Burns v Williams
[1989] TASSC 113
•20 September 1989
Serial No B35/1989
List “B”
COURT: SUPREME COURT OF TASMANIA
CITATION: Burns v Williams [1989] TASSC 113; B35/1989
PARTIES: BURNS
v
WILLIAMS
FILE NO: LDR 156/1989
DELIVERED ON: 20 September 1989
JUDGMENT OF: The Master
Judgment Number: B35/1989
Number of paragraphs: 15
Serial No B35/1989
File No LDR 156/1989
BURNS v WILLIAMS
REASONS FOR JUDGMENT THE MASTER
20 September 1989
The defendant has filed an interlocutory application seeking to set aside a judgment regularly entered by the plaintiffs on 3 July 1989 in default of a defence.
Counsel for the plaintiffs, Mr Ellis, conceded at the outset of the hearing of this application that prejudice to the plaintiffs and delay were not in issue, but that it was contested by the plaintiffs that the defendant has shown an arguable defence to the plaintiffs' claim.
An affidavit sworn by the defendant, Ray Leslie Williams, a police officer, on 9 August 1989 was tendered in support of the application and he was cross–examined upon his affidavit.
The plaintiffs claim damages for personal injuries as a result of an assault upon them on 4 May 1986 in hotel premises at Launceston. The plaintiffs also claim aggravated and exemplary damages.
The evidence relating to the assaults, as alleged by the defendant in his affidavit and in cross–examination, is as follows:
1At approximately 8.10pm on 4 May 1986 the defendant attended the premises known as the California Hotel, Launceston, in the company of uniformed and licensing police. The attendance of the police officers resulted from a call by the licensee of the hotel, Malcolm Poole.
2Upon arrival at the hotel premises the defendant walked into the bar where he observed a number of persons, including the second named plaintiff, standing by the bar. The second named plaintiff used abusive language to him.
3The licensee, who was also present in the bar, then said: "Drink up, I want all of you out, the hotel is now closed." (See paragraph 7 of the defendant's affidavit).
4No person left the premises and, shortly after the statement, referred to above, was made by the licensee, Sergeant O'Sullivan, a member of the Licensing Police, stepped forward towards the bar and said: "The hotel is now closed. Mr Poole has requested all persons to leave. I'm now asking you to vacate the premises." No person left the hotel.
5The defendant said that he then stepped forward and said: "You have all been requested to leave, will you please vacate the premises." (See paragraph 9).
6Some persons then left the hotel premises, but the plaintiffs remained in the bar. The second named plaintiff then emptied beer out of a glass on to the floor. He was abusive to the defendant and indicated that he would not leave voluntarily. The first named plaintiff stepped forward and also refused to leave the premises.
7In paragraph 11 of his affidavit the defendant deposed as follows: "I then informed both persons that they were under arrest for failing to leave licensed premises. At that moment I believed that both persons were guilty of that offence."
8The defendant and other police officers then removed the plaintiffs from the hotel. The plaintiffs resisted and attacked the police officers. During the course of the removal of the plaintiffs, the police officers used their batons to subdue the plaintiffs who were eventually handcuffed and taken to the charge room at the police station.
9In his evidence under cross–examination the defendant said he heard the words used by the licensee and Sergeant O'Sullivan which were in accord with those contained in paragraphs 3 and 4 of his affidavit. He also agreed that he used the word "requested" as deposed to in paragraph 9 of his affidavit.
Section 59 of the Licensing Act 1976, as amended, is as follows:–
"59–(1) No responsible person [defined as 'the licensee or his representative'] shall allow drunkenness or violent, quarrelsome, or riotous conduct to take place at the licensed establishment.
(2) If a responsible person is charged under subsection (1) with permitting drunkenness, and it is proved that any person was drunk on or at the licensed establishment, the burden of proving that he and the persons employed by the licensee took all reasonable steps for preventing drunkenness on the premises lies on the defendant.
(3) No person shall sell liquor to a drunken person who is at a licensed establishment.
(4) No person shall, at a licensed establishment, procure or attempt to procure liquor for consumption by a drunken person.
(5) No person shall aid a drunken person in obtaining or consuming liquor at a licensed establishment.
