Bishop, Lee Andrew v Tasmanian Gaming Commission

[1999] TASSC 9

[1999] TASSC 9

PARTIES:  BISHOP, Lee Andrew
  v
  TASMANIAN GAMING COMMISSION

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 47/1998
DELIVERED:  12 February 1999
HEARING DATE/S:  3 February 1999
JUDGMENT OF:  Crawford J

CATCHWORDS:

Appeal and New Trial - In general and right of appeal - Nature of right - Appeals stricto sensu and appeals by way of rehearing - Nature of appeal - Appeal from administrative body to court - Appeal from Tasmanian Gaming Commission to Supreme Court - Whether hearing de novo.

Gaming Control Act 1993 (Tas), s173.

R v Oldham;ex parte Registrar of Motor Vehicles [1966] Tas SR 80; Ryan v Hartnett [1961] Tas SR 130; Sportsman's Hall Hotel Pty Ltd v Commissioner of Stamp Duties [1990] Tas R 21, applied.
Aust Dig Appeal and New Trial [2]

REPRESENTATION:

Counsel:
           Appellant:  T A Bain
           Respondent:  P Turner
Solicitors:
           Appellant:  Rae & Partners
           Respondent:  Director of Public Prosecutions

Judgment category classification:
Judgment ID Number:  [1999] TASSC 9
Number of pages:  3

Serial No 9/1999

File No LCA 47/1998

LEE ANDREW BISHOP v TASMANIAN GAMING COMMISSION

REASONS FOR JUDGMENT  CRAWFORD J

12 February 1999

1. The appellant was the holder of a special employee licence under the Gaming Control Act 1993. On about 29 September 1998 the respondent purported to give him written notice under the Act, s61(3), requiring him to show cause why the respondent "should not take disciplinary action on the following grounds". The notice alleged that on 3 September 1998 he had:

(a)Withheld winnings in the game of keno from a player at the George Town RSL Club, asserting to the player that no further winnings were payable;

(b)Falsely claimed to have contacted Network Gaming to obtain the correct amount of winnings owed to the player; and

(c)Contravened section 15.8 of the rules of keno, by not providing a print pay ticket when requested to do so by the player.

1. The notice further alleged that he was not a suitable person to be the holder of a special employee licence and it concluded by informing him that the respondent afforded him an opportunity to show cause within twenty-eight days of the date of service of the notice why disciplinary action should not be taken on the grounds specified in the notice. By s61(1), the expression "disciplinary action" means censuring the licensee, varying the licence, suspending the licence and cancelling the licence.

1. In response, the appellant made a written submission.  Following that, on 11 November 1998, the respondent advised the appellant in writing that in light of an incident that took place on 3 September 1998 at the George Town RSL Club in which the appellant withheld winnings in a game of keno from a player at the club asserting to the player that no further winnings were payable, and falsely claimed to have contacted Network Gaming to obtain the correct amount of winnings owed to the player, the respondent had determined that he was no longer suitable to hold a special employee licence.  He was advised in accordance with the Act, s61(5), that the respondent had cancelled his licence. 

1. The Act, s173, makes provision for appeals to this Court from a decision of the Commission. The section provides:

"173  (1) A person aggrieved by a decision of the Commission -

(a)   to cancel or suspend, or to refuse to cancel or suspend, a licence under this Act; or

(b)   to amend, or to refuse to amend, the conditions of a licence under this Act; or

(c)   to list or refuse to list the name of a person on the Roll, to remove the listing of the name of a person from the Roll or to suspend the listing of the name of a person on the Roll ¾

may appeal to the Supreme Court from the decision.

(2) The Supreme Court must hear and determine the appeal and make such order as it thinks appropriate by reason of its decision, including, without limiting its power to make such orders -

(a)   an order affirming or setting aside the decision of the Commission; or

(b)   an order remitting the matter to the Commission to decide again in accordance with the directions of the Supreme Court."

1. The appeal came on for hearing before me on 3 February.  Counsel for both parties submitted that the hearing of the appeal should be in the form of a hearing de novo and I then adjourned the hearing until 19 February to enable me to determine the point. 

