Director of Public Prosecutions v La Forest [2001] NSWSC 828

Director of Public Prosecutions v La Forest [2001] NSWSC 828

The magistrate erred in law by treating the payment or consideration element in the definition of public entertainment as a necessary element of a place of public entertainment. For licensed premises, the proper question was whether the premises were being used for the purpose of providing entertainment as a separate use rather than merely incidental to hotel use; that factual question had to be determined by the magistrate on remittal.

Jurisdiction
Australia
Judgment Date
11 September 2001
Procedural Posture
Civil Appeal Concerning Prosecution for Alleged Breach of S 626(1) of the Local Government Act 1993 / Appeal From a Magistrate's Decision Dismissing a Summons
Outcome
Appeal upheld for legal error and matter remitted to the magistrate; defendant ordered to pay the plaintiff's costs.
Legal Topics
['place of Public Entertainment' 'licensed Premises' 'entertainment on Hotel Premises' 'council Approval Under Local Government Act 1993']
['local Government' 'licensing' 'criminal Offences'] ['place of Public Entertainment' 'licensed Premises' 'entertainment on Hotel Premises' 'council Approval Under Local Government Act 1993']

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Procedural Posture

Civil Appeal Concerning Prosecution for Alleged Breach of S 626(1) of the Local Government Act 1993 / Appeal From a Magistrate's Decision Dismissing a Summons

Legal Issues

  1. 1 ['Whether licensed hotel premises with a four piece amplified band were being used as a place of public entertainment requiring approval under the Local Government Act 1993.' 'Whether the definition of public entertainment, including admission by payment of money or other consideration, informs the definition of place of public entertainment.' 'Whether entertainment in a hotel was incidental to hotel use or a separate use for the purpose of providing entertainment.']

Ratio Decidendi

The magistrate erred in law by treating the payment or consideration element in the definition of public entertainment as a necessary element of a place of public entertainment. For licensed premises, the proper question was whether the premises were being used for the purpose of providing entertainment as a separate use rather than merely incidental to hotel use; that factual question had to be determined by the magistrate on remittal.

Court Disposition

Appeal upheld for legal error and matter remitted to the magistrate; defendant ordered to pay the plaintiff's costs.

Orders

  • ['Orders 1 and 2 in the summons made.' "The defendant is to pay the plaintiff's costs." "If qualified, the defendant is to have a certificate under the Suitors' Fund Act 1951."]