Deegan v Licensing Bench for the Licensing District of Hobart [1909] HCA 37; (1909) 8 CLR 725 (11 June 1909)

HIGH COURT OF AUSTRALIA

Deegan Applicant, Appellant; and The Licensing Bench for the Licensing District of Hobart Respondent.

H C of A

On appeal from the Supreme Court of Tasmania.

11 June 1909

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

Bryant, in support of the application.

Griffith C.J delivered the judgment of the Court as follows:—

Griffith C.J.

The questions reserved for the opinion of the Supreme Court were, (1) whether the Bench were right in allowing counsel to address them and call evidence in opposition to the granting of the certificate on behalf of the public; (2) whether in the circumstances the Bench had power to refuse the application; and (3) whether in the event of one or both of those questions being answered in the negative the determination of the Bench was proper and valid. By sec. 32 of the Licensing Act 1902 it is provided that the Licensing Bench, in considering any application for certificates for licences, are to have regard, amongst other things, to "the character of the applicant, the suitableness of the premises, the locality of the house in respect of which such licence is required, and the necessity for a licensed house of the nature applied for in such locality." Under sec. 72 certain persons may oppose the granting of a certificate for a licence, and by the same section a person opposing a certificate is limited to the grounds of opposition of which he has given notice, "but nevertheless such Bench in considering any such application shall be guided by the provisions of this Act, whether or not any notice of opposition to the granting of a certificate has been given as hereinbefore provided."

In this case there was some attempted opposition, but the opponents failed at the outset. The case then before the Bench was an ordinary application for a certificate for a licence, and the Bench were then bound to inquire whether the application was a proper one to be granted, and in doing so to consider, amongst other things, the locality of the house in respect of which the licence was required, and the necessity for a licensed house of the nature applied for in that locality. They allowed a barrister to assist them in examining witnesses on these questions, and, having heard the evidence, they came to the conclusion that there was no necessity for a licensed house of the character applied for in the locality, and refused the application.

The first question asked by the case can only be answered in one way. The Bench are to decide whether the house is required in the locality, and they may inquire into that matter for themselves in any way they think fit. As to the second question, the Act expressly says that the Bench are bound to refuse the application if the house is not required in the locality. We think that the Judge was clearly right, and that being so, of course there is no ground for granting special leave to appeal.

The learned Judge, however, appears to have thought that he had jurisdiction to review the decision of the Licensing Bench on questions of fact. If he thought that, we take leave to doubt whether he had power to do so.

Special leave refused.

Solicitors, for applicant, Nunn, Smith & Jefferson, for Finlay & Watchorn, Hobart.