Sidgreaves v Chief Commissioner of State Revenue

1. [1]

   These proceedings arise out of the application by the plaintiff, Mr Sidgreaves, for a refund of gaming machine tax collected by the defendant, the Chief Commissioner of State Revenue, for the period from 1 January 2012 to 31 December 2015 in respect of the operation of gaming machines kept at a hotel known as “Tommy’s Tavern” in Lismore.

2. [2]

   Mr Sidgreaves seeks leave to appeal to this Court from a decision of the Appeal Panel of the Civil and Administrative Tribunal of New South Wales (NCAT). The effect of the Appeal Panel’s decision was that Mr Sidgreaves was not entitled to the refund.

3. [3]

   For the reasons set out below, I have decided that leave to appeal from the Appeal Panel’s decision should be refused.

4. [4]

   In order to understand the precise nature of the issues before this Court, it is necessary to note the legislative basis for gaming machine tax, and to review, in some detail, the steps taken by Mr Sidgreaves to obtain a refund, and the decisions of the Chief Commissioner, the Administrative and Equal Opportunity Division of NCAT and the NCAT Appeal Panel.

Gaming Machine Tax

1. [5]

   Gaming machine tax is payable on profits from gaming machines kept in a hotel: s 6(1) of the Gaming Machine Tax Act 2001 (NSW) (GMT Act). The person liable to pay the tax is the hotelier, that is, the holder of the applicable hotel licence under the Liquor Act 2007 (NSW) (Liquor Act): ss 6(2) and 3(1) of the GMT Act and s 4(1) of the Liquor Act.

Refund application

1. [6]

   On about 29 June 2016, Mr Sidgreaves applied to the Chief Commissioner for a refund of the gaming machine tax referred to above. Mr Sidgreaves sought the refund on the basis that:

2. [7]

   On 17 August 2016, the Chief Commissioner refused the application for the refund, stating:

3. [8]

   On 5 October 2016, Mr Sidgreaves lodged an objection to that decision. The objection was rejected on two grounds:

   1. (1)

      documents in the possession of the Chief Commissioner identified that Mr Sidgreaves was the holder of the relevant licence between 30 January 2012 and 24 January 2016, and Tommy’s Tavern was the hotel premises to which the licence related; and

   2. (2)

      in the alternative, the evidence established that Mr Sidgreaves did not in fact pay the relevant gaming machine tax but rather the gaming machine tax was paid by AJS Hotel Management Pty Ltd and TT Hotel Management Pty Ltd, and accordingly no refund of gaming machine tax could be paid by the Chief Commissioner to Mr Sidgreaves.

Administrative review application

1. [9]

   Mr Sidgreaves then applied to NCAT, under s 96 of the Taxation Administration Act 1996 (NSW) (TA Act), for a review of the Chief Commissioner’s decision of 17 August 2016 to refuse the refund. That section of the TA Act entitles a person in Mr Sidgreaves’ position to apply for an administrative review, in accordance with the Administrative Decisions Review Act 1997 (NSW) (ADR Act), of the Chief Commissioner’s decision. Section 63 of the ADR Act provides that the administrative review is to take the form of a review on the merits. It is relevantly in the following terms:

2. [10]

   Mr Sidgreaves’ application for administrative review was heard on 2 and 3 March 2017 by the Honourable Brian Tamberlin QC, sitting as a Principal Member in the Administrative and Equal Opportunity Division of NCAT.

3. [11]

   On 29 March 2017, the Principal Member made an order dismissing Mr Sidgreaves’ application and published his reasons: Sidgreaves v Commissioner of State Revenue [2017] NSWCATAD 93. The principal issues were identified, at [7] of those reasons, as being whether Mr Sidgreaves could establish that:

   1. (1)

      he was not the holder of the hotel licence during the relevant period; and

   2. (2)

      he was entitled to a refund where the tax was not paid by him.

4. [12]

   The Principal Member made the following findings in his reasons for decision:

5. [13]

   From this last paragraph, it is apparent that before Scotting DCJ “there was no evidence that the application [Mr Sidgreaves] submitted to the Authority on 24 January 2012 was approved”. From this absence of evidence alone, however, it could not be inferred that the application was not approved. All that could be concluded was that there was no evidence of approval. To the extent that the District Court made a positive finding that the transfer application had not been approved, such a finding would be unfounded in those circumstances. A finding that the application had not been approved was not necessary for the purposes of disposing of the District Court appeal. It was sufficient to find that there was no evidence to establish one of the elements of the offence charged.

