Sidgreaves v Chief Commissioner of State Revenue

NCAT Appeal Panel|2017-07-28

Introduction

This is an appeal against a decision of the Tribunal to dismiss an application for review under the Taxation Administration Act, 1996 (TA Act).
The appellant had applied to the respondent for a refund of gaming machine tax collected by the respondent during the assessment periods from 1 January 2012 until 31 December 2015 (Refund Application). This application was made on about 29 June 2016. The tax that had been paid related to a license attached to a hotel known as Tommy's Tavern located at Lismore. The application was based on the assertion by the appellant that he was not the licensee during the relevant period. The owners of the licensed premises, the Tavern, were AJ Holdings NSW Pty Ltd and Cumedo Pty Ltd (Owners).
On 17 August 2016 the respondent made a decision (Refusal Decision) refusing the Refund Application. In doing so the respondent stated: ... Information available establishes that AJ Holdings NSW Pty Ltd was the business owner and Anthony Sidgreaves was the Licensee from 30 January 2012 to 25 January 2016. Under section 6 of the Gaming Machines Tax Act 2001 you were liable to pay GMT during the period.
The appellant applied for review of the Refusal Decision under s 96 of the TA Act, maintaining that he was not the licensee. This application was in part based on the fact that on 11 May 2016 a decision had been made by Judge Scotting in the District Court of New South Wales allowing an appeal by the appellant in relation to a conviction under the Liquor Act, 2007 (Liquor Act) in respect of Tommy's Tavern. That decision is Anthony John Sidgreaves v R; AJS Hotel Management Pty Ltd v R [2016] NSWDC 81 (District Court decision). The appellant asserted that the District Court decision established he was not the licensee at the relevant time.

