Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QDC
  3. 2005
  4. Hackett v Chief Executive of the Department of Tourism, Fair Trading and Wine Industry Development - [2005] QDC 379

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Hackett v Chief Executive of the Department of Tourism, Fair Trading and Wine Industry Development[2005] QDC 379

Hackett v Chief Executive of the Department of Tourism, Fair Trading and Wine Industry Development[2005] QDC 379

 

DISTRICT COURT OF QUEENSLAND

 

CITATION:

Hackett & Anor v Chief Executive of the Department of Tourism, Fair Trading and Wine Industry Development [2005] QDC 379

PARTIES:

MICHAEL LESLIE HACKETT
First Appellant

and

QUEENSLAND RESORTS PTY LTD
Second Appellant

v

CHIEF EXECUTIVE OF THE DEPARTMENT OF TOURISM, FAIR TRADING AND WINE INDUSTRY DEVELOPMENT
Respondent

FILE NO/S:

1429/2005

DIVISION:

Appellate

PROCEEDING:

Appeal under s 222 of Justices Act 1886

ORIGINATING COURT:

Magistrates Court, Bowen

DELIVERED ON:

7 December 2005

DELIVERED AT:

Brisbane

HEARING DATE:

5 December 2005

JUDGE:

Robin QC DCJ

ORDER:

Appeal allowed, convictions set aside

CATCHWORDS:

Appeal to District Court from Magistrate’s conviction of appellant licensee and appellant nominee of unlawful Good Friday trading contrary to s 9(5) of the Liquor Act 1992 – whether part of licensed premises was “ordinarily set aside for dining”, which was ordinarily made available for patrons bringing in takeaway meals purchased elsewhere – exceptionally, meals were prepared on the premises on Good Friday

COUNSEL:

Mr J M Horton for the Appellants

Mr C J Murdoch for the Respondent

SOLICITORS:

Rostron Carlyle for the Appellants

Crown Solicitor for the Respondent

  1. [1]
    The appellants, as “nominee” and licensee respectively, were convicted by an Acting Magistrate in Bowen on 17 March 2004 of separate offences under s 146 of the Liquor Act 1992 on 9 April 2004 at Whitsunday Village Resort on Shute Harbour Road, Airlie Beach.  Subsection (1) provides that:

“A licensee or permittee, or an employee or agent of a licensee or permittee, must not supply liquor-

  1. (a)
    at an unauthorised time …”
  1. [2]
    The relevant licence was a general licence under s 58(1)(a), as to which s 59 provides:

“(1) A general licence authorises the licensee –

(a) to sell liquor on the licensed premises … during ordinary trading hours …”

  1. [3]
    The Magistrate identified certain facts as not in dispute:

“1. That liquor namely light XXXX beer was sold to Richard Steele at about 10.45 a.m. on 9th April, 2004 in association with his consumption of a meal in the Boardwalk area of the Whitsunday Village Resort.

  1. That a meal as defined in the Liquor Act was supplied to Richard Steele on the licensed premises.
  1. That the 9th April, 2004 was in fact “Good Friday”.
  1. That a general liquor licence has been issued to Queensland Resorts Pty Ltd with respect to premises known as “Whitsunday Village Resort” located 366 Shute Harbour Road, Airlie Beach. Under the licence, Queensland Resorts Pty Ltd are not required to provide meals.
  1. That the Boardwalk area of the Whitsunday Village Resort does have permanent tables and chairs set up in that area.
  1. The Whitsunday Village Resort does not have a kitchen on the licensed premises and for 363 days of the year (Good Friday and Christmas day excepted) does not itself provide meals on the licensed premises.  Meals are able to be ordered and purchased at the nearby Mama Boys Restaurant and are able to be consumed at the tables in the Boardwalk area of the Whitsunday Village Resort.
  1. Mama’s Boys Restaurant is not part of the licensed premises.
  1. That Queensland Resorts Pty Ltd is the licensee of the premises known as the Whitsunday Village Resort.
  1. That Michael Leslie Hackett is the nominee for Queensland Resorts Pty Ltd.”
  1. [4]
    Ordinary trading hours are fixed by s 9(5) in the circumstances:

