MONDELLO -v- McEWAN [2004] WASCA 225
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 225 | |
| Case No: | SJA:1069/2004 | 27 SEPTEMBER 2004 | |
| Coram: | JENKINS J | 1/10/04 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed, Order of dismissal quashed, Matter remitted to the Court of Petty Sessions Geraldton | ||
| B | |||
| PDF Version |
| 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
- 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
(Page 2)
Legislation:
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- 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).
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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