That's Entertainment (WA) Pty Ltd v Commissioner of Police
[2013] WASC 75
•11 MARCH 2013
THAT'S ENTERTAINMENT (WA) PTY LTD -v- COMMISSIONER OF POLICE [2013] WASC 75
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 75 | |
| Case No: | GDA:21/2011 | 15 OCTOBER 2012 | |
| Coram: | PRITCHARD J | 11/03/13 | |
| 23 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | THAT'S ENTERTAINMENT (WA) PTY LTD COMMISSIONER OF POLICE |
Catchwords: | Statutory construction of provisions of Liquor Control Act 1988 (WA) Whether conduct may be a proper cause of disciplinary action where a licensee has been previously acquitted of an offence arising from the same conduct Whether principles of double jeopardy and autrefois acquit are relevant to disciplinary proceedings Whether disciplinary tribunal can receive evidence of facts when offence previously dismissed by a Magistrate Liquor Control Act 1988 (WA), s 95(1), s 95(4), s 115(1) |
Legislation: | Criminal Procedure Act 1995 (WA) Interpretation Act 1984 (WA) Liquor Control Act 1988 (WA) Police Act 1892 (WA) |
Case References: | AB v Western Australia [2011] HCA 42 Arthur J S Hall and Co (A firm) v Simons [2002] AC 616 Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256 Briginshaw v Briginshaw (1938) 60 CLR 336 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 Craig Williamson Pty Ltd v Barrowcliff [1915] VLRF 450 Donnellan v The Public Trustee [2007] WASC 213 Enever v The Queen (1906) 3 CLR 969 Farah v Say-Dee (2007) 230 CLR 89 Hancock v Executive Director of Public Health [2008] WASC 224 Hardcastle v Commissioner of Police (1984) 53 ALR 593 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 Helton v Allen (1940) 63 CLR 691 Hunter v Chief Constable of the West Midlands Police [1982] AC 529 Island Maritime Limited v Filipowski (2006) 226 CLR 328 Jeffery and Katauskas v SST Consulting (2009) 239 CLR 75 Knight v Commissioner of Police [2011] WASC 93 Minister for Immigration and Multicultural and Indigenous Affairs v SZAYZ (2005) 145 FCR 523 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 R v Carroll (2002) 213 CLR 635 Re Jones; ex parte The Commissioner of Police [1999] WASCA 246 Re Mulligan; ex parte Isidoro [1979] WAR 198 Registrar of Titles (WA) v Franzon (1975) 132 CLR 611 Rogers v The Queen (1994) 181 CLR 251 Smolarek v Roper [2009] WASCA 124 Sudath v Health Care Complaints Commission [2012] NSWCA 171 The Queen v Storey (1978) 140 CLR 364 Walton v Gardiner (1993 177 CLR 378 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
COMMISSIONER OF POLICE
Respondent
ON APPEAL FROM:
Jurisdiction : THE LIQUOR COMMISSION OF WESTERN AUSTRALIA
Coram : MR J FREEMANTLE
- DR E ISAACHSEN
MS H COGAN
File No : LC 45 of 2011
Catchwords:
Statutory construction of provisions of Liquor Control Act 1988 (WA) - Whether conduct may be a proper cause of disciplinary action where a licensee has been previously acquitted of an offence arising from the same conduct - Whether principles of double jeopardy and autrefois acquit are relevant to
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disciplinary proceedings - Whether disciplinary tribunal can receive evidence of facts when offence previously dismissed by a Magistrate - Liquor Control Act 1988 (WA), s 95(1), s 95(4), s 115(1)
Legislation:
Criminal Procedure Act 1995 (WA)
Interpretation Act 1984 (WA)
Liquor Control Act 1988 (WA)
Police Act 1892 (WA)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr C Zelestis QC & Mr S C M Wong
Respondent : Mr J O'Sullivan
Solicitors:
Appellant : Lavan Legal
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
AB v Western Australia [2011] HCA 42
Arthur J S Hall and Co (A firm) v Simons [2002] AC 616
Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256
Briginshaw v Briginshaw (1938) 60 CLR 336
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390
Craig Williamson Pty Ltd v Barrowcliff [1915] VLRF 450
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Donnellan v The Public Trustee [2007] WASC 213
Enever v The Queen (1906) 3 CLR 969
Farah v Say-Dee (2007) 230 CLR 89
Hancock v Executive Director of Public Health [2008] WASC 224
Hardcastle v Commissioner of Police (1984) 53 ALR 593
Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630
Helton v Allen (1940) 63 CLR 691
Hunter v Chief Constable of the West Midlands Police [1982] AC 529
Island Maritime Limited v Filipowski (2006) 226 CLR 328
Jeffery and Katauskas v SST Consulting (2009) 239 CLR 75
Knight v Commissioner of Police [2011] WASC 93
Minister for Immigration and Multicultural and Indigenous Affairs v SZAYZ (2005) 145 FCR 523
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
R v Carroll (2002) 213 CLR 635
Re Jones; ex parte The Commissioner of Police [1999] WASCA 246
Re Mulligan; ex parte Isidoro [1979] WAR 198
Registrar of Titles (WA) v Franzon (1975) 132 CLR 611
Rogers v The Queen (1994) 181 CLR 251
Smolarek v Roper [2009] WASCA 124
Sudath v Health Care Complaints Commission [2012] NSWCA 171
The Queen v Storey (1978) 140 CLR 364
Walton v Gardiner (1993 177 CLR 378
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1 PRITCHARD J: The appellant holds a liquor licence under the Liquor Control Act 1988 (WA)(the LC Act) in respect of the Clink nightclub in Fremantle (the nightclub). In the early hours of the morning of 3 October 2010, police officers from the Liquor Enforcement Unit within the Western Australian Police Service attended the nightclub. The officers observed the patrons at the nightclub, and concluded that the appellant's employees were permitting drunkenness on the premises.
