Mr G Hindson of counsel instructed by John Micallef & Co

Mr S Devlin, general counsel, Consumer Affairs Victoria

1 Mr Troy Egan, the applicant in these proceedings, has developed an interest in specialist whiskies and spirits. He has had an idea of pre-retailing pre-packaged specialist bottlings of whiskies, wines and spirits to specialist restaurants and retail outlets. He would intend to run the business mainly through the internet.

2 In August 2006, he lodged an application for a pre-retail licence with Liquor Licensing, Consumer Affairs Victoria, to trade as Bar Items Plus.

3 Under s 12 of the Liquor Control Reform Act 1998 a pre-retail licence authorises the licensee to supply liquor at any time and on any premises -

(a) to a person who holds a licence under this Act; and

(b) to a person licensed to sell or supply liquor by or under a law of another State or Territory if the liquor supplied is to be consumed outside Victoria; and

(c) to a person for the purpose of exporting the liquor supplied out of Australia.

4 After considering the recommendations of the panel which considered and heard the application, the Director of Liquor Licensing determined to refuse the application on 29 November 2006.

5 Mr Egan sought review of that decision. The hearing was before me on 27 April 2007.

6 Mr Hindson appeared for Mr Egan and Mr Devlin appeared for the Director. Mr Egan gave evidence and was cross-examined. His mother also gave evidence. Inspector Payne gave evidence for the Director.

7 Both parties made submissions

8 Inspector Greg Payne, whose duties with the Melton Police Service Area, include performing the role of Licensing Inspector, objected to the application.

9 Under s 41(a) of the Act, a licensing inspector may object to the grant of a licence, including, in the case of a grant, on the ground that the proposed licensee is not a suitable person to hold the licence.

10 On review, where the Inspector has objected, I have discretion under s 47 of the Act to refuse to grant a contested application on any of the grounds set out in s 44(2). Section 44(2)(a) states :

(a) in the case of a grant or transfer of a licence or BYO permit, that the applicant or proposed transferee is not a suitable person to hold or carry on business under the licence or BYO permit;

11 "Suitable person" is not defined in the Act. My task is to decide whether to grant the application or refuse it on the grounds that Mr Egan is not a suitable person to hold or carry on business under the licence.

12 Inspector Payne had objected at first instance, and continued his objection at this hearing. He objected because of Mr Egan's prior convictions.

13 Mr Egan has the following convictions :

•

On 13/9/94 Broadmeadows Magistrates Court charged with Theft. Released on a Good Behaviour Bond. To pay $250 to Court Fund. Without conviction.

•

On 16/1/94 a Traffic Infringement Notice for Exceeding the Speed limit by 50km/h or more. Fined $360. Car licence suspended for 6 months.

•

On 26/5/94 Broadmeadows Magistrates Court charged with Disobey Traffic Control Sign. Fined $369. Car licence suspended for 6 months. Appealed. Appeal abandoned on 28/8/94.

•

On 20/9/94 Broadmeadows Magistrates Court charged with Exceed Speed. State False Name and Address and Drive whilst Suspended. Fined $1250. Variation to fine sought on 6/11/96 to perform 50 hours of Community Work.

•

On 1/9/97 Kyneton Magistrates Court charged with Theft. 3 mths imprisonment suspended for 2 years: Obtaining Property by Deception, 3 mths imprisonment suspended for 2 years: Cultivate a Narcotic Plant, Use a Drug of Dependence, both charges Released on a Good Behaviour Bond for 12 months without conviction to pay $500 to Court Fund: Make False Report to Police: Fined $1000 and Drive Whilst Suspended: Fined $250 Car licence suspended for 6 months. Appealed. Appeal abandoned on 28/8/94.

•

On 24/5/99 Kyneton Magistrates Court charged with Exceed .05. Released on a Good Behaviour Bond for 12 months without conviction.

•

On 11/3/05 Sunshine Magistrates Court charged with Exceed .05. Fined $500 Car licence cancelled and disqualified for 12 months.

•

On 23/11/05 Broadmeadows Magistrates Court charged with Drive Whilst Disqualified. 4 months imprisonment suspended for 12 months.

14 In his evidence, Inspector Payne reiterated that his concern was that Mr Egan's history of convictions demonstrated a consistent pattern of disregard of Court orders and dishonesty over a long period of time. He was concerned that in an area of licensing which was self-regulatory, and not heavily policed, self-discipline and responsibility are important. His concern at this stage is that Mr Egan has not demonstrated a consistent pattern of discipline and that, in his opinion, more time is needed for Mr Egan to show he can be consistent, responsible and disciplined.

15 Mr Egan did not dispute the convictions. He gave evidence about the circumstances surrounding those convictions, seeking to give the impression they were less serious than would appear from the conviction report itself. For example, he explained that the marijuana was just a few plants he had cultivated in a shed on his parents' property. In cross-examination, it emerged that it was grown with assisted lighting and in circumstances where he had evidently given careful thought to its cultivation.

