Liquor Licensing Division v 4 Play

[4] Section 100 of the CCT Act relevantly provides:

"(1) A party to a proceeding before the tribunal may appeal to the District Court against a decision of the tribunal, with the court's leave, only on the ground of -

(6) On an appeal, the District Court may do any of the following -

(a) confirm, annul, vary or reserve the tribunal's decision; or

(b) remit the case to the tribunal for further hearing or rehearing; or

(c) make consequential or ancillary orders or directions."

[5] It is to be noted that an appeal to this court is "with the court's leave" but the respondent does not oppose the court hearing the appeal.[4]

[6] It is well established law that for an appellant to succeed on "error of law" the grounds thereof must be, stated with precision and the aggrieved party must point to some act or omission on the part of the judicial tribunal from which the decision is appealed which demonstrates a failure by it to apply proper legal principles in reaching its decision, or that it received or excluded relevant evidence which denied the Appellant the opportunity to receive a fair consideration of the issues involved.[5]

[7] The appellant's submissions may be summarised in the following terms:**

(a) That the Tribunal's approach in its consideration of the "suitability test" to be granted an AEP in concluding that the Respondent "...is not entitled to take into account the financial and taxation affairs of an applicant or nominee" is "narrow and wrong" in that "...it overlooks the requirement that all relevant matters be taken into account including but not limited to the specific matters in s 107E(1)";[6]

(b) That the Tribunal erred in finding that the conduct of the respondent or its nominee in respect of "financial and taxation affairs" is not relevant to "character, honesty and integrity" referred to in s 107E(1) of the Act in that "...such conduct may demonstrate a number of things either favourable or unfavourable about character honesty and integrity eg. scrupulous adherence to financial or legal obligations or a willingness to disregard such obligations for personal gain or a lax attitude to compliance with the law or criminal conduct";[7]

(c) That the Tribunal's further finding in its consideration of s 107E(1)(f) is erroneous in that it likewise construed this section too "narrowly......and in excluding from its scope a consideration of the use of financial records in identifying associates being persons who have entered into a business arrangement or relationship with an individual for the provision of adult entertainment;"[8] and

(d) Finally, that the Tribunal erred in taking a "narrow view" of its interpretation of s 107E(1)(h) where the applicant's suitability must also include a consideration of "any other matters prescribed under a regulation" which includes in this matter a consideration of s 33(1) of the Liquor Regulation 2002. Further that requirement should not limit an applicant's "previous conduct" to the interpretation given in paragraph [43] of the tribunal's reasons but should also encompass a full review and consideration of the applicant's or nominee's business structure and deficiencies.[9]

[8] The respondent's submissions may be summarised in the following terms:**

(a) The Tribunal did not err in its interpretation of s 107E(1) of the Act as the expression "suitable person"[10] must be considered in the context in which it appears in any given legislation and the Tribunal has had regard to all relevant authorities on point in reaching its decision;

(b) Likewise the Tribunal correctly interpreted the phrase "all relevant matters" in s 107E of the Liquor Act and "...in considering s 107E properly had regard to its legislative background";[11]

(c) The tribunal correctly interpreted the "suitability test" for an applicant for an AEP as it is a "suitability" for the provision of explicit sexual entertainment defined in paragraph 14 of the "Adult Entertainment Code" being part of the Liquor (Approval of Adult Entertainment Code) Regulation 2002. This must be considered in the light of its relationship to the Prostitution Act 1999 which provided for the establishment of legal brothels and which in effect was an extension of the burgeoning adult entertainment industry;[12]

(d) Further, in the Tribunal's interpretation of s 107E(1)(f) it correctly determined the purpose of an applicant's business structure transparency by equating s 33 of the Liquor Regulation 2002 with an applicant's "...conduct related to dealing between patrons and adult entertainers";[13] and

(e) Ultimately, the respondent submits that the Tribunal's decision correctly construes s 107E of the Act in that the "suitability test" must be interpreted relative to its purpose and that is "to provide entertainment of an explicit sexual nature" which does not include "a wide ranging inquiry or consideration of the financial arrangements and business structure of Mr Johnson".[14]

[9] The Tribunal delivered comprehensive reasons for its decision in which it:

▪ Set out the basis upon which it is entitled to review the Chief Executive's decision under the Act;

▪ Correctly identified the "relevant provisions" of the Act and Regulation and Prostitution Act 1999 upon which its review is to be considered;

▪ Correctly identified its powers upon review;[15]

▪ Considered "the evidence relied upon by the Chief Executive..." in reaching his original decision;[16]

▪ Carefully analysed the relevant legislation and its history including its relationship both temporal and directly with the Prostitution Act 1999 which provided the mechanism for the introduction of adult entertainment permits by the enactment of Part 9 of that Act;[17]

▪ In particular, in paragraph [37] of its reasons the Tribunal specifically considered the similarity of the "suitability test" between the Prostitution Act and s 107E of the Act and in particular highlighted the "one significant difference" between the "suitability" requirements of the two Acts respectively;[18]

▪ Considered the case law applicable to the "fit and proper person" concept;[19]

▪ Made a specific and crucial finding in paragraph [46] of its reasons that there is no evidence "that the applicant, nominee or any associate has:

(i) ......been convicted of an indictable offence or a prostitution offence";

(ii) ......(a) history of contraventions of the Act, Regulations under the Act, Code or conditions of any AEP";

(iii) ......been involved in illegal prostitution or having associated with criminals or having links with organised crime;"

(iv) "...been favourably considered by the Division in the context of a long list of applications to which section 107(1)(b) applies";[20]

▪ Considered in detail the applicant's and/or nominee's financial and corporate machinations together with his protracted dispute with the Australian Taxation Office;

▪ Accepted the applicant's "full disclosure" of his associates and business structure which though "complex" are not atypical in the world of commercial reality; and

▪ Finally concluded that the applicant and its nominee have satisfied the requirements of s 107D(1) of the Act to be granted an AEP.

[10] On a consideration of all of the above, I find that the appellant has not shown any error of law on the Tribunal's part in reaching its decision of 29 August 2007 in that the Tribunal conducted what could only be described as an exhaustive analysis of the many facets of evidence which lead to a consideration of "all relevant matters" to determine the suitability of an applicant for an AEP under s 107E(1) of the Act and as such considered the matter correctly according to law.

[11] It therefore follows that the appeal must be dismissed.

2. The appellant pay the respondent's costs of and incidental to the appeal to be agreed or assessed on the standard basis.

[4] Paragraph 3 of the respondent's outline of argument.

[5] Cf Order 53 r3(2) of Federal Court Rules 1979 (Cth); see also Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232.

[6] Paragraph 40 of Tribunal's reasons; paragraph 9 of appellant's outline of argument.

[7] Paragraph 10 of the appellant's outline of argument.

[9] See paragraph's [52] & [53] of tribunal's reasons.

[10] Cf the expression "fit and proper person" as discussed in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 per Toohey J and Gaudron JJ at 380.

[11] Paragraph 20 of respondent's outline of argument.

[13] Paragraphs 33-35 of respondent's outline of argument and paragraph 43 of Tribunal's reasons.

[14] Paragraph 36 of respondent's outline of argument.

[15] Paragraph 10 of Tribunal's reasons

[16] Paragraphs 15-27 of Tribunal's reasons.

[17] Amending the Liquor Act 1992.

[20] AEP applications were approved for the applicant in 2000, 2002 - 2006 incl.