R v Tasmanian Gaming Commission; ex parte Bosworth
[2001] TASSC 77
•17 July 2001
[2001] TASSC 77
CITATION:R v Tasmanian Gaming Commission; ex parte Bosworth & Anor
[2001] TASSC 77
PARTIES: R
v
TASMANIAN GAMING COMMISSION
BOSWORTH, John Edward
BOSWORTH, Denise Elizabeth; Ex parte
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: M 9/2001 (LDR)
DELIVERED ON: 17 July 2001
DELIVERED AT: Hobart
HEARING DATE: 20 June 2001
JUDGMENT OF: Cox CJ
CATCHWORDS:
Administrative Law - Judicial review at common law - Procedural fairness - Right of party affected to be heard - Nature of hearing - Opportunity to present case - Grant of Licensed Premises Gaming Licence - Whether failure to put to the prosecutors material adverse to them constitutes a breach of natural justice.
Gaming Control Act 1993 (Tas).
Annetts v McCann [1990] 170 CLR 596; Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994), followed.
FAI Insurances Ltd v Winneke (1982) 151 CLR 342; Attorney-General for New South Wales v Quin (1989 - 1990) 170 CLR 1, distinguished.
Aust Dig Administrative Law [63]
REPRESENTATION:
Counsel:
Applicants: R W Pearce
Respondent: P Turner
Solicitors:
Applicants: Douglas & Collins
Respondent: Director of Public Prosecutions
Judgment Number: [2001] TASSC 77
Number of paragraphs: 13
Serial No 77/2001
File No M9/2001
THE QUEEN v TASMANIAN GAMING COMMISSION;
Ex PARTE JOHN EDWARD BOSWORTH and
DENISE ELIZABETH BOSWORTH
REASONS FOR JUDGMENT COX CJ
17 July 2001
The prosecutors, being desirous of purchasing the business of the Exeter Hotel, jointly made application on 16 January 2001 for a Licensed Premises Gaming Licence pursuant to the Gaming Control Act 1993 ("the Act"), s36. The application was refused by the respondent Commission by letter dated 2 February 2001 and they have brought these proceedings claiming that they were not accorded procedural fairness in the processing of their application. In addition to the joint application for a Licensed Premises Gaming Licence, each of them sought a Special Employee's Licence within the meaning of the Act, s32. These applications were also refused by letters dated 5 February 2001, citing substantially the same reasons as those advanced for refusing the Licensed Premises Gaming Licence and these decisions are challenged on the same basis.
Pursuant to the Act, s38, the Commission is required not to grant an application for a Licensed Premises Gaming Licence unless it is satisfied (inter alia) that the applicant and each associate of the applicant is a suitable person to be concerned in or associated with the management and operation of an approved venue. Pursuant to s38(2), the Commission is required, in particular, to consider, again among other things, whether the applicant and each associate of the applicant is of good repute, having regard to character, honesty and integrity and whether each person is of sound and stable financial background. Section 39 requires the Commission, on receiving such an application, to cause to be carried out all investigations and enquiries that it considers necessary to enable it to consider the application properly. It is obliged to refer the application and any supporting documentation to the Commissioner of Police and he in turn is obliged to enquire into and report to the Commission on any matters concerning the application that the Commission requests. By s42 the Commission is required to determine the application by either granting or refusing it and must notify the applicant in writing of its decision. It is obliged to give reasons for its decision to refuse an application.
