Mackiewicz v Kal Holdings Pty Ltd - [1999] WASCA 84

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: MACKIEWICZ -v- KAL HOLDINGS PTY LTD & ANOR [1999] WASCA 84

CORAM: MILLER J

HEARD: 22 JUNE 1999

DELIVERED : 2 JULY 1999

FILE NO/S: SJA 1026 of 1999
SJA 1027 of 1999

BETWEEN: RICHARD JOHN MACKIEWICZ
Applicant
AND
KAL HOLDINGS PTY LTD
JAY NAREE KEMP
Respondents

Catchwords:

Liquor licensing - Restaurant licence - Sale of liquor ancillary to a meal - What is a genuine meal - Basket of wedges served in early hours of morning

Legislation:

Liquor Licensing Act 1988

Result:

Appeal dismissed

Representation:

Counsel:

Applicant: Mr B P King
Respondents : Mr D J Williams

Solicitors:

Applicant: State Crown Solicitor
Respondents : Talbot & Oliver

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

Brown v Bade [1985] VR 182
Koala Motels Pty Ltd v Chief Licensing Inspector (1978) 18 ALR 12
Mills v O'Donohue (1908) 10 WAR 81
Minagall v Ingram [1968] SASR 236
Sharp v Hotel International Ltd [1969] VR 103

Case(s) also cited:

R v Adams (1935) 53 CLR 563

MILLER J:
Appeal

This is an appeal from a decision of Mr W Tarr SM given in the Court of Petty Sessions at Kalgoorlie on 12 February 1999 when the learned Magistrate dismissed complaints against each of the respondents that on 29 October 1998 at Kalgoorlie they and each of them were in breach of the provisions of s 110(1)(a) of the Liquor Licensing Act 1988 by selling beer on the premises of Monty's Restaurant otherwise than as authorised by the provisions of the Act. The complaint against the first respondent was that it as licensee of the licensed premises subject to a restaurant licence had sold liquor (beer) on the premises to one Gary McCavanagh otherwise than as authorised by the provisions of the Act and the complaint against the second respondent was that she as the approved manager of licensed premises known as Monty's Restaurant subject to a restaurant licence had sold liquor (beer) on the premises to McCavanagh otherwise than as authorised by the Act.
On 12 March 1999 McKechnie J granted to the applicant leave to appeal the decisions of the learned Magistrate on the following grounds:
(a)The learned Magistrate erred in fact and in law in finding that a plate of potato wedges was a meal as defined in section 3 of the Liquor Licensing Act 1988 for the purposes of the authorisation under section 50 of that Act for the holder of a restaurant licence to sell liquor ancillary to a meal.
(b)The learned Magistrate erred in fact in not finding that the respondent sold liquor that was not ancillary to a meal.
(c)The learned Magistrate erred in law in not finding the charges proved.
The facts
There is no dispute in relation to the facts of the case. At about 2 am on the morning of 29 October 1998 two police officers (in plain clothes) arrived at Monty's Restaurant at the corner of Hannan and Porter Streets Kalgoorlie where Sergeant McCavanagh went…

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.

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Details

Case: [1999] WASCA 84
Decision Date: 2 JULY 1999

CaseChat Overview and Summary

In the matter of Mackiewicz v Kal Holdings Pty Ltd, the respondent was charged with selling liquor without a meal, in contravention of the Liquor Licensing Act 1988. The central issue revolved around whether a basket of potato wedges served in the early hours of the morning constituted a meal under the Act. The appeal was grounded on the Magistrate's decision that the basket of wedges could be considered a meal. The respondent argued that the Magistrate erred in fact and law in finding that the wedges were a meal and in not finding that the liquor was sold without a meal.

The Court of Appeal found that the complaints did not allege that liquor was sold without being consumed ancillary to a meal, but rather that the liquor was sold without a meal. The Court noted that the complaints were formulated to allege a failure to provide a meal within the meaning of the Act, rather than a failure to provide a meal ancillary to the consumption of liquor. The Court emphasised that the particularisation of the complaint placed the burden on the respondent to prove that the wedges constituted a meal. The Magistrate's decision was flawed as he did not correctly identify the burden of proof. The Court held that the Magistrate erred in concluding that the basket of wedges constituted a meal and in not finding that the liquor was sold without a meal.

The Court of Appeal quashed the conviction, ordered a rehearing of the matter, and remitted the matter to the Licensing Court for further consideration. The Court emphasised that the Magistrate should consider the nature of the meal served, the time of day, and whether the wedges constituted a substantial meal under the Act. The Court did not speculate on the outcome of the rehearing but highlighted the importance of correctly applying the burden of proof in such cases.