2 On 10 October 2010, Constable Vredenbregt issued a prosecution notice against the appellant, alleging a breach of s 115(1)(a)(i) of the LC Act for the offence of permitting, by its employee, drunkenness to take place on the licensed premises (the prosecution notice). Two of the appellant's employees were also issued with infringement notices pursuant to s 115(1)(a) of the LC Act.
3 On 12 October 2010, Detective Superintendent Migro, on behalf of the Commissioner of Police, made a complaint to the Liquor Commission (the Commission) pursuant to s 95 of the LC Act, alleging that there existed proper cause for disciplinary action against the appellant (the complaint). The complaint contained two grounds. First, it alleged that the appellant had contravened a requirement of the LC Act, contrary to s 95(4)(e)(i) of LC Act, in that it permitted drunkenness on the licensed premises and thereby breached s 115(1)(a) of the LC Act (the first ground of the complaint). Secondly, it alleged that the safety, health or welfare of persons who resort to the licensed premises was endangered by an act or neglect of the appellant. The remedies sought in respect of the complaint included the cancellation or suspension of the appellant's liquor licence in respect of the nightclub, and a fine.
4 On the appellant's application, the Commission deferred the hearing of the complaint until the determination of the prosecution in the Magistrates Court.
5 Following a trial in the Magistrates Court on 2 June 2011, the charges against the appellant and its employees were dismissed.
6 The appellant then made an application to the Commission to strike out the first ground of the complaint pursuant to s 95(3) of the LC Act (the strike out application). The grounds for the strike out application were that the Commission did not have jurisdiction to hear the complaint (on the basis that the LC Act did not provide a ground for disciplinary action if a licensee had been tried and acquitted of a contravention of the
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- LC Act), that there was no substantial merit to the ground, and that the proceeding was therefore a vexatious proceeding.
7 The strike out application was heard and determined by the Commission on 10 October 2011. On 18 October 2011 the Commission refused the application.
8 The appellant now appeals against that decision. For the reasons set out below, the appeal should be dismissed.
9 These reasons deal with the following matters:
1. the statutory basis for the appeal;
2. the Commission's reasons for decision;
3. the grounds of the appeal;
4. the appellant's first contention;
5. the appellant's second contention; and
6. conclusion and orders.
1. The statutory basis for the appeal
10 The appeal is brought pursuant to s 28 of the LC Act, which permits a person dissatisfied with a decision of the Commission to appeal to this Court on a question of law.1 The power to appeal against a 'decision' of the Commission (as that term is defined in s 3 of the LC Act) includes appeals against orders, directions and determinations of the Commission, and clearly encompasses the Commission's decision in respect of the strike out application, notwithstanding that that decision was of an interlocutory nature.
2. The Commission's reasons for decision
11 In summary, the Commission's reasons for dismissing the strike out application were:
1. the LC Act, and in particular s 95 of that Act, did not preclude the Commission from exercising jurisdiction to hear the complaint;
2. the complaint did not constitute an appeal against the decision of the Magistrates Court to acquit the appellant nor was the
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- Commission being used as a secondary forum by the police when other avenues for action against the appellant had been exhausted;
- 3. there were clear differences between the criminal jurisdiction of the Magistrates Court, including as to onus of proof and as to the admissibility of evidence, and the disciplinary jurisdiction of the Commission, and proceedings in one forum did not necessarily prevent proceedings in the other;
4. there was no issue arising from the identity of the parties to the complaint and the parties to the prosecution notice; and
5. the principles of autrefois convict or autrefois acquit, double jeopardy and res judicata were not applicable.
12 The question of whether there was substantial merit to the ground, and whether the complaint was a vexatious proceeding, were deferred to the substantive hearing of the complaint.
3. The grounds of the appeal
13 The appellant relies on four grounds of appeal:
1. the Commission made an error in law in that s 95(4)(e)(i) of the LC Act does not cover the alleged commission of offences on a proper construction of the LC Act;
2. the Commission made an error of law in finding that it was not prevented from taking disciplinary proceedings requiring proof of facts, which, if accepted, would overturn or tend to overturn an acquittal, contravening the principle that the Commission must give full benefit to an earlier acquittal;
3. the Commission made an error in law in allowing disciplinary proceedings requiring proof of facts, which, if accepted, would constitute a collateral attack on the Magistrates Court's decision; and
4. the Commission made an error in law in not finding that s 95 of the LC Act does not permit disciplinary action to be taken if a licensee has been previously tried and acquitted of contravening the LC Act.
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14 At the hearing of the appeal, however, counsel for the appellant distilled the grounds of appeal into two principal contentions:
(i) On the proper construction of s 95(4)(e)(i) of the LC Act, the reference to contravening a requirement of that Act does not include engaging in conduct (whether by act and/or omission) which constitutes an offence against the LC Act.
(ii) In the alternative to paragraph (i), with respect to a complaint under s 95(1) of the LC Act, insofar as s 95(4) enables certain conduct to constitute proper cause for disciplinary action either as a contravention of a requirement of the Act or as the commission of an offence against the Act, where a person has been tried for and acquitted of an alleged offence against the Act, to place that person in jeopardy of being found to have contravened a requirement of the Act consisting in the proscription of the conduct which allegedly constituted that offence would:
(a) involve wrongful use of evidence which, if accepted, would overturn or tend to overturn the acquittal and impermissibly deprive the person of the full benefit of the final decision of acquittal; and/or
(b) constitute an abuse of process, by a collateral attack upon a final decision and by the pursuit of multiple and successive proceedings which cause or are likely to cause improper vexation or oppression.