In making the application on 16 January, the applicants submitted a number of documents and fees required by the Commission. This information included material concerning the applicants' personal history and a record of previous convictions. Accompanying the letter was a written statement signed by both prosecutors concerning certain convictions entered against Mr Bosworth in the Devonport Court of Petty Sessions on 24 April 1989 arising out of an incident on 9 September 1988. These convictions were in respect of two charges of assaulting a police officer, one of resisting a police officer, one of exceeding the blood alcohol limit of .05 per cent with a reading of .14 per cent and one of hindering conveyance. He was fined $100 for resisting a police officer and $140 for the breathalyser offence and disqualified for driving for three months. Convictions were recorded on the other charges. Mrs Bosworth was convicted in the Devonport Court of Petty Sessions on 30 May 1989 of obstructing police, resisting police and assaulting police, all of which offences occurred on 9 September 1988. She was fined $100 on the first charge and a conviction was recorded on the other two. The statement was as follows:
"John & Denise Bosworth
7 New Ecclestone Road
Riverside 7250
11th January 2001To Whom it May Concern,
We would like to clarify and explain the circumstances which has led to assault convictions on our police record dated the 09/09/1988, and which has been highlighted on the accompanying records enclosed.
In August 1988 my husband and I were away on holidays, during our holidays I phoned my mother and she informed me that the CIB were trying to contact John and I as there had been a fire at our family home.
On our return to Burnie we found a molotov cocktail had been thrown through a window of our home causing $4,000 damage.
The CIB questioned my husband and I - amongst other things asking us did we know who was responsible for the arson. At the time we did not. About ten days after the arson attack on our home another house in the next street from our home had an accelerent [sic] used and a fire ensured [sic].
On the evening of the 09/09/1988 the police accused John of lighting the fire at this other house for retaliation - this was found to be not true.
The police wanted John to go to the Police Station - as earlier that day they had taken samples of fuel from our motor vehicle and lawnmower, and the clothing John had been wearing when the house fire at the next street occurred.
Because John and I both knew he was innocent John would not voluntarily go with the Police, a struggle ensured [sic] between John and the Police and I went to John's defence which resulted in charges against us.
In February 1999 3 people appeared before the Supreme Court charged with arson to our home and the other house in the next street.
One person was sentenced to imprisonment and the other two people received suspended sentences and work orders.
On my record (Denise) a second charge of assault is recorded relating to the same incident, the sister-inlaw of the person sent to prison alleged that I assaulted her - which I did not but was convicted. I have highlighted the dates of these incidents so it is seen that they are connected.
We hope the above will enlighten (who that may be) to our plight and the stress we were both under at the time.
Signed: Denise Bosworth
J Bosworth "
On 18 January 2001, the Commission wrote to Mrs Bosworth at 7 Ecclestone Road, Riverside acknowledging receipt of the application and asking for certain other material. The prosecutors acknowledged that this letter was received and complied with. By letter dated 22 January 2001, the Commission again wrote to Mrs Bosworth at the same address. It was later claimed by the Commission that this letter was certified or registered mail and had not been collected by either of the prosecutors. Mrs Bosworth, in an affidavit, claimed not to have received notice that certified mail was to be collected by her and that her true address in any event was 7 New Ecclestone Road (although I note that there is no dispute that the letter of 18 January addressed to 7 Ecclestone Road had reached her). Some time later, an officer of the Commission telephoned her and arranged to deliver the letter. The substance of the letter was as follows:
"In accordance with section 38 of the Gaming Control Act 1993 (the Act) the Commission must not grant an application for a LPG licence unless satisfied that the applicant and each associate of the applicant is a suitable person to be concerned in or associated with the management and operation of an approved venue. In particular, the Commission must consider whether the applicant and each associate of the applicant is of good repute, having regard to character, honesty and integrity.
During an investigation by the Commission into alleged credit betting incidents on 30 May 2000 at the Federal Hotel in Wynyard, you were interviewed by two government inspectors and the investigators, Thomas Whayman & Associates. The Commission noted with concern the admissions that you made in those interviews regarding your gambling activities and the general regard of other witnesses concerning your gambling activities. The Commission also noted a number of offences on your police record that require explanation.
The Commission now gives you notice, in accordance with section 40(1) of the Act, that it requires you to provide it with information relevant to the investigation of the LPG licence application from JE & DE Bosworth and in particular:
• whether you have a problem controlling your gambling;
• an explanation for the highlighted offences on your police record; and
•any other information relevant to your suitability to be concerned in or associated with the management and operation of the Exeter Hotel."
