Cook v Buckle [1917] HCA 35

High Court of Australia|1917-07-01|Before: Rich JJ, Shand JJ, Lukin J

Government - By-law - Validity - Cinematograph exhibition - Licence - Discre- of local authority - Mandamus - Prohibition of use of place without licence

er to quash conviction for using place without licence - -Local Authorities ¥ 1902 (Qd.) (2 Edw. VII. No. 19), secs. 182, 183; Sched. 4, subdivisions

ithorities to make by-laws "with respect to" matters mentioned in the th Schedule, subdivision 60 of which included the situation, form, and struction of buildings and other places which are or are intended to be kept, or let for (inter alia) theatres or cinematograph exhibitions, and licensing and inspection of such premises.

il, provided that no such building or place within the shire " shall

used, kept, or let for" (inter alia) a theatre or cinematograph exhibition,

the conditions with respect thereto prescribed by this by-law and

ny Statute in that behalf are complied with and it is licensed under this law." The by-law also provided for payment of fees for licences.

appellant applied to the shire council for a licence for a certain place ithin the shire for the purpose of a cinematograph exhibition, and sent a nee fee with his application. The council refused to grant the licence,

ions as to fees were complied with, the proper remedy would be by man- mus to compel the council to issue the licence ; and that an applicant for

and, on being convicted of a breach of the by-law in respect thereto, an order to quash the conviction on the ground that the council hed w refused the licence to him.

Held, also, that the council, having authority under sec. 182 of the Ie Authorities Act 1902 to make by-laws " with respect to" the matters referred to, had a right to give themselves a discretionary power to gra refuse the licence, and had validly done so by requiring a licence to be ob from the council prior to the user of the place.

Held, further, that the power conferred by sec. 182 of the Act is not a men power to regulate, but included power to act as the council had done,

Appr from the Supreme Court of Queensland. On 5th December 1916 the appellant, Sidney Cook, picture s proprietor, applied, in writing, to the Council of the Shire of Too

the Shire, and enclosed £2 for the licence fee. On the followin day the application was considered and was refused by the Co and written notice of the refusal was sent to the appellant. 9th December he opened the place as a picture theatre and us for a cinematograph exhibition without a licence. On 8th Jam 1917 the respondent, William Green Buckle, clerk of the Council, on behalf of the Council laid a complaint against Cook for using' place above referred to for a cinematograph exhibition withou such place being licensed under chapter 12 of the By-laws of th Council. One of the clauses in that chapter provided that "N building, room, garden, or other place within the Shire," with cet tain exceptions not material to this case, "shall be used, kep let for . . . a theatre, . . . cinematograph exhibition

or for any other public performance or amusement, . unless the conditions with respect thereto prescribed by this by-! and any Statute in that behalf are complied with and it is lice1 under this by-law." The complaint was heard by a Police trate at Brisbane, and the appellant was convicted and fined. | yn 31st January the appellant obtained from tne Supreme Court order nisé calling upon Buckle and the Council to show cause b the Full Court why the conviction should not be quashed. The

, by majority (Chubb and Shand JJ., Lukin J. dissenting), the order nisi with costs against the appellant: Buckle ok; Ex parte Cook (1).

m this decision the appellant now, by special leave, appealed High Court.

Graham (with him Grove), for the appellant It is not disputed that, ypart from the Local Authorities Act 1902 and the by-laws, the appel- was lawfully entitled to carry on his business. Where, as here, structural and pecuniary requirements have been complied with, Council had, on the true interpretation of the by-law in ques-

appellant. Therefore he was entitled to take the course he If, however, the effect of the by-law is to prohibit or to e the Council power to prohibit altogether the use of such a place e purpose for which it was desired to be used, the by-law was authorized by the Local Authorities Act (see secs. 182, 183, and Schedule, subdivision 60). If the by-law is to be con- s conferring upon the Council such a power, it is unreasonable, mse its effect is that, notwithstanding that all other require- have been fulfilled, a man is unable to carry on his lawful merely because he has not obtained a licence which has wrongly refused to him. For these reasons the conviction

argument reference was made to the following authori- Toronto Municipal Corporation v. Virgo (2); Co-operative Co. Proprietary Ltd. v. Hawthorn Corporation (3); Rossi v. burgh Corporation (4); Parker v. Bournemouth Corporation (5) ; Broad (6); Kerr v. Scott (7); Metropolitan Meat Industry vy. Finlayson (8); R. v. Arndel (9).

(Qd.), 144. (6) (1915) A.C., 1110, at p. 1122. (7) 9 Qa. L.J., 193. tp. 306. (8) 22 C.L.R., 340.

