Bennett v Cooper

[1948] HCA 29

High Court of Australia|1948-07-01|Before: McTiernan JJ, Walker J

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At a glance

Source facts

Court

High Court of Australia

Decision date

1948-07-01

Before

McTiernan JJ, Walker J

Source

Original judgment source is linked above.

Judgment (21 paragraphs)

[1]

This matter has been considered in the courts below in relation to the question whether the Grand Lodge of the Order is an unregistered club. But the Grand Lodge of the Order is only one of the governing bodies of the Order, as its rules show. The registration under the Associations Incorporation Act 1895, which constitutes a registered body as a corporation, is a registration of the "Royal Antediluvian Order of Buffaloes Grand Lodge of Western Australia under the Grand Lodge of England." It is the Order, and not the Grand Lodge, which is registered as an association under the Act. Accordingly, in determining whether or not liquor was supplied upon the premises of an unregistered club, the premises being (as was not disputed) the premises of the Order, the question to be considered is not whether the Grand Lodge is a club, but whether the Order is a club. It is argued for the appellant that the Order is not a club.

[2]

The premises contained a meeting room, a refreshment room, a waiting room and a bar, as well as bedrooms and storerooms. Thus some of the facilities of a social club were provided on the premises. The rules of the Order provide (rule 2) that the objects of the Order are: - "(a) To relieve, by donations, annuities, or otherwise assist, necessitous brethren, widows, orphans, or dependents of deceased brethren. (b) The bringing together of its brethren for mutual intercourse and encouragement. (c) The doing of all such lawful things as are conducive to the attainment of the above objects." The object specified in (a) is the kind of object which is more generally associated with friendly societies than with clubs in the ordinary sense. The rules show that it is sought to attain this object by social gatherings held in accordance with a ritual for breaches of which penalties are imposed which go towards the funds of the lodge.

[3]

There is no precise legal definition of the word "club." The description of a club contained in Wertheimer on Clubs applies to most clubs: - "A club may be defined to be a voluntary association of a number of persons meeting together for purposes mainly social, each contributing a certain sum either to a common fund for the benefit of the members or to a particular individual for his own benefit." But it is possible for a voluntary association to be a club though there are no pecuniary contributions or the contributions are uncertain in amount. A club may be a members' club where contributions are paid to a common fund, or a proprietary club where they are paid to an individual or a corporation, and a club may be unincorporated or incorporated. Clubs are voluntary, non-profit making associations but they vary almost indefinitely in other characteristics. Some clubs, for example dining clubs, may have no property at all. They may meet simply for the purpose of enabling the members to dine together. A suburban football club may have no property beyond a couple of footballs and a writing pad. Other clubs may have premises to which members have a right of entry only for particular purposes on particular occasions, e.g. racing clubs and metropolitan cricket and football clubs. In the present case the question whether the Order is a club has to be determined for the purpose of reaching a conclusion as to whether the premises were premises of a club, and therefore the relation of the members of the Order to the premises is the most important consideration. The argument for the prosecution in the present case must be that the premises upon which the liquor was supplied are really premises of a club, namely, a social club. But there is no evidence to show that the members of the Order are entitled to use the premises or do use the premises otherwise than for the purposes of meetings. A friendly society or Masonic Order may have premises in which meetings of many branches or lodges are held. But it would be an undue extension of the meaning of the word "club" to hold that the friendly society itself or the Masonic Order was a club. A club may be established in connection with such an organization. But there is a distinction between the club and the society or Order. In the present case the evidence in my opinion shows only that the Order has premises upon which meetings of the Grand Lodge and minor lodges were held, but it does not show that those premises are used as club premises. Accordingly, the prosecution has not, in my opinion, shown that the liquor was served upon the premises of a club, and for this reason it should be held that the complaint against Bennett and Bawden was rightly dismissed.

