provide a basis for holding an inquiry. Orders pursuant to s.92 might be made only where satisfaction under s.91 exists, which in turn arises only after the Tribunal has conducted an inquiry.

35 The Tribunal is a creature of statute. It has no jurisdiction but that given by Parliament. Section 90 of the Act does not give it jurisdiction to conduct an inquiry into any other person or party but the licensee or permittee. It is the applicant's contention that the inquiry can continue as each of the 7th, 9th and 10th respondents is a licensee. The argument is put this way. A director, includes a person who engages in de facto direction (my term), as identified in the definition of director in the Act. Further, s.53(2) specifies that the directors of the body corporate are severally liable as licensee. Therefore, taking the definition of director and s.53(2) in combination, it is the applicant's contention that each of the 7th, 9th and 10th respondents is the licensee. I do not believe this argument is sound. First, licensee is defined as being the holder of a licence. Section 53(2) does not expressly or by implication identify a director as the holder of a licence. Its purpose is quite different. It imposes liabilities upon a director which may not be said to exist independently of the sub-section. Had it been intended otherwise, it would have been simple for Parliament to define licensee as including a director of a body corporate as defined. Further, if a director were a licensee, then the words in s.92(1) standing after the words "licensee or permittee" (where first appearing) namely "any director ... of the licensee or permittee (if it is a body corporate)" would be superfluous. Accordingly, what the applicant is seeking is an inquiry primarily to determine whether the 7th, 9th and 10th respondents are directors of the licensee, which is not an inquiry encompassed by the provisions of s.90 of the Act. Those respondents deny emphatically that they, or any of them, are directors of the licensee.

36 It is also interesting to note that by letter dated 11th December, 2003, to the 7th respondent's then solicitor, the Victorian Government Solicitor acting for the applicant stated:-

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The 7th, 9th and 10th respondents are not licensees, and, accordingly, are not properly subjects for an inquiry under s.90. In contrast to the applicant's assertion it is precisely to the point that the 7th respondent is not a licensee nor permittee.

37 Looking at the various provisions of the Act, it seems clear to me that an inquiry under s.90 of the Act into the licensee is an inquiry into the holder of the licence simpliciter.

38 Accordingly, it seems to me that even if an inquiry under s.90 has not been held, once orders have been made against the licensee and the licensee has been removed from the proceeding, no subject remains for the holding of an inquiry and it is at an end.

39 I have examined every document to be found in the 3 volumes of the Tribunal file and the bundle of documents handed up by Mr Grace. It is clear from these documents that the applicant now asserts that the 7th, 9th and 10th respondents are directors of the first respondent, pursuant to the extended definition given by the Act. These are contested issues and the assertion by the applicant does not provide a sound basis for suing them as respondents, asserting, by necessary implication that they are, or each of them is, the licensee. If an inquiry into the licensee were conducted by the Tribunal, it might be relevant to that inquiry, by reason of the consequential effects of s.92 of the Act, to hear evidence concerning the 7th, 9th and 10th respondents. It is a mixed matter of law and fact for the Tribunal to determine whether they or any of them are directors and to determine, in relation to the inquiry, what, if anything flows from that.

40 The applicant contends further that the inquiry is still on foot, inter alia, by reason of the fact that one of the consent orders made on 28th July, 2004, recited that nothing in the orders should prevent the application being heard against the seventh, ninth and tenth respondents. I was concerned that the remaining respondents had consented to this order. But at the end of the day, the Tribunal cannot by consent of the parties give itself jurisdiction where it is not otherwise bestowed by Parliament. Here, it seems clear to me, the meaning and effect of the order relied upon by the applicant is that there should be an inquiry, not into the licensee, but into the seventh, ninth and tenth respondents. In my view, the Tribunal has no power to conduct such an inquiry.

41 It is my conclusion that the inquiry pursuant to s.90 of the Act has been conducted to its conclusion for the reasons I have expressed. The consent order recited above does not envisage maintenance of an inquiry into the licensee, but specifically refers to an application being heard against the named respondents. As I have said, s.90 does not give the Tribunal power to conduct an inquiry save into the licensee. Of course, during the conduct of the inquiry, evidence may be led which is relevant to the inquiry which, in turn, relates to the conduct of any of the persons identified in s.92 of the Act. That evidence may then satisfy the Tribunal that an order for disqualification may be made. But that is far removed from having an inquiry into those persons. That, I conclude, is what the applicant seeks to do, and I am satisfied that there is no power in the Tribunal to conduct such an inquiry. Consequently, I am satisfied that the proceeding should be dismissed and I shall make orders in relation to thereto, and consequential orders.

42 However, before I leave this matter, I desire to make a number of general observations concerning the statutory provisions which relate to the holding of an inquiry.

43 I make the initial observation that, although there has not previously been seen to be a need to have rules to cover inquiries pursuant to s.90 of the Act, nor any need to have practice directions in relation thereto, the manner in which this application has been instituted and pursued causes me to conclude that certainly a practice direction and, possibly rules, are required to ensure that the procedures required by the enabling enactments are followed.