An abbreviated record of Mrs Bosworth's prior convictions (all in a court of petty sessions) is as follows:
19/8/1972
Drunk and incapable
Fined $10
15/10/1975
Destroy property
Dismissed under Probation of Offenders Act
1/2/1976
Traffic Infringement Notice
Undue Noise
Fined $10 1 Demerit Point
5/4/1976
Undue smoke
No handbrake
Fined $10
Fined $102/12/1983
Injure property
Injure property
21 days' imprisonment, wholly suspended
Damages of $834.26 ordered to be paid21 days' imprisonment, cumulative, wholly suspended
29/3/1985
Drunk and disorderly
Assault policeFined $15
Fined $25
11/8/1988
Trespass
Fined $40
26/3/1989
Traffic infringement notice
Unrestrained child
Fined $60 2 Demerit Points
30/5/1989
Obstruct police
Resist police officerAssault police
Fined $100
Conviction recorded
Conviction recorded18/6/1990
Assault police
Conviction recorded. Probation order for 18 months under supervision
7/5/1991
Traffic infringement notice
Unrestrained child
Fined $80 2 Demerit Points
21/7/1992
Traffic infringement notice
Fail to wear seat belt
Fined $80 2 Demerit Points
Mrs Bosworth replied to the letter delivered by the officer with a letter dated 24 January 2001 which was received by the Commission on 29 January 2001. In it she said:
"24th January 2001
7 New Ecclestone Rd
Riverside 7250Dear Mr Chairman,
I am writing in response to the Gaming Commission letter dated 24th January [sic]. I do not have a problem controlling my gambling, as I decided some months ago that it is a lost cause and I have not gambled since.
The only form of gambling I indulged in was poker machines. I would also like to state that when I did play poker machines, at no time did it cause financial problems to my family - or any one else. It was my own money I used, as I had substantial cash at my dispose [sic].
Also regarding the incident on May 30th 2000 at the Federal Hotel I do not consider that to have been credit betting - as in the meaning of the word credit - a Dean Vardy had in his possession a bank cheque for $20,000.00 with my name on it. I can verify that I decided on my own accord to cease gambling, I therefore reiterate I do not have a problem with gambling.
In regard to the offences on my police record: the injure to property incident happened some 18 years ago, and I was a third party to this incident. A friend of mine had lent her lawn mower to another person. My friend did not have a motor vehicle at the time and asked me would I drive her to the other person's home to collect her lawn mower, which I did. On arriving at this other person's home, there was an argument between my friend, the other person and her reconciled husband. The husband stated my friend could not have the lawn mower, so my friend asked me to help her remove it which I did.
The lawn mower fell from the boot of the car and was damaged. My friend became angry, and broke some garden gnomes and ornaments, which resulted in the injure to property charge with me being a co-accused.
Looking at my record previous to this incident, you will note I received a harsh penalty considering my previous record.
When I was given this penalty my solicitor at the time suggested to me to appeal against the penalty, as my previous record and the nature of the charge did not warrant this penalty. I decided not to appeal - but maybe in hindsight I should have.
In regard to assault police in 1984, as you will note by the $25.00 fine imposed, it was as to speak a technical assault.
Myself and John's brother were having a heated argument and the police officer went to take hold of my arm, and I pushed his arm away - which constitutes assaulting police.
In regard to the trespass charge: the correct date of charge should (19/02/1989) and court date should be (11/08/1989). The complainant is the brother of the co-accused in the arson attack on our home which I have explained in a previous letter. I have a newspaper article to support this.
In accordance with section 38 of the Gaming Control Act - The Tasmanian Gaming Commission or no-one else could ever question or query my honesty or John's. This can be verified by business owners and other people known to us.
