Sandown Park Hotel Pty Ltd v R [1963] HCA 45; (1963) 109 CLR 521 (18 October 1963)

HIGH COURT OF AUSTRALIA

SANDOWN PARK HOTEL PTY. LTD. v. THE QUEEN [1963] HCA 45; (1963) 109 CLR 521

Liquor (Vict.)

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

CATCHWORDS

Liquor (Vict.) - Application for victualler's licence - Discretion of Licensing Court - Matters for consideration - Constitution of applicant company and relationship with brewery - Licensing Act 1958 (Vict.), ss. 25, 83 (2) (b).

HEARING

Melbourne, 1963, October 17, 18. 18:10:1963
APPEAL from the Supreme Court of Victoria.

DECISION

The judgment of the COURT was delivered by DIXON C.J.:-
This is an appeal instituted as of right against a judgment or order of the directed to the Licensing Court. At the outset of the argument for the appellant, a question was raised as to whether an appeal lay as of right in view of the fact that the order sought was for a prerogative writ and would not of its very nature determine the actual merits of the litigation between the parties and decide them judicially so that the order itself would involve the requisite sum of money. This question was not pursued. We preferred to hear an argument on the merits of the appeal. Obviously, the merits of the appeal would govern not only an appeal as of right but also any question, if there were one, of the grant of special leave. (at p524)

2. The case is of a rather curious character. The Sandown Park Hotel Proprietary Limited applied for a new licence to the Licensing Court. An objection was made by a person put on the record as "an objector", and the question was raised whether, as a matter of law or in its discretion, the Licensing Court should refuse the application for a licence because of the association of the applicant with the Carlton and United Breweries Ltd. (at p525)

3. We shall not describe the facts. They have been dealt with both in the Licensing Court and in the Full Court. The argument was that the considerations which led the Licensing Court to refuse the licence were inadmissible. The discretion of the Licensing Court to refuse a licence was not denied, but it was said that all the considerations which they took into account were inadmissible, either because they were impliedly excluded by the Act or not left open by the Act to the Licensing Court, or for reasons which, on an examination of the Act, showed that they ought not to have been regarded as relevant. (at p525)

4. We have closely considered the judgment of the Full Court of Victoria, and we think that that Court took a perfectly correct view in upholding the decision of the majority of the Licensing Court, and we are content simply to decide the case on that ground. But in particular, we wish to draw attention to, and express our agreement with, a passage which appears in the reasons for judgment. The passage in effect says that the Supreme Court takes the view it is clear that the matters in one of two categories (which they mention) "namely, those relating to the constitution of the applicant and its relationship to the Brewery were not extraneous to the discretion here in question." (at p525)

5. They then go on to refer to s. 83(2)(b), from the language of which the discretion primarily arises. (at p525)

6. Accordingly, this Court wishes to affirm the relevance of those considerations to an application such as this for a licence. (at p525)

7. We do not think it is necessary to say more. What we have said disposes of this case and attempts to express, in the language of the Full Court, a rule which may be of guidance in the future. (at p525)

8. We will simply dismiss the appeal, with costs, and we will say nothing more about special leave. The manner in which we have dealt with the case in respect of special leave in no way implies that special leave is unnecessary. We merely add that for future guidance. We though it better to deal with the case as one properly before us. (at p525)

ORDER

Appeal dismissed with costs.