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High Court of Australia |
MARRIOTT v. COLEMAN [1963] HCA 46; (1963) 109 CLR 129
Licensing (Vict.)
High Court of Australia
Dixon(1), McTiernan(2), Taylor(3), Menzies(2) and Owen(2) JJ.
CATCHWORDS
Licensing (Vict.) - Registration of club - Grounds for refusal - Premises in immediate vicinity of place of public worship - Whether imperative bar to registration - Licensing Act 1958 (Vict.), ss. 246, 247.
HEARING
Melbourne, 1962, October 16, 17; 1963, October 29. 29:10:1963DECISION
1963, October 29.2. The application before the Licensing Court was for the registration in pursuance of Pt XII of the Licensing Act 1958, of the Bentleigh Returned Sailors', Soldiers' and Airmen's Club, of which the appellant Marriott is secretary, in respect of certain premises situated at 538-540 Centre Road, Bentleigh. It was found by the Licensing Court that the premises were in the immediate vicinity of a place of public worship. (at p131)
3. By section 246(1) it is provided that, at the hearing of any application for the grant or renewal of the registration of a club, objections may be taken by any person or council hereinafter in this Act mentioned upon one or more of the following grounds. Then are set out grounds lettered from (a) to (o). Ground lettered (m) is "That the premises are in the immediate vicinity of a place of public worship hospital or school". (at p131)
4. The Licensing Court found without doubt that the premises are in the immediate vicinity of a place of public worship. But the question of the nature of the ground, that is, whether it provided an imperative bar or a discretionary reason for refusing an application, proved not so easy. (at p131)
5. The Court held that the objection was discretionary, and after attempting, by a change of the Club rules, to insure that no liquor would be sold, supplied or disposed of, for consumption elsewhere than in the Club premises, and after imposing an undertaking to that effect, the Court granted a certificate for the registration of the Club. (at p131)
6. The Court, however, at the request of the objectors, stated a case for the opinion of the Supreme Court upon two questions, viz: (1) Is the fact that the premises of the said Club are in the immediate vicinity of a place of public worship an absolute bar to a grant of registration to the said Club? (2) Having found as a fact that the premises of the said Club were in the immediate vicinity of a place of public worship, was this Court bound in law to refuse the said application? (at p131)
7. These questions were answered by Herring C.J. and Sholl J. in the affirmative, that is to say, the objection was an absolute bar; but, by Little J., that the bar was only discretionary. Elaborate judgments were written, on either side, setting out all the rival considerations governing the conclusion. (at p131)
8. Inferences as to the intention of the legislature might, no doubt, be drawn either way, but there is certainly no necessary implication, and in these circumstances I think that it is not right to read the legislation as imposing an absolute prohibition. Caveat viator. (at p132)
9. Further, it must be remembered that we are dealing only with the provisions as to the registration of clubs, growing as they do out of the English legislation on which the Licensing Act 1906 (Vict.) was based, viz. Licensing Act 1902 (U.K.), Pt 222, ss. 24 et seqq. See Bennett v. Cooper [1948] HCA 29; (1948) 76 CLR 570, at pp 579, 580 (at p132)
10. I think that s. 246(m) should be construed simply as describing an objection which may be taken, and which, if and when taken, is to be weighed by the Licensing Court in all the circumstances found to exist as a consideration which does or does not really render the registration of the Club an undesirable step to take. I do not think that the decision of Hodges J. in In re Curtin (1893) 19 VLR 12 should be treated as affording any guidance. My decision rests on the simple ground that the legislature has not expressed any meaning which necessarily constitutes the objection an absolute ground of refusal and that it should not be construed as doing so, without a plain context requiring such a construction. In my opinion the appeal should be allowed. (at p132)
McTIERNAN, MENZIES AND OWEN J.J. We have before us an appeal by special
leave from a decision of the Full Court of the Supreme Court
of Victoria
(Herring C.J. and Sholl J., Little J. dissenting) that, where the Victorian
Licensing Court, upon an application for
the grant of the registration of a
club, finds that the club premises are in the immediate vicinity of a place of
public worship,
it is bound to refuse the application. This decision was given
upon a case stated by the Licensing Court which, having considered
an
application by the present appellant as the secretary of the Bentleigh
Returned Sailors', Soldiers' and Airmen's Club for registration
of the Club
and a number of objections by the respondents who were ratepayers and
freeholders of property within a mile of the Club
premises, decided that the
