First Appellant v Respondent

"That may be true. However, what this one incident, in my mind, shows is a complete lack of common sense by Mr Buzzo. Common sense is something that responsible people usually possess and can only be learned by experience over a long period of time.

I am surprised that a man who was 28 years of age, as Mr Buzzo was at the time that this incident occurred, would not realise that what he was doing was not only a practical joke, but something extremely dangerous that could have conceivably caused death. To my mind, if he lacked that level of common sense then, he is not a suitable person within the meaning of s.90 of the Act to hold a licence of licensed premises at this time. Nothing has been shown to suggest that Buzzo has gained the common sense he lacked at the time of the incident.

There may be other situations which occur that he would not be able to apply sufficient common sense to and thus a dangerous situation would result. Further, I take into account that two years have passed since this incident and nothing has happened since then. However, in my view, that does not of itself show that Mr John Buzzo has in fact learned his lesson or gained common sense.

While I have no doubt Mr Buzzo would not be giving customers glasses of caustic solution again he may do something equally stupid. Further, it is important that a clear message be given to the liquor industry that the conduct of people has to be exemplary, particularly in matters that concern the industry itself and public safety. Further, the public should be able to have confidence in the conduct of a publican."

7 The member then concluded that Buzzo and the licensee, the first appellant, are not suitable persons to hold a licence. He considered that a fine at the "higher level" should be imposed on the first appellant, and thus imposed a penalty of $9,000. In respect of Buzzo, the senior member stated:

" ... I am bound to protect the public and I am bound to maintain the standards in the liquor industry, so that those in the liquor industry know what the standards are and the public can have confidence in those who work in that industry and those who own hotels. In my view, anything less than suspension for such a serious act as this, albeit a single act, would send completely the wrong message to the public generally and to the hotel industry in particular.

To be serving or making available caustic solutions to customers, even though the publican may not have known of their exact properties or what they may do to the people, is so serious that it just cannot be tolerated and a clear and unambiguous message should be sent. Sergeant Eager has suggested that Mr John Buzzo be suspended for seven years.

I have thought seriously about this matter. I have in other cases where there has been a course of conduct showing dishonesty, namely, the AMC Investment case, suspended a person for seven years. However, in my view, this situation is far worse than that. While it is an isolated incident, it is nonetheless an incident that could have very easily ended up in death as it involves public health."

8 Taking those matters into account the senior member disqualified Buzzo from each of the functions set out in s.92(1)(a) to (f) of the Act for a period of nine years.

9 An appeal from the Tribunal to this Court, under s.148(1) of the Victorian Civil and Administrative Tribunal Act 1998, only lies on a question of law. The notice of appeal delivered pursuant to the order of the Master contains some 15 grounds of appeal. On the hearing before me, I gave leave to the appellants to add three further grounds. The amended notice of appeal alleges that the tribunal erred at law in concluding that the appellants were not suitable persons to hold a licence under the Act, erred at law in imposing a $9,000 fine on the first appellant, and erred at law in imposing a disqualification of nine years on the second appellant. Before considering those grounds of appeal I should first set out the relevant provision of the Act.

10 Section 53(2) provides that if a licence or BYO permit is granted to a body corporate, the directors of the body corporate are relevantly liable as licensees or permittees.

11 Section 90(1) of the Act empowers a licensing inspector to apply for an inquiry under Part 6 Division 1 of the Act in the circumstances therein provided. Section 90(1)(k) provides for an application for an inquiry where the licensing inspector considers that a licensee "is otherwise not a suitable person to hold a licence or a BYO permit". Section 91(2) provides that if after conducting an inquiry the Tribunal is satisfied of any of the grounds set out in s.90(1), it may make orders cancelling or suspending the licence or permit, an order endorsing the licence or permit, an order imposing a fine on the licensee not exceeding $10,000, or an order varying the licence or permit. Section 92(1) further provides that if satisfied that a ground for making an order under s.91 exists the Tribunal may "also order" that the licensee or permittee or any director or nominee of the licensee or permittee be disqualified for the period prescribed by the Tribunal from any of the activities set out in s.92(1), which include: holding a licence; being a director of a body corporate which holds a licence; having a beneficial interest in the shares of a body corporate which holds a licence; in any way taking part in or being concerned in the management of licensed premises; or being employed by any person who holds a licence.

