The licensee of Little Jack Horner in Coogee has successfully appealed two convictions related to the unauthorised operation of his business as a bar.
Brenton McHatton was hit with almost $24,000 in fines and legal costs earlier this year after being found guilty of offences relating to selling and supplying liquor contrary to authority.
McHatton hopes his successful appeal will be treated as a test case for the entire industry.
“I am out of pocket but relieved,” McHatton told the Southern Courier.
“I know I can’t get that money back but I don’t have a record.”
In Downing Centre Local Court on March 20, Brenton McHatton pleaded not guilty to the two offences, but was found guilty, convicted, fined $12,000 and ordered to pay $11,300 in legal costs.
A Liquor & Gaming NSW investigation found the business in Sydney’s eastern suburbs, which at the time was only authorised to operate as a restaurant, was trading as a bar.
On December 23, 2017 and February 10, 2018, patrons entering Little Jack Horner were not invited to dine or directed to tables. Most patrons were seen standing and drinking alcohol bought directly from the bar, with minimal food being served.
McHatton explained he holds a restaurant licence with two authorisations attached called a primary service authorisation (PSA) and entertainment authorisation.
The PSA allows a cafe or restaurant to serve alcohol to customers who are not consuming food.
However, the sale or supply of liquor cannot be the primary purpose of the business.
McHatton said Little Jack Horner “winds down” its kitchen after 9pm and only serves pizza up until closing at midnight.
He said customers were asked if they wanted food, but many simply ordered a drink.
Magistrate Susan McIntyre found that at the time of both offences, Little Jack Horner was operating for the primary purpose of serving alcohol and its capacity to prepare and serve food to the public at any time was not enough to fulfil licensing requirements.
Her Honour said the venue “had to be a restaurant, start to finish, morning to night, every hour” and it was not up to McHatton to “pick and choose when it operates as a restaurant or not”.
McHatton’s appeal of the decision was upheld during a district court hearing earlier this month, which included the annulment of his fines.
He said it was frustrating as a restaurant owner to navigate the licensing system because if he were to apply for a small bar licence he would not be allowed to have children on the premises when alcohol was being sold.
“I think something needs to be done with the legislation,” he said. “And hopefully this is a test case and they leave small restaurants doing their best alone.
“There needs to be something between a small bar licence and a restaurant licence and I thought that’s what the PSA was.
“But the way Liquor and Gaming want to police it, the PSA seems to be useless.”