application should be granted upon a condition requiring an alteration of the
Club rules, notwithstanding
the Court's finding that the premises were in the
immediate vicinity of a place of public worship, namely the Bentleigh
Presbyterian
Church. In the reasons that it gave for its decision to grant the
application the Licensing Court said:-
"The premises are adequate and suitable for a Club, they are situate in a
shopping centre in Bentleigh and the nearest point of those
premises is some
121 feet from the nearest point of the place of public worship and separated
therefrom by a wide arterial road,
Centre Road. There is adequate parking area
for members' cars at the rear of the Club premises; this area is entered by a
side street
and is at its nearest point some 120 feet still farther away. It
is hardly likely that on entering or leaving the parking area the
noise of
cars would be audible at the Church premises unless there were some undue
revving up of engines and banging of car doors
by irresponsible members whose
conduct could be controlled by the Committee. The Club has been in operation
for some five years and
according to the evidence of the Minister of the
Church there has been no cause for complaint during that period, and he
believes
that the Club has been well conducted. Other important facts to be
considered are that the Club premises will be closed on Sundays
and Good
Friday and that liquor shall not be sold or disposed of for consumption
elsewhere than in the Club premises". By the case
stated the following
questions were asked: - "(1) Is the fact that the premises of the said Club
are in the immediate vicinity of
a place of public worship an absolute bar to
a grant of registration to the said Club? (2) Having found as a fact that the
premises
of the said Club were in the immediate vicinity of a place of public
worship, was this court bound in law to refuse the said application?"
The Full
Court answered both questions affirmatively. The ground of objection to which
these questions relate is that to be found
in s. 246(1)(m). (at p133)
2. By the Licensing Act the Licensing Court is given exclusive jurisdiction to hear and determine cases concerning inter alia the granting or refusal of registration of clubs under the provisions of the Act (s. 57(1)). The decision of that Court is made conclusive save as in the Act provided which authorizes an appeal to the Supreme Court on questions of law by way of case stated (ss. 59-66). Section 57(2) is as follows: "In granting or renewing or transferring any license or the registration of any club the power and discretion of the Court shall not, except as provided in the next succeeding sub-section, be deemed to be limited by the result of any poll taken before the commencement of the Licensing (Amendment) Act 1953". Although this particular sub-section is concerned with the winding up of the effect of earlier local option provisions and polls taken thereunder and its particular purpose relates to a matter other than the character of the Court's authority, it is nevertheless a provision in which there is express recognition of what the whole Act recognizes implicitly, namely that the Licensing Court has, subject to the Act, power and discretion in relation to the matters in respect of which it is granted authority. Part XII of the Act deals particularly with clubs. It corresponds with Div. I of the Licensing Act 1906 which was based upon the New South Wales Act No. 40 of 1905 and follows the scheme of prohibiting the sale or supply of liquor or the keeping of liquor for sale or supply on the premises of an unregistered club (s. 255) and of regulating the sale or disposal of liquor in registered clubs (ss. 256-260). Many important regulatory provisions to be found elsewhere in the Licensing Act are, with adaptations, made applicable to registered clubs (s. 241). Section 242 enumerates seven conditions and provides that no club shall be or continue to be registered unless they all exist. Section 243 makes the eligibility of a club for registration depend upon its rules containing eleven stipulated provisions. There follows a group of sections dealing with applications for registration (s. 244) and renewal (s. 245); the persons or bodies who may take objection and the objections that may be taken (ss. 246-247); the hearing of applications and objections including the certificates of removal (ss. 252-253). When an application for registration or renewal is granted a certificate of registration is issued upon the payment of the percentage fee fixed by the Licensing Court (s. 248) and this certificate remains in force until the 31st December next following (s. 250). The premises of a registered club may be changed with the authority of the Licensing Court after an enquiry at which specified objections may be taken by any person or body who could object to the grant or renewal of the registration of a club (s. 251). The Licensing Court is empowered to cancel a certificate of registration on all or any of the grounds of objection "which might have been taken as hereinbefore provided to the grant or renewal of