Delaney v Gant [1927] HCA 44; (1927) 40 CLR 174 (18 November 1927)

HIGH COURT OF AUSTRALIA

Delaney Informant, Appellant; and Gant Defendant, Respondent.

H C of A

On appeal from the Supreme Court of New South Wales.

18 November 1927

Knox C.J., Isaacs, Higgins, Powers and Starke JJ.

Weigall, S.-G. for N.S.W. (with him E. W. Street), for the appellant.

Flannery K.C. (with him Hutton), for the respondent.

Weigall S.-G., in reply.

Knox C.J.

In my opinion the appeal should be allowed. As the majority of the Court is of the contrary opinion, no useful purpose would be served by going into details. Speaking generally I agree with the judgment of Gordon J.

Isaacs J.

I think that the appeal should be dismissed and that the reasons of the majority of the Supreme Court are sound. I would like to add a few words for myself. Sec. 57 is a general section for the State of New South Wales. It provides that "(1) No licensee shall keep his licensed premises open for the sale of liquor, or shall sell or supply or deliver any liquor, or permit the same to be consumed, on the said premises—(a) upon any Sunday"—that is, over the whole of New South Wales; "(b) upon any Good Friday or Christmas Day"—also over the whole of New South Wales—"or upon any day named in any proclamation by the Governor published in the Gazette"—that also is over the whole of New South Wales. I think that the policy of the Legislature as declared by those words is simply this: that if the Executive comes to the conclusion that any other day is of sufficient importance to be placed in the same classification as those already named, it may put it in that classification by proclaiming that it is to be within the sub-section. But if the argument is to prevail that the day may be split up into hours, I can see no limit to the splitting up—it might be by reference to hours, or to the liquor that might be sold or to localities, or anything else. That would render the sub-section absurd. I think we must stand by the pure words of the section—"upon any day named."

Higgins J.

Agreeing, as I do, with the conclusion of my brother Isaacs, I should like to add a few words to indicate the position as it appears to me. The question is as to the limits of the power conferred on the Government by sec. 57 of the Liquor Act 1912 as amended by the Liquor Amendment Acts of 1916, 1922 and 1923; and a power conferred on a Government as well as powers conferred on others must be construed strictly. Gordon J., who dissented in the Supreme Court, referred to sec. 15, which was not referred to by the majority. On looking at sec. 15 it merely says what is the ordinary consequence of a publican's licence. It authorizes the licensee to sell liquor but (subject to the provisions contained in sec. 57 hereof) only on the premises therein specified and between six o'clock in the morning and eleven at night. But, as the very words of sec. 15 show, this authority is subject to the provisions of sec. 57; so that we are thrown back on sec. 57 (1). What is its meaning? Looking at sec. 57 (1), it is divided into two parts, (1) (a) and (b), (2) (c) and (d); the first part providing for the prohibition of the sale of liquor on whole days (a) Sunday, and (b) Good Friday and Christmas Day and any day named in a Governor's proclamation. The proclamation has to fix days, not hours. The second part prohibits the sale of liquor upon any day of election except between certain hours; and (d) upon any other day between certain hours named. There is nothing whatever in (a) or (b) as to hours. If there is no power to limit hours in sec. 57 (1) (b) then the majority of the Supreme Court is right. To give power to the Government to name days on which liquor may not be sold is not the same as to give power to the Government to name hours within which liquor may not be sold. As I put it during argument to Mr. Flannery, one can easily conceive that the Legislature might say:—"We are perfectly willing to allow the Government to prohibit the sale of liquor on a full day, if the Government will take the responsibility of doing so. We know that then the power to add to the number of sacred days would be exercised with great care. But we do not see fit to give the Government power to add limitations to hours of ordinary days, and perhaps thereby please some great body in the State by prohibiting the sale of liquor for certain hours in a day." It is not for us to say what was the actual motive of the Legislature in enacting the section in this form; it is ours to say what the Legislature intended by its words; but, in deciding what is the meaning of the words, we must see whether the literal construction does not give a reasonable and consistent meaning; and it is quite reasonable and consistent to suppose that the Legislature gives power to add to the number of sacred days but not to add to or to diminish the hours for sale on secular days. If the literal construction gives a reasonable and consistent meaning, that is enough for us. Although personally I should probably wish that there were the power contended for, as to hours, I have no right to give effect to my personal wish or to what I may regard as my common sense. The point is that it is the will of the Legislature and not any personal wish of the Judges that is to be carried into effect.

I think that the majority of the Supreme Court were right, and that the appeal should be dismissed.

Powers J.

I agree that the appeal should be dismissed on the ground that the Act does not give the Governor power to prohibit the sale of liquor between certain hours. I do so for the reasons stated by the majority of the Supreme Court.

Starke J.

I agree with the majority of the Supreme Court.

Appeal dismissed with costs.

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

Solicitor for the respondent, J. Buchanan.