Trustees Executors & Agency Co Ltd v Gleeson [1959] HCA 53; (1959) 102 CLR 334 (14 October 1959)

HIGH COURT OF AUSTRALIA

THE TRUSTEES EXECUTORS AND AGENCY CO. LTD. v. GLEESON [1959] HCA 53; (1959) 102 CLR 334

Licensing (Vict.)

High Court of Australia
Dixon C.J.(1), McTiernan(1), Fullagar(1), Kitto(1) and Taylor(1) JJ.

CATCHWORDS

Licensing (Vict.) - License fee - Licensee not owner of licensed premises - Entitled to deduction from rent of portion of fee paid - Amendment to Principal Act to render void terms of any agreement "made or executed after the commencement of this Act" &which would have effect of depriving licensee of benefit of deduction from rent - "After commencement of this Act" - Whether reference to commencement of Principal Act or amending Act - Licensing Acts 1928-1946 (Vict.) No. 3717 - No. 5197, s. 19 (3) - Licensing (Fees) Act 1951 (Vict.) (No. 5584), s. 2 (2).

HEARING

Melbourne, 1959, October 13, 14. 13:10:1959
APPEAL from the Supreme Court of Victoria.

DECISION

October 14.
The judgment of the COURT was delivered by DIXON C.J.
We are of opinion that this appeal must fail. One question only governs its in themselves contained in an amending statutory provision. (at p337)

2. Under s. 19 of the Licensing Act 1928 (Vict.) the fees to be paid for licences, and in particular for a victualler's licence, are prescribed. The section enabled a licensed victualler paying the fee, if a tenant, to deduct three-eighths of its amount from his rent or recover it from his landlord. A device which was fully dealt with in Meredith v. Fitzgerald [1948] HCA 11; (1948) 77 CLR 161 was adopted in leases for the purpose of ensuring that this proportionate part of the fee was not borne by the landlord. In calling it a device I speak in terms perhaps of a dissenting judge, for I did not agree in that decision. The decision turned on the operation of sub-s. (3)(a) of s. 19. That sub-section says: "Notwithstanding anything to the contrary in any agreement whether made before or after the coming into operation of this Act - (a) any licensed victualler who holds a victualler's licence for any premises of which he is not the owner and who pays the annual licence fee for such licence fixed on a percentage basis may without suffering any penalty imposed by any such agreement deduct from any rent payable by him for the premises for any year in respect of which such fee is paid a sum equal to three-eighths of the amount of such fee or may recover the said sum in any court of competent jurisdiction . . .". The license fee was and is a percentage of the gross amount paid for liquor by the licensee during the previous year. The interpretation of this provision that was adopted in the decision made it possible for the landlord to receive as an additional rent a sum calculated on the amount of the purchases by a fraction equal to three-eighths of the percentage and so put himself in the same position as if no deduction had been made from the initial rent. The percentage authorized by the Act of 1928 was six per cent but it was reduced for a time to four per cent. However, by the Licensing (Fees) Act 1951 - No. 5584 - the percentage was restored to six per cent. (at p338)

3. In the meantime Meredith v. Fitzgerald (1) had been decided. The Licensing (Fees) Act 1951 took occasion to make a provision directed to the consequences of that decision. In sub-s. (2) of s. 2 this provision was made: "After paragraph (c) of sub-section (3) of section nineteen of the Principal Act" (a term defined by s. 1(1) to mean the Licensing Act 1928) "there shall be inserted the expression" and then follows within quotation marks a considerable paragraph by way of amendment of s. 19(3). It runs: "and any term of any agreement or lease made or executed after the commencement of this Act - (1) whereby the rent or any part of the rent for any licensed premises or any collateral payment or obligation is or may be computed by reference, direct or indirect, to purchases or sales of liquor; or (2) which would frustrate or avoid the operation of the foregoing provisions of this sub-section shall be void and of no effect". It was by such a provision as is described in the first paragraph that the clause upheld in Meredith v. Fitzgerald (1) overcame what appears to be the policy of sub-s. (3)(a) of s. 19 of the Principal Act. (at p338)

4. The question on which the appeal turns is whether the words occurring in what I have read "after the commencement of this Act" should be construed as a reference to the commencement of the Principal Act, that is to say, the Licensing Act 1928. A mere inspection of the provision shows that that is what, as a matter of ordinary English, they mean. Within quotation marks is a provision, strangely enough called "an expression", which must be inserted in the Principal Act. When it is inserted in the Principal Act the words "this Act" can mean nothing but the very Act in which it is inserted, namely the Principal Act. There are, however, certain considerations which are said to make it surprising that that should have been the provision that the legislature intended. It might perhaps have been expected that the operation of the amendment consisting of the words in quotation marks would not affect agreements made before the amendment was effected. But that is plainly not the meaning which the words used express. The "commencement of this Act" must mean the Act in which they are inscribed, not the Act inserting them. The considerations said to show that this was not, however, the intention have been put forward by Mr. Lush with commendable brevity but no less force, and one must acknowledge that they are considerations which have some weight. They begin, naturally enough, with a general presumption against retrospectivity and go on to considerations which may be generally described as those of natural policy. (at p339)

5. Any surprise that may be felt should be removed by the fact that in s. 19 of the consolidating Licensing Act 1958 the words "this Act" in the phrase "made or executed after the commencement of this Act" have been replaced by the words "the Licensing Act 1928". The words "the Licensing Act 1928" are incapable of misunderstanding and are quite incompatible with the meaning which is sought to be attached to the words "commencement of this Act" in the provision as it stands in the Licensing (Fees) Act 1951. We think that the considerations relied upon cannot effect the purpose for which they were advanced. The words are perfectly plain and in the context in which they are placed they could have no other meaning than that which is subsequently expressed in the Licensing Act 1958. The view that in the amendment of s. 19 of the Act of 1928 made by the Act of 1951 "the commencement of this Act" necessarily referred to the commencement of the Act of 1928 was taken by the Full Court of Victoria in Byrne v. Gray (1956) VLR 520 a case followed, with an expression of agreement, by Sholl J. in the judgment under appeal. We take the same view and think on that ground that the appeal must fail. (at p339)

6. The appeal will be dismissed with costs. (at p339)

ORDER

Appeal dismissed with costs.