Courto v Tasmanian Gaming Commission - [2014] TASFC 12

[2014] TASFC 12

COURT: SUPREME COURT OF TASMANIA (FULL COURT)

CITATION: Courto v Tasmanian Gaming Commission [2014] TASFC 12

PARTIES:  COURTO, Michael
  v
  TASMANIAN GAMING COMMISSION

FILE NO: FCA 57/2014
JUDGMENT

APPEALED FROM: Courto v The Tasmanian Gaming Commission

[2013] TASSC 80

DELIVERED ON:  22 October 2014
DELIVERED AT:  Hobart
HEARING DATE:  4 June 2014
JUDGMENT OF:  Blow CJ, Wood and Pearce JJ

CATCHWORDS:

Professions and Trades – Licensing or regulation of other professions, trades or callings – Other callings – Gaming industry employee – Disciplinary proceedings – Breaches of licence condition – Purchase of keno tickets whilst on duty.

Gaming Control Act 1993 (Tas), s 112T.
Aust Dig Professions and Trades [1314]

REPRESENTATION:

Counsel:
             Appellant:  K Cuthbertson
             Respondent:  A McKee
Solicitors:
             Appellant:  Murdoch Clarke
             Respondent:  Acting Director of Public Prosecutions

Judgment Number: [2014] TASFC 12
Number of paragraphs: 47

Serial No 12/2014
File No FCA 57/2014

MICHAEL COURTO v TASMANIAN GAMING COMMISSION

REASONS FOR JUDGMENT FULL COURT

BLOW CJ
WOOD J
PEARCE J
22 October 2014

Orders of the Court

Appeal allowed.

Order dismissing appeal against the decision of the respondent set aside.

Decision of the respondent set aside.

Appellant's special employee's licence under the Gaming Control Act 1993 suspended for three months.

Each party has leave to apply as to the commencement date for that period of suspension.

Unless an application is made within 14 days as to that commencement date, the period of suspension is to commence 28 days after the making of these orders.

Serial No 12/2014
File No FCA 57/2014

MICHAEL COURTO v TASMANIAN GAMING COMMISSION

REASONS FOR JUDGMENT FULL COURT

BLOW CJ
22 October 2014

I have had the advantage of reading the reasons for judgment of Pearce J in draft form. For the reasons stated by him, I agree that grounds 1 and 5 of the grounds of appeal must succeed. I also agree with the orders he proposes.
I regret that I disagree with his Honour in relation to ground 2. In my view that ground should also succeed. That ground relates to the appellant's degree of co-operation when his gambling was first investigated. He readily admitted that he had purchased the two winning keno tickets on 7 April 2012 but, when asked about the other eight tickets he had purchased whilst on duty that day, he made no comment. The learned primary judge inferred that he "hoped not to be detected in relation to all his activities": Courto v The Tasmanian Gaming Commission [2013] TASSC 80 at [32]. At [34] of her Honour's reasons, she listed five factors that she regarded as supporting her conclusion that cancellation of the appellant's special employee's licence was the only appropriate penalty. One of those five factors was "the limited initial co-operation with investigating officials".
At the hearing of this appeal, counsel for the appellant argued that the appellant's admissions as to purchasing the two winning tickets were properly regarded as a mitigating factor, and that his…

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: [2014] TASFC 12
Decision Date: 22 October 2014

CaseChat Overview and Summary

The Supreme Court of Tasmania, sitting as the Full Court, heard an appeal by Mr. Courto against a decision of the Tasmanian Gaming Commission. Mr. Courto, a holder of a special employee's licence under the *Gaming Control Act 1993* (Tas), faced disciplinary proceedings before the Commission for alleged breaches of his licence conditions, specifically purchasing keno tickets while on duty. The Commission had determined that Mr. Courto had breached these conditions and imposed a penalty.

The central legal issue before the Full Court was whether the Commission had erred in its determination that Mr. Courto had breached the conditions of his licence. This involved an interpretation of the relevant licence conditions and the factual circumstances surrounding Mr. Courto's actions. The Court was required to consider whether the evidence presented supported the Commission's finding that Mr. Courto had engaged in conduct prohibited by his licence.

The Full Court allowed the appeal, setting aside the Commission's decision and the prior order dismissing Mr. Courto's appeal to the Commission. The Court found that the Commission had erred in its interpretation and application of the licence conditions. Consequently, the Court ordered that Mr. Courto's special employee's licence be suspended for a period of three months. The parties were granted leave to apply regarding the commencement date of this suspension, with a default commencement date set 28 days after the making of the orders if no such application was made within 14 days.

Orders

Orders of the court

1. Appeal allowed.

2. Order dismissing appeal against the decision of the respondent set aside.

3. Decision of the respondent set aside.

4. Appellant's special employee's licence under the Gaming Control Act 1993 suspended for three months.

5. Each party has leave to apply as to the commencement date for that period of suspension.

6. Unless an application is made within 14 days as to that commencement date, the period of suspension is to commence 28 days after the making of these orders.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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