Hooper v Hawkins [1969] HCA 69; (1969) 120 CLR 620 (22 December 1969)

HIGH COURT OF AUSTRALIA

HOOPER v. HAWKINS [1969] HCA 69; (1969) 120 CLR 620

Liquor

High Court of Australia
Barwick C.J.(1), Kitto(2), Menzies(3), Owen(4) and Walsh(5) JJ.

CATCHWORDS

Liquor - Seizure and forfeiture - Complaint of reasonable suspicion that liquor kept for sale in unlicensed premises - Warrant - Seizure under warrant - Forfeiture - Summons to person in whose possession liquor is found to show cause against forfeiture - Summons dismissed on ground that respondent not in possession - Whether further summons to show cause can be issued against another person alleged to be in possession - The Liquor Acts, 1912 to 1965 (Q.), s. 132 (1)*.

HEARING

Sydney, 1969, December 2, 22. 22:12:1969
APPEAL from the Supreme Court of Queensland.

DECISION

December. 22
The following written judgments were delivered:-
BARWICK C.J. On 17th January 1968 the appellant, a detective senior justice of the peace of that State that he reasonably suspected that liquor was kept for sale by a male person known as Mr. Benjamin in certain premises known as Hawkins Interstate Transport Depot, Rocklea, Brisbane, the said Mr. Benjamin not being licensed in respect of such premises to keep or sell liquor. Thereupon the justice on the same day granted his warrant to the detective constable to enter and search the said premises at Rocklea and to seize all liquor found thereon. (at p622)

2. On the same day the detective constable, by virtue of the warrant, entered the said premises and seized certain liquor. Thereafter the detective constable informed the same justice of such seizure of the liquor and that he had found it in the possession of the said Mr. Benjamin. Thereupon on the said 2nd February the justice issued under his hand a summons requiring the said Mr. Benjamin by name, Hyman Leslie Benjamin, to appear before the Magistrates Court at Brisbane on 6th February 1968 to show cause why "such liquor" should not be forfeited. This summons recited all the steps which I have already recounted, including the information given by the detective as to the person in whose possession the liquor was said to be found. (at p622)

3. At the conclusion of the hearing which ensued upon the return of this summons, a magistrate held that the said liquor was not kept for sale on the said premises by Mr. Benjamin and that such liquor had not been found in his possession. Having drawn these conclusions of fact the magistrate said:

"Consequently the proceedings against Mr. Benjamin are a nullity,
and the application for an order of forfeiture of the liquor is
refused." (at p622)

4. On 20th February 1969 the justice to whom the complaint had been made by summons under his hand required the prosecutors, Neville John Hawkins and Shirley Anne Hawkins to appear before the Magistrates Court at Brisbane to show cause why the said liquor should not be forfeited. This summons recited the complaint on oath of the appellant to which I have already referred, the grant of the said warrant and the seizure of the said liquor at the said premises by virtue of the said warrant. But, instead of reciting that he had been informed that the liquor had been found in the possession of Mr. Benjamin as formerly, it recited that the magistrate had been informed that it had been found in the possession of the prosecutors. (at p623)

5. Thereupon on 12th March 1969 on the application of the prosecutors an order to show cause why a writ of prohibition should not issue to restrain the magistrate from proceeding upon the lastly mentioned summons was granted by a judge of the Supreme Court. The ground of this order was in substance that the complaint of 17th January 1968 had been heard and determined with the consequence that the justice had no jurisdiction to issue the second summons. The Full Court of the Supreme Court of Queensland made absolute the order nisi for prohibition (Reg. v. Hooper; Ex parte Hawkins (1969) Qd R 329 ). The appellant now appeals to this Court and, as well, seeks special leave to appeal upon the ground that the said complaint had not been heard and determined and that, notwithstanding the abortive summons against Mr. Benjamin, the justice could proceed by summons to require the prosecutors to show cause why the liquor should not be forfeited. (at p623)

