Supreme Court New South Wales Medium Neutral Citation: Sergeant John Lawrie v Tameeka Pty Ltd [2015] NSWSC 1513 Hearing dates: 29 October 2014 Date of orders: 16 October 2015 Decision date: 16 October 2015 Jurisdiction: Common Law Before: Rothman J Decision: 1) Appeal allowed in part; 2) Cross-appeal allowed in part; 3) The appeal by Sergeant John Lawrie against the dismissal of the charges in Counts 1, 2, and 8 be upheld; 4) The appeal against the dismissal of the charge in Count 3 be dismissed; 5) The appeal against the dismissal of the charges in relation to Counts 4 and 5 be upheld; 6) The cross-appeal in relation to the conviction of Tameeka Pty Ltd against conviction in relation to Count 7 be upheld; 7) The cross-appeal in relation to the conviction in relation to Count 6 be dismissed; 8) To the extent that the appeal and/or cross-appeal has been upheld, the decision of the learned Magistrate be set aside; 9) The Court will separately hear the parties on the question of costs, if any, and the form of any formal order; 10) Proceedings remitted to the Magistrate in the Local Court of New South Wales to be dealt with in accordance with law. Catchwords: APPEAL – appeal and cross-appeal from Local Court – offences under Liquor Act 2007 – interpretation of licence conditions – meaning of 'nightclub', 'residential premises' and ss 66 and 69 of the Liquor Act 2007 Legislation Cited: Crimes (Appeal and Review) Act 2001 Interpretation Act 1987 Liquor Act 1982 Liquor Act 2007 Cases Cited: Attorney General for the State of New South Wales v X [2000] NSWCA 199; (2000) 49 NSWLR 653 Australian Gas Light Company v Valuer-General (1940) 40 SR (NSW) 126 Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389 Collector of Customs v Pressure Tankers Pty Ltd and Pozzolanic Enterprises Pty Ltd [1993] FCA 322; (1993) 43 FCR 280 Krishna v DPP (NSW) [2007] NSWCCA 318 Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390 Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28: (1998) 194 CLR 345 R v R (1989) 44 A Crim R 404 Williams v The Queen [1986] HCA 88; (1986) 161 CLR 278 Category: Principal judgment Parties: Sergeant John Lawrie (Plaintiff/Appellant) Tameeka Pty Ltd (Defendant/Respondent) Representation: Counsel: H. El-Hage (Plaintiff/Appellant) T. Lynch (Defendant/Respondent) Solicitors: Crown Solicitor's Office (Plaintiff/Appellant) Back Schwartz Vaughan (Defendant/Respondent) File Number(s): 2014/24161 Publication restriction: None Decision under appeal Court or tribunal: Local Court Date of Decision: 23 October 2013 Judgment 1. HIS HONOUR: The defendant, Tameeka Pty Ltd (Tameka), was charged with eight offences relating to breaches of liquor licensing conditions, convicted of two of those charges and acquitted of the remainder. The prosecuting authority, Sergeant John Lawrie (the Appellant), by summons filed on 24 January 2014, appeals the dismissal of the six charges and Tameeka cross-appeals against its conviction on the two charges. 2. The issues of fact between the parties fall within short compass, but the dispute revolves around the application of the licensing provisions and, in particular, issues associated with the grant of an original nightclub licence, the operation of transitional provisions and the construction of the current licence conditions, to those facts. 3. The charges were dealt with by the Local Court at Port Macquarie on 23 October 2013. There were eight charges, the terms of which are, relevantly, set out below: 4. "Count 1: Between 10:10pm on 08/12/2012 and 12:15am on 09/12/2012 at Port Macquarie, the Licensee did fail to comply with licence conditions, to wit, "The allocated number and name of the security personnel is to be entered into a book and made available to Police upon request. On Thursday, Friday and Saturday two (2) further licenced uniformed security personal are to be present at the entrance to the nightclub at all times during the operation of the nightclub; 5. Count 2: Between 10:00pm on 29/12/2012 and 11:40pm on 30/12/2012 at Port Macquarie, the Licensee did not comply with condition on liquor license, to wit, "The allocated number and name of the security personal is to be entered into a book and made available to Police upon request. On Thursday, Friday and Saturday two (2) further licenced uniformed security personnel are to be present at the entrance to the nightclub at all times during the operation of the nightclub; 6. Count 3: Between 11:10pm on 29/12/2012 and 1:40am on 30/12/2012 at Port Macquarie, the Licensee did not comply with conditions on liquor licence, to wit, "On Thursday, Friday and Saturday the licensee is to engage two (2) licensed uniformed security personnel to regularly patrol from 01:00am and to continue to the last patron has left the premises and the vicinity…These patrols are to ensure that patrons from the premises do not loiter or linger in the area or cause nuisance or annoyance to the neighbourhood…; 7. Count 4: Between 12:01am and 1:00 am on 30/12/2012 at Port Macquarie, the Licensee did not comply with conditions on liquor license, to wit, "Notwithstanding compliance with the above, the noise from the license premises shall not be audible within any habitable room in any residential premises between the hours of 12:00 midnight and 7:00am. For the purpose of this condition, the LA10 can be taken as the average maximum deflection of the noise emission from the licenced premises; 8. Count 5: Between 12:01am and 12:27 on 28/12/202 at Port Macquarie, the Licensee did not comply with conditions on liquor license, to wit, "Notwithstanding compliance with the above, the noise from the license premises shall not be audible within any habitable room in any residential premises between the hours of 12:00 midnight and 7:00am. For the purpose of this condition, the LA10 can be taken as the average maximum deflection of the noise emission from the licenced premises; 9. Count 6: Between 4:00pm on 01/09/2012 and 4:00pm on 12/03/2013 at Port Macquarie, the Licensee did, as a licensee, conduct business at a licensed premises, to wit, The Beach House Café and Bar, under the liquor license number LIQO624007927 for a period of more than 28 days without an approved manager; 10. Count 7: Between 4:00pm on 08/12/2012 and 4:00pm on 07/03/2013 at Port Macquarie, the Licensee as licensee of The Beach House Café and Bar did not notify the Independent Liquor and Gaming Authority of an appointment of an approved managed for that licenced premise; 11. Count 8: Between 12:01am and 12:27am on 28/12/2012 at Port Macquarie, the Licensee did not comply with conditions on liquor licence, to wit, "The allocated number and name of the security personnel is to be entered into a book and made available to Police upon request. On Thursday, Friday and Saturday two (2) further licenced uniformed security personal are to be present at the entrance to the nightclub at all times during the operation of the nightclub." (Court Attendance Notice). 