12 Mr McLean, who appeared for both appellants, focussed his submissions principally, if not almost exclusively, on the decision of the senior member to disqualify Buzzo from each of the functions described in s.92(1)(a) to (f) for a period of nine years. Mr McLean submitted that the senior member had erred in making a generalised finding that Buzzo was, in 2006, so lacking in common sense that it was necessary and appropriate to impose a nine year disqualification on Buzzo in respect of each of those nine functions. Mr McLean submitted that the senior member erred in drawing that general conclusion from one isolated and specific incident which occurred on 3 February 2004. He submitted that in doing so the senior member gave excessive and undue weight to the circumstances of that one incident, and erred in failing to give any or any adequate weight to Buzzo's previous 12 year record in the liquor industry, and also to the fact that a further two years had passed, without any further blemish, since the date of the incident. He submitted that the senior member failed to give any or any adequate weight to the fact that Buzzo had already been brought before the criminal courts, and the deterrent effect which that process would have had on Buzzo. Mr McLean submitted that the senior member gave no reason why he concluded that nothing had been shown to suggest that Buzzo, in the intervening two years, had gained the common sense which was so lacking at the time of the incident. In doing so, Mr McLean submitted, the senior member failed to give any weight to the uncontradicted evidence, in the form of statements contained in the Tribunal book, of Buzzo and Sam Buzzo. Those statements describe Buzzo's recognition of the wrongfulness of his conduct, and they detail the steps taken by the first appellant and Buzzo to protect consumers from similar incidents. Mr McLean submitted that the disqualification of nine years was punitive rather than protective. He submitted that the reference by the senior member to his earlier decision in Whiting v AMC Investments, and the use of that decision as a yardstick in determining the appropriate time of disqualification, was erroneous. That decision was irrelevant. The use of it by the senior member demonstrated that he was adopting an approach which was penal rather than making a reasoned assessment as to what disposition was necessary to protect the public, to maintain industry standards, and to deter Buzzo from any similar conduct in the future. Mr McLean further submitted that the senior member gave no reasons why he disqualified Buzzo from each of the functions in s.92(1)(a) to (f). He submitted that it was only necessary to disqualify him from a managerial role, and any role related to the sale of opened alcohol.

13 As I have stated, the amended notice of appeal contains a plethora of grounds. Some of them address the finding by the senior member that Buzzo is and was unsuitable to hold a licence. In his submissions Mr McLean expressly accepted that he had no basis on which to impugn the finding by the senior member that Buzzo was and is unsuitable to hold a licence for the purposes of s.90(1)(k). His submissions were directed to the fact and period of disqualification of Buzzo, and to the functions from which Buzzo was disqualified by reason of the member's decision. Thus Mr McLean's submissions were directed to grounds 8 to 18 of the amended notice of appeal. Those grounds may be summarised as alleging:

That the senior member failed to give any or any due weight to the history of Buzzo's employment in the hotel industry during the 12 years before February 2004 and the two years thereafter;

the Tribunal failed to give any or any adequate reasons for its findings;

the Tribunal gave undue weight to the circumstances of the incident;

the Tribunal failed to give any or any due weight to the personal circumstances of Buzzo;

the Tribunal failed to give any reason why it was necessary to disqualify Buzzo from each of the functions in s.92(1)(a) to (f);

the term of disqualification was manifestly excessive; and

the senior member erred in giving undue weight to his earlier decision in Whiting v AMC Investments.

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:

"Mr Scandolera was fortunate he did not swallow any of the fluid. I understand it was a type of caustic solution. These solutions are intensively corrosive to human tissue and bind irreversibly thereby perpetuating their destructive action. Ingestion of the fluid can result in death or permanent impairment. For this reason, I consider the action of the publican to be quite reckless."

34 The conduct of Buzzo was grossly irresponsible and reprehensible. He behaved in a manner quite antithetical to the standard of behaviour which the public is entitled to expect of a manager of licensed premises. Buzzo's misconduct was aggravated by his behaviour, after Scandolera had tasted the substance. He failed to tell Scandolera of the contents of the substance, and he failed to seek and obtain appropriate immediate medical treatment for Scandolera. That behaviour is further evidence of the gross irresponsibility manifested by Buzzo on that evening. The Tribunal member was entirely justified in concluding that that type of behaviour was clear evidence that Buzzo was unsuitable to occupy the position of a licensee.

35 On the other hand, it must be borne in mind that Buzzo's conduct was not malicious. The senior member found, and on the materials I am satisfied, that Buzzo did not intend to cause serious injury to Scandolera. He and Scandolera had been joking throughout the night, and clearly Buzzo's conduct was intended as a joke, albeit a recklessly irresponsible joke. Furthermore, Buzzo had been involved in the licensed liquor industry for over a decade before the incident. During that time he had occupied positions of responsibility, without any blemish on his record. Subsequently, his father and he have implemented sensible and practical steps to prevent the accidental misuse of cleaning substances at the first appellant's licensed premises. The implementation of those steps is evidence of a recognition by Buzzo of the dangerous nature of the conduct indulged in, and of his important responsibilities as a manager of licensed premises. Buzzo had been dealt with on the criminal charges brought against him, and it would be safe to infer that those proceedings had reinforced to him the reckless and foolish nature of his conduct.

