Director of Public Prosecutions v La Forest [2001] NSWSC 828

(2001) 115 Lgera 453 Reported Decision : [2001] NSWSC 828 [2001] ACL Rep 260 NSW 7

New South Wales Supreme Court

CITATION : Director of Public Prosecutions v La Forest [2001] NSWSC 828 CURRENT JURISDICTION: Civil FILE NUMBER(S) : SC 11465/01 HEARING DATE(S) : 11 September 2001 JUDGMENT DATE : 11 September 2001

PARTIES : Director of Public Prosecutions Kay Suzanne La Forest JUDGMENT OF : McClellan J

LOWER COURT Licensing Court of NSW JURISDICTION : LOWER COURT FILE NUMBER(S) : LOWER COURT Magistrate Flood JUDICIAL OFFICER :

COUNSEL : P A Johnson QC P R Clay SOLICITORS : S E O'Connor Eddy & Moloney CATCHWORDS : Place of public entertainment - entertainment - licensed premises LEGISLATION CITED : Local Government Act 1993 s 68, s 626(1) Dictionary to the Act - definitions of "place of entertainment", "public entertaiment", "theatre or public hall" Shire of Perth v O'Keefe (1964) 110 CLR 529 CASES CITED : Woollahra Municipal Council v Banool Developments Pty Limited (1973) 129 CLR 138 Foodbarn Pty Ltd v The Solicitor General (1975) 32 LGRA 157 DECISION : See para 15

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

McCLELLAN J

TUESDAY, 11 SEPTEMBER 2001

11465/01 - DIRECTOR OF PUBLIC PROSECUTIONS v LA FOREST

JUDGMENT

1 HIS HONOUR: This is an appeal from a decision of a magistrate dismissing a summons by which the respondent was prosecuted for an alleged breach of s 626(1) of the Local Government Act 1993. That section provides as follows: "1. A person who carries out an activity specified in Part A of the Table to section 68 without having obtained a prior approval of the Council under Part 1 of Chapter 7 required for the carrying out of that activity is guilty of an offence … ." 2 Part A of the table provides that an approval is required in order to use a building "as a place of public entertainment." 3 The dictionary to the Act provides, that "place of public entertainment" means, inter alia, "licensed premises." The dictionary also provides that "premises" are "licensed premises" if they are the subject of a licence under the Liquor Act 1982 and are "used or intended to be used for the purpose of providing entertainment." "Entertainment" is defined to include various activities. In the present case it is accepted by the parties that the musical activity which was occurring at the premises on the relevant day was entertainment. The question is did the conduct of that activity have the consequence that the hotel was being used "for the purpose of providing entertainment." 4 If, on the relevant day, the premises were being used for that purpose, then, being licensed premises, they were being used as a place of public entertainment in addition to being used as an hotel, and a permit was necessary and the offence was complete. 5 The matter was heard by Magistrate Flood, who found that the premises, an hotel, contained an area known as the Balmain Monkey Bar in which at 7.20 pm on the relevant day there was a four piece band performing. Before me the band was described as a jazz band. Its music was amplified. 6 The magistrate held that the definition of "public entertainment" in the Local Government Act 1993 informed the definition of "place of public entertainment". Public entertainment is defined, in the Dictionary to the Act, as follows: "public entertainment: (a) means entertainment to which admission may ordinarily be gained by members of the public on payment of money, or other consideration, as the price or condition of admission and an entertainment does not cease to be a public entertainment merely because: (i) some (but not all) persons may be admitted to the entertainment otherwise than on payment of money, or other consideration, as the price or condition of admission, or (ii) such payment, or other consideration, is demanded as the charge for a meal or other refreshment, or for any other service or thing, before admission to the entertainment is granted or as the charge for the entertainment after admission to the entertainment has been granted, and (b) includes a public meeting."