a certificate" (s. 254). This resume of the provisions of the Licensing Act which are directly relevant indicates that the legislature has (1) clearly laid down some conditions the performance of which is essential for registration (ss. 242-243); (2) required applications to be made to the Court after public notice (ss. 244-245); (3) set out the grounds of objection that may be taken by specified objectors (s. 247) to applications for grants or renewals (s. 246) and certificates of removal (s. 251); (4) imposed on the Licensing Court the duty of hearing an application and objections thereto and thereafter granting or refusing it (ss. 252-253) in accordance with the authority conferred on it by s. 57; and (5) made provision for the cancellation of certificates upon the same grounds of objection as may be taken to the grant or renewal of a certificate (s. 254). It should be added that it seems clear that in cases of applications for certificates of removal the Licensing Court is limited to the consideration of enumerated objections and may exercise its authority even if a ground of objection has been established and that in a case of cancellation proceedings the Court is also limited to enumerated grounds and has a discretion to refuse cancellation notwithstanding that at least some of the grounds for cancellation have been established. As we read ss. 251 and 254 the Licensing Court could grant a certificate of removal or could refuse to cancel a certificate of registration notwithstanding that the ground of objection or cancellation, as the case may be - viz. "that the premises are in the immediate vicinity of a place of public worship" - had been established. (at p135)
3. It is in this setting that we turn to consider s. 246(1) in greater detail, for what appears there as nothing more than an enumeration of grounds of objection that may be taken by specified objectors at the hearing of an application for the grant or renewal of the registration of a club the majority of the Full Court has regarded as a provision requiring the refusal of an application if any of the grounds of objection applicable thereto has been established. There are among the enumerated grounds of objection some based upon non-compliance with ss. 242-245 (e.g. grounds (a), (b) and (c)) which are without doubt absolute bars if established not because of s. 246 itself but by reason of the operation of the sections from which the grounds of objection so enumerated have been culled. There are too some grounds of objection that would seem to apply more readily to applications for the grant of registration than to applications for the renewal of registration and vice versa. Thus the objection "that the registration of a club will result in undue competition and economic waste" is prima facie more likely to apply to an application for the grant of registration than to an application for renewal and objection. (h) "That the supply of liquor to the club is not under the control of members of the committee appointed by the members" would seem to apply more readily to an application for renewal than to an application for an original grant of registration. There is also one objection which, as stated, would seem by its terms to be restricted to an application for the grant of registration - that is, (n) "That the quiet of the place in which such premises are situate will be disturbed if the registration is granted". A very detailed examination of the section has been made by the Chief Justice and Sholl J. who found it possible to fit the seventeen grounds into exclusive and exhaustive categories, some applicable only to applications for the grant of registration and some applicable only to applications for the renewal of registration. Their Honours also, as an alternative, contemplated the possibility that some grounds might apply as absolute bars to applications for grant even if they amount to no more than discretionary bars to applications for renewal. We do not venture into what we regard as an elaborate labyrinth that has been constructed for it seems to us that, apart possibly from ground (n), every stated ground is a permissible ground of objection to an application for either grant or renewal of registration and there is no basis upon which any particular ground can be regarded as an absolute bar in the one case and a discretionary bar in the other. This, of course, is not to say that we consider that each ground established should have the same weight regardless of the character of the application. Reverting to ground (m), it seems to us that if a club seeks registration of premises next door to a church this ground of objection could be taken; so it could if a church has been erected next door to a club and an application for the renewal of the club registration is opposed on ground (m). In either case the establishment of the ground of objection is a ground upon which the application might be refused but, as we see it, in neither case is it a ground upon which the application must be refused although, in deciding whether it should be refused, it would be an important