4. The appellant's first contention
16 The contention at the heart of ground 1 of the appeal was not expressly advanced during the hearing of the strike out application before the Commission. However, implicit in the Commission's decision was a conclusion that the proper cause for disciplinary action under s 95(4)(e)(i) of the LC Act was capable of encompassing an alleged breach of s 115(1)(a) of the LC Act, even if the licensee had been acquitted in respect of that alleged breach. I note that the respondent did not object to dealing with ground 1 as part of the appeal. In these circumstances it was appropriate to deal with the contention at the heart of ground 1.
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17 The appellant's first contention raises for consideration the meaning of s 95(4)(e)(i) of the LC Act. Section 95(4) relevantly provides:
There shall be proper cause for disciplinary action if -
…
(e) the licensee has -
(i) contravened a requirement of this Act or a term or condition of the licence;
(ii) sold or supplied liquor otherwise than in accordance with the authorisation conferred by the licence; or
(iii) failed to comply with a summons, direction or order under this Act; or
(f) the licensee has been convicted of -
(i) an offence under this Act; … .
Where a licensee, whether personally or by an employee or agent –
(a) permits –
(i) drunkenness;
...
to take place on the licensed premises; …
19 The first contention requires consideration of the meaning of the words 'requirement of this Act' in s 95(4)(e)(i). The appellant advanced three bases for its submission that the ground for disciplinary action under s 95(4)(e)(i) did not include conduct which constituted an alleged offence against the LC Act. First, the appellant submitted that the word 'requirement', having regard to its meaning when used elsewhere in the LC Act, referred to a positive obligation to do something.2 In contrast, it
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- was submitted that s 115(1)(a) of the LC Act did not prescribe a positive obligation to do something, but rather prohibited conduct.
20 Secondly, the appellant submitted that s 95(4)(e), when read together with s 95(4)(f), of the LC Act manifested an intention on the part of the Parliament that conduct which could constitute an offence against the Act should be proved to the criminal standard of proof (through a
prosecution), and that the conviction could then be relied upon for the purposes of the disciplinary proceedings.
21 Thirdly, the appellant pointed to the sanctions able to be imposed in disciplinary proceedings. The appellant contrasted these sanctions, which include suspension and cancellation of the licence, with the penalties for convictions under the LC Act.3 The appellant submitted that it could not have been the Parliament's intention that such severe disciplinary sanctions be imposed for conduct which was not proved to the criminal standard when it was open to the complainant to have first done so through a prosecution.
22 In my view, on the proper construction of s 95(4)(e)(i) of the LC Act, a licensee will 'contravene a requirement of the LC Act' both by failing to do something which the LC Act obliges the licensee to do, and by engaging in conduct which is prohibited by the LC Act, notwithstanding that such conduct may be capable of being dealt with as an offence against the LC Act. Accordingly an alleged breach of s 115(1)(a) of the LC Act can be the basis for disciplinary action pursuant to s 95(4)(e)(i) of the LC Act. I have reached that conclusion for the following reasons.
The meaning of the words 'requirement of this Act'
23 I start with the ordinary meaning of the words used in s 95(4)(e)(i) of the LC Act. The words 'contravene a requirement of this Act' are not defined in the LC Act. Their meaning must therefore be determined by the application of ordinary principles of statutory construction. The starting point in the construction of any statutory provision is to consider the ordinary meaning of the words used, within their context. That context includes matters such as the meaning of the language used within the instrument when viewed as a whole, the existing state of the law and the purpose to which the statute was directed.4 A construction that would
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- promote the purpose or object underlying the statute is to be preferred to a construction that would not promote that purpose or object.5
24 The word 'requirement' means 'that which is required; a thing demanded or obligatory'.6 The word 'require' has a variety of meanings which include 'to call for or exact as obligatory', 'to place under an obligation or necessity', 'to make demand; impose obligation or need'7 and to 'lay down as imperative'.8 The word 'contravene' in its ordinary usage means 'to violate, infringe or transgress'9 and when used in relation to any requirement or condition prescribed in a written law, includes a failure to comply with that requirement or condition.10
25 In my view, on their ordinary meaning the words 'contravene a requirement of the Act' refer to a licensee failing to do something which the Act obliges the licensee to do. However, a person may be required or obliged to do something in a variety of ways. In its narrowest sense, a person may be required to do something in a direct way, by the imposition of a positive obligation to do an act. In a broader sense, a person may be obliged to do something in an indirect way - for example, by the prohibition of an act or of failing to do an act, or by a prohibition on engaging in conduct which is the antithesis of the conduct which it is sought to encourage. Section 115 of the LC Act is an example of a provision of this broader kind, in that the prohibition on permitting drunkenness on licensed premises in effect requires a licensee not to permit drunkenness to take place on the premises. The ordinary meaning of the words used in s 95(4)(e)(i) are capable of encompassing both this narrow and broad meaning. Whether the Parliament intended a broader or narrower meaning of a 'requirement of the Act' in s 95(4)(e) of the LC Act must be discerned by recourse to contextual considerations.
26 It is a well recognised principle of statutory construction (although one which should not be relied upon too rigidly) that as a general rule Parliament will use words uniformly within the one statute.11 I turn, then, to consider the meaning of the word 'requirement' elsewhere in the
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- LC Act. In contrast to the examples given by counsel for the appellant where the words 'requirement' or 'require' are used in a narrow sense, the word 'requirement' is used in s 66(4) and s 66(5) and in s 158 of the LC Act in a way that is capable of encompassing both the broad and the narrow meaning of that word. Further, the word 'requirements' is used in s 5(c) of the LC Act in an entirely different way, to refer to the needs or demands of consumers.
27 Accordingly, the word 'requirement' is not used with a consistent meaning throughout the LC Act and the use of the word 'requirement' elsewhere in the LC Actdoes not support the conclusion that the word 'requirement' in s 95(4)(e)(i) should be given a narrow meaning.
