Milne v Thirsty Point Pty Ltd

[1999] WASCA 100

MILNE -v- THIRSTY POINT PTY LTD [1999] WASCA 100

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[1999] WASCA 100
Case No:	SJA:1044/1999	Heard:	9 JUNE 1999
Coram:	WHEELER J	Delivered:	30/07/99
No of pages:	6	Judgment Part:	1 of 1
Result:	Appeals allowed
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Parties:	PHILLIP ANDREW MILNE THIRSTY POINT PTY LTD
Catchwords:	Liquor law Proof of identity of respondent Approved manager and director controlling mind of respondent Turns on own facts
Legislation:	Liquor Licensing Act 1988 (WA)
Case References:	Cuevas v Freeman Motors Ltd (1975) 8 ALR 321 Farlodge Pty Ltd v Bradley, unreported; SCt of WA; Library No 930006; 12 January 1993 G J Coles & Coy Ltd v Goldsworthy [1985] WAR 183 Holden v Sainken, unreported; SCt of WA (Scott J); Library No 970700; 12 December 1997 Jackson v Dyball (1993) 74 A Crim R 10 Lipke v Goombungee Co-operative Dairy Co Ltd [1980] St R Qd 108 Tesco Supermarkets Ltd v Nattrass [1971] 2 WLR 1166 Anderson v Basile [1979] WAR 53 Douglas-Brown v The Commissioner of Police, unreported; FCt SCt of WA; Library No 950012; 16 January 1995 Jackson v Dyball (1993) 74 A Crim R 10 Lonergan Pty Ltd v The Commissioner of Police for the State of Western Australia, unreported; FCt SCt of WA; Library No 960309; 12 June 1996 R v Langton (1876) 2 QBD 296 R v Seidel (1923) SASR 522 Tomazin v Ward, unreported; FCt SCt of WA; Library No 970023; 6 February 1997

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : MILNE -v- THIRSTY POINT PTY LTD [1999] WASCA 100 CORAM : WHEELER J HEARD : 9 JUNE 1999 DELIVERED : 30 JULY 1999 FILE NO/S : SJA 1044 of 1999 BETWEEN : PHILLIP ANDREW MILNE

Appellant

AND

THIRSTY POINT PTY LTD
Respondent

Catchwords:

Liquor law - Proof of identity of respondent - Approved manager and director controlling mind of respondent - Turns on own facts

Legislation:

Liquor Licensing Act 1988 (WA)

Result:

Appeals allowed

(Page 2)

Representation:

Counsel:

Appellant : Mr R M Mitchell
Respondent : Mr P W Nichols

Solicitors:

Appellant : State Crown Solicitor
Respondent : Davies & Co

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

Cuevas v Freeman Motors Ltd (1975) 8 ALR 321
Farlodge Pty Ltd v Bradley, unreported; SCt of WA; Library No 930006; 12 January 1993
G J Coles & Coy Ltd v Goldsworthy [1985] WAR 183
Holden v Sainken, unreported; SCt of WA (Scott J); Library No 970700; 12 December 1997
Jackson v Dyball (1993) 74 A Crim R 10
Lipke v Goombungee Co-operative Dairy Co Ltd [1980] St R Qd 108
Tesco Supermarkets Ltd v Nattrass [1971] 2 WLR 1166

Case(s) also cited:

Anderson v Basile [1979] WAR 53
Douglas-Brown v The Commissioner of Police, unreported; FCt SCt of WA; Library No 950012; 16 January 1995
Jackson v Dyball (1993) 74 A Crim R 10
Lonergan Pty Ltd v The Commissioner of Police for the State of Western Australia, unreported; FCt SCt of WA; Library No 960309; 12 June 1996
R v Langton (1876) 2 QBD 296
R v Seidel (1923) SASR 522
Tomazin v Ward, unreported; FCt SCt of WA; Library No 970023; 6 February 1997

(Page 3)

1 WHEELER J: This is an appeal from a decision of the Court of Petty Sessions at Moora on 3 March 1999 where two complaints made against the respondent were dismissed.