consideration whether the club came to the church or the church to the club. The majority of the Full Court recognized that the circumstances that a church has been built next door to a club could hardly be a conclusive reason for refusing the club renewal of its registration and was therefore for this, among other reasons, disposed to treat this ground as applicable only to applications for grants of registration and in such a case as constituting an absolute bar. The construction of s. 246 of which this is an instance seems to us, with respect, to read into the section much more than it says. In adopting this construction the majority, however, felt itself constrained by two earlier Victorian decisions and by the history of s. 246 itself. The first decision was In re Curtin (1893) 19 VLR 12 in which Hodges J. decided that the objection that premises are in the immediate vicinity of a school is one which, if established, is an absolute bar to an application for a victualler's licence but is no more than a discretionary bar to the grant of a colonial wine licence. Whatever may be thought of this decision, it depended in a large measure upon the particular form of the section that is now s. 95 - including sub-s. (4) - and affords no sound basis for treating all the grounds of objection set out in s. 246 as absolute bars. The decision has stood for a long time, has been followed elsewhere (e.g. In re Scadden (1895) 16 NSW LR 125 and has not provoked any amendment of the section there construed in later consolidating and amending acts; but, although these considerations provide sound grounds for not interfering with it, they do not warrant its extension to different provisions. The second decision which influenced the majority is R. v. Victorian Licensing Court; Ex parte Dean (1956) VLR 243 There it was decided that a licensing inspector - though perhaps not the council of a municipality or a ratepayer, etc. - could take and rely successfully upon grounds of objection outside those enumerated in s. 246. On the strength of this decision it was, so the majority thought, always a permissible objection to the grant of club registration that the premises were in the immediate vicinity of a place of public worship, hospital or school, and therefore the only point of including this as a specified ground of objection in s. 246 - which took place in 1953 by the Licensing (Amendment) Act of that year - was to turn what had been a discretionary bar into an absolute bar. We are not, however, prepared to construe s. 246 on the ground that Ex parte Dean (1) was correctly decided or on the footing that, while any of the enumerated grounds of objection, if proved, requires the rejection of an application, there is a reserve of unenumerated grounds that are in the nature of discretionary bars. We consider that the Licensing (Amendment) Act 1953, s. 30, introduced three new grounds of objection that were not previously available; accordingly we do not regard that Act as giving any indication that all the grounds specified in s. 246(1) are to be regarded as absolute bars to the success of an application to which they apply. Furthermore, we see no reason for doing as Mr. Menhennitt argued and restricting ground (o) of s. 246(1) to exclude therefrom cases where there has been a contravention of other sections of the Act made applicable to registered clubs by s. 241 and finding room for the application of these provisions in a reserve of unenumerated grounds of objection so that, whereas breaches of club rules would give rise to an absolute bar, breaches of the Act would give rise to a discretionary bar, and objections based thereon might not be open to objectors other than licensing inspectors. Ground (o) is "That any provision of this Act has not been complied with" and, although in some circumstances a distinction may be drawn between "non-compliance with" and "a contravention of" an Act, we do not think any such distinction was intended in ground (o). (at p137)
4. Once it is concluded that all the grounds of objection enumerated in s. 246(1), with the possible exception of ground (n), apply to applications for grants and renewals of registration and that the earlier decisions to which we have referred do not control the construction of s. 246(1), there is no basis for treating the enumeration that there appears as more than it purports to be - that is, a statement of grounds of objection that may be taken for consideration by the Court in the exercise of its statutory duties and discretions. Furthermore, the terms of the various grounds of objection enumerated do not suggest that it was intended that each ground should, if established, be an absolute bar to the success of an application for it is hardly likely that proof of the habitual breach of club rules prohibiting (1) smoking elsewhere than in particular rooms, (2) the giving of gratuities to servants or (3) the bringing of a dog into the clubhouse, should mean that an application for registration or renewal must be refused. When to this sort of consideration of improbability there is added the consideration that the Court is not required to cancel a club's registration for the habitual disregard of club rules, it is apparent that considerations based upon probability and the context of s. 246(1)(m) point to construing s. 246(1) as doing no more than enumerating grounds of objection that may be taken and leaving it to be determined by the Licensing Court, subject to the appeal provided, whether the establishment of a particular ground requires the refusal of an application because the Act so provides elsewhere or whether, in the particular circumstances of the case, the Court should in its discretion treat the ground of objection established as warranting the refusal of the application. (at p138)