6. The proceedings were instituted under s. 132 (1) of The Liquor Acts, 1912 to 1965 of the State of Queensland. As it is around the construction of this sub-section that the controversy between the parties centres, it is convenient to set out the sub-section in full:

"132 (1) Upon complaint on oath before any justice of the peace by
any person that he reasonably suspects that liquor is sold or kept
for sale in any premises or place by some person not licensed to
keep or sell the same, such justice may grant a warrant to any
inspector or police officer to enter and search such premises or
place at any time whether by day or by night and, if admission is
refused to break into the same and to seize all liquor found thereon
and any vessels containing liquor, and to detain them until the
complaint is heard.
A justice shall upon being informed of such seizure by summons
under his hand require the person in whose possession the liquor is
found to appear before the court and at such time and place as are
specified in the summons to show cause why such liquor and vessels
should not be forfeited.
If at the hearing of the case such person so called upon to show
cause fails to satisfy the court that such liquor was not kept for
the purpose of being illegally sold or disposed of, then such liquor
and vessels shall be forfeited, and shall be sold or otherwise
disposed of as the Minister directs; and, after payment of the
expenses the proceeds of the sale shall be applied in like manner as
in this Act is directed in the case of penalties." (at p624)

7. It was decided in Osborne v. Petrie (1946) QSR 124 that in a proceeding against a person in whose possession liquor was found in the execution of a warrant granted under s. 132 proof of the making of the complaint for which that section provides was an essential part of the proof necessary to entitle a magistrate to order the forfeiture of the liquor so found. A majority of the Full Court of the Supreme Court of Queensland so deciding expressed the view that the complaint to which the section refers when it provides that the seized liquor may be held "until the complaint is heard" is the complaint on which the search warrant has been issued; and that there was neither need nor warrant for a second complaint to ground the summons to show cause for the issue of which the section provides; see per Webb C.J. (1946) QSR, at p 127 and per Philp J. (1946) QSR, at p 132 . This view of the majority was conformable to Ex parte Spratt (1863) 2 SCR (NSW) 254 and Quong Di Hong v. Ah Yuck (1908) 10 WALR 60 . It was confirmed in R. v. Wilson and Osborne; Ex parte Petrie (1949) QSR 291 , by a majority of the Full Court of the Supreme Court of Queensland, E. A. Douglas J. dissenting. In Worth v. Howle; Ex parte Howle (1950) QSR 16 the Supreme Court unanimously followed the last-mentioned case. (at p624)

8. In Chambers v. Parisotto; Ex parte Parisotto (1957) QSR 405 Hanger J. summarized the effect of these cases as follows:

"Section 132 of The Liquor Acts, 1912 to 1949 has been judicially
considered in a number of cases by the Full Court: Palethorpe v.
Nebbia (1937) QWN 33; Osborne v Petrie; Ex parte Petrie (1946) QSR
124.; R v Wilson and Osborne; Ex parte Petrie (1949) QSR 291, and
Worth v. Howle; Ex parte Howle (1950) QSR 16 It seems to me quite
clear from these authorities that the following propositions are
well established: that when the person in whose possession the
liquor has been found is called upon to show cause why it should not
be forfeited, the validity of the complaint upon which the warrant
was issued is a question for the court to decide, and the magistrate
must therefore inquire, before he can make an order of forfeiture,
not only 'into the existence of the formal requirements of the
complaint, namely the oath, the assertion of the existence of a
reasonable suspicion by the complainant and the grounds asserted of
his suspicion', but also 'into the truth or falsity of the
matters asserted in the complaint': Worth v. Howle; Ex parte Howle
(1950) QSR, at p 23; that unless the magistrate is satisfied that
when the complaint was made, the complainant reasonably had the
suspicion he alleged, the issue of the warrant, and all subsequent
proceedings are bad" (1957) QSR, at pp 410, 411 (at p625)