Grounds of appeal and submissions

The appellant filed a Notice of Appeal on 26 April 2017. The appeal was filed in time, that is, within a period of 28 days.
The appellant raised four to grounds of appeal and also seeks leave to appeal. The grounds are: 1. The Tribunal erred in law and had misinterpreted the operation of s 61 of the Liquor Act in respect of the mechanism and procedure that must be adopted at law for transfer of a liquor licence following the eviction and dispossession of an existing licensee; 2. The ruling in the District Court decision constituted establish that the appellant "was not the licensee" and the decision "is res judicata because the decision of the District Court Judge (Criminal) must and is binding on the Tribunal"; 3. the respondent "attempted in 2012 to make the owner is liable for gaming machine tax that the respondent knew they were not liable for and directed the (Independent Liquor Gaming Authority) not to transfer the liquor license away from the owners until proceedings in the Administrative Decisions Tribunal and the Tribunal proper had been concluded"; 4. the appellant was not in fact the licensee. Consequently, the appellant said the orders of the Tribunal should be set aside and a decision made requiring a refund of the tax paid.
The respondent filed a reply to appeal dated 10 May 2017. In that reply, the respondent said: 1. the appellant did not raise any issue concerning s 61(5) of the Liquor Act at the original hearing; 2. the appellant did not raise any issue concerning the legality of the decision by the Independent Liquor and Gaming Authority (Authority) to transfer the license to the appellant on 30 January 2012. Rather, the issue raised was the fact of its occurrence; 3. in the absence of submissions about (1) and (2), no error of law could have been made; 4. at the original hearing, the appellant advanced two factual claims. These were: 1. the transfer of the licence was never processed and approved or provisionally approved by the Authority; and 2. as a consequence of the doctrine of precedent, the Tribunal was bound by the District Court decision and, therefore, the Tribunal should have concluded that the transfer of the licence was never approved or provisionally approved and the appellant was not the licence holder. 1. Insofar as the appellant now wishes to challenge the validity of the transfer by reason of s 61(5) of the Liquor Act, such a ground does not raise a question of law within the meaning of s 82(2)(b) of the Civil and Administrative Tribunal Act, 2013 (NCAT Act). Accordingly, leave to appeal is required. Further, as it was not a matter advanced at the original hearing, it cannot now be asserted on appeal. Consequently, to the extent leave is required it should be refused. Such refusal was further warranted because of the statement made by the appellant at the directions hearing on 15 November 2016 where the appellant advise the Tribunal that he did not wish to make submissions beyond those which he had served prior to that date; 2. further, in raising this ground, the appellant attempts to make a collateral challenge upon the decision of the Authority, a decision which is not reviewable by the Tribunal in these or other proceedings before it and in circumstances where we no application for judicial review has otherwise been made. 3. As to the District Court decision, the respondent said the Tribunal was correct in its decision concerning the effect of these proceedings on the application and the claims now made.
The appellant provided written submissions in support of his appeal and made oral submissions at the hearing on 28 July 2017. Similarly, the respondent provided written submissions and oral submissions at the hearing.
We should note at this point that, at the hearing on 28 July 2017, the Appeal Panel identified the documents which had been provided to it for the purpose of the appeal. The appellant said he did not have copies of all the documents which had been lost on supportable a break into his motor vehicle. On at least two occasions during the hearing of the appeal, Appeal Panel asked the appellant whether he wanted an adjournment in light of what had occurred. However, the appellant indicated he wished to proceed with his appeal and have the matter finalised.
The parties provided substantial documentation in respect of this appeal, the Appeal Books (AB) being six volumes. These included the documents originally before the Tribunal together with the transcript of the proceedings at first instance.
The appellant filed multiple submissions over several months. Many of the documents filed repeated submissions already made. The appellant's submissions can be sufficiently summarised as follows.
The appellant accepted at the hearing of the appeal that if he was in fact the licensee he was liable for the gaming machine tax. However, he asserted he was not the licensee for a number of reasons.
Mr Parrott, the previous licensee had been evicted from the premises. Consequently, the appellant submitted s 61 prescribed the manner in which any transfer of the license was to occur, the licensee of the premises following eviction being the owners of the Tavern. The appellant asserts the owners of the had not made an application for transfer under s 61. Further, the appellant asserts one of the owners, Cumedo, did not provide any written consent to the transfer of the license is required by s 60 of the Liquor Act. He makes no submissions about who was the business owner as that expression is used in s 61(3). It is unclear who was the business owner.
The appellant submitted that, that an application under s 60 of the Liquor Act could not, of itself, transfer the licence. What was required was for the transfer to be approved by the Authority, provisionally or finally. He said historical events, and the evidence from Mr Wicks, an officer of the Authority indicates the license had not in fact been transferred. The material on which the appellant relies includes the following: 1. The Police had been informed by the Authority the licence had not been transferred when they attempted to arrest the appellant on 30 March 2012. 2. There is no evidence on the "electronic noticeboard operated by the Authority" of the licence being approved provisionally or otherwise on 30 January 2012, this apparently being a means by which effect of transfer could be published. This was despite a claim by a witness of the Authority to the contrary effect.
In relation to some of this evidence, the appellant challenges the credibility of Mr Wicks concerning "snapshots taken with a mobile phone of the 'transferred' licence that was purportedly lodged with the 'OneGov' system" which the appellant said was not operational: see appellant's submissions filed 28 June 2017 at [8].