5. We therefore find ourselves in agreement with the persuasive dissenting judgment of Little J. and we are of the opinion that the appeal should be allowed and the questions in the case stated answered No instead of Yes. (at p138)
TAYLOR J. I have had the opportunity of considering the joint judgment in this matter and I agree generally with the observations and conclusions therein expressed. However, there are a few things which I wish to add. (at p138)
2. In the first place it cannot, I think, be over-emphasized that what s. 246(1) of the Licensing Act 1958 does is to specify matters which may be raised by the persons or bodies referred to in s. 247 by way of objection upon an application for the grant or renewal of a certificate of registration. Section 246(1) specifies the permissible objections and they may be taken by a licensing inspector, the council of the municipality within which the premises of the club are situated, or any ratepayer freeholder or leaseholder of property situated within one mile of such premises. I do not subscribe to the view that the opening words of s. 247(1) empower a licensing inspector to raise objections other than those specified in the preceding section. What this sub-section does is to specify those persons or classes of persons who may take objections and it does not operate to enlarge generally, or at all, the category of objections which may be taken. Ex parte Dean (1), to my mind, puts an undue emphasis in the wrong place when it treats the first two words of the sub-section as meaning "any objection". That expression, cannot, as the case seems to contemplate as a possibility, be read as "any objection" in the case of a licensing inspector and as "any objection" in the case of a local council or any ratepayer, freeholder or leaseholder of property. And, of course, if the emphasis is to be put on the word "any" then the somewhat elaborate provisions of s. 246(1) were quite unnecessary. To my mind there is ample in the sections following s. 247 to make it clear that the expression "objection," whenever it appears, constitutes a reference to the grounds of objection specified in s. 246(1). In these circumstances the argument that s. 247(1) permits a general residue of unspecified objections concerning which the Licensing Court may have some discretionary authority in relation to the grant or refusal of a certificate of registration has no validity. However, this argument was on the very fringe of the case and even if the decision in Ex parte Dean (1956) VLR 243 were to be accepted it would advance the respondent's case but little, if at all. (at p139)
3. The next thing to be observed is that neither s. 246 nor any other provision of the Act provides expressly what consequences are to follow if a ground of objection is made out. But what is, perhaps, of more importance in considering the section is that the Act is entirely silent as to the Court's powers and functions if, in the absence of any appropriate objection, it appears at the hearing that there exist circumstances which might have been raised under s. 246(1) as a ground of objection. It is, of course, clear that the Court would be entitled to consider any such matter for s. 252, after providing that no objector shall be heard against any application unless he has given the prescribed notice, goes on to stipulate that the Court shall not be precluded from entertaining any objection which may arise during the hearing of the application, but the applicant shall then be entitled to an adjournment for such time not less than three days as the Court thinks fit. However, there is nothing to suggest that in any such case the Court is to do more than consider the objection in the course of the hearing and in the course of determining whether it should grant or refuse the application (s. 253). (at p140)
4. It is, of course, obvious that upon proof of some of the grounds of objection specified in s. 246(1) the dismissal of the application would inevitably follow. For instance, an application could not succeed if it were shown that the club had ceased to exist or that the number of members was less than fifty or thirty "as the case may be" (par. (b)). But this would be so, not because of the relevant provisions of s. 246(1), but because of the provisions of s. 242(1). Other grounds specified, themselves, involve questions of estimate and degree. For instance, the fact that a club is not required in the neighbourhood is a ground of objection (par. (l)) and par. (la) specifies as a valid objection that, having regard to other existing facilities and to the objects of the club, the club is not required to meet a real and substantial need. These and other grounds, themselves, involve a degree of discretionary judgment and do not, as in the case of other grounds, depend upon the ascertainment of some simple objective fact. (at p140)
