Mondello v McEwan

Case [2004] WASCA 225


MONDELLO -v- McEWAN [2004] WASCA 225



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2004] WASCA 225
Case No:SJA:1069/200427 SEPTEMBER 2004
Coram:JENKINS J1/10/04
20Judgment Part:1 of 1
Result: Appeal allowed, Order of dismissal quashed, Matter remitted to the Court of Petty Sessions Geraldton
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Parties:STEPHEN EZIO MONDELLO
GLADYS MAE McEWAN

Catchwords:

Liquor
Sale of liquor to a juvenile
Defence under the Liquor Licensing Act 1988 (WA), s 125(1)(c) not applicable to an offence on licensed premises
Whether respondent properly charged as the licensee of the licensed premises

Legislation:

Liquor Licensing Act 1988 (WA), s 3, s 35, s 35B, s 100(3)(a), s 100(7), s 101(1), s 101(2), s 121(1), s 122, s 125, s 125(1)(c), s 165(1), s 172(1)(c)

Case References:

Anderson v Basile [1979] WAR 53
Belel Pty Ltd v Baxter [2001] WASCA 225
Nelson & Ors v Bond, unreported; SCt of WA (White J); Library No 930343; 17 June 1993

Abalos v Australian Postal Commission (1990) 171 CLR 167
Bropho v State of Western Australia (1990) 171 CLR 1
Devries v Australian National Railways Commission (1993) 177 CLR 472
Dorrington v G (A Child) (1992) 16 MVR 453
Douglas-Brown v Commissioner of Police (1995) 13 WAR 441
Fox v Percy (2003) 214 CLR 118
Hayes v Wilson; ex parte Hayes [1984] 2 Qd R 114
Hedge v Thurstun [2001] WASCA 43
Higgon v O'Dea [1962] WAR 140
Holden v Sainken, unreported; SCt of WA (Scott J); Library No 970700; 12 December 1997
Jones v Hyde (1989) 85 ALR 23
Kalgoorlie Regional Traffic Control v Fostinelli [1974] WAR 3
Keeley v Kjellgren (1966) WAR 149
Mathews v Foggitt Jones Ltd (1926) 37 CLR 455
Meiklejohn v Central Norseman Gold Corporation (1996) 89 A Crim R 311
Mitchell v Myers (1955) 57 WALR 49
Mousell Brothers Ltd v London and North-Western Railway Company [1917] 2 KB 836
R v Australasian Films Ltd (1921) 29 CLR 195
Surman v South Australian Police (1996) 65 SASR 421
Thompson v His Honour Judge Byrne (1999) 196 CLR 141
Tiger Nominees Pty Ltd v State Pollution Control Commission (1992) 25 NSWLR 715
Trade Practices Commission v Gillette Company (No 2) (1993) 45 FCR 466
Waugh v Kippen (1986) 160 CLR 156

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
    IN CIVIL
CITATION : MONDELLO -v- McEWAN [2004] WASCA 225 CORAM : JENKINS J HEARD : 27 SEPTEMBER 2004 DELIVERED : 1 OCTOBER 2004 FILE NO/S : SJA 1069 of 2004 MATTER : Justices Act 1902 BETWEEN : STEPHEN EZIO MONDELLO
    Appellant

    AND

    GLADYS MAE McEWAN
    Respondent


ON APPEAL FROM:

Jurisdiction : COURT OF PETTY SESSIONS

Coram : DR KING SM

File Number : GN 3933 of 2003



Catchwords:

Liquor - Sale of liquor to a juvenile - Defence under the Liquor Licensing Act 1988 (WA), s 125(1)(c) not applicable to an offence on licensed premises - Whether respondent properly charged as the licensee of the licensed premises



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Legislation:

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Details
AGLC
Mondello v McEwan [2004] WASCA 225
Case
[2004] WASCA 225
Decision Date

CaseChat Overview and Summary

In the case of Mondello v McEwan, the defendant, McEwan, was charged under the Liquor Licensing Act 1988 (WA) with the sale of liquor to a juvenile. The case was brought before the District Court of Western Australia, which was asked to determine whether the defendant was properly charged as the licensee of the premises where the alleged offence occurred. The defendant claimed that the defence under section 125(1)(c) of the Liquor Licensing Act 1988 (WA) should apply to him, as he was not the licensee of the premises. The central issue was whether the defence under section 125(1)(c) could be invoked by someone who was not the licensee of the premises where the alleged offence took place.

The court considered the meaning and scope of section 125(1)(c) of the Liquor Licensing Act 1988 (WA). The court found that the provision was not intended to apply to offences committed on licensed premises, but rather to situations where the licensee was not present at the time of the offence. Since the defendant was not the licensee of the premises, the court held that the defence under section 125(1)(c) was not available to him. The court determined that the defendant was properly charged as the licensee of the premises, and dismissed his defence on this basis.

The court's reasoning led to the conclusion that the appeal should be allowed, the order of dismissal quashed, and the matter remitted to the Court of Petty Sessions Geraldton. The court found that the defendant was properly charged as the licensee of the premises, and that the defence under section 125(1)(c) of the Liquor Licensing Act 1988 (WA) was not applicable in this case. The court's decision highlights the importance of properly charging individuals in liquor-related offences, and the limited scope of the defence under section 125(1)(c) of the Liquor Licensing Act 1988 (WA).

Orders

Orders of the court

Appeal allowed, Order of dismissal quashed, Matter remitted to the Court of Petty Sessions Geraldton

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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