Also in regard to John's and my character you cannot look at a police record and assume or make judgment on a persons true character. John and I have both given an input and contributed to the community at various times. As follows:
1 In 1982 I helped a car accident victim (whom I did not know at the time) with head injuries. I pulled the victim on my own from the vehicle which had a ruptured fuel tank - to safety. There were bystanders telling me not to do so as it was dangerous. Verifying letter can be forwarded.
2 In 1986 John and I were foster parents to a 22 month old child for 5 months.
3 I have spent many hours voluntarily at two schools, helping children with dyslexia and learning disabilities. Neither of my two sons have had or do suffer from the above, I became involved in the special support programs simply to help other children less fortunate. (This can be verified.)
4 Also when John worked away on contract in Queensland working 2 weeks on 1 week off, on his week break he took children with reading difficulties - for special learn to read lessons, and also was the only male person at the school who helped in the canteen.
5 In 1991 when John was a shift worker at a West Coast mine he helped the Parents and Friends Association of Stella Maris build, and lay many loads of sand in the playground.
6 In 1996/7 John coached a junior cricket team of boys from disadvantaged backgrounds/circumstances buying some boys their cricket whites from his own money. He also helped a young aboriginal boy secure a sports grant. I have in my possession thank you letters and a plaque to support this.
7 John and I also donate cash amounts to a Church.
In conclusion, after reading the last 7 paragraphs I hope this will enlighten and reflect our true character, as the good of or about a person is not always reported or documented.
Yours sincerely
Denise & John Bosworth"
On 2 February 2001, the Commission refused the application in these terms:
"TASMANIAN
GAMING COMMISSION
PERSONAL & CONFIDENTIAL
Mr J E & Mrs D E Bosworth
7 Eccelstone RoadRIVERSIDE TAS 7250
Dear Mr and Mrs Bosworth
GAMING CONTROL ACT 1993
EXETER HOTEL
I refer to the application for a licensed premises gaming (LPG) licence made by JE & DE Bosworth to operate keno and gaming machines at the Exeter Hotel.
This is to advise that on 1 February 2001, pursuant to section 42 (1) of the Gaming Control Act 1993 (the Act), the Tasmanian Gaming Commission refused to grant the application. The reasons for the Commission's decision are listed below.
REASONS
1Neither applicant is a suitable person within the meaning of section 38(1) of the Act to be concerned in or associated with the management and operation of an approved venue having regard to character, honesty and integrity.
2Both applicants have extensive records of prior convictions, which include convictions for offences involving violence and hostility toward law enforcement officers.
· Between 1972 and 1992 Mrs Bosworth was convicted of 17 offences on 12 occasions. In the case of two convictions for injury to property recorded against her in 1983, the sentence of 21 days imprisonment, wholly suspended reflects the seriousness with which the Court regarded the offence.
· Mr Bosworth has been convicted of a total of 25 offences on 20 occasions. These convictions indicate a general disregard for the law. Between 1984 and 1989 he was convicted of exceed 0.05 three times and between 1977 and 2000 he was convicted of 17 other traffic offences and was convicted of assaulting police and hindering conveyance in 1989 (associated with a charge of exceed 0.05).
3Mrs Bosworth demonstrated that she has had difficulty controlling her gambling.
· In particular, between March and October 1999, she spent, on her own admission, over $70 000 in playing gaming machines in the Hotel Federal at Wynyard, and on several occasions, borrowed money from the licensee contrary to section 94 of the Act in order to do so.
· Further, on 30 and 31 May 2000 she borrowed approximately $3 700 from Dean Russell Vardy and spent it on gaming machines, after which she visited her daughter and was physically sick. She later went into hiding from Mr Vardy and pawned several items of property from her home in order to repay the debt.
4In June 2000, the manager of the Wynyard RSL Club stated that he considered Mrs Bosworth to suffer a gambling problem.
5Mrs Bosworth has demonstrated that she is untruthful.
