14 Mr McLean also addressed short submissions in relation to the first appellant. He submitted that the senior member erred in making a finding against the first appellant by failing to consider properly or at all the relationship between Buzzo and the first appellant. However, Mr McLean's principal submissions on behalf of the first appellant focussed on the size of the fine imposed. He submitted that it was manifestly excessive and that an appropriate fine would have been in the region of $5,000.
15 In response, Mr Dennis, who appeared for the respondent, submitted that a number of the grounds of appeal argued by the appellants alleged errors of fact rather than errors of law. He submitted in particular that the propositions that the senior member failed to give due weight, or gave excessive weight, to particular factors, constituted allegations of factual errors by the senior member, which did not constitute errors of law. Mr Dennis further submitted that this was a case where there was detailed and lengthy discussion between the senior member and counsel for each party. The facts were contained in the Tribunal book which was before the senior member. Most if not all of the critical facts were not in dispute. In addition, concessions were made by counsel for the appellants in the course of discussion with the senior member. The senior member then gave ex tempore reasons. Those reasons must be construed and understood in the context of what immediately preceded them. In that context the reasons were adequate, and provided a proper explanation of the basis upon which the senior member formulated his conclusions, and made his final orders. Mr Dennis submitted that the central finding that Buzzo in February 2004, and in February 2006, lacked the requisite common sense to be entitled to occupy a place in the liquor industry was a finding that neither required nor indeed permitted detailed reasons. Mr Dennis further submitted that the conduct by Buzzo on the night of 3 February 2004 was extremely serious, totally irresponsible, and utterly reprehensible. The acts of Buzzo in making available to Scandolera a drink containing caustic solution, taking no steps to stop Scandolera drinking it, and doing very little if anything to assist Scandolera when he subsequently became distressed, all manifested a gross lack of common sense. Mr Dennis submitted that when Buzzo was subsequently interviewed one month later by the police he still did not know the "real implications" of the substance which he gave to Scandolera. In those circumstances, Mr Dennis submitted that the senior member was fully justified in reaching the conclusions that he did, and in disqualifying Buzzo for nine years. Indeed he submitted that it was reasonable to argue that anyone who does such a stupid and dangerous act as that committed by Buzzo should never be entitled to run or be involved in a hotel. He submitted that the public would be entitled to lack confidence in a system which permitted such a person to be involved in such a responsible industry. Mr Dennis further submitted that the senior member was not in error in referring to his earlier decision Whiting v AMC Investments. The senior member had little to go on in determining how long the period of disqualification should be. In making that evaluation it was of some use to him to compare the culpability of Buzzo with that of the licensees in the AMC case.
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 being directed to the protection of the public, the upholding of industries standards, and the maintenance of public confidence in the liquor industry.[2]
17 A number of the grounds of appeal relied on by both appellants contain the allegation that the tribunal member failed to give any or any adequate reasons for findings made by him. The requirement that a court, or judicial tribunal, in an appropriate case, give reasons for its decision is well established.[3] In general, the same principles apply to statutory tribunals such as the Victorian Civil and Administrative Tribunal, which are required by their enabling statutes to give reasons for any order it makes (other than an interim order).[4] The authorities suggest that the rationale for the requirement for the provision of reasons for decision has three components. In cases in which an appeal lies, the provision of the reasons for judgment identifies for the appellate court the reasoning of the tribunal, and the basis upon which the decision under appeal was made. Secondly, the provision of reasons enables the losing party to understand why it was not successful in the litigation. Thirdly, there is a public interest in maintaining the openness of the judicial system and thereby fostering public acceptance of judicial decisions and the integrity of the judicial process.[5] As I have stated, s.148 of the Victorian Civil and Administrative Tribunal Act provides that an appeal to this Court from an order of the tribunal only lies on a question of law. Where the appellate jurisdiction is so circumscribed, the first rationale for the provision of reasons for the decision is thus affected. In those circumstances it is recognised that the requirement for the provision of reasons as to findings of fact by a magistrate or tribunal is less rigorous than in a case in which an appeal lies on a question of fact, such as in an appeal from a trial court to the Court of Appeal.[6] In Sun Alliance Insurance Ltd v Massoud,[7] Gray J, in delivering the judgment of the Full Court of Victoria, stated that reasons for a decision will be inadequate if the appeal court is unable to ascertain the reasoning on which the decision is based, or if justice is not seen to have been done. It is trite that the question of what suffices to satisfy those two requirements will vary from case to case.[8] In particular, the degree of detailed reasoning which is required depends on the nature of the determination by the tribunal and the complexity of the issues.[9] A failure to provide adequate reasons may constitute an error of law.[10]
