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. Action is Taken Against Mr Wright The Licensee 1. Police commenced disciplinary action against Mr Wright under s 67 Liquor Act (further reference to this legislation by section number will omit the name of the Act). 2. A document headed "Complaint and Summons" was prepared and served upon the Plaintiff. Section 67(3)(a) specifies that a summons such as that served on the Plaintiff "shall specify the grounds of the complaint on which it issued". Section 68 lists the grounds on which a complaint may be made. They include: s 68(1)(d1) which provides that complaint may be made where: "the licensee or manager has engaged in conduct or activities that are likely to encourage misuse or abuse of liquor (such as binge drinking or excessive consumption)" and s 68(1)(h) which provides that complaint can be made where: "the licence is considered not to have been exercised in the public interest". 1. The person who prepared the Complaint adopted those words and complained that: "1. the licensee has engaged in conduct or activities that are likely to encourage the misuse or abuse of liquor (such as binge drinking or excessive consumption) in that on the 23rd October 2003 a patron was served excessive amounts of shot-sized spirits on more than one occasion". And also: "2. the licensee has not been exercised in the public interest in that on the 23rd October 2003 a patron, Lee MADDEN, was served an excessive amount of alcohol at the licensed premises and was subsequently fatally injured in a motor vehicle accident after leaving the licensed premises". 1. Underneath each of those grounds of complaint there appeared identical words as follows: "Further Particulars". "During the early evening hotel staff were observed to serve a patron, Lee MADDEN excessive amounts of shot size spirits on more than one occasion. Madden was observed to consume numerous amounts of schooners of VB beer and numerous amounts of shot size spirit drinks. Madden was observed over a period of 4 to 5 hours to become seriously intoxicated as a result of his consumption of intoxicating liquor at the licensed premises. At no time did hotel staff cease service to the patron. The patron continued to order alcoholic beverages on credit whilst he appeared to be seriously intoxicated. The patron was then seen to leave the licensed premises and enter his motor vehicle and drive off. Later that evening the vehicle driven by Lee MADDEN collided with another vehicle and then continued on and collided with a large tree on the side of the road, killing Madden". 1. Evidence was heard before the Licensing Court over a number of days before the Magistrate gave his decision on 24 January 2007. He found a number of matters which I summarise: 1. Mr Madden was obviously intoxicated to all witnesses by the time of the table incident. 2. He did not show obvious signs of intoxication until the table incident. 3. At least three trays of shots were served. 4. At least two of those trays contained shots of Black Sambucca. 5. Each tray was full. 6. Mr Madden had considerably more than one shot from each tray 7. Mr Bourke did not monitor the consumption of the trays of shots. 8. Mr Bourke was clearly not exercising careful supervision which was required when selling a patron a tray of shots. 1. Therefore he found each of the Grounds of Complaint made out in that: 1. The licensee engaged in conduct contrary to s 68 (1)(d1) by the supply of three trays of shots to Madden without proper supervision as to how they were consumed resulting in excessive consumption of shots by Madden 2. It was not in the public interest for Madden to be served the amount of alcohol that he was. The supply of the trays of shots by Bourke when it was known that Madden had already consumed a considerable amount of beer was excessive and his actions were contrary to public interest. 1. After hearing submissions on penalty he decided that the Plaintiff should be ordered to pay a monetary penalty of $12,000. The Plaintiff now appeals to this Court. The Appeal to this Court 1. S 146 provides that a person aggrieved by an adjudication of the Licensing Court may appeal to this Court on a question of law. The Plaintiff appeals on three grounds: He firstly says that he was denied procedural fairness in that the Magistrate has found the two grounds of complaint established on a different basis from that which he understood that he had to meet. He next complains that the Magistrate erred in law by misinterpreting what needed to be proved before the ground under s 68 (1)(d1) could be established. And thirdly he complains that the Magistrate failed to take into account a number of matters in determining the appropriate penalty. 