12. It is necessary to set out the factual basis for the issues that the parties raise. Facts 1. Tameeka was granted an on-premise liquor licence, being a nightclub licence, pursuant to the provisions of the Liquor Act 1982 (the 1982 Act) on 13 December 1999. In reality, the licence was granted for an operation called the "Beach House Café & Bar" and the then grantee transferred the licence to the defendant, Tameeka, on 16 June 2000. 2. The 1982 Act was replaced by the Liquor Act 2007 (the 2007 Act) and, by operation of the transitional provisions and other arrangements made, Tameeka's nightclub licence was converted to an on-premises licence that related to a public entertainment venue and restaurant. The nightclub licence is Exhibit 18 in the Local Court proceedings and is contained on page 95 of Exhibit A in these proceedings (hereinafter, the references to Exhibit A will be to the "Appeal Book" and, where relevant, the Appeal Book's page number, rather than a cross-reference to the exhibits in the Local Court proceedings). 3. The licence issued under the 1982 Act states the location of the premises, the date of the grant being 3 December 1999, the current holder being Tameeka and the date of appointment of the current holder. It also prescribes the extended trading hours being from noon until 3am Monday to Saturday and notes a s 35(D) endorsement, approved on 3 December 1999. 4. The 2007 Act does not specifically provide licences for "nightclubs". There is a definition of "public entertainment venue", which includes a cinema, theatre and "premises in respect of which the primary business or activity is the provision of entertainment to members of the public by a person who is physically present on the premises and is actually providing the entertainment": s 4 of the 2007 Act. 5. The licence issued pursuant to the 2007 Act to Tameeka (Appeal Book pages 48-51) is in different terms to the licence issued under the 1982 Act. The licence records that the type of licence is a "liquor-on-premises licence", that the business type is "Other public entertainment venue, Restaurant" and that the licence start date was 3 December 1999 (Appeal Book, page 48). Of relevance to one of the charges is the recording of the manager, the details of which will be dealt with later, which records Mr Daniel Kelly as having started as manager on 8 March 2013. The other recording of relevance is the list of the authorisations, each of which is recorded to have commenced on 1 July 2008, being an extended trading authorisation and a primary service authorisation (see s 24(3) of the 2007 Act). 6. A number of conditions are imposed and recorded on the licence, including: "Reference: 230 Condition: The allocated number and name of the security personnel is to be entered into a book and made available to Police upon request. On Thursday, Friday and Saturday two (2) further licensed uniform security personnel are to be present at the entrance to the nightclub at all times during the operation of the nightclub. The foregoing condition commenced on 1 July 2008. The foregoing condition is relevant to counts 1, 2 and 8 dealt with the in the Local Court." (Appeal Book, page 50). 1. Relevant to Counts 4 and 5 in the Local Court is another condition, the reference number of which is 350, in the following terms: "The LA10 noise level emitted from the licensed premises shall not exceed the background noise level in any Octave Band Centre Frequency (31.5 HZ-8KHZ inclusive) by more than 5dB between 07:00am and 12:00 midnight at the boundary of any affected residents. The LA10 noise level emitted from the licensed premises shall not exceed the background noise level in any octave band centre frequency (31.5 HZ-8KHZ inclusive between 12.00 midnight and 07.00am at the boundary of any affected residents. Notwithstanding compliance with the above, the noise from the licensed premises shall not be audible within any habitable room in any residential premises between the hours of 12.00 midnight and 07.00am." 1. This condition also recorded as commenced on 1 July 2008. 2. Another condition that it is necessary to recite is Condition 3010, which is in the following terms: "On Thursday, Friday and Saturday the licensee is to engage two (2) licensed uniformed security personnel to regularly petrol from 01:00am and continue until the last patron has left the premises and the vicinity. The security personnel are to regularly patrol by foot only: East along the Town Green to the eastern side of Hay Street; South along Horton Street to Clarence Street; West along the Town Green to an area adjacent to the western end of Key North apartments. These patrols are to ensure that patrons from the premises do not loiter or linger in the area or cause nuisance or annoyance to the neighbourhood. All security to which an identifying number on the outside of the uniform when performing duty for the premises. The number is to be at least 6 centimetres by 8 centimetres (6 by 8 cms) in size. The number is to be allocated by the licensee or person in charge of the premises to the security personnel at the commencement of their shift." 1. This condition commenced on 31 March 2010. 2. In summary, in relation to the charges that were dismissed, the prosecuting authority alleged that there was a breach of the foregoing recited conditions. I note that the conditions recorded as having commenced on 1 July 2008 (the date of operation of the 2007 Act) were conditions that were imposed under the 1982 Act and continued in force. 3. Tameeka's defence was that the licence condition applied to the operation of a nightclub and, since Tameeka was not operating a nightclub, the licence did not apply to its operations in a way that required those conditions to be fulfilled. The learned Magistrate dismissed each of the charges in those categories. 