2 The first complaint alleged that the respondent:

"…being the licensee for the licensed premises known as the Thirsty Point Liquor Store, subject of a liquor store licence under the provisions of Section 47 Liquor Licensing Act, 1988, permitted Johanna Maria BAHR to manage the business carried on there under the licence without the approval of the Licensing Authority. Section 101(3)b Liquor Licensing Act, 1988".

3 The second complaint alleged that the respondent:

"…being the licensee licensed premises known as the Thirsty Point Liquor Store, subject of a Liquor Store Licence under the provisions of Section 47 of the Liquor Licensing Act 1988 sold liquor, namely Strongbow Alcoholic Cider from the licensed premises to a person, otherwise than during permitted hours, such person not being an employee or agent of the licensee. Section 111(1)a Liquor Licensing Act 1988, and Section 165 Liquor Licensing Act 1988".

4 The same complaints were made against one Michael Walter Bahr, as the approved manager of the licensed premises, upon which he was convicted.

5 The respondent is alleged to be the licensee of a licensed liquor outlet, the Thirsty Point Liquor Store, in Cervantes. On Sunday, 28 December 1997 Mrs Hoeksema, a staff member, was working at the store. At about 3 o’clock that afternoon a person went to the store and purchased a six-pack of Strongbow cider. When the person left the store she was approached by a police officer. The police officer then entered the liquor store and spoke with Mrs Hoeksema. As a result of this Mrs Johanna Bahr attended at the store at about 3.30pm. The police officer spoke with Mrs Bahr and asked to see the extended trading permit for that day. Mrs Bahr indicated to the police officer that the paperwork was at her residence in Cervantes. Both Mrs Bahr and the police officer went to the residence where Mrs Bahr was unable to locate a copy of an extended trading permit application or an approved permit. On 29 December 1997 Mrs Bahr faxed to the police officer copies of applications in relation to extended trading by Thirsty Point Liquor Store for 21 December 1997, 28 December 1997 and 4 January 1998.

(Page 4)

6 The police officer interviewed Mrs Bahr and Mr Bahr in the course of his inquiries. Both in his record of interview and in examination-in-chief before the learned Magistrate, Mr Bahr said that he was the approved manager of the Thirsty Point Liquor Store. He also said in his record of interview, that he was the director of Thirsty Point Pty Ltd (the respondent). It is clear from the conviction of Mr Bahr personally, that the Magistrate must have accepted that Strongbow alcoholic cider was sold from the premises other than during permitted hours and that Mrs Bahr was permitted to manage the business at the premises by Mr Bahr.

7 His Worship's reasons for dismissing the complaints against the respondent are not entirely clear. There appears to have been a strong element of "enough is enough" in his reasoning. He said, inter alia:

"We've got four entities here charged with the sale of the six stubbies. I mean, surely, on a commonsense point of view, that is ludicrous…Who is the person responsible? Well it must be Michael Bahr, musn't? …

I mean, clearly, although a limited company as a corporate body, its body cannot physically do things…

So if anyone has committed an offence, I would have thought it was Michael Bahr but not Hoeksema and not Thirsty Point Liquor, save of course, perhaps, through … a vicarious situation."

8 One can have sympathy with his Worship's view that perhaps excessive zeal was being exhibited in the prosecution of Mr Bahr, Mrs Hoeksema and the company for a relatively minor offence. However, that is a view which would be relevant to penalty, rather than to conviction. Further, it should be noted that it has long been recognised that in the area of liquor licensing, particular and unusual responsibilities are imposed upon licensees (Holden v Sainken, unreported; SCt of WA (Scott J); Library No 970700; 12 December 1997).

