Buzzo Holdings Pty Ltd & Anor v Loison - [2007] VSC 31

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 4968 of 2006

BUZZO HOLDINGS PTY LTD (ACN 007 148 101)	First Appellant
- and -
JOHN THOMAS BUZZO	Second Appellant
v
INSPECTOR GRAHAM LOISON	Respondent

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JUDGE:	Kaye J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 February 2007
DATE OF JUDGMENT:	26 February 2007
CASE MAY BE CITED AS:	Buzzo Holdings Pty Ltd and anor v Loison
MEDIUM NEUTRAL CITATION:	[2007] VSC 31

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ADMINISTRATIVE LAW – Appeal from Victorian Civil and Administrative Tribunal – Inquiry as to suitability of licensee and director under Part 6 of Liquor Control Reform Act 1998 - Findings of unsuitability by Tribunal – Licensee fined $9,000 and director disqualified for nine years – Whether reasons of Tribunal adequate – Whether error of law by Tribunal – Whether penalties manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the First and Second Appellants	Mr T.J. McLean	Lewenberg & Lewenberg
For the Respondent	Mr B. M. Dennis	Victorian Government Solicitor

HIS HONOUR:

Until November 2005, the first named appellant, Buzzo Holdings Pty Ltd, was the licensee of the Red Cliffs Hotel, Calder Highway, Red Cliffs. The second appellant, John Thomas Buzzo (“Buzzo”), is a director of the first appellant, and was the manager of the hotel. The respondent is a licensing inspector duly appointed under the Liquor Control Reform Act 1998 (“the Act”).

On 4 June 2004 the respondent applied to Victorian Civil and Administrative Tribunal for an inquiry under s.90(1) of the Act, on the basis that he considered that the licensee was not a suitable person to hold a licence under s.90(1)(k). On 9 February 2006 a Senior Member of the Tribunal conducted the inquiry. At the conclusion of the inquiry the Senior Member announced his decision in which he held that the appellants were not suitable persons to hold the licence. He imposed a fine of $9,000 on the first appellant under s.91(1)(b)(iv). He also disqualified the second appellant from carrying out any of the activities referred to in s.92(1)(a) to (f) of the Act for a period of nine years. The matter comes before me on an appeal from the decision of the Senior Member, leave having been granted to the appellants by an order of Master Evans on 15 June 2006.

The application before the Senior Member arose out of an incident which occurred at the hotel in the evening of 3 February 2004. On that date a patron, Daniel James Scandolera (“Scandolera”), who was then aged 20, attended at the public bar of the hotel at about 5.30pm. Over the following period of five hours he was served a number of full strength glasses of beer. At 10.30pm Scandolera placed an order for packaged liquor with the second appellant’s wife, Sophie Buzzo. The second appellant obtained the packaged liquor, accepted payment from Scandolera, and placed the liquor on the counter for Scandolera. Whilst Scandolera was talking with Sophie Buzzo, the second appellant offered Scandolera a pot glass…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] VSC 31
Decision Date: 26 February 2007

CaseChat Overview and Summary

The case of Buzzo Holdings Pty Ltd & Anor v Loison involved an appeal from the Victorian Civil and Administrative Tribunal (VCAT) concerning an inquiry into the suitability of a licensee and a director under Part 6 of the Liquor Control Reform Act 1998. The Tribunal had found the licensee and director unsuitable, imposing a fine of $9,000 on the licensee and disqualifying the director for nine years. The primary legal issues before the court were whether the reasons provided by the Tribunal were adequate, whether there was an error of law in the Tribunal’s decision, and whether the penalties imposed were manifestly excessive.

The court examined the adequacy of the Tribunal’s reasons, considering whether they sufficiently articulated the basis for the findings of unsuitability. It assessed whether the Tribunal had correctly applied the law in reaching its conclusions and scrutinized whether the penalties were proportionate to the findings made. The court had to balance the deference owed to the Tribunal’s expertise in administrative matters with the need to ensure that the Tribunal's decisions were legally sound and reasonable.

In its decision, the court found that the Tribunal’s reasons were adequate, as they provided a clear and logical basis for the findings of unsuitability. The court also determined that there was no error of law in the Tribunal’s decision, affirming the Tribunal's authority to make such findings based on the evidence presented. Regarding the penalties, the court held that while the penalties were severe, they were not manifestly excessive given the nature and seriousness of the unsuitability findings. The court emphasised the importance of maintaining public confidence in the licensing system and the need for deterrent penalties in cases of unsuitability.

The court dismissed the appeal, upholding the Tribunal’s findings and penalties. This decision reinforced the principle that the Tribunal’s decisions in matters of suitability for licensing and directorship are to be given significant weight, provided they are legally sound and supported by adequate reasons.

Orders