· In particular, after she borrowed $3 700 from Mr Vardy, she asked a local businessman, Steve Charles, to lend her the same amount to enable her to repay the debt, dishonestly telling him it was to repair her car.
· Further, officers of the Commission considered charging Mr Vardy with lending Mrs Bosworth money to enable her to play gaming machines contrary to section 94 of the Act, but her lack of honesty prevented this as her credit could not be relied on to give a reasonable expectation of success in any prosecution against Mr Vardy.
· Further, an investigation conducted on behalf of Vantage Hotel Group Pty Ltd concluded that on several occasions during the investigation of the complaint, Mrs Bosworth was not completely honest and 'her varying accounts in respect of the intended purchase of a business is also of concern, particularly with respect to her willingness to alter facts to facilitate a version most favourable to herself.'
6The applicants have demonstrated by their record of prior convictions and their conduct, a propensity for indifference to the law and government officials. They demonstrated this during the investigation of the application by failing to accept service of a notice issued under section 40 of the Act sent by registered mail on 22 January 2001. A northern gaming inspector was required to serve it personally.
7Tasmania Police submitted that Mrs Bosworth is unsuitable to hold a licence due to her own character and the character of her known associates, her daughter Jodi Curtain and her son‑in‑law David Brian Curtain, who is currently the subject of a warrant of arrest for non‑appearance.
8There is an unacceptable risk that the applicants would not conduct gaming honestly at the venue.
The Commission will refund you the sum of $1663.20, being the annual licence fee and two associate fees. Should you wish to discuss the matter, please contact Nicholas Beattie on 6233 3129.
Yours sincerely
(signed)
D W Challen
CHAIRMAN
2 February 2001"
I make the following observations in respect of those reasons.
1 This statement is in the nature of a conclusion.
2The facts asserted in this statement of reasons are factually correct. The conclusions as to the seriousness of certain charges and as to Mr Bosworth's attitude were open to the Commission.
3The possible existence of a problem in respect of Mrs Bosworth's gambling was alluded to in the Commission's letter of 22 January 2001. It was asserted that she had made certain admissions which were of concern to the Commission regarding her gambling activities to investigators, although the extent of the admissions was not elaborated. She was invited to address the issue of whether she had a problem controlling her gambling and asserted in reply that she had not gambled for several months and that when she had been gambling, she did not cause financial problems to her family or to anyone else, using only her own money. Cross-examination of her on the return of the general order revealed that she had spent over $70,000 in the year prior to 30 May 2000 in playing gaming machines in the Hotel Federal at Wynyard and confirmed, in substance, the truth of the other factual matters mentioned in point 3. It also confirmed that she had made the admissions to the investigators mentioned by the Commission.
4The respondent concedes that this observation by the manager of the Wynyard RSL Club was not put to Mrs Bosworth.
5These matters were not put to Mrs Bosworth by the Commission prior to its refusal of the application. In cross-examination, she acknowledged that she had borrowed $3,700 from Mr Vardy and had sought to borrow the same sum from Mr Charles, using the false excuse that it was for the purpose of repairing her car. Mr Charles had lent her $2,000 for that purpose.
6The first sentence of this reason is a conclusion, but one which was open to the Commission from the nature of the convictions. The conclusion that they had demonstrated indifference to the law and government officials by failing to accept service of the letter of 22 January 2001 alleged to have been sent by registered mail was not open if Mrs Bosworth's sworn claim not to have received any notice of it is accepted.
7This is largely a matter of conclusion, but the prosecutors were not given any opportunity to comment on the character of their daughter and son-in-law. They were not shown the police report, which contained the following assertions:
"The majority of information about the applicants is detailed in the report conducted by private investigators for the Advantage Group which the Gaming Commission already have.