18 In some of the grounds of appeal relied on by Mr McLean relating to the length of the disqualification imposed on Buzzo, it is alleged that the Tribunal erred by failing to give any or any due weight to particular factors, and by giving undue weight to other factors. Ground 15 alleges that the Tribunal erred at law by imposing a penalty upon the second appellant which was so excessive that the Tribunal must have taken into account some erroneous consideration in arriving at the decision. The decision of the member of the Tribunal to impose a disqualification, and his decision as to the period of that disqualification, is essentially a discretionary decision. The principles applicable to an appeal from, or a review of, an exercise of such a discretion are well established. There must be shown to be an error of law. Such an error of law may occur where the Tribunal member has taken into account an irrelevant matter, or has failed to take into account a relevant factor. In an appropriate case it may be evident that the Tribunal member has given excessive weight to one factor, without properly or at all taking into account other relevant considerations. Furthermore, in the absence of demonstrable error, the ultimate result arrived at by the Tribunal may be so unreasonable or unjust that the appellate court is able to conclude that the Tribunal failed to exercise his discretion in accordance with the law. In the context of the imposition of a penalty or sanction, the question in such a case is whether the period of sentence or disqualification is manifestly excessive or manifestly inadequate.[11]
19 With those principles in mind I turn to the matters which were argued on the appeal on behalf of each appellant. It is convenient to deal first with the appeal of the first appellant. Mr McLean argued that the tribunal erred in failing to give proper reasons for finding that the first appellant was unsuitable to hold a licence under the Act. In particular he submitted that the tribunal failed to consider the relationship between the first appellant and Buzzo in relation to the incident. That submission can be shortly disposed of. I have read the transcript of argument before the tribunal. The materials in the Tribunal book disclose that Buzzo is a director of the first appellant, and had been employed by the first appellant as the manager of the Red Cliff Hotel since March 2002. Previously he had been employed by the first appellant as the manager of the Overlander Hotel in Shepparton for a period of almost eight years. In his statement which was tendered to the tribunal he stated that he managed the Red Cliff Hotel unassisted and that he remained on the hotel premises most of the time during weekday trading hours and all times on the weekends. In those circumstances it is not surprising that counsel who appeared for the appellants before the tribunal did not seek to make the point now relied upon by Mr McLean. Indeed counsel before the tribunal made no separate submissions for the first appellant. At one stage the tribunal member asked him that, if he found Buzzo not to be a suitable person under s.91(1)(k) of the Act, what should he do. To that counsel responded that it would be appropriate to impose a monetary penalty "high on the scale within the $10,000 limit that is available. That would be very cheap at that price as it were." Counsel accepted that that penalty could only be imposed on the first appellant company and not on Buzzo. In those circumstances, and given the concession made by counsel before the tribunal, in my view the tribunal member was not required to address the issue now raised by Mr McLean, namely, that of the relationship between Buzzo and the company. If he had done so, the only appropriate conclusion would be that the conduct of Buzzo should be taken as reflecting on the suitability of the first appellant, given the role and responsibilities of Buzzo in the management of the hotel.
20 Mr McLean also submitted that the tribunal erred in failing to give adequate reasons for the penalty of $9,000 imposed on the first appellant; that in imposing the penalty of $9,000 the tribunal failed to consider adequately or at all the history of the first appellant as a licensee; and that the tribunal imposed a penalty that was excessive in the circumstances. Those submissions must, in my view, be viewed in the light of the concession made by counsel before the tribunal, in which he effectively invited the tribunal to impose a monetary penalty on the first appellant which was "high on the scale within the $10,000 limit". No doubt counsel issued that invitation to the senior member for good reason, namely, to deflect the weight of the sanctions to be applied by the tribunal from Buzzo onto the shoulders of the company. Nonetheless, given that concession, the tribunal cannot be said to have erred in determining to impose a fine "at the higher level" of that available. Although the penalty of $9,000 could be said to be particularly high on that scale, nonetheless, in light of the concession made before the tribunal, I do not consider that it could be characterised as being manifestly excessive, or imposed without giving due weight to the history of the first appellant as a licensee under the Act.
21 For those reasons I do not consider that any of the grounds of appeal argued on behalf of the first appellant should succeed. Therefore the appeal of the first appellant will be dismissed.
22 I turn then to the grounds of appeal addressed by Mr McLean on behalf of the second appellant. In his reasons for decision the Tribunal member, in effect, made three decisions. First, he decided that, because of his conduct on 3 February 2004, Buzzo was, both then and at the time of the decision, not a suitable person to hold a licence under s.90(1)(k) of the Act. Secondly, he decided that the only appropriate disposition in respect of Buzzo was to impose a disqualification of him under s.92(1). Thirdly, the Tribunal member decided that the period of disqualification should be nine years, and that it should apply to each of the capacities identified in s.92(1)(a) to (f). Most if not all of the submissions made by Mr McLean addressed the third decision. Nonetheless, some of the grounds of appeal did relate to the first two decisions. Some of the arguments by Mr McLean may be said to have touched on those grounds of appeal although, as I have stated, he did expressly concede that he could not argue against the conclusion by the Tribunal member that Buzzo was unsuitable for the purposes of s.90(1)(k).