In relation to the payment of the gaming machine tax, the respondent says that he was the director of the two relevant companies, namely AJS Hotel Management Pty Ltd and TT Hotel Management Pty Ltd. The appellant's submission was that he was not required to pay the tax personally. Rather, he had arranged for these payments to be made through these entities. Consequently, he was entitled to seek the refund.
The appellant also relied on the District Court decision and said the Court 'ruled on the evidentiary test of, beyond reasonable doubt that the licence fixed names limited to go was never transferred, provisionally or otherwise on 30 January 2012 from the hotel owners to the appellant". The appellant asserted this decision was "binding on the Tribunal".
The appellant also relied on the reasons provided in the District Court decision and made the following submission at [41]-[42] of his written submissions dated 5 May 2017: 41 Put simply, the only way the licence could have been placed in the name of the appellant as confirmed by statute and by His Honour Judge Scotting was if the owner made application to transfer the licence, paid the filing fees and gave consent so as to comply with s 60 & 61 of the Act. This never occurred. 42 The licence was not placed on the notice board and it was the policy of the Authority not to transfer licence when the hotel was deemed to owe GMT liability as it was in this case.
In relation to this last submission, the reference to "deemed to owe GMT liability as it was in this case" is a reference to an earlier dispute concerning gaming machine tax for the period ending 31 December 2011. The respondent had separately asserted that this tax was payable by the owners of the Tavern. This issue, while not presently relevant, was resolved by the Tribunal in the following decisions: 1. on appeal, in AJ Holdings (NSW) Pty Ltd v Chief Commissioner of State Revenue [2014] NSWCATAP 40; 2. on remittal, in AJ Holdings (NSW) Pty Ltd v Chief Commissioner of State Revenue [2015] NSWCATAD 17.
The effect of these decisions was that any gaming machine tax payable is due at the end of the quarter, namely 31 December 2011, and payable within 21 days after the end of the instalment period. Because the owners were not "directly interested in the business or the profits of the business carried on under the licence" in the period in which the tax became due, namely in the period on or before 31 December 2011, they were not liable for the gaming machine tax and s 6(3)(b) of GMT Act did not apply. In this regard, Mr Parrott was then the licensee and remained so until 2 January 2012.
Finally, we note appellant also made reference to Auld v Independent Liquor and Gaming Authority [2017] NSWCATAD 160. That decision concerned an application by the Independent Liquor and Gaming Authority to join as a party to those proceedings the Secretary, Department of Industry. In that case, the Tribunal concluded there was no statutory right for the Secretary to participate nor was the Secretary a proper party to the proceedings. The Tribunal said the proceedings were not adversarial, therefore there was no need for a contradictor. The Tribunal also found there were no discretionary grounds to otherwise warrant the joinder of the Secretary consequently, the application was refused. This case has no relevance to the present appeal, the question being whether a decision of the Authority can be the subject of collateral challenge, not whether the Authority should be joined as a party.
In reply, the respondent filed written submissions dated 13 July 2017 and made oral submissions at the hearing.
The respondent's submissions can be summarised as follows: 1. The issues the Tribunal was required to determine at first instance were correctly set out in the Tribunal's reasons. They did not include any issue concerning the applicability of s 61 or whether the transfer had been validly made under that section. The only issue was whether in fact the licence had been transferred to the appellant. Consequently, the issue could not now be raised on appeal. In this regard the respondent noted that the original hearing had not dealt with evidence relevant to a determination of this issue and that the parties had not provided evidence directed to this issue; 2. Where there is an appeal permissible on a question of law, a determination of that question does not permit a challenge to findings of fact; 3. There was no error in the Tribunal failing to deal with an issue not raised at the original hearing, namely that the transfer was invalid; 4. The attempt now made in the appeal to impugn the validity of the transfer amounts to a collateral attack on the transfer decision made by the Authority which is not permissible. The respondent relied on the decisions in Ousley v R [1997] HCA 49; (1997) 1992 CLR 69; (1997) 148 ALR 510 and Director of Housing v Sudi (2011) 33 VR 559. The respondent said that in so far as collateral challenge was permissible, 1. It was limited to an error on the face of the record recording who was the licensee and that there was no relevant error demonstrated in this case. 2. Secondly, the issue is not one about which the respondent in making its original decision or the Tribunal in reviewing that decision had authority to interfere with or reach a different conclusion. Outside an application for judicial review, there must be some statutory authority granted to the decision maker to permit a review by collateral challenge. The respondent relied on the decisions in R v Wicks [1998] AC 92 and Sudi. 3. Thirdly, there was a presumption of regularity. The respondent relied on the reasons of Lord Denning in Hoffman-La Roche and Co AG v Secretary of State for Trade and Industry [1975] AC 295 at 319 and following. The respondent said any dispute concerning the validity "must be raised directly by judicial review or statutory appeal, if available". In this regard the respondent relied on the reasons of Weinberg JA in Sudi at [221] and McHugh J in Ousley at 98-99. 4. Fourthly, in relation to the issue of a statutory appeal against a decision made by the Authority, this was a matter of statutory construction. The respondent submitted any decision made by the Authority was amenable to judicial review by the Supreme Court of New South Wales but was not otherwise subject to review under the Liquor Act: written submissions at [107] and see s 144B- definition of "reviewable decision. Otherwise, the legislation in question does not permit collateral review.
In relation to the District Court decision, the respondent submitted that it did not bind the Tribunal and the Tribunal was correct in reaching this conclusion.
Insofar as the appellant sought to "re-agitate every factual finding made by the Tribunal", leave should be refused.
Finally, the respondent submitted that if the appeal is dismissed, the appellant should be ordered to pay one half of the cost of preparing the appeal books, being an amount of $1434.21. The respondent said it had prepared the appeal books for the appellant but the respondent had paid the costs.

