Grounds (1) and (2) - Whether the Magistrate misconstrued the statute and Guidelines
50 The Magistrate stated at [13] - [17] of his reasons:
"Open Directly to the Outside:"
13. On the north side of the Western Terrace are a 5.3m and a 1.85m mesh screen that face onto a covered walkway. The north side of that walkway at this point and continuing east is itself wire mesh that borders an uncovered area that is open to the sky. There would seem to be little difficulty in concluding, as I do, that as far as these particular screens are concerned, they open "directly to the outside".
14. One further 6.62m north facing screen faces towards the same walkway, but is separated from it by a covered area the width of the driveway access to the loading dock. The largest screen faces west along the drive way to the loading dock, and one small 2.56m screen faces east along the walkway.
15. Each case, will of course, be a matter of degree. The fact that household windows have eaves, or open onto verandahs, does not in my view mean that they do not open "directly to the outside". In the present context, given that the purpose of the regulations is clearly to ensure that cigarette smoke does not enter areas where smoking is prohibited, and is not trapped nor allowed to stagnate or concentrate in areas where smoking is permitted, opening "directly" to the outside carries the connotation of unobstructed movement of air (and smoke) to the outside air without being trapped, stagnant or concentrated, and without passing through other places occupied by people. If this is correct, the direction which each screen faces is of little moment provided unobstructed and otherwise permissible air flow is sustainable.
16. It follows that, in my view, the screens all "open directly to the outside" and provided they otherwise are properly classified as "gaps", and not as "walls", are not to be included in the TAEA.
17. Under reg 6(7) " wall includes any structure or device (whether fixed or moveable) that prevents or impedes lateral airflow". It is clearly not the prosecution's case that the mesh screens "prevent" lateral airflow: the issue is whether they "impede" that airflow. Equally clearly, there is no dispute that the screens are a "structure or device" within the meaning of reg 6(7)." (emphasis in original)
51 Ground 1(a) alleges that the Magistrate erred in law by misconstruing the relevant legislation. The Department of Health submitted that his Honour erred in construing the phrase "opens directly to the outside" as only requiring that the gap permit "unobstructed movement of air (and smoke) to the outside air without being trapped, stagnant or concentrated, and without passing through other places occupied by people". Ground 1(b) contends that the Magistrate erred in law by concluding, as a consequence of this erroneous construction, that the direction in which each of the mesh screens faced was "of little moment provided unobstructed and otherwise permissible airflow is sustainable".
52 The second ground of appeal alleges that the Magistrate should have concluded that, on the proper construction of clause 6, in order for any "gap" to "open directly to the outside", it must open directly to the open air outside of the building or structure in question. Otherwise, it was submitted, the word 'directly' would have no work to do. The Department of Health emphasised that the Magistrate construed the phrase "open directly to the outside" as qualifying the smoke or air which passes through the gap, which smoke and air, on his Honour's findings, eventually finds its way to the outside air without passing other people or being substantially impeded. (Department of Health's emphasis).
53 Counsel for Blacktown Workers submitted that the Department of Health misstated the findings of the Magistrate and mischaracterised his Honour's factual findings as being findings on a "matter of law". It was submitted that a fair reading of the Magistrate's decision showed that his Honour regarded the loading dock and walkway immediately adjoining the mesh screens as being "outside" areas. According to Blacktown Workers the Magistrate did so after first noting the physical properties of those areas and the fact that smoke could pass freely through them without being trapped, stagnant or concentrated. According to Blacktown Workers, the Magistrate's reference to "outside air" is a reference to the air outside of the relevant space, that is, the air outside of the Western Terrace.
54 So far as Blacktown Workers submission that the statutory construction of the words "opens directly to the outside" is a finding of fact, I do not agree. If the approach of the construction of a clause or phrase involves a misunderstanding of the meaning of those words, in effect his Honour has posed for himself the wrong statutory question for determination: see Australian Gas Light Co v Valuer General (1940) SR 126 at 138; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156; Director of Public Prosecutions v Belani [2005] NSWSC 1013 at [27]; and Director of Public Prosecutions (NSW) v Zhang [2007] NSWSC 308 I am satisfied that the appeal is based upon a ground that involves a question of law alone.