23 In his submissions Mr McLean made much of the finding by the Tribunal member that, in the two years since the incident, nothing had been shown to suggest that Buzzo had gained the common sense which he hitherto had lacked. He submitted that the member had committed a significant leap of logic by generalising from one specific event to concluding that such was the lack of common sense of Buzzo that the intervening period of two years was insufficient to repair it. He submitted that no proper reasons were shown why the member came to that conclusion. Further he submitted that that conclusion failed to take into account Buzzo's otherwise unblemished record, and his period of service in the liquor industry.
24 In my view, the reasoning of the Tribunal reason was sufficiently stated in his oral reasons. The senior member made it clear that he regarded the conduct of Buzzo, in February 2004, as manifesting a near total lack of any common sense. He expressed the view that the effluxion of two years did not persuade him that Buzzo had learned his lesson or gained the common sense which was so absent in his character in February 2004. In my view, that conclusion is not one which requires elaborate elucidation. The senior member's statement of reasons is sufficient to inform Buzzo, and to make clear to the Court, the basis upon which he reached the conclusion that Buzzo, as at February 2006, was not suitable to hold a licence.
25 I also consider that the senior member did not err in law in determining that he should impose a disqualification on Buzzo. In his reasons the senior member stated that he was bound to protect the public, to maintain the standards in the liquor industry, and to give the public confidence in those who work in the industry and who own hotels. He stated that anything less than a suspension for such a serious act would send completely the wrong message to the public generally and to the hotel industry in particular. That statement by the Tribunal member is, in my view, a sufficient statement of his reasons for concluding that it was incumbent upon him to impose a period of disqualification on Buzzo. Indeed Mr McLean did not address any serious argument to the contrary. Mr McLean did submit that the Tribunal member had failed to give any reasons why he saw fit to disqualify Buzzo from each of the capacities outlined in paragraph 92(1)(a) to (f). However, in the passage to which I have just referred, the Tribunal made it plain that he considered that it was necessary to give the public confidence in those who work in the industry and those who own hotels. Again, that part of the senior member's reasons must be viewed in the light of the issues agitated in argument before him. In the course of submissions to the Tribunal, Senior Sergeant Eager had submitted that the disqualification should apply to each subparagraph of s.92(1), which, he submitted, "would result in the removal of John Buzzo from the licensee company." Counsel who appeared for the appellants before the Tribunal did not suggest that the member should adopt a differential approach to the subparagraphs in s.92(1). Rather he submitted that the Tribunal ought not to disqualify Buzzo at all. When the Tribunal member announced that he would disqualify Buzzo for a period of nine years, counsel for Buzzo asked the Tribunal member as to the nature of the disqualification, by reference to the subparagraphs on s.92(1). He did not at that stage seek to contend that the disqualification announced by the Tribunal member should only apply to some or one of those subparagraphs. In those circumstances, it did not behove the Tribunal member to embark on lengthy or detailed reasons addressing each of the subparagraphs of s.92(1). In my view it was sufficient for him to state, as he did, that he considered that the imposition of the disqualification was necessary to give the public confidence in those who work in the industry and also in those who own hotels.
26 I turn then to the question of the period of disqualification. The senior member correctly characterised Buzzo's conduct as being so serious that it could not be tolerated, and that it was necessary, by his disposition, to send a clear and unambiguous message to the industry and to the community at large. No issue could be taken with those views. However, in determining the length of the period of the disqualification the senior member referred to his previous decision in the AMC Investment case and stated that the situation in the present case was "far worse" than that in the AMC Investment case. He noted that the incident of 3 February 2004, while isolated, could nonetheless have easily ended up in death, and referred to the failure of Buzzo to render any practical assistance to Scandolera after he had given him the drink. With those matters in mind he imposed the disqualification of nine years on Buzzo.
27 It is apparent from the foregoing that the senior member, in his reasons, relied significantly on the period of disqualification imposed in the AMC Investment case as providing a yardstick for the period of disqualification to be imposed in the present case. In my view, in doing so the senior member fell into error. First, if it was at all relevant to use a yardstick, then clearly the AMC Investment case was inappropriate for that purpose. Indeed it was noted by the senior member during discussion with counsel that the AMC Investment case involved a continued pattern of dishonesty by the licensee and the manager of the licensed premises over a period of two months. In his decision in that case the senior member had observed that that conduct involved selling stolen liquor from the licensed premises, and thus using the licensed premises for criminal purposes. On any view, the AMC Investment case was very different to the present case, and was an inappropriate case to use as any form of comparison with the case before the senior member.