4. The two charges that were the subject of a conviction related to the requirements under the 2007 Act to the appointment and supervision of a manager. The factual circumstances were that the manager resigned and another person acted as the manager, but Tameeka failed to appoint him as the manager and have the appointment recorded in the licensing conditions. 5. In essence, the appeal and cross-appeal relate to issues of construction of the legislation and of the conditions on the licence. First, do the requirements for security, as recited above, relate to the operations of Tameeka when it was, arguably, not operating as a nightclub (Counts 1, 2, 3, 4 and 8 of the charges)? Secondly, does the condition on noise levels require the "residential premises" to be a full-time residence and exclude a hotel used for accommodation (counts 4 and 5)? Thirdly, in relation to the cross-appeal, does the requirement for the appointment of a manager relate to the existence of a manager or does it relate to the recording of the manager's appointment. 6. It is necessary to provide further detail in relation to the third question. Section 4 of the 2007 Act defines a manager of a licenced premises to mean: "(a) a person appointed by the licensee under s 66 to manage the licensed premised, or (b) in the case of a registered club…the secretary of the registered club" 1. The records in evidence (Appeal Book, page 52) show that there was an approved manager from 1 December 2011 until 8 March 2013, being Andrew Bourke, with a further approved manager on or from 8 March 2013, Mr Daniel Kelly. In reality, Mr Bourke left his employment in or about May 2012 and a Mr Aylward performed the functions of manager from May 2012 until September/October 2012, at which time Mr Kelly commenced employment. The owners of the premises announced that Mr Kelly was to be the new manager of the premises and Mr Aylward left employment on 24 December 2012 (Appeal Book, page 141). 2. The application for approval of Mr Kelly as the manager was made on 8 January 2013, but it was not approved until 8 March 2013. The charges relating to the absence of an approved manager (or the absence of supervision thereof) relate to the period between 4pm 1 September 2012 and 4pm 12 March 2013 and between 4pm 8 December 2012 and 4pm 7 March 2013. Each charge is different. The first relates to the conduct of a business without an approved manager, the second to the failure to notify the Independent Liquor and Gaming Authority of the appointment of an approved manager. 3. As earlier stated, the issues of fact are uncontroversial, at least at the primary fact level. Further, as also earlier stated, the dismissal of the charges depends upon a construction of the licence, that is, whether the conditions apply to the operation conducted by Tameeka at the time that the offences were said to have occurred. The dismissal of the charges also depends upon the definition of residential premises and whether it includes a hotel with rooms occupied for the purpose of temporary or less than permanent accommodation. 4. The success of the cross-appeal depends on whether the charges were based upon the formality of the appointment and approval of a manager, as distinct from whether the appointed and approved manager operates as a manager. I shall now consider the principles on the right of appeal. Right of Appeal 1. The defendant appeals pursuant to the provisions of s 52 of the Crimes (Appeal and Review) Act 2001, which provides for an appeal as of right to the Court from a conviction or sentence, "but only on a ground that involves a question of law alone". 2. In different contexts the phrase "a question of law" will have different meanings and will involve different restrictions: Attorney General for the State of New South Wales v X [2000] NSWCA 199; (2000) 49 NSWLR 653; Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390; Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389; Krishna v DPP (NSW) [2007] NSWCCA 318. 3. Notwithstanding the slightly different context, I adopt the view of "question of law alone" that I took in Krishna, supra, (with which view Basten JA and Latham J agreed) and otherwise adopt the taxonomy in Collector of Customs v Pressure Tankers Pty Ltd and Pozzolanic Enterprises Pty Ltd [1993] FCA 322; (1993) 43 FCR 280 (cited with approval in Agfa-Gevaert, supra) and Australian Gaslight Co v Valuer-General (1940) 40 SR (NSW) 126. 4. In Williams v The Queen [1986] HCA 88; (1986) 161 CLR 278, the High Court discussed the meaning of this expression in the context of a provision in Tasmanian legislation (Criminal Code 1924 (Tas)) allowing the Attorney-General to seek leave to appeal an acquittal, which leave was granted by the Court of Criminal Appeal. The High Court said: 5. "In Reg v Jenkins , Crisp J correctly pointed out that a 'question of law alone' does not include a question of mixed fact and law and went on to say that 'there would seem to be great difficulties in the way of entertaining an appeal by the Crown against the exercise of a judicial discretion where the question involved is not so much the existence of a discretion but the question of its exercise in relation to the facts of a particular case'." (Per Gibbs CJ at 287 with whom Wilson and Dawson JJ agreed on this point) 6. In the same judgment, Mason and Brennan JJ said: 7. "An appeal lies on 'a question of law alone'. An appeal does not lie on a ground which involves a mixed question of fact and law: that is a ground available to a person convicted of an offence (s 401(1)(b)(ii)) but not to the Attorney-General. An appeal on the ground of the wrongful rejection of evidence by a trial judge in the exercise of a discretion is not an appeal on a question of law alone. The manner in which a discretion is exercised depends upon the judge's appreciation of all the facts of the case, so that an error of law which leads the judge wrongly to hold that he has a discretion is not the only factor which contributes to his decision to reject the evidence." (Williams , supra, at 301-302) 8. While there are many judgments that delineate between questions of fact and questions of law, the analysis usually commences with that expressed by Sir Frederick Jordan CJ in Australian Gas Light Company v Valuer-General (1940) 40 SR (NSW) 126. At page 82, Jordan CJ said: 9. "Before proceeding to the questions which have been submitted, it is necessary to keep in mind that this Court has jurisdiction to determine only question of law and only such questions of law as are submitted to it. In cases