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High Court of Australia |
BOULUS v. BROKEN HILL THEATRES PTY. LTD. [1949] HCA 8; (1949) 78 CLR 177
Theatres
High Court of Australia
Latham C.J.(1), Dixon(2), McTiernan(3), Williams(4) and Webb(5) JJ.
CATCHWORDS
Theatres - Town Hall - Licence - Transfer - Transferee neither owner nor lessee - Effectiveness - Exhibition of cinematograph films - Endorsement of licence - Application - "Date" of application - Refusal - Appeal to District Court - Jurisdiction - Certiorari - Theatres and Public Halls Act 1908-1946 (N.S.W.) (No. 13 of 1908 - No. 27 of 1946), ss. 9, 11, 12, 13, 13A, 13D - District Courts Act 1912-1947 (N.S.W.) (No. 23 of 1912 - No. 41 of 1946), s. 51.
HEARING
Sydney, 1949, March 29, 30. 30:3:1949DECISION
March 30.2. Sub-section (3) of s. 13D provides that an application for the prescribed endorsement of a licence issued under this Part and current at the date upon which the application is made may be made at any time in accordance with the regulations. Some argument was heard on the meaning of the words "at any time." In my opinion, they are intended only to make it clear that an application may be made for the prescribed endorsement upon a licence before the issue of the licence as well as after the issue of a licence. The forms in the regulations are consistent with that construction of this provision, because the form of application for the prescribed endorsement provides that the capacity of the applicant is to be specified in the following manner - "State whether holder of the licence or applicant for an original licence." (at p187)
3. There are other provisions in the Act, such, for example, as s. 13A (5), which show that an application for an endorsement may be made before a licence exists. Section 13A (5) provides that "where an application under this Part for an original licence in respect of a proposed building is made after the commencement of the Theatres, Public Halls and Cinematograph Films Act 1937, an application in accordance with the regulations may be made at the same or any other time for the prescribed endorsement on the licence, if and when the same is issued." (at p187)
4. Section 13D is perhaps the most important section in relation to this appeal. Its relevant provisions provide, in sub-s. (1) - "This section shall apply to the following applications and to those applications only: - . . . (b) an application made after the commencement of s. 4 of the Theatres, Public Halls and Cinematograph Films (Amendment) Act, 1938, for the prescribed endorsement on a licence issued under this Part and current at the date of the application." (at p187)
5. It will be observed that this section provides that it shall apply to the following applications and those applications only, including an application for a prescribed endorsement on a licence issued under this Part and current at the date of the application. It will be necessary to consider the meaning of those words "current at the date of the application." On the one hand, it has been argued that the application is a proceeding which continues and is in existence from its initiation until the final decision either by the commission, which carries out certain functions under the Act, or by the District Court judge on appeal. On the other hand, it is argued that the application means the document which is described as an application in the Act and the regulations, and that the date of the application is the date when that application is lodged with the commission. (at p187)
6. Section 13D sub-s. (3), provides that the Minister shall refer to the commission every application to which the section applies, together with reports and information, &c. There it is emphasized again that it is only an application to which this section applies which the Minister has the duty and the power of referring to the commission. Sub-section (4) provides for an advertisement in the Gazette to the effect that an application has been referred to the Minister, and par. (b) of that sub-section - which is not unimportant in relation to one matter that has been argued - provides that notice shall be given in accordance with the regulations, shall contain such particulars as may be prescribed and shall appoint a date on or before which objections to the granting of the application may be lodged with the commission. (at p188)
7. Other provisions in s. 13D provide for objections to be specified and provide that an objection shall not be valid unless it is made on one or more of the grounds specified. (at p188)
8. This commission, which is a commission appointed under another Act - the Cinematograph Films Act 1935-1938 - if there is a valid objection, or at least if no valid objection is lodged with the commission, determines the application. If a valid objection is lodged, then leave is given to the applicant to answer the objections, and the commission then considers the application and determines whether or not the application shall be granted. (at p188)
9. Sub-section (11) provides that an applicant whose application has been refused may appeal to the District Court. (at p188)