9. In the present case, the members of the Full Court being bound by the above-mentioned decisions decided that the dismissal of the summons to Benjamin, though on the ground that he was not the person in whose possession the seized liquor was found, terminated the proceedings on the complaint under s. 132 so that no further summons grounded on that complaint and the subsequent seizure of the liquor under warrant could be issued. Their Honours appear to have thought that this consequence flowed from the prior decisions. (at p625)

10. In my opinion, the Full Court was in error both in thinking that those decisions required that result and in concluding that a further summons could not be issued in the circumstances. (at p625)

11. I should first wish to say something as to the meaning of s. 132 (1), which does not appear to me to warrant the animadversions to which it has been subject. It provides for the hearing of a case as to whether identified liquor found in the possession of a person at premises for which no licence to keep liquor for sale, or to sell liquor exists and which is reasonably suspected of having been kept at such premises for sale, or there sold, was in fact so kept for sale or sold as the case may be. If it is not established that it was not so kept or sold, an order for its forfeiture may be made. The statutory mechanism leading to such a hearing is, first, a complaint on oath of reasonable suspicion as to the keeping for sale or sale on the specified premises or place either by some unknown person, e.g., where there is existing no licence to keep liquor for sale or to sell liquor on those premises, or by some named person who is not so licensed in respect of those premises. I should observe at this point that, in my opinion, the sub-section does not require the complaint to nominate the person who is so keeping the liquor for sale or selling it if nobody is licensed in respect of the premises. "Some person" is, in my opinion, sufficiently elastic to permit of this meaning of the sub-section: second, the grant of a warrant to seize all liquor found on the said premises. It is assumed by the sub-section that the seized liquor will have been in the actual possession of some person when seized. Consequently it supposes that, upon the execution of the warrant and the seizure of liquor, it will be possible to identify the person in whose actual possession the seized liquor was found: the sub-section, in my opinion, is not concerned with the right to possession but with actual possession: third, the grant of authority to a justice to issue his summons to the person who was in fact found in possession of the seized liquor to show cause why it should not be forfeited. The authority to issue the summons is not an authority to issue it to a person said to be in possession but, and for obvious reasons, having regard to the capacity to order forfeiture of the liquor, only to the person in whose possession the liquor was actually found: fourth, a hearing of the "case" when the person who was in actual possession of the liquor when seized who has been so summonsed has an opportunity of proving that such liquor was not kept for the purpose of being illegally sold or disposed of. It is not enough that the person so found in possession of the liquor proves that it was not kept by him for such a purpose. He must satisfy the court that it was not kept at all for such purpose, the sub-section contemplating that if a person is found in possession of the liquor he will be in a position himself or through the evidence or efforts of others to prove that the liquor was not unlawfully kept on the premises. (at p626)

12. On this structure of the section, it is, to my mind, abundantly clear that the expression "until the complaint is heard" refers to a time when the whole process for which the section provides is complete, i.e., until the case is heard and an order for forfeiture made or refused. Being of that opinion, the cases to which I have referred were, in my opinion, all well decided. (at p626)

13. But, so to conclude does not, in my opinion, lead to the decision to which the Full Court came. Those cases had a bearing on the problem which the facts of this case as I have outlined them posed for the Full Court. They decided that the original complaint had to be heard by means of a summons to show cause directed to the person found in possession of the liquor. The magistrate when dismissing the first summons did not merely conclude that Mr. Benjamin did not have the right to possession of the liquor which, as would appear from what I have said, would be an irrelevant matter. He decided that Mr. Benjamin was not in fact the person in whose actual possession the liquor was found. Consequently, the hearing of the case to which the third paragraph of the section refers did not take place according to the provisions of that paragraph. "Such person" i.e., the person who was in fact found in possession of the liquor at the time of the execution of the warrant did not have an opportunity of showing cause. The magistrate, in my opinion, really dismissed the first summons as a summons which the justice had not been authorized to issue. He expressed himself by saying the summons was a "nullity" which, in relation to the hearing of the complaint, it really was. It was not issued under the authority of the section and in pursuance of the complaint, because it was not issued to the right person conformably with the description of that person in the second paragraph of the section. (at p627)

