Le Blane v hd TAB Lid

Le Blane v hd TAB Lid - [1906] HCA 73 - HCA 1906 case summary — Zoe

[79]

The other point was that the appeal, if there is one, should not be by way of rehearing. The origin of appeals to Quarter Sessions was fully discussed at the bar. Their history is stated in the introduction to Paley on Summary Convictions, Tth ed., p. 12. The earliest instance of an appeal from a conviction by justices of peace was in Statute 22 Car. 2 ¢. 1, called the Conventicle Act, and the author says: - " That act, after authorizing a summary examination and recovery of penalties before any two justices, gave to the party convicted the privilege of an appeal in writing, to the judgment of the justices of the peace in their next quarter- sessions, upon which 'he may plead and make his defence, and have his trial by a jury thereupon.'" It is obvious that if the appeal was to Quarter Sessions with a jury the ease must be heard de novo, and it would have to be heard in the ordinary way, by the taking of evidence and the jury giving a verdict. That is the only instance, according to Paley, of an appeal to Quarter Sessions with a jury. The next Act was passed in the following session, 22 & 23 Car. 2 ¢. 25,an Act for the protection of Game. That gave an appeal by sec. 9 in these words : - "It shall and may be lawful" for any person aggrieved by any judgment given by any justice of the peace by virtue of that Act "to appeal unto the Justices of Peace in their General Quarter Sessions which shall happen to be held next after such judgment given," who were authorized to give such relief and make such order on the appeal as should be agreeable to the tenor of the Act; and their judgment, order or determination was, except in certain cases, to be " final to all intents and purposes whatsoever." Now, from that time down to the present it appears that it has been the uniform practice at Quarter Sessions in England to hear appeals from justices by way of rehearing, and without a jury. Indeed by the Act 5 Geo. II. ¢. 19, it was expressly declared that justices could take that course. It was declared that the particular object of the Act was not to introduce any new form of procedure, but to do away with technical objections to the form of the original proceedings, and the justices were directed to rectify all defects in form and to proceed to determine the truth and merits of the

[95]

of every such appeal in a summary way and their judgment thereon shall be final and conclusive to all intents and purposes," and so on. Now, what is the meaning of the words "in a sum- mary way"? I do not think anybody has ever attempted to say that where an appeal is by way of rehearing, a gratissimi juris form of appeal, if the Court considers evidence that is not in the depositions and deals with the matter upon the new evidence as well as that originally taken, it could be considered as exer- cising original jurisdiction. To hear and determine the matter of the appeal in a summary way seems to me to imply more than one thing. Certainly it implies the absence of a jury. There can be no question about that. But the words also imply, in my judgment, a hearing upon evidence taken orally before the Court, and not merely upon a consideration, as a Court of Appeal, of the depositions already taken. Even if this might not have been the case otherwise, yet legislation and practice having both approved that Court in its treatment of appeals by way of rehearing, and that being the law and the practice when the Liguor (Amendment) Act 1905 was passed, the Court of Quarter Sessions being a Court in which, the legis- Jature knew, appeals were dealt with by way of rehearing, and the legislature not knowing of any kind of appeal to Quarter Sessions except appeals by way of rehearing, the question arises whether by the use of the particular words the legislature did not intend them to have that well known and detined meaning which they have always had when used in relation to appeals to Quarter Sessions. In my opinion that is the sense in which the words should be read. There is no necessity to strain them for that purpose. And, therefore, I am of opinion that the word was used to define that summary way of rehearing which was original and customary in Courts of Quarter Sessions. The appeal to Quarter Sessions was originally an appeal from one set of justices to another, from the petty to the General Sessions; that is, from a smaller to a larger meeting of magistrates. Was it a Court of,{appeal from the ordinary Court of petty sessions in the sense that it could take into account only the depositions taken in the Court of first instance in a case where depositions were taken, and upon reading those

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general application, that when any Act is amended by a later Act the two shall be regarded as one connected and com- bined statement of the will of Parliament, unless the contrary intention appears in the amending Act. Primd facie, this general rule applies in the case of every amending Act, and the onus of displacing it rests upon those who assert the contrary intention; they have the burden of satisfying the Court that, by express words or necessary implication, the legislature has indi- cated in the amending Act its intention to depart from the ordinary rule expressed in the section referred to. So far as express words declaring a contrary intention are concerned they do not exist in this ease, but the Court has been invited to infer it from the fact that, whereas the Interpretation Act provides that the amending Act shall be construed with the amended Act and as part thereof unless the contrary intention appears, sec. 1 of the amending Act, on the other hand, merely says that the amending Act shall be construed with the principal Act, and does not go on to use the words "and as part thereof." But no nega- tive words are used and no provision is inserted that can be regarded in any way as inconsistent or incompatible with the general rule. It is merely overlapping at the most, and that is not, in my opinion, sufficient to over-ride, or in other words, to repeal, for this purpose by implication the distinct provision in sec. 12. So far, therefore, as sec. 1 of the amending Act is alone concerned, I can see no reason for refusing to apply to the amending Act the ordinary provisions for appeal. Then it is sought to aid the construction argued for by a general considera- tion of Part V. of the Act of 1905. It is said that it is new legis- lation on a new subject and represents a code quite complete within itself, and that, as no reference can be found in that Part of the Act conferring any right of appeal, no such right exists. The Act, however, in dealing with clubs is not taking up abso- lutely new matter. Clubs were the subject of special considera- tion in the principal Act, and enjoyed a certain measure of exemption under the 5th sub-section of see. 13, and in the amending Act the legislature simply repealed that sub-section and placed clubs on another footing. It required henceforth

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