2. I am satisfied that the Plaintiff's second grounds of appeal is made out and that the appropriate order is to remit the matter to the Licensing Court for determination in accordance with my decision. I will explain why I have reached that conclusion. I will also explain why the first ground of appeal is not made out and why it is not necessary for me to deal with the ground regarding penalty. The Second Ground of Appeal 1. The only issue raised under the second ground of appeal concerns the first ground of complaint set out at [12] above, and more particularly whether the Plaintiff can be held to be vicariously liable for the actions of Mr Bourke. 2. The Defendant accepts that the evidence establishes that the Plaintiff did not personally engage in any of the conduct complained of. The question therefore is whether grounds for complaint under s 68 (1)(d1) can be made out where the licensee has not engaged in the conduct complained of. The issue is one of statutory construction. The Construction of the Statute 1. The parties agreed that there was no authority concerning the correct construction of s 68(1)(d1). I will therefore approach this question of statutory construction in the following way. I will start with the natural meaning of the words found in s 68(1)(d1). I will then consider whether there is anything to suggest that the words should or should not be given their natural meaning. 2. For reasons which I will explain I consider that there is no reason not to give the words their natural meaning and there are reasons which indeed support the conclusion that the words mean exactly what they say. The Natural Meaning of the Words 1. Section 68 relevantly provides: 68 Grounds for complaint (1) The grounds upon which a complaint may be made … in relation to a licensee or a manager of licensed premises are: … (d1) that the licensee or manager has engaged in conduct or activities that are likely to encourage misuse or abuse of liquor (such as binge drinking or excessive consumption), 1. (The words "or a manager" can be put to one side as it is agreed that they are of no application to the position of either the Plaintiff or Mr Bourke on the relevant evening.) 2. On the face of it, the words "that the licensee… has engaged in conduct or activities" provide clearly that it is the activities and conduct of the licensee which should be examined, not the activities or conduct of anyone else such as the licensee's employees. I can see no possible ambiguity either – it is clear that in considering whether a ground of complaint has been made out, it is what the licensee did which is to be considered. 3. It was suggested on behalf of the Defendant that the concept of vicarious liability could be implied into s 68(1)(d1) and to that extent it was suggested that an ambiguity arose. I consider that the words are clear enough to allow me to draw the conclusion that a licensee does not bear vicarious liability for the actions of his or her employees, but even if I am wrong, and even if the words are not as clear as I think they are, then other aids to the construction of the legislation point strongly to the conclusion that the words should be given their natural meaning and that the concept of vicarious liability is not included within them. 4. The most important consideration pointing to this conclusion is a comparison between s 68(1)(d1) and the immediately following provision s 68(1)(d2), which for ease of reference, and to show the relationship between the provisions, I will set out in its context (even if that involves the repetition of what I have already extracted above): 68 Grounds for complaint (1) The grounds upon which a complaint may be made … in relation to a licensee or a manager of licensed premises are: … (d1) that the licensee or manager has engaged in conduct or activities that are likely to encourage misuse or abuse of liquor (such as binge drinking or excessive consumption), (d2) that intoxicated persons have frequently been on the licensed premises or have frequently been seen to leave those premises, 1. Had Parliament wished to make the Licensee responsible for the actions of others which are likely to encourage the misuse or abuse of liquor then s 68(1)(d1) would have been drafted similarly to s 68(1)(d2). That comparison points even more strongly in favour of the natural meaning of the words in s 68(1)(d1) when it is remembered that s 68(1)(d1) and s 68(1)(d2) were inserted into the Liquor Act by the same amending Act, the Liquor and Registered Clubs Legislation Amendment Act 1996. 2. An examination of s 68 in its entirety is also instructive. Some grounds for complaint refer to matters which relate to the licence (for example s 68(1)(d): "that the continuation of the license is not in the public interest") while some clearly refer to the licensee personally (for example s 68(1)(e): "that the licensee is not a fit and proper person to be the holder of a licence") and others refer to the licensed premises (for example s 68(d2): "that intoxicated persons frequently being on the licensed premises or have frequently be seen to leave those premises". 3. It appears that some grounds of complaint relate to things occurring on licensed premises, some relate to the exercise of the licence and some relate to conduct of the licensee. That tends to suggest that by the use of the words "that the licensee … has engaged in conduct or activities…" Parliament has deliberately chosen to limit the ground under s 68 (1)(d1) to something done by the licensee. 