Dinsdale v Director of Liquor and Gaming

[1999] NSWSC 511

CITATION:	Dinsdale v Director of Liquor and Gaming [1999] NSWSC 511
CURRENT JURISDICTION:	Common Law Division
FILE NUMBER(S):	13130/98
HEARING DATE(S):	23 & 26 February 1999
JUDGMENT DATE:	31 May 1999
PARTIES :	Judith Ann Dinsdale (Plaintiff) Director of Liquor and Gaming (Defendant)
JUDGMENT OF:	Dunford J

LOWER COURT JURISDICTION:	Licensing Court of New South Wales
LOWER COURT FILE NUMBER(S) :	159942
LOWER COURT JUDICIAL OFFICER:

COUNSEL :	Mr AG Whealy QC / Mr Vukadinovic (Plaintiff) Mr T Lynch (Defendant)
SOLICITORS:	Phillips Fox (Plaintiff) IV Knight, Crown Solicitor (Defendant)
CATCHWORDS:	LIQUOUR LAW - Caterer's Licence - Applicant employee of owner of premises.
ACTS CITED:	Liquor Act 1982, s 54B
CASES CITED:	Ex parte Breull, re Bowie (1880) 16 ChD 484. Graham v Lewis (1888) 22 QBD 1. Hope v Bathurst City (1980) 144 CLR 1. Pioneer Concrete Services [1985] VR 675. Town Investments Ltd v Department of the Environment [1978] AC 359. Hughes v Clubb (1987) 10 NSWLR 325. Rolls v Miller (1884) 27 ChD 71.
DECISION:	See paras 27 & 28.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DUNFORD J
31 MAY 1999
1313 0/98 - Judith Ann DINSDALE v Director of Liquor & Gaming
JUDGMENT

1 HIS HONOUR: This is an appeal by the plaintiff under s 146(1) of the Liquor Act 1982 ("the Act") from a decision of the Licensing Court of New South Wales of 7 December 1998 in which it refused an application by Judith Ann Dinsdale ("the plaintiff") for the grant to her of a caterer's licence in respect of premises known as AMF Bowl situated at 99 Woodriffe Street, Penrith. The grounds of appeal are that the Court erred in its construction of s 54B(1)(a) of the Act.

The plaintiff's application (exhibit 1) was on the basis that any licence granted as a consequence of her application would be "owned" by AMF Bowling Centres (Aust) International Inc. ("AMF"), "held" by her as manager for AMF, and that AMF would be solely "entitled" to the profits of the business. An affidavit was filed, in which AMF acknowledged the correctness of these matters and the Court found accordingly.

2 By Notice of Objection dated 28 April 1998, the Director of Liquor and Gaming ("the Director") objected to the Plaintiff's application on the ground that it would not be in the public interest to grant such application, and submitted that the plaintiff failed to comply with s 54B of the Act. 3 The objection by the Director was restricted to the issue of whether the plaintiff complied with s 54B(1)(a) of the Act, that is whether she carries on, or is proposing to carry on, the business of providing catering services and whether the business that she is carrying on, or is proposing to carry on, is in fact her principal business. The section provides:

54B. (1) An application for a caterer's licence must not be granted unless the court is satisfied that:

(a) the applicant carries on or is proposing to carry on the business of providing catering services and that business is or is proposed to be the applicant's principal business; and
(b) the applicant has such skills, qualifications and experience, and has undergone such training, as my be prescribed by the regulations as necessary for the holder of a caterer's licence; and
(c) the applicant is or will be the occupier of a commercial kitchen which satisfies any applicable standards and requirements determined by the Board for commercial kitchens and for access to the kitchen by the licensee.