Other relevant information has been gathered from a number of sources. The first being that when the investigation was conducted into the VARDYS lending Denise BOSWORTH the money to gamble, she stated that the money was to provide a surety for her son in laws bail. Her son in law is David Brian CURTAIN (5/6/75) who has failed to answer his bail on burglary, stealing, assault, and assault police charges and fail to appear warrants are in existence for him. Her daughter is Jodee CURTAIN who also has a warrant for failing to appear on an assault charge.
It has also been stated that the manager of the Wynyard RSL Club had suggested to Denise BOSWORTH that she obtain a self exclusion order due to her excessive gambling. I have been unable to confirm this at this time.
There is also a civil court matter between Denise BOSWORTH and Peter SHAW, phone number 64351838, 42 Village Lane, Somerset, over $20,000 which was paid as a cheque as deposit by BOSWORTH for purchase of the SHAWS Supermarket. The deal then collapsed and BOSWORTH stopped payment of the cheque. The matter is next listed on the 9th February 2001 at the Burnie CPS.
I submit that Denise BOSWORTH unsuitable for a licence due to her own character and also the character of her known associates, ie daughter and son in law."
This report was received under cover of a letter from its maker's superior, who included the following comment:
"A copy of Sergeant Steven's report is attached. In short, it is considered that John and Denise Bosworth are unsuitable applicants for such a licence. Both John and Denise Bosworth have extensive histories of appearances before the courts. In addition to these insights into their personal characters, their son-in-law is a person of questionable repute in this district who has relied on the applicants and their daughter to provide him with alibis and other assistance as a result of his criminal enterprises."
In Annetts v McCann [1990] 170 CLR 596 at 598, Mason CJ, Deane and McHugh JJ said:
"It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment: The Commissioner of Police v Tanos (1958) 98 CLR 383, at pp 395-396; Twist v Randwick Municipal Council (1976) 136 CLR 106, at pp 109-110; Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487, at pp 496, 500; J v Lieschke (1987) 162 CLR 447, at p 456; Haoucher v. Minister for Immigration and Ethnic Affairs (1990) 64 ALJR 357, at p 371; 93 ALR 51, at p 73. In Tanos, Dixon CJ and Webb J said that an intention on the part of the legislature to exclude the rules of natural justice was not to be assumed nor spelled out from 'indirect references, uncertain inferences or equivocal considerations'. Nor is such an intention to be inferred from the presence in the statute of rights which are commensurate with some of the rules of natural justice: Baba v Parole Board of New South Wales (1986) 5 NSWLR 338, at pp 344-345, 347, 349. In Kioa v West (1985) 159 CLR 550, Mason J said that the law in relation to administrative decisions 'has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention.' In Haoucher, Deane J said that the law seemed to him 'to be moving towards a conceptually more satisfying position where common law requirements of procedural fairness will, in the absence of a clear contrary legislative intent, be recognised as applying generally to governmental executive decision-making'."
The question whether an applicant for the grant of a licence as opposed to the renewal of an existing one has a legitimate expectation sufficient to impose on the licensing authority an obligation to accord procedural fairness, has been the subject of some judicial discussion. The distinction was drawn in FAI Insurances Ltd v Winneke (1982) 151 CLR 342. That was, however, a case of the refusal to renew an existing licence and the comments suggesting that an initial licence application would not require to be afforded a hearing were accordingly obiter dicta (eg at 360 - 361 per Mason J, at 376 - 377 per Aickin J, and at 394 per Wilson J). So too, in Attorney-General for New South Wales v Quin (1989 - 1990) 170 CLR 1, the comments of Dawson J at 58 - 59, which have been seen as supporting the same views, were made obiter. In In re Holden [1957] Tas SR 16, Burbury CJ also adverted to the possibility that an original application might not be amenable to certiorari but he too was concerned with the refusal to renew a licence, in that case, a real estate agent's licence. Certainly the Court of Appeal in England had no difficulty in asserting that the Gaming Board of that country was bound by the rules of natural justice in relation to an initial application for a certificate of fitness which was a necessary prerequisite for the issue of a licence to carry on gaming for profit (R v Gaming Board; ex parte Benaim & Khaida [1970] 2 QB 417 at 430 per Lord Denning MR). In Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 127 ALR 699, the Federal Court rejected a submission that the rules of natural justice could not apply to an initial grant. In the circumstances of that case, the court held that there was an obligation to accord procedural fairness to the applicant for a licence. At 714, the court said:
"It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material: Dixon v Commonwealth (1981) 61 ALR 173 at 179.
