Minardi Pty Ltd v Hodgkin
[2011] VSCA 177
•3 June 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2011 0065
| MINARDI PTY LTD (ACN 102 411 781) & ORS | Applicants |
| v | |
| INSPECTOR ROBERT HODGKIN | Respondent |
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| JUDGES | TATE JA, ALMOND AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 3 June 2011 |
| DATE OF RULING | 3 June 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 177 |
| RULING APPEALED FROM | Hodgkin v Minardi Pty Ltd ACN 102 411 781 [2011] VCAT 591 (6 April 2011) |
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LIQUOR LAW – LICENSING – Appeal from an interlocutory order – Applications before the Victorian Civil and Administrative Tribunal pursuant to s 90 and s 95 of the Liquor Control Reform Act 1998 – Whether the Tribunal should exclude particulars provided in prior proceedings before the Tribunal – Leave to appeal granted – Expedited hearing of appeal to minimise consequences of fragmentation
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| Appearances: | Counsel | Solicitors |
| For the Applicants | Mr J T Rush RFD QC with Mr S Reid | Ryan Commercial Lawyers |
| For the Respondent | Mr O P Holdenson QC with Mr A M Dinelli | Victorian Government Solicitor |
TATE JA:
I invite Almond AJA to deliver the first judgment in this matter.
ALMOND AJA:
The applicants seek leave to appeal an order of the Victorian Civil and Administrative Tribunal (‘the Tribunal’) constituted by her Honour Judge Jenkins, Vice President, on 28 March 2011. On that day, the judge dismissed the application of the applicants for orders dismissing or striking out matters which were before the Tribunal.
The first applicant, Minardi Pty Ltd, is a licensee of the Colonial Hotel at 585 Lonsdale Street, Melbourne. The second applicant, Mr Tolli Grigoriadis, is a director of the first applicant. The third applicant, Ms Danielle Couvee, was operations manager of the Colonial Hotel at relevant times.
The proceeding before the Tribunal involves applications made under the Liquor Control Reform Act 1998 (‘the Act’) , namely:
(1)an application for an inquiry into the licensee (the first applicant) pursuant to s 90 of the Act; and
(2)an application that the liquor licence in respect of the premises be cancelled or suspended pursuant to s 95 of the Act.
In addition, there are foreshadowed applications for monetary penalties and a disqualification order against the first applicant and for a disqualification order against the second and third applicants.
Particulars of the inquiry application under s 90 and the application for cancellation or suspension under s 95 were provided by the respondent and witness statements were filed responding to the particulars.
At the commencement of the hearing of the applications on 22 November 2010, the applicants sought orders for the provision of further particulars. Judge Lacava made orders for the provision of particulars.
In response to the orders, the respondent filed further particulars of the applications dated 7 December 2010, additional particulars dated 4 January 2011 and additional particulars with respect to amenity dated 28 February 2011.
The applicants contend that in both the s 90 application and the s 95 application, the respondent relies upon particulars which were the subject of an agreed resolution between the parties in April 2005 when a consent order was made with the approval of the Tribunal (these are referred to as ‘the historic particulars’).
By reason of the consent order made in April 2005, there has been no adjudication or determination on the facts outlined in the historic particulars which all relate to matters which occurred in 2003 and 2004. By that consent order, the Tribunal imposed special conditions on the liquor licence and imposed a fine on the licensee.
The applicants rely on a ruling of Judge Lacava on 23 November 2010 where his Honour said:
Mr Rush objects to witnesses being called to give evidence about events between May 2003 and May 2004 as foreshadowed in the particulars given thus far. Those matters have already been dealt with in separate proceedings in the Tribunal. I agree with Mr Rush's application. There is no need to re-agitate the matters which have already been dealt with by the Tribunal. The orders of the Tribunal made on a previous date relating to those matters can be relied upon.
The applicants say that despite this ruling, the respondent has continued to present and rely on the historic particulars.
In giving her reasons, Judge Jenkins observed:
There is no question that the matters which have already been the subject of prior inquiry, determination and orders of the Tribunal, cannot be again re-agitated in the context of the current section 90 application. So much was conceded by [the respondent's] counsel before his Honour Judge Lacava when counsel clarified that the inclusion of the historic particulars did not create a double jeopardy situation but rather were included because of their potential relevance to the Tribunal when determining suitability of any of the persons falling under section 92 (1).[1]
[1]Hodgkin v Minardi Pty Ltd ACN 102 411 781 [2011] VCAT 591 (‘Reasons’), [102].
In her written reasons Judge Jenkins ruled:
Accordingly, in my view there is no basis for excluding the historic particulars and they are properly included in the current application.[2]
[2]Reasons, [105].
The applicants contend that Judge Jenkins failed to appreciate the status of the consent orders in regard to the historic particulars and the effect of the ruling of Judge Lacava.
The respondent acknowledges that the historic particulars are set out in paragraphs [177] to [185] of the further particulars of applicant dated 7 December 2010. The respondent submits that the historic particulars are relied upon as facts that demonstrate that the first applicant, Minardi, is not suitable to hold a liquor licence because of a ‘clear and sustained history of contravention of both the licence condition and the Act’.
The respondent submits that no evidence concerning the matters, the subject of the historic particulars, will be called by the respondent at the s 90 inquiry, but that they will only be relied upon at the conclusion of the inquiry at the point at which the Tribunal will consider whether to make orders pursuant to s 91 (which relates to cancelling, suspending or making orders affecting the licence) and s 92 (which relates to licensees or any person who is concerned in or takes part in the management of licensed premises).
I consider that Judge Jenkins arguably failed to appreciate the effect of the consent orders made in relation to settlement of the previous application for an inquiry under s 90 with regard to the historic particulars and therefore arguably committed an error of law when she found (a) there was ‘no basis for excluding the historic particulars’ and (b) that it was ‘entirely appropriate’ to put the historic particulars before the Tribunal for the purposes of s 92 of the Act. Depending on the view one takes of the effect of the consent orders, that may not be so in this case.
In my opinion the judgment of Judge Jenkins is attended by sufficient doubt to warrant the grant of leave.
In this case the order appealed from is interlocutory. To minimise the consequences of fragmentation of the proceeding, there should be an expedited hearing of this appeal.
TATE JA:
I agree with the reasons for judgment of Almond AJA.
The orders of the Court will be:
1. The application for leave to appeal is granted.
2. There be an expedited hearing of the appeal.
3. The costs of today's application be costs in the appeal.
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