The following judgments were read : - . ' Barton J. The Local Authorities Act 1902 consolidated a

may from time to time make by-laws with respect to all any of the matters mentioned in the Fourth Schedule to Act." This power is therefore conferred in very wide lai covering the whole ground of the enumerated subjects as provided in the section which follows. Sec. 183, cl 2, contains a minor restriction, and clauses 3, 4, 5, 6, 7 an are permissive and do not restrict the operation of sec. 182. Cl. 6 authorizes provision in a by-law for the issue or making of lic &c., to or with respect to persons or property, and for the paym of reasonable fees in that connection. But the first clause of 183 is in these words: "Save as by this Act is otherwise expr provided, no by-law shall contain any matter contraty to this or any law in force in Queensland." This provision does not to me to cut down the generality of sec. 182 save so far as is exp! provided. Sec. 182 itself is " subject to the provisions of this Ac te Clearly the words " any law in force " refer to statutory law, for prohibit any change or modification of the common law would be practically to nullify the power to make by-laws at all.

The Fourth Schedule, enumerating the subject matters of lation by by-law, includes in subdivision 60, " (i) The situation form, and construction of buildings, rooms, gardens and other pla whether licensed for the sale of fermented or spirituous liquors 0 for the sale of wine, or not requiring to be so licensed, which are or are intended to be used, kept, or let for public meetings, thi dancing-halls, music-halls, athletic entertainment or boxing, for circuses, or cinematograph exhibitions, or for exhibitions for or profit, or for bowling-alleys, or for other places of public ami ment, whether a charge is made for admission or not. (ii) licensing and inspection of such premises." Fe

The power and the subject matter being as described, how w it used and applied? The by-laws of this Council include chapt 12, with reference to places of public amusement. Chapter

part of the first paragraph is as follows: "(i) No g, room, garden or other place within the Shire .

itograph exhibition . . . or any other public performance amusement . . . unless the conditions with respect thereto ibed by this by-law and any Statute in that behalf are lied with, and it is licensed under this by-law." The appli- nt is not only to fulfil conditions, but is to obtain his licence fore he can use the premises for any purpose indicated. (ii) prescribes the fees for such licences. I pass over the tion whether the applicant deposited a sufficient fee. Such a , if determined, might prevent a decision upon the matter which parties have really come to argue, and I will therefore assume he purposes of this case that the applicant deposited the correct

e applicant is right in saying that a number of the clauses in yy-law relate only to the use, management and conduct of the ses after the grant of a licence. Such are numbers 3, 4, 5, 6, 8, 9; but it looks to me as if nearly all of the provisions of clause relate to the conditions required at the time of license, save that concludes with-the following words: "all exit doors and inner of structures licensed at the confirmation of this by-law and for any of the purposes before mentioned shall be altered so as conform with this by-law within one month from the date this is gazetted." These words give time for the alteration of doors and inner doors of structures licensed before the con- tion of the by-law, and used for any of the described purposes ment. But the employment of these words seems to con- the construction that the other requirements of clause 10 are itions precedent to obtaining a licence. use 12 prescribes a penalty not exceeding £20 for any offence inst any of the provisions " of this by-law " (chapter 12). It is quite clear that this chapter is a by-law made with respect e matters mentioned in the Fourth Schedule to the Act, sub- 60, clauses (7) and (ii). The Council, rightly so thinking, inted those two clauses at the head of their by-law.

Now, the appellant built himself a picture theatre within To Shire. His counsel says that he complied with all the condi specified in the by-law, and this he may or may not have done The depositions say nothing about it, for he did not give evi before the Police Magistrate. Evidence of compliance with conditions would not have been relevant on the charge prefe He applied for a licence, which the Council refused after consid tion, but without assigning any reason. The appellant then showed his pictures without a licence. He was charged with an offence against the provisions of the by-law and was fined. He went the Supreme Court for a quashing order, and that Court, by majori upheld the conviction. :

The attack on the by-law is on two grounds: (1) (a) That it is ultra vires, as creating a power to prohibit, which is beyond th powers conferred by the Act, (b) that itis unreasonable, and (2) on the true interpretation of the by-law the licence applied for shoul have been issued to the appellant. '

It appears that the appellant began proceedings for a mandamt but desisted after obtaining an order misi - Mr. Graham says account of technical, points. If, as his counsel says, there was n discretionary power to refuse the licence an application for a manda mus was the more obviously proper means of challenging the by-law. The present at any rate is no proper method. I do not suppose that Kerr v. Scott (1) or any other case can reasonably be cited as an authority to the appellant to take the law into his own hands by showing his pictures without a licence, and thus aggressively setti the by-law at defiance. I am of opinion that he cannot now have the conviction quashed on the ground that he was entitled to treat this by-law as a mere nullity.

But as the parties desire a decision as to the validity of the by- I wish to say that in my opinion it is entirely valid, and I almost content myself with adopting the judgment of Shand J.

