OSB Operations Pty Ltd Licensee of the Old Swan Brewery Restaurant v Jansen

In this case, OSB Operations Pty Ltd, the licensee of the Old Swan Brewery Restaurant, brought a proceeding against the respondents, who resided directly above the function room of the licensed premises. The dispute centred around complaints from the respondents about noise and behaviour from the licensed premises, which they alleged was causing undue disturbance. The Central Authority had previously determined that the noise levels from the function room did not breach the assigned levels, yet the respondents continued to lodge complaints. The matter was brought before the Supreme Court of Western Australia.

The primary legal issues addressed by the court were the interpretation of the terms "neighbourhood" and "vicinity" as they appear in section 117(1) of the Liquor Licensing Act 1988 (WA). The court also had to determine whether the respondents' complaints constituted an "undue" disturbance and whether the evidence supported an ongoing breach of the Act. The court was tasked with applying an objective test to these issues, taking into account the specific circumstances of the case.

The court concluded that the term "neighbourhood" does not necessarily require a large group of people or properties; in this case, the respondents' single apartment could constitute a neighbourhood for the purposes of the Act. The term "vicinity" was interpreted to have a similar, if not identical, meaning to "neighbourhood" and should not be given a wider construction. The court held that the respondents' complaints, while valid, did not amount to an "undue" disturbance, as there was no evidence of noise measurements in excess of the assigned levels during 2005. Consequently, the court found that there was no ongoing breach of the Liquor Licensing Act.

As a result of the court's findings, the proceeding was dismissed, and the respondents' complaints were deemed not to constitute a breach of the Act. The court emphasised the importance of an objective assessment of the evidence in such matters and the need for a higher threshold to be met in establishing an "undue" disturbance.