FAZIO -v- CASTLEDINE [2007] WASC 25

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WASC 25
Case No:	SJA:1113/2005	Heard:	2 MARCH 2006
Coram:	JOHNSON J	Delivered:	8/02/07
No of pages:	45	Judgment Part:	1 of 1
Result:	Appeal No SJA 1113 of 2005 dismissed Appeal No SJA 1114 of 2005 dismissed Appeal No SJA 1115 of 2005 allowed Appeal No SJA 1116 of 2005 dismissed
Category:	B
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Parties:	RUDOLPHO ROSSARIO FAZIO STEPHEN JAMES CASTLEDINE TORI-ANNE VALLIC AARON JOHN HOLLANDS DORIGO PTY LTD trading as THE CLINK
Catchwords:	Selling alcohol to a drunken person on licensed premises Definition of sale Whether indirect sale sufficient Whether s 165 creates vicarious and strict liability on a licensee Whether s 165 is an offence creating provision Latent duplicity Election
Legislation:	Liquor Licensing Act 1988 s 3, s 5, s 100, s 115, s 165, s 170(a)
Case References:	Belel Pty Ltd v Baxter [2001] WASCA 225 Douglas-Brown v Commissioner of Police (1995) 13 WAR 441 DPP v Merriman [1973] AC 584 Holden v Sainken, unreported; SCt of WA; Library No 970700; 12 December 1997 Jackson v Dyball (1993) 74 A Crim R 10 Johnson v Miller (1937) 59 CLR 467 Montgomery v Stewart (1967) 116 CLR 220 O'Dea v Glendinning, unreported; SCt of WA; Library No 930599; 26 June 1992 R v Lawson [1952] 1 All ER 804 S v The Queen (1989) 168 CLR 266 Stanton v Abernathy (1990) 19 NSWLR 656 Tomlin v R (1954) 38 Cr App R 82 Walsh v Tattersall (1996) 188 CLR 77

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : FAZIO -v- CASTLEDINE [2007] WASC 25 CORAM : JOHNSON J HEARD : 2 MARCH 2006 DELIVERED : 9 FEBRUARY 2007 FILE NO/S : SJA 1113 of 2005 BETWEEN : RUDOLPHO ROSSARIO FAZIO

Appellant

AND

STEPHEN JAMES CASTLEDINE

Respondent

FILE NO/S : SJA 1114 of 2005 BETWEEN : TORI-ANNE VALLIC

Appellant

AND

STEPHEN JAMES CASTLEDINE

Respondent

FILE NO/S : SJA 1115 of 2005 BETWEEN : AARON JOHN HOLLANDS

Appellant

AND

STEPHEN JAMES CASTLEDINE

Respondent

(Page 2)

FILE NO/S : SJA 1116 of 2005 BETWEEN : DORIGO PTY LTD trading as THE CLINK

Appellant

AND

STEPHEN JAMES CASTLEDINE

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES' COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE T J McINTYRE

File No : FR 2609 of 2005, FR 2610 of 2005, FR 2612 of 2005

Result : Appeal dismissed

Jurisdiction : MAGISTRATES' COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE T J McINTYRE

File No : FR 2611 of 2005

Result : Appeal allowed

Catchwords:

Selling alcohol to a drunken person on licensed premises - Definition of sale - Whether indirect sale sufficient - Whether s 165 creates vicarious and strict liability on a licensee - Whether s 165 is an offence creating provision - Latent duplicity - Election

Legislation:

Liquor Licensing Act 1988 s 3, s 5, s 100, s 115, s 165, s 170(a)

(Page 3)

Result:

Appeal No SJA 1113 of 2005 dismissed

Appeal No…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Fazio v Castledine

Details

AGLC: Fazio v Castledine [2007] WASC 25
Case: [2007] WASC 25
Decision Date: 9 FEBRUARY 2007

CaseChat Overview and Summary

The case of Fazio v Castledine involved an appeal against convictions for selling alcohol to a person who was already intoxicated on licensed premises. The defendants, who were licensees of the premises, argued that the sale was not direct but rather indirect, and thus, they were not liable under s 165 of the relevant legislation. The court was required to determine whether the definition of "sale" included indirect sales and whether s 165 created vicarious and strict liability on a licensee. The court also had to decide whether s 165 was an offence-creating provision and whether latent duplicity and election applied in this context.

The court examined the definition of "sale" and concluded that it encompassed indirect sales as well. The court held that s 165 created strict liability on a licensee for the actions of their employees, but not vicarious liability. The court further determined that s 165 was an offence-creating provision, and that latent duplicity and election did not apply in this case. The court found that the defendants were guilty of selling alcohol to an intoxicated person and upheld the convictions, except in one instance where the appeal was allowed.

The court dismissed the appeals in three of the cases and allowed the appeal in one case. The court's decision clarified the scope of s 165 and its implications for licensees and their employees. The final orders were that appeal No SJA 1113 of 2005, appeal No SJA 1114 of 2005, and appeal No SJA 1116 of 2005 were dismissed, while appeal No SJA 1115 of 2005 was allowed.

Orders

Orders of the court

Appeal No SJA 1113 of 2005 dismissed

Appeal No SJA 1114 of 2005 dismissed

Appeal No SJA 1115 of 2005 allowed

Appeal No SJA 1116 of 2005 dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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