Minahan v Baldock

This is an appeal against an order of the Supreme Court of the Northern Territory by leave under s. 21 of the Supreme Court Ordinance 1911-1936. The order from which the appeal is brought discharged an order nisi for a prohibition directed to the special magistrate constituting the Licensing Court of the Northern Territory. The purpose of the prohibition sought was to restrain the Licensing Court from proceeding further upon an application made by Baldock, who is the respondent to this appeal, for a publican's licence at Alice Springs. The application was one of which the hearing was commenced at Alice Springs on 4th April 1951 in pursuance of a notice given and a deposit of plans made at Darwin on 20th March 1951. The appellant too made an application for a licence at Alice Springs and, in addition, attempted to appear before the Licensing Court as an objector to the application of the respondent Baldock. She was not heard because she had not given notice of objection. The ground upon which she seeks a prohibition is that under the law of the Northern Territory it is a condition precedent to the making of an application for a publican's licence that the applicant shall deposit the necessary plans with the clerk of the Licensing Court at the last previous sittings of the court at the place of intended application and at the same time give him a duplicate notice of the application and thereafter within twenty-one days publish the notice in the Gazette and until the next sittings of the court exhibit the notice on the premises. It was not at Alice Springs but at Darwin that the notice was given and the plans deposited by the respondent Baldock. It was done at sittings of the Licensing Court duly held there and the deposit was made with, and the notice was given to, the clerk for the licensing district in which Darwin is situated.

The Licensing Court for the Northern Territory is established by the Licensing Ordinance 1939-1949. Section 7 (1) of that ordinance provides that "there shall be a Licensing Court constituted by a licensing magistrate who shall be appointed by the Governor-General". Section 6 (1) deals with the establishment of licensing districts. It authorizes the Administrator by notice in the Gazette to constitute any area mentioned in the notice a licensing district. By s. 8 the Administrator may appoint any person to be a clerk of the Licensing Court for the licensing district specified in the appointment. A definition of clerk in s. 5 gives that word the meaning "the Clerk of the Licensing Court having jurisdiction according to this Ordinance in the particular matter". Section 10 (1) requires the Licensing Court to hold annual sittings in each licensing district at such times and places as the Administrator by notice in the Gazette appoints. The Administrator is authorized by s. 10 (2) to appoint by twenty-eight days' notice in the Gazette special sittings of the Licensing Court at the times and places specified in the notice. In fact the Northern Territory has been divided into two licensing districts, one called the North Australia Licensing District, in which Darwin is situated, the other the Central Australia Licensing District, in which Alice Springs is situated. Section 9 confers upon the Licensing Court jurisdiction in respect of all applications, objections, directions and other proceedings and matters under the ordinance relating to, amongst other things, any application for any licence, certificate, permission or permit or any objection to any such application and in respect of any other matter arising under the ordinance within any district and requiring to be dealt with by the court.

The subject of applications for licences and objections is dealt with in Division 3 of Pt. IV. of the ordinance. The division begins with s. 25, which provides that every application for a licence or for the transfer or removal of any licence shall be made to and considered by the court in the district in which the premises licensed or proposed to be licensed are situated. This provision is followed by s. 26, the purpose of which is sufficiently indicated by the marginal note by the words "Conditions precedent to application for publican's licence for previously unlicensed premises". Sub-section (1) of s. 26 provides that a person shall not be entitled to apply for a publican's licence in respect of previously unlicensed premises unless he has done certain things which the sub-section proceeds to set out. Under par. (a) he is required at the sittings of the court last before the sittings at which application for the licence is made to deposit with the clerk plans of the buildings it is proposed to erect and specifications of the furniture and the like and the equipment proposed.

The matter at issue is whether for the purpose of this provision the sittings of the court last before those at which the application for the licence is to be made must be sittings for the licensing district with which the application is concerned or may be sittings in the other licensing district. The application was to be made at Alice Springs in the Central Australia Licensing District and if the sittings of the Court at Alice Springs last before the sittings are those at which the plans must be deposited, then the deposit of plans and the giving of notice at Darwin was useless. On 20th March 1951, when the respondent Baldock did deposit the plans and give the notice at Darwin the Licensing Court was holding a sittings there.