6. [14]

   The Principal Member’s finding at [14] was that the documents and records in evidence before him indicated that the application to transfer the licence to Mr Sidgreaves was provisionally approved by the Authority on 30 January 2012. Thus, the evidence before the Tribunal must have been different from what was before Scotting DCJ in the District Court appeal.

7. [15]

   The Principal Member’s reasoning also included the following (as helpfully summarised by the Appeal Panel in Sidgreaves v Chief Commissioner of State Revenue [2018] NSWCATAP 20 at AP[35]):

8. [16]

   Before the Administrative and Equal Opportunity Division, Mr Sidgreaves placed substantial reliance upon Scotting DCJ’s reasoning and finding, set out in the passage quoted earlier. Principal Member Tamberlin QC held, at [39], that such reliance was misplaced because Scotting DCJ’s finding turned upon a lack of evidence in that case. The Principal Member also said, at [40] of his reasons:

9. [17]

   Mr Sidgreaves also submitted before the Principal Member that there was some “irregularity”, “because there were some stamps and details on the Transfer Application Form to Mr Parrot which are not on the copy of the 24 January 2012 application of [Mr Sidgreaves]”. The Principal Member concluded, at [45], that the “One Gov” records established that all relevant details had been entered and “the stamps referred to on the application of Mr Parrot are not shown to have any significance so far as the validity of the processing of [Mr Sidgreaves’] Transfer Application and the approval concerned”.

10. [18]

    At [46] of the Principal Member’s reasons, it was concluded that:

11. [19]

    This being so, the Principal Member found it was neither necessary nor appropriate to consider the alternate basis upon which the Chief Commissioner sought to have the review application dismissed and, thus, Mr Sidgreaves’ review application was dismissed: [47] and [48].

Appeal to the NCAT Appeal Panel

1. [20]

   An appeal lies as of right on a question of law from a final decision of the Administrative and Equal Opportunity Division under the ADR Act to NCAT’s internal Appeal Panel: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 80(1) and (2)(b), s 32(1)(a) and (4), and s 30(1) and (3).

2. [21]

   In addition, an appeal from such a decision on any other ground may be brought with the leave of the Appeal Panel: NCAT Act, s 80(2)(b).

3. [22]

   On 26 April 2017, Mr Sidgreaves filed a notice of appeal with the Appeal Panel, challenging Principal Member Tamberlin QC’s decision on four grounds, and also sought leave to appeal. The four grounds were recorded by the Appeal Panel in their reasons, Sidgreaves v Chief Commissioner of State Revenue [2018] NSWCATAP 20, at AP[8], as follows:

4. [23]

   In accordance with the procedures in appeals to the Appeal Panel of NCAT, the Chief Commissioner was required to file a reply to appeal, which raised the following contentions in response to Mr Sidgreaves’ grounds of appeal:

5. [24]

   The Appeal Panel distilled the grounds of appeal effectively into three, at AP[39] - AP[41]:

   1. (1)

      The “Invalidity of Licence Transfer ground” – the licence could not have been validly transferred to Mr Sidgreaves because the legal requirements for transfer were not met;

   2. (2)

      The “Res judicata ground” – Scotting DCJ’s decision in the District Court operated as a res judicata, which bound the Tribunal;

   3. (3)

      Challenges to conclusions of fact, for which leave to appeal was required.

6. [25]

   It was not contended, on the application for leave to appeal to this Court, that the Appeal Panel erred in so distilling the grounds.

7. [26]

   As to the Invalidity of Licence Transfer ground, the Appeal Panel dismissed this ground of appeal on three bases:

   1. (1)

      The issue of whether the legal requirements for a transfer of the licence had been met was not raised at the original hearing. Determining this issue would turn on the factual issues identified by the Appeal Panel at AP[54] and AP[57]. Applying the principles in Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33 and O'Brien v Komesaroff (1982) 150 CLR 310 at 319; [1982] HCA 33, the Appeal Panel held that Mr Sidgreaves should not be allowed to raise the issue on appeal: AP[59].