in which an appellate tribunal has jurisdiction to determine only questions of law, the following rules appear to be established by the authorities: 10. (1) The question what is the meaning of an ordinary English word or phrase as used in the Statute is one of fact not of law. This question is to be resolved by the relevant tribunal itself, by considering the word in its context with the assistance of dictionaries and other books, and not by expert evidence; although evidence is receivable as to the meaning of technical terms; and the meaning of a technical legal term is a question of law. 11. (2) The question whether a particular set of facts comes within the description of such a word or phrase [ie, an ordinary English word or phrase] is one of fact. 12. (3) A finding of fact by a tribunal of fact cannot be disturbed if the facts inferred by the tribunal, upon which the finding is based, are capable of supporting its finding, and there is evidence capable of supporting its inferences. 13. (4) Such a finding can be disturbed only (a) if there is no evidence to support its inferences, or (b) if the facts inferred by it and supported by evidence are incapable of justifying the finding of fact based upon those inferences, or (c) if it has misdirected itself in law. Thus, if the facts inferred by the tribunal from the evidence before it are necessarily within the description of a word or phrase in a statute or necessarily outside that description, a contrary decision is wrong in law. If, however, the facts so inferred are capable of being regarded as either within or without the description, according to the relative significance attached to them, a decision either way by a tribunal of fact cannot be disturbed by a superior Court which can determine only questions of law." (Citations omitted.) 14. The difficulty for practitioners and the Court is that where it is alleged that there is no evidence of an element of an offence, that is a question of law alone and does not require leave to appeal. Where, however, there is some evidence of the element, but the evidence is unbelievable, improbable, against the weight of the totality of evidence or so slender as not to satisfy the criminal onus, the question is of fact (or at least mixed fact and law). 15. As it was stated in R v R (1989) 44 A Crim R 404: 16. "The distinction between the existence of evidence and the sufficiency or reliability of that evidence provides convenient categories for most purposes of analysis, but in truth that distinction is not absolutely rigorous. This does not invalidate the distinction. It simply means that it is to be applied with due regard to its limitations; what is involved is a matter of judgment rather than calculation. That, I consider, is what the Court of Appeal in England had in mind in R v Galbraith when reference was made to 'borderline cases' which can 'safely be left to the discretion of the judge'. The word 'discretion' was not being used in its widest sense." (Per Gleeson CJ at 84, Maxwell and Wood JJ agreeing) 17. In any event, given the issues here raised, if leave to appeal were necessary, I would grant it. It is necessary to now consider the legislation in depth. Legislation 1. As earlier stated, the original liquor licence was granted pursuant to the provisions of the 1982 Act. The 1982 Act was repealed when the 2007 Act took effect. The 2007 Act was assented to on 13 December 2007 and commenced on 1 July 2008. 2. The 1982 Act provided for the grant of a licence, namely and relevantly, a "nightclub licence, being a licence that, subject to this Act and to the conditions of the licence, authorises the licensee to sell liquor on the licensed premises, but only for consumption on those premises": s 18 of the 1982 Act. 3. The foregoing definition is in similar terms to the definition of an "on-licence", another category of license that may have been granted by the terms of s 18(4) of the 1982 Act and that could be granted for certain defined premises, which included a restaurant. Other provisions related to an on-licence at a function, which for present purposes are irrelevant. 4. The definitions in the 1982 Act, as is obvious, were replaced by the provisions of the 2007 Act. It is necessary to deal with some of the definitions and terms of the 2007 Act. I have already extracted the relevant parts of the definition of "manager" in the 2007 Act. The term "premises" is defined broadly and would include the premises on which the operations of Tameeka were conducted. The term "public entertainment venue" was defined in s 4 of the 2007 Act to mean "in any of the following: "(a) A cinema; A theatre; Premises in respect of which the primary business or activity is the provision of entertainment to members of the public by a person who is physically present on the premises and is actually providing the entertainment." 1. The 2007 Act has other relevant provisions which state the types of licences that may be granted. By s 10 of the 2007 Act, the types of licences that may be granted and held include the following: a hotel licence; a club licence; and an on-premises licence. It should be noted that a "club" is defined as premises to which "a club licence relates". It is not suggested that Tameeka was conducting a club or conducted premises to which a club licence related (see s 18 of the 2007 Act and following). 2. By s 11(2) of the 2007 Act, the licensee must comply with any conditions to which the licence is subject and failure to do so constitutes an offence, the penalty for which is set out in the provision. 3. Relevantly, the type of licence under which Tameeka operated was an "on-premises licence", to which the provisions of Div 4 of Part 3 of the 2007 Act apply. By s 22 of the 2007 Act, a primary purpose test is applied to the effect that it is prohibited to grant an on-premises licence to a business in which the primary purpose is the sale or supply of liquor. 4. By s 23(1) of the 2007 Act, a requirement is imposed that an on-premises licence must specify the kind of business or activity carried out on the licensed premises or the kind of licensed premises to which the licence relates. By s 23(2) of the 2007 Act, an on-premises licence may be granted in respect of a public entertainment venue. 5. Section 24(1) of the 2007 Act limits the operation of an on-premises licence to circumstances where liquor is sold or supplied for consumption on the licensed premises with or ancillary to another product or service that is sold, supplied or provided to people on the premises. 