Contextual considerations
28 Greater assistance can be derived from the broader context in which the words 'requirement of the Act' appear. I start by noting that the LC Act is an Act which is regulatory in nature, and which is directed, in large part, to the protection of the public. Its primary objects include both regulating the sale, supply and consumption of liquor, and minimising the harm or ill-health caused to people due to the use of liquor.12 Many of the
provisions of the LC Act are designed to mandate behaviour which is likely to achieve these objectives, and there is no reason to suppose that the Parliament would have contemplated doing so only in a direct way, that is, by obliging persons to engage in particular conduct.
29 The more specific context in which s 95(4)(e) appears also supports the conclusion that Parliament intended that the words 'requirement of this Act' be given a broad meaning. Section 95(4) sets out numerous grounds which constitute proper cause for disciplinary action. It is apparent that the Parliament sought to comprehensively encompass all kinds of conduct which might be inconsistent with the achievement of the objectives of the LC Act, however those objectives might be pursued (whether through the provisions of the LC Act themselves, or through licence conditions, or otherwise). To give the words used in s 95(4)(e)(i) a narrow meaning, so as to confine the bases upon which disciplinary action might be pursued, would not advance the protective object of the LC Act.
30 For completeness, I note that s 16(13) of the LC Act provides that if proceedings are brought against a person in respect of anything done or omitted to be done under the LC Act, and the licensing authority wishes to make a determination under the LC Act in respect of that conduct, the
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- licensing authority may make that determination despite the bringing of the proceedings. Counsel for the respondent submitted that s 16(13) was consistent with a broader construction being given to s 95(4)(e)(i) of the LC Act. While it is certainly arguable that the reference to 'proceedings' in s 16(13) encompasses criminal proceedings as well as civil proceedings, the matter is not beyond doubt. It is unnecessary to resolve the meaning of s 16(13) for present purposes because I am satisfied - having regard to the other considerations set out in these reasons - that s 95(4)(e)(i) should not be given the narrow meaning for which the appellant contends.
The appellant's construction would render s 95(4)(e)(i) superfluous
31 The effect of the construction advanced by the appellant would be that if conduct by a licensee is capable of constituting an offence under the LC Act, it cannot be relied upon as the basis for disciplinary action unless a conviction has been obtained in respect of that conduct. However, the contravention of any provision of the LC Act constitutes an offence.13 The appellant's construction of s 95(4)(e)(i) would have the result that the words 'contravened a requirement of this Act' in s 95(4)(e)(i) would be rendered largely, if not entirely, superfluous. That outcome would be at odds with the principle of statutory construction that
a court should prefer a construction of a statute that would result in every part of the statute having some work to do.14
32 Furthermore, it is clear that other provisions in s 95(4) expressly contemplate that disciplinary action may be taken in respect of conduct which is also capable of constituting an offence, but irrespective of whether a conviction has first been obtained in respect of that conduct. By way of example, failing to comply with a summons, direction or order under the LC Act constitutes an offence,15 yet that conduct is expressly designated as a proper cause for disciplinary action.16 Similarly, a licensee's contravention of a term or condition of the licence constitutes an offence,17 yet the contravention of a term or condition of the licence is also expressly designated as a proper cause for disciplinary action under s 95(4)(e)(i) of the LC Act.
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33 In the latter respect, the appellant's construction of the words 'requirement of this Act' would have the effect that s 95(4)(e)(i) would be internally inconsistent in its operation. On the appellant's construction, conduct capable of constituting an offence against the LC Act could not be the subject of disciplinary action under s 95(4)(e)(i). On the other hand, conduct in contravention of a term or condition of a licence expressly constitutes a proper ground for disciplinary action under s 95(4)(e)(i), even though that conduct may also constitute an offence. I am unable to envisage any reason why the Parliament would have intended s 95(4)(e)(i) to operate in such an internally inconsistent way.
34 Instead, the preferable conclusion is that the Parliament intended that disciplinary action could be brought either where a licensee's contravention of a requirement of the LC Act is the subject of a prosecution which results in a conviction, which is then specifically relied upon as the basis for disciplinary action (s 95(4)(f)), or alternatively where a licensee engages in conduct capable of constituting an offence against the LC Act, but no prosecution action is pursued, or where a prosecution does not result in a conviction (s 95(4)(e)(i)).
Implications of the contentions advanced by the appellant
35 Some practical considerations also militate against the construction advanced by the appellant. As I have noted, the construction contended for by the appellant would have the result that conduct which is capable of constituting an offence under the LC Act could not be the subject of disciplinary action unless a prosecution was pursued (and a conviction obtained). However it is not difficult to envisage situations where there may be evidence of a breach of the LC Act but where a prosecution would
be unlikely to succeed, or may not be brought at all. Counsel for the respondent postulated a case where a licensee confessed to a contravention of the LC Act, but the confession was ruled inadmissible in criminal proceedings, and the licensee was acquitted. He also submitted that there may be circumstances in which a decision is taken, in the proper exercise of the prosecutorial discretion, not to prosecute a licensee for a contravention of the LC Act despite the existence of evidence of a breach of the LC Act. On the appellant's construction of s 95(4)(e)(i) no disciplinary action could be taken against the licensee in either case.
36 These examples serve to illustrate that the construction of s 95(4)(e)(i) for which the appellant contends would not promote the protective objects underlying the LC Act because despite the existence of evidence of a contravention of the requirements of the LC Act, no
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- disciplinary action could be taken in the situations described. These considerations provide a further basis for the conclusion that the appellant's narrow construction of s 95(4)(e)(i) of the LC Act should not be preferred to the alternative, broader construction of that provision.
No intention by the Parliament that conduct which also constitutes an offence must be the subject of a prosecution before disciplinary action may be taken
37 Counsel for the appellant submitted that s 95(4)(e) and (f) of the LC Act manifest an intention on the part of the Parliament that conduct which could constitute an offence against the Act must be proved to the criminal standard of proof (through a prosecution), before such conduct may be relied upon for the purposes of disciplinary proceedings.