   2. (2)

      The Principal Member had before him “the record indicating the transfer of the license had been made by the Authority”: AP[60]. The Appeal Panel held that the presumption of regularity, formulated in Minister for Natural Resources v NSW Aboriginal Land Council [1987] 9 NSWLR 154 at 164, applied in relation to this record: AP[61]. There being no factual basis before the Principal Member or the Appeal Panel to conclude that the presumption of regularity had been rebutted, the Invalidity of Licence Transfer ground should be rejected: AP[62].

   3. (3)

      The assertion that the licence had not been transferred to Mr Sidgreaves amounted to a collateral attack on the decision of the Authority, which was not permissible in an application for administrative review of a decision of the Chief Commissioner under the TA Act, when there was nothing on the face of the record that would indicate that the transfer of the licence to Mr Sidgreaves was invalid: AP[63], [69] and [73]. In addition, the right to challenge a decision of the Authority to transfer a licence is by way of judicial review proceedings. Such a decision by the Authority is not reviewable by NCAT and, further, the Chief Commissioner had no authority to make any decision concerning the transfer of a licence under the Liquor Act. Accordingly, a collateral challenge to the transfer of the licence should not be permitted by NCAT, including by the Appeal Panel, when the subject matter of the proceedings was a review, in accordance with s 63 of the ADR Act, of the Chief Commissioner’s decision to refuse a refund of gaming machine tax: AP[70] - AP[72].

8. [27]

   The Res judicata ground was rejected by the Appeal Panel on the bases that:

   1. (1)

      The District Court decision was between different parties, in which a different standard of proof applied, and reached a conclusion that it had not been proved beyond reasonable doubt that the appellant was the licensee, not that the appellant was not the licensee: AP[79] - AP[80].

   2. (2)

      Similarly, there was no issue estoppel since there were different parties, a different claim, and the decision was that the Court was not satisfied on the evidence that Mr Sidgreaves was the holder of the licence. There was no finding that the licence had not been transferred to Mr Sidgreaves, which was the issue before the Principal Member: AP[80] - AP[82].

9. [28]

   As to the challenges to the Principal Member’s conclusions of fact, the Appeal Panel refused leave to appeal: AP[91] - AP[92].

10. [29]

    Consequently, on 16 January 2018, the Appeal Panel dismissed Mr Sidgreaves’ appeal.

11. [30]

    Under s 83(1) of the NCAT Act, a party to an internal NCAT appeal, such as Mr Sidgreaves, may, with leave of the Supreme Court, appeal on a question of law against any decision made by the Tribunal, which includes the Appeal Panel.

Appeal to the Supreme Court

1. [31]

   By a summons filed on 13 February 2018, Mr Sidgreaves has sought leave to appeal against the whole of the decision of the Appeal Panel made on 16 January 2018. If leave is granted and the appeal upheld, Mr Sidgreaves sought in the summons to have the refusal decision set aside and either the gaming machine tax refunded or, in the alternative, the matter remitted to NCAT for determination in accordance with the Court’s decision.

Leave to appeal

1. [32]

   The summons seeking leave to appeal did not, as required by r 50.12(4)(b) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), state the reasons why leave should be given. To remedy this defect, Mr Sidgreaves was permitted to provide, after the oral hearing, a proposed amended summons seeking leave to appeal identifying why leave should be given. The parties were also permitted to serve, after the oral hearing, short written submissions on that and other relevant matters.

2. [33]

   In the proposed amended summons, the grounds for the grant of leave were identified as follows:

3. [34]

   The Court of Appeal recently considered the principles applicable generally to the granting of leave to appeal, albeit in a different context from the present, in Bitar Pty Ltd v Hebbel Constructions Pty Ltd [2019] NSWCA 39. At [11], Gleeson JA (McCallum JA agreeing) said:

4. [35]

   In the present case, the Appeal Panel’s decision on its face does not appear to be “doubtful” or attended by sufficient doubt to warrant reconsideration. I also do not accept that, if the Appeal Panel’s decision is not reconsidered, Mr Sidgreaves will necessarily suffer substantial injustice. As was submitted on Mr Sidgreaves’ behalf during the hearing, even if he were successful in this Court, the appropriate order would be to remit the matter to NCAT, either to the Appeal Panel of NCAT or the Administrative and Equal Opportunity Division, for determination in accordance with law. This was because gaming machine tax was payable in respect of profit from gaming machines kept at Tommy’s Tavern during the relevant period and it would be necessary to determine whether the relevant gaming machine tax was actually paid by Mr Sidgreaves or by some other person or entity. The Principal Member’s identification of the issue at [7(2)] of his reasons indicates that it was not paid by Mr Sidgreaves. Further, the amount of gaming machine tax in issue was not expressly identified by Mr Sidgreaves during the hearing or in submissions. Finally, the construction and application of the Liquor Act, in the circumstances of the present case, does not necessarily involve any matter of general public importance.

