Williams v Hobday

[1954] HCA 40

High Court of Australia|1954-07-01|Before: Taylor JJ, Court Herron J, Kinsella J, Owen J

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Source facts

Court

High Court of Australia

Decision date

1954-07-01

Before

Taylor JJ, Court Herron J, Kinsella J, Owen J

Source

Original judgment source is linked above.

Judgment (26 paragraphs)

[1]

High Court of Australia Dixon C.J. Kitto and Taylor JJ. Williams v Hobday [1954] HCA 40

[2]

ORDER Appeal allowed with costs. Discharge order of the Supreme Court. In lieu thereof order that the rule nisi be made absolute with costs and that the Licensing Court be directed to reconsider the application of the respondent Mary Neta Hobday for removal of the publican's licence.

[3]

This is an appeal by leave from an order of the Supreme Court of New South Wales discharging an order nisi for statutory prohibition restraining further proceeding upon an order of the Licensing Court for the Metropolitan Licensing District. The order unsuccessfully impugned before the Supreme Court granted an application under s. 39A of the Liquor Act 1912-1946 NSW for a conditional order for the removal of a publican's licence from one site to another in the Metropolitan Licensing District. The order nisi for prohibition was obtained by four objectors who relied upon s. 39 (4C) of the Liquor Act, a provision made applicable by s. 39A (2) as amended. The objection was disposed of by the Licensing Court by the construction placed by that court upon par. (c) of s. 39 (4C) and the purpose of the order nisi was to obtain from the Supreme Court a review of the decision by which the provision was thus construed unfavourably to the objectors. In the Supreme Court Herron J. and Kinsella J., while not adopting the view of the Licensing Court in its entirety, decided against the construction upon which the objectors depended. Owen J. dissented. By the present appeal the objectors seek to obtain the decision of this Court upon the construction of s. 39 (4C) (c). It will be necessary in a later part of this judgment to discuss the whole of s. 39 (4c), but it is convenient to set out par. (c) at once and describe the question of construction. Paragraph (c) is as follows: - "Without prejudice to the generality of any other provisions of this Act, a Licensing Court shall refuse to make an order of removal of a licence to a proposed new site if, having regard to the sufficiency or insufficiency of licensed premises in the various areas or parts of the licensing district it is satisfied that the public interest generally would be served to a substantially greater extent by the removal of the licence to a site in some area or part of the licensing district, other than the area or part in which the proposed new site is situated." The question of construction which arises may be stated as follows: Do the last words of the section beginning with the words "by the removal" refer to an undetermined site so that the result would be the same had the conditional clause been expressed: "If the site to which the licence is to be removed was in some area or part of the licensing district other than the area or part in which the proposed new site is situated"? Or, on the contrary, is the reference to some determinate or specific site so that it means: "If the licence were removed to some given site which site is in some area or part of the licensing district other than the area or part in which the proposed new site is situated"?

[5]