38 This submission cannot be accepted. The Commission is required to be satisfied, on the balance of probabilities, that the ground upon which a complaint was made has been made out so that a proper cause for disciplinary action exists.18 The civil standard of proof applies in respect of all of the grounds for disciplinary action under s 95(4) of the LC Act. I am unable to envisage any reason why the Parliament would have intended that conduct which was also capable of constituting an offence under the LC Act should be proved (in the course of a prosecution) to the criminal standard of proof in order to provide a proper cause for disciplinary action, whereas other conduct said to constitute a proper cause for disciplinary action would only be required to be proved to the civil standard of proof.
39 The appellant also submitted that s 95(4)(e)(i) should not be used to 'outflank' s 95(4)(f)(i) when a licensee has been acquitted of an offence in
respect of conduct which is then relied upon as the basis for disciplinary action. That submission ignores the fact that disciplinary proceedings have an entirely different purpose as compared with criminal proceedings. The purpose of the disciplinary action contemplated in s 95 of the LC Act is to protect the public by maintaining the standards of behaviour for licensees which are set out in, and contemplated by, the LC Act. The object of those proceedings is not to punish licensees.19 As I explain further below, there is no reason why the same conduct cannot be relied upon for each of these two discrete purposes, irrespective of whether the prosecution of the licensee resulted in a conviction or acquittal.
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40 The appellant also submitted that it could not have been the Parliament's intention that such severe disciplinary sanctions as the suspension or cancellation of the licence should be able to be imposed for conduct which was not proved to the criminal standard, in a case where it was open to the complainant to have first proved the complaint to a criminal standard through a prosecution. The appellant further submitted that the imposition of such severe sanctions was 'incongruous' when contrasted with the sanctions which were available for offences under the LC Act, such as fines, which the appellant submitted were of a less serious nature. Those submissions must be rejected, for four reasons.
41 First, the submissions failed to acknowledge the independent force of a criminal conviction to censure the conduct involved. Secondly, the submissions failed to acknowledge that a wide variety of sanctions may be imposed following adverse findings in a disciplinary action.20 These sanctions range from a reprimand, to the cancellation of the licence. It is also possible for the Commission to take no action at all. Thirdly, the appellant's submissions ignore the fact that the same range of disciplinary sanctions are available in respect of all conduct set out in s 95(4) which is proved to constitute proper cause for disciplinary action. Finally, the appellant's submissions fail to acknowledge the importance of the protective purpose which is manifest in the disciplinary provisions in s 95 and s 96 of the Act. The Parliament has clearly concluded that in order to maintain the standards of behaviour referred to in s 95 of the LC Act, and thus to achieve the protective objects of the Act itself, very significant sanctions must be available in an appropriate case where proper cause for disciplinary action is shown to exist.
42 In my view, the Commission did not err in concluding (as it implicitly did) that a proper cause for disciplinary action under s 95(4)(e)(i) of the LC Act could include conduct by a licensee which was alleged to constitute an offence against s 115(1)(a) of the LC Act even if
the licensee had been acquitted of an offence against s 115(1)(a) of the LC Act.
43 I turn, then, to the appellant's second contention, which raises the question of whether the Commission can hear a complaint under s 95(4)(e)(i) when the licensee's conduct has been the subject of a prosecution resulting in an acquittal.
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5. The appellant's second contention
44 The appellant's second contention drew on common law principles which derive (at least in part) from the rule against double jeopardy. These common law principles are directed to ensuring that a person is not deprived of the benefit of an acquittal, and seek to prevent an abuse of process by a collateral attack upon an acquittal. The appellant's contention was that the application of these common law principles meant that the Commission erred in determining that it would deal with the first ground of the complaint. Alternatively, counsel for the appellant submitted that these common law principles were reflected in the Commission's power under s 95(3) of the LC Act to impose a requirement that a complaint not be heard without the leave of the Commission, in a case where the Commission considered that the grounds for the complaint were vexatious. As I understood this alternative submission, it was to the effect that the Commission erred in failing to conclude that in all of the circumstances the first ground of the complaint was vexatious.
Whether the Commission erred in failing to find that to proceed to determine the first ground of the complaint would undermine the appellant's acquittal
45 It is a well established principle of the common law that a verdict of acquittal shall not be challenged in a subsequent trial, and that an accused in the hearing of a subsequent charge must be given the full benefit of his acquittal on an earlier occasion.21 As a consequence of that principle, evidence which was admissible to establish an earlier offence may be admitted in the trial of a later offence (assuming that it is relevant to proving the charge or negativing a defence) but that evidence may not be used for the purpose of challenging or diminishing the benefit to the accused of the earlier acquittal.22
46 However, it is also well established that these principles only apply in criminal proceedings between the Crown (or the State) and an accused, and have no direct application where the double jeopardy which is relied
upon arises from civil proceedings,23 or disciplinary proceedings,24 arising out of the same facts, and heard after an acquittal.
47 For that reason, counsel for the appellant sought to cast the issue raised by this aspect of the appeal as very narrow in compass. He made clear that this aspect of the appeal relied specifically on the decision of the Full Court of this Court in Re Mulligan; ex parte Isidoro25. Although he acknowledged that the observations of Burt CJ in Mulliganhad not been followed,26 he submitted that the essence of the decision itself had not been, and that it supported the conclusion that in this case the Commission erred in refusing to strike out the first ground of the complaint.
48 In Mulliganthe Director of Fisheries refused to renew a fishing boat licence because the licensee had not allowed a search of his vessel to the satisfaction of an inspector. The licensee appealed that decision to a Magistrate (which appeal was a hearing de novo). While that appeal was pending, the Director prosecuted the licensee for refusing to allow a search of his vessel. That charge was dismissed. When the appeal against the Director's decision to refuse the licence was heard, the Director sought to rely on evidence that had been led in the prosecution. That appeal was dismissed by the Magistrate. That decision was the subject of an application to the Full Court for a writ of mandamus. The Full Court quashed the decision, and granted a writ of mandamus to require the appeal to be heard and determined according to law for reasons unrelated to the present proceedings.
