|Date of judgement||11 April 2019|
|Court or Tribunal||Supreme Court of New South Wales|
The Crown Solicitor acted for the Chief Commissioner of State Revenue (“Chief Commissioner”), the Defendant to this appeal. The appeal was brought by the Plaintiff under s. 83(1) of the Civil and Administrative Tribunal Act 2013 (the “CAT Act”) to the Supreme Court from a decision of the NSW Civil and Administrative Tribunal (“Tribunal”) Appeal Panel. The matter originated as an application for review in the Tribunal of the Chief Commissioner’s decision to refuse to refund gaming machine tax. At first instance, Principal Member Tamberlin QC dismissed the Plaintiff’s application, and on appeal to the Appeal Panel, the appeal was also dismissed.
At all levels, the case has turned on the factual and/or legal question of whether the Plaintiff held the hotel licence at the relevant times.
The previous licensee was allegedly evicted by the owner of the hotel premises on 2 January 2012. The Plaintiff was the sole director of one of the two companies which owned the hotel premises. On 24 January 2012, the Plaintiff applied to the Independent Liquor and Gaming Authority (“ILGA”) for a transfer of the hotel licence to him.
Documents and records in evidence at first instance indicated that the application for transfer was provisionally approved by ILGA on 30 January 2012, and that the Plaintiff was notified by post and by email of this approval and was sent the hotel licence document. The Plaintiff denied receiving any of these documents.
On 11 May 2016, a decision was made by Judge Scotting in Sidgreaves v R; AJS Hotel Management Pty Ltd v R  NSWDC 81, allowing an appeal from a conviction under the Liquor Act in respect of the hotel. His Honour found that he could not be satisfied beyond reasonable doubt that the hotel licensee was the Plaintiff.
As a result, the Plaintiff sought a refund of gaming machine tax that had been paid in the period 1 January 2012 to 31 December 2015 on the basis he was not the licensee.
In dismissing the Plaintiff’s claim at first instance, the Tribunal found that the Plaintiff had not discharged his onus of proof and the evidence did not support a finding that the Plaintiff was not the holder of the hotel licence.
On appeal to the Appeal Panel, the Plaintiff:
The Appeal Panel dismissed the grounds of appeal and refused leave to appeal the factual issues.
Gaming machine tax is payable on profits from gaming machines kept in a hotel: s. 6(1) of the Gaming Machine Tax Act 2001 (“GMT Act”).
The person liable to pay the tax is the hotelier, that is, the holder of the applicable hotel licence under the Liquor Act: ss. 6(2) and 3(1) of the GMT Act and s. 4(1) of the Liquor Act.
Sections 60 and 61 of the Liquor Act are also relevant to the submissions made by the Plaintiff.
The Plaintiff submitted that the Appeal Panel erred on a question of law:
As a preliminary matter, the Court had to grant leave to the Plaintiff to bring his appeal.
The Chief Commissioner submitted that on numerous grounds, leave to appeal ought not to be granted.
His Honour Justice Wright determined there was no basis upon which to grant leave to appeal, applying the principles considered recently in Bitar Pty Ltd v Hebbel Constructions Pty Ltd  NSWCA 39: . In the present case, the Appeal Panel’s decision was not attended by sufficient doubt to warrant reconsideration; there was no potential for the Plaintiff to suffer substantial injustice; nor did the case involve any matter of general public importance: .
The Court considered each ground of appeal and found as follows:
This ground raised new points that had not been raised either before the Tribunal or the Appeal Panel.
The Court held that, even though s. 83 of the CAT Act does not appear to prohibit points not argued below being raised on appeal, the considerations referred to in Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 and Coulton v Holcombe (1968) 162 CLR 1 may mean that the Court should not permit new points to be argued on such an appeal or that the Court should refuse leave to appeal: .
In relation to s. 60, Justice Wright rejected the Plaintiff’s submission that the issue sought to be argued involved purely a question of law. His Honour considered that the argument depended on findings of mixed law and fact relating to whether Mr Parrott was the licensee at the relevant time and whether he had provided consent to the transfer in any form at all: . Applying Coulton v Holcombe, his Honour held that, since evidence could have been given in the Tribunal or the Appeal Panel which could have prevented the point from succeeding, the new point should not be allowed to be raised in the present appeal: .
In relation to s. 61, the Court again considered that the new argument depended on questions of mixed fact and law relating to the capacity in which the Plaintiff was acting when he was involved in making the application for transfer, who in fact was the applicant, and under which section the application was made. As with the s. 60 argument, Wright J observed that if raised at the initial hearing, this argument could possibly have been addressed by calling further evidence, and as such, should not be allowed to be raised on appeal: -.
His Honour stated that for the above reasons, he would not grant leave to appeal in respect of ground 1. He noted that if he is wrong in refusing leave, he would nonetheless reject the appeal for the above reasons: .
The Court considered it was not necessary to deal with Ground 2 in light of its conclusion regarding Ground 1. However, it proceeded to deal briefly with this ground in the event it was wrong.
The Court held there was no error in the Appeal Panel’s decision not to permit the Plaintiff to engage in a collateral challenge to ILGA’s decision to approve the transfer of licence. It applied the principles in Ousley v The Queen (1997) 192 CLR 69, Attorney-General (Cth) v Breckler (1999) 197 CLR 83 and Director of Housing v Sudi (2011) 33 VR 559, and concluded that in respect of the Tribunal, which is not a court, in the present proceedings:
Accordingly, his Honour refused leave to appeal based on Ground 2, and if leave were to be granted, said he would reject the appeal on that ground: .
Justice Wright proposed that the crucial question under Ground 3 could be formulated as being whether, in all the circumstances, the Chief Commissioner was misusing or abusing the processes of the Tribunal by seeking to raise before it an issue which had already been determined against the Chief Commissioner in the District Court appeal. The Court held there was no abuse of process because, among other reasons: the question of whether the Plaintiff was not the licensee during the relevant period had not been determined adversely to the Chief Commissioner in any prior proceedings; the Chief Commissioner was not involved, nor could he be equated with the prosecution, in the District Court appeal: ; and the questions in each set of proceedings were quite distinct and the evidence was very different: .
Accordingly, his Honour refused leave to appeal on the basis of Ground 3, and held that even if leave to appeal should be granted, the appeal on this ground should be dismissed.
The Court ordered that the Summons filed on 13 February 2018 is dismissed.
After hearing oral submissions on costs, the Court ordered that the Plaintiff pay the Defendant’s costs as agreed or assessed.