16 In his evidence, he said that it was unfortunate the police had found this. I queried this evidence with him and my understanding of his evidence was that he regarded himself unfortunate to have been caught. It turns out the police had visited and searched the family's property and had come upon the marijuana as part of their investigations into a fraud Mr Egan and his brother had engaged in. They had made a false report to police about his brother's car being stolen. In fact he and his brother had hidden the car and claimed insurance, and kept the car for second hand parts.

17 Mr Devlin submitted that the individual offences in themselves were not sufficient to show unsuitability. He submitted that what they did demonstrate was that Mr Egan was not a suitable person to hold a licence because of the consistency of the offences and more importantly, Mr Egan's propensity to disregard lawful orders and directions given by the courts.

18 He submitted that Mr Egan had only recently, in November 2006, completed the last period of supervision by the Court. There was insufficient time for him to demonstrate that the risk created by his past conduct has diminished so that one could have confidence that the public interest would be protected if the licence was granted. There has been insufficient time for Mr Egan to demonstrate he has matured and rehabilitated himself.

19 This was particularly important, Mr Devlin submitted, where the licence sought was a pre-retail licence which places the licensee in a greater position of independence and self regulation, compared with other licences such as a bottle shop or club licence where police can attend at any time and monitor.

20 Mr Hindson submitted that the test for whether a person was suitable or not to hold a licence was a question of fact and the issue was whether Mr Egan was now mature. It was not about punishing the applicant. He referred to Mr Egan's forthright presentation about his past history, his evidence that he regrets his past, is not proud of it, particularly as he sees in hindsight the impact it has had on what he has chosen to do.

21 He submitted that there was evidence of his growing maturity. First, he had served his suspended sentence for driving whilst disqualified without breach. Secondly, he had moved on in the last 18 months taking steps to establish a business.

22 Mr Hindson submitted that the indictable offences occurred many years ago, and given Mr Egan's explanation of their circumstances, and his disclosure of them, these matters should not weigh against the grant of the licence. Further, he submitted that the criteria for considering whether a person is suitable, vary according to the terms and objects of the Act and the nature of the benefits to be obtained. Quite simply, he submitted that, in this case, rather than a licence at large, Mr Egan is seeking a very strict licence which only permits supply to a person who holds a licence. He submitted, having regard to the objects of the Act, there was nothing to suggest Mr Egan would operate in a manner that would offend the objects of the Act. It would be easy for the regulator to discern whether Mr Egan was operating according to the licence, because he is not retailing and there is a small body to whom he could sell.

23 There is no statutory definition of "suitable person" in the Act. I agree with Senior Member Megay's observations in West Heidelberg RSL Sub-Branch Inc v Director of Liquor Licensing [2006] VCAT 347, that -

The test is one of 'suitability' and in the absence of any statutory guidance as to what might be taken into account in assessing 'suitability' one must view it in the context of the particular legislation.

24 Further, I am mindful of Kaye J's words in Buzzo Holdings Pty Ltd and Anor v Loison [2007] VSC 31 [16] :

In their submissions before the senior member, and before me, the parties correctly recognised that the powers of the tribunal under ss 90, 91 and 92 of the Act are intended for the protection of the public, and not for the punishment of particular individuals or corporations. Thus it was accepted that the senior member correctly identified the jurisdiction exercised by him as a being directed to the protection of the public, the upholding of industries standards, and the maintenance of public confidence in the liquor industry.

25 Whilst that case concerned different sections of the Act, nevertheless it was an inquiry into whether or not a licensee was a suitable person to hold a licence and I adopt the principles set out there.

26 Mr Egan on four occasions, most recently when he was charged in 2005 with driving whilst disqualified, has breached Court orders. On two occasions he has driven whilst suspended; he failed to perform any more than the first day of 50 hours community work, imposed instead of a fine of $1250.00 and drove whilst disqualified. I agree with Mr Devlin's submissions that this demonstrates a propensity to disregard lawful orders and directions given by the courts.

27 The breaches have occurred over a long period and the latest I regard as recent. I agree with Mr Devlin's submissions that insufficient time has passed for Mr Egan to demonstrate that he has matured and rehabilitated himself, such that one could have confidence that he would observe the terms of the licence sought at all times, particularly given that it is largely self-regulatory. I accepted Inspector Payne's evidence that Mr Egan has not at this stage demonstrated a consistent pattern of discipline and shown he can be consistent and disciplined, which are important where the licence is essentially self-regulated.

28 I do not accept Mr Hindson's submissions that it would be easy to discern whether Mr Egan was operating the licence according to regulation because he is not retailing and there is a small body to whom he can sell. Whilst there might be a small market, the difficulty is that it is a self-regulatory licence which I am satisfied requires the licensee to be consistent, responsible and disciplined, attributes which Mr Egan has not yet demonstrated he possesses.

29 I am not satisfied Mr Egan has yet established himself as a person suitable to hold a licence. He has put his own interests and convenience against an observance of the law on not just one occasion in the distant past, but on four occasions, the last in 2005. In a highly regulated industry, where the licence he seeks is self-regulated, I am not satisfied he is a suitable person to hold the licence he seeks.

30 In these circumstances, I affirm the decision of the respondent.