Licensing Court (SA) v White [1918] HCA 6; (1918) 24 CLR 318 (27 February 1918)

HIGH COURT OF AUSTRALIA

The Licensing Court (South Australia) Appellant; and White Respondent.

H C of A

On appeal from the Supreme Court of South Australia.

27 February 1918

Griffith C.J., Barton and Rich JJ.

Cleland K.C. (with him Hannan), for the appellant.

Starke and Bennett, for the respondent.

Griffith C.J.

It has often been pointed out that, under the licensing systems in operation in most or all of the States of the Commonwealth, a licence for the sale of liquor is granted after consideration of the fitness both of a person and of premises. It is a single licence granted after consideration of both matters. An attempt was made in argument to treat a licence as divisible, so that it should be regarded as a licence to a person and separately as a licence for premises, but there is nothing in the Act to justify such a division. I can quite understand that the Legislature might have made such a separation, but they have not done so.

Under the Licensing Act 1908 of South Australia two authorities have jurisdiction to deal with licences. One is the Licensing Bench; the other consists of the electors of the district. The functions of these authorities are quite distinct. That of the electors is limited to prescribing general rules as to the total number of licences that it is permissible to grant in the district, and they have no concern with the granting of individual licences. In the absence of any resolution the total number of licences that it is permissible to grant is as large or as small as the Licensing Bench think proper. Their discretion is uncontrolled (sec. 59). The general rules are expressed in the form of three alternative resolutions submitted to a poll (sec. 183), the first being "that the number of licences be reduced," the second "that the number of licences be not increased or reduced," and the third "that the Licensing Bench may in their discretion increase the number of licences." It is manifest that the language of these resolutions is elliptical. In the first resolution the words "the number of licences" mean the number of licences which it is permissible to grant, and "reduced" means reduced below the number of licences then existing. In the third resolution the word "number" has the same meaning, and the word "increase" means increase beyond the existing number. I come to the conclusion, if it is necessary to do so, that in the second resolution also the word "number" means the number of licences that it is permissible to grant, which limit is to remain unaltered, that is, the limit is to be the same as the number of existing licences, and is neither to be reduced, as it must be when the first resolution is adopted, nor increased, as it may be when the third is adopted. It appears, then, that in each case the subject matter of the resolution is the extent of the power of the Bench, which, within its limits, is plenary, and that it has nothing to do with the exercise of the Bench's discretion within the limits of the power. If, therefore, there were no more in the Act, I should come to the conclusion that the only effect of the adoption of the second resolution is that the limit of the number of licences that it is permissible to grant shall neither be increased above, nor reduced below, the existing number, and that the resolution has nothing to do with such a diminution in number as may arise from non-renewal of an individual licence for any cause, which diminution might in another context be included in the word "reduction." This view is supported by Schedule C, which speaks of a "reduction" in pursuance of a resolution to reduce.

I agree, however, with Mr. Cleland's contention that the effect of the resolutions is to be ascertained from the express provisions of the Act which declare their effect, and not from their naked words alone. The Legislature prescribed what the effect of the adoption of each resolution should be. The effect of the adoption of the first resolution is that the number of existing licences is to be reduced by one-third (sec. 183 (2)), so that as to one-third of the existing licences a renewal cannot be granted. But they went on (sec. 199 (2)) to say that the Licensing Bench should not be confined to that reduction, but might further reduce the number to any extent they thought fit. Sec. 200 provides that "If the second resolution is adopted at a local option poll in any Local Option District, no licence of any class shall thereafter, whilst such resolution continues in force, be granted in such district, except in respect of premises licensed at the time of such poll or premises to which a licence existing within such district at such time is removed." That is to say, the limit shown by the number of then existing licences shall not be exceeded, and new premises shall not be licensed, even within that limit, except in the case of a removal of a licence. That, in my opinion, is the effect, and the only effect, of the resolution, and the only qualification which its adoption imposes on the discretion of the Licensing Bench. It is, indeed, hardly conceivable that the discretion allowed to continue if the first resolution is adopted should be denied to the Bench on the adoption of the second. I think, therefore, that the Licensing Bench had, and, since the amending Act of 1915, the Licensing Court has had, jurisdiction to entertain the objection in question.

An argument has been founded on sec. 203, which provides that a resolution when adopted is to continue in force until altered or rescinded by a resolution adopted at a subsequent local option poll. But it is obvious that a provision fixing the time during which a rule is to continue in force is quite irrelevant to the question of what is the rule. The force of the resolution is not affected by that section.

For these reasons I am of opinion that the appeal should be allowed.

Barton J.

I entirely agree.

Rich J.

I agree.

Appeal allowed. Order appealed from discharged. Rule nisi for prohibition discharged with costs. Respondent to pay costs of appeal.

Solicitor for the appellant, F. W. Richards, Crown Solicitor for South Australia.

Solicitors for the respondent, Stock & Bennett.