Licensing Court (SA) v Cummins [1919] HCA 47; (1919) 27 CLR 26 (1 October 1919)

HIGH COURT OF AUSTRALIA

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

H C of A

On appeal from the Supreme Court of South Australia.

1 October 1919

Barton, Gavan Duffy and Rich JJ.

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

The judgment of the Court, which was read by Barton J., was as follows:—

Oct. 1

Barton, Gavan Duffy and Rich JJ.

Under secs. 14, 16, 17 and 18 of the Licensing Act of 1917 (No. 1322) the respondent held a "storekeeper's licence" and a "storekeeper's Australian wine licence." The first of the licences authorized him to sell "in the house or on the premises therein specified" liquor of the quantity mentioned in sec. 16, "not to be drunk in or about the premises." The second licence authorized the sale on the premises specified of mead, wine, cider or perry produced or manufactured in the Commonwealth of the quantity mentioned in sec. 18, "not to be drunk on the premises."

An inspector of licensed premises applied to the Licensing Court for the forfeiture of each of the respondent's licences under sec. 81 of the Act on the ground that the management of the licensed premises had not been satisfactory. In each case the particulars specified six consecutive occasions, and alleged "divers other occasions," on which the licensee had supplied liquor by the glass to be drunk on the licensed premises. The supply of liquor by the glass or to be drunk there and then was not authorized by either licence, and for the purpose of this appeal on the question of jurisdiction it must be taken that the acts alleged were committed.

On the hearing of the applications by the Licensing Court the respondent contested the jurisdiction of the Court, but the Court made the orders of forfeiture applied for, and he obtained a rule nisi for a prohibition and an order absolute. From that order the Licensing Court now appeals to this Court.

The question rests upon the construction of secs. 80 and 81. It is unnecessary to state these sections at length. They are quoted in the judgment appealed from.

The contention on which the respondent succeeded was that as the supply of liquor by the glass to be consumed on the premises is a finable offence under sec. 157, and under sec. 269 is an offence for which a licence may be forfeited as provided in sec. 80, the last mentioned section was the only provision on which to rest the application for forfeiture, the necessary condition precedent to which must be such convictions as are specified in sec. 80, which convictions have not been alleged or proved. In other words, it was argued that there was no jurisdiction in the Licensing Court to forfeit the licences under sec. 81. Sub-sec. 2 of sec. 80 forbids the Court to make any "such" declaration of forfeiture, except on information lodged with the Clerk within four months after the second or third conviction (as the case may be), &c.

The learned Chief Justice, in delivering the judgment of the Supreme Court, did not find it necessary to determine whether the acts specified in the written notice delivered to the Clerk of the Licensing Court would constitute unsatisfactory management in the ordinary meaning of those words. His Honor met the case of the applicant by a dilemma. If they would not, the application must fail; if they would, some other meaning must be assigned to them in sec. 81 so as to avoid a repugnancy or inconsistency between that section and sec. 80. He says:—"Now, by sub-sec. 2 of sec. 80, it is expressly declared that no such declaration of forfeiture, that is, a declaration of forfeiture for, amongst other things, supplying liquor by the glass contrary to the tenor of a licence, shall be made by the Court, that is, by the Licensing Court, which is the only Court that has jurisdiction under sec. 81, except upon information lodged with the Clerk within four months after such second or third conviction (as the case may be) as aforesaid, that is, after a second conviction within two years, or a third conviction within three years. It is perfectly plain, therefore, that a construction of sec. 81 which would allow of a licence being forfeited for such conduct without any conviction at all would be repugnant to, or inconsistent with, sec. 80. Hence sec. 81 must be construed in such a way as to avoid that repugnancy or inconsistency, and the only manner in which it can be done is to limit its application to breaches of good management other than those which are covered by sec. 80."

In our opinion, there is no such dilemma. Sec. 80 (1) enables the Licensing Court to declare a licence to be forfeited on proof of two, or three, convictions for specific offences before a Special Magistrate or justice. Sec. 80 (2) does not enact that no declaration of forfeiture for any specific misconduct shall be made except upon the conditions contained in that sub-section; it merely enacts that a declaration of forfeiture based on two or more existing convictions and authorized by the provisions of sec. 80 (1) shall not be made except on those conditions. Then comes sec. 81, which enables the Licensing Court not merely to act on convictions obtained elsewhere, but to determine for itself whether the management of the licensed premises has been satisfactory, and to declare the licence to be forfeited if it is satisfied that the management has not been satisfactory, and is of opinion that the licence should be forfeited.

It remains only to consider whether the acts alleged in the written notice delivered to the Clerk of the Licensing Court would justify a finding that the management of such premises had not been satisfactory within the meaning of sec. 81. We think they would justify such a finding. In our opinion, the words of the section should be given their ordinary and natural meaning, and we see no reason why evidence which would justify a number of convictions for the offence of supplying liquor by the glass to be drunk on the licensed premises might not also justify a finding that the management of such premises had not been satisfactory.

We therefore think that the Licensing Court had jurisdiction to proceed on the applications, and to declare the licences to be forfeited. The appeal must be allowed. The order nisi for a writ of prohibition must be discharged. The declaration of forfeiture therefore stands.

Appeal allowed. Order nisi for prohibition discharged. Declaration of forfeiture to stand.

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