(6) Without prejudice to any other right to refuse a person admission to any place or to expel him therefrom, a responsible person or his agent or servant may refuse to admit to, or may expel from, a licensed establishment any person who is –
(a) drunken, violent, quarrelsome, or disorderly;
(b) objectionable as to his behaviour or person;
or
(c) not dressed in conformity with any reasonable standard of dress required by the licensee in accordance with subsection (6A).
(6A) For the purposes of subsection (6) (c), a licensee may from time to time, by a notice conspicuously displayed at each entrance to any part of his licensed establishment, require a person wishing to enter or remain in that part to conform to a reasonable standard of dress as specified in the notice.
(7) Any person who, being liable to be expelled from any licensed establishment under subsection (6), fails to leave the establishment when requested to do so by a responsible person or his agent or servant, is guilty of an offence.
(8) A person who, having been required, in the presence of a police officer, by a responsible person or his agent or servant to leave a licensed establishment –
(a) fails to leave the establishment when required to do so by that police officer; or
(b) returns to the establishment during the permitted hours on the day on which he was so required,
is guilty of an offence.
(8A) For the purpose of subsection (8) a day shall be regarded as a period of 24 hours ending at 5.am.
(9) A police officer may expel or help to expel from a licensed establishment a person who commits an offence under subsection (8), and may arrest any such person without warrant.
(9A) A police officer who has reason to believe that a person is guilty of an offence under subsection (8) may arrest that person.
(10) Where a permit authorizes the sale of liquor on any premises or conveyance (not being a licensed establishment) this section has effect as if during the period during which liquor may be sold under the authority of the permit and the period of one hour thereafter the premises or conveyance were a licensed establishment and the holder of the permit the licensee thereof.
(11) A person who contravenes a provision of this section is guilty of an offence.
(12) A person who is guilty of an offence under this section is liable on summary conviction to a penalty not exceeding $200."
In interpreting this section the Supreme Court has distinguished between the meanings of the words "request" and "require". In Regina v Brown [1980] Tas SR 121 Neasey J said at p125:–
"Section 59(6) refers in the present tense to misbehaviour occurring in the licensed establishment, and in my opinion confers the rights referred to therein where the misbehaviour occurs on the same occasion when the rights are exercised.
Section 59(7) is in terms related specifically to s59(6), and clearly creates an offence only in respect of a person who is liable to be expelled under the provisions of subs (6).
Section 59(8), however, is not expressed to be dependent upon subs (6). It is not in terms restricted to persons who become liable to be expelled under subs (6), which itself recognizes that a person may become liable to be expelled otherwise than under the terms of subs (6).
The difference in wording between subss (7) and (8) is in my opinion intentional and significant. Section 59(8) sets up a separate offence, different from that under s59(7), and which is committed by a person who is required by a responsible person or his agent or servant, in the presence of a police officer, to leave the licensed establishment, and who is in addition required by that police officer to leave and fails to do so.
Section 59(9) then gives power to a police officer (not necessarily 'that' police officer, and of course it may take more than one to carry out an expulsion) to expel or help to expel or arrest without warrant a person who commits an offence under subs (8). The power of arrest without warrant is significant. Such a power is not given in respect of an offence under subs (7).
The intention and effect of subss (8) and (9) in my opinion is to create a circumscribed power in police officers to expel from licensed establishments persons in respect of whom the responsible person or his agent or servant takes the formal step specified in subs (8), which is to say a requirement to leave made in the presence of a police officer. The substance of it is that it gives a power to responsible persons, within the meaning of the Act, or their agents or servants, to initiate the expulsion from their licensed establishments, and to request the aid of the police in order to carry out such expulsion, persons whose behaviour they consider to be inimical to the proper and orderly conduct of their establishments; whilst at the same time relieving the police of the responsibility of satisfying themselves before acting that the responsible person, etc, has reasonable cause for taking that action."
