Furlong v James [1940] HCA 22; (1940) 63 CLR 568 (10 September 1940)

The Liquor Act 1912 N.S.W. in Div. 3 of Part 3 contains provisions regulating the method and conditions of obtaining publicans' and other licences. But there is a proviso to sec. 24 which enacts:—"Provided always that, except as hereinafter provided, no such application shall be entertained where such applicant is an unmarried woman (not being a widow)." The effect of the provision is that an unmarried woman (not being a widow) is disqualified from obtaining a licence unless she can bring herself within one or other of the exceptions provided for by the Act.

Mary Furlong, a widow, held a publican's licence and was the licensee of a hotel. She died in 1939. Probate of her will was granted to her daughter Anne Veronica Furlong, a spinster, who carried on the hotel business as from the death of her mother, relying apparently upon the provisions of sec. 116 of the Act. In 1940 she as such executrix applied pursuant to sec. 37 of the Act for a transfer of the publican's licence to herself. The application was granted, but prohibition was granted by the Supreme Court of New South Wales upon a rule nisi for prohibition obtained by the inspector in and for the licensing district appointed pursuant to the Act. Anne Veronica Furlong now appeals to this court against the decision of the Supreme Court.

The contention on her behalf was that her application was for a transfer and not for the grant of a licence and consequently that the proviso to sec. 24 did not prohibit the transfer of a publican's licence to a spinster. The provisions of secs. 24 (2), (3), (4), (5), 116, 118, 124 and 131 were all relied upon in support of the contention, but none of them are applicable to the facts of this case. The provisions of sec. 117, however, make it clear, according to the argument, that a spinster might hold a licence, though the Supreme Court of New South Wales in Ex parte Day[1] did not accept that view. But the argument lays too minute a stress upon the precise words of the proviso in sec. 24 and pays too little attention to the effect and substance of the matter. Qui haeret in litera haeret in cortice. The disqualification of an unmarried woman (not being a widow) from obtaining a licence, apart from excepted cases, is the effect and substance of the proviso. A spinster who obtains the transfer of a licence obtains and holds a licence despite the proviso to sec. 24 which enacts that an application by her for a licence shall not even be entertained.

The Supreme Court was plainly right in its decision and this appeal should be dismissed.

The decision of the Supreme Court against which this appeal is brought is based upon the necessary intendment of the material provisions of the Liquor Act 1912 and not upon the meaning of language expressly covering the precise question at issue. That question is whether it is open to a licensing magistrate under sec. 37 (1) to grant a transfer of a publican's licence to an unmarried woman not being a widow.

Sec. 37 (1) provides that a licensing magistrate may, on application in writing by an intended transferor and transferee, transfer at any time the licence of any licensee (other than a booth or stand licence) to such transferee if approved by him, by an indorsement upon the licence in the form prescribed or to the like effect.

It will be seen that no reference, express or implied, is made to the capacity or competence of the proposed transferee to hold the licence. The sub-section is concerned only with the authority of a magistrate to grant a transfer of a licence. But sec. 24 (1), which deals with applications for original grants of publicans', spirit merchants' and Australian wine licences, concludes with a proviso which disqualifies an unmarried woman (not being a widow) from making such an application. The proviso is as follows:—"Provided always that, except as hereinafter provided, no such application shall be entertained where such applicant is an unmarried woman (not being a widow)."

Notwithstanding the form of this clause, its substance appeared to the Supreme Court to raise a necessary inference that no unmarried woman except a widow should be competent to hold a publican's, spirit merchant's or Australian wine licence. This conclusion, the court conceded, might not govern emergency provisions like secs. 116, 118 and 124; but it did affect the grant of a transfer under sec. 37 (1).

It is unnecessary to say that great caution must always be exercised in giving a wider operation to the intention of the legislature than the literal meaning of the enacting words requires. The appellant cites as an apposite expression of the principle a passage from the judgment of Bankes L.J. in Wilkes v. Goodwin[2]: "If the result is not what the legislature intended it is for the legislature to amend the proviso, rather than for the law courts to attempt the necessary amendment by investing plain language with some other than its natural meaning in order to produce a result which it is thought the legislature must have intended."

But notwithstanding the hesitation and misgiving which always must be felt in applying the substantial intention disclosed by an enactment to a case which does not fall within the exact words, I am not prepared to differ from the view of the Supreme Court.

There is, I think, a combination of matters justifying the interpretation their decision places on the statute.

