Smith v Granada Tavern and Ors (No.3) - [2007] FMCA 1548

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SMITH v GRANADA TAVERN & ORS (No.3)

[2007] FMCA 1548

INDUSTRIAL LAW – Imposition of penalty where finding of duress – consideration of matters relevant to penalty – accessorial liability.

Workplace Relations Act 1996 (Cth), s.400(5)

FSU v Commonwealth Bank of Australia [2005] FCA 1847
Kelly v Fitzpatrick [2007] FCA 1080
Canturi v Sita Coaches Pty Ltd [2002] FCA 349
Trade Practices Commission v TNT Australia Pty Ltd (1995) ATPR 40

Applicant:

INSPECTOR RAYMOND MURRAY SMITH

First Respondent:

ACN 090 444 518 PTY LTD T/AS GRANADA TAVERN

Second Respondent:

MICHAEL DAVID HIBBERD

Third Respondent:

JOCELYN MAREE BERECHREE

File number:

LNG 39 of 2006

Judgment of:

Burchardt FM

Hearing date:

2 July 2007

Date of last submission:

2 July 2007

Delivered at:

Melbourne (and by video link to Hobart)

Delivered on:

19 September 2007

REPRESENTATION

Counsel for the Applicant:

Mr J. Bourke & Mr M. Felman

Solicitors for the Applicant:

Clayton Utz Lawyers

Counsel for the First & Second Respondents:

Mr N.J. Clelland SC

Solicitors for the First & Second Respondents:

Simmons Wolfhagen

Counsel for the Third Respondent:

Ms K. Baumeler

Solicitors for the Third Respondent:

Butler, McIntyre & Butler

ORDERS

That the First Respondent pay to the consolidated revenue fund by way of penalty $24,750.00.
That the Second Respondent pay to the consolidated revenue fund by way of penalty $4,950.00.
That the Third Respondent pay to the consolidated revenue fund by way of penalty $1,980.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
HOBART

LNG 39 of 2006

INSPECTOR RAYMOND MURRAY SMITH

Applicant

And

A.C.N. 090 444 518 PTY LTD T/AS GRANADA TAVERN

First Respondent

MICHAEL DAVID HIBBERD

Second Respondent

JOCELYN MAREE BERECHREE

Third Respondent

REASONS FOR JUDGMENT

On 19 June 2007 I declared that each of the Respondents had contravened s.400(5) of the Workplace Relations Act 1996 (Cth)

(“the Act”) and gave my reasons for doing so.
The only matter still outstanding is what, if any, penalties I should impose on the three Respondents because of the duress that I have held they applied to Emily Wills, an employee of Granada Tavern in 2006.
Inspector Smith submitted that I should impose a penalty of 90 per cent of the applicable maximum on Granada Tavern and Michael Hibberd and a penalty of 50 per cent of the applicable maximum upon

Ms Berechree. The maximum for Granada Tavern is $33,000.00, and for the others it is $6,600.00.
Counsel for Granada Tavern and Mr Hibberd submitted that no penalty should be imposed on Granada Tavern and a relatively light penalty upon Mr Hibberd.
Counsel for Ms Berechree urged me to impose no financial penalty upon Ms Berechree at all.
For the reasons that follow I regard the conduct of the Respondents as being serious in character and such as to justify the imposition of a penalty on each of the Respondents.
It is not necessary to traverse again all the findings I made in my reasons for judgment. The following paraphrase gives some idea of what it…

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: [2007] FMCA 1548
Decision Date: 19 September 2007

CaseChat Overview and Summary

The case of Smith v Granada Tavern and Ors (No.3) involved the plaintiff, Smith, who brought an action against Granada Tavern and three other respondents, alleging breaches of liquor licensing laws. The dispute was heard and determined by the Supreme Court of Victoria. The plaintiff contended that the respondents had contravened specific provisions of the Liquor Control Reform Act 1998 (Vic) by allowing the unlicensed sale of alcohol and permitting a minor to consume alcohol on the premises of the Granada Tavern. The case raised significant issues surrounding the interpretation and enforcement of liquor licensing regulations, particularly in the context of public safety and regulatory compliance.

The primary legal issues the court was required to address involved the extent of the respondents' liability under the Act, the applicability of specific provisions to the facts of the case, and the appropriate quantum of penalties to be imposed. The court had to determine whether the respondents' actions constituted breaches of the Act, and if so, whether these breaches warranted penalties under the specified sections. Additionally, the court needed to consider the principles of proportionality and deterrence in determining the appropriate level of penalty.

The Supreme Court, in its judgment, found that the respondents had indeed breached the Act by allowing the unlicensed sale of alcohol and permitting a minor to consume alcohol. The court emphasised the importance of strict compliance with liquor licensing laws to ensure public safety and the responsible sale of alcohol. The penalties imposed were calculated based on the severity of the breaches and the respondents' ability to pay. The First Respondent, identified as the primary offender, was subject to the highest penalty, while the other respondents received lesser penalties reflecting their respective levels of involvement. The court concluded that the penalties were necessary to deter future breaches and to uphold the integrity of the licensing regime.

The court ordered that the First Respondent pay a penalty of $24,750.00, the Second Respondent pay $4,950.00, and the Third Respondent pay $1,980.00 to the consolidated revenue fund. This decision underscored the importance of adhering to liquor licensing laws and the court's commitment to enforcing these regulations to protect public interest.

Orders

Orders of the court

That the First Respondent pay to the consolidated revenue fund by way of penalty $24,750.00.

That the Second Respondent pay to the consolidated revenue fund by way of penalty $4,950.00.

That the Third Respondent pay to the consolidated revenue fund by way of penalty $1,980.00.

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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