|Date of judgement||16 January 2018|
M Harrowell, Principal Member|
J McAteer, Senior Member
|Court or Tribunal||NSW Civil and Administrative Tribunal Appeal Panel|
Gaming Machine Tax Act - liability for tax, licensee, transfer, dispute concerning fact of transfer, power to determine validity of transfer in deciding what tax is payable
Res judicata / issue estoppel - Circumstances in which it arises, decision in criminal proceedings, failure of prosecutor to prove licence transferred “beyond reasonable doubt”, effect of decision that fact not proved
Collateral challenge - power of Tribunal to conduct judicial review, administrative review proceedings, extent of permissible enquiry by one statutory decision-maker as to validity of actions of another statutory decision maker under different legislation
Effrem Foods v Trawl Industries 115 ALR 337
Hoffman-La Roche and Co AG v Secretary of State for Trade and Industry  AC 295
The Appellant applied to the Chief Commissioner on about 29 June 2016, for a refund of gaming machine tax paid during the assessment periods from 1 January 2012 until 31 December 2015 (Refund Application). The tax had been paid in relation to a license attached to a hotel known as Tommy’s Tavern located at Lismore. As licensee, the appellant had been prosecuted for various offences under the Liquor Act. He was initially convicted. However the conviction was set aside in District Court proceedings, the court finding the alleged offence was not proved beyond reasonable doubt. Subsequently, 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 at the relevant time.
On 17 August 2016 the Chief Commissioner refused the Refund Application (Refusal Decision), stating that AJ Holdings NSW Pty Ltd was the business owner and Anthony Sidgreaves was the Licensee from 30 January 2012 to 25 January 2016. Therefore, under section 6 of the Gaming Machines Tax Act 2001 the appellant was liable to pay GMT during the period.
The Appellant applied to the NSW Civil & Administrative Tribunal (the “Tribunal”) for a review of the Refusal Decision, but the Tribunal ruled that the Appellant had not established on the balance of probabilities that he was not the holder of the hotel licence during the Relevant Period.
In dismissing the Appellant’s claim at first instance, the Tribunal found that the Appellant had not discharged his onus of proof on the balance of probabilities. The Tribunal determined that the evidence did not support a finding that the Appellant was not the holder of the hotel licence for the following key reasons:
On 26 April 2017, the Appellant filed a Notice of Appeal to the Appeal Panel in respect of the Tribunal’s decision.
The Appellant raised two issues in the appeal which he said were errors of law:
He further raised a challenge to the Tribunal’s conclusions of fact, in respect of which leave to appeal was required.
The Appellant submitted that there was never a valid licence transfer under s. 61 of the Liquor Act. He argued that because the former licensee had been evicted, an application was required to be made by the owner of the licensed premises, or the business owner, in accordance with s. 61(2). The Appellant stated he was not the owner, and no such application was made.
The Appeal Panel dismissed this ground of appeal for the following reasons.
The Appeal Panel did not accept that the present case falls within the limited circumstances in which a collateral challenge is permitted, taking into account that:
The Appellant contended that the previous District Court decision of Scotting J quashing the conviction of the Appellant gave rise to a res judicata (a matter that has been adjudicated by a competent court may not be pursued further by the same parties).
The Appeal Panel accepted that the judgments of Fullagar J in Jackson v Goldsmith (1950) 81 CLR 446 at 466-8 and of Dixon J in Blair v Curran (1939) 62 CLR 464 at 531-2 were sound authority for the operation of the principles of res judicata and issue estoppel: -.
The Appeal Panel concluded that res judicata did not operate in the present case, and further, that issue estoppel could not arise for the reasons stated by the Tribunal at first instance, namely that the District Court decision was (i) between different parties, (ii) involved a different standard of proof, and (iii) reached a conclusion that it had not been proved beyond reasonable doubt that the Appellant was the licensee, not that the Appellant was not the licensee: -.
The Appellant sought to assert that the Authority’s OneGov system to which the Tribunal referred was not in operation at the relevant time and that the means of notification (of approval of licence transfer) was by electronic notice.
The Appeal Panel observed that the case was not formulated in this way at first instance, and in any event the Appellant had not identified the evidence he relied upon.
Applying the general principles relevant to a grant of leave to appeal, the Appeal Panel noted that:
Accordingly, leave to appeal was refused: -.