Paragraph (b) of sub-s. (1) makes it necessary for the applicant within twenty-one days of the deposit of plans to cause notice of the deposit to be given in the Gazette . Paragraph (c) requires that during the whole of the interval between the deposit and the next sittings of the court he shall have posted and kept posted upon the premises a notice in accordance with the form provided in the Third Schedule. Here it will be seen that the next sittings of the court are referred to and it is not stated that they must be held for the same district. It seems evident, however, that the purpose of the paragraph is to ensure that until the sittings of the court at which the application is to be heard are commenced a notice shall remain exhibited upon the premises. The form of notice in the schedule provides for the applicant's giving notice that it is his intention to apply at the next sittings of the Licensing Court to be held at the place specified by the notice for a licence, but it does not make it necessary to give the date of the sittings. Paragraph (d) of sub-s. (1) of s. 26 requires the applicant at the time of deposit of the plans to deliver to the clerk a duplicate of that notice. Sub-section (2) of s. 26 prescribes what the plans must contain and directs that they shall be open to public inspection without fee. Section 27 (1) provides that any person who has complied with the requirements of s. 26 may, at the annual or special sittings of the court held next after the deposit of the plans, apply to the court for a licence in respect of the premises specified in the plans. The sub-section proceeds to prescribe what the court shall then do. Section 35 provides for notice of objection and directs that a person shall not be heard in support of any objection to the grant, renewal, transfer or removal of the licence before the court unless notice in writing of the objection has been delivered to the clerk and to the applicant at least fourteen days before the day on which the application was to be heard. Section 49 (2) provides that the proceedings on the consideration of any application for any licence shall be public. Sub-section (3) authorizes the court at any annual or special sittings or at any adjournment thereof to hear, inquire into and determine all such applications, and sub-s. (4) authorizes the court at any annual or special sittings to grant such licences and to exercise certain other powers in such manner and within such reasonable time as it deems fit. Section 51 deals with the duties of the clerk. It provides that the clerk shall, amongst other things, attend all the sittings of the court, prepare a list of applications to be heard at each sittings and lay the list before the magistrate.

Certain regulations for the conduct of the business of the Licensing Court are laid down by the Fifteenth Schedule. Amongst other duties the Inspector of Licensed Premises must obtain and furnish to the clerk at least three weeks before every annual or special licensing day a report on applications for new houses as soon after the application as possible. The schedule imposes upon the clerk a duty in the case of applications for new houses and the transfer of licences to search and report to the court whether the applicants or transferees have previously applied for any licences and if an application has been rejected the cause of the refusal.

The foregoing provisions provide the setting in which the words of s. 26 must be interpreted. When s. 26 (1) (a) speaks of the sittings of the court last before the sittings at which the application for a licence is to be made and s. 26 (1) (c) speaks of the next sittings of the court it seems natural to read them as relating to the sittings, for the purposes of s. 25, which affords the immediate context.

In all the provisions to which reference has been made a clear distinction is made between the two licensing districts and the exercise of the court's jurisdiction in each of them. Section 25 emphasises that distinction by requiring that an application for a licence transfer shall be made to and considered by the court in the district in which the premises are situated. When an immediate transition is made from that provision to the conditions precedent to the application for a publican's licence, the draftsman might be expected to speak of the exercise of the court's jurisdiction in pursuance of s. 25 without expressly limiting the provision by another reference to the district in which the premises are situated. It is true that the words "at the sittings of the Court last before" are general and are logically capable of applying to the sittings of the court anywhere, but the whole subject with which s. 26 is dealing is an application made under s. 25. The words "the sittings at which application for the licence is to be made" in s. 26 (1) (a) must of course relate to the sittings in the district in which the premises are situated. For it is only at a sittings in that district that the application could be made pursuant to s. 25. It would be strange to read the immediately preceding reference to a sittings as relating to a sittings elsewhere. As has already been said, the reference to the next sittings in s. 26 (1) (c) is shown by the very subject matter to mean the next sittings of the court in the district in which the premises are situated. Every consideration of reason and convenience points to the same conclusion. The clerk with whom the plans are to be deposited and to whom the notice is to be given would at once be taken to be the same clerk to whom the objections must be delivered under s. 35 and who is to act under the regulations contained in the Fifteenth Schedule. The inspector to act under the Fifteenth Schedule would naturally be supposed to be the inspector for the district. The expression "sittings of the court" in one form or another occurs in many provisions and wherever the expression occurs it either tends to support a meaning which limits the reference to the sittings of the court for the district in which the jurisdiction is to be exercised, or if the words do not actually support it, they do not contain anything pointing in any degree to a contrary meaning. For example, in ss. 30 and 31, which contain parallel provisions in relation to applications for other licences or in respect of previously licensed premises, the provision corresponding to s. 26 (1) (c) requires that the notice should be exhibited "not less than twenty-eight days next before the sittings of the Court at which the application is to be made". The provision corresponding to s. 26 (1) (d) requires delivery of the notice to the clerk and, in the case of s. 30, at least twenty-eight days before those sittings. Sections 32, 33 and 34 deal with applications for renewal. The notice must be delivered to the clerk twenty-eight days at least before the annual sittings of the court and he must cause particulars to be forwarded to the Commissioner of Police and an inspector and give notice by advertisement published five weeks before the annual sittings of the court. The annual sittings quite obviously are the sittings for the district. Sections 39 to 41 deal with transfers which, by the terms of s. 25, must be made to the court in the district. Section 39 (1) enables the applicant to apply at any special sittings to have the licence transferred and sub-s. (4) says that he must forthwith cause notice of every application to be advertised previously to the date of the sittings of the court to which the application is to be made. Section 41 speaks of a special sittings. Section 42 deals with the transmissions of licences in the case of death, bankruptcy, sickness, lunacy, surrender or forfeiture and the like. Sub-section (1) speaks of a certificate the holder of which may carry on the business until the sittings of the court held next after the expiration of twenty-eight days from the entry of the person. At this sittings a transfer of the licence may be applied for and the proceedings are to be as nearly as may be as in ordinary cases of applications for a transfer or licence. Sections 43 to 45 deal with removals of licences and in them there are references to applications to the annual or special sittings of the court and the person who has complied with the provisions of s. 43 may at the sittings of the court held next after the delivery of notice apply for the removal under s. 45. In s. 51 (1), which, as already stated, deals with the duties of the clerk, there are two references to sittings without any express qualification as to place or licensing district. But it is quite clear that they refer to the sittings in the district for which the clerk is appointed. Section 56, dealing with special permits, refers to the next sittings of the court and to the annual sittings of the court and to a subsequent sittings of the court, meaning a sittings of the court for the district. In the same way, by s. 66 (2) a mortgagee or landlord holding an order to enter may enter upon the premises and continue and carry on the business until the sittings of the court held next after the expiration of twenty-one days, at which sittings he may make an application. Provisions relating to clubs include ss. 77 to 81. These provisions make it clear that in relation to applications for registration objections thereto and proceedings thereon everything is to be done in relation to sittings of the court in the licensing district.