6. Section 24(3) of the 2007 Act allows the Authority, on the application of the licensee, to exempt an operation from the condition that the alcohol be provided with or ancillary to another product. The provision is in the following terms: "Authorisation to sell or supply liquor without other product or service Authorisation to sell or supply liquor without other product or service Despite subsection (1), the Authority may, on application by the holder of an on-premises licence, endorse the licence with an authorisation that allows liquor to be sold or supplied for consumption on the licensed premises otherwise than with, or ancillary to, the other product or service referred to in that subsection." 1. While dealing with the provisions of the 2007 Act, it is appropriate to recite those sections that are relevant to the appointment of a manager, which are in the following terms: "s 66 Appointment of Managers A licensee (other than a registered club); Must appoint a manager approved by the Authority under this Division for the licensed premises, and Must not cause or permit the conduct of business under the licence for a period of more than 28 days except under the personal supervision and management of a person so approved. Maximum penalty: 50 penalty units. A registered club that has more than one set of of premises: Must appoint a different manager, approved by the Authority under this Division, for each set of premises of the club at which the secretary of the club is not in attendance, and Must not cause or permit the conduct of business on any such premises for a period of more than 2 months except under the management of a person so approved. Maximum penalty: 50 penalty units. … s 68 Approval of persons to manage licensed premises An application for the Authority's approval of a person to manage licensed premises must be in the form and manner approved by the Authority and be accompanied by the fee prescribed by the regulations. The Authority may grant any such application or refuse to grant the application. … s 69 Notice of appointments A licensee must give the Authority notice of the appointment of a person as manager of licensed premises. Maximum penalty: 20 penalty units. The appointment of a manager is not in force until the licensee has given the Authority notice of the appointment as required by this section, accompanied by the declaration referred to in subsection (5)(b) The appointment of a manager is revoked by the licensee giving notice under this section of the appointment of a new manager or by the licensee or manager giving the Authority notice of the manager's ceasing to act as manager." 1. Other legislative provisions that are relevant to the consideration of the appeal and cross-appeal derive from the savings and transitional provisions promulgated at the time of the 2007 Act. In these savings and transitional provisions, a reference to the "former Act" is defined to mean the 1982 Act. Clause 3 of Schedule 1 of the Savings and Transitional provisions to the 2007 Act is, relevantly, in the following terms: "General Provisions An existing licence is taken to be a licence of the corresponding kind (as determined in accordance with this Division) in force under this Act. Any such existing licence may be dealt with under, and is otherwise subject to, the provisions of this Act and the regulations. Subject to the regulations, an existing licence is not subject to the conditions or restrictions to which the licence was subject under the former Act other than a condition or restriction imposed by the former Court or former Board specifically in relation to the existing licence or the licensed premises to which it relates. Any such condition or restriction imposed by the former Court or the former Board in relation to an existing licence or the licensed premises to which it relates is taken to be a condition or restriction imposed by the Authority under this Act (and accordingly a reference to a former Court or former Board in or in relation to any such condition or restriction is to be construed as a reference to the Authority). The Authority has such powers as are necessary to continue to give effect to any such condition or restriction and may vary or revoke the condition or restriction in accordance with this Act." 1. Clause 5 of Schedule 1 of the savings and transitional provisions of the 2007 Act states, relevantly, the following: "Existing Nightclub Licence The corresponding licence for an existing nightclub is: In the case where the licensed premises were only allowed to trade after 8pm under the former Act – an on-premises that relates to a public entertainment venue, or In any other case – an on-premises licence that relates to a public entertainment venue and a restaurant." 1. The foregoing are sufficient extracts of the legislative provisions to enable an understanding of the reasons that follow. However, the legislative instruments are read in their entirety and must be construed in that context. Applicable Principles of Statutory Construction 1. The principles of statutory construction are well settled. They involve a process of construing a statute in a manner that is consistent with the language and purpose of all of the provisions of the statute, viewed as whole, on the prima facie basis that its provisions are intended to give effect to harmonious goals: Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28: (1998) 194 CLR 345 at 381 (per McHugh, Gummow, Kirby and Hayne JJ). It is the foregoing principle, that is, the purposive approach to statutory construction, that overwhelming governs the manner of the interpretation of the legislative instruments before the Court on this appeal. Consideration 1. It is necessary to reiterate the absence of substantial dispute as to the factual circumstances upon which the learned Magistrate was required to adjudicate. The evidence before the Magistrate consisted, largely, of written statements which were adduced mostly without objection, including photographs of the premises, an application for the approval of an appointment of a manager and the approval, the relevant licensing conditions and the extant licence. Each was marked as an Exhibit and forms part of the evidence before the Court on appeal. 