In Burns v Tilyard, FC, 10/88, Cosgrove J dealt with the distinction in the meaning of the two words for the purposes of the section. At p7 of his judgment, his Honour said:–
"In the reasons for judgment given by Cox J supporting the order appealed from, his Honour said:
'It is to be noted that the subsection [(8)] provides that there must be a requirement to leave, not merely a request, articulated by the licensee in the presence of a police officer and a similar requirement, not merely a request, likewise made by that officer.'
The Shorter Oxford Dictionary gives as the primary meaning of 'request':
'The act, on the part of a specified person, of asking for some favour, service, etc; the expression of one's desire or wish directly addressed to the person or persons able to gratify it.'
The primary meaning of 'require' on the other hand, is:
'To ask for (some thing or person) authoritatively or imperatively, or as a right; to demand, claim, insist on having.'
It is clear that no valid adjudication of the guilt of a defendant could be made by a tribunal which confused 'request' and 'requirement', and which failed to bear in mind the necessity of the dual requirements."
At an earlier stage of his judgment his Honour said:–
"The distinction between request and requirement is significant and cannot be glossed over. A judicial officer embarked upon the determination of the question whether the offence created by subs(8) had been committed, could only properly do so if he bore steadily in mind that the constituents of the offence included two requirements." (See page 5).
It therefore remains to consider whether, for the purposes of this application, the words used by the licensee and Sergeant O'Sullivan in each other's presence could, not necessarily did, convey a requirement as specified in s59(8) of the Licensing Act 1976. It would be pedantic and an unnecessarily restrictive qualification on the interpretation of the subsection to demand the use of the word "require" itself when exercising such a power. The licensee said "Drink up, I want all of you out, the hotel is now closed." The underlining is mine. The dictionary meaning of the word "want" in some contexts has the connotation of "require"; for example the phrase "wanted by the police" indicates more than just a desire or request in which the meaning of "want" is sometimes used.
Similarly, Sergeant O'Sullivan said: "The hotel is now closed. Mr Poole has requested all persons to leave. I'm now asking you to vacate the premises." Again, the underlining is mine.
The dictionary meaning of the word "ask" includes, according to the context in which it is used, the connotations of "demand" and "require".
The fact that Sergeant O'Sullivan used the word "requested" in referring to the licensee's statement to the plaintiffs and other persons present in the bar and that the defendant used the same word in his statement does not necessarily characterise the meaning which was intended and which should be placed upon the words "want" and "asking" as used by the licensee and Sergeant O'Sullivan.
I therefore find that, upon the evidence before me on this application, the words used by the licensee and Sergeant O'Sullivan could have satisfied the provisions of s59(8) of the Act, and that, if they did so, the plaintiffs' failure to leave the licensed establishment constituted an offence for which they were liable to expulsion and arrest pursuant to s59(9) of the Act. Whether such a finding would be made can, in my view, only be made after hearing all the witnesses at the trial of the action.
The defendant could have, subject to the plaintiffs falling within any of the categories enacted in s59(6) of the Act and which constitutes an offence under s59(7), used their powers of arrest under ss. 12 and 55 of the Police Offences Act 1935, or at common law. It appears that the abusive language which the defendant alleges was used by the second named plaintiff after the arrival of the defendant at the premises, would have permitted the use of such powers. But is is clear on the evidence before me that the defendant purported to exercise his powers of expulsion and arrest under s59(8) and (9) of the Act alone.
On an application to set aside judgment I am only concerned with whether or not the defendant has raised an arguable defence. As Cosgrove J said in National Mutual Life Association of Australasia Ltd v Century Motors Pty Ltd, 64/84:–
"The question for me is whether there is a justiciable issue to be tried. If so, in the absence of prejudice to the respondent (which is not here claimed) and given a satisfactory explanation (which is here conceded) then the judgment should be set aside and the applicant be given liberty to defend."
I order that the judgment be set aside and that the defendant be given leave to defend. I should add that the distinction between the use of the words "request" and "require", for the practical purposes which will often obtain in situations such as the present, is likely to be a source of confusion to licensees and police officers who find it necessary to exercise their powers in such circumstances where violent behaviour predominates and in an atmosphere of hostility. It seems to me that amendments could be effected to s59 of the Act which would still give effect to the purpose of the section, whilst still safeguarding the rights of the citizen from arbitrary expulsion and arrest.
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