10. Paragraph (b) of sub-s. (11) reads - "The appeal shall be in the nature of a re-hearing of the application." Accordingly, when the District Court upon appeal deals with the matter, it deals with it by way of rehearing, and therefore applies the law as existing at the time of the rehearing so far as relevant and applicable and also takes into account the facts as existing at the time of the rehearing. There is a distinction between a rehearing of this kind and an appeal. Upon an appeal, the appellate tribunal determines whether, on the facts before the lower court, the decision of the lower court was right or wrong. Upon a rehearing, the District Court could take into account, for example, the existing state of the building at the time of the rehearing and any facts which had emerged since the original making of the application which it considers may well apply to the question whether the applicant appealing to the District Court had the necessary qualifications to make the application to the Minister. Paragraph (c) of sub-s. (11) of s. 13D provides that "the decision of the District Court upon the appeal shall be final, and for the purposes of this Act shall be deemed to be the final determination of the Commission, and shall be carried into effect." Paragraph (d) provides that "the District Court shall have jurisdiction to hear and decide any appeal under this section and the provisions of the District Courts Act, 1912, as amended by subsequent Acts shall, with such modifications as may be necessary to give effect to this subsection, apply to and in respect of the appeal." (at p188)
11. There are provisions in the District Court Act to which it is necessary to make reference. Section 51 of the District Courts Act 1912-1936 provides - "Except as in this Act provided, no judgment, order or determination given or made by any judge of a District Court, nor any cause or matter brought before him or pending in his court shall be removed by appeal, motion, writ of error, certiorari, or otherwise into any other court whatever." Section 47, however, provides that "any plaint entered in any District Court" may be removed by writ of certiorari into the Supreme Court by order of any judge upon certain terms. In my opinion it is difficult to describe an appeal under s. 13D of the Theatres and Public Halls Act 1908-1946 as being a plaint entered in a District Court. If that be so, then s. 47 is not applicable to these proceedings and it is necessary to consider the applicability of s. 51. (at p189)
12. I have now stated the relevant provisions of the Act except, perhaps, that I have not referred to s. 18, which provides that, when any person holds an entertainment in any theatre or public hall which is unlicensed, he is subject to penalty. (at p189)
13. The facts of the present case are these. The Council of the City of Broken Hill owns and controls a Town Hall in respect of which it held a licence under the Act which was granted on 13th August 1946. That licence expired on 31st July 1947. The council was in negotiation with the appellant Boulus for the purpose of letting the Town Hall to him for cinematograph entertainment, and an agreement was made on 18th December 1946, which contemplated the granting of a lease for ten years to Boulus for this purpose. The agreement expressly stated that the lease was to be on terms to be agreed and it was not in itself an agreement for a lease; and, further, the council had no power to grant a lease for a term exceeding two years. Accordingly, Boulus had not become a lessee by virtue of this agreement. The council, however, purported to transfer to him the licence which it held under the Act and that transfer was made on 8th January 1947. The transfer was duly registered and recorded in the books of the commission, but s. 13 of the Act provides, in relation to transfers, that "every such transfer shall be to an owner or lessee of the building licensed." Boulus was clearly neither the owner nor the lessee of the Town Hall at the time of what purported to be a transfer of the licence to him. The result is that the transfer was completely ineffective and the City Council remained the licensee, having the rights of and being subject to the responsibilities of a licensee. Boulus, therefore, was neither the owner nor the lessee nor the licensee under the Act. (at p189)
14. On 26th May 1947, Boulus made an application for endorsement under s. 13A so that he could use the hall for the purpose of exhibiting cinematograph films. Objections were lodged and the commission heard the application and on 3rd October 1947 refused to make the endorsement. Boulus appealed to the District Court and the document whereby he declared his intention to appeal bears date 3rd November 1947. The licence was thought to be transferred to him and a renewal was granted in the form of a new licence to Boulus on 19th April 1948. That renewal was made retrospective in terms and it expired on 31st July 1948. The appeal came on for hearing in April 1948 and it was heard in April, June and July. A lease of the hall was granted to Boulus on 19th May 1948, and a renewal of the licence was granted to Boulus which expires in the middle of this year. The appeal from the commission was allowed by the District Court on 26th August 1948. (at p190)
15. Now s. 13D provides that the section, and all the provisions of the section therefore, including provisions for appeal, shall apply to the following applications and to those applications only. What then are the applications in relation to which a right of appeal to the District Court is given? They are applications for an endorsement on a licence issued under this Part and current at the date of the application. (at p190)