2. The proceeding occurred over two days and oral evidence was adduced and witnesses were cross-examined. Oral evidence was adduced from Senior Constable Dean McGuinness, Ricky Aylward, Jason McNamara (Master Licence Holder of the security firm), Ryan Frost (Security officer), Mathew Allison (Security Office) and Sergeant John Lawrie (misspelt in transcript as Laurie). Objection was taken to some of the written statements, but otherwise, as earlier stated, the evidence was largely uncontroversial. 3. The evidence establishes that on 8 December 2012 the following activities were conducted on the premises: "a) A male person was providing entertainment by throwing fire sticks in the air and catching them (Appeal Book, pages 38 and 73) b) About 130 to 150 patrons were in attendance in the outdoor entrance area to the premises of which 15 persons (approximately) were dancing near a disc jockey at the eastern end of the outdoor area (Appeal Book, pages 39 and 130); c) A female performer, paid by Tameeka, was dancing at the foot of steps leading to the verandah area of the premises just outside the bar service area. The performer was paid to provide such entertainment (Appeal Book, pages 39-40a and 73-74); d) The activities at the premises were, at least in part, the result of advertisements promoting free buckets of shots (alcoholic drinks) for groups of certain minimum number and advertised "mushroom shaped shot containers" (Appeal Book, page 39); e) On 8 December, according to advertisements prior thereto, the premises were holding a "resurrection party" advertised on Facebook and other social media (Appeal Book, pages 39 and 72); f) A person was entertaining guests playing on the bongo drums and there was a disc jockey (Appeal Book, page 131); g) No persons were partaking of a meal at the time to which the details of the charges related and the kitchen area was not operating (Appeal Book, page 74); h) The entertainment was not provided through a staged area but on the floor of the premises (Appeal Book, page 131). 1. On 29 December 2012, similar activities were occurring. On that occasion there was an event called "a full moon party" at which about 20 people were dancing, live music was provided through amplified speakers as well as a disc jockey and there were approximately 150 patrons on the premises at the time (i.e. after 11.30pm, the kitchen having closed at 9pm). 2. I shall first deal with the charges relating to the security officers. Conditions on the liquor licence, recited above, require the engagement of two licensed uniform personnel on Thursday, Friday and Saturday to patrol regularly from 1am and to continue to do so until the last patron that has left the premises (Condition 3010). Count 3 alleges a breach of that condition. 3. Charges 1, 2 and 8 allege a breach of Condition 203, namely, that on Thursday, Friday and Saturday there be two further licensed uniform security personnel present at the entrance of the club at all times during the operation of the nightclub. The security personnel's details are to be entered into a book and made available to police upon their request. The aspect of the condition relating to the entry of the security personnel's details in a book was not pressed in the Local Court. 4. The learned Magistrate determined that the condition did not apply to Tameeka because the condition related to "the entrance to the nightclub" and not to a restaurant and entertainment area, such as the defendant's premises. As earlier stated, the appellant appeals that decision and Tameeka's answer relies, as an alternative if the conditions apply, on the facts, which Tameeka alleges, that otherwise do not prove, beyond reasonable doubt, the offence in question. 5. There is no doubt that Condition 203 was applicable "during the terms of the operation of the nightclub". There is little doubt that the defendant's premises conducted a restaurant and were authorised to sell or supply liquor otherwise than with or ancillary to another product or service, namely, the restaurant. There is no doubt that the premises were entitled to sell and supply liquor even though the restaurant had ceased to operate at the hour in question. Tameeka relied upon the proposition that a restaurant is not a "nightclub" and that, therefore, the condition never operated such as to require the licensee to engage additional security offices. 6. One difficulty with that argument is the terms of clause 5 of the savings and transitional provision, recited above. Under that clause, the corresponding licence for an existing nightclub licence is an "on premises licence that relates to a public entertainment venue", which means (or, more accurately, includes with two other kinds of venues) premises in which the primary business activity is the provision of entertainment to members of the public (see recited definition above). 7. The licence granted to Tameeka is an on-premises licence and the business type is "Other public entertainment venue, Restaurant". In other words, the terms of the licence and the classification of the licence granted is for both a restaurant and other public entertainment venue. The fact, and it is the fact, that the licensee conducts a restaurant in which the primary purpose is the business of preparing meals for the public (see the 2007 Act, s 4) does not resolve the issue. 8. The terms of the licence relate to two distinct primary purposes or businesses. One is preparing and serving meals to the public and the other is the provision of live entertainment. The evidence establishes that the licensee was not conducting either a cinema or a theatre and, therefore, the only basis upon which a public entertainment venue business was being conducted was for the business activity of providing live entertainment. Live entertainment was provided, at least, on occasions that render the charges, assuming otherwise applicable, relevant. 9. The parties have not dealt with the question that seems to underpin the submissions in the Local Court and on appeal, namely, whether the 2007 Act allows for the grant of a licence in circumstances where there are two primary purposes, in which each purpose is the basis for the grant of a licence. This is understandable given the terms of Clause 5(1)(b) of the Savings and Transitional Provisions, Schedule 1, to the 2007 Act. 10. Condition 203, the breach of which gives rise to Counts 1, 2 and 8, requires additional security personnel at the entrance (to the nightclub) during the operation of the "nightclub". As previously stated, the licence is not a "nightclub licence". 