5. Other illustrations might be given but consideration of the sub-section satisfies me that a number of specified grounds are characteristically such as to be especially appropriate for the exercise of a discretion in granting or refusing certificates notwithstanding proof of the facts upon which the objection was based. Prima facie, therefore, I would conclude that, except in so far as it may be precluded by any other provision of the Act and, perhaps, except in so far as any particular ground may, itself, require the formation of a discretionary judgment of the character mentioned, the Licensing Court has a general discretion to grant or refuse certificates notwithstanding the fact that the ground upon which the objection is based is established. In other words, it seems to me, the discretion of the Court in appropriate cases is precisely the same whether the objection has been taken by an objector or not. I should add that I have gained no assistance from the making of a comparison between the provisions of Pt VI and Pt XII of the Act and that I do not regard the decision of Hodges J. in In re Curtin (1893) 19 VLR 12 as any authority for the proposition that the matters specified in s. 246(1), if taken by way of objection, ought, by force of that sub-section, to be regarded as what were called "absolute bars". That decision rested upon a close examination of the particular provisions of s. 92 of the Licensing Act 1890 (Vict.) and, even though their general counterpart may now be found in s. 91 of the present Act, the reasoning in the case has no application to s. 246(1). I should add that in the case of In re Scadden (1895) 16 NSWLR 125, to which reference was made, the objection which had been raised was that the reasonable requirements of the neighbourhood did not justify the granting of a licence and the point directly for decision before the Supreme Court was whether the Licensing Bench had wrongly refused to hear evidence which the inspector wished to produce on this issue. The Court decided that there had been a wrongful refusal and the observations of Windeyer J. and Simpson J. which are now relied upon were, as Windeyer J. pointed out, not necessary for the decision. Nor, so far as appears, was any argument addressed to the Court concerning the matters with which these observations dealt. What does appear, however, is that the ground of objection with which that case was concerned, itself, called for a degree of discretionary judgment and, no doubt, it was this circumstance which induced Simpson J. to say that "the Licensing Bench have taken upon themselves . . . to say that it would be mere waste of time to hear evidence in support of an objection which the Legislature has provided shall be a good objection to the granting of the licence if made out to the satisfaction of the Magistrates" (1895) 16 NSWLR 125, at pp 130, 131 Neither of the other cases to which we were referred - Ex parte Paton (1929) 30 SR (NSW) 67; 47 WN 14 and In re Seymour's Application (1902) 22 NZLR 145 - purported to decide any question relevant to the present case. In the first of these cases Ferguson A.C.J. merely observed that "The Act does not in terms say what effect is to be given to one of these objections (i.e. those specified in the second paragraph of s. 29 of the Liquor Act, 1912, (N.S.W.), as amended) if it is established, but it seems to have been taken for granted that in that case the Court is bound to refuse the application" (1929) 30 SR (NSW) 67, at p 70 In re Seymour's Application (1902) 22 NZLR 145 is, it seems to me, merely authority for the proposition that under the relevant legislation the licensing committee had no authority to grant a certificate for a publican's licence in the absence of any affirmative finding that the premises, in respect of which the licence was sought, had reasonable accommodation. (at p141)
6. I see nothing in the cases to which we were referred to throw any doubt upon the view which I have already expressed and I regard the matters dealt with in the reasons expressed in the joint judgment as providing ample confirmation of that view. That being so, I am of opinion that the appeal should be allowed. (at p141)
ORDER
Appeal allowed with costs. Order of the Supreme Court varied (1) by substituting "No" for "Yes" as the answer to each of the questions asked in the Case Stated and (2) by deleting the order for costs and substituting therefor an order that the costs of the respondent in the Supreme Court (Marriott) be paid by the appellants in the Supreme Court (Coleman).
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