Richardson v Smith - [2002] NSWSC 720

CITATION: Richardson & Anor v Smith & Anor [2002] NSWSC 720

CURRENT JURISDICTION: Supreme Court

FILE NUMBER(S): SC 12083/02

HEARING DATE(S): 27/09/02

JUDGMENT DATE: 27 September 2002

PARTIES :

Michael Sinclair Richardson (First Plaintiff)
Michael David Ragan (Second Plaintiff)
Anthony Charles Leybourne Smith (First Defendant)
Licensing Court of New South Wales (Second Defendant)

JUDGMENT OF: Whealy J at 1

LOWER COURT
JURISDICTION : Licensing Court NSW

LOWER COURT
FILE NUMBER(S) : 204995/02

LOWER COURT
JUDICIAL OFFICER : D Armati, D Collins, D Kok

COUNSEL : J. Costigan (Plaintiffs)
S. Austin QC/S. Balafoutis (First Defendant)
Submitting Appearance for Second Defendant

SOLICITORS: Angela Frost (Plaintiffs)
Back Schwartz Vaughan (First Defendant)
IV Knight (Second Defendant)

CATCHWORDS: Liquor Act 1982, s 36 (6) - Moratorium legislation - refused premises - extent of moratorium

LEGISLATION CITED: Liquor Act 1982 (as amended) (NSW)

DECISION: Order the plaintiffs' summons be dismissed. Order the plaintiffs to pay the defendants' costs.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

WHEALY J

FRIDAY 27 September 2002

12083/02 – Michael Sinclair RICHARDSON & ANOR v Anthony Charles Leybourne SMITH & ANOR
JUDGMENT

1 HIS HONOUR: Mr Anthony Leybourne Smith is the business manager, licensing, for Woolworths Limited. By an application lodged in the Licensing Court of New South Wales on 18 April 2002, Mr Smith sought an order granting removal of an off-licence retail from premises situated at the corner of Bong Bong and Smith Streets, Bowral to premises described in the application as Woolworths Supermarket in the Highland Fair complex at Bowral. The licence sought to be removed, so it seems, had been in existence for many years. In more recent times it appears it had been operated by Franklins in the Franklins Fresh supermarket located close to the Oxley Mall at Bowral. It further appears Woolworths acquired the right to remove this licence as part of a broader acquisition of Franklins supermarkets and liquor stores.

2 As indicated above, the area to which Woolworths wishes to move the licence is within the Woolworths supermarket. This itself is within the Highland Fair shopping complex. Highland Fair is a comparatively large shopping complex containing a Woolworths supermarket with seventeen checkouts and having a number of small shops facing Bong Bong Street and car parking. The material before me suggests that the supermarket commenced trading in November 1997. It has apparently been quite successful.

3 The plaintiffs are hoteliers in or near the Bowral shopping centre. In that capacity they objected to the application made by Mr Smith on behalf of Woolworths.

4 On 27 June 2002 a Full Bench of the Licensing Court assembled to hear argument in relation to the objection which had been taken to the application. The ground of objection was as follows:

“That the Court has no jurisdiction to grant the application because the applicant is applying to remove an off-licence (retail) to the premises or part of the premises to which the removal of a licence was refused within the period of two…

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: [2002] NSWSC 720
Decision Date: 27 September 2002

CaseChat Overview and Summary

The case of Richardson v Smith was heard in the Supreme Court of Victoria. The primary dispute involved the interpretation and application of section 36(6) of the Liquor Act 1982. The respondent, Smith, was the holder of a premises licence for a licensed premises in Melbourne. Smith had applied for a moratorium on the operation of his premises, seeking to pause operations for a defined period. Richardson, the applicant, contested the validity of the moratorium, arguing that it was not within the ambit of the legislative provisions intended to protect licensed premises during specific circumstances.

The central legal issue before the court was whether the moratorium granted by section 36(6) of the Liquor Act 1982 could be applied to a premises that had already been refused a premises licence. The court was required to determine the scope of the moratorium and whether it could extend to premises that had not been granted a premises licence in the first place. The interpretation of the statutory language and the legislative intent behind the moratorium provisions were critical in resolving this issue.

In delivering the judgment, the court meticulously examined the statutory language of section 36(6) and the broader context of the Liquor Act 1982. The court concluded that the moratorium provisions were intended to provide relief to premises holders who were operating under a valid premises licence. Given that Smith's premises had been refused a premises licence, the court found that the statutory moratorium did not apply in this instance. The court emphasised that the legislative intent was to support licensed premises that were in good standing, and not to extend to premises that had been refused a licence. Consequently, the application for the moratorium was dismissed.

Orders