Consideration

This is an unusual appeal in that the appellant, who previously applied for a transfer of the license in respect of Tommy's Tavern and who claimed at various times after January 2012 that he was the licensee of the Tavern, now asserts on appeal that he was not in fact or in law the licensee for the purpose paying gaming tax under the Gaming Machine Tax Act, 2001 (GMT Act).
The appellant had made an application to the Authority for a transfer of the license to him on 24 January 2012. This occurred in circumstances where the previous licensee, Mr Parrott, had been evicted from the Tavern. The Tavern was, at all material times, owned by AJ Holdings NSW Pty Ltd and Cumedo Pty Ltd (Owners). They owned the property as tenants in common in proportions that are not presently relevant: AB Vol 2 Tab 11. The appellant was a director of the AJ Holdings. However, contrary to the reasons at [9] he was not a director of Cumedo - a matter agreed by the parties in the appeal.
Section 6(2) of the GMT Act provides: The tax is payable by the hotelier or registered club concerned.
A "hotelier" and hotel licence have the same meanings as in the Liquor Act 2007: see s 3 GMT Act. Under the Liquor Act, "hotelier" is defined as the holder of a hotel licence issued under that Act. It is agreed in this appeal that the license attached to the Tavern is a hotel licence and that the holder of that license was the person obliged to pay the gaming machine tax for which the appellant has been assessed.
As licensee, the appellant was prosecuted for various offences under the Liquor Act. He was initially convicted. However the conviction was set aside in the District Court proceedings by Judge Scotting. Consequently, the appellant sought a refund of the gaming machine tax which had been paid for the period 1 January 2012 until 31 December 2015 on the basis he was not the licensee. The tax for which he sought a refund was paid from an account called AJS Hotel Management by direct debit in what has been referred to as "sweeping the account", which appears to be an automated process by which the respondent receives any tax due. AJS Hotel Management Pty Ltd was, apparently, the company carrying on the business at the licensed premises from early 2012. The appellant was a director of that company.
Following the respondent making the Refusal Decision, the appellant applied for review to the Tribunal. In dismissing the application the Tribunal made the following finding at [46]: … the Tribunal finds that the (appellant) has not discharged the onus of proof on the evidence before the Tribunal does not support a finding that the applicant was not the holder of the Licensed during the relevant period.
As is apparent from the reasons, the issue raised in the review application was whether the appellant was in fact the licensee. The reasons record that: 1. the applicant had accepted in cross-examination that he had, from time to time, referred to himself as licensee: [31]; 2. there was evidence from Mr Wicks, the manager of the Authority, about the procedures relating to compliance, enforcement and licensing and that the licence was in fact issued by the authority to the appellant in relation to the relevant period, the evidence of Mr Wicks "not weakened in any significant respect" in cross-examination by the appellant: [35]-[36]; 3. the applicant had received various correspondence in early February 2012 stating his transfer application would not be processed because there was outstanding tax payable. However, there was evidence from Mr Wicks (who sent that correspondence) that he was unaware the licence had in fact been provisionally approved on 30 January 2012: [32] and [42]; 4. there was other correspondence between the appellant and the respondent indicating he had entered into payment plans, the approval of instalment arrangement and deferrals in which the appellant had described himself as the licensee: at [37]; 5. The Tribunal rejected the appellant's contention that the District Court decision was decisive or the issue that he was not the licensee and had no significant evidentiary weight: at [39]-[40]; 6. there was a dispute about whether or not the appellant had received notice of a provisional transfer of the license to him, a matter which the Tribunal found unnecessary to decide: [41]); 7. the appellant asserted that various police reports (COPS) between 30 March 2012 and 11 April 2012 cast some doubt as to whether he was the licensee because it recorded a different licensee, a matter the Tribunal accepted was explained by the late entry on the relevant record of the details of the appellant, in circumstances where the transfer application was in fact allowed to proceed because the unpaid gaming machine tax was the subject of an appeal: [43].
The reasons also record that, despite a submission from the appellant as to some "irregularity" "because there were some stamps and details on the Transfer Application Form to Mr Parrott which are not on the copy of the 24 January 2012 application of the (appellant)", the Tribunal concluded that according to the "One Gov" records, all relevant details had been entered and "the stamps referred to on the application of Mr Parrott are not shown to have any significance so far as the validity of the processing of the Transfer Application and the approval concerned": [45].
In concluding that the District Court decision was not decisive in this case, the Tribunal did not deal with the issue of whether or not the licence had been validly transferred by reason of the provisions of s 61 of the Liquor Act. This is because the issue raised by the appellant, as the Tribunal recorded, was whether or not the licence had in fact been transferred by the Authority to transfer the Licence, not whether, in making that decision, any legal requirements that might apply by reason of s 61, or otherwise as required by the Liquor Act, had been met.
The appellant raised two issues in the appeal which he says constitutes errors of law.
Firstly, he asserted that the licence could not have been validly transferred to him because the legal requirements for transfer were not met (Invalidity of Licence Transfer ground).
Secondly, he said the District Court decision operated as a res judicata with bound the Tribunal (Res judicata ground).
He also raises a challenge to the Tribunal's conclusions of fact for which leave to appeal is required.