14. It is, of course, quite true that the complaint nominated Mr. Benjamin as the "some person" not licensed in respect of the premises and that the detective constable informed the magistrate that the liquor was found in Mr. Benjamin's possession. But these inaccuracies were immaterial. No question of estoppel of any kind could arise upon or in respect of them in relation to the capacity of the justice to issue his summons to the person who was in fact found in possession of the liquor. Thus, on the issue of the summons against Mr. Benjamin an issue arose as to whether he was the person in whose possession the liquor was found. Nothing in the recitals of the summons settled that issue. As he was not, the summons had not been competently issued and was to be dismissed for that reason. The magistrate could not in the proceeding upon it have ordered forfeiture and, in my opinion, he ought not to have dealt with that question at all. That left the original complaint, in my opinion, still unheard and the justice with authority, founded on that complaint, to issue his further summons. The proceedings on that summons ought not to have been prohibited but allowed to proceed as part of the hearing of the complaint within the first paragraph of the sub-section. (at p627)

15. The questions raised in the matter are of sufficient public importance to warrant the grant of special leave. It is not necessary or expedient, in my opinion, that a decision be now taken on the question whether the order for prohibition made by the Supreme Court satisfied the terms of s. 35 (1) (a) (2) of the Judiciary Act 1903-1966 (Cth), in that it indirectly involved a question respecting any property of the value of $3,000. The prohibition restrained the hearing of a summons upon which the forfeiture of the seized liquor, which we are told exceeded $3,000 in value, could be ordered. (at p627)

16. Accordingly in my opinion, that question being unresolved, special leave to appeal should be granted and the appeal allowed. (at p627)

KITTO J. I have had an opportunity of reading the judgments of the Chief Justice, Menzies J. and Walsh J. and I agree that for the reasons given by their Honours special leave to appeal should be granted and the appeal allowed. (at p628)

MENZIES J. This is an appeal, and an application for special leave to appeal, against an order of the Full Court of the Supreme Court of Queensland prohibiting the Magistrates Court at Brisbane from proceeding upon a complaint by Hooper against N. J. Hawkins and A. S. Hawkins in that Court (Reg. v. Hooper; Ex parte Hawkins (1969) Qd R 329 ). The application for special leave was made following an objection to the jurisdiction of the Court to hear the appeal which had been instituted but this objection has not been pressed. The merits of the case have been fully argued. (at p628)

2. The proceedings in question were taken under the first sub-section of s. 132 of The Liquor Acts, 1912 to 1965 (Q.). This provision is as follows:

"Upon complaint on oath before any justice of the peace by any
person that he reasonably suspects that liquor is sold or kept for
sale in any premises or place by some person not licensed in respect
of such premises or place to keep or sell the same, such justice may
grant a warrant to any inspector or police officer to enter and
search such premises or place at any time whether by day or by night
and, if admission is refused to break into the same and to seize all
liquor found thereon and any vessels containing liquor, and to
detain them until the complaint is heard.
A justice shall upon being informed of such seizure by summons
under his hand require the person in whose possession the liquor is
found to appear before the court and at such time and place as are
specified in the summons to show cause why such liquor and vessels
should not be forfeited.
If at the hearing of the case such person so called upon to show
cause fails to satisfy the court that such liquor was not kept for
the purpose of being illegally sold or disposed of, then such liquor
and vessels shall be forfeited, and shall be sold or otherwise
disposed of as the Minister directs; and, after payment of the
expenses the proceeds of the sale shall be applied in like manner as
in this Act is directed in the case of penalties." (at p628)