5. [36]

   Accordingly, unless the grounds of appeal relied upon by Mr Sidgreaves demonstrate that there is sufficient doubt to warrant reconsideration of the Appeal Panel’s decision, there does not appear to be a substantial basis upon which to grant leave to appeal from the decision of the Appeal Panel of NCAT.

Grounds of appeal

1. [37]

   The grounds of appeal relied upon by Mr Sidgreaves were as follows:

2. [38]

   At the hearing, Mr Rogers of counsel, who appeared for Mr Sidgreaves at that stage, stated that:

   1. (1)

      ground 1 was abandoned; [1]

   2. (2)

      the argument to be run under ground 2 raised a new point that had not been argued below but submitted that the Court should permit Mr Sidgreaves to raise it on this appeal; [2] and

   3. (3)

      ground 4 was only put on the basis of abuse of process and was not pressed on the basis of res judicata or issue estoppel. [3]

3. [39]

   It should also be observed that ground 3 apparently seeks to overturn the Appeal Panel’s conclusion that Mr Sidgreaves’ challenge to the licence was impermissible as a collateral attack on a decision of the Authority. This was only one of the alternative bases upon which the Appeal Panel rejected Mr Sidgreaves’ appeal. It will only be necessary to decide this ground if Mr Sidgreaves’ new basis for challenging the licence is allowed to be raised on this appeal and would be successful. This challenge to the licence is the subject of ground 2. Consequently, if the appeal based on ground 2 is rejected, it will not be necessary to decide ground 3.

4. [40]

   As noted above, at the end of the oral hearing, the Court granted the parties leave to file short additional written submissions. In those submissions, Mr Sidgreaves raised a further argument not raised in the Tribunal, before the Appeal Panel, or during the oral hearing in this Court.

5. [41]

   Accordingly, I shall deal with ground 2 first. When dealing with ground 2, I shall also address the further argument raised by Mr Sidgreaves in his supplementary written submissions, provided after the oral hearing and after Mr Sidgreaves had withdrawn his instructions to counsel who appeared for him at the hearing. Next, to the extent necessary, I shall consider ground 3 and, then, ground 4.

Ground 2 – Challenge to the licence

1. [42]

   At the oral hearing of the matter, it was frankly accepted that the argument under ground 2 was a new point that had not been raised before the Tribunal at first instance or before the NCAT Appeal Panel.

2. [43]

   The new point was that, under s 60 of the Liquor Act, the Authority could only approve the transfer of a licence “on application made in accordance with this section”. Section 60(4)(c) required, among other things, that if the application for the transfer was made by a person other than the licensee, then it must be accompanied by the written consent of the licensee to the proposed transfer.

3. [44]

   Section 60 of the Liquor Act relevantly provides:

4. [45]

   It was contended that Mr Parrot was the licensee at the relevant time according to the Authority’s records, and that there was no written consent from Mr Parrot in the application made on about 23 January 2012 to transfer the licence to Mr Sidgreaves. This was said to be so because the form of application, which was in evidence, did not contain the signature of Mr Parrot in the box provided for the existing licensee to sign. As a consequence, it was said that the Authority was not empowered to issue the licence to Mr Sidgreaves and he was, as a consequence, not the licensee of Tommy’s Tavern for the period from 30 January 2012 to 31 December 2015, despite the issue of the licence in his name. It was submitted that, since he was not the licensee, Mr Sidgreaves was not liable to pay the gaming machine tax collected during that period, and that the tax collected should be refunded to him.

5. [46]

   In an appeal under s 83 of the NCAT Act, there does not appear to be any basis for prohibiting points not argued below from being raised on the appeal. Nonetheless, the considerations referred to in Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; [1950] HCA 35 (Suttor) and Coulton v Holcombe (1968) 162 CLR 1; [1986] HCA 33 (Coulton) may mean that the Court should not permit new points to be argued on such an appeal or that the Court should refuse leave to appeal.