The result is that s. 26 should receive a construction which makes it necessary that a person applying for a publican's licence shall at the sittings of the court for a licensing district in which the premises are situated last before the sittings at which the application for the licence is to be made deposit the required plans &c. with the clerk for that place and between the deposit and the next sittings of the court for that district post and keep posted the required notice. The language of s. 26, as well as the side note, and the provisions of s. 27 (1) make it clear that compliance with this requirement is a condition precedent to the application. By compliance is meant substantial compliance. This case does not raise any question as to trivial or minor departures from the exact requirements of, for instance, par. (c) of sub-s. (1). It is a case in which s. 26 (1) was not fulfilled in any respect. The deposit of the plans and the giving of notice to the clerk in Darwin was nugatory.

The Licensing Court is a tribunal with a special jurisdiction exercisable only subject to the conditions which the ordinance lays down. The remedy of prohibition is appropriate to restrain it from acting when there is no fulfilment of conditions precedent laid down by s. 27. The language used by Jordan C.J. in Ex parte Toohey's Ltd.; Re Butler [1] is applicable: - "The present case is not one in which a subordinate tribunal from which there is no appeal has given a decision as to certain facts, and there is a question whether these are collateral or part of the issue. It is, I think, one in which the right of a tribunal of limited jurisdiction depends upon a certain proceeding which has been made an essential preliminary to the inquiry." In that case the preliminary was the application for a determination within a specified time. In the present case it is the deposit of the plans: see, further, Ex parte McCance; Re Hobbs [2] ; R. v. Licensing Court; Ex rel. Marshall [3] ; R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Federated Clerks' Union of Australia, N.S.W. Branch [4] ; Ex parte Danks [5] . Rule 13 of the rules of court under the Supreme Court Ordinance 1911-1922 as amended on 10th September 1925 relates to applications for the prerogative writs. It is kept in force in r. 28, made on 16th June 1931. The practice and procedure which it prescribes is that existing in His Majesty's High Court of Justice in England on the Crown side as on 1st February 1908.

1. (1934) 34 S.R. (N.S.W.) 277, at p. 283; 51 W.N. 101, at p. 102. 2. (1926) 27 S.R. (N.S.W.) 35; 44 W.N. 43. 3. (1924) S.A.S.R. 421. 4. (1950) 81 C.L.R. 229. 5. (1918) 18 S.R. (N.S.W.) 574; 35 W.N. 178.

The proper course is therefore to make the order absolute for the issue of a writ of prohibition. The tenor of the writ will be to prohibit the Licensing Court and the licensing magistrate constituting the court from proceeding further upon the application of the respondent Baldock which was made by him to the court on 4th April in pursuance of a purported deposit of plans and giving of a notice at the sittings of the court on 20th March 1951 at Darwin. The appeal should be allowed, the order of the Supreme Court discharged, the rule nisi should be made absolute but not for a peremptory order without a writ, which is the form the rule takes. Instead an order absolute for a writ of prohibition of the tenor stated should be made. The respondent Baldock in acting as he did pursued the course laid down by a decision of the Supreme Court of the Northern Territory given in another matter. The judgment of Kriewaldt A.J. followed the authority of that decision. In all the circumstances of the case we think that an order for costs should not be made against the respondent.