11. The original nightclub licence granted under the 1982 Act became a licence of the corresponding kind in force under the 2007 Act, pursuant to the savings and transitional provisions. A licence of the corresponding kind to a nightclub licence is an on-premises licence that relates to a public entertainment venue. If the nightclub licence granted under the 1982 Act were inappropriate or invalid, and were not capable of transferring to the 2007 Act, there would be no licence in relation to the activities "or some of the activities" undertaken by Tameeka. 12. It seems to me, bearing in mind the principles of construction to which reference has been made, that the legislative intention is to specify corresponding licences to those granted under the 1982 Act and to allow current licences (i.e. licences granted under the 1982 Act) to continue in their corresponding form under the 2007 Act. In this case, the nightclub licence granted under the 1982 Act on 3 December 1999 became an on-premises licence that relates to a public entertainment venue and restaurant (savings and transitional provisions clause 5(1)(b)). A nightclub is, in its ordinary meaning, "a club that is open at night and provides refreshment and entertainment" (The Australian Concise Dictionary, 4th Edition). 13. There are two approaches, each of which is inconsistent with the approach taken by the learned Magistrate. First, the instrument, being the licence issued under the 2007 Act in which the term "Other on premises licence, Restaurant" is contained, should be given the same meaning as those words bear in the statute under which the instrument is made or continued, that is, the 2007 Act (s 11 Interpretation Act 1987). As a consequence, the condition, insofar as it relates to a nightclub, also applies to other on-premises licence relating to a public entertainment venue and restaurant at least to the extent that the operation is for a "public entertainment venue". If that were the case, at least on the basis upon which the learned Magistrate decided the question, the charges should not have been dismissed. 14. The second approach, which has no different effect, is to treat the term "nightclub" in the condition of the licence as having its ordinary meaning. In that case, with the same effect, the evidence establishes that on the relevant dates and at the relevant times (well after the closure of the kitchen of the restaurant) live entertainment was being performed and the premises were being used as a "nightclub" as ordinarily defined. 15. In my view, the proper approach is the former, but it matters little in the circumstances of this case. In either case, the Magistrate erred in determining that Condition 203 did not operate on the premises at the times and dates alleged. The condition operated at least after the "closure of the kitchen" or while live entertainment was offered: s 4 of the 2007 Act paragraph (c) definition of "public entertainment venue". 16. There is no issue that if Condition 203 applied to the premises, Tameeka was in breach of that condition, as the additional security personnel were not provided. 17. In relation to Count 3, which alleges a breach of Condition 3010, recited above, the terms of the condition do not expressly refer to a nightclub. Nevertheless, the alleged breach is that a patrolling officer, required under the condition to patrol the surrounding neighbourhood, was not engaged so to do. 18. Condition 3010 applies to the premises in question. Nevertheless, the condition required that the additional patrol occur until the last patron has left the premises. There was no evidence that, at the relevant time of the conduct said to give rise to the offence, there were any patrons remaining on the premises. Nor was there evidence that there was no patrol between 1am and 1.40am, as would be required under the condition. 19. A patrol of the surrounding environment necessarily implies that a security officer will not be everywhere in the surrounding environment at all times. On the evidence before the Local Court, the appellant had not proved, beyond reasonable doubt, that a security guard was not patrolling the surrounding described area between 1am and 1.40am, or at least until the last patron had left Tameeka's premises. As a consequence, the appeal against the dismissal of this charge is dismissed. 20. I deal then with the charges relating to the impact of the noise level on residential premises. Essentially, although not expressly, Tameeka's submissions rely upon a purposive approach to the meaning of the term "residential premises". It is said, in essence, that residential premises means premises used for permanent or semi-permanent accommodation other than premises that are themselves licensed. Hotel accommodation, relevantly, Ridge's hotel accommodation, as submitted by the defendant, is not included in the term "residential premise" in the noise conditions imposed on the licensee. 21. The difficulty with such a submission is manifest. Leaving aside the particular circumstances that pertain to Port Macquarie, there are many apartment buildings that contain licensed premises at some level of the building. The licence in relation to those premises may and probably does have conditions that limit noise levels. The fact, if it were the fact, that premises are licensed does not impact upon whether adjacent premises or the same premises are also "residential premises". 22. In the instant case, the Ridge's premises had been used by one person for permanent or semi-permanent accommodation over a period of two years continuously. It seems to me that the purpose of the condition ought not to be confined to houses, flats or apartments. The purpose of the condition is to allow persons who are residing, whether temporarily or permanently, a period of respite during which, presumably, they would be able to sleep. Whether the premises are "residential premises" depends upon the fact as to whether or not they are premises that are residences. Hotels used for accommodation are within that definition if, as a matter of fact, rooms are let to allow people to reside and people are actually residing. That is the circumstance of the current situation. 23. The condition does not apply to commercial premises such as shops, offices and the like. Nevertheless, there is no reason, within the ordinary meaning of the term residential premises, to exclude premises that are intended to be used and are in fact being used as a residence. 