16. The application must be made, it is reasonably obvious, by a licensee and not by a stranger, and it must be an application for an endorsement on a licence issued under that Part and current at the date of the application. Did Boulus have a licence which was a current licence at the date of the application? First, what is the date of the application? Secondly, what licence did Boulus have and when? It was held by the learned Chief Justice, who dissented from the decision of the majority, that the application was a proceeding which continued de die in diem and that, therefore, the application was still being made at the date when the District Court gave its decision in August 1948. At that date Boulus was a lessee and a licensee. It appears to me that there are difficulties in giving this interpretation to the terms of the statute. One thing it would mean is that an application should be regarded as a continuous proceeding at all times until a final decision is reached. An application would then have many "dates" - it would have as many dates as the days occupied in the whole of the proceeding. Further, s. 13D (4) (b) provides that the notice shall be given in accordance with the regulations, shall contain such particulars as may be prescribed and shall appoint a date on or before which objections to the granting of the application may be lodged with the commission. Unless a single and specific date is attachable to an application, it is not a practicable thing to apply these provisions. Further, sub-s. (3) of s. 13D provides that the Minister shall refer to the commission every application to which this section applies. There is an application which the Minister may refer; if an application exists, then it may be referred. That suggests that there is a document of some kind which the Minister may place before or refer to, i.e., bring before, the commission. There are provisions requiring applications to be in accordance with the regulations. Regulation 106A provides that an application for the prescribed endorsement shall (a) be in writing; (b) be signed by the person in whose name the licence has been issued, or the person making application for the renewal of a licence, or the person who is the applicant for an original licence in respect of the proposed building, as the case may be; (c) be accompanied by the licence held in respect of the theatre or public hall, if and when lodged for renewal. Those provisions, in my opinion, are consistent only with the view that, when the Act refers to an application, it is referring to a written application which is identifiable by reference to the date upon which it was made. Of course the provisions of the Act cannot be interpreted by reference to the regulations, but in my opinion the regulations carry out the intention of the Act. (at p191)
17. Unless at the date of the application Boulus had a current licence his application could not be an application to which s. 13D could be applied. It would, therefore, not be an application which the Minister could refer to the commission, nor an application the refusal of which could confer a right of appeal under s. 13D. Therefore, in my opinion, for these reasons the commission had no jurisdiction to deal with the application and the District Court had no jurisdiction which it could exercise in relation to an appeal. (at p191)
18. It is contended, however, that it is wrong for the Court to give effect to such a view, first, because it is argued that certiorari cannot go to a District Court purporting to act under s. 13D, because that court is not acting as a court discharging judicial or quasijudicial functions. In my opinion, precisely the same point arose in the case of Medical Board of Victoria v. Meyer [1937] HCA 47; (1937) 58 CLR 62 . The provisions in the statute that were there considered by the Court were very similar indeed to the provisions in the statute which we are now considering, and in my opinion that case answers the first of the contentions relating to the propriety of directing that certiorari should go in this case. The general principle in relation to courts of limited jurisdiction was stated in the case of R. v. Hickman; Ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598, at p 606 . "An authority with a limited jurisdiction cannot give itself jurisdiction by a wrong determination as to the existence of a fact upon which its jurisdiction depends, or by placing a wrong construction upon a statute upon which its jurisdiction depends, unless by a valid provision the authority is given power to act upon its own opinion in relation to the existence of the fact or in relation to the construction of the statute." (at p192)
19. That is the principle. It has been contended that it is entirely a matter for the District Court to determine whether an application is within the Act or not. But the provisions of s. 13D are particularly strong, it appears to me, in relation to this matter. I have already mentioned more than once the provision that the section shall apply to "the following applications and to those applications only." But reliance is then placed upon s. 51 of the District Courts Act to which I have referred. That section, speaking generally, takes away certiorari, but even such a section as that does not prevent the issue of a writ of certiorari in some cases. If a court with a limited jurisdiction fails to pay attention to an initial condition of the exercise of any jurisdiction by it or purports to deal with a matter which is plainly outside the intention of the relevant statute, a provision taking away certiorari is not construed as meaning that the court has unlimited jurisdiction to act according to its own will, irrespective of any limitations applying to its jurisdiction. (at p192)