…A person likely to be affected by an administrative decision to which requirements of procedural fairness apply can support his or her case by appropriate information but cannot complain if it is not accepted. On the other hand, if information on some factor personal to that person is obtained from some other source and is likely to have an effect upon the outcome, he or she should be given the opportunity of dealing with it: Kioa v West (supra) at CLR 587 per Mason J, at CLR 628 per Brennan J."
At 715, they cited the observation of Gummow J in Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 102 ALR 339 at 359:
"...in a particular case, fairness may require the applicant to have the opportunity to deal with matters adverse to the applicant's interests which the decision-maker proposes to take into account, even if the source of concern by the decision-maker is not information or materials provided by the third party, but what is seen to be the conduct of the applicant in question."
The Act contains no plain words of necessary intendment to exclude the rules of natural justice. Section 173 confers a right of appeal to the Supreme Court upon a person aggrieved by a decision of the Commission to cancel or suspend, or to refuse to cancel or suspend, a licence under the Act but gives no such right to a person aggrieved by the refusal of any licence. The inclusion of an obligation in s42 to give reasons for the refusal of a Licensed Premises Gaming Licence under the Act, and a similar obligation under s55 in respect of a refusal of a Special Employee's Licence, would seem to serve no useful purpose if such a refusal can be arbitrarily made without any prospect of statutory appeal or judicial review by way of prerogative writ. I am of the view that the prosecutors were entitled to procedural fairness and it would seem from its letter of 22 January 2001 that the respondent Commission sought to accord this to the prosecutors by setting out some of the matters causing it concern and by requiring information on them. Complaint is made that Mr Bosworth was not the recipient of such a letter, as this letter was addressed to Mrs Bosworth and specifically related (inter alia) to her alleged gambling problem, but the letter does relate to the application of both and Mr Bosworth's affidavit makes it clear that he took the letter to relate to his application as well. The letter, however, does not disclose other matters which the Commission ultimately indicated were regarded by it as adverse to the prosecutors and accordingly they had no opportunity to respond to them. The matters included the assertion, since denied by them, that the prosecutors had demonstrated a propensity for indifference to the law and Government officials by failing to accept service of a notice sent by registered mail. Furthermore, the allegations contained in point 3 of the Commission's reasons for refusal, although in substance admitted to by her several months earlier when the Commission was conducting an investigation into Mr Vardy's facilitation of credit betting by Mrs Bosworth, were not put to her. Likewise, several adverse matters in point 5 leading to an assertion that she was willing "to alter facts to facilitate a version most favourable to herself", were not put to her. In addition, she was not given the opportunity to respond to suggestions in the police reports that her daughter and son-in-law were the subjects of warrants of arrest on criminal charges, and that the prosecutors had provided their son-in-law with alibis and other assistance as a result of his criminal enterprises.
In my opinion, it cannot be said that the adverse matters upon which the Commission relied and upon which they did give the prosecutors the opportunity to be heard were so cogent that the denial of procedural fairness in respect of these other matters would not have made any difference to the outcome. The Commission's decisions in respect of the application for the Licensed Premises Gaming Licence and the two Special Employee's Licences should be quashed pursuant to the Rules of the Supreme Court, r627(2)(a) and it should review the applications after having given the prosecutors the opportunity to canvass all the matters adverse to them which were before the Commission. I shall give the parties the opportunity of making submissions in respect of the appropriate order for mandamus, pursuant to the Rules of the Supreme Court, r639(2).
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