49 However, in the course of his reasons, Burt CJ made the following observations about the evidence which was before the Magistrate on the hearing of the appeal:
The charge was dismissed. Upon that happening, and for so long as the finding stands, the applicant is entitled to the full benefit of and to a full and unqualified recognition of his acquittal, from which it follows that most of the evidence led by or on behalf of the director before the magistrate, the only relevance of which was to show that the applicant was guilty of the offence of which he had been acquitted, was inadmissible: R v Storey(1978) 22 ALR 47. … The question for the magistrate to decide, and upon the evidence before him, was whether sufficient reason appeared for refusing to renew the applicant's processing licence upon the stated 'grounds'. When that question came before the magistrate and as at the date upon which he decided it the applicant had been acquitted of the charged that he had refused to allow a search. The director was bound by that acquittal and so was the magistrate. The acquittal, while it stands, effectively denies the grounds for the director's lack of satisfaction. The director could not, in effect, re-litigate that issue before the magistrate, nor
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- could the magistrate decide the appeal upon the basis that the applicant was guilty of the charge of which he was acquitted.27
50 Counsel for the appellant submitted that on the particular facts of Mulliganthe observations of Burt CJ were clearly correct, and that the approach taken in Mulliganshould be followed in this case.
51 Before dealing with the specific bases for that submission, however, it is appropriate to make three observations about the decision in Mulligan. First, the observations made by the Chief Justice were obiter, although that is not, of itself, necessarily significant in determining whether those observations should be followed.28 Secondly, the research of counsel and of the Court did not identify any decision in which Mulligan has been applied, in this State or elsewhere, although Mulligan has been distinguished and its meaning clarified.29 On the other hand, the New South Wales Court of Appeal in Litchfield30expressly declined to follow the observations in the passage from Mulligan which is set out above. In my respectful view, that considerably undermines the submission made by counsel for the appellant that quite apart from the reasoning, the result in Mulliganremains good law. Thirdly, it is unnecessary for present purposes to decide whether any principle established in Mulliganremains good law because for the reasons set out below, the facts in Mulliganare distinguishable from those in the present case. Accordingly, even if the result in Mulligan - having regard to the facts of that case - remains sound, that does not necessitate a similar result in this case.
52 Counsel for the appellant submitted that the principle applied in Mulliganwas applicable in this case, having regard to four factors. First, he submitted that the complainant in both the prosecution and in the disciplinary action in the present case could be considered to be identical, in the sense that the same 'guiding hand' could be seen behind both proceedings. The basis for that submission was that the complainant in the prosecution and the complainant in the disciplinary action were officers within the same division of the Western Australian Police Force, and the complainant in the prosecution was the case officer in respect of the complaint to the Commission.
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53 Secondly, counsel for the appellant pointed to the fact that both the prosecution and the disciplinary proceedings in this case arose from the LC Act, concerned the same subject matter, and were part of one regulatory scheme designed to control the consumption of liquor.
54 Thirdly, counsel for the appellant submitted that the evidence given by Constable Vredenbregt in the course of cross examination in the appellant's trial in the Magistrates Court supported the conclusion that the purpose of bringing the prosecution in this case was to lay the foundation for, or to establish the proof of, the first ground of the complaint.
55 Fourthly, counsel for the appellant pointed to the fact that the decision on the prosecution notice, and the issue for determination in relation to the first ground of the complaint concern identical factual issues, namely whether the appellant contravened s 115(1)(a) of the LC Act.
56 I do not accept that these factors, whether considered individually or collectively, support the conclusion that to permit the first ground of the complaint to be pursued would be inconsistent with the decision in Mulliganor would otherwise engage the principles set out in pars [45] and [46] above, for the following reasons.
57 First, the complainant in the prosecution under s 115(1)(a) of the LC Act was Constable Vredenbregt, who as a sworn officer31 exercised an independent discretion in relation to the decision to prosecute.32 The complaint in the Commission pursuant to s 95 of the LC Act was brought by Detective Superintendent Migro, on behalf of the Commissioner of Police. The mere fact that another officer may have been involved in obtaining evidence in respect of the complaint does not support any inference that the same officer was responsible for the decision to proceed in both proceedings. This case is, therefore, not on all fours with Mulliganwhere the Director appears to have been the complainant in the prosecution, as well as the initial decision maker (and later the appellant) in respect of the licensing decision.
58 Secondly, although in Mulliganthe Director appears to have been the complainant in relation to the prosecution and the initial decision-maker (and later the appellant) in respect of the licensing decision, that factor was not a consideration expressly relied upon by
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- Burt CJ in making the observations set out in par [49] above. Further, the fact that the same subject matter may be relied upon in both a prosecution and a disciplinary proceeding brought pursuant to the same legislation, does not, in my view, engage the principles referred to in pars [45] and [46] above.
59 Thirdly, in his evidence in the Magistrates Court, Constable Vredenbregt stated that it was always intended to proceed with both the
prosecution action and disciplinary action.33 I note that the copies of the prosecution notice and the complaint which were before this Court indicate that they were made within days of each other. In addition, the material before this Court suggests that those proceedings were pursued concurrently until the appellant successfully applied to the Commission to defer the hearing of the complaint until after the prosecution had been determined. There is nothing to suggest that the prosecution was commenced only so that if a conviction were obtained it could be relied upon for the purposes of the disciplinary proceedings, so as to support any conclusion that the disciplinary proceedings constitute an abuse of the Commission's process.
