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Wise v Schneider

Wise v Schneider

Case [2015] NSWSC 725 12 June 2015

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Supreme Court

New South Wales

Medium Neutral Citation: Wise v Schneider [2015] NSWSC 725
Hearing dates: 26 May 2015, and further written submissions on 03.06.15 and 05.06.15
Date of orders: 12 June 2015
Decision date: 12 June 2015
Jurisdiction: Common Law
Before: Beech-Jones J
Decision:
(1)   The orders made by the Local Court on 7 October 2014 dismissing ACN 2013/246740-002 and 2013/246740-001 be set aside.

(2)   The order for costs made in favour of the defendant against the plaintiff on 7 October 2014 be set aside.

(3)   The proceedings be remitted to the Local Court to be dealt with according to law.
(4)   On or before 18 June 2015 the parties exchange and file written submissions in respect of the costs of the proceeding such submissions not to exceed three pages.
Catchwords: Appeal under the Crimes (Appeal and Review) Act 2001 – alleged offences under s 9 of the Liquor Act 2007 – defendant manager of licensed premises - charges dismissed – costs order made against informant – not disputed that inspectors attended premises, obtained alcohol and did not consume food – presiding magistrate stated evidence was “uncontrovertibl[e]” but rejected undisputed evidence – whether reasons adequate – breach of procedural fairness established – order dismissing charges set aside – costs order not sustainable.
Legislation Cited: - Crimes (Appeal and Review) Act 2001 – s 55, s 56, s 59
- Criminal Procedure Act 1986 – s 212, s 213, s 214
- Gaming and Liquor Administration Act 2007 – s 20
- Liquor Act 2007 – s 9, s 24, s 25, s 91
Cases Cited: - ACP v Munro [2012] NSWSC 1510
- Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734
- Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353
- Coffen v Goodhart [2013] NSWSC 1018
- Cunningham v Cunningham (No 2) [2012] NSWSC 954
- Director of Public Prosecutions (NSW) v Elias [2013] NSWSC 28
- Director of Public Prosecutions v Lopez-Aguilar [2013] NSWSC 1019
- Downes v DPP [2000] NSWSC 1054
- Lee v DPP (NSW) & Anor [2004] NSWCA 172
- Proudman v Dayman (1941) 67 CLR 536
- Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
- Stead v State Government Insurance Commission ([986] HCA 54; 161 CLR 141
- Valuer-General v Perilya Broken Hill Ltd [2013] NSWCA 265
- Whitehorn v The Queen [1983] HCA 42; 152 CLR 657
Category: Principal judgment
Parties: Sarina Wise – Plaintiff
Christopher David Schneider – Defendant
Representation:
Counsel:
K.H. Averre – Plaintiff
S. Chapple – Defendant
Solicitors:
Hunt & Hunt – Plaintiff
Yardy Legal Pty Ltd – Defendant

File Number(s): 2015/010946
Publication restriction: Nil

Judgment

The plaintiff in these proceedings, Sarina Wise, is an inspector appointed under s 20 of the Gaming and Liquor Administration Act 2007. In July 2013 Inspector Wise caused to be issued two Court attendance notices charging the defendant, Christopher Schneider, with offences under s 9(1)(b) of the Liquor Act 2007. The offences were alleged…

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.

Continue reading Wise v Schneider

Details

AGLC: Wise v Schneider [2015] NSWSC 725
Case: [2015] NSWSC 725
Decision Date: 12 June 2015

CaseChat Overview and Summary

In the matter of Wise v Schneider, the appeal was brought under the Crimes (Appeal and Review) Act 2001, concerning alleged offences under section 9 of the Liquor Act 2007. The defendant, Schneider, was the manager of a licensed premises. The charges against Schneider were dismissed by the presiding magistrate, who found that the inspectors who attended the premises obtained alcohol but did not consume food. Despite the magistrate acknowledging the evidence as uncontrovertible, the charges were dismissed. Wise appealed the decision, arguing that the magistrate's reasons were inadequate and that a breach of procedural fairness had occurred.

The legal issues before the court were whether the magistrate's reasons for dismissing the charges were adequate and whether the dismissal of the charges was justified based on the undisputed evidence. The court was also required to determine if the magistrate's decision breached procedural fairness and whether the costs order made against the informant was sustainable. The primary focus was on whether the magistrate properly exercised their discretion in dismissing the charges despite the undisputed evidence of the inspectors obtaining alcohol without consuming food.

The court found that the magistrate's reasons for dismissing the charges were inadequate, as they did not sufficiently address the statutory requirements of section 9 of the Liquor Act 2007. The court held that the magistrate had breached procedural fairness by rejecting undisputed evidence without providing adequate reasons. Consequently, the order dismissing the charges was set aside. Additionally, the court determined that the costs order made against the informant was not sustainable due to the procedural unfairness demonstrated by the magistrate.

The court's final orders were to set aside the dismissal of the charges and to declare the costs order not sustainable. This ruling underscored the importance of providing adequate reasons for decisions in criminal proceedings and the necessity of procedural fairness in the administration of justice.

Orders