4 It was not disputed that the plaintiff had the skills, qualifications and experience as required by s 54B(1)(b) to hold a caterer's licence, and evidence provided satisfied the Court that she was indeed competent in the relevant areas. Moreover, the Director did not suggest that the premises do not include a commercial kitchen which would satisfy the standards and requirements determined by the Board pursuant to s 54B(1)(c), nor that the plaintiff would not have the exclusive use of that commercial kitchen to carry out her catering activities. 5 The nature of AMF's operations at its various bowling centres was described in the Licensing Court's judgment as follows:

"The AMF Bowling Centres runs bowling venues throughout Australia and has fourteen in New South Wales. It is not necessary to describe the nature of a bowling centre in any detail. The relevant facts are that there are bowling lanes and a food service area. The AMF Bowling Centres operate under the auspices of Australian Ten Pin Bowling Congress. That Congress runs competition ten pin bowling and ten pin bowling generally in Australia. It is part of an international organisation.
AMF Bowling Centres conduct informal bowling whereby members of the public can attend, pay a fee and bowl and also being a principle (sic) part of its business conducts league competitions. In addition to those, there are major competitions such as interstate and international competitions conducted at their various bowling ventures (sic). The league competitions and for which the majority of the evidence focuses are conducted under the rules laid down by the Australian Ten Pin Bowling congress. In evidence is the rule book. That is sufficient to satisfy me that the entity is formal, conducts competitions in which players are required to be registered. They pay fees. There are trophies. The events are covered by detailed rules of bowl.
At least six nights a week and occasionally seven at some bowling centres and other bowling centres seven nights a week and even at other bowling centres less than seven nights per week, league competitions take place. They generally start at six or six thirty and the first session goes to eight or thereabouts and the second session starts at eight thirty and generally goes for two hours concluding at ten thirty. At that time the majority of the lanes are occupied by league bowlers. Other lanes are available for non-league bowlers, in other words, non-competition bowlers.
Members of the public can enter the facilities and observe. League bowlers can be accompanied by other people who are not participating in the competition although it appears from Mr Moloney's evidence that except for major events members of the public entering the premises for the purposes of watching are a rarity.
The league players participate in a competition as I have said. The current arrangement is that liquor is only served based upon the league competition. In other words, to be sold liquor you have to be a bowler participating in the league competition. The current provisions adopted by the licensee are that for the first drink a league bowler must purchase at a minimum a bowl of hot chips. After that has been consumed a league bowler may purchase other liquor without the requirement to purchase food items or edible refreshments."
The Court also said:
"The applicant says she will hold the licence on behalf of AMF, by which company she is employed, and that she is responsible for the provision of all catering services at the Penrith Bowl. In this connection, the Court had before it a document from the Chief Executive Officer of AMF Bowling Centers (Aust) International Inc. (Mr Maloon) to the effect that Ms Dinsdale is the occupier of the café facilities at the Penrith Bowl, and that it is the company's intention that she will remain the occupier as long as she holds the Catering Licence sought for the premises.
The Court was told that Ms Dinsdale attends at the premises and conducts the catering at certain hours and that if the licence is granted, she will arrange to be at the premises in the evenings to cover the hours when liquor is generally served, and that she would not engage in any other occupation apart from the provision of refreshments at the Penrith Bowl."

The Court further said:
"The evidence of Ms Dinsdale and of Mr Bober is that the catering activities at the Penrith bowl are subject to the general policy guidelines and practices of AMF Bowling Centers (Aust) International Inc, with little variation being apparent between the various bowling venues. Purchasing is mostly from designated suppliers with whom advantageous terms have been negotiated centrally, and menus are standardised, although the local manager hires and fires staff, selects and supervises menu variations, orders necessary ingredients and accompaniments, exercises quality controls, and is afforded the opportunity of varying some dishes, substituting items within a range, and obtaining provisions from local suppliers when small quantities are required, or special products are available or needed. Ms Dinsdale gave evidence that she follows the standard operational procedures where these are appropriate for her venue, but that she responds to customer demand and varies her menus after consulting with her own clientele. She has introduced some special dishes, and says that she has complete control over the staff and their day to day activities. When the State manager calls on her, she receives support and advice, not direct orders."