24. To the extent that Ridge's at Port Macquarie operated as licensed premises, so much of the submissions of Tameeka are accurate. Its licence was an on-premises licence. Nevertheless, its licence conditions are endorsed to include 99 hotel suites and 28 serviced suites (Appeal Book, page 94) and, as a consequence, the Ridge's Port Macquarie have a number of accommodation levels that are utilised by short term and long term residents (Appeal Book, pages 165 and 68-87). 25. For the foregoing reason, Condition 350 applies to noise levels that pertain to the Ridge's Port Macquarie complex or, more accurately, the residential units therein and the learned Magistrate was incorrect in determining that Counts 4 and 5 were not applicable to those premises. This was the basis on which the learned Magistrate dismissed Counts 4 and 5. In that regard, the appeal should be allowed. 26. Lastly, I deal with the manager issues. The evidence establishes that the person appointed and approved as the manager resigned about May 2012. Section 66 of the 2007 Act requires a licensee to appoint a manager approved by the Authority and prohibits a licensee from causing or permitting the conduct of a business under the licence for a period of more than 28 days, except under the personal supervision and management of a person so approved. 27. The latter aspect, contained in s 66(1)(b) of the 2007 Act, requires conduct and personal supervision by the approved manager. To comply with the provisions of s 66(1)(b) of the 2007 Act, it is insufficient for the formality of an appointment to have occurred, but for the manager not to supervise personally or to manage personally the conduct of the business. 28. The evidence establishes that the business was conducted otherwise than under the personal supervision and management of a person appointed in accordance with the 2007 Act and approved by the Authority. To that extent, the cross-appeal ought to be dismissed. That matter relates to Count 6 and for the period 1 September 2012 until 12 March 2013, although the appointment of the approved manager occurred on 8 January 2013 and the conduct and offence is so confined. 29. On their face the dates in question are not elements of the charge, but rather a time during which the period of more than 28 days occurred. The evidence establishes that there was a period of more than 28 days between 1 September 2012 and 8 March 2013 or, see below, 8 January 2013, during which the business was conducted otherwise than under the personal supervision and management of an approved manager. 30. Tameeka relied upon the summary terms of the Court Attendance Notice, without regard to the provisions of the section under which it was charged. The offence is charged, according to the Court Attendance Notice, under s 66(1)(b), which deals not with the existence or otherwise of a person appointed and approved as manager, but, rather, with the conduct of a business in the absence of supervision and management by such a person. 31. As is made clear by the terms of the Court Attendance Notice, the charge in Count 6 relates to s 66(1)(b), not, as alleged by Tameeka, under s 66(1)(a) of the 2007 Act. The Local Court did not find that the business had been conducted "without an approved manager". Rather, it found, consistent with the terms of the Court Attendance Notice, that the business had been conducted otherwise than under the personal supervision and management of the approved manager. The cross-appeal as to Count 6 must be dismissed. 32. Finally, I deal with the cross-appeal against the conviction against Count 7. The evidence before the Court (Appeal Book, page 53) was that the application for the approval of an appointed manager was made on 8 January 2013, that is, between 8 December 2012 and 7 March 2013. The fact, which I accept, that the Authority did not approve the appointment until 8 March 2013 does not give rise to an offence, pursuant to the terms of s 69(1) of the 2007 Act, that the licensee had not given the Authority notice of the appointment of a person as a manager of the licenced premises. 33. It must be said that there is somewhat of a lacuna in the legislative provisions regarding the offence of failing to notify the Authority of the appointment of a manager, since the appointment of a manager is said not to be in force until notice of the appointment, accompanied by the appropriate declaration, has been given to the Authority (s 69(2) of the 2007 Act) and the appointment of a manager previously recorded is revoked by the giving of a notice of the appointment of a new manager. 34. The notice was given on 8 January 2013 (Appeal Book, page 53). That notice was received and in accordance with s 69(3) of the 2007 Act, the appointment of the previous manager was revoked. 35. However, more importantly, pursuant to the terms of s 69(2) of the 2007 Act, the appointment of Mr Kelly took effect on and from 8 January 2013. It has not been proved that between 8 December 2012 and 7 March 2013 there was a failure to notify the Authority of the appointment of a manager. At no stage during that time was there not a manager approved. The relevant offence relating to the resignation of the earlier manager relates to that which is found in Count 6 and there is no evidence that would, on its proper construction, allow for a conviction on Count 7. 36. For the foregoing reasons, the Court makes the following orders: 1. Appeal allowed in part; 2. Cross-appeal allowed in part; 3. The appeal by Sergeant John Lawrie against the dismissal of the charges in Counts 1, 2, and 8 be upheld; 4. The appeal against the dismissal of the charge in Count 3 be dismissed; 5. The appeal against the dismissal of the charges in relation to Counts 4 and 5 be upheld; 6. The cross-appeal in relation to the conviction of Tameeka Pty Ltd against conviction in relation to Count 7 be upheld; 7. The cross-appeal in relation to the conviction in relation to Count 6 be dismissed; 8. To the extent that the appeal and/or cross-appeal has been upheld, the decision of the learned Magistrate be set aside; 9. The Court will separately hear the parties on the question of costs, if any, and the form of any formal order; 10. Proceedings remitted to the Magistrate in the Local Court of New South Wales to be dealt with in accordance with law. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 October 2015