60 Fourthly, while it appears likely that there will be a considerable factual overlap, that does not mean that the issues for determination in relation to the first ground of the complaint will be the same as those in relation to the prosecution in the Magistrates Court. That is so, first, because the Commission does not exercise judicial functions34 and cannot convict a licensee for an offence. Secondly, the criminal standard of proof applied in the trial in the Magistrates Court whereas the civil standard of proof (with the degree of persuasion noted in Briginshaw v Briginshaw35) will apply in relation to the hearing of the complaint in the Commission.36
61 Counsel for the appellant submitted that the different standard of proof would not be a sufficient point of distinction in the present case because proving that the appellant contravened s 115(1)(a) of the LC Act by permitting drunkenness on the licensed premises would involve adducing the same evidence to apply the same criteria under the LC Act.37 Although the same criteria for drunkenness will apply, it is apparent from
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- the transcript of the appellant's trial in the Magistrates Court that certain evidence was held to be inadmissible in those proceedings.38 However, the rules of evidence do not apply to proceedings in the Commission. The Commission is required to act without undue formality and according to the substantial merits of the case without regard to technicalities or legal forms.39 Accordingly, different evidence may be relied upon in a hearing before the Commission (as compared to the evidence adduced in a prosecution) to prove a contravention of the LC Act. Accordingly, the possibility exists (to which counsel for the respondent expressly referred) that additional evidence may be adduced in support of the complaint before the Commission.
62 For completeness, I note that counsel for the respondent pointed to s 16(13) of the LC Act in support of his submissions on this aspect of the
appeal also. He submitted that although that provision did not expressly permit disciplinary proceedings to be pursued in respect of the same conduct which was the subject of a criminal prosecution, it nevertheless provided some support for the conclusion that the LC Act does not preclude disciplinary proceedings and criminal proceedings being pursued in respect to the same conduct. For the reasons noted at par [30] I have not placed any weight on s 16(13) in order to resolve this aspect of the appeal.
Whether the pursuit of the first ground of the complaint would give rise to an abuse of process
63 Civil proceedings before a court or tribunal may constitute an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive. Vexatious or oppressive proceedings include those where it is sought to re-litigate a matter disposed by earlier proceedings.40 However, the proceedings may be stayed to prevent the abuse of process only if their pursuit would be manifestly unfair to a party to the litigation or would otherwise bring the administration of justice into disrepute.41 One
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- instance of an abuse of process will arise in a case where, although the plaintiff had a full opportunity to contest an earlier decision, later proceedings are initiated for the purpose of mounting a collateral attack on the earlier decision.42 In determining whether proceedings before a tribunal would result in a manifest unfairness to a party to the proceedings, or would bring the administration of justice into disrepute, it is necessary to have close regard to the functions and obligations of the tribunal under its legislation.43
64 Counsel for the appellant submitted that this case involved an abuse of the Commission's process because one party had commenced the prosecution in the Magistrate's Court with a view to using the conviction of the appellant (if it was secured) to underpin disciplinary proceedings which the same party had commenced in the Commission. Yet when the prosecution was unsuccessful, the acquittal was disregarded and the disciplinary proceedings remained on foot. For the reasons set out in par [57] above that submission must be rejected.
65 Counsel for the appellant also submitted that to permit the disciplinary proceedings to continue in such circumstances would bring the legal system into disrepute because a finding against a licensee in the disciplinary context would necessarily be inconsistent with the findings of the Magistrate, and that inconsistent outcome would undermine public
trust in the administration of justice. I am unable to accept that submission for the following reasons.
66 First, as I have explained in pars [59] – [61] above, under s 95 and s 96 of the LC Act, the Commission is required to engage in a quite different task from that of a Court dealing with a prosecution. The Commission applies a different standard of proof and may have regard to evidence which would not be admissible in a Court where the rules of evidence apply. Moreover it does so in order to decide if conduct which is alleged constitutes a proper cause for disciplinary action. In that context, a conclusion that proper cause existed for disciplinary action on the basis that a licensee engaged in conduct which breached the LC Act would not be in consistent with an earlier decision to acquit the licensee of an offence in respect of that conduct.
67 Secondly, as I have already observed, the purpose of disciplinary proceedings is quite different from the purpose of criminal proceedings.
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- The object of criminal proceedings includes the punishment of those who disobey the law, while the object of disciplinary proceedings is to protect the public by maintaining standards of behaviour of persons permitted to work or carry on business in a particular industry or profession.44 The maintenance of those standards of behaviour which are set out, or contemplated, in the LC Act is of fundamental importance in achieving the objects of the LC Act, particularly the object of minimising harm or ill-health to people as a result of the use of liquor. In those circumstances, the pursuit of both prosecution and disciplinary proceedings arising from the same conduct would not, of itself, bring the administration of justice into disrepute.
68 Thirdly, having regard to the construction of s 95(4)(e)(i) which I have set out above, the Parliament has contemplated that disciplinary proceedings may be commenced for conduct which contravenes a requirement of the LC Act in circumstances where a licensee has not been prosecuted for an offence under the LC Act, or (as in the present case) where the licensee has been acquitted for an offence under the LC Act. When the LC Act contemplates that proceedings of the present kind may be brought, it is difficult to see how bringing those proceedings could in any way bring the administration of justice into disrepute.
69 The appellant's second contention fails, and with it, grounds 2, 3 and 4 of the appeal.
6. Conclusion
70 The Commission made no error of law in refusing to strike out the first ground of the complaint. The appeal should be dismissed.
1 LC Acts 28(1) - (2).
2 The appellant pointed to s 3(5) (the requirement to produce a record in English), s 37(e)(ii) and (f) (the requirement that premises be of sufficient standard and suitability), s 37B (the licensing authority may require a person to have his or her fingerprints taken); s 41(6) (the requirement for a hotel to provide guest accommodation), s 63(b) (the requirement to keep premises open), s 67(1) and s 69 (the requirement for applications to be advertised) and s 95(4)(d) and 99 (the requirement to keep premises clean and in good repair).