4. Further, given the possible consequences for a licensee, which can included a substantial monetary penalty or disqualification from holding a liquor licence (see s 69), clear words would be required before a court should hold that such consequences should befall a person who has himself or herself not engaged in the relevant conduct or activity (and such clear words do appear elsewhere in s 68 (1) (d), (d2), (d3), (g1), (h), (i)). 5. Thus far the matters that I have examined point only in the direction of the words of s 68(1)(d1) being given their natural meaning, but the Defendant relies on that principle of construction which requires that consideration be given to the purpose of an Act. The Defendant's written submissions include: "68. At the outset, it must also be borne in mind that decision of the High court and the NSW Court of Appeal have consistently emphasised the importance of purposive statutory construction, particularly with respect to beneficial statutes like the Act. In CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408, the High Court noted that statutory interpretation requires the Court to have regard to the 'context' of the relevant legislation in the first instance and context should be understood: '[I]n its widest sense to include such things as the existing state of the law and the mischief which, any legitimate means such as those mentioned, one may discern the stature was intended to remedy.' 69.In RTA v Baldock [2007] NSWCCA 35 the Court of Appeal stated that when interpreting beneficial or remedial statutes, even when those statutes included penal provisions: '… a construction that would promote the purpose or object underlying the Act or statutory rule … shall be preferred to a construction that would not promote that purpose or object.'" 1. The Defendant applied the principle to be found in those authorities to the present case by submitting: "80. The appellant submits it was inappropriate to find Mr Wright vicariously liable for the actions for Mr Bourke (Submissions at [63]). It is accepted that Mr Wright did not personally engage in the conduct, the service of trays of shots, which were the subject of complaint and that the complainant relied on notions of vicarious liability. The actions of Mr Bourke were clearly within the scope of his employment, the liquor was supplied in the course of his employment duties with the authority of Mr Wright and it was not submitted by counsel for the licensee that Mr Bourke was acting "on a frolic of his own": Deatons Pty Ltd v Flew (1949) 79 CLR 370. If the Act were interpreted so that actions of employees were not considered when determining complaints against licensees, the purpose of the Act would be thwarted. A construction consistent with the harm minimisation object of the Act would ensure that the licensee is held responsible for the conduct of employees if they provide excessive quantities of liquor to patrons in a manner likely to encourage binge drinking or excessive consumption". 1. I will turn to that issue. Does limiting s 68(1)(1d) to activities of the licensee rather than the activities of his or her employees thwart the purposes of the Liquor Act? Helpfully, when considering the purpose of the Liquor Act, it contains within it, at Section 2A, a statement of one of its primary objects: 2A Liquor harm minimisation is a primary object of this Act A primary object of this Act is liquor harm minimisation, that is, the minimisation or harm associated with misuse and abuse of liquor (such as harm arising from violence and other anti-social behaviour). The Court, the Board, the Director, the Commissioner of Police and all other persons having functions under this Act are required to have due regard to the need for liquor harm minimisation when exercising functions under this Act. In particular, due regard is to be had to the need for liquor harm minimisation when considering for the purposes of this Act what is or is not in the public interest. 1. There might be some force in the Defendant's argument if the natural meaning of the words at s 68(1)(d1) left the authorities powerless to do anything about the misuse or abuse of liquor through such things as binge drinking or excessive consumption, but that is far from the case. As the facts of this very matter demonstrate, particular conduct can lead to multiple grounds of complaint and just because the licensee is not caught by one provision it does not follow that the licensee is not caught by another provision. 2. In this matter there were two grounds of complaint. Even if the first ground was erroneously found proved the second ground, "that the licence is considered not to have been exercised in the public interest" was properly established. Punishment of the licensee, in order to promote the object of liquor harm minimisation, is still possible even if the licensee escapes liability under s 68(d1). 