1. The Act is silent about the nature of the hearing in the Supreme Court, except in so far as the Court is empowered to make such order as it thinks appropriate by reason of its decision, with power to affirm or set aside the decision of the respondent and to remit the matter to the respondent to decide again in accordance with the directions of the Court.  The provisions of the Supreme Court Civil Procedure Act 1932, s6(3), apply. That subsection provides, inter alia, that any appellate jurisdiction which is conferred on or vested in the Court under or by virtue of any statute shall, except as otherwise provided by that statute, be exercised, so far as regards procedure and practice, in the manner provided by the 1932 Act and the Rules of Court; or, if there is no appropriate provision in that Act or the Rules in that regard, then the jurisdiction shall be exercised in such form, mode and manner as the Court or a judge may direct.  Order 76, Div IV of the Rules of Court applies to appeals from statutory tribunals and the holders of statutory offices.  It provides for the filing and service of notices of appeal, and for the entry of appeals for hearing.  It also provides, by r74(1), that any evidence given before the tribunal from which the appeal has been instituted, and any facts necessary to be brought before the Court or judge hearing the appeal, may be brought before the Court or judge by affidavit or, if the Court or a judge so directs, on the hearing of the appeal by oral evidence.  By r74(2) it is provided that the Court or judge hearing the appeal may also ascertain the evidence given, and the proceedings had or taken before the tribunal, from any materials (including counsel's notes) which the Court or judge may think proper, and such material may be used for the purpose of determining the appeal.

1. By virtue of r68 and r38(1), the notice of appeal must state specifically but concisely the grounds of the appeal. By virtue of r68 and r54(1), the Court or judge, on hearing the appeal, has power to draw all inferences of fact which might have been drawn by the tribunal. There are other provisions in r54(1) which probably do not apply to this case because of what is provided by the Gaming Control Act 1993, s173(2). However, subr(3) does apply. It provides, in conjunction with r68, that no appeal from a tribunal shall succeed on the ground merely of misdirection or the improper reception or rejection of evidence unless, in the opinion of the Court or judge, some substantial wrong or miscarriage had been thereby occasioned in the tribunal. It is probable that by virtue of r68, r55 also applies. It provides that the Court or judge shall have power to make any other order with respect to an appeal from a tribunal which the Court or judge thinks just for the purpose of ensuring the determination of the merits of the real question in controversy between the parties, and such order may be made on such terms as the Court or judge shall think just.

1. I understand that no hearing was conducted by the respondent.  Some form of investigation of the allegations was made and the appellant was invited to make a submission, which he did in writing.  No evidence was given in any formal sense and reasons for the respondent's decision were not published, apart from what was stated in the notification of the cancellation of the licence which was given to the appellant.

1. The decision of the respondent to cancel his licence was made in the exercise of an administrative function.  By providing for an appeal to the Court, it must have been intended that the appeal should be determined judicially and not administratively.  In the circumstances, the nature of the hearing of the appeal should be as an original proceeding and the questions should be tried on fresh evidence and independently of the process by which the respondent reached its conclusion.  R v Oldham;ex parte Registrar of Motor Vehicles [1966] Tas SR 80 at 83; Ryan v Hartnett [1961] Tas SR 130 at 133; Sportsman's Hall Hotel Pty Ltd v Commissioner of Stamp Duties [1990] Tas R 21 at 24 - 26. See also Smith v Commissioner of Stamp Duties [1981] Tas R 14 at 21 and Peters v Commissioner of Police A104/1993.  It will be a matter for me to decide, upon the evidence the parties put before me, whether there are grounds for disciplinary action, as that expression is used in the Gaming Control Act 1993, s61(1), and if so whether, in the exercise of my discretion, disciplinary action of some form should be taken against the appellant. The onus will be on the respondent to justify its decision to cancel the appellant's licence. However my choice will not be merely to affirm or set aside the respondent's decision. In the exercise of my discretion I may, if I find that grounds for disciplinary action have been established, decide instead to censure the appellant or to vary or suspend his licence rather than cancel it.

1. The Rules of Court, O76, r74(1) will apply, that is to say any facts may be brought before me by affidavit or, if I so direct, by oral evidence.

1. There may be cases in which it is unnecessary for evidence to be put before the appellate Court.  For example, the grounds of the appeal may simply raise errors in point of law which, if established, will be sufficient to determine the outcome of the appeal without the need for fresh evidence to be put before the Court.  However I understand that this is not such a case and that it is intended by the parties that there should be a hearing de novo and that I should determine the outcome of the case upon the basis of fresh evidence put before me by the parties.