28 However, and more importantly, it was in my view inappropriate and erroneous for the senior member to rely so significantly on the period of disqualification in another case in order to determine the appropriate period of disqualification in the instant case. What was relevant for the senior member was to tailor the period of disqualification to fulfil the objectives which he had correctly identified earlier in his reasons, namely, the protection of the public, the deterrence of Buzzo, the maintenance of industry standards, and the preservation of community confidence in the industry. Each case essentially depends on its own circumstances. The decision in the AMC Investment case would not inform or assist at all in determining how each of those objectives are to be fulfilled, when determining the period of disqualification in the instant case. In short, the AMC Investment case had little relevance to the exercise to be performed by the senior member, namely, determining, on the facts and circumstances of that case, the period of disqualification which was required for the purposes which he had already set out in his reasons.
29 The use of precedents in setting periods of disqualification is a concept more commonly used in criminal sentencing, than in determining the appropriate disposition by a tribunal exercising the protective jurisdiction contained in the Liquor Control Reform Act. Even in the field of sentencing the use of precedents has only a limited value.[12] However, in the present case it operated, in my view, to distract the senior member from the task which was before him. In doing so his reasons do not reveal that he appropriately gave weight, not only to the fact that the incident in question was isolated, but also to other matters including the length of time in which Buzzo had served in the industry without any prior incident, the steps taken by Buzzo since the incident to protect his customers from future abuse, and the effect of the criminal proceedings against Buzzo as a particular deterrent to him. The reasoning of the senior member does not reveal how he considered a nine year period of disqualification necessary in order to deter someone of Buzzo's antecedents. It is true that earlier in his reasons the senior member had stated that common sense is something that is learnt over a long period of time. However that generalisation, if valid, could only be applied in determining the period of disqualification, by taking into account the particular circumstances of Buzzo himself. In addition, although it is difficult to assess what length of disqualification is necessary to maintain industry standards and public confidence, nonetheless the reasons by the senior member do not address that issue at all. On the contrary, as I stated, the senior member seems to have felt it necessary to measure the culpability of Buzzo by comparison to the culpability of the licensee and the manager in the AMC Investments case, and to extrapolate from that an appropriate period of disqualification. It is not evident to me, nor would it be to Buzzo, why it was necessary to disqualify him for such a lengthy period of time, in order to maintain industry standards and public confidence in the industry.
30 In those circumstances I consider that the second appellant has made out a number of the grounds of appeal set out in his notice of appeal. In particular, he has made out Grounds 16, 17 and 18, which allege error at law by the Tribunal by imposing the nine year period of disqualification by reference to the AMC Investments case. In addition the Tribunal erred by failing to give proper consideration to the history and background of the second appellant (Ground 8), by failing to give any weight to the deterrent effect on the second appellant of the criminal proceedings and the penalty imposed in the Magistrates' Court (Ground 11(f)), and by failing to give any adequate reasons why it was necessary to disqualify the second appellant for a period of nine years (Ground 12).
31 In addition, I am of the view that the period of disqualification imposed by the Tribunal was so excessive that the Tribunal must have taken into account some erroneous consideration in arriving at the decision to impose it (Ground 15). Generally, and certainly in the criminal law, questions of manifest excess (or inadequacy) are questions which admit of little argument or amplification.[13] The period of nine years' disqualification applies to all the six functions specified in s.92(1) of the Act. That period is a very significant period of time. Notwithstanding the gravity of Buzzo's conduct, I am satisfied that the period imposed is manifestly excessive in all the circumstances. It is significantly in excess of the period necessary to deter Buzzo from like conduct in the future, to maintain industry standards, and to preserve public confidence in the liquor industry. I therefore consider that Ground 15 of the grounds of appeal is also made out.
32 For those reasons I consider that the second appellant has successfully made out Grounds 8, 11(f), 12, 15, 16, 17 and 18 of the amended notice of appeal. Both parties submitted that if I came to the conclusion that the appeal of either appellant should be allowed, then I should substitute an appropriate order myself. Section 148(7) of the VCAT Act provides that the Court may, on appeal, make an order (inter alia) varying the order of the Tribunal, or making an order that the Tribunal could have made in the proceeding. Having read all of the materials which were placed before the Tribunal, I consider that I am in the same position as the Tribunal in being able to determine the appropriate period of disqualification which should be served by Buzzo under s.92(1).
33 As stated by the senior member, the conduct involved in Buzzo's behaviour on the evening in question was particularly serious. The potential effects of the ingestion of the substance which Buzzo placed in Scandolera's glass are described in the report of the Victorian Institute of Forensic Medicine dated 6 April 2004. Without reciting those effects at length, it is clear that if Scandolera had imbibed the mixture, he could have sustained particularly serious permanent injury, and possibly could have died. Dr Barker, who examined Scandolera on the next day, stated: