Russell v Gale [1928] HCA 21; (1928) 40 CLR 587 (9 August 1928)

HIGH COURT OF AUSTRALIA

Russell Informant, Appellant; and Gale Defendant, Respondent.

H C of A

On appeal from the Supreme Court of New South Wales.

9 August 1928

Knox C.J., Isaacs, Higgins, Gavan Duffy and Starke JJ.

Weigall K.C., S.-G. for N.S.W., and R. M. Kidston, for the appellant,

Street, for the respondent.

Knox C.J.

I think that the words "capable of producing intoxication" in the definition of in sec. 3 of the Liquor Act No. 42 of 1912 qualify only the words "any spirituous or fermented fluid whatever." The other words "wine, spirits, beer, porter, stout, ale, cider, perry," construed according to their ordinary popular meaning, all denote fluids generally recognized as being capable of producing intoxication, and therefore, if applied to them, the words "capable of producing intoxication" are entirely superfluous. In my opinion the appeal should be allowed.

Isaacs J.

I agree.

Higgins J.

I agree that this appeal should be allowed. The words "capable of producing intoxication" used in the definition of in sec. 3 are naturally and grammatically attached, not to "wine, spirits, beer," &c., but to the general words "or any spirituous or fermented fluid whatever"; and if a fluid other than wine, spirits, beer, &c., is spirituous or fermented, it must be shown to be "capable of producing intoxication." These latter words are by no means superfluous in their proper context. As for "wine, spirits, beer," &c., it is no answer to say that there is what is called "unfermented wine" or "ginger beer": we must take such words in their ordinary vernacular sense, uti loquitur vulgus; and in the ordinary vernacular sense they refer to intoxicating drinks.

Gavan Duffy J.

I agree that the appeal should be allowed.

Starke J.

I agree that the appeal should be allowed.

Appeal allowed. Order of Long Innes J. discharged. Case remitted to the magistrate to be dealt with in accordance with the decision of this Court. Appellant to pay costs of appeal in pursuance of his undertaking.

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

Solicitor for the respondent, E. R. Abigail.