3. The facts of the matter are as follows. Hooper, a policeman, complained upon oath to a justice of the peace that he reasonably suspected that liquor was kept for sale by one Benjamin in premises known as Hawkins Interstate Transport Depot. Thereupon a search warrant was granted to enter and search the premises and to seize and detain all liquor found therein. Hooper executed this warrant on 17th January 1968, and seized a quantity of liquor. He thereupon informed a justice of the peace of the seizure and further that he had found the liquor seized in the possession of Benjamin. Thereupon, on 2nd February, that justice issued a summons calling upon Benjamin to show cause why the liquor seized should not be forfeited. Benjamin appeared to show cause and sought to do so. On 27th January 1969, the magistrate decided that the liquor seized had not been found in Benjamin's possession. He decided further that the liquor was not kept at the premises by Benjamin for sale by him. His Worship therefore concluded as follows:

"Consequently the proceedings against Mr. Benjamin are a nullity,
and the application for an order of forfeiture of the liquor is refused."

On 20th February 1969 the justice, who had on 2nd February issued the summons calling upon Benjamin to show cause, upon further information that the liquor had been found in the possession of N. J. and S. A. Hawkins, issued a further summons calling upon them to show cause why the liquor should not be forfeited. The proceedings prohibited by the Full Court were proceedings so instituted. Prohibition went because the members of the Full Court considered that the Court was bound by authority to decide that, upon the magistrate deciding as he did upon the show cause proceedings against Benjamin, the operation of s. 132 was spent and no further proceedings could be taken in respect of the liquor seized as aforesaid. (at p629)

4. Although the members of the Full Court regarded themselves as constrained by authority to decide as they did, it does appear to me that the decision which was reached went beyond any previous decision. What had been decided earlier is, I think, summarized by Hanger J. in Chambers v. Parisotto; Ex parte Parisotto (1957) QSR 405, at pp 410, 411, where, after referring to earlier cases, his Honour said:

"It seems to me quite clear from these authorities that the
following propositions are well established: that when the person in
whose possession the liquor has been found is called upon to show
cause why it should not be forfeited, the validity of the complaint
upon which the warrant was issued is a question for the court to
decide, and the magistrate must therefore inquire, before he can
make an order of forfeiture, not only 'into the existence of the
formal requirements of the complaint, namely the oath, the assertion
of the existence of a reasonable suspicion by the complainant and
the grounds asserted of his suspicions', but also 'into the truth or
falsity of the matters asserted in the complaint'. Worth v. Howle;
Ex parte Howle (1950) QSR, at p 23; that unless the magistrate is
satisfied that when the complaint was made, the complainant
reasonably had the suspicion he alleged, the issue of the warrant,
and all subsequent proceedings are bad."

where, after referring to earlier cases, his Honour said:
The acceptance of these earlier decisions does not, however, require the conclusion that there can be no second summons under s. 132 (1) if, upon proceedings under an earlier summons, it has been determined that the person first required to show cause was not the person "in whose possession the liquor is found" upon the execution of the search warrant. The decision now in question stands by itself. (at p630)

5. In my opinion, that decision depends upon a misunderstanding of s. 132. The hearing of the case is the means whereby the person, found in possession of liquor which has been seized, may, in order to avoid forfeiture, satisfy the court that the liquor was not kept for the purpose of being illegally disposed of. The words "such person so called upon" require that it is the person in whose possession the liquor was found that should be the person to show cause, and, should it appear that the person required to show cause was not the person who was in possession, the proceedings under that summons become abortive. It would, of course, be an outrageous injustice if liquor seized were to be forfeited simply because the person, designated by the section as the one to show cause to prevent a forfeiture, was not the person who had been required to show cause. It would be no less strange if there could be no ultimate forfeiture simply because, at one stage, the wrong person had been required to show cause. The true meaning of the section is that the person in whose possession the liquor was found must be given the opportunity to show cause against forfeiture and until this happens the seized liquor is to be detained but is not forfeited. (at p630)

