Wright v The Commissioner of Police [2007] NSWSC 1412

Supreme Court New South Wales

Medium Neutral Citation: Wright v The Commissioner of Police [2007] NSWSC 1412 Hearing dates: 30 November 2007 Decision date: 07 December 2007 Jurisdiction: Equity Before: Berman AJ Decision: The finding by the Licensing Court that the ground for complaint under section 68(1)(1d) Liquor Act is made out is quashed. The matter remitted to the Licensing Court for determination in accordance with this decision. The Defendant is to pay the costs of the Plaintiff. Catchwords: Appeal - Public interest - Vicarious Liability - Liquor harm minimisation - Procedural fairness Legislation Cited: Liquor Act 1982 The Liquor and Registered Clubs Legislation Amendment Act 1996 Cases Cited: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 RTA v Baldock [2007] NSWCCA 35 Deatons Pty Ltd v Flew (1949 79 CLR 370 Environment Protection Authority v Sydney Water Corporation Ltd (1997) 98 A Crim R 481 R v VHP unreported Court of Criminal Appeal NSW 7 July 1997 Category: Principal judgment Parties: Jamien Charles Wright The Commissioner of Police Representation: Counsel: A. Scotting - Appellant

Solicitors: Joe Ryan Solicitor - Appellant Crown Solicitor - Respondent File Number(s): SC 010900/07 Decision under appeal Court or tribunal: Licensing Court of NSW Date of Decision: 24 January 2007

Judgment

Facts 1. On 23 October 2003, Mr Lee Madden attended a hotel called "The Sports Inn" at Alexandria to meet some friends including Mr Damien Parsons. Mr Madden was sober when he arrived at the hotel at about 6pm. He had been at a funeral earlier that day. The bar of the Sports Inn was staffed by Mr Michael Bourke, a good friend of Mr Madden, and another employee. There were approximately 30 people in the hotel during the evening. The licensee Mr Wright, the Plaintiff in this case, was on the premises that evening but was never in the bar and played no active part in the supply of alcohol to Mr Madden. 2. Mr Madden started by drinking schooners of full strength Victoria Bitter beer. Mr Madden made between 5 or 6 trips to the bar to purchase schooners of beer. It appears Mr Parsons paid for the beer for Mr Madden because Mr Madden did not have any money. 3. Later in the evening Mr Bourke, the bartender, agreed to lend Mr Madden $200. The loan took the form of a "bar tab" whereby Mr Bourke placed $200 of his own money into the till of the bar and began recording the value of the drinks provided to Mr Madden. 4. Mr Bourke later calculated that Mr Madden had spent around $170 on drinks during the period of the bar tab. 5. At some point in the evening, Mr Madden switched from VB and began purchasing trays of "shots". These are intended to be consumed rapidly, with the drinker usually swallowing all the contents of the glass in one go. Mr Madden was served at least three trays of shots, at least two of which contained the spirit Black Sambucca. It is also possible that a tray of shots of Butterscotch Schnapps shots was purchased. 6. It is not clear how many shots were on each tray. But after the first tray of shots was consumed, the bar did not have enough shot glasses to fill another tray. Subsequent trays had a combination of middy glasses containing 30 ml shots and shot glasses. Each tray was full, either with shot glasses alone or a combination of shot and middy glasses. 7. After returning to his friends with each of the three trays Mr Madden gave some shots away to his friends and other patrons at the bar but he personally drank a number of the shots. 8. Mr Madden first began displaying obvious signs of intoxication at approximately 10:00 pm. His behaviour included raising a small table above his head and throwing his mobile phone to the ground, breaking it (the "table incident"). Mr Bourke spoke to Mr Madden at this point and encouraged him to "call it a night", telling him he had had enough to drink. 9. Shortly afterwards, Mr Madden and Mr Parsons left the hotel. Despite attempts to dissuade him from driving, Mr Madden drove away from the hotel with Mr Parsons in the passenger seat. He did not turn his headlights on and was seen to immediately go through a red light. Shortly after, Mr Madden crashed his car into a tree and was killed. At the time of his death, Mr Madden had a blood alcohol reading of 0.226g/100ml.