6. [47]

   Mr Sidgreaves submitted that the issue now sought to be argued involved a pure question of law and did not turn on any disputed facts. Accordingly, the principles in Coulton at 7-8 and Suttor at 438 did not prevent the point being raised for the first time in this appeal.

7. [48]

   These submissions should be rejected for at least two reasons. First, the argument does not turn on a pure question of law. It depends upon at least one finding of mixed law and fact: (a) that Mr Parrot was the licensee at the time of the application to transfer the licence to Mr Sidgreaves; and one finding of fact: (b) that Mr Parrot had not signed the application form or otherwise provided written consent. There are no such findings by the Principal Member or the Appeal Panel, yet these findings are necessary for Mr Sidgreaves to succeed on this point. The need for this Court to make these findings demonstrates that the new point sought to be raised under ground 2 could possibly have been met by calling other evidence, if it had been raised at first instance. For example, even if Mr Parrot was the relevant licensee and did not sign the application form, he may have provided his written consent in another form. In addition, evidence to establish the section under which the application was made, the identity of the licensee as at 23 or 24 January 2012, and whether that person had provided a written consent to accompany the application, could have been led if the argument had been raised earlier.

8. [49]

   In Coulton, it was held by Gibbs CJ, Wilson, Brennan and Dawson JJ, at 7-8, that:

9. [50]

   Since evidence could have been given which could have prevented the point from succeeding, the point should not be allowed to be raised in the present proceedings. Leave to appeal on this ground should therefore not be granted.

10. [51]

    Secondly, Principal Member Tamberlin QC has made relevant findings, at [11]-[14] of his reasons, concerning Mr Parrot and the application to transfer the licence to Mr Sidgreaves. These findings were not successfully challenged on the appeal to the Appeal Panel and are not sought to be challenged in the appeal to this Court. The facts as found by the Principal Member have the consequence that the new argument must fail, even if it were permitted to be raised. The Principal Member found that, on or about 2 January 2012, Mr Parrot was evicted by the owner, and an application to transfer the licence was signed on 23 January 2012 and lodged on 24 January 2012. In these circumstances, s 61 of the Liquor Act applied and Mr Parrot was no longer taken to be licensee after 2 January 2012, by operation of s 61(3) and (4). Section 61 relevantly provides:

11. [52]

    Accordingly, on the facts as found by the Principal Member, and assuming (for the purposes of this argument) that s 60, and not s 61, of the Liquor Act is the relevant provision, Mr Parrot was not the person required by s 60(4)(c) to sign the application form for transfer of the licence, or to provide a written consent to the transfer. This is because he was not taken to be the licensee at the time the application was completed or lodged on 23 and 24 January 2012. As a result, the new point sought to be raised would be bound to fail on the findings of fact available to this Court. Consequently, leave to appeal on this ground should be refused on this basis.

12. [53]

    In his short written submissions, provided after the oral hearing, Mr Sidgreaves sought to raise a further argument. In substance, he contended that after Mr Parrot was evicted, on 2 January 2012, the owners became the licensee by operation of s 61(3). It was then said:

13. [54]

    This argument was not put to the Principal Member nor was it put to the Appeal Panel. It turns in part upon who, in fact, made the application to transfer the licence on 23 and 24 January 2012. An application was made, and provisionally approved on 30 January 2012, as found by the Principal Member. While the owner or operator may apply under s 61(2), the proposed transferee of a licence may apply for the transfer under s 60(2).

14. [55]

    The Principal Member found that Mr Sidgreaves was the sole director of at least one of the owner companies and was the proposed transferee of the licence. The Principal Member also made other relevant findings in his reasons, set out above, concerning Mr Sidgreaves’ role and conduct as licensee. No appeal from any of these findings was allowed by the Appeal Panel. They are not challenged in this Court.

15. [56]

    This new argument depends on, at least, answers to the following questions of fact or of mixed fact and law:

    1. (1)

       in what capacity or capacities was Mr Sidgreaves acting when he was involved in making the application on 23 and 24 January 2012;

    2. (2)

       who in fact was the applicant in the relevant application;

    3. (3)

       under which section was the application made.