20. In the case of Baxter v. New South Wales Clickers' Association [1909] HCA 90; (1909) 10 CLR 114, at p 131 , Griffith C.J. said: - ". . . the jurisdiction of a court to decide a case is not limited to the decision of questions of fact, but extends to the decision of questions of law, including the construction of statutes, and if no appeal lies, the decision, however erroneous, is final between the parties. But there is a distinction in this respect between statutes conferring jurisdiction and statutes relating to matters within the jurisdiction of the court. As was said by Brett L.J. in the case of Denaby Main Colliery Co. v. Manchester, Sheffield and Lincolnshire Railway Co. (1880) 3 Nev & Macn Ry Cases 442 , the general rule is that misconstruction of a statute as to a point of jurisdiction is matter of prohibition, but misconstruction of an Act of Parliament upon a matter within the jurisdiction is matter of appeal. A grant of limited jurisdiction coupled with a declaration that the jurisdiction shall not be challenged seems to me a contradiction in terms. Effect must be given to the whole statute." (at p192)
21. In this case it is true that the statute provides that the decision of the commission (s. 13D (10)) or of the District Court upon appeal (s. 13D (11) (c)) shall be final and that effect shall be given to it, but all these provisions are introduced by the covering words applying them to certain applications and to certain applications only. Unless an application is an application of the kind specified in the sub-section, the rest of the provisions of the section do not apply. (at p193)
22. Accordingly, in my opinion it was rightly decided that a writ of certiorari should issue and the appeal should accordingly be dismissed. (at p193)
DIXON J. I agree that the appeal should be dismissed. Under the Theatres and Public Halls Act 1908-1946, with very limited exceptions, it is not lawful to exhibit moving pictures in a public hall unless in a hall in respect of which two forms of licence have been obtained. The first is a licence for the use of the hall for what may be described as public entertainment. The second is an endorsement on the licence specifically authorizing the use of the hall for the exhibition of films. The Act is one which has grown up by a process of amendment and in such cases it is not always easy to make every provision fit into a perfectly logical and coherent legislative picture so that the whole instrument is made consistent by a process of interpretation. (at p193)
2. Attempting the task of construing the provisions of the Act as best I can, after studying it as a whole I have reached two conclusions as to its meaning and they go to the essence of this case. The first is that the Act does not intend that a licence may be obtained except by the owner of a hall or the lessee of a hall. The second is that the endorsement may not be obtained except by a person in whose name the licence is expressed. The justification for the view that a licence can only be obtained by the owner or a lessee lies in s. 9 (1) (a) and s. 13. Section 9 (1) (a) says that on application made as prescribed by the owner or lessee of a theatre or public hall or any person duly authorized by such owner or lessee the Minister may issue a licence. Section 13, which deals with the transfer of licences, provides that every transfer shall be to an owner or lessee of the building licensed. The words in s. 9 "or any person duly authorized by such owner or lessee" were introduced by the Act of 1946. They appear to me to mean "authorized to apply for a licence on behalf of the owner or lessee" and not to enable a person who otherwise may be a stranger to the building to obtain a licence in his own name. (at p193)
3. The provisions which relate to the endorsement, when they are read together, appear to make it quite plain that only the licensee could obtain the endorsement. In the present case a licence subsisted in the Broken Hill City Council for the hall which is under consideration, but unfortunately a transfer was attempted to the now appellant at a time when he had no title either as owner or lessee of the building. He was merely a prospective lessee, with perhaps some assurance that, subject to agreement on details, he might eventually become a lessee. The transfer was, in my opinion, ineffectual and the licence remained in the Broken Hill City Council. It was ineffectual because the transfer is prohibited by s. 13 of the Act. The City Council did not take steps to renew the licence. The appellant in the result did take steps to renew the licence, but, as he was not the original licensee and could not then lawfully acquire the original licence by transfer, his attempts to renew it were in law rendered nugatory. While he regarded himself as a transferee of the licence he applied for an endorsement of the licence for the purpose of exhibiting films. His application was incompetent because he was not in law the licensee. Moreover, as he was neither the owner nor a lessee of the hall at that date, he was not qualified to become a licensee. (at p194)