3. The result is that I am satisfied that for liability under s 68(1)(d1) to be established on the part of the licensee it is the licensee's conduct or activities which should be examined. In this matter the behaviour which was the focus of the evidence called in the Licensing Court, and which led the Magistrate to find the first ground of complaint made out, was not that of the licensee but of his employee Mr Bourke. Indeed the Magistrate's finding "that the licensee had engaged in conduct contrary to s 68 (1)(d1)" can only be understood as a finding that the licensee was responsible, vicariously, for the conduct of his employee. To that extent the Magistrate has erred. 4. It follows that the matter must be remitted to the Licensing Court for determination in accordance with my decision that the Magistrate erred in law as far as the first ground of complaint is concerned by concluding that the actions of Mr Bourke were sufficient to establish liability on the part of the licensee. The First Ground of Appeal 1. Although the Plaintiff made different submissions in relation to each ground of complaint under this ground of appeal, the issues raised are similar. He submits that he was denied procedural fairness because once the Defendant failed to establish a matter alleged in the "further particulars" then it was not open to the Magistrate to find the complaints proved on any other basis. 2. The Plaintiff thus submits that there was a significant change between the way the case was initially pleaded and the way in which the Magistrate found the matters established. The central difference between what the Plaintiff says he understood was the case he had to meet, and the case as found by the Magistrate, concerns the question of whether Mr Madden was supplied the last tray of shots at a time that he was displaying signs of intoxication. 3. It will be recalled that one aspect of the "further particulars" supplied in relation to both grounds of complaint was: "at no time did hotel staff cease service to the patron. The patron continued to order alcoholic beverages on credit whilst he appeared to be seriously intoxicated", yet the Magistrate found that the first time Mr Madden was displaying obvious signs of intoxication was at the time of the table incident at about 10.00 pm and that following that incident he was not served any more alcohol. 1. The Plaintiff's submission is that because the Defendant did not make out one aspect of the "further particulars" then the complaint should necessarily have been dismissed. The Plaintiff says that the Magistrate's determination that Mr Bourke did not properly supervise how the alcohol was consumed introduced a new issue which had not been a subject of evidence or submissions and he was thus denied procedural fairness. There was no Procedural Unfairness 1. S12 (1) provides "except to the extent that this Act otherwise provides, proceedings before the Court: … (b) shall, as nearly as practicable, be regulated in the same way as summary proceedings before a Local Court". 1. Thus, although the proceedings in the Local Court were not criminal in nature, in considering the issue of procedural unfairness it is instructive to consider what would have happened if the licensee had been charged with an offence. 2. In criminal matters there is a clear distinction drawn between the elements of an offence and particulars of it. Usually failure by the prosecution to prove a particular is not fatal to the prosecution case, although in some cases it would be unfair for the prosecution to seek to make out a case substantially different from that particularised. In Environment Protection Authority v Sydney Water Corporation Ltd (1997) 98 A Crim R 481 Gleeson CJ, with whom the other members of the Court agreed said: "[T]here may be circumstances arising out of the nature of the evidence in a particular case, or manner in which the case is being conducted, which will make it unfair or oppressive to an accused person to permit the Crown to depart from its particulars. Subject to that qualification, however, what the Crown needs to establish in order to obtain a conviction are the essential facts alleged in the indictment or the summons. Failure to establish a particular is not fatal." 1. Perhaps the most common example of the prosecution being required to prove a particular in order to prove its case concerns the date of an alleged offence, see R v VHP unreported Court of Criminal Appeal NSW 7 July 1997. These cases establish that where the prosecution fails to make out a particular in a criminal case that is not necessarily fatal to the prosecution succeeding. 2. There is no reason for applying a stricter standard to civil matters under s 67 Liquor Act. 3. Thus it was certainly not the end of the matter once the prosecution failed to establish that Mr Madden was served alcohol whilst he appeared to be intoxicated. That was not one of the matters that was essential for the Commissioner of Police to prove under either ground of complaint. 