9 I do not think it is necessary to set out the grounds of appeal. The relevant legal principles were not in dispute before me. It was accepted both by the appellant and the respondent that the issues for my determination were whether the appellant had adequately proven the identity of the respondent (an issue raised before his Worship, but not decided by him because of his acquittal of the respondent for other reasons) and the issue of whether the knowledge of Mr Bahr was

(Page 5)

attributable to the respondent. The appellant raised a further issue in relation to s 165 of the Liquor Licensing Act, with which in my view it is not necessary to deal.

10 The existence of Thirsty Point Pty Ltd was not proven by means of a Certificate of Incorporation, as provided for in s 79 of the Evidence Act. That is not the exclusive means by which incorporation may be proven. Incorporation of a company may also be proved by parol evidence: Cuevas v Freeman Motors Ltd (1975) 8 ALR 321 at 324, Lipke v Goombungee Co-operative Dairy Co Ltd [1980] St R Qd 108.

11 The evidence from which the incorporation and existence of Thirsty Point Pty Ltd could be inferred was as follows. It appeared by its counsel at the Court of Petty Sessions in response to a summons directed to that entity. Mr Bahr in his record of interview made reference to Thirsty Point Pty Ltd as the licensee and stated that he was a director of that company. Mrs Bahr, an employee of the respondent, said in her record of interview that "the licence is under Thirsty Point Pty Ltd trading as Thirsty Point Liquor Store". There were tendered before his Worship, applications for extended trading permits on a variety of dates sent to the licensing authority which were made out in the name of Thirsty Point Pty Ltd as licensee, and in one of which an ACN number was also given. There was in my view ample evidence that there was in existence a corporation by the name of the respondent.

12 The requirement for knowledge arises, at least in respect of the complaint of contravening s 101(3) of the Act, because that offence is committed by a licensee who "permits" a person lacking relevant approval to manage the business. The concept of "permitting" involves a degree of knowledge: Jackson v Dyball (1993) 74 A Crim R 10. The knowledge or belief of a corporation may be constituted by the knowledge or belief of one or more of its officers. The persons whose knowledge may be attributed to the company include the directors, managing director, or persons to whom the directors have delegated "some part of their functions of management" and who have been given "a full discretion to act independently of instructions from [the directors]": Tesco Supermarkets Ltd v Nattrass [1971] 2 WLR 1166, at 1177 per Lord Reid, G J Coles & Coy Ltd v Goldsworthy [1985] WAR 183, Farlodge Pty Ltd v Bradley, unreported; SCt of WA; Library No 930006; 12 January 1993.

13 Mr Bahr, as I have noted, was both a director and the approved manager of the store. An approved manager has a role of some importance under the Liquor Licensing Act 1988. (The following

(Page 6)

references are to the Act as at the date of the alleged offences). By s 37, a licence shall not be granted by the licensing authority unless the licensing authority is satisfied, where the applicant is a body corporate, that a natural person approved by the licensing authority as a fit and proper person is, or is to be appointed by, and consents to act for, and be responsible to that body as its manager. By s 35(2) the natural person approved as the manager "may deal and be dealt with, and under s 101 may be liable, as though that person were also a licensee of those premises", the name of the manager is to be indorsed on the license or permit and the approval of the director is required for a change of manager. Such a person would appear to be appropriately regarded as the "directing mind" of the company for the purposes of the Act. Further, it is clear from the evidence-in-chief and the cross-examination of Mr Bahr before the learned Magistrate, that he considered himself able to authorise trading on the relevant day and to give instructions to Mrs Bahr and to Mrs Hoeksema. There was no suggestion in any of the evidence that he was acting outside the scope of his authority as manager.

14 I do not see how it could be doubted that Mr Bahr, as a very active director and as the approved manager of the respondent, was a person who was relevantly the directing mind of the respondent for the purposes of the offences alleged in these two complaints. His Worship having found as a matter of fact that Mr Bahr did permit the relevant sale of the cider and did permit management of the premises by Mrs Bahr, it follows that he should have convicted the respondent also of those offences. The appeal in respect of each complaint should be therefore be allowed.