44 As I have pointed out above, the applicant has the power to request the Tribunal to conduct an inquiry. The Tribunal may accept or decline the request. The language of the section is permissive. I contrast the wording in s.90 of the Act with that in s.17(C)(1) Broadcasting Act 1942 (Commonwealth) which states that upon application "the Tribunal shall hold an inquiry". If the applicant's materials justify the holding of an inquiry, it would be incumbent upon the Tribunal to conduct one. If the applicant's materials do not justify an inquiry, or if the applicant for some reason proffers no material to support the application for an inquiry, the Tribunal should decline to hold one.

45 Upon the applicant providing materials sufficient to justify an inquiry, which materials should be supplied with the formal application, it is for the Tribunal to determine what other persons, apart from the applicant and the licensee/permittee, should be joined as a party at the proceedings, whether of the Tribunal's own initiative or upon application.

46 The proceeding is an inquiry conducted by the Tribunal, not by the applicant.

47 The Tribunal, and not as here, the applicant, will determine the matters to be raised upon the inquiry. In that regard, I point to what is asserted in the first paragraph of the letter of the Victorian Government Solicitor of the 11th December, 2003, where it is stated emphatically that the Tribunal will do a considerable number of things. The paragraph would not have been objectionable had it been couched as a submission to be made to the Tribunal. The orders which may be made under s.92 of the Act are those to be determined by the Tribunal upon the evidence once it has conducted an inquiry. The proposed application for orders furnished by the applicant Casey may at the appropriate point during the inquiry form the basis for submissions made upon the evidence given, but otherwise has neither justification nor relevance. Certainly, contrary to Casey's assertion, he has no right to apply for orders.

48 The Tribunal is empowered by the statute to conduct a statutory inquiry. As the present inquiry has been conducted as an adversarial contest, I reserve for consideration by the Tribunal whether Parliament intended such an inquiry to be adversarial or to be in the nature of an inquisition. In Tarson Pty Ltd and Anor v Holt and Ors (Unreported) Supreme Court of Victoria, 22nd November, 1991, Beach J was considering provisions of the Travel Agents Act 1986 as they stood before the 1998 amendments to that Act. His Honour concluded that an inquiry under that Act was adversarial in its nature. As His Honour said, his decision was based upon the terms of s.20 of the Travel Agents Act, which terms were markedly different from those which found jurisdiction here.

49 In relation to inquiries pursuant to s.90 of the Act, it seems to me that there are a number of reasons which would favour the conclusion that it is intended to be inquisitional rather than adversarial in its nature. Support for that conclusion is to be found in a number of cases - see, as an example, Bond v Australian Broadcasting Tribunal (1988) 84 ALR 646 at 656. There are also arguments in favour of considering it to be an adversarial proceeding. As I say, these matters can be determined at a later date.

50 I turn then to make observations with particular reference to the present application. First, the applicant expressed himself as applying for an order. The section does not permit that. His application is for an inquiry. Secondly, although it is for the Tribunal, and the Tribunal alone, to determine what parties will be joined in such an inquiry, the present applicant has nominated eleven respondents to the application, five interested parties, and the registered proprietor of the premises. The applicant clearly had no right to do this. Whether it was a deliberate attempt to highjack the inquiry is not a matter that I propose to investigate. However, when one looks at the application for orders lodged by the applicant with this application, one is led to the conclusion that the supposed joinder of respondents and interested parties was capricious. The applicant Casey says that application will be made by him to disqualify all the respondents from holding any of the appointments set out in s.92(1)(a) to (f). Neither the particulars nor the summary of evidence delivered with the application would have justified the joinder by the Tribunal of some of the respondents named.

51 I consider that the joinder of some of the eleven respondents was capricious, leaving aside the fact that there was no warrant for Casey having assumed to himself the right to join parties aside from the licensee. I refer to what I have set out concerning the respondent Belinda Vinci in paragraph 10 above. The contradiction between what Senior Sergeant Eager says there and what Casey was proposing with the application is stark. Further, apart from the licensee, some seven parties in all have been released from the proceeding without any orders being made against them. These matters all highlight the fact that Parliament intended that the Tribunal conduct the inquiry.

52 In combination, the relevant Acts require that the applicant make application to the Tribunal to conduct an inquiry. That application should name, and name only, the applicant and the licensee/permittee. As an appropriate means of facilitating an initial hearing so that the Tribunal might determine whether to conduct an inquiry, the applicant should, with the application, set out the material facts justifying an inquiry and should provide a clear and concise summary of the evidence proposed to be led at the inquiry. It seems to me that for clarity a practice direction should be issued setting out the nature of the documentation, which should support the application. Because of the manner in which this application was filed and the broad sweep of the matters attending it, it seems to me to be desirable that the applicant is committed to his oath concerning the supporting materials, but that is not a matter for me to determine.

53 My personal view is that any party joined by the Tribunal, either of its own volition or upon notice, should be described as an added party, or joined party, but not as a respondent to the application, for that is to misstate the nature of the application, and to mis-describe any added party.

54 I trust that these observations generally about the conjoint application of s.90 of the Act and the provisions of the VCAT Act will be of assistance to practitioners.

55 The primary order that I make is -

Casey v Vietnamese Recreational and Cultural Club - [2006] VCAT 174 - VCAT 2006 case summary — Zoe

At a glance

Court

Decision date

Source

Judgment (115 paragraphs)

Casey v Vietnamese Recreational and Cultural Club (Occupational and Business Regulation) [2006] VCAT 174 (14 February 2006)

Parties

Legislation Cited (3)

Cases Cited (1)