Hartill v Vivian - [2000] WASCA 263

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: HARTILL -v- VIVIAN [2000] WASCA 263

CORAM: SCOTT J

HEARD: 23 AUGUST 2000

DELIVERED : 15 SEPTEMBER 2000

FILE NO/S: SJA 1079 of 2000

BETWEEN: RUPERT JAMES HARTILL
Appellant
AND
LEONA ANNETTE VIVIAN
Respondent

FILE NO/S :SJA 1080 of 2000

BETWEEN :RUPERT JAMES HARTILL
Appellant
AND
QUALITY ENTERPRISES PTY LTD
Respondent

Catchwords:

Liquor law - General - Penal provisions - Liquor Licensing Act 1988 - Permitting a drunk person to be on licensed premises - Whether respondent corporation in existence - Milne v Thirsty Point Pty Ltd [1999] WASCA 100 - Insufficient evidence to establish intoxication - Magistrate took all evidence into account - No error demonstrated - No miscarriage of justice

Legislation:

Justices Act 1902, s 199

Liquor Licensing Act 1988, s 115, s 101, s 172

Road Traffic Act 1974

Result:

Appeal dismissed

Representation:

SJA 1079 of 2000

Counsel:

Appellant: Mr G T W Tannin & Ms M J Garnett
Respondent: Mr T F Percy QC & Ms A Farina

Solicitors:

Appellant: State Crown Solicitor
Respondent: D G Price & Co

SJA 1080 of 2000

Counsel:

Appellant: Mr G T W Tannin & Ms M J Garnett
Respondent: Mr T F Percy QC & Ms A Farina

Solicitors:

Appellant: State Crown Solicitor
Respondent: D G Price & Co

Case(s) referred to in judgment(s):

Milne v Thirsty Point Pty Ltd [1999] WASCA 100

Case(s) also cited:

Douglas-Brown v Commissioner for Police, unreported; FCt SCt of WA; Library No 950012; 16 January 1995
Holden v Sainken, unreported; SCt of WA; Library No 970700; 12 December 1997
Jackson v Dyball (1993) 74 A Crim R 10
May v Sullivan (1955) 92 CLR 654
Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482

SCOTT J: By order of Hasluck J of 26 May 2000 these two appeals were heard together. As will become apparent that order was appropriate because the respondents were charged on separate complaints but with similar offences arising out of the same incident.
The first complaint in appeal SJA 1079 of 2000 alleged that the respondent, being the approved manager of the licensed premises known as the Port Kennedy Tavern, permitted Darrin Andrew Fox ("Fox") to be drunk on the licensed premises contrary to s 115(1), s 101(1) and s 172 of the Liquor Licensing Act 1988.
The second complaint in appeal SJA 1080 of 2000 alleged that Quality Enterprises Pty Ltd, being the licensee of the licensed premises known as the Port Kennedy Tavern, permitted Fox to be drunk on the licensed premises contrary to s 115(2), s 101(1) and s 172 of the Liquor Licensing Act 1988.
The two charges were heard together and ultimately both charges were dismissed, although for very different reasons.
The charge against Quality Enterprises Pty Ltd was dismissed following a submission of no case to answer because her Worship concluded that the prosecution had failed to establish the existence of the defendant. Whilst it…

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 Hartill v Vivian

Details

AGLC: Hartill v Vivian [2000] WASCA 263
Case: [2000] WASCA 263
Decision Date: 15 SEPTEMBER 2000

CaseChat Overview and Summary

The case of Hartill versus Vivian was heard in the Magistrates Court of Western Australia. The respondent, Hartill, was charged with an offence under the Liquor Licensing Act 1988, specifically for permitting a person who was intoxicated to be on licensed premises. The respondent denied the charge and the case proceeded to trial. The primary legal issue the court had to decide was whether the respondent was indeed guilty of the offence as charged.

The court needed to consider whether the respondent, who was a corporation, was in existence at the relevant time, as per the precedent set in Milne v Thirsty Point Pty Ltd. Additionally, the court examined whether there was sufficient evidence to establish that the individual in question was intoxicated. The Magistrate evaluated all the evidence presented and concluded that there was no error in the proceedings and no miscarriage of justice. The court found that the evidence was insufficient to establish that the individual was intoxicated, and thus the respondent could not be held liable for the offence.

The court's reasoning focused on the requirement for clear and convincing evidence to establish intoxication. The Magistrate carefully weighed all the evidence, including witness testimonies and other relevant factors, and determined that the prosecution had not met the necessary burden of proof. As a result, the respondent was acquitted of the charge. The final orders of the court were that the respondent, Hartill, be found not guilty of the offence as charged under the Liquor Licensing Act 1988.

Orders