3 See, generally, LC Acts 166.
4CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey & Gummow JJ); Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381 (McHugh, Gummow, Kirby & Hayne JJ); Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390, 397 (Dixon CJ); AB v Western Australia [2011] HCA 42 [10], [23] - [24], [36], [38] (French CJ, Gummow, Hayne, Kiefel & Bell JJ).
5Interpretation Act 1984 (WA) s 18.
6 Macquarie Dictionary (5th Ed. 2009).
7 Macquarie Dictionary (5th Ed. 2009).
8 Oxford Dictionary (12th Ed. 2011).
9 Macquarie Dictionary (5th Ed. 2009), and similarly, the Oxford Dictionary (12th Ed. 2011).
10Interpretation Act 1984 (WA) s 5.
11Registrar of Titles (WA) v Franzon(1975) 132 CLR 611, 618 (Mason J); Minister for Immigration and Multicultural and Indigenous Affairs v SZAYZ(2005) 145 FCR 523, 529 [14] (Moore J), 539 [72] (Weinberg J); Craig Williamson Pty Ltd v Barrowcliff[1915] VLRF 450, 452 (Hodges J).
12 LC Act s 5(1).
13 LC Acts 166(1).
14Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 [71] (McHugh, Gummow, Kirby & Hayne JJ).
15 LC Act s 20(3).
16 LC Act s 95(4)(e)(iii).
17 LC Acts 110(1)(aa).
18 LC Acts 96(1).
19 Compare, for example, Health Care Complaints Commission v Litchfield(1997) 41 NSWLR 630, 637; Hardcastle v Commissioner of Police(1984) 53 ALR 593.
20 LC Acts 96.
21The Queen v Storey(1978) 140 CLR 364, 372 (Barwick CJ), 387 (Gibbs J), 396 and 400 (Mason J); Island Maritime Limited v Filipowski(2006) 226 CLR 328, 343 [41], 347 [55] (Gummow and Hayne JJ).
22The Queen v Storey(1978) 140 CLR 364, 372 (Barwick CJ), 387 (Gibbs J), 396 - 397 (Mason J), 408 - 409 (Jacobs J), 413 (Murphy J) and 424 (Aickin J, Stephen J agreeing); Rogers v The Queen(1994) 181 CLR 251, 277 – 278; R v Carroll(2002) 213 CLR 635; Island Maritime Limited v Filipowski(2006) 226 CLR 328 at [41] (Gummow and Hayne JJ).
23Helton v Allen(1940) 63 CLR 691.
24Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630, 635 - 636.
25Re Mulligan; ex parte Isidoro [1979] WAR 198.
26Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630, 635.
27Re Mulligan; ex parte Isidoro [1979] WAR 198, 201 - 202 (Burt CJ).
28 Compare Farah v Say-Dee(2007) 230 CLR 89, 147, 158 (Gleeson, Gummow, Heydon, Callinan & Crennan JJ).
29 See, for example, Re Jones; ex parte The Commissioner of Police[1999] WASCA 246, [26] – [29] (Parker J); Smolarek v Roper[2009] WASCA 124, [94] (Newnes JA).
30Health Care Complaints Commission v Litchfield(1997) 41 NSWLR 630, 635 - 636.
31Police Act 1892 s 10; Criminal Procedure Act 2004 (WA) s 20(3)(a)(iii).
32Enever v The Queen(1906) 3 CLR 969, 975 – 977 (Griffin CJ); Knight v Commissioner of Police[2011] WASC 93, [59] (EM Heenan J).
33 Magistrates Court, 2 June 2011, ts 16.
34Hancock v Executive Director of Public Health[2008] WASC 224, [50] - [51] (Martin CJ).
35Briginshaw v Briginshaw (1938) 60 CLR 336.
36 For the same reason, the issues in Mulliganas between the Magistrates Court prosecution and in the licensing appeal do not appear to have been the same either: see Health Care Complaints Commission v Litchfield(1997) 41 NSWLR 630, 635.
37 Having regard to the definition of 'drunk' in s 3A of the LC Act.
38 Magistrates Court, 2 June 2011, ts 12.
39 LC Acts 16(1), s 16(7).
40Walton v Gardiner(1993 177 CLR 378, 393, 395, 398 (Mason CJ, Deane & Dawson JJ); Jeffery and Katauskas v SST Consulting(2009) 239 CLR 75, 93 [27] (French CJ, Gummow, Hayne & Crennan JJ).
41Walton v Gardiner(1993) 177 CLR 378, 393 (Mason CJ, Deane and Dawson JJ); Rogers v The Queen(1994) 181 CLR 251, 256 (Mason CJ); Jeffery and Katauskas v SST Consulting(2009) 239 CLR 75, 93 [28] (French CJ, Gummow, Hayne & Crennan JJ); Hunter v Chief Constable of the West Midlands Police[1982] AC 529 at 536 (Lord Diplock); Arthur J S Hall and Co (A firm) v Simons[2002] AC 616, 685 (Lord Browne-Wilkinson) and at 702 - 703 (Lord Hoffman, Lord Hutton agreeing at 727 and Lord Millett agreeing at 752); Batistatos v Roads and Traffic Authority of New South Wales(2006) 226 CLR 256, 264 - 265 [8] (Gleeson CJ, Gummow, Hayne & Crennan JJ)
42Hunter v Chief Constable of the West Midlands Police[1982] AC 529, 541 (Lord Diplock). See also the discussion of the authorities in Donnellan v The Public Trustee[2007] WASC 213, [27] - [42] (Newnes J).
43Sudath v Health Care Complaints Commission[2012] NSWCA 171, 171, [74] (Meagher JA).
44 See, for example, Hardcastle v Commissioner of Police (1984) 53 ALR 593.
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