“Subject to subsection (2), on Good Friday and Christmas Day ordinary trading hours of all licensed premises, other than a cabaret or premises to which a producer/wholesaler licence relates are-

  1. (a)
    for sale of liquor to a person to consume on the premises in association with the consumer eating a meal in a part of the premises ordinarily set aside for dining if the meal is prepared, served and intended to be eaten on the premises – between 10 a.m. and 12 midnight, or the period between 7 a.m. and 12 midnight that the chief executive approves in a particular case; or
  1. (b)
    for other sale of liquor – nil.”
  1. [5]
    Apropos Mr Steele’s meal, the Magistrate said, “I also accept (and on my understanding this issue is not in dispute) that such meal was prepared, served and intended to be eaten on the licensed premises.”
  1. [6]
    The appellant asserts (and I would agree) that the Magistrate was correct in the following paragraphs of his careful reasons (the numbers were inserted by Mr Horton for ease of reference):

“25. The undisputed evidence is that Queensland Resorts do not ordinarily prepare and serve meals on the licensed premises (Good Friday and Christmas Day excepted).  The evidence is that meals are prepared and served by Mama’s Boys Restaurant which is situated in the same complex but is not part of the licensed premises.  Such meals may then be consumed in the Boardwalk area which is on the licensed premises.  My initial interpretation of the team “ordinarily set aside for dining” was that there was a compelling inference that it related to meals provided by the licensee i.e. meals being prepared, served and intended to be eaten on the premises.

 However, the words “if the meal is prepared, served and intended to be eaten on the premises” immediately follow the words “ordinarily set aside for dining” in Section 9(5)(a).  Clearly if the legislature intended that the term “ordinarily set aside for dining” as defined included a requirement that meals must be provided on site by the licensee, then the words following that term would be superfluous.

  1. I consider that there is no requirement under the definition of the term “ordinarily set aside for dining” that meals must be provided by the licensee on the licensed premises and that there is nothing to stop the licensee having an arrangement whereby meals are prepared off the licensed premises and are then allowed to be consumed on the licensed premises.”
  1. [7]
    The reasons say at a later point:

“32. As indicated earlier, I am satisfied that the Boardwalk area is the part of the licensed premises that is set aside as the regular or usual place for dining in the Whitsunday Village Resort.

 It is not in dispute that the Boardwalk area does have other uses apart from being a place for dining.  The evidence is that it has a number of uses including being an entertainment area.  However, I consider that there is no requirement that an area may not be set aside for more than one purpose.

  1. However the case for the Prosecution is that even if the Boardwalk area is set aside as the regular or usual place for dining on the licensed premises, then on the evidence, the Boardwalk area is not part of the licensed premises “ordinarily set aside for dining” due to the exception in the definition.”
  1. [8]
    That definition, in s 4 of the Act is:

“‘ordinarily set aside for dining’, for a part of the licensed premises, means the part of the licensed premises that is set aside as the regular or usual place for dining on the licensed premises, but does not include a part of the licensed premises set aside merely for a particular day.”

  1. [9]
    His Honour had recourse to relevant extrinsic aids in proceeding to his conclusion:

“36. The definition of “ordinarily set aside for dining” was amended by the Liquor Amendment Act 2001 No. 39 of 2001 – section 5(2).  The Explanatory Notes in so far as is relevant are as follows:-

 ‘Ordinarily set aside for dining’ – this phrase is used in various sections of the Act as the basis for particular sales of liquor in particular circumstances, for example on Christmas Day.  The definition specifies that such an area must not be set aside merely for a particular occasion.  It is the ordinary use of the area that is relevant.