6. For the respondents it was argued that the complaint was heard when the magistrate treated the summons directed to Benjamin as a nullity, but the proceedings which happened following the issue of that summons did not constitute a hearing as directed by the sub-section. It may not be perfectly clear what is the "complaint" that has to be heard to put an end to the detention of liquor seized, but it seems to me that what is intended is a hearing of the show cause proceedings which cannot result in forfeiture unless the original complaint giving rise to the seizure was shown to have been in accordance with the section. What is referred to as "the case" in the third paragraph of the sub-section is the proceeding based upon the original complaint leading to seizure and a summons, calling upon the person in whose possession liquor has been found, to show cause. It is when that case is heard that the detention of the liquor will either come to an end and the liquor will be restored to him in whose possession it was, or will pass into forfeiture. This, I think, is a fair reading of the sub-section as a whole which does not appear to me to present as much difficulty as had been suggested. (at p631)

7. It follows that the hearing of the proceedings instituted by the summons calling upon the prosecutors to show cause are not beyond the jurisdiction of the Magistrates Court and that the order for their prohibition was wrongly made. (at p631)

8. The course which I think should now be followed is to grant special leave to appeal and to allow the appeal. (at p631)

OWEN J. I agree that special leave to appeal should be granted and the appeal allowed. I do not wish to add anything to what has been said by the other members of the Court. (at p631)

WALSH J. The question raised by this appeal is whether the Magistrates Court at Brisbane had jurisdiction to hear a summons directed to the respondents to appear before that Court to show cause why certain liquor should not be forfeited. The liquor had been seized after a complaint on oath had been made and a warrant granted under the provisions of s. 132 (1) of The Liquor Acts, 1912 to 1965 of the State of Queensland. After the seizure of the liquor a summons had been issued requiring one, Benjamin, to appear to show cause why it should not be forfeited. The magistrate, before whom that summons came, made findings including a finding that the liquor was not found in the possession of Benjamin and he refused to order its forfeiture. Thereafter, a summons was directed to the respondents requiring them to show cause why the liquor should not be forfeited. The Full Court of the Supreme Court of Queensland made absolute an order nisi for prohibition, directed to the Magistrates Court and to the appellant Hooper, against further proceedings upon that summons. The appeal is against that order of the Full Court. (at p631)

2. The first paragraph of s. 132 (1) describes the warrant, which may be granted thereunder, as a warrant to enter and search the specified premises or place "and to seize all liquor found thereon and any vessels containing liquor, and to detain them until the complaint is heard". It should be observed that the liquor which may be seized is not described as liquor which is found in the possession of a person named in the complaint, but as liquor found "thereon", that is, on the premises. (at p631)

3. The second paragraph provides that a justice shall upon being informed of such seizure by summons under his hand require "the person in whose possession the liquor is found" to appear to show cause why it should not be forfeited. The person who may be required to show cause is not described as the person in whose possession the liquor is alleged to have been found, but as the person in whose possession it is found. In the present case Mr. Benjamin was named to the justice who issued a summons for him to show cause as being the person in whose possession the liquor was found but, in fact, according to the subsequent finding of the Court before which he appeared to show cause, it was not found in his possession. When this finding had been made, it then appeared that the summons to show cause had not been directed to the person who, alone, could be required, in accordance with the terms of the second paragraph, to show cause. In these circumstances a further summons was issued to the present respondents to show cause. Although the order nisi for prohibition, which the respondents obtained from a judge of the Supreme Court, referred to "the complaint and summons" served on the present respondents, the document served upon them was not, itself, a complaint. It recited the original complaint and the warrant granted thereon and it recited that the justice was informed by Hooper that by virtue of the warrant he entered and searched the premises and seized liquor which he found thereon in the possession of the respondents. It required them to appear before the Magistrates Court to show cause why the liquor should not be forfeited. (at p632)

4. The question is whether the Full Court was right in prohibiting the proceedings which would have taken place if the respondents had appeared in accordance with that summons to show cause. The question which was raised by the application for prohibition was not the question to which attention was given in some earlier decisions in Queensland, namely the question of the proof required in order to justify the making of an order for forfeiture. In particular, it was not the question whether it would be necessary to prove the original complaint and the existence of a reasonable suspicion in the mind of the person who made that complaint. The question was whether the Magistrates Court would have any jurisdiction, on the return of the summons issued against the respondents, to proceed with "the hearing of the case", in accordance with the third paragraph of the sub-section. The Full Court thought it would not. It considered that it was bound by earlier decisions to reach that conclusion. It decided that the original complaint had already been heard and determined and its operation was spent and no further proceedings could be taken. (at p632)