Orders

Orders of the court

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Background

Background to the litigation

On 12 March 1999 McKechnie J granted to the applicant leave to appeal the decisions of the learned Magistrate on the following grounds:(a)The learned Magistrate erred in fact and in law in finding that a plate of potato wedges was a meal as defined in section 3 of the Liquor Licensing Act 1988 for the purposes of the authorisation under section 50 of that Act for the holder of a restaurant licence to sell liquor ancillary to a meal.(b)The learned Magistrate erred in fact in not finding that the respondent sold liquor that was not ancillary to a meal.(c)The learned Magistrate erred in law in not finding the charges proved.The facts There is no dispute in relation to the facts of the case. At about 2 am on the morning of 29 October 1998 two police officers (in plain clothes) arrived at Monty's Restaurant at the corner of Hannan and Porter Streets Kalgoorlie where Sergeant McCavanagh went to the bar area and ordered two drinks from a person behind the bar. He thereupon received advice that he could not have those drinks unless he purchased a meal with the drinks. He was given a menu and when he asked what he had to order he was told that he could order "anything on the menu". He returned to his table where he spoke with his partner, Constable Bell, and between them they agreed to order a basket of wedges, which was an item listed on the menu. McCavanagh returned to the bar and placed the order which was taken. He thereupon ordered two drinks, namely a Swan Gold beer and a white wine. These were provided to him and he returned to the table where, about 20 minutes later, he and his partner were served with the wedges. These were eaten, and the two officers remained at their table for another hour and a half, during which time they ordered another three stubbies of beer and three wines. They left at approximately 3.45 am. It emerged in evidence before the learned Magistrate that the basket of wedges was served on a plate, with a bowl of sour cream. No knives or forks appeared to have accompanied the dish. At the hearing the defence called the second respondent who elaborated upon what a basket of wedges was. She pointed out that the restaurant had two menus, the menu changing at 11 pm each night. Wedges were available all day at the restaurant, being served before 11 pm in a china bowl but after 11 pm in a basket. Wedges were said to be "more substantial than chips" and "more filling as a meal". The second respondent stressed that in terms of quantity the basket of wedges was "enough to eat to fill you up" and would generally be a full serving for two people. Its cost was $5.50 and it comprised at least four to five potatoes which were served with a side serve of either sour cream, chilli sauce or tomato sauce at the customer's choice. The second respondent stressed that in her view a basket of wedges was "a genuine meal" … "a big meal" and in the design of the menu she had put on it things which were "substantial enough to drink alcohol". When cross-examined and faced with the suggestion that potato wedges were "more a snack than an actual meal" the second respondent was adamant that a basket of wedges was a meal, expressing the view that "potatoes are a substantial meal".The issues at trial

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Much time was devoted at the hearing to the provisions of s 52 of the Act which the learned Magistrate correctly identified as dealing with evidentiary matters. Section 52(2) provides that for the purposes of any proceedings under the Act, an allegation in the complaint that liquor purporting to be sold for consumption or consumed ancillary to a meal was not so sold or consumed shall be accepted as proved unless the licensee or person by whom the liquor was consumed as the case may be, establishes certain matters beyond reasonable doubt. However, in this case the complaints did not allege that liquor purporting to be sold for consumption or consumed ancillary to a meal was not so sold or consumed. The complaints alleged that liquor (beer) was sold on the premises otherwise than was authorised by the Act within the meaning of s 110(1a) of the Act. That section must be read with s 50(1), providing that the licensee of a restaurant licence is during permitted hours authorised to sell to any person liquor on the licensed premises for consumption on the premises ancillary to a meal supplied by the licensee. There was no allegation contained within either complaint that liquor purporting to be sold for consumption or consumed ancillary to a meal was not so sold or consumed within the meaning of s 50(2) of the Act. The particularisation of the complaint (by evidence) clearly formulated the primary allegation against the respondents as being a failure to provide "a meal" within the meaning of the definition of "meal" contained within the Act. There was a secondary allegation, namely, that the liquor was not consumed ancillary to a meal, although much less emphasis was placed on this allegation. No onus was therefore cast upon the respondents to prove beyond reasonable doubt the matters set out in s 52(2)(a-d) of the Act.The Magistrate's decision The learned Magistrate expressed the view that it was to be expected that the menu of the restaurant might change after 11 pm with what he described as "lesser types of meal" in the early hours of the morning. He pointed out that Parliament has not been specific in the definition of a genuine meal and that it must have been in the contemplation of the Licensing Court when issuing a 24‑hour licence to a restaurant that the same type of meals would not be served throughout those 24 hours. He added:"It seems to me that it's a reasonable expectation that there be lighter meals at lunch time, perhaps a different meal for the evening meal, and then later on, particularly in the early hours of the next day, a different type of meal would be served, more of a snack-type of meal, and I would have thought the authorities who issued the licence would have considered that to be the case…Now, meals are going to vary, as I said, not only from time to time of the day, but also in relation to each customer. For example, I suppose in relation to the breakfast menu, someone might want breakfast with a glass of champagne and one egg on toast, and would be considered a meal for the purpose of the legislation at that time of morning. Culinary tastes have changed over the years. The traditional middle class meal of meal and three vegetables is no longer necessarily the norm, and people eat a variety of foods for a variety of reasons…When I consider the type of meal or the type of presentation of the wedges, although there is only one type of food in the basket, it was clearly substantial. It was served in a way different, I would have thought, than it would have been served if someone had ordered another type of meal with a side serve of wedges. I wouldn't have thought that was the type of serve which would be served as a side serve of wedges.When I consider the time of day and the fact that at that time of day people generally are not looking for the type of meal or dinner they would have at 8 o'clock, but looking more for a supper-type meal, I can't, I believe, conclude that the basket of wedges could not be held to be a meal within the meaning of section 3 of the Liquor Licensing Act."Submissions on Appeal

Ratio Decidendi

Legal Principle Established

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