Invalidity of Licence Transfer ground

The appellant contends that there was never a valid transfer under section 61 of the Liquor Act.
He says that such a transfer was required due to the fact Mr Parrott had been evicted and that it could never have occurred because any application had to be made by the owner of the licensed premises or the business owner, as required by s 61(2). He was not the owner and no such application was made.
Transfer of a licence is dealt with by ss 60 and 61 of the Liquor Act. Section 60 relevantly provides: 60 Transfer of licence (1) The Authority may, on application made in accordance with this section, approve the transfer of a licence to a person who, in the opinion of the Authority, would be entitled to apply for the same type of licence in relation to the licensed premises. (2) An application for approval to transfer a licence may be made by the licensee or the person to whom the licence is proposed to be transferred. (3) … (4) An application for approval to transfer a licence must: (a) be in the form and manner approved by the Authority, and (b) be accompanied by the fee prescribed by the regulations and such information and particulars as may be prescribed by the regulations, and (c) if made by a person other than the licensee - be accompanied by the written consent of the licensee to the proposed transfer, and (d) comply with such other requirements as may be approved by the Authority or prescribed by the regulations. (5) An application for approval to transfer a licence to another person is to be dealt with and determined by the Authority as if it were an application for the granting of a licence to the other person and the other person was the applicant for the licence. Accordingly, the provisions of Division 1 apply in relation to an application under this section. (6) …. (7) The Authority may provisionally approve the transfer of a licence to another person if the Authority is satisfied that: (a) there is nothing that would preclude the Authority from approving the transfer of a licence, and (b) the circumstances of the case justify giving the approval on a provisional basis. (8) A provisional approval to transfer a licence is sufficient authority for the transfer of the licence. However, any such provisional approval ceases to have effect unless it is confirmed by the Authority before the end of the period specified by the Authority when provisionally approving the transfer (or such later period as may be allowed by the Authority before the expiration of the specified period). (9) If a provisional approval to transfer a licence ceases to have effect because of the operation of subsection (8), the Authority may make such orders in relation to the licence as the Authority considers appropriate, including any of the following orders: (a) an order that the licence is to revert to the transferor, (b) an order treating a person (with the person's consent) as licensee until a transfer of the licence is effected, (c) an order that the licence cannot be exercised until specified conditions are met or the Authority orders otherwise. (10) Any such order has effect according to its terms. (11) The Authority must not approve or provisionally approve the transfer of a licence unless satisfied: (a) that practices will be in place at the licensed premises of the transferee as soon as the licence is transferred that ensure as far as reasonably practicable that liquor is sold, supplied and served responsibly on the premises and that all reasonable steps are taken to prevent intoxication on the premises, and (b) that those practices will remain in place. (12) The transfer of a licence has effect as if the licence had been granted to the transferee.
Section 61 provides: 61 Application for transfer of licence on dispossession of licensee (1) This section applies in relation to a licence (other than a club licence) if: (a) the licensee is evicted from the licensed premises, or (b) the owner of the licensed premises comes into, or becomes entitled to, possession of the licensed premises to the exclusion of the licensee, or (c) the licensee is no longer employed by the owner of the business carried on under the licence (the business owner), or (d) the licensee is not complying, or does not have the capacity to comply, with the requirement under section 91 (1) to be responsible at all times for the personal supervision and management of the business of the licensed premises. (2) An application for a transfer of the licence may be made by the owner of the licensed premises or by the business owner. (3) The owner of the licensed premises who comes into, or is entitled to, possession of the premises, or the business owner (as the case requires), is taken to be the licensee of the premises until: (a) the day that is 28 days after this section becomes applicable, or (b) the day on which application is made under subsection (2), whichever first occurs. (4) If an application is made under subsection (2) not later than 28 days after this section becomes applicable, the applicant is, until the application is determined by the Authority, taken to be the licensee under the licence to which the application relates. (5) The Authority is not to determine an application for the transfer of a licence under this section unless: (a) the Authority is satisfied: (i) that notice of the application was given to the dispossessed licensee at least 3 clear days before the Authority determines the application (or that all reasonable steps necessary for giving notice were taken by or on behalf of the applicant and that failure to give notice was not due to any neglect or default of the applicant), and (ii) if so notified, that the dispossessed licensee has been given a reasonable opportunity to make submissions in relation to the application, and (b) the Authority is satisfied that any lessee of the licensed premises has been notified of the application for the transfer of the licence and been given a reasonable opportunity to make submissions in relation to the application, and (c) the Authority has taken any submissions made under this subsection into consideration. (5A) If: (a) an application under subsection (2) in respect of the licensed premises is not made within 28 days after this section becomes applicable, or (b) such an application is made but the transfer of the licence to the applicant is refused by the Authority, the licence is suspended until such time as the licence is transferred to another person. (6) Section 60 applies, with such modifications as are necessary, in relation to an application for the transfer of a licence under this section.
In our view, this ground of appeal should be dismissed for several reasons.
First, we have reviewed the transcript of the hearing at first instance (AB Vol 1 Tab 5) and are satisfied this issue was not in fact raised at the original hearing.
In the District Court decision, Judge Scotting made reference to the transfer of the licence in his decision. There, his Honour said at [24]-[27]: 24 The transfer of licence application to have the licence put in the appellant's name was never approved, even provisionally, by the Authority. It was an application pursuant to section 60 Liquor Act 2007. Put simply, if it was not approved, it could not have effected a transfer of the licence into the appellant's name. 25 Rather, the provisions of section 61 Liquor Act 2007 operated. The section applied to this case because the licensee was evicted from the premises and the owner became entitled to possession. An application for the transfer of the licence could then be made by the owner of the licensed premises or by the business owner (the owner). The owner was deemed to be the licensee from period of 28 days after taking possession of the hotel or on the date when an application for transfer was made by the owner, whichever first occurred. The owner was then deemed to be the licensee until the application was determined. 26 There is no evidence before me as to whether or not the owner made an application to have the licence transferred to it. The Administrative Decisions Tribunal decided in the circumstances of this case that the owners were responsible for the gaming machine tax. That decision was open because the gaming machine tax, according to the ADT, became due and payable within the 28 day period after the owners retook possession. At that time, by operation of section 61 Liquor Act 2007 they were deemed to be the licensee. 27 For the purposes of my decision, I cannot establish the identity of the holder of the hotel licence as at 30 August 2012. I cannot be satisfied beyond reasonable doubt that it was the appellant because there is no evidence that the application he submitted to the Authority on 24 January 2012 was approved. The appellant was not the owner of the premises or the business owner and was thereby not able to be deemed the licensee pursuant to section 61 Liquor Act 2007.