6    The Court found that the plaintiff carried on the business of providing catering services, but that she did so not as a principal, but on behalf of AMF. It also found that her principal activity, and accordingly the business in which she was principally engaged, was or will be, the provision of catering services; but held that was insufficient, because "where a party other than a principal carries on the business, it is necessary for there to be a congruence between the applicant and the applicant's principal, and that the business carried on by the applicant must be the principal business of both the applicant and the proprietor for the section to be satisfied." Having held that the provision of catering services was not the principal business of AMF, the Court accordingly refused the application. 7    The Plaintiff submitted that the Court erred in so holding, and that, having found that the plaintiff "carried on the business" of providing catering services and that the business she carried on was "her principal business", the requirements of s 54B(1)(a) were satisfied and the requirements in respect of subs (1) (b) and (c) not being in dispute, the Court was bound to grant the application. 8 The Director submitted that on the Licensing Court's findings that the catering business, owned by AMF and from which AMF obtained all the profits although managed by the plaintiff, was the relevant "business" for the purposes of s 54B(1)(a), that such business was AMF's business, but not its principal business and accordingly the second requirement of s 54B(1)(a) was not satisfied and the application was rightly refused. 9 The Director also filed a Notice of Contention claiming that the Court erred in construing para 54B(1)(a) as permitting an application thereunder by a person who was not a proprietor of the business sought to be licensed, and submitted that the person who "carries on a business" is the proprietor, not an employee. 10 The requirements of s 54B(1) are that:

(i) the applicant carries on, or is proposing to carry on, the business of providing catering services;
(ii) that business is, or is proposed to be, the applicant's principal business;
(iii) the applicant has the requisite skills, qualifications and experience;
(iv) the applicant has undergone the prescribed training;
(v) the applicant is, or will be, the occupier of a commercial kitchen; and
(vi) that kitchen meets the requisite standards.

11    With the exception of (vi), all the requirements refer to the applicant and none of them make reference to the applicant's employer. In particular, item (ii), that "that business is or is proposed to be, the applicant's principal business" is a reference to the business referred to in item (i) namely, the business carried on by the applicant. If the applicant does not carry on, or propose to carry on, a business of providing catering services, no question arises as to whether it is that person's principal business. However, if he or she does carry on, or propose to carry on such business, then the question becomes whether it is that person's principal business. The section makes no reference to whether the provision of catering services is the principal business of anyone else such as the applicant's employer, and, purely by reference to the words used in the section, I can see no warrant for introducing an additional requirement that the provision of catering services must also be the principal business of the person on whose behalf, or for whose benefit, the applicant carries on such business. 12 This construction is also in my view consistent with both the scheme of the Act relating to catering licences and other provisions in the Act dealing with them. 13 A number of definitions are contained in s 4, including the following:

caterer's licence means a licence that, subject to this Act and the conditions of the licence, authorises the licensee to sell liquor at a function, occasion or event held on any premises, or part of premises, on which the licensee provides catering services, but only for consumption on those premises.
catering services means services for the preparation and supply of edible refreshments for consumption at functions, occasions and events.
function means any dinner, ball, convention, seminar, sporting event, race meeting, exhibition, performance, trade fair or other fair, fete or carnival, or any similar event or activity, that is conducted for public amusement or entertainment.

14 In addition, s 18(2)(d) of the Act provides that the Court may grant a caterer's licence and specifies such a licence as one which, subject to this Act and the conditions of the licence, authorises the licensee to sell liquor at a function, occasion or event held on any premises, or part of premises, on which the licensee provides catering services, but only for consumption on those premises. Section 23A(1) provides that liquor shall not be sold . . . . . pursuant to a caterer's licence except at, or as ancillary to, a function, occasion or event for which the licensee provides catering services, and that pursuant to s 23A(2) if liquor is to be sold or supplied pursuant to a caterer's licence, the liquor shall be supplied and consumed with, or as ancillary to, the consumption of edible refreshments supplied by the licensee. 15    It is to be observed that none of these provisions require the licensee to be the person conducting the function or the occupier of the premises on which the function is conducted or the liquor supplied. 16    Reference may also be made to ss 39(2) (since repealed) and 101(6) which contain provisions limiting the definition of "the business of the licensed premises", thereby recognising that the provision of catering services will not be the principal business carried on the licensed premises. 17    In her Second Reading speech on the Liquor (Amendment) Bill which became Act no. 42 of 1994, the Minister said (Hansard, 3 May 1994 at 1755):

"The bill also alters the caterer's licence provisions of the Liquor Act so that a caterer will not be required to operate a permanent function centre in order to obtain a liquor licence. At present it is a requirement that a caterer in order to hold a caterer's licence have a function room with at least 50 seats and minimum sanitary facilities. Caterers are then authorised to sell liquor in that function room or on any other premises on which the licensee provides catering services, whether or not occupied or controlled by the licensee. The bill will remove this function room requirement for caters' licences" (my emphasis).