55 The Magistrate stated that there would seem to be little difficulty concluding that the screens facing the uncovered walkway open "directly to the outside". His Honour then stated that each case would be a matter of degree. But Clause 6(5) does not import any notion of degree. The words are clear: "a gap in a wall that opens directly to the outside …"
56 The Magistrate applied a rationale that given that the purpose of the Regulation was clearly to ensure that cigarette smoke did not enter areas where smoking was prohibited, and was not trapped nor allowed to stagnate or concentrate in areas where smoking was permitted, opening "directly" to the outside carried the connotation of unobstructed movement of air (and smoke) to the outside air without being trapped, stagnant or concentrated, and without passing through other places occupied by people. His Honour then stated that if this was correct, the direction that each screen faces was of little moment proved unobstructed and otherwise permissible airflow was sustainable.
57 With respect, his Honour appears to have misunderstood the question for determination. The construction of clause 6(5) did not require his Honour to assess the ease with which air could pass through or escape from the building or structure, or the path it was required to take through a space before it was dispersed. Rather, it required an assessment of whether the building or structure said to constitute the "gap" (i.e. the mesh screens) led directly to the outside. In my view, this misunderstanding caused his Honour to introduce unnecessary complexity into the construction of clause 6(5) and ultimately, to err.
58 Grounds 1(a), 1(b) and 2 all hinge on the proper construction of clause 6(5) of the Regulation. In my view, bearing in mind the object of the legislation (which, at its core, is to minimise the risks associated with passive smoking) the phrase "opens directly to the outside" should be construed as requiring that the gap lead directly to the air outside the building or structure in question. It follows that the Magistrate erred in construing the phrase, "opens directly to the outside". Grounds 1(a), 1(b) and 2 are accordingly upheld.
Grounds 3 and 4
59 The third ground alleges that, by reason of the matters set out in grounds 1 and 2, the Magistrate erred in finding that the mesh screens (which his Honour had found to be "gaps") fell within clause 6(5), i.e. they were gaps which opened "directly to the outside".
60 The fourth ground contends that by reason of the matters set out in ground 3, the Magistrate was bound, as a matter of law, to find that each of the mesh screens did not "open directly to the outside" and, as a consequence, had to be included within the TAEA. Counsel for the Department of Health submitted that the only legal conclusion open to the Magistrate was that the screens did not "open directly to the outside". According to the Department of Health this follows as a matter of simple language as the Magistrate found that the screens faced onto a covered walkway.
61 Counsel for Blacktown Workers submitted that the Department of Health's submissions overlooked the fact that the Magistrate found that the mesh screens were not "walls". Even if the mesh screens could be said to constitute "gaps", they could not be "gaps" in any "wall" or "ceiling" because, insofar as they formed part of the vertical boundary of the Western Terrace, they occupied the entire vertical space; there was no "wall" or "ceiling" of which they formed part. Blacktown Workers submitted that it follows that the screens cannot form part of the TAEA for the purposes of clauses 6(4)(a) or 6(5) of the Regulation.
62 In its submissions in reply, Counsel for the Department of Health submitted that there was no doubt that his Honour found that the mesh screens were gaps in walls within the meaning of clause 6(5) of the Regulation.
63 I accept that if the mesh screens are "gaps", they are not gaps in any wall or ceiling. Accordingly, clauses 6(4)(a) or 6(5) of the Regulation do not arise. The consequence would normally be that the mesh screens would not be included in the TAEA. However, as I have stated, the proper conclusion is that the mesh screens are "walls".
64 The result is that the appeal is upheld. The decision of his Honour Magistrate R A Brown dated 7 December 2009 is set aside. As there may be argument as to whether the offence is proved as to penalty, the matter is remitted to the Local Court to be determined according to law.
65 Costs are discretionary. Costs usually follow the event. The first defendant is to pay the plaintiff's costs as agreed or assessed.