16. [57]

    If this new argument had been raised at the initial hearing, it could possibly have been addressed by calling further evidence, including evidence concerning the questions referred to above. In these circumstances, the point should not be allowed to be raised as a new point on appeal, in accordance with the principles in Suttor and Coulton, referred to above.

17. [58]

    Moreover, this new argument also amounts to a collateral challenge to the licence, as issued. That matter is considered below, under ground 3.

18. [59]

    For all of these reasons, I would not grant leave to appeal in respect of ground 2. Should I be wrong in refusing leave to appeal, I would nonetheless reject the appeal for the reasons set out above.

Ground 3 – impermissible collateral challenge

1. [60]

   Since leave to appeal in respect of ground 2 has been refused and, even if leave were granted, the appeal on that ground should be rejected, it is not necessary to deal with the question of whether the arguments sought to be advanced under ground 2 amount to an impermissible collateral challenge to the Authority’s decision to issue the licence, provisionally, to Mr Sidgreaves on 30 January 2012.

2. [61]

   In case I am wrong in respect of ground 2, I shall deal briefly with Mr Sidgreaves’ submissions in respect of ground 3. They were, in substance, that if the Authority did not have power to transfer the licence because the application form had not been signed by Mr Parrot, the licence was invalid, and the Tribunal should have accepted and recognised this. It was submitted that the Chief Commissioner could go behind the licence issued by the Authority, if there was no power to issue the licence, and the Tribunal, standing in the shoes of the Chief Commissioner, could treat it as invalid or set it aside.

3. [62]

   In my view, there was no error on any question of law in the Appeal Panel’s decision as contended by Mr Sidgreaves under ground 3. When the principles in Ousley v The Queen (1997) 192 CLR 69 at 80, 87, 100, 130-131, 145-146; [1997] HCA 49, Attorney-General (Cth) v Breckler (1999) 197 CLR 83 at [36]; [1999] HCA 28, and Director of Housing v Sudi (2011) 33 VR 559 at [231] and [234]-[261]; [2011] VSCA 266 are applied, the following conclusions should be accepted in respect of NCAT, which is not a court, in the present proceedings:

   1. (1)

      Since there was nothing on the face of the licence that would indicate that the transfer of the licence to Mr Sidgreaves was invalid, and the presumption of regularity applied, no collateral challenge to the licence issued to Mr Sidgreaves should be permitted in the Tribunal.

   2. (2)

      The Tribunal, when conducting a review in accordance with s 63 of the ADR Act, in effect exercises the powers of the Chief Commissioner to make the correct and preferable decision. These are executive not judicial powers. These powers do not include the power to review a decision of the Authority to transfer the licence to Mr Sidgreaves or to set it aside. The Principal Member had no authority to determine that the transfer of the licence was invalid or that the licence issued to Mr Sidgreaves should be set aside.

4. [63]

   Mr Sidgreaves’ submissions did not demonstrate that there was any error on the Appeal Panel’s part in reaching its conclusions, which were summarised earlier in these reasons, concerning collateral challenge and the presumption of regularity.

5. [64]

   Consequently, I do not conclude that the Appeal Panel erred in holding that Mr Sidgreaves should not be permitted in NCAT to engage in a collateral challenge to the Authority’s decision to approve the transfer of the licence to Mr Sidgreaves.

6. [65]

   Accordingly, should it be necessary to reach a conclusion concerning ground 3, I would refuse leave to appeal and, if leave should be granted, I would reject the appeal based on ground 3.

Ground 4 – “abuse of process” in not following the decision of Scotting DCJ

1. [66]

   This fourth ground of appeal was formulated as follows:

2. [67]

   As noted above, Mr Sidgreaves’ counsel indicated that res judicata and issue estoppel were not relied upon in relation to this ground. These were the only bases upon which the case had been argued before the Appeal Panel. It appeared that Mr Sidgreaves sought to raise a new argument on the application for leave to appeal before this Court. As he appeared to be content to rely only on the factual findings made by the Tribunal at first instance, and it was not suggested by the Commissioner that there was any other evidence that was relevant that could have been led on this issue, I shall consider whether leave to appeal should be granted in respect of ground 4.