To begin with, we are dealing with no ordinary enactment. Its provisions are not expressed in the careful terms or worked out in the logical sequence or completeness to which we are accustomed in a modern statute. Many provisions involve unexpressed assumptions and many are inartificially framed. Then the proviso to sec. 24 (1) has already been dealt with judicially in a manner both inconsistent with its performing the office proper to a proviso and consistent only with its application extending to grants of transfers. In Ex parte Day[3], which was decided upon the combined operation or effect of the provisions which now stand as sec. 117 and the proviso to sub-sec. 1 of sec. 24 before the enactment of the provisions now contained in the remaining sub-sections of that section, the Supreme Court held that a married woman was not competent to receive the grant of a transfer of a publican's licence. The reasoning was in part based upon the view that the proviso to sec. 24, which was then sec. 29 of Act 45 Vict. No. 14, implied that a widow was affirmatively empowered to hold a licence and that from its reference to a widow, from its prohibition of applications by any other unmarried woman, and from the transmission effected by what is now sec. 117 of the benefit and burden of a licence held by a single woman to her husband on her marriage, an implication arose against a married woman obtaining a licence whether by transfer or original application. Whatever might be thought of this reasoning, the conclusion has been confirmed by the enactment of what are now sub-secs. 2, 3 and 4 of sec. 24.

Stephen J. made it clear that he considered that all women but widows were excluded by the proviso from holding a publican's licence, and, as a transfer was under consideration, that the proviso, with this meaning affixed to it, applied generally and deprived a woman other than a widow of capacity to accept a transfer or to apply for an original licence. His Honour said:—"I am content to base my decision upon the proviso to sec. 29. Dr. Sly contended that that proviso was in his favour on the principle expressio unius est exclusio alterius, but it seems to me that on that principle the proviso is against him. It says no application shall be entertained where such applicant is an unmarried woman (not being a widow). That seems to me to exclude the idea of any woman, other than a widow, being an applicant"[4]. Darley C.J. was perhaps less specific, but he said: "It is said that this being an application for a prohibition at common law we must be satisfied that the licensing magistrate had no jurisdiction. It appears to us that he had no more jurisdiction to entertain an application for a licence by a married woman than he had to entertain such an application by an unmarried woman. In the proviso to sec. 29 of the principal Act (43 Vic. No. 14) it is provided that no application for a licence shall be entertained where the applicant is an unmarried woman (not being a widow)"[5].

Their Honours do not expressly advert to the fact that they were prohibiting not an application for a new licence but the grant of a transfer, but it is plain that they regarded the distinction as immaterial. The importance of the decision is twofold. First, it extends the operation of the proviso to transfers and, secondly, it treats it (read with sec. 117) as implying that, apart from express and exceptional provisions, no woman but a widow could hold a licence. The decision was given forty-six years ago and is the foundation of the subsequent legislation already mentioned.

The next consideration which appears to me to enter into the combination justifying the conclusion of the Supreme Court is that no plausible reason can be imagined for incapacitating a spinster from applying for a licence and, at the same time, allowing her to obtain one by transfer. Possible grounds for such a distinction were indeed suggested, but they were triumphs of ingenuity over reason and good sense, and, beyond maintaining the traditional inexhaustibility of the resource of counsel, took the matter no further.

Lastly, it seems clear that sec. 37 (1) is directed only to the machinery for effecting a transfer of a licence and has no relation to the question who is competent to hold a licence. That question must be answered by reference to other provisions of the Liquor Act and the general law. It is not an unnatural meaning to attribute to the statute that no one who is expressly disabled from applying for a licence is capable of holding one. Upon this interpretation of the Act, the magistrate went beyond his jurisdiction in granting a transfer to a spinster, and prohibition therefore lies.

For these reasons I am of opinion that the appeal should be dismissed with costs.

The question to be decided is whether the licensing tribunal under the New South Wales Liquor Act 1912 may entertain an application by a spinster for the transfer to her of a publican's licence.

