Highmoon Pty Ltd v City of Fremantle & Ors [2006] WASCA 21

Highmoon Pty Ltd v City of Fremantle & Ors [2006] WASCA 21 - WASCA 2006 case summary — Zoe

[63]

"34 I accept the evidence of Professor Hawkes [sic] that the management agreement goes little further than to endorse the obligations of the licensee under the Act. It provides no means of enforcement other than those available under the Act. The information provided by the Director of Liquor Licensing suggests that no proceedings have been commenced against licensees in this affected area in the recent past in relation to the sale of liquor to intoxicated customers. In the light of the conclusion I have expressed about the conduct of intoxicated customers of licensed premises in this part of the affected area, I am inclined to accept the conclusion expressed in exhibit 18 that management agreements of the nature proposed in this case are likely to be less effective in the present context, in the absence of effective enforcement.

35 In reaching this conclusion, I record there is no evidence in this case that should lead the court to conclude that this applicant is likely to conduct the business to be carried on under the licence at these premises other than in accordance with the Act. That, however, is not determinative of the present issue. The principal area of objection, as I have said, is not in the operation of the proposed premises themselves, but in the likely consequences in all the circumstances of the introduction of premises of this size in this location, accommodating the number of persons proposed. Their introduction into this part of the affected area, where there is already existing a large number of Category A licences, is likely to contribute to the undue offence, annoyance, disturbance or inconvenience to residents by intoxicated persons in the vicinity of the premises. While the City of Fremantle may be satisfied that the management agreement will be effective to reduce offence, annoyance, disturbance or inconvenience to nearby residents, the evidence of Professor Hawkes and Mr O'Connor lead me to conclude on the balance of probabilities that this is not the case.

36 For these reasons, I find that the removal of this licence to this proposed location is likely to cause undue offence, annoyance, disturbance or inconvenience by intoxicated persons in the vicinity of the premises that those who reside nearby should not reasonably be expected to tolerate in the interests of the need of the community for the removal of this licence to this part of the affected area as contemplated."

[65]

"1 The learned Judge erred in law in finding that the Management Plan (Agreement) proposed by the Appellant was the same as the Fremantle Accord and in confusing the evidence relating to the Accord with the evidence relating to the Management Plan.

2. The learned Judge erred in law in finding that the Management Plan (Agreement) proposed by the Appellant only endorses the obligations of the licensee under the Liquor Licensing Act and provided no means of enforcement other than those available under the Liquor Licensing Act.

3. The learned Judge erred in law in treating the evidence of the residential objector David Hawkes [sic] as an expert witness on the subject of the terms and likely effect of the Management Plan proposed as a condition of the licence, when he lacked any appropriate qualification for the expression of such an opinion and his evidence was not logically probative of that fact.

4. The learned Judge erred in law in finding that on the totality of the evidence that the ground of objection made by the Second to Thirteen Respondents under Section 74(1)(g) of the Liquor Licensing Act had been made out.

5. The learned Judge erred in law in after finding that the ground of objection under Section 74(1)(g) of the Liquor Licensing Act had been made out failed to consider if the application could still be granted by imposing conditions on the Tavern Licence imposing the Management Plan (Agreement) in the court exercising its discretion pursuant to Section 33 of the Liquor Licensing Act.

6. The learned Judge erred in law in relying on the evidence of the principal town planner of the City of Fremantle Andrew Jackson when the First Respondent's position on the Appellant's Application was it did not oppose the grant of the application if the Management Plan (Agreement) was imposed as a condition on the Tavern Licence and when the tenor of the evidence of Andrew Jackson in its entirety was to the effect that as a result of the Management Plan, he no longer adhered to the views recorded in his written statement as to the likely effect of the removal of the licence upon the affected area.

7. The Learned Judge erred in law in apparently placing reliance upon the evidence of Maria Dana Hoe for the purpose of his findings as to the likely effect of the removal of the licence upon the amenity of the affected area, when her evidence was limited to her observations of tire behaviour of patrons leaving nightclubs around 5.30a.m. and the application was for the removal of a tavern licence which would trade no later than 1.00a.m.

8. The Learned Judge erred in law in finding that the removal of the license to the proposed location would introduce 500 to 600 customers to this part of the affected area when:

[67]

9. The Learned Judge erred in law relying upon the evidence of the witness J Hawks, Donohue, O'Connor and Cake as to the behaviour of patrons of licensed premises in the affected area generally, when such evidence was not logically probative of any issue to be determined in the absence of evidence to the effect that the removal of the licence to the proposed premises would increase the total number of persons resorting to licensed premises within the affected area and there was no such evidence.

10. The Learned Judge erred in law in relying upon the evidence of the witnesses Hawks, Donohue, O'Connor and Cake as to the behaviour of patrons attending licensed premises in the affected area generally, when there was no evidence capable of sustaining the conclusion that the removal of the licence sought would increase or exacerbate that behaviour, given his finding that there was no evidence that the applicant was likely to conduct the business to be carried on under the licence at the premises to which removal was sought other than in accordance with the Act.

11. The Learned Judge erred in law in relying upon information provided by the Director of Liquor Licensing to the effect that no proceedings had been commenced against licensees within the affected area in the recent past relating to the sale of liquor to intoxicated customers in support of his conclusion as to the likely efficacy of the proposed Management Plan, when such information was irrelevant to that issue.

12. The Learned Judge erred in law in relying upon information provided by the Director of Liquor Licensing to the effect that no proceedings had been commenced against the licensees within the affected area in the recent past relating to the sale of liquor to intoxicated customers when such information was irrelevant given his finding that there was no evidence that should lead the court to conclude that the applicant was likely to conduct the business to be carried on under the licence other than in accordance with the Act.

13. The Learned Judge erred in law in accepting a proposition contained in Exhibit 18 (a report on the operation of the Fremantle Accord) as apparently determinative of the issue concerning the likely efficacy of the Management Plan proposed as a condition of the licence given:

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (125 paragraphs)

Highmoon Pty Ltd v City of Fremantle & Ors [2006] WASCA 21 (16 February 2006)

Parties

Cases Cited (11)