One might query whether his Honour was correct in suggesting that only an owner of the licensed premises could apply for a transfer on eviction of the existing licensee. In this regard: 1. s 61(2) permits the business owner to make the application or the owner of the licensed premises; 2. s 61 (5A)(b) contemplates another person may apply (at least if the owner's application to transfer is refused); and 3. The combined effect of ss 60(2), s 61(3) and s 61(6) might permit a person to whom a licence is proposed to be transferred to apply for transfer where the then licensee was the owner of the licensed premises who had become licensee due to the operation of s 61(3).
Be that as it may, the issue now raised by the appellant by reference to the District Court decision, must have been known to the appellant at the time the Tribunal dealt with his application for review. This is because the appellant relied on the District Court decision for a different purpose. However, as we said above, it was not a point taken by the appellant at the hearing before the Tribunal at first instance.
In our view, the respondent's submission should be accepted, namely that this ground cannot now be raised on appeal.
In the High Court decision of Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1, Deane J said at para 11: 11. In the course of the argument, senior counsel for the appellants placed particular reliance upon the following general statement in the joint judgment of Latham C.J., Williams and Fullagar JJ. in Suttor v. Gundowda Pty. Ltd. [1950] HCA 35; (1950) 81 CLR 418, at p 438: "Where a point is not taken in the court below and evidence could have been given there which by any possibility could have prevented the point from succeeding, it cannot be taken afterwards". The relevant appeal in that case was the appeal to this Court direct from a single judge exercising the equitable jurisdiction of the Supreme Court of New South Wales. It was an appeal in the strict sense to a court which has resolutely turned its face against the reception of further evidence on such an appeal. Moreover, it was an appeal in a case which had turned at first instance, as would the new point which it was sought to raise for the first time on appeal, on closely disputed questions of fact. Even in the context of such an appeal in such circumstances, the above broad and unqualified statement would seem to require some reconsideration in that circumstances could well arise in which justice would demand that an amendment to raise a new point be allowed notwithstanding that that would involve the matter being sent back for a new trial or the hearing of further evidence in the court of first instance (cf., e.g., McCann v. Parsons [1954] HCA 70; (1954) 93 CLR 418, at pp 431-432). It is unnecessary to consider that question here, however, since it is obvious that the above unqualified statement cannot properly be applied to a case, such as the present, where the relevant appeal is "by way of rehearing" (s.75A(5) of the Supreme Court Act) to an appellate court which is entrusted by statute with the general discretionary powers "concerning ... amendment" of "the court ... from whom the appeal is brought" (s.75A(6)(a)) and with a broad discretionary power to "receive further evidence" on unspecified "special grounds" (ss.75A(7) and 75A(8)). Indeed, for this Court to limit those full discretionary powers of the Court of Appeal by the adoption of such a broad unqualified principle would be to do precisely what, as recently as Norbis v. Norbis, unreported, 30 April 1986, it has said in emphatic terms that it is not competent for an appellate court to do.
In O'Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310 at 319 Mason J (as he then was)said: In some cases when a question of law is raised for the first time in an ultimate court of appeal, as for example upon the construction of a document, or upon facts either admitted or proved beyond controversy, it is expedient in the interests of justice that the question should be argued and decided (Connecticut Fire Insurance Co. v. Kavanagh (1892) AC 473, at p 480; Suttor v. Gundowda Pty. Ltd. [1950] HCA 35; (1950) 81 CLR 418, at p 438; Green v. Sommerville [1979] HCA 60; (1979) 141 CLR 594, at pp 607-608). However, this is not such a case. The facts are not admitted nor are they beyond controversy. The consequence is that the appellants' case fails at the threshold. They cannot argue this point on appeal; it was not pleaded by them nor was it made an issue by the conduct of the parties at the trial.
Assuming for the moment that upon eviction of an existing licensee, an application to transfer can only be made to the owner of the licensed premises or the business owner, there is a factual issue to be resolved, namely whether or not such an application was made.
There is also an issue about whether an application when made could be on terms that the licence be transferred to a third person. In this regard, s 61(6) provides that the provisions of s 60 apply to such an application. Section 60(2) contemplates that the application may be made by the then licensee for transfer to the proposed licensee.
As recognised by Judge Scotting, there were factual issues which are needed to be dealt with in order to resolve the question of whether or not there a valid transfer under s 61 or otherwise. In the criminal proceedings, the appeal was allowed because the Crown had not proved its case, beyond reasonable doubt, that the licence had been transferred to the appellant. Unlike the criminal case, as pointed out by the Tribunal, the appellant had the onus of proving his case in his application for review.
To permit him to now do so would be to allow him to recast his case on a different factual foundation. As is evident from the submissions made by the parties, such an enquiry will include factual issues such as: 1. Did the Owners consent to the transfer to the appellant; 2. Even though the appellant was not a director of Cumeco, was AJ Holdings NSW Pty Ltd (who was a co-owner of the Tavern and of which the appellant was a director) authorised by Cumeco to lodge the application to transfer the licensed to the appellant; 3. In signing the transfer application, was the appellant in fact authorised to provide consent in writing on behalf of the owners by that application.
While there are no doubt legal issues to be resolved, they are dependent upon the establishment of relevant facts.
Consequently, consistent with authority, this is not something the appellant is able to do on appeal.
Secondly, the Tribunal had before it the record indicating the transfer of the license had been made by the Authority.
In Hill v Woollahra Municipal Council & Ors [2003] NSWCA 186, Hodgson JA said at [50]-[51]: 50 The cases of Ligon 302 and Zhang are authority for the proposition that, where a body such as a local council is required by statute to address a question posed by that statute or by instrument referred to by the statute, it must address that very question. If it does not do so, it will be in breach of the statute, even though it may have and averted to the topic of the question. 51 However, when a court comes to consider whether or not a breach has occurred, the court will have regard to the presumption of regularity. This presumption was relevantly stated as follows by McHugh JA in Minister for Natural Resources v NSW Aboriginal Land Council [1987] 9 NSWLR at 164 as follows: Where a public official authority purports to exercise a power or to do an act in the course of his or its duties, a presumption arises that all conditions necessary to the exercise of that power or the doing of that act have been fulfilled. 52 I do not accept Mr Walker's submission that this does no more than identify where the onus of proof lies. The presumption is a presumption of fact, associated with reasonable inferences based on what ordinarily happens in the ordinary course of human affairs: see McLean Brothers & Rigg Pty Ltd v Grice (1906) 4 CLR 835 and 849-51 per Griffiths CJ. In deciding whether the presumption of regularity is rebutted, this inference from the ordinary course of human affairs carry some weight, which may vary according to the proved circumstances.