Having authority to make by-laws " with respect to " the matt I have quoted, the Council had a clear right to give themselves discretionary power to grant or refuse the licence, and this is what they have done by superadding to the necessity for compliance with

ouncil. It is no answer to say that there is an interference with ommon law rights, for, as I have pointed out, there is such an inter- erence in practically every by-law. Nor is it an answer to say that

is a statutory representative body having authority to legislate this subject matter within limits which are extremely wide,

jion was exercised in any improper or unwarranted manner ; he complaint is that discretion was exercised at all. As mandamus, if granted, might have commanded the exercise of the discretion, one can readily understand why the application for a mandamus s not proceeded with (see R. v. Arndel (1), per Griffith C.J.). The argument that the by-law is wltra vires as creating a power to prohibit which is beyond the powers conferred by the Act is to my mind untenable. The power conferred by sec. 182 is not a mere to regulate. It is wider, and includes power to act as this neil has done. To say that the by-law is unreasonable is in cireumstances beside the mark. There is here no absolute z hibition, as contended. There is power to grant a licence in some cases and to refuse it in others, the Shire being entrusted by superior legislation with power to enable itself to grant or refuse ording to its sense of duty. As 1 have pointed out above, if it had been shown in a proper proceeding to have misused its discretion, to have made its discretionary power a tool for indirect action, case might have been different.

On all grounds I think that the majority were right in discharging \e order nisi for a quashing order. It follows that this appeal must be dismissed with costs.

Isaacs J. This appeal has been argued on two grounds : - The itions and the provision as to fees are complied with, and there-

the Council, having wrongly refused the licence, are disqualified (1) 3C.L.R., 557, at p. 566.

conditions the requirement of obtaining a licence from the H.C. or A. 1917.

from complaining of its absence. The second ground is th that be not the true interpretation, it is ultra vires as amounti a prohibition or a power to prohibit. Notwithstanding the argument of Mr. Graham, I am of opinion that neither ground be sustained.

requirements the Council had a duty to issue the licence, neve less the remedy for breach of that duty would be a mandamus. 1 Council might still believe, though mistakenly, that the conditio

J. observes, the appellant would not be justified "in taking law into his own hands, and actively defying the by-law." do I see how it can be said that a council in honestly and a sense of public duty endeavouring to vindicate the law are to regarded as personally disqualified, even if their prior refusal licence were open to correction by the law. They were ce

as in Kerr v. Scott (1) the council were the originators of the nuisance. The first ground must fail.

As to the second, great reliance was placed on the two standa cases of Toronto Municipal Corporation v. Virgo (2) and Rossi v Edinburgh Corporation (3).

The first was a case which turned on the effect of a power to by-laws for "licensing, regulating and governing " hawkers, The council there passed a by-law by which it was provided no person named and specified in sub-sec. 2 (whether a licensee:

not) should trade in certain eight streets of Toronto, which in

of the trade, both as to time and to a certain extent as to place where such restrictions were in the opinion of the public authority necessary to prevent a nuisance, or for the maintenance of ord But their Lordships said the continued existence of the trade implied by the words "regulate and govern." It will be ob:

(1) 9 Qa. LJ., 193. (2) (1896) A.C., 88. (3) (1905) A.C., 21. ,

se by the by-law even licensees were prohibited. And in to the contention that the by-law did not amount to pro- ion, their Lordships said, not that forbidding trade in any s would be prohibition, but that the effect of the by-law was practically to deprive the residents of what is admittedly the most portant part of the city of buying their goods of or of trading with class of traders in question." Coupling the words of that judg- it with the observations made by their Lordships during the ment (see Finlayson's Case (1)), I cannot regard that case as n authority that a power to legislate as to " licensing " does not

ossi's Case (4) may for the present purpose be distinguished on e ground that it was a case where magistrates had power to grant licence according to a law already made, whereas the present ion is whether the power which the Council have to legislate to the conditions on which licences shall be granted, includes the er to forbid the user of the premises unless licensed. The ypellant's contention is that there is only power to enact a by-law juiring the owner to comply with conditions and to apply for a e; that if in fact, however the Council may be advised and to the contrary, he has so complied and has applied, then her the licence is granted or not he may lawfully proceed to use

e do not apply to him, and so his position is better than if licence were issued to him. The question then is: Does the power se connote the power to prohibit the user of the premises until

22 C.LR., 340, at p. 348. (3) (1915) A.C., 1110, at p. 1122. (2) (1896) A.C., 88. (4) (1905) A.C., 21.

licensed, assuming the conditions required for a licence are in selves intra vires? The answer to that question must ultimatel depend upon the Act itself, and when that is examined it appears to me it gives no uncertain answer. 4

Sec. 182 gives power, subject to the Act, to make by-laws " respect to"? any of the matters in the Fourth Schedule. is the most comprehensive form in which legislative power can given in regard to a specified subject. " Licences " are one speeific matter in that schedule, and 29 (77) is in these terms " prescribing conditions on which any licences . . . may be granted, tr ferred, suspended, or revoked by the local authority or the chairm: 29 (iii) relates to fees. It is quite clear, therefore, that some co dition may be imposed beyond the merely structural and pecuniar' requirements.

