Lucas v Graham [1907] HCA 46; (1907) 5 CLR 188 (25 September 1907)

HIGH COURT OF AUSTRALIA

Lucas Defendant, Appellant; and Graham Informant, Respondent.

H C of A

On appeal from the Supreme Court of Victoria.

25 September 1907

Griffith C.J., Barton, O'Connor, Isaacs and Higgins JJ.

Starke, for the appellant.

Duffy K.C. (with him Meagher), for the respondent,

Griffith C.J.

This case was taken out of its turn in order to decide a point which was said to be one of urgency. The question is raised upon the construction of secs. 31 and 32 of the Licensing Act 1906, which was assented to on 28th December 1906. Sec. 31 provides that:—"In the Licensing Acts for the words a colonial or the word colonial wherever occurring before the words wine licence or wine licences there shall be substituted the words an Australian or the word Australian as the context may require." A wine licence was a well known form of licence under the old Licensing Acts in which they were called "colonial wine licences." That section provides that for the future they are to be called "Australian wine licences." Sec. 32 (1) provides that:—"The holder of an Australian wine licence shall not keep nor bring or permit to be brought any liquor other than wine cider or perry the produce of fruit grown in any Australian State on the premises specified in such licence."

The first point taken is that sec. 32 (1) only applies to liquor brought on to the premises for the purpose of sale by the licensee, or to liquor the property of the licensee. The words are perfectly general, and that point therefore fails.

The next point made is that the appellant had obtained last year, and before this Act was assented to, a colonial wine licence which was still in force, and that when he obtained that licence there was no law prohibiting the holder of a colonial wine licence from bringing liquor upon his premises. Consequently, it is argued, when the new Act came into force, it could not deprive him of the right which he had to bring liquor on his premises. But that was not a right which he acquired by virtue of the Licensing Act 1890; it was a right enjoyed by everybody else in the community. The Supreme Court thought there was nothing in the objection. àBeckett J. put the case thus[1]:—"It is clear, therefore, that where the old Act spoke of a colonial wine licence, it is now to be read as speaking of an Australian wine licence. The new Act contains no provision keeping alive the rights conferred by the colonial wine licence. They are at an end unless the licensee can exercise them by reason of his licence being treated as equivalent to an Australian wine licence. The document which he holds confers no rights by itself independently of the Act under which it issued. When the existing law ceases to give any rights to the holder of a colonial wine licence, the licence is a nullity unless it can operate as an Australian wine licence, to the holder of which the existing law gives the rights which the holder of a colonial wine licence previously possessed, qualified by the conditions added by the amending Act. It cannot have been the intention of the amending Act to destroy these rights. I think that by force of sec. 31, they are preserved by converting that which was theretofore called a colonial wine licence into a licence to be called an Australian wine licence. The holder cannot claim the rights without incurring the obligations which this change involved, or be considered an Australian wine licensee within the meaning of some section of the existing law, and not of others." I entirely adopt, if I may venture to say so, that reasoning of the learned Judge. It appears to me that all that section does is to change the name of the licence, leaving the substance exactly the same as before, and then sec. 32 goes on to impose certain restrictions upon the holder of such a licence. On the merits, therefore, I am of opinion that the judgment appealed from was right. The consideration of the other point, which is not urgent, will stand over.

Barton J.

I concur with the opinion of the Full Court on the questions raised as to secs. 31 and 32 of the Licensing Act 1906, and think it is the only conclusion they could reasonably have come to. The question as to the meaning of sec. 141 of the Justices Act 1890 is of the highest importance, and deserves further argument.

O'Connor J.

I am of the same opinion, and have nothing to add.

Isaacs J.

I concur. I would like to say that on the first point, as to whether it is necessary that the liquor should be brought on to the premises for the purpose of sale, the matter has been thoroughly and perfectly dealt with by Madden C.J. in Graham v. Matookeros[2]. I think there is nothing to be added to His Honor's reasoning on that subject.

With regard to the other point, I agree that the reasons of àBeckett J. should govern the matter, and I should like to add that what Hood J. said was correct, viz., that the right to bring liquor on to his premises was not a right conferred on the licensee by the licence, but was a right which he possessed in common with all other persons, and therefore no statutory right was taken away from the licensee by upholding the conviction.

Higgins J.

I concur.

Solicitor, for appellant, Raynes W. S. Dickson, Melbourne.

Solicitor, for respondent, Guinness, Crown Solicitor for Victoria.

[1] (1907) V.L.R., 478, at p. 479; 29 A.L.R., 10, at p. 11.

[2] (1907) V.L.R., 274; 28 A.L.T., 173.