4. His application, however, was referred by the Minister to the Theatres and Films Commission. That fact is not clearly stated in the affidavit, but we must take it to be so, otherwise the proceedings would have commenced with a fundamental irregularity. The commission refused the application, though on what grounds we do not know. When the commission refuses an application s. 13D (11) gives an appeal from the refusal to the District Court and provides that the provisions of the District Courts Act shall apply to and in respect of the appeal with such modifications as may be necessary to give effect to the sub-section. The appellant attempted to appeal. But by that date there was no existing licence at all. He subsequently obtained a de-facto licence by way of renewal. But in contemplation of law he had never been the licensee. He could not in my opinion take the necessary steps under s. 13D, which would result in a reference by the Minister to the commission. The application was incompetent from the inception. Section 13D did not, therefore, give an appeal to the District Court from the refusal. It could not do so because the application to the Minister did not fall within the section. For s. 13D (1) limits the application of the whole section to applications within the categories it sets out. The relevant category is s. 13D (1) (b) and in my opinion it does not include a licence that is invalidly issued or transferred or an application that is incompetent. The District Court, however, entertained the appeal and granted the endorsement. The grant of the endorsement by the District Court is attacked by certiorari. The majority of the Supreme Court has issued the certiorari to bring up the order of the District Court and quash it. In my opinion, the decision of the majority to issue a certiorari was correct. The objections which have been made on the part of the appellant to the issue of certiorari include grounds which are necessarily negatived by the conclusions I have already stated. It is, however, contended that it is enough that an application for endorsement should be made de facto by a person holding a licence de facto. If such an application is referred to the commission the power of the commission to decide the application attaches and from its decision an appeal lies. The contention depends on the construction of s. 13D (1) (b). Section 13D (1) provides that the section shall apply only to the applications set out, and par. (b) is concerned with an application for the prescribed endorsement on a licence issued under the part and current at the date of the application. (at p195)
5. I consider that the words "application for the prescribed endorsement on the licence" require an application which is competent under the other provisions of the Act for an endorsement upon a licence validly issued and, if transferred, validly transferred. They are not satisfied by a mere de-facto application with respect to a mere de-facto licence. The reason for that construction is that sub-s. (1) of the section is very clear in limiting the application of the section which gives a reference to the commission and a subsequent appeal to the District Court to specific categories of applications, and it can hardly mean an application which is not lawful under the various sections to which it has implied reference. (at p195)
6. Accordingly, the Minister was never in a position lawfully to refer the matter to the commission, the commission had no lawful jurisdiction to grant the application, and the District Court could not, in its turn, obtain jurisdiction over an appeal from the commission's refusal of the application. Section 51 of the District Courts Act contains a provision protecting orders of the District Court from a writ of certiorari and, if s. 13D (11) (d) of the Theatres and Public Halls Act applied, it might well be that the provisions of s. 51 of the District Courts Act would operate in this particular case and so protect the order now challenged. But the application of sub-s. (11) (d) at all is contingent upon the case coming within s. 13D (1) (b). (at p195)
7. I am unable to give to sub-s. (11) of s. 13D the construction which is claimed by the appellant, namely, that it enables the District Court to deal with an appeal arising out of any application that is referred independently of its legality or competence and to decide whether it is an authorized one or not. It appears to me that sub-s. (1) is designed to limit the operation of the whole section to authorized applications of the required description. If they fall outside the required description or are not authorized by the legislation, then they fall outside the whole of the provisions of s. 13D, including sub-s. (11). That means that they fall outside par. (d) of sub-s. (11), which alone could incorporate s. 51 of the District Courts Act and so give protection against certiorari. There is, in my opinion, no statutory protection against certiorari in such a case as this. (at p196)
8. It was suggested further that perhaps certiorari would not lie to the District Court exercising this particular jurisdiction or power because it is a jurisdiction or power rather of an administrative or executive nature than of a judicial nature. It is no doubt an appeal from an administrative tribunal or body, but the purpose of the statute is to remove the question whether an endorsement on a licence is to be refused or granted on specific grounds and transfer it from the ordinary administrative process to a judicial tribunal to investigate judicially. It is a typical case falling within the province of certiorari as certiorari has been applied in more recent times. (at p196)