No condition is pointed to which is beyond the Council's ps toenact. The first clause forbids the use of the place unless (1) " conditions with respect thereto prescribed by this by-law and a1 Statute in that behalf are complied with," and (2) "it is lice under this by-law."

Then the Act by sub-sec. 5 of sec. 183 expressly provides that "a by-law may leave any matter or thing to be determined, app! dispensed with, prohibited, or regulated by the local authority time to time by resolution, either generally or for any classes of cai

arise, even to the extent of dealing separately with each case as 1 arises. And when that sub-section is read in conjunction with sub-set 6 dealing (inter alia) with licences, it appears to have been fra with special intention to meet some of the decisions on the commo law as to uncertainty of by-laws, such as Staples & Co. v. Wel ton Corporation (1), in 1900, and the power of dispensing with provisions in particular cases, as Yabbicom v. King (2). 7 In the present instance, it does not appear that the gener power of legislation under sub-sec. 5 has been exercised, the sub-section itself is a very strong answer to the objection that there can be no power to refuse a licence, except fi (1) 18.N.Z.LR., 857. (2) (1899) 1 Q.B., 444.

pliance with specified conditions. It may be that the only ion precedent to the issue of a licence required by the was it stands has been complied with, and that, as is no general power of refusal by resolution reserved, the al was improper, and that a mandamus would succeed. I say as to that one way or the other. The construction of the ww in that aspect is not before us, and the facts as they would relevant to such an application are not before us, even if the mus part of the application had not been abandoned in the e Court.

we are concerned with is that in view of the distinct prohibition st user until licence issued (which we must take to mean e lawfully required), the appellant maintains that for that on alone the by-law must be invalid. " Licensing" premises s, according to the natural signification of the word " license," ing their use, and a by-law that is made " with respect to " therefore includes a provision for authorizing the use ises by licence. The principle that some prohibition is law-

though the by-law in each case was set aside as being

v hat is there in the context of the Local Authorities Act to destroy

primary meaning of the word "license"? Besides the con-

tions already mentioned, reference may be made to No. 20

1¢ Fourth Schedule, licensing of ferrymen, and No. 52, licensing ary carts. Can it be imagined that the use of sanitary carts

e Legislature meant that though a licence migat be required, use of a cart spreading disease and death was nevertheless notwithstanding a refusal of a licence, if only the owner d persuade the justices that it complied with requirements, gh the Council and its officers thought differently? I think ynot. And if that is so as to one licence, it is so as to another. eare, of course, as I have said, limits to the power of imposing and perhaps to the exercise of the general power of

6 Q.B., 383, at p. 401. (2) (1896) A.C., 88.

322 HIGH COURT [1 H.C. or A. determination contemplated in sub-sec. 5 of sec. 183, but in ess present case we are not called upon to determine them. Coox In my opinion, it is not the law that all prohibition of user j Bucxe, Unlawful in respect of unlicensed premises, and therefore the s ; Eas point also fails, and the appeal should be dismissed.

Ricu J. I agree that the majority of the Supreme Court y right in discharging the order nisi, and that the appeal should dismissed with costs. 7

Solicitors for the appellant, Atthow & McGregor. Solicitors for the respondent, Chambers, McNab & NeNab.

Project -roject MESbc, MESe hy HE, MINISTER FOR LANDS (NEW SOUTH

Broadcasting 'Broadcasting es } APPELLA ae Gee" WALES) 1 ee AND JEREMIAS 5 5 3 5 5 : ReEspoNDE

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

H.C. or A, Crown Lands - Conditional purchase - Mortgage - Condition of _residence - Pe 1917. formance by mortgagee - * Holder" - Crown Lands Consolidation Act 191 cs, (N.S.W.) (No. 7 of 1913), secs. 5, 47, 181, 272.*

conditional purchase or cond Aug. 23, 24: solidation Act 1913 (N.S.W.) provides

Sept. 3. that. "The holder of a conditional way of mortgage, the condition of r purchase or conditional lease shall hold dence may be performed by the own

Barton, the same subject to a condition of resi- subject. to such mortgage - and (| Tssacsand - dence for a term which shall where the beneficial owner of a con

expire ten years after the date of the application therefor, and residence shall commence within three months after the confirmation of the application : Provided always that - (a) where the

ditional purchase or conditional le dies or becomes of unsound mind, th performance of the condition of re dence shall be waived until the ¢

At a glance

Court

Decision date

Before

Source

Judgment (78 paragraphs)