McCullin v Crawford [1921] HCA 22; (1921) 29 CLR 186 (23 May 1921)

HIGH COURT OF AUSTRALIA

McCullin Respondent, Appellant; and Crawford and Others Applicants, Respondents.

H C of A

On appeal from the Supreme Court of Victoria.

23 May 1921

Knox C.J., Gavan Duffy and Rich JJ.

C. Gavan Duffy (with him Reynolds), for the appellant.

Lewers and Owen Dixon, for the respondents.

C. Gavan Duffy, in reply.

The Court delivered the following written judgment:—

May 23

Knox C.J.,

Gavan Duffy and Rich JJ.

The relevant facts in this case are as follows:—The respondents are and at all material times were the owners of the City Family Hotel, Bendigo; and the appellant McCullin is and was at all material times the occupier of this hotel under a lease from the owners for a term of twelve years commencing on 1st May 1913, at a yearly rent of £780. An order dated 16th March 1916 was made by the Licences Reduction Board under sec. 4 of Act No. 2776 (the Licensing (Rents and Fees Adjustment) Act 1915) reducing the rent by the sum of £4 weekly, and a subsequent order dated 31st May 1917 was made under Act No. 2855 (the Licensing Act 1916) whereby a further reduction in the rent was allowed to the extent of £3 5s. weekly. The latter order was, however, varied on 10th December 1917 by substituting for the sum of £3 5s. the sum of £2—the owners having obtained a rehearing of the application by the Board under the provisions of sec. 17 of Act No. 2855. Two years later, Act No. 3028 (the Licensing Act 1919) was passed, and pursuant to sec. 13 of that Act the owners appealed from the determination or order of the Board dated 16th March 1916 and also from that of 31st May 1917 as varied by the subsequent order of 10th December 1917. There is no provision in the Act relating to the lodging or service of a notice of appeal, but notices were served in the case of each appeal, being addressed to "The Court of Petty Sessions consisting of a Police Magistrate sitting without Justices at Bendigo," to the Licences Reduction Board and to the occupier, Bryan McCullin. The grounds of appeal stated in the two notices were practically the same, and the substantial ground in each case was that the reduction ordered by the Board was excessive. The appeals duly came on for hearing before the Police Magistrate, sitting alone, and evidence was given vivâ voce on both sides, new witnesses being called in addition to those who had given evidence before the Board, and further evidence being elicited from the original witnesses. Neither at the hearing nor at any time previously, either by notice of appeal or otherwise, did the present appellant indicate any dissatisfaction with the orders appealed from or either of them. The Police Magistrate made an order in each case quashing the order of the Board, and substituting therefor an order providing for a reduction of rent to the extent of £5 weekly in the one case and £2 10s. weekly in the other. He also ordered the present respondents to pay 10 guineas costs to the present appellant. The result of these appeals was that in each case not only did the present respondents fail to establish that the reduction already ordered was excessive but a further reduction was allowed. The respondents on 8th July 1920 obtained in the Supreme Court a rule nisi for a writ of certiorari to bring up these orders of the Court of Petty Sessions to be quashed, and on 24th November 1920 the Full Court of the Supreme Court made the rule absolute. It is against this last-mentioned order that the present appeal is brought.

The substantial question to be determined is whether upon an appeal under sec. 13 of Act No. 3028 (the Licensing Act 1919) the Court of Petty Sessions has power, when no notice of appeal has been given by a respondent, to make an order less favourable to an appellant than the order against which the appeal was brought. The answer to be given to this question depends on the true construction of sec. 13 of the Licensing Act 1919. That section is in the following words:—"At the end of paragraph (a) of sub-section 6 of section four of the Licensing (Rents and Fees Adjustment) Act 1915 there shall be inserted the following words:—unless such determination is appealed from as hereinafter provided. Any party to any such determination (whether made before or after the commencement of the Licensing Act 1919) who feels aggrieved thereby may—if the determination were made before the commencement of that Act, within fourteen days after such commencement; or if the determination is made after the commencement of that Act, within fourteen days after the making of the determination—appeal from the determination to (i.) a Judge of County Courts; or (ii.) a Court of Petty Sessions consisting of a Police Magistrate sitting without justices—and such Judge or Court (as the case may be) shall entertain inquire into and decide upon the appeal; and for that purpose may do all such matters and things relating thereto and in the same manner and to the same extent as he or it is empowered to do in the exercise of his or its ordinary jurisdiction and the decision of such Judge or Court shall be final and without appeal."