9. It is, I think, enough to refer to some of the late cases, particularly to R. v. Hendon Rural District Council; Ex parte Chorley (1933) 2 KB 696 ; R. v. Boycott; Ex parte Keasley (1939) 2 KB 651 and R. v. Milk Marketing Board; Ex parte North (1934) 50 TLR 559 . (at p196)
10. For these reasons, I am of the opinion that certiorari was properly granted. Jordan C.J. thought that perhaps subsequent events might be taken into account by the District Court judge, and he might, so to speak, resume the matter as at a subsequent date and base his decision on the set of facts as they presented themselves at the time when he actually gave his decision. The affidavit is not at all clear, but it would seem that before the actual decision of the District Court the applicant had got a subsisting licence in his name granted after he had become lessee of the building. The two conditions which must concur to enable him to apply for an endorsement would thus exist at the date of the actual decision of the District Court though not at the time the District Court judge reserved his decision. (at p196)
11. But I think that the construction which I have given to s. 13D (1) and (3) means that, unless there was a valid initial application and a valid reference which fell within those provisions there was nothing for the commission or for the District Court to deal with. On the frame of this statute it does not seem to me to be possible to give effect to the doctrine which Jordan C.J. had in mind, namely that, where a tribunal has jurisdiction by way of rehearing in the fullest sense, it may take into account the law and the facts as they exist at the time of its decision and base its decision upon them. To apply this doctrine in the present case would be like dispensing with the necessity in ordinary litigation of the existence of a cause of action at the date of the issue of the writ. (at p197)
12. For these reasons, I think that the appeal must be dismissed with costs. (at p197)
MCTIERNAN J. I agree the appeal must be dismissed with costs. I agree generally with the reasons which have been given for that result. I shall briefly state my conclusions about two matters which I think lie at the heart of the case. I think it was a condition precedent to the jurisdiction of the District Court that the licence for which the appellant sought an endorsement was his licence. It does not seem to me that he was validly entitled to the licence. His title to it depended upon the transfer from the council; but the appellant was not a qualified transferee because he was not an owner or lessee of the building. There was therefore no licence current at the date of the application to which he was entitled. Further, I think that the word "application" means a written application and that the "date" at which it was necessary for the licence to be current was the date when the application was lodged with the Minister. For the reasons which have been given by the Chief Justice and my brother Dixon, I think that certiorari lies against this tribunal. The District Court is not given, by this legislation, jurisdiction to establish or find conclusively for itself these essential conditions upon which it has authority to institute the inquiry provided for by the legislation. (at p197)
WILLIAMS J. I also agree that the appeal should be dismissed, and I shall only refer to what I consider to be the root of the matter. I think that the words of sub-s. (1) of s. 13D make it quite clear that the section only applies to applications which are in law applications under the section. I also think that, for the reasons stated by Dixon J., the only persons who can make applications under the section are persons who are the holders of a licence as the owners or the lessees of the building in question. (at p198)
2. Boulus made an application for the prescribed endorsement on 26th May 1947. But he was not the owner or the lessee of the building on that date, so that the license, although it had been transferred into his name in fact had not been validly transferred into his name in law, and he was not a person who could made an application which was authorized by s. 13D (1) (b). There was, therefore, no application to which the section applied and in consequence no application which could be forwarded by the Minister to the commission or considered by the commission or in respect of which there could be an appeal to the District Court. It seems to me that the making of a valid application, that is an application in writing lodged by a licensee who is the owner or lessee of the building at the time the document is lodged, is a condition precedent to the exercise of jurisdiction by the commission or by the District Court on appeal under the section. There was, therefore, no appeal authorized by s. 13D before the District Court, and the result is that none of the provisions of sub-s. (11) of that section, including the incorporation of s. 51 of the District Courts Act (assuming that s. 51 is incorporated by sub-s. (11)), were applicable to the proceedings. The District Court judge, therefore, acted entirely without jurisdiction and the Supreme Court was right in ordering the issue of the writ of certiorari. (at p198)
WEBB J. I agree that the appeal should be dismissed and I feel that I cannot usefully add anything to what has been said by the Chief Justice and the other members of the Court. (at p198)
ORDER
Appeal dismissed with costs.
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