Hey v Brookes [1911] HCA 21; (1911) 13 CLR 219 (6 June 1911)

HIGH COURT OF AUSTRALIA

Hey Defendant, Appellant; and Brookes Informant. Respondent.

H C of A

On appeal from the Supreme Court of New South Wales.

6 June 1911

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

Loxton K.C. (with him Clive Teece), in support of the application.

Griffith C.J.

We are told that the point involved in this application for special leave to appeal raises a question affecting nearly 200 licensed houses in New South Wales. Having regard to the period of the year and the time which, if leave were granted, must elapse before the appeal can be heard, it is evident that the granting of leave would have the effect of leaving in a state of uncertainty for a considerable period of time a matter of law as to which it is extremely desirable that there should be no uncertainty. That is the reason why we should be especially careful in considering whether special leave to appeal should be granted. We are told that in many of the cases an appeal will lie as of right. If so, what we say will not prevent the parties in those cases from taking advantage of their rights, but it may prevent some of them from going further.

After very full argument I am unable to see any real doubt that the judgment of the Full Court was right. The question arises under what are commonly called the "local option" provisions of the Liquor (Amendment) Act 1905. That Act provides for what is called a "local option" vote. The voting is in the parliamentary electorates. When the necessary provisions are complied with a vote is taken in an electorate, and the form of voting paper sets out three propositions to be voted upon:—

1.

I vote that the number of licences existing in the electorate continue.

2.

I vote that the number of licences existing in the electorate be reduced.

3.

I vote that no licences be granted in the electorate.

The elector is to put a cross against the proposition for which he votes. It is perfectly obvious that whatever the words "number of licences existing in the electorate" mean in the first proposition they also mean in the second proposition. If the result of the voting is that the number of licences is to continue, nothing in particular follows. If the result is that the number of licences is to be reduced, then the matter is referred to a Special Court, presided over by a District Court Judge, to determine to what extent, within limits prescribed by the Act, the number is to be reduced, and at what period the licences which are to be extinguished are to cease to have effect. That period may be not less than six months nor more than three years after the vote is taken, and is fixed under conditions carefully prescribed by the Act. If the result of the voting has been that the number of licences be reduced, another vote may be taken at the next general election, and if on the second occasion a resolution for reduction is again carried, then the Special Court has to determine to what extent the licences shall be reduced, and it is expressly provided by sec. 72 that the Court shall "determine the reduction to be made in the number of the existing licences of the respective descriptions, exclusive of those which, under a previous vote, will cease to be in force at the expiration of the prescribed period."

So that, when the Court in a case of that sort comes to perform its duty, it is to regard only the licences not already sentenced to extinction, and is not concerned with those upon which it has already adjudicated. The question, therefore, submitted to the electors when asked to say that the number of licences shall be reduced means the number of licences existing in the electorate other than those already extinguished or in process of extinction pursuant to the previous vote for reduction.

In the present case a vote for reduction was given in 1907, and in February 1908 the Special Court gave its decision that the number of licences in the electorate in which the appellant carries on business should be reduced to the extent of one licence, and the appellant was the chosen victim. The order of the Court was that his licence should cease to have effect on 6th February 1911. After that another vote was taken in 1910, and upon that occasion the result of the voting was that the number of the existing licences should continue. I have already pointed out that the words "number of licences existing in the electorate" must have the same meaning in both the questions. If the result of the second vote had been that the number of licences should be reduced, that would have meant that the number of licences excluding that of the appellant should be reduced, and therefore the vote that the number of licences should continue must mean that the number of licences excluding the appellant's should continue. That is pointed out very clearly by the learned Chief Justice, and the argument appears to me to be conclusive.

But there is another argument, perhaps not put so plainly, arising from the effect of the order of the Special Court, the Act having provided that the order of the Special Court as to which licences are to cease to exist shall be final and conclusive. There is absolutely nothing in the Act to take away from the effect of the order. Mr. Loxton has been asked several times by my brother O'Connor to point out any provision of the Act which leads to a contrary conclusion. He could only say that the resolution for reduction remains in force unless and until altered by a subsequent resolution for continuing the number of licences, and that the object of this is to enable the electors to alter their minds when once they have passed a resolution for reduction of licences. The question of increasing the number of licences is dealt with by the Act, but any addition to the number is made, not by a vote of the electors, but by Order in Council after a recommendation of the Licensing Court following upon a petition by persons interested in the matter.

Both these arguments appear to me to be conclusive against the idea that a licence sentenced by the Special Court to be extinguished at a certain time can be revived again by a subsequent resolution in favour of continuing the number of licences. We are concerned here only with the interpretation of the Act, and not with the hardships it may bring about, and in these circumstances we should not be justified in granting special leave to appeal.

Barton J.

I agree.

O'Connor J.

I am of the same opinion.

Special leave to appeal refused.

Solicitor, C. A. Coghlan.