O'Shannessy & Department of Health v. Blacktown Workers Club

This was an appeal by the Department of Health against the dismissal of a prosecution by the Magistrates Court of an offence against the Smoke-free Environment Act 2000.

In the Local Court, these proceedings were run as a test case in relation to the interpretation of various aspects of the Act. The prosecution was against the Blacktown Workers Club for allowing smoking in a gaming area, which was allegedly an enclosed public place, in contravention 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.

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

(Note: Harrison J's decision was subsequently itself overturned and the original decision reinstated; see: Blacktown Workers' Club Ltd v. O'Shannessy [2011] NSWCA 265 (6 September 2011)).

O'Shannessy & Department of Health v. Blacktown Workers' Club [2010] NSWSC 1153

  • Australia
  • Oct 14, 2010
  • New South Wales Supreme Court

Parties

Plaintiff

  • Department of Health
  • Leanne O'Shannessy

Defendant Blacktown Workers Club

Legislation Cited

Building Code of Australia 2010

Crimes (Appeal and Review) Act 2001

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 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. 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."