For the appellant it was contended that this section confers on the Court of Petty Sessions power to rehear the whole case, to deal with it de novo as a Court of first instance, and to make any order which might have been made by the Licences Reduction Board. For the respondents it was argued that the function of the Court of Petty Sessions is limited to determining the complaint of the appellant, and that it has no power to make an order less favourable to an appellant than that against which his appeal is brought. The argument for the respondents was rested mainly, if not entirely, on the use of the word "appeal" in the section under consideration; and authorities were cited in which it was decided that the function of a tribunal which has power to entertain "appeals" is limited to determining whether the complaint of the appellant is well founded. But, in our opinion, the word "appeal" is a word of flexible meaning, and is not invariably used in the strict or limited sense attributed to it in those authorities. Decisions given on the meaning of the word in other Acts are of little or no assistance in arriving at a conclusion as to the meaning to be attributed to it in this Act, once it is established that the word is fairly capable of more than one meaning. The meaning of the word in sec. 13 is to be determined upon a consideration of the words of that section and of the other provisions of the Acts dealing with the adjustment of the rents of licensed premises.

Looking first at the provisions of sec. 13, the word "appeal" is the only word which tends to indicate that it was intended to limit the function of the Court of Petty sessions in the manner suggested by the respondents, and, as already pointed out, the use of this word cannot of itself be regarded as conclusive. On the other hand the section provides that the Court of Petty Sessions, in dealing with appeals under it, is to have power for the purposes of the appeal to do everything which it might do in the exercise of its ordinary jurisdiction, i.e., as a Court of first instance; for apart from this section the Court of Petty Sessions is not a Court of appeal. It is also to be noticed that no provision is made for any formal notice of appeal to be given or for any statement of the grounds of appeal. Consequently there is no obligation on the appellant to inform either the appellate tribunal or the other parties to the determination of the Board what portion of the determination it is of which he complains or on what grounds he complains of it. The importance of this is seen by reference to sec. 4 of the Act No. 2776, which is amended by the section now under consideration. Sec. 4 provides in effect that the Licences Reduction Board may by one determination finally and conclusively adjust the rights of all persons interested in the licensed premises (see sub-secs. 5 and 6). Suppose three persons to be interested—A as owner, B as lessee and C as sub-lessee. The Board in adjusting their rights would presumably adjust the rent payable by B to A conformably to the adjustment made of the rent payable by C to B. If B feels aggrieved by the adjustment he may appeal. There is nothing in the Act which requires him to inform either the tribunal of appeal or the other parties to the determination whether his complaint is that the rent payable by C has been reduced by too much, or that payable to A has been reduced by too little. In such a case it might well be impossible for the Court of Petty Sessions to decide whether B's complaint was well founded and to give effect to its decision, unless it had the power to increase the reduction made by the Board in the rent payable by C to B or to diminish that in the rent payable by B to A. But, if the respondents' contention be well founded, the appellant in such a case could, by limiting his appeal to the question whether the reduction made in C's rent was excessive, prevent the Court of Petty Sessions from revising the reduction made in the rent payable by B to A, although the evidence adduced before that Court might clearly show the propriety of altering both of the reductions made by the Board, and although the propriety of making one alteration might depend on the power to make the other.

On the whole we are of opinion that the Court of Petty Sessions had jurisdiction to make the orders of 24th May 1920, and that the order nisi for a writ of certiorari should have been discharged.

The appeal is allowed, and the order of the Supreme Court set aside. The respondents are to pay to the appellant his costs in the Supreme Court and in this Court.

Appeal allowed. Order appealed from set aside. Respondents to pay costs of appellant in Supreme Court and High Court.

Solicitors for the appellant, Brayshay & Luke Murphy.

Solicitors for the respondents, Shaw & Turner, for Tatchell, Dunlop, Smalley & Balmer, Bendigo.