18 The concept of a catering licence is therefore to permit a person supplying food at functions, such as conventions, sporting events, race meetings, agricultural or other shows and similar events provided for public entertainment to sell liquor at such functions for consumption on the premises on which the function is being held. Such functions will not normally be conducted by persons whose principal business is the provision of edible refreshments, but by cricket or football associations, race clubs, show societies, etc. If catering licences could only be granted to applicants whose principal business was the provision of edible refreshments, it is difficult to see how they could ever be granted in respect of the great majority of events referred to in the definition of "function". Not only will people providing catering services not be conducting sporting events, race meetings, etc; but the persons conducting such functions (even apart from their corporate nature) will not have the skills, qualifications or experience required by holders of caterers' licences. 19 The essential question, it seems to me, is whether an employee such as the plaintiff can be said to "carry on the business of providing catering services". If she can, the next question is whether such business is "her" principal business, not anyone else's principal business. On the other hand, if the plaintiff cannot be said to "carry on the business of providing catering services" (eg, because she is an employee) the second question does not arise, because she does not fulfil the first requirement of s 54B(1)(a). 20 The meaning of to "carry on business" it has been said depends on its context. In Ex parte Breull, re Bowie (1880) 16 ChD 484 it was held to include carrying on business as an employee, whereas in Graham -v- Lewis (1888) 22 QBD 1 it was held it only applied to carrying on one's own business. More recently the Full Federal Court has followed Graham -v- Lewis and held that a person is not carrying on business merely by managing a company of which he is a director, secretary and "controlling presence". However, all these were bankruptcy cases where, having regard to the serious consequences of a sequestration order being made, a narrow construction was warranted. 21    Under the Liquor Act where the grant of licenses is facultative such a narrow construction is, in my view, not necessary or appropriate. 22    In Hope -v- Bathurst City Council (1980) 144 CLR 1, Mason J at 8 pointed out that "business" has many meanings and said that "carrying on business" implied a repetition of acts engaged in for the purpose of profit on a continuous and repetitive basis. That and a number of other cases, e.g. Pioneer Concrete Services [1985] VR 675, Town Investments Ltd -v- Department of the Environment [1978] AC 359, Hughes -v- Clubb (1987) 10 NSWLR 325 have been concerned with the repetitive element involved in carrying on a business, but in Rolls -v- Miller (1884) 27 ChD 71 at 88, Lindley LJ said "business" means "almost anything which is an occupation as distinguished from a pleasure - anything which is an occupation or duty which requires attention is a business". 23 Apart from the bankruptcy cases, no distinction appears to have been drawn between carrying on business for oneself and carrying on business as an employee for someone else; and the same can be said of the dictionaries, eg, the Macquarie Dictionary includes in the definitions of carry on (p 302), "to manage or conduct", and of business (p 271), "one's occupation, profession or trade", whilst the Concise Oxford Dictionary, 2nd ed, includes as the definition of carry on (p 151), "to manage (business)" and of business (p 133), "habitual occupation, profession, trade", and the Compact Oxford English Dictionary, new ed, under the entry business, includes (p 695), "serious occupation, work as opposed to pleasure or recreation" and "serious employment as distinguished from a pastime". 24 In the present case, the plaintiff in conducting and managing the commercial kitchen will be carrying on her occupation, trade or employment requiring her attention of a repetitive nature and not engaged in for pleasure. She will therefore, in my view be "carrying on the business of providing catering services". 25 The Licensing Court found that the applicant's "principal activity, and accordingly the activities in which she is principally engaged is, or will be, that of providing catering services." Contrary to the submissions on behalf of the defendant I consider that finding to be justified on the material before that Court. As the provision of catering services is, or will be her principal activity, and as I have found such activity amounts to the carrying on of a business by her, it follows that the carrying on of that business by her is, or will be, her principal business. 26 It also follows that the conditions prescribed by s 54B(1)(a) were satisfied, and the Licensing Court was in error in also requiring it to be established that the provision of catering services was or would be the principal business of AMF. 27 For these reasons the defendant's Notice of Contention fails and the plaintiff's appeal succeeds. 28 I make the following orders:

Appeal upheld;
Order of Licensing Court refusing the application set aside;
Application remitted to Licensing Court to be dealt with according to law;
Defendant to pay plaintiff's costs of the Summons.

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Last Modified: 05/31/1999