The contention of the objectors (the now appellants) that the first of the two alternative constructions of s. 39 (4C) (c) should be adopted was presented and dealt with in a somewhat unusual if convenient manner. Among the objections upon which the appellants relied was the following: "That the public interest generally would be served to a substantially greater extent by the removal of the licence to a site in some area or part of the Licensing District other than the area or part in which the proposed new site at Guildford is situated." Mr. Cassidy, who appeared for the appellants before the Licensing Court, informed that court that he proposed to call evidence in support of this objection and stated to the court the nature and extent of the evidence he proposed to call. He said: "That evidence will be directed to establishing the greater need in other areas of the same Licensing District in terms of the section. It is admitted that such evidence cannot point to a particular site in those areas which is available to the applicant and available to him on reasonable terms. The objectors for whom I appear do not propose to call any further evidence in the case." Apparently Mr. Cassidy had already argued the construction of the section in an earlier case. On this occasion he requested the court to make its ruling. The chairman of the Licensing Court said: "In this case we rule that we must be satisfied under the section, that the public interest generally would be served to a substantially greater extent by the removal of the licence not only to some area or part of the Licensing District other than the area or part in which the proposed new site is situated, but also to a site in such area or part of the Licensing District, and further that such site is available to the applicant on reasonable terms for the purpose of erecting a hotel thereon." The chairman had at the conclusion of the earlier argument concerning the construction of the section expressed himself as follows: - "In his submission made to us this morning Mr. Cassidy has asked us for an expression of opinion on the interpretation of s. 39 (4C) (c) of the Liquor Act. After hearing this submission and Mr. Warren's reply, it is our opinion that under that section we must be satisfied that the public interests generally would be served to a substantially greater degree by the removal of the licence not only to some area or part of a licensed district other than the area or part in which the proposed new site is situated but also to a site in such area or part of the licensed district, and further that such site is available on reasonable terms to the applicant for the purposes of erecting an hotel there. This is an expression of opinion on the interpretation of the section referred to. The decision as to whether the application should be granted or not will not be made until all evidence has been adduced." The judgment ultimately delivered by the Licensing Court in the present case made the following reference to this matter: "Mr. Cassidy Q.C., instructed by Mr. Mitchell, announced his appearance on behalf of the objectors, Williams and others, and asked the court to express its opinion on the interpretation of s. 39 (4C) (c) of the Liquor Act, and stated that the court could assume that he would tender evidence (1) on the greater need for licensed premises in another locality (2) that this evidence cannot point to an available site. Mr. Warren submitted that such evidence would be relevant, but did not go far enough, and Mr. Cassidy stated that no other evidence as to site was proposed to be called. At a later stage Mr. Cassidy re-stated his submissions and said that he proposed to call evidence to support objection No. 6, that such evidence would be directed to establishing the greater need in other areas in terms of the section, but admitted that he could not point to a particular site in those areas available to the applicant on reasonable terms; and he asked for a definite ruling from the court as to the meaning of the section. The court ruled that under the section it must be satisfied that the public interest generally would be served to a substantially greater extent by the removal of the licence, not only to some area or part of the licensing district, other than the area or part in which the proposed new site is situated, but also to a site in such area or part of the licensing district and, further, that such site is available to the applicant on reasonable terms for the purpose of erecting an hotel thereon. Mr. Cassidy then stated that the objectors did not propose to call any further evidence on objection 6 of the objections filed."

[10]

Applying these principles the first question must be whether the Licensing Court is to be taken to have rejected evidence which was tendered. Unsatisfactory as the course followed may be from a procedural point of view, if the Licensing Court and the parties were content to treat such a notional tender of the evidence as conventionally equivalent to an actual tender and if on that basis the evidence is to be taken to have been rejected, there appears to be no reason why for the purposes of s. 115 it should not be regarded as tantamount to a rejection of evidence regularly tendered. If the interpretation of s. 39 (4C) (c) adopted by the Licensing Court was erroneous and because of that erroneous interpretation the Licensing Court rejected evidence in support of an issue, which if proved would or might have governed the fate of the application, it is difficult to see why the order is not covered by the words of s. 115 as one that cannot be supported. It is of course true that in s. 115 these words are preceded by the words "if in the opinion of the Court or Judge after inquiry and consideration of the evidence adduced before the Justice or Justices". It is also true that in the reports some references to the introductory words may be found which may suggest that they restrict the test of what may be supported to a consideration of the evidence actually admissible and admitted. But neither in form or substance would such a restriction be justifiable. It may be remarked that some doubt must exist as to the grammatical meaning of these words. Are they equivalent to "after inquiry of the evidence and after consideration of the evidence" or do they mean "after inquiry and after consideration of the evidence," or to make it clearer by changing the order, "after consideration of the evidence and after inquiry"? If the latter is their meaning the inquiry must be into the whole character of the case. The expression "after inquiry of the evidence" is extremely clumsy and is hardly different from "after consideration of the evidence". Further, in s. 12 of 14 Vict. No. 43 the words were "after inquiry into the matter and consideration of the evidence". It rather looks as if the words "into the matter" were omitted as unnecessary on the footing that the phrase meant "after inquiry and after consideration of the evidence". Whatever may be their grammatical intention, the Supreme Court has not in practice acted on the view that they mean that the question whether the order can be supported or not must be governed wholly by the evidence or admissible evidence which has been adduced and admitted. It must be governed by all other legal considerations which show whether or not the order is capable of being sustained upon the proceedings before the magistrate.

[11]