36 As the senior member of the Tribunal correctly stated, the incident exhibited a total lack of the common sense and good judgement which the public is entitled to expect a manager of licensed premises to possess in large measure. It is in the interests of the public, and for the public's protection, that Buzzo be removed from association with licensed premises in any capacity, whether as director, manager, shareholder or employee. A disqualification of Buzzo from each of the capacities listed in s.92(1) of the Act will not only reinforce to Buzzo the grave view taken by the law of his conduct, but it will also set a clear standard of behaviour which the Court expects those involved in the liquor industry to abide by. Furthermore, it will reassure the public that the law will not tolerate, in any form, any association by persons in the liquor industry who are unfit to participate in it.

37 The question then arises as to the length of the disqualification to be imposed on Buzzo. Mr McLean submitted that, if I were to conclude that he ought to be disqualified, such a period of disqualification should be one to two years. In my view such a period would be inadequate to vindicate the purposes of the jurisdiction of the Tribunal, and this Court, under Part 6 of the Act. It is important that the public be protected from Buzzo for a sufficient period of time, so that there is no risk of repetition of any such conduct, or any like conduct, upon Buzzo's return to the industry. Furthermore, the period of disqualification must be of sufficient length to express properly the Court's condemnation of Buzzo's misconduct and to convey an unequivocal message to the industry that such behaviour, or any like conduct, will be met with by severe sanctions under the Act. In addition, the term of disqualification must be sufficient to reassure the public that the law will not tolerate persons who behave in the manner that Buzzo did, nor permit such persons to remain in the industry until there is every assurance that they have gained sufficient sense and good judgement to be permitted to participate in it. Bearing in mind those objectives, and taking into account the circumstances I have set out in paragraph 35 above, I consider that the appropriate term of disqualification, from each of the categories set out in s.92(1)(a) to (f) should be a period of three years. Such a term of disqualification is, in my view, sufficient and appropriate to ensure that Buzzo has learnt his lesson, to preserve proper standards of conduct in the industry, and to maintain public confidence in the industry.

38 I therefore conclude as follows:

1. The Tribunal member did not err in imposing a penalty of $9,000 on the first appellant. Accordingly the appeal of the first appellant will be dismissed.

2. The Tribunal member did err in disqualifying the second appellant under s.92(1) of the Act for a period of nine years. Pursuant to s.148(7)(b) of the Victorian Civil and Administrative Tribunal Act 1998, I set aside the order made by the Tribunal against the second appellant, and in lieu make an order that the second appellant be disqualified from each of the activities described in s.92(1)(a) to (f) for a period of three years.

[1] [2005] VCAT 1830 (2 September 2005).

[2] Compare Inglese and anor v Estate Agents Board and anor (Unreported, Supreme Court of Victoria, Murphy J, 15/8/89) BC 8900572 at 22; New South Wales Bar Associate v Evatt [1968] HCA 20; (1968) 117 CLR 177 at 183-4; Van der Hope v The Medical Board of Victoria [1950] VicLawRp 54; [1950] VLR 310 at 317.

[3] Sun Alliance Insurance Ltd v Massoud [1989] VicRp 2; [1989] VR 8 at 18-19.

[4] Victorian Civil and Administrative Tribunal Act, s.117(i); compare Body Corporate Strata Plan No 4166 & Ors v Stirling Properties Ltd (No. 2) [1984] VicRp 73; [1984] VR 903 at 911-12 (Ormiston J).

[5] Sun Alliance Insurance Ltd v Massoud (above) at 18; Beale v Government Insurance Office of NSW (1997) 48 NSWLR 440 at 442 (Meagher JA); Pettitt v Dunkely [1971] 1 NSWLR 376 at 388 (Moffitt JA).

[6] Perkins v County Court of Victoria [2000] VSCA 171; (2000) 2 VR 246 at 273 (Buchanan JA); Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 282.

[7] Above.

[8] Brittingham v Williams [1932] VicLawRp 35; [1932] VLR 237 at 239 (Cussen ACJ).

[9] Wakool Shire Council v Walters [2005] VSCA 216 at [35] (Nettle JA).

[10] Pettitt v Dunkley (above) at 381-2 (Asprey JA); Sun Alliance Insurance Ltd v Massoud (above) at 18 (Gray J).

[11] House v R (1936) 55 CLR 652 at 655-6; Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321 at 340 [59] (Kirby J); R v Langdon [2004] VSCA 205 at [69] to [75] (Gillard AJA); R v Cardona [1998] 2 VR 126 at 137-8 (Callaway JA).

[12] R v Langdon [2004] VSCA 205 at [75] (Gillard AJA).

[13] Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321 at 325 [6]; R v Monardo [2005] VSCA 115 at [28] (Batt JA).