3. [68]

   The only point now relied upon was that “the prosecution of the argument by the [Chief Commissioner] that Mr Sidgreaves was the licensee was, in the light of the decision of Scotting DCJ, an abuse of process”.

4. [69]

   The varied circumstances in which the use of court processes will amount to an abuse do not lend themselves to exhaustive statement, but two situations where a court may intervene on this basis are: where the use of the court's procedures occasions unjustifiable oppression to a party, or where the use serves to bring the administration of justice into disrepute: UBS AG v Tyne [2018] HCA 45 (Tyne) at [1]. Determining whether conduct in relation to proceedings amounts to abuse of process is a determination that requires consideration of all the circumstances: Tyne at [7]. In this regard, Kiefel CJ, Bell and Keane JJ, in Tyne at [7], adopted what Lord Bingham of Cornhill had said concerning such consideration in Johnson v Gore Wood & Co [2002] 2 AC 1 at 31. It is:

5. [70]

   In the present case, the crucial question can be formulated as whether, in all the circumstances, the Chief Commissioner was misusing or abusing the processes of NCAT by seeking to raise before it an issue which had already been determined against the Chief Commissioner in the District Court appeal.

6. [71]

   I do not accept that the Chief Commissioner’s conduct should be characterised as an abuse of process. In the proceedings before NCAT:

   1. (1)

      Mr Sidgreaves was asserting that he was not the licensee during the relevant period;

   2. (2)

      the Chief Commissioner was responding to Mr Sidgreaves’ application for review by putting before the Tribunal relevant material so that the Tribunal could exercise the Commissioner’s functions, in accordance with s 63 of the ADR Act, and that material did not support a finding that Mr Sidgreaves was not the holder of the licence during the relevant period.

7. [72]

   The issue of whether Mr Sidgreaves was not the licensee during the relevant period had not been determined adversely to the Chief Commissioner in any prior proceedings. The Chief Commissioner was not involved in any way in the District Court appeal before Scotting DCJ. Nor can the Chief Commissioner be equated with the prosecution in the District Court appeal.

8. [73]

   Mr Sidgreaves submitted that in both the District Court and NCAT the same question was being determined, namely, whether Mr Sidgreaves was the licensee of Tommy’s Tavern. This observation might have a superficial attraction but, on proper consideration, it should not be accepted. It does not take into account that, in the District Court appeal, the question was whether the prosecution had proved beyond reasonable doubt that Mr Sidgreaves was the licensee on a particular date, which was an element of the offence in question. By way of contrast, in the proceedings before the Principal Member, Mr Sidgreaves was seeking a decision in his favour that he was entitled to a refund of gaming machine tax because the Principal Member, exercising the Chief Commissioner’s powers, should be satisfied on the balance of probabilities that Mr Sidgreaves was not the licensee during the relevant four year period. The questions in each set of proceedings were quite distinct and, furthermore, the evidence in the two proceedings was very different.

9. [74]

   The different questions being addressed arose out of the fact that in the District Court appeal, although Mr Sidgreaves was the appellant, the prosecution still bore the onus of demonstrating that each of the elements of the offence had been proved to the criminal standard. In the Tribunal, Mr Sidgreaves, not the Chief Commissioner, was the moving party and the Principal Member concluded that the evidence before the Tribunal did not support the finding that Mr Sidgreaves was not the holder of the licence during the relevant period, as stated in his reasons at [46].

10. [75]

    More specifically, Mr Sidgreaves relied upon three authorities to support his position: Hunter v Chief Constable of the West Midlands Police [1982] AC 529 (Hunter), Reichel v McGrath (1889) 14 App Cas 665 and Johnson v Gore Wood & Co [2002] 2 AC 1.

11. [76]

    Hunter was a case in which persons who had been convicted of planting bombs in Birmingham, based, at least to some extent, on their confessions, sought to establish, by civil action, that they had been assaulted before they confessed to involvement in the bombings and, as a consequence, their confessions were involuntary. That issue had been agitated in the original criminal trial. The jury’s guilty verdict meant that the jury must have accepted that the confessions were voluntary. In Hunter, Lord Diplock stated, at 541:

12. [77]

    It can be noted that the plaintiffs in Hunter were the Birmingham Six: R v Rogers (No 2) (1992) 29 NSWLR 179 at 183.