5. It was stated in the judgment of Lucas J. (1969) Qd R, at p 332 that earlier decisions established "that in proceedings under s. 132 . . . the whole of the proceedings are founded on the original complaint", which must be proved at the hearing of a summons to show cause. In addition, it had been established that it must be proved that a reasonable suspicion existed in the mind of the person whose complaint led to the issue of the search warrant. In my opinion, if it be assumed that this is correct, it does not follow that the proceedings which took place upon the summons directed to Benjamin constituted a final "hearing of the case", with the result that no further proceedings based on the original complaint could take place. The magistrate found, when Benjamin appeared to show cause, that the liquor was not kept at the premises for sale by Benjamin. But the sub-section is expressed in terms which do not stipulate as an essential condition, either for the validity of the warrant, or for the subsequent making of an order for forfeiture, that the liquor was kept at the premises for sale there by the person to whom the reasonable suspicion of the complainant was directed. The magistrate found also that, at the time of seizure, the liquor was not found in Benjamin's possession. It was not a necessary consequence of that finding that it could not be established, if it were necessary in the future proceedings against the respondents to do so, that the complainant reasonably suspected that liquor was sold or kept for sale on the premises by Benjamin. The magistrate who dealt with the first summons found expressly that the complainant Hooper did reasonably suspect that Benjamin kept liquor for sale on the premises. I think that it is not correct to conclude that the complaint had already been heard and had been decided adversely to the complainant. It is true that the question whether the liquor was found in the possession of Benjamin had been determined in favour of Benjamin. The result of that finding was that a summons to the person in whose possession the liquor was found had not been issued. But a summons to that person is the procedural step which, in accordance with the second paragraph, has to be taken to enable the provisions of the third paragraph to operate. Assuming that "the hearing of the case" mentioned in the third paragraph means, in effect, as has been decided in earlier cases in Queensland, the hearing of the original complaint this is, nevertheless, a hearing which is to be preceded by the steps set out in the second paragraph and in which the person in whose possession the liquor is found is a necessary party. (at p633)

6. To this view of the construction of the sub-section the objection has been raised that its consequence is that there may be several successive hearings before the question whether the liquor should be forfeited is finally determined and that this is not an acceptable view of the intended operation of the provision. It may occur that there will be several hearings, but I think that this will rarely happen, and if it does, it will usually be caused by circumstances for which the person who is really entitled to the possession of the liquor is responsible. The consequences of this view of the operation of the provision are less startling than those of a construction which would permit a final determination to be made, either for or against the forfeiture, in the absence of the person who was, in fact, in possession of the liquor when it was seized. I have not overlooked the statement in the reasons of Campbell J., to the effect that if a summons has been directed to the wrong person this is a matter which may be cured by amendment or withdrawal before the final determination by the magistrate. I need not decide whether or not a summons under this provision could properly be amended by substituting one party for another or by adding a party, which may be open to some doubt. Assuming that it could be so amended, I think that, although by this means a determination in the absence of the party whose interests are really affected would sometimes be avoided, this is not a sure safeguard against such a determination and, in any event, the availability of this means of reducing the risk of such a determination does not have the consequence that conclusive effect ought to be given to a determination made upon a summons directed to the wrong party. (at p634)

7. In my opinion the proceedings should not have been prohibited. Special leave to appeal should be granted and the appeal should be allowed. (at p634)

ORDER

Special leave granted. Appeal allowed with costs. Order of the Supreme Court of Queensland set aside and in lieu thereof order that the rule nisi for prohibition be discharged, prosecutors to pay respondents' costs.