4. Nevertheless the Plaintiff would be entitled to claim that he has been unfairly dealt with if he was denied the opportunity of addressing or calling evidence on those issues which the Magistrate ultimately relied on in order to find the complaints made out. 5. Because of the conclusion I have reached on the statutory interpretation point it is unnecessary to deal further with the claim of procedural unfairness as it relates to the first ground of complaint before the Licensing Court. Further submissions, and perhaps evidence will no doubt be required if the Defendant seeks to make out a breach of s 68(1)(d1) on the basis of the licensee's conduct and activities. So even if there was procedural unfairness as regards the first ground of complaint due to the way the matter was conducted in the Licensing Court below (and I am certainly not saying that there was such procedural unfairness) then that will be of no relevance to the case involving the first ground of complaint once remitted to the Licensing Court, because that case will necessarily need to be recast significantly in the light of my ruling regarding the proper interpretation of s 68(1)(d1). 6. The procedural unfairness alleged in relation to the second ground of complaint by the Plaintiff is not easy to understand. The complaint seems to be that the Magistrate did not mention, when finding that it was not in the public interest for Mr Madden to be served the amount of alcohol that he was on the relevant night, that Mr Madden had died as a result of him having driven whilst highly intoxicated. 7. It was no part of the matters that had to be proved under the second ground of complaint that Mr Madden had died. Certainly that gave considerable poignancy to the circumstance in which Mr Madden became intoxicated but it was not, to use a word from the criminal jurisdiction, an "element" which had to be proved by the Commissioner for Police. 8. What is the Plaintiff suggesting is the unfairness to him through the Magistrate's failure to say in his finding that it was not in the public interest for Mr Madden to have died whilst driving his car under the influence of alcohol? It was not at all at issue that Mr Madden was sober when he arrived at the licensed premises, consumed only alcohol sold to him, that that alcohol was sold to him pursuant to the Plaintiff's licence, that he thereby became highly intoxicated, that in that state he drove dangerously, and that as a result of his high level of intoxication he had a motor vehicle collision in which he died. The Plaintiff's submissions pointed out the general and imprecise nature of a suggestion that something was not in the "public interest" but concedes that the way the second ground of complaint was particularised was adequate. His complaint seems to be that the Magistrate's finding does not follow that particularisation. 9. However in circumstances where it is not necessary for the Magistrate to recite every particular of the second ground in order to find that ground established, and in circumstances where the death of Mr Madden in the circumstances I have described above was not challenged in any way, the Plaintiff can have no valid ground to suggest that he has been denied procedural fairness. Penalty 1. In view of the fact that the matter is to be remitted to the Licensing Court it is unnecessary to the decide the third ground of appeal which concerns the penalty imposed. However I wish to say some things about the penalty imposed by the Magistrate in order to avoid any suggestion being made that anything in this judgment should be taken to be a reflection upon what should happen upon remission of this matter to the Licensing Court. 2. The Plaintiff has not succeeded in his challenge to the determination by the Magistrate that the second ground of the complaint was established. It may well be that upon further hearing of this matter there is no finding that ground one of the complaint is made out. That does not necessarily mean however that the penalty imposed, a monetary penalty of $12,000, would necessarily be inappropriate. I have already noted the overlap between the two grounds of complaint. No separate monetary penalty was imposed for the two grounds of complaint and it may well be that the Plaintiff's success in this Court in relation to one aspect of his appeal is a pyrrhic victory in the sense that the ultimate outcome for him, at least in terms of the monetary penalty, is the same. 3. On the other hand it may well be that the Licensing Court considers, if only ground two of the complaint is ultimately made out, that a lesser penalty is appropriate. Orders: 1. The orders I therefore make are these: (i) The finding by the Licensing Court that the ground for complaint under section 68(1)(1d) Liquor Act is made out is quashed. (ii) I remit the matter to the Licensing Court for determination in accordance with this decision. (iii) The Defendant is to pay the costs of the Plaintiff. ********** Amendments 27 April 2020 - Corrected typographical errors in coversheet. 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