13. [78]

    Mr Sidgreaves’ counsel said he relied upon Hunter as authority for the proposition that “determinations in criminal matters can also be binding on non‑parties or in respect of non‑parties in subsequent civil proceedings”. I do not understand Hunter to have involved such a situation. The plaintiffs in Hunter, whose conduct in those proceedings was said to amount to an abuse of process, were also the accused parties in the earlier criminal trial. It was not a case where persons, who were not parties to the original criminal proceedings, engaged in conduct in subsequent civil proceedings which amounted to an abuse of process.

14. [79]

    Mr Sidgreaves also relied upon Reichel v McGrath (1889) 14 App Cas 665 (Reichel) but only for one proposition, namely that, in relation to abuse of process by multiple proceedings, there did not have to be identity of parties. So much may be accepted. That decision does not, however, assist Mr Sidgreaves in the present case. The significance and ratio of Reichel were recently explained in Tyne. Nettle and Edelman JJ said at [114]:

15. [80]

    The Chief Commissioner was not a claimant attempting to raise, in fresh proceedings, a claim which had already been determined adversely to him in a previous proceeding. Thus, Reichel does not establish that, in the present case, the Principal Member was bound to accept that Mr Sidgreaves was not the licensee during the relevant period, especially where the Tribunal found that the evidence before it did not support that conclusion.

16. [81]

    Finally, Johnson v Gore Wood & Co [2002] 2 AC 1 was submitted not to be a case that was directly on point, but it was relied upon as authority for the proposition that abuse of process could be raised against a defendant, not only against a plaintiff. It may be accepted that a defendant, as well as a plaintiff, may, by its conduct of proceedings, engage in an abuse of process. It does not follow, however, that the Chief Commissioner engaged in conduct which amounted to an abuse of process in the present case. The Chief Commissioner and Mr Sidgreaves put before the Principal Member evidence concerning whether or not Mr Sidgreaves was the licensee of Tommy’s Tavern during the relevant period. The Principal Member made his decision as set out in his reasons, which have been quoted or summarised above. The circumstances disclose no basis for finding that there has been an abuse of process by the Chief Commissioner.

17. [82]

    I should note at this point that there is High Court authority for the proposition that an acquittal may not be questioned or called into question by any evidence which, if accepted, would overturn or tend to overturn the verdict: Garrett v The Queen (1977) 139 CLR 437 at 445; [1977] HCA 67 (Garrett) and R v Carroll (2002) 213 CLR 635 at [37]; [2002] HCA 55 (Carroll). In Garrett, this principle was applied, in respect of evidence called in subsequent criminal proceedings, but was said to be based on res judicata. Barwick CJ (Stephen, Mason, Jacobs JJ agreeing) held, in Garrett at 445:

18. [83]

    Mr Sidgreaves’ counsel expressly eschewed reliance on res judicata. In any event, and as noted above, the Chief Commissioner was not involved in any way in the District Court appeal, nor is he the same party as the prosecution in those criminal proceedings.

19. [84]

    In Rogers v The Queen (1994) 181 CLR 251; [1994] HCA 42, this principle was specifically related to subsequent criminal proceedings. Mason CJ said in that case, at 256-7:

20. [85]

    This principle has not, however, been held to preclude parties to civil litigation, let alone administrative review proceedings, leading evidence contrary to a previous acquittal. In Carroll, Gleeson CJ and Hayne J held at [45]:

21. [86]

    Mr Sidgreaves did not identify other relevant circumstances that would lead to the conclusion that there was unjustified oppression of a party or that the administration of justice had been brought into disrepute. Applying the “broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case”, I am not persuaded that there was any conduct by the Chief Commissioner in the present proceedings that should properly be characterised as amounting to an abuse of process.

22. [87]

    As the appeal on ground 4 does not appear to be well founded, it is appropriate to refuse leave to appeal on that ground as well. Once again, even if leave to appeal should be granted, the appeal based on ground 4 should be dismissed.

Conclusion

1. [88]

   As leave to appeal in respect of each ground that is pressed should not be granted, the summons for leave to appeal should be dismissed in its entirety. It is not necessary, in these circumstances, to require Mr Sidgreaves to file an amended summons, in the form attached to his short written submissions, setting out the grounds on which he contended leave to appeal should be granted.

2. [89]

   Accordingly, the Court orders that the summons filed on 13 February 2018 is dismissed.