In the present case it seems on the whole proper to treat Mr. Cassidy as in the same situation as if he had actually called the witnesses, and tendered their evidence and as if the Licensing Court had rejected it on the grounds assigned by that court for treating it as insufficient. The affidavit in support of the application for prohibition says that the Licensing Court ruled that the evidence it was proposed to tender was inadmissible and it rejected the evidence. It is probably true, however, that the interpretation placed by the Licensing Court upon s. 39 (4C) would not justify the course of actually rejecting the proposed testimony. For the interpretation meant rather that the evidence when received would not go far enough and would prove inadequate to establish the objection under s. 39 (4C). Possibly that point was not perceived at the hearing though it is to be noticed that the submission attributed in the court's judgment to Mr. Warren is that the evidence would be relevant but did not go far enough. If, however, the course adopted was not notionally to reject the evidence but simply to rule that it was useless to tender it because the facts it was sought to prove were insufficient in law, Mr. Cassidy must be taken as complying with a ruling going to the basis of the ultimate decision and as proceeding on the conventional basis that he was to be in the same position as if he had adduced the evidence. In either view the magistrates may be taken to have directed themselves in accordance with their interpretation of the section and if that direction was wrong it seems necessarily to follow that the order could not be supported even although the evidence does not appear on the record which would make it right for them to pronounce the contrary order. The result is that the decision of the appeal must turn upon the correctness of the Licensing Court's view or, in other words, upon the proper interpretation of s. 39 (4C) of the Liquor Act. It is therefore necessary to turn to a consideration of that provision.

[14]

Then a general sub-section, not confined in its application to premises within the Metropolitan or Newcastle Districts, provided that the Licensing Court must be satisfied that the removal will be in the interests of the public in the neighbourhood of the proposed new site and will not affect detrimentally the interests of the public in the neighbourhood of the site of the existing premises: sub-s. (4B). Then comes sub-s. (4C), the interpretation of which is in question. It applies only to a publican's licence and premises in which a publican's licence is held and it applies only to a proposal to remove a licence from licensed premises situated within the Metropolitan or the Newcastle Licensing District to a site within the same district: pars. (a) and (b) of sub-s. (4C). And it does not apply if the proposed site is in the same neighbourhood as the existing site: par. (d). Section 39A was amended so as to include spirit merchant's and Australian wine licences and, like s. 39, so as to allow of the removal of a licence to premises in another licensing district. But by making applicable sub-ss. (4A), (4B) and (4C) of s. 39 the same limitations and conditions were imposed upon removals to premises to be erected as in the case of premises already erected, including those relating to the Newcastle and Metropolitan Licensing Districts. By proclamation the licensing districts of Ryde, Parramatta and also Liverpool were incorporated in the Metropolitan Licensing District. It is as part of these revised provisions and arrangements that par. (c) of sub-s. (4C) must be interpreted. What this means must be kept in view. It assumes that the proposed site is in the same licensing district, Metropolitan or Newcastle, that the removal to the site is in the interests of the public in the neighbourhood of that site and that the site is not in the same neighbourhood as the existing site of the licensed premises. In the application of par. (c) to s. 39 the assumption is that the premises are standing on the proposed site and in its application to s. 39A that they are to be erected on the proposed site (or are to be added to or altered).

[15]

Paragraph (c) begins with the statement that what it provides is without prejudice to the generality of the other provisions of the Act and it may be supposed that the object was to prevent the neglect of other considerations governing applications for removal if a proposed site survived the test propounded by the paragraph. Next it is to be noted that the provision is imperative; the Licensing Court must refuse the order for removal if it is satisfied that the public interest generally would be served to a substantially greater extent by the removal of the licence to a site in some (other) area or part of the licensing district. Unfortunately the words "removal to a site in some (other) area or part of the licensing district" are quite equivocal. They are equally capable of meaning a specific or ascertained site or an unascertained or unspecified site. The equivocation does not lie in the word "site", the meaning of which does not alternate. It arises from the form in which the phrase is expressed, employing as it does the indefinite article before the word "site". Is it postulating a certain, particular and specified site? Or is the word "site" to have its general descriptive meaning and an undetermined application? If the former, the Licensing Court must find a specific site in another area or part of the licensing district and be able to say that if the licence were removed to that site the public interest would be served to a substantially greater extent. If the latter, it is enough for the court to be satisfied that if the site to which the licence was removed were in another area or part of the district the public interest would be served to a substantially greater extent and the court need not point to a specific hereditament. It is perhaps important to note that in this provision it is the interest of the public generally that matters, that is to say the public generally as distinguished from the public in the neighbourhood as mentioned in sub-s. (4B) and that is so whether it is the neighbourhood of the site to which, or the site from which, it is proposed to remove the licence. Further, the Licensing Court is directed in considering that public interest to have regard to the sufficiency of licensed premises in the various areas or parts of the licensing district. Probably it may safely be assumed that the Licensing Court, as a result of the experience gained in administering the Act in the metropolis, will be well aware of the distribution of licensed premises and of the changing needs of the various areas of the licensing district. Clearly enough the purpose of sub-s. (4C) is to see that removals of licences are not made where the general public interest would be better served by a removal to some other place and that must include consulting the changing needs of the various areas or parts of the Metropolitan or Newcastle Licensing District as the case may be.