In the absence of an examination of the process by which the authority was issued, including any evidence of the relevant decision maker, there is no basis in fact to conclude the presumption of regularity has been rebutted.
Thirdly, we accept the respondent's submission that the assertion now made is a collateral attack on the decision of the Authority which was not permissible in the review application of a decision of the respondent under the TA Act.
In Ousley v The Queen [1997] HCA 49; (1997) 1992 CLR 69; (1997) 148 ALR 510 McHugh J said at 98-99 (footnotes omitted): A collateral attack on an act or decision occurs when the act or decision is challenged in proceedings whose primary object is not the setting aside or modification of that act or decision. In In re Preston, however, Lord Scarman used the term "collateral challenge" to include any process challenging a decision - including an application for judicial review - other than a proceeding by way of appeal. This use of the term is readily intelligible. However, with the widespread availability of judicial review procedures, it conduces to clarity of thought, in my opinion, if the term "collateral challenge" is confined to challenges that occur in proceedings where the validity of the administrative act is merely an incident in determining other issues.
As pointed out by the respondent in its submissions, there is some doubt as to the extent to which collateral challenge is permissible. In Ousley, in respect of criminal proceedings, Toohey, McHugh and Gummow JJ accepted a challenge could be made to validity on the face of a warrant.
In Director of Housing v Sudi (2011) 33 VR 559, this issue was considered by the Court of Appeal of the Supreme Court of Victoria in connection with a decision of the Victorian Civil and Administrative Tribunal concerning a dispute about a residential tenancy. In that case, the Court found that the Tribunal had been correct to determine it had no judicial review jurisdiction and that it had no implied power to undertake a collateral review of a decision of the Director of Housing to apply pursuant to the Residential Tenancies Act, 1997 (Vic) for a possession order. In that case, Weinberg JA said at [238] and following: 238 Ousley is, in some respects, a difficult case. While accepting that administrative acts are presumptively susceptible to collateral challenge, it severely limits the grounds upon which any challenge could be mounted. 239 Toohey J rejected the challenge to the warrants insofar as it was based upon an alleged insufficiency of material to support them. However, that was not the full extent of the appellant's challenge. He claimed that, on its face, each warrant evidenced a lack of satisfaction by the judges who had issued them of the requisite matters, and that there was therefore an irregularity in their issue. Toohey J held that it was not open to the trial judge to adjudicate upon the sufficiency of the warrant, or whether the issuing authority was in fact satisfied as to any statutory requirements. 240 Gaudron JA (with whom Gummow J relevantly agreed) also considered that any enquiry into the validity of the warrant conducted by the collateral review had to be of limited nature. It could not intrude upon extraneous matters, such as the sufficiency of the material supporting the application for its issue. In essence, therefore, collateral review was confined to the consideration of the validity of the warrant on its face.
In the context of this case, what is necessary to consider is the nature of the review and the power conferred on the Tribunal in conducting that review. What is also relevant is the decision made by the decision-maker about which review is sought.
In the present case, the respondent was required to decide who, in fact, was the "hotelier" within the meaning of the GMT Act. As explained above, this person was the holder of a licence under the Liquor Act. The Authority determines transfer applications. There are no requirement in the Liquor Act or Regulations to which we have been referred which state that such a determination is ineffective until advertised on an electronic noticeboard or through any other particular medium. Section 60(8) provides "a provisional approval to transfer a licence is sufficient authority for the transfer of the licence". The record of the Authority records the Authority made the transfer.
There is nothing on the face of the record which would indicate the transfer of the license to the appellant was invalid. The appellant did not point to an error on the face of the record. The appellant did not suggest a decision had not been made. Rather, the appellant challenged the process of what occurred in the Authority making any decision.
There is a further reason why collateral challenge should not be permitted in this case. That is, that the right to challenge a decision to transfer a licence by the Authority is by judicial review proceedings. As pointed out by the respondent, a decision to transfer a licence by the Authority is not a reviewable decision within the meaning of the Liquor Act. Further, any rights of challenge are exercisable by the effected persons. The absence of a right to seek administrative review by the Tribunal of a decision of the Authority is inconsistent with their being the right in the Tribunal to do so in collateral administrative review proceedings. As stated above, Sudi suggests that in judicial proceedings before the Tribunal (Sudi being proceedings about an order for possession sought under the Victorian residential tenancies legislation) such a challenge might be permitted, limited to an error on the face of the record or where an power is granted to the Tribunal, expressly or by implication, to make a decision to resolve such a controversy between the relevant parties.
However, in our view that possibility is far removed from a consideration of the circumstances in which a decision-maker appointed under particular legislation for one administrative purpose might impliedly be authorised to make a decision under separate legislation where a different decision maker is expressly given power to decide and bring into effect an administrative decision under another Act, as opposed to decide whether or not as a matter of fact the decision of the second decision-maker has been made.
In this case, the Authority was charged with the administration of a Liquor Act, Including determining applications to transfer of licences, making the transfer of the license to an approved applicant and keeping a record of the licence holder. The respondent had no authority to transfer a licence. There is no authority given to the respondent in making an administrative decision under the GMT Act, (or the Tribunal on review) to decide to whom a licence is transferred under the Liquor Act or whether the actions of the Authority in granting a transfer or provisional transfer were lawful. Such a decision could have no legal consequence or alter the fact of who is the holder. Rather, the enquiry is limited a determination of who is in fact the holder of the licence.
It follows that any collateral challenge must fail.
Finally, we note the Appeal Panel could decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing pursuant to s 80(3) of the NCAT Act. However, as there was no power to declare invalid or set aside any transfer made by the Authority, there is no reason to conduct such a hearing.

