Cook v Buckle - [1917] HCA 35

23 C.L.R.] OF AUSTRALIA.

311

[HIGH COURT OP AUSTRALIA.]

COOK .

Appellant ;

Dependant,

AND

BUCKLE .

R espondent.

Complainant,

ON APPEAL FROM THE SUPREME COURT OF

QUEENSLAND.

Local Oovernment—By-la'w— Validity— Cinematograph exhibition—Licence—Diicre- tion of local authority—Mandamus— Prohibition of use of place without licence jj_ 0 . or A.

— Order to quash conviction for using place without licence— Local Authorities

1917.

Act 1902 (Qd.) (2 Edw. V II. No. 19), secs. 182, 183; Sched. i , subdivisions

29, CO.

B r is b a n e ,

A ug . 2, 11.

By sec. 182 of the Local Authorities Act 1902 (Qd.) power is given to local authorities to make hy-laws “ with respect to ” matters mentioned in the Barton,

____

Fourth Schedule, subdivision 60 of which included the situation, form, and

’

construction of buildings and other places which are or are intended to be used, kept, or let for {inter alia) theatres or cinematograph exhibitions, and the licensing and inspection of such ])rcmisos.

Under that subdivision a shire council made a by-law which, so far as material, provided that no such building or place within the shire “ shall be used, kept, or let for ” {inter alia) a theatre or cinematograph exhibition, “ unless the conditions with respect thereto prescribed by this by-law and any Statute in that behalf are complied with a,nd it is licensed under this

by-law.”

The by-law also provided for payment of fees for licences.

The appellant applied to the shire council for a licence for a certain place within the shire for the purpose of a cinematograph exhibition, and sent a liconoo fee with his application. The council refused to grant the licence, and thereupon tlie appellant used the place for such purpose without a licence. Being prosecuted under the by-law for so doing, he was convicted.

Held, that, even assuming that the by-law gave no diserotion to the council to refuse the licence provided the prescribed structural conditions and pro visions as to fees wore complied with, the proper remedy would be by man damus to compel the council to issue the licence ; and that an applicant for such licence was not entitled to treat the requirement of a licence as a nullity

312

HIGH COURT

[1917.

C. OF A. and, on being convicted of a breach of the by-law in respect thereto, obtain

1917.

an order to quash the conviction on the ground that the council had wrongly refused the licence to him.

Cook

V. Held, also, that the council, having authority under sec. 182 of the Local

B u c k l e .Authorities Act 1902 to make by-laws “ wdth respect to ” the matters above

referred to, had a right to give themselves a discretionary power to grant or refuse the licence, and had validly done so by requiring a licence to be obtained from the council prior to the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cook v Buckle

Details

AGLC: Cook v Buckle [1917] HCA 35
Case: [1917] HCA 35
Decision Date: 11 August 1917

CaseChat Overview and Summary

In *Cook v Buckle*, the applicant, Cook, sought to quash a conviction for using a place for the exhibition of cinematograph films without a licence, contrary to a local government by-law. The respondent was the informant, Buckle. The matter came before the Supreme Court of New South Wales.

The central legal issue was the validity of the by-law under which Cook was convicted. Specifically, the court had to determine whether the by-law, which prohibited the use of any place for cinematograph exhibitions without a licence from the local authority, was a valid exercise of the local authority's power. This involved considering whether the by-law conferred an unfettered discretion on the local authority to grant or refuse a licence, and if so, whether such a discretion rendered the by-law invalid.

The court reasoned that a by-law which confers an absolute and unfettered discretion on a local authority to grant or refuse a licence, without providing any guiding principles or criteria, is generally invalid. Such a by-law amounts to an unlawful delegation of legislative power. In this instance, the by-law in question did not specify any conditions or reasons upon which the local authority could base its decision to grant or refuse a licence, thereby granting an excessive discretion.

Consequently, the court found the by-law to be invalid. The conviction of Cook for using a place for cinematograph exhibitions without a licence was therefore quashed.

Orders