[17]

The body appears to be a fraternal order of a characteristic description organized in lodges which meet separately. It has a prescribed ritual, regalia, emblems, ceremonies, signs and passwords, degrees of brotherhood and a pyramid of offices with high-sounding titles. Its formal objects are the relief, by donations, annuities and other assistance, of necessitous brethren and of the widows, orphans and dependants of deceased brethren, the bringing together of its brethren for mutual intercourse and encouragement and the doing of what is conducive to these purposes. The order is divided into Minor Lodges, Provincial Lodges and a Grand Lodge, which consists of higher office-bearers and delegates from Provincial Lodges. The expression "Grand Lodge" occurs in the name of the whole order. But the Grand Lodge which is at the head of the Order is not to be confused with the incorporated Order, in spite of this nomenclature. There are funds for each lodge. Besides a general fund the minor lodges have a lodge benevolent fund from which small sums may be granted to members &c. by way of assistance. Cases for assistance are dealt with by an officer called Alderman of Benevolence. There is a Provincial Lodge Benevolent Fund established to relieve necessitous brethren or their widows, orphans or dependants and administered by the governing authority. There is a third benevolent fund called the Grand Lodge Rule of Obligation Fund established for the relief of the necessities of widows and orphans and administered by the Committee of Management and Finance. Nothing appears in the evidence as to the extent of these funds or as to the practical significance they have in the affairs of the Order. But they evidently form a means of carrying into effect the first part of the objects of the Order. The second part, the bringing together of its brethren for mutual intercourse and encouragement, is accomplished apparently by lodge meetings and by triennial convention, if not in other ways. The Order is possessed of a two-storeyed building in Perth which the rules describe as the Grand Lodge Office. It is there that the Grand Lodge meets, and the affairs of the Order are centrally administered. Certain minor lodges use the premises for their meetings. Four such minor lodges are mentioned in the evidence. The building is described as a two-storeyed structure with offices and a large "club" room on the upper floor and a large lodge or meeting room on the ground floor with a refreshment room and waiting room and a small liquor bar. It was in this lodge room that the Leederville Lodge met. Against its meeting the treasurer of the Grand Lodge had procured, or had appropriated to its use, a keg of beer and a large number of bottles of beer, some of which were placed in a locker devoted to the Leederville Lodge and some in the refrigerator in the small bar. The liquor was paid for from the funds of the Leederville Lodge.

[18]

The performance by the appellants of their lodge duties as city waiter and assistant city waiter by pouring the beer into jugs whence the company might help themselves is the basis of the charge against them. "Supply" is a very general word and has a wide application, but I doubt whether, when liquor is already at the disposal of a company of men, the act of one or two of them in pouring it into jugs and setting them where all may more readily help themselves falls within it. For to do this does not seem to change the control of the liquor or its dominion. It does not impart the liquor to anyone. The meeting was already "supplied" with the liquor when it took temporary possession of the rooms, the locker and the refrigerator. But however that may be, the charge fails in my opinion because the premises on which the appellants performed their duties belonged, as the charge alleges, to the incorporated Order and it is not an unregistered club. The premises are not appropriated to the exclusive use of the members of the Order as such and they are not, so far as appears, open to them as a place of resort. The size of the Order, the separate organization and meeting of the minor lodges and its purposes of relief combine to place it outside the conception of a club. The premises are offices and rooms made available for the use of constituent lodges from time to time under the directions of the governing authorities. We are not concerned with the question, if it be one, whether a minor lodge may be a club. The evident conviviality of the meetings of the Leederville Lodge is not to the point. The question is whether the whole body is a club and the building is its premises. As has been remarked by a text book, the expression "club" is used in the legislation in the popular sense of the term and the courts must decide, when any concrete case arises, whether the association in question is or is not a club: Paterson's Licensing Acts, 55th ed. (1947), p. 753. I have no hesitation in saying that in a popular sense the Royal Antediluvian Order of Buffaloes Grand Lodge of Western Australia under the Grand Lodge of England Incorporated is not a club and the building it occupies is not the premises of an unregistered club.