Res judicata ground

As set out above, the appellant contends that the District Court decision gives rise to a "res judicata".
In Jackson v Goldsmith [1950] HCA 22; (1950) 81 CLR 446, Fullager J said at 466-8: The rule as to res judicata can be stated sufficiently for present purposes by saying that, where an action has been brought and judgement has been entered in that action, no other proceedings can thereafter be maintained on the same cause of action. This rule is not, to my mind, correctly classified under the heading of estoppel at all. It is a broad rule of public policy based upon the principles expressed in the maxim "all". The rule as to issue estoppel is generally stated in the words of Lord Ellenborough in Outram v Morewood (1803) 3 Beast 346 at 355; 102 ER 630 at 633. His Lordship said that the parties and privies are "precluded from contending to the contrary of that point, or matter of fact, which having been once distinctly put in issue by them … has been, on such issue joined, solemnly found against them". This is I think, a true case of estoppel, analogous to estoppel by deed and estoppel by representation. The same rule was concisely stated by Dixon J in Blair v Curran (1939) 69 CLR and 531 where his Honour said "A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies." It is unnecessary here to discuss these two principles further beyond noting two points. In the first place, if A sues B to judgement and in subsequent proceedings between them a plea of res judicata is raised, the primary question is whether the cause of action in the later proceedings is the same as that which was litigated in the former proceedings. This was the question which arose in the well-known case of Brunsden v Humphrey (1884) 14 QBD 141. It was held there that the causes of action were not the same. The injuria was the same but the damnum was different, and, since damage was "of the gist" of the particular action, the causes of action were not the same. The plea therefore failed. On the other hand, if A sues B to judgement and in subsequent proceedings between them a plea of issue estoppel is raised, the plea may succeed although the causes of action in the two cases are entirely different. The question will be whether an issue of fact or law which is raised in the later proceedings was an issue of fact or law which was also raised in the earlier proceedings and therefore determined. In the second place, it follows from the very nature of the difference between the plea of res judicata and the plea of issue estoppel that different materials are relevant in each case. Where the pleas of res judicata, only the actual record is relevant. Where the plea is of issue estoppel, any material may be looked at which will show that issues were raised and decided. Reasons given for the judgement pronounced are likely to be particularly important for this purpose: see Ord v Ord [1923] to KB 432 at 440 and Marginson v Blackburn Borough Council [1939] 2 KB 4 to 6 at 437. Both those cases were cases of issue estoppel and were clearly treated as such, though I think, with great respect, that both illustrate the unfortunate absence of a clear legal terminology, to which I have already referred. It should perhaps be added that, as Dixon J said in Blair v Curran [1939] 62 CLR at 532, the estoppel, so far as it applies to the facts, is confined to ultimate facts. It does not extend to mere evidentiary facts.
While his Honour dissented in relation to factual issues in that appeal, his exposition has been treated as authority as to the operation of the principles: Effrem Foods v Trawl Industries 115 ALR 337 at p 380.
In relation to the reference by Fullagar J to the decision of Dixon J in Blair v Curran [1939] HCA 23; (1939) 62 CLR 464, it is appropriate to set out in full the principle stated by Dixon J (as he then was). At 531-532 Dixon J explained that: A judicial determination directly involving an issue of fact or of law disposes once and for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgement, decree or order necessarily established as the legal foundation or justification of its conclusion. … Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. In matters of fact the issue- estoppel is confined to those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established."
In the present case, as recorded by the Tribunal at [40], the District Court decision was a decision: 1. between different parties; 2. in which a different standard of proof applied (being beyond reasonable doubt); and 3. which reached a conclusion that it had not been proved beyond reasonable doubt the appellant was the licensee, not that the appellant was not the licensee.
It is clear that res judicata does not operate in the present case. Further, any issue estoppel could not arise for the reasons stated by the Tribunal. There were different parties, a different claim, and, in any event, the decision of the District Court was a conclusion that it was not satisfied on the evidence that the appellant was the holder of the licence.
The conclusion is not a finding that the licence was not in fact transferred to the appellant.
In the present case, the evidence of the transfer of the license to the appellant by the Authority was before the Tribunal.
As s 100 of the TA Act makes clear, in the review proceedings it was the appellant who carried the onus of proof. The Tribunal was not satisfied the appellant had discharged its onus. Also, having regard to the other evidence before the Tribunal, the Tribunal was satisfied by positive evidence that the licence had in fact been transferred to the appellant because that was what the record in respect of the licence and transfer application said.
This conclusion is not shown to have been wrong and for the reasons stated above, this ground of appeal fails.

Leave to appeal

A final matter to deal with is the application for leave to appeal in the Notice of Appeal.
Having reviewed the evidence before the Tribunal, it seems to us the Tribunal was entitled to reach the conclusions it did on the facts presented. It had the record of the Authority that the licence had in fact been transferred on 30 January 2012.
The appellant seeks to assert that the OneGov system to which the Tribunal referred was not in operation and that the means of notification was by an electronic notice. Again, this does not appear to be the way the case was formulated at first instance from our review of the transcript. In any event, the appellant does not identify the evidence upon which he relies to establish this fact.
However, even if established, such a fact would not mean that the licence had not in fact been transferred on 30 January 2012.
There was no evidence to suggest that any challenge to that license had been made by judicial review proceedings in the Supreme Court or otherwise.
In Collins, on the question of the general principles applicable to the grant of leave to appeal, the Appeal Panel said at [84]: The general principles derived from these cases can be summarised as follows: 1 In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; 2 Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45];
In this appeal, no relevant injustice is demonstrated nor is it shown that the conclusions by the Tribunal on questions of fact were incorrect. The issues for which leave us sought do not raise questions of principle or matters of public importance. The facts are peculiar to this case.
In these circumstances, leave to appeal should be refused and the appeal should be dismissed.

Costs

At the hearing of the appeal the respondent sought 50% of the cost of preparing the appeal books, namely $1,434.21.
The Appeal Panel, in making directions for the purpose of preparing the appeal for hearing, required that the agreed bundle and a transcript to be prepared with the assistance of the respondent: see order 1(a) made 11 May 2017.
Costs in the present case are regulated by s 60 of the NCAT Act. That is each party is to pay their own costs unless there are special circumstances. Special circumstances means out of the ordinary: see Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11]. This case is out of the ordinary because the respondent has been required to prepare the appeal books in order to assist the appellant in prosecuting his appeal. Accordingly, it is a factor to which we may have regard in accordance with s 60(g) of the NCAT Act. It is the only costs sought by the respondent.
In our view, the cost of preparing this paperwork should be borne equally by the parties. Accordingly, we will make an order that the appellant pay to the respondent the sum of $1434.21 for costs, such amount to be paid within 28 days.

Orders

The Appeal Panel makes the following orders: 1. Leave to appeal is refused and the appeal is otherwise dismissed. 2. The appellant is to pay the respondent the sum of $1434.21 for costs, such amount to be paid within 28 days of the date of these orders.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 January 2018

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