  1. The evidence which I accept is that the ordinary use of the Boardwalk area is that it is that part of the licensed premises that is set aside as the regular or usual place for dining on the premises but with no provision being made for meals being provided by the licensee.  Any meal intended to be consumed in the Boardwalk area was required to be purchased off the licensed premises from Mama’s Boys Restaurant (or elsewhere).
  1. The arrangements in place on Good Friday whereby meals were prepared and served in the Boardwalk area were not in place on other days of the year and were not in accordance with the ordinary use of that area.  The ordinary use of that area of the licensed premises did not include the provision of meals being provided on site.  Special arrangements were put in place for a particular day namely Good Friday.  The arrangements with Mama’s Boys Restaurant in place on Good Friday the 9th April, 2004 for the provision of meals in the Boardwalk area were clearly put in place especially for that particular day and similar arrangements did not exist for other days of the year.  Under those circumstances I consider that the Boardwalk area falls squarely within the exception to the definition of the term “ordinarily set aside for dining”.
  1. Therefore the Boardwalk area is not part of the licensed premises ordinarily set aside for dining.”
  1. [10]
    The appellants submitted there was no warrant for the switch in focus from a concept of an area being “set aside” for purposes of dining to a concept of “ordinary use”.
  1. [11]
    The prosecutions and this appeal give rise to a rather difficult exercise in interpretation, which reveals some imperfection in the drafting. The process of the Magistrate arriving at a conclusion which appears rather contrary to views he expressed before depends on the primacy given to the exception in the s 4 definition. It may be accepted that a clear statement that something is not included in a definition should be accorded primacy. However, the circumstance that seems to have moved the Magistrate was the unusual phenomenon of preparation of meals prepared in the licensed premises for consumption on part of them, which (relevantly) only occurred on Good Friday. I cannot help but wonder whether his Honour took the approach that on that particular day some part of the licensed premises was “set aside” for purposes of meal preparation. I do not think a shift in focus along those lines is permissible. The final “set aside” in the definition must, I think, contemplate a part of premises “set aside … for dining on the licensed premises”. The uncontroversial facts were that the Boardwalk area with tables and chairs (in practical terms an extension of similar facilities which Mama’s Boys had) were “the regular or usual place for dining”; it is not possible to suggest they were set aside for such a purpose “merely for a particular day.” I agree with the approach that such an area need not be set aside for dining exclusively. The evidence was that people would use the tables and chairs for other purposes such as sitting to watch entertainment, or to write postcards.
  1. [12]
    Whether or not Mr Steele was supplied with a “meal” as defined in s 4:-

“ ‘meal’ means food that –

    (a) is eaten by a person sitting at a table, or fixed structure used as a table, with cutlery provided for the purpose of eating the food; and

    (b) is of sufficient substance as to be ordinarily accepted as a meal” –

cannot be considered here: it was agreed the definition was satisfied.  Guests on Good Friday were supplied with cutlery, which may well not have been the case on the other 363 days of the year (Christmas Day apparently being treated similarly to Good Friday) when, it seems, the food consumed was effectively “takeaway” food from Mama’s Boys, ordered and paid for in exchange for a numbered ticket which was handed in once the food was prepared.

  1. [13]
    In my opinion, the appeal must succeed as a matter of the literal interpretation of s 9(5)(a). I agree with his Honour that the words “if the meal is prepared, served and intended to be eaten on the premises” apply to meals to be eaten on Good Friday and Christmas Day; I do not think they are capable of qualifying “dining”, as if the section referred to “dining upon a meal prepared, et cetera, on the premises”. That conclusion leaves it incumbent on the appellants to establish that Mr Steele received his meal in a place “ordinarily set aside for dining”, which takes one to the s 4 definition. For reasons given, the exception does not apply, but the area was incontrovertibly, for purposes of the general introductory part of the definition, “set aside as the regular or usual place for dining on the licensed premises,” on the material presented to the Magistrate.
  1. [14]
    His Honour may have thought, as do I, that a clever device was resorted to, to permit Good Friday liquor sales. Section 9(5) expressly permits that, if (as happened) the indicated hours be adhered to.
  1. [15]
    I have indicated above some concern whether there really was a “meal” within the definition. Concern might also be harboured as to whether what goes on on the Boardwalk is “dining”, although occasionally there may be some “dining” going on. The Shorter Oxford English Dictionary defines “dining” as the action of the verb “dine”, which means “to eat the principal meal of the day”. The current Oxford English Dictionary On-line adds “now usually taken at or after mid-day”. An associated meaning is “to take dinner”. I am inclined to think, as the Liquor Act stands, that “dining” probably means little more than “eating”.  These provisions are to be construed in the context of a prosecution, and ought to be construed strictly.  I suspect it would do a great deal of violence to the Liquor Act to construe “dining” as per the Oxford English Dictionary.  However, if “dining” ever occurs in the licensed premises, it is no doubt at the tables and chairs on the Boardwalk.
  1. [16]
    It may well be that if the legislators had contemplated outlawing the device resorted to by the appellants, they would have done it. This is no warrant for straining the clear language of s 9(5).
  1. [17]
    The respondent’s argument was that “his Honour’s decision to the extent that the boardwalk area is an area ordinarily set aside for dining is … incorrect and this Honourable Court should correct it.” Doing so would, in my opinion, fly in the face of the facts as presented to the Magistrate and this court in these prosecutions. Whether the outcome would be the same on different evidence, or if more of the “facts” had been contested, I do not say. Quite apart from relying on the exception, the respondent submitted:

“38. The question in this case is whether Queensland Resorts could lawfully trade using an area it asserted was ‘ordinarily set aside for dining’ on Good Friday 2004 without resorting to the need for special arrangements for the provision of meals?

  1. If it could trade there would be no need to change their method of operation for Good Friday as they did.  Indeed the defendants themselves led evidence of other premises in Airlie Beach that could trade lawfully on Good Friday because they all had areas genuinely set aside for dining as they ordinarily provided meals in those areas.  This is despite the fact that all of the other premises provided the meals in multi-function areas.
  1. If it couldn't then the area is not ‘ordinarily set aside for dining’.
  1. As Queensland Resorts’ licence does not require that meals be provided, the only impediment to its trading on 363 days a year is the trading hours as listed on the licence.
  1. The best that can be said for the appellants’ case is that the boardwalk area is a multi-function area in which patrons and others are invited to consume their takeaway food.  It is convenient because of its proximity to Mama’s Boys given that Mama’s Boys also have tables set up in the adjacent area off the licensed premises and the two areas have no real physical separation.
  1. However, the Respondent submits that this does not make the boardwalk area an area ‘ordinarily set aside for dining’ under the Act.  It is an area set aside for the licensee’s convenience only.
  1. Such an interpretation is consistent with the promotion of the underlying principle as prescribed in s 3A of the Act and also s 14A of the Acts Interpretation Act 1954.”

None of the foregoing affects my view that it flies in the face of the facts (effectively agreed) to find the definition not satisfied.

  1. [18]
    On-site preparation of meals is required as a condition of trading on Good Friday and Christmas Day; for the rest of the year it is not. The legislators may not have envisaged that any licensee would bring in meal preparation facilities and personnel for two days in the year, which (or who) were not there for 363 days. The drafting of the legislation invites adoption of that device, by omitting any indication that on-site preparation (or provision) of meals, as opposed to eating of them, is required on ordinary days.
  1. [19]
    More or less similar problems have entertained courts in other jurisdictions, according to authorities unearthed by my associate. They do not provide any particular assistance in the present controversy, but may suggest possibilities which the legislature could consider if intent on closing the loophole the appellants have been able to exploit in these prosecutions. I refer to Koala Motels Pty Ltd v Chief Licensing Inspector (1977) 18 ALR 12, Mackiewicz v Kal Holdings Pty Ltd [1999] WASCA 84, BC 990 4148, Chaka Holding Pty Ltd v Sunsim Pty Ltd (Supreme Court of New South Wales, 2109 of 1987, Equity Division, BC 870 1174) and Symes v Stanford (Common Law Division, Allen J 24 December 1986).
  1. [20]
    The appeal is allowed, and the convictions are set aside.
Close

Editorial Notes

  • Published Case Name:

    Hackett & Anor v Chief Executive of the Department of Tourism, Fair Trading and Wine Industry Development

  • Shortened Case Name:

    Hackett v Chief Executive of the Department of Tourism, Fair Trading and Wine Industry Development

  • MNC:

    [2005] QDC 379

  • Court:

    QDC

  • Judge(s):

    Robin DCJ

  • Date:

    07 Dec 2005

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Koala Motels Pty Ltd v Chief Licensing Inspector (1977) 18 ALR 12
1 citation
Jump To
Cite 1 - (1977) 18 ALR 12
Mackiewicz v Kal Holdings Pty Ltd [1999] WASCA 84
1 citation
Jump To
Cite 1 - [1999] WASCA 84

Cases Citing

Case NameFull CitationFrequency
Doverline Pty Ltd v Mastro and Sons Pty Ltd [2006] RSLT 191 citation
1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.