Blacktown Workers' Club Ltd v. O'Shannessy

This case relates to the meaning of "walls" in the Smoke-free Environment Act 2000 (NSW).

The Department of Health brought a prosecution against the Blacktown Worker's Club for permitting smoking in an enclosed public place in contravention of the Act. In the Local Court, the proceedings were run as a test case in relation to whether a mesh screen constituted a "wall" or a "gap" in a wall for the purposes of the Act. The Magistrate in the Local Court dismissed the prosecution on the basis that, among other things, mesh screens in the gaming area were not "walls" within the meaning of the Act and therefore the area was not an "enclosed public place".

On appeal, Harrison J overturned the Magistrate's decision that the mesh screens were not "walls" within the ordinary meaning of the word and remitted the matter to the Local Court.

This was a further appeal against that decision. The Court of Appeal overturned Harrison J's decision, reinstating the original decision of the Magistrate. The Court of Appeal held that Harrison J had erred in considering the dictionary definition of "wall" rather than by reading the words in their statutory context.

The prosecution against the defendant for breach of the Act was therefore dismissed.

Blacktown Workers' Club Ltd v. O'Shannessy [2011] NSWCA 265 (6 September 2011)

  • Australia
  • Sep 6, 2011
  • New South Wales Court of Appeal

Parties

Plaintiff Leanne O'Shannessy

Defendant Blacktown Workers Club

Legislation Cited

Smoke-free Environment Act 2000 (NSW)

Smoke-free Environment Regulation 2007 (NSW)

Related Documents

Type of Litigation

Tobacco Control Topics

Substantive Issues

Type of Tobacco Product

None

"The judgment of the primary judge should be upheld in respect of her conclusion that if the mesh screens were not "walls" they were not "gaps in a wall" and thus were not to be counted in the calculation of the total enclosed area of the Western Terrace pursuant to cl 6(4)(a). The reasons upon which that conclusion should be upheld, though not articulated by the primary judge, are set out above. Because the prosecutor could therefore not rely upon cl 6(4)(a), the prosecution could only succeed if the mesh screens constituted "walls" for the purposes of cl 6(2). In applying the definition of "walls" in cl 6(7), which was the approach adopted by both parties in the Local Court, the magistrate did not err in law. The contrary conclusion reached by the primary judge was erroneous. It follows that, as the prosecution was run in the Local Court, there was no error of law on the part of the magistrate requiring that his dismissal of the charge be set aside. The judgment and orders of the primary judge should, however, be set aside."