The appellant, who is a spinster, applied under sec. 37 of this Act for the transfer to her of a publican's licence in which (although this is not material to the question of her competence to apply) she was beneficially interested. This section does not say who are competent or incompetent to apply for the transfer of a licence. But no person is a competent applicant who could not lawfully hold the licence sought to be transferred. The incompetence of the appellant, it is contended, is brought about by the operation of the proviso to sec. 24 (1). This is expressed to apply to unmarried women other than widows. Its application is clearly expressed to be limited to applications for new licences. It is contended, however, that the proviso should be construed to extend to a spinster's application under sec. 37 for the transfer of an existing licence. Two contentions are made: (a) the application of the proviso to such cases ought to be implied and (b) it must be presumed that the legislature intended that the construction of the Act should be governed by a judicial interpretation relating to the capacity of women to hold publican's licences which stood at the time the Act was passed. The first contention assumes that the context of the proviso affects unmarried women who are spinsters. This being conceded, the substantial ground for the contention is that it is necessary to read the proviso as extending to sec. 37 in order to save the prohibition which, it is said, could be evaded if newly-obtained licences were transferred to spinsters. But why should it be supposed that, because the legislature prohibited unmarried women except widows from embarking on proceedings for the grant of new licences, it intended that they should be incompetent to apply for transfers of licences after such proceedings had ended? To say so is, in my opinion, merely a speculative inference, not a necessary implication. To allow a spinster to apply for the transfer of an existing licence to herself is not inconsistent with the prohibition against her applying for the grant to herself of a licence for premises not already licensed. The two proceedings are substantially different. An application for a new licence raises controversies which an application for a transfer of a licence does not raise. The second contention is made in reliance on the case of Ex parte Day[6]. In that case it was decided that upon the true construction of the Licensing Acts, 45 Vic. No. 14 and 46 Vic. No. 24, which are now embodied in the Liquor Act 1912, it was not the intention of Parliament to permit a married woman to hold a publican's licence and that she was, therefore, incompetent to be the transferee of such a licence. Darley C.J., who with Stephen J. constituted the court, founded his conclusion on a number of sections, which he said "clearly indicate that it was not the intention of the legislature that a married woman when living with her husband should hold a licence ... now, if a married woman living with her husband could hold a licence, she could exempt herself from the penalties by saying that she was acting under the coercion of her husband"[7]. This reasoning clearly does not lay down any principle of construction which would exclude a spinster any more than a bachelor. But Stephen J., referring to the proviso to sec. 29 of 45 Vic. No. 14, which is similar in terms to the proviso to sec. 24 (1), said: "That" (proviso) "seems to me to exclude the idea of any woman, other than a widow, being an applicant"[8]. In so far as these remarks refer to the capacity of a spinster to hold a licence they are obiter dicta. The case was not one in which the right of a spinster to hold a licence was in question. There is nothing to show that the court understood or to support any such presumption as that Parliament understood this decision to mean that the proviso placed a spinster under the disability of not being allowed to hold a publican's licence: Cf. Concrete Constructions Pty. Ltd. v. Barnes[9], per Latham C.J. A spinster is not, as such, under any legal disability to hold or acquire property. The Act does not, in my opinion, either expressly or impliedly abrogate her common-law right to become the owner of a licence, although it may be conceded that it prohibits her from applying for the grant to her of a licence for premises not already licensed. One section at least—sec. 117—very clearly implies that a spinster or a widow may be the lawful holder of a publican's licence. It is impossible, in my opinion, to see any indication of legislative intention to forbid the transfer of a licence to a spinster. The appellant's social condition was immaterial and irrelevant to her application unless it could be made a ground of objection under sec. 29 of the Act. But an objection on that ground would be no less frivolous and vexatious, and therefore inadmissible, in an application by a spinster for the transfer of a licence to her if her character and qualifications are unassailable than if the applicant were a widow whose character and qualifications were likewise not open to attack.

[1] (1894) 15 L.R. (N.S.W.) 420; 11 W.N. (N.S.W.) 80.

[2] (1923) 2 K.B., at p. 93.

[3] (1894) 15 L.R. (N.S.W.) 420; 11 W.N. (N.S.W.) 80.

[4] (1894) 15 L.R. (N.S.W.), at pp. 424, 425; 11 W.N. (N.S.W.), at p. 81.

[5] (1894) 15 L.R. (N.S.W.), at p. 423; 11 W.N. (N.S.W.), at p. 81.

[6] (1894) 15 L.R. (N.S.W.) 420; 11 W.N. (N.S.W.) 80.

[7] (1894) 15 L.R. (N.S.W.), at p. 424; 11 W.N. (N.S.W.), at p. 81.

[8] (1894) 15 L.R. (N.S.W.), at p. 425; 11 W.N. (N.S.W.), at p. 81.

[9] [1938] HCA 65; (1938) 61 C.L.R. 209, at p. 225.

High Court of Australia

Furlong v James [1940] HCA 22; (1940) 63 CLR 568 (10 September 1940)

HIGH COURT OF AUSTRALIA