Symes v Stewart [1920] HCA 73; (1920) 28 CLR 386 (17 November 1920)

HIGH COURT OF AUSTRALIA

Symes Defendant, Appellant; and Stewart Informant, Respondent.

H C of A

On appeal from the Supreme Court of New South Wales.

17 November 1920

Knox C.J., Isaacs and Rich JJ.

Leverrier K.C. (with him H. E. Manning), for the appellant.

Evatt, for the respondent, was not called upon.

Knox C.J.

This is an appeal by special leave from a decision of Harvey J. ordering that the case be remitted to the Magistrate. The material facts were these:—A man named Lilburn went to the public-house kept by the appellant early one morning and bought a bottle of whisky, for which Lilburn paid. The bottle was handed to Lilburn, who gave it back to the appellant to be kept for him until later in the day. It was then apparently wrapped up and put on a shelf and kept for Lilburn. At that time Lilburn was sober. He came back about 12.45 p.m. in a state of intoxication, and the son of the appellant handed him the bottle of whisky. The appellant was then charged with supplying liquor to a person who was at the time in a state of intoxication, within the meaning of sec. 53 of the Liquor Act 1912, and the Magistrate held that the liquor was not "supplied" within the meaning of the section, and dismissed the charge. There was then an appeal to Harvey J., who upheld the appeal and remitted the case to the Magistrate on the ground that his decision was erroneous in law. An appeal was brought to this Court by special leave.

I have no doubt that the decision of Harvey J. was right. Sec. 53 is one of a group of sections from sec. 49 to sec. 56 which is headed "The supplying of liquor." Sec. 49 provides for a certain penalty on a licensee who gives, sells or supplies, or allows to be given, sold or supplied, any liquor to a person of any one of three classes, and also provides for a penalty on any person other than the licensee who supplies liquor to a person of any one of six classes, one of those classes being "(d) any person then in a state of intoxication." Sec. 53 provides that "if the holder of any licence for the sale of liquor supplies liquor to any person who is at the time in a state of intoxication," he shall be liable to a certain penalty. For some reason which is not apparent, the prohibited act on the part of a licensee in the case of the person belonging to classes (a), (b) and (c) in sec. 49 (1) is the giving, selling or supplying of liquor or the allowing liquor to be given, sold or supplied, and the prohibited act on his part in the case of a person belonging to class (d) in sub-sec. 2 is the "supplying." The prohibited act on the part of a servant of a licensee is the supplying liquor to a person belonging to any one of the six classes. Why the difference is made, unless it be because the Act is a consolidating Act, is difficult to understand. At any rate it is quite clear that the matter is not one in which any nice distinction can be drawn from the fact that the word "supplies" is used apart from the words "gives" and "sells." The ordinary meaning of the word "supply" is to furnish or provide, and I think that ordinarily in common parlance there is underlying the word the idea that the thing supplied is something belonging to the supplier and not to the person supplied. How far that idea ordinarily goes can hardly be defined. But it is to be remembered that the sections in this group are mainly for the purpose of protecting certain classes of persons against themselves and against licensees who are not sufficiently scrupulous. The object being to protect these persons against themselves, it is necessary that the word "supply" should be construed liberally. That being so, I see no reason why we should not adopt the meaning which was given to the word by the Divisional Court in Hall-Dalwood v. Emerson[1]. That case, so far as I can see, is practically on all fours with the present case. It is quite true that the offence there was "to supply otherwise than by way of sale," but the Court had to find two things in order to sustain the conviction, first, that the transaction was one otherwise than by way of sale and, secondly, that the transaction properly came within the word "supply." The Court found both of those things, and I see no reason why we should not follow the decision on the second point, and hold, consequently, that the decision of Harvey J. was correct, and that the appeal should be dismissed.

Isaacs J.

I agree, and would only add that I think that the word "supply" is a word of such elastic meaning that its signification must depend entirely upon its context and the subject matter dealt with.

Rich J.

I agree.

Appeal dismissed with costs.

Solicitors for the appellant, Matthews & Dangar, Narrandera, by Kershaw, Matthews Lane & Glasgow.

Solicitor for the respondent, J. V. Tillett, Crown Solicitor for New South Wales.

[1] 87 L.J. K.B., 296.