Delaney v Gant

[1927] HCA 44

HIGH COURT

[1927

[HIGH COURT OF AUSTRALIA.]

DELANEY.................................................................................Appellant ;

Informant,

AND

GANT.............................................................................................Respondent.

Defendant,

ON APPEAL FROM THE SUPREME COURT OF

NEW SOUTH WALES.

Licensing—Keeping premises open for sale of or—Power by proclama­ tion to name day when premises shall not be open—Proclamation specifying hours of named day—Validity of proclamation—Liquor Act 1912 (N.S.W.) (No.

of 1912), secs. 15, 57 (1)(6)*—Liquor (Amendment) Act 1916 (N.S. W.) (No. 68of 1916), sec. 8*—Liquor (Amendment) Act 1922 (N.S. IF.) (No. 42 of 1922), sec. 2 (37)*—Liquor (Amendment) Act 1923 (N.S.IF.) (No 51 of 1923), sec. 19*.

Held, by Isaacs, Higgins, Powers and Starke JJ. (Knox C.J. dissenting), that the power conferred upon the Governor in Council by sec. 57 (1) (6) of the Liquor Act 1912 (N.S.W.) is a power to name a day during the whole of which licensed premises shall not be open for the sale of liquor and that no power is given to direct that during specified hours of a named day licensed premises shall not be open for the sale of liquor.

Decision of the Supreme Court of New South Wales (Full Court): Ex parte

Gant, (1927) 27 S.R. (N.S.W.) 285, affirmed.

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six o’clock in the morning

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except between the hours of six in the

(c) upon any day upon which any

morning and six at night.”

Appkal from the Supreme Court of New South Wales.

By a proclamation dated 28th February 1927 the Governor of New South Wales, with the advice of the Executive Council, pur­ porting to act in pursuance of sec. 57 (1) (b) of the Liquor Act 1912 (N.S.W.), directed “ that no licensee shall keep his licensed premises open for the sale of liquor, or shall sell or supply or deliver any liquor, or permit the same to be consumed, on the said premises, between the hours of 10.30 a.m. and 1 p.m. on Monday 25th April 1927.” On 17th May 1927 at the Central Police Court, Sydney, an information was heard by which Charles Delaney, an Inspector of Police, charged that on 25th April 1927 between the hours mentioned in the proclamation John Gant, being the licensee of the Brooklyn Hotel, George Street, Sydney, did keep his licensed premises open for the sale of liquor. The defendant, having been convicted, obtained from the Supreme Court an order nisi for prohibition on the ground (among others) that the proclamation of 28th February 1927 was ultra vires the power of the Governor and void. The order nisi was heard by the Full Court which, by a majority (Street C.J. and Ferguson J., Gordon J. dissenting), made it absolute: Ex parte Gant (1) . The majority were of opinion that the only power conferred upon the Governor by sec. 57 (1) (6) of the Liquor Act 1912 was a power to name a day on which no liquor might be sold, and that no power was given to him to specify in respect of a named day the hours during which no liquor might be sold.

From that decision the informant, by special leave, appealed to the High Court.

Weigall, S.-G. for N.S.W. (with him E. W. Street), for the appellant. As a matter of construction it is unreasonable to suppose that the Legislature intended to give the Governor in Council power to prohibit the sale of liquor for the whole of a day but intended that he should not have power to prohibit it for a part of a day. The greater power includes the less. If the power be regarded as one to be exercised in an emergency, the emergency may arise after a part of a day has passed. No reason is suggested for limiting the power. The proclamation would be valid if the

(1) (1927) 27 S.R. (N.S.W.) 285.

words between the hours of 10.30 a.m. and 1 p.m.” were omitted,

and their insertion does not render the whole invalid. The words

may be treated as surplusage.

Flannery K.C. (with him Hutton), for the respondent. The proclamation is not an exercise of the power to name a day on which liquor may not be sold, but is an exercise of an assumed power to close hotels during certain proclaimed hours of certain proclaimed days. It is apparent from sec. 57 of the Liquor Act 1912 that the intention expressed in sub-sec. 1 (b) is to give a power to add to Sunday, Good Friday and Christmas Day other days upon which it shall be unlawful to sell liquor. It is reasonable to suppose that the Legislature would give the Governor in Council power to close hotels only if he would take the responsibility of closing them for the whole of a day. A proclamation made in pursuance of a statutory power must conform in substance and form to the power granted. A greater power does not in law include a less power (Rossi v. Edin­ burgh Corporation (1) ).

Weigall S.-G., in reply.

Knox C.J. In my opinion the appeal should be allowed. As the majority of the Court is of the contrary opinion, no useful purpose would be served by going into details. Speaking generally I agree with the judgment of Gordon J.

Isaacs J. I think that the appeal should be dismissed and that the reasons of the majority of the Supreme Court are sound. I would like to add a few words for myself. Sec. 57 is a general section for the State of New South Wales. It provides that “ (1) No licensee shall keep his licensed premises open for the sale of liquor, or shall sell or supply or deliver any liquor, or permit the same to be consumed, on the said premises—(a) upon any Sunday ”—that is, over the whole of New South Wales ; “(b) upon any Good Friday or Christmas Day ”—also over the whole of New South Wales—“ or upon any day named in any proclamation by the Governor published in the Gazette ”—that also is over the whole of New South Wales. I think that the policy of the Legislature as declared by those words

(1) (1905) A.C. 21.

is simply this : that if the Executive comes to the conclusion that any other day is of sufficient importance to be placed in the same classification as those already named, it may put it in that classifica­ tion by proclaiming that it is to be within the sub-section. But if the argument is to prevail that the day may be split up into hours, I can see no limit to the splitting up—it might be by reference to hours, or to the liquor that might be sold or to localities, or anything else. That would render the sub-section absurd. I think we must stand by the pure words of the section—“ upon any day named.”

Higgins J. Agreeing, as I do, with the conclusion of my brother Isaacs, I should like to add a few words to indicate the position as it appears to me. The question is as to the limits of the power conferred on the Government by sec. 57 of the Liquor Act 1912 as amended by the Liquor Amendment Acts of 1916, 1922 and 1923 ; and a power conferred on a Government as well as powers conferred on others must be construed strictly. Gordon J., who dissented in the Supreme Court, referred to sec. 15, which was not referred to by the majority. On looking at sec. 15 it merely says what is the ordinary consequence of a publican’s licence. It authorizes the licensee to sell liquor but (subject to the provisions contained in sec. 57 hereof) only on the premises therein specified and between six o’clock in the morning and eleven at night. But, as the very words of sec. 15 show, this authority is subject to the provisions of sec. 57 ; so that we are thrown back on sec. 57 (1). What is its meaning ? Looking at sec. 57 (1), it is divided into two parts, (1) (a) and (6), (2) (c) and (d); the first part providing for the prohibition of the sale of liquor on whole days (a) Sunday, and (b) Good Friday and Christmas Day and any day named in a Governor’s proclamation. The proclamation has to fix days, not hours. The second part prohibits the sale of liquor upon any day of election except between certain hours ; and (d) upon any other day between certain hours named. There is nothing whatever in (a) or (b) as to hours. If there is no power to limit hours in sec. 57 (1) (b) then the majority of the Supreme Court is right. To give power to the Government to name days on which liquor may not be sold is not the same as to give power to the Government to name hours within which liquor may not be sold. As

TOL. XL.

12

HIGH COURT

H. C. or A. I put it during argument to Mr. Flannery, one can easily conceive that the Legislature might say :—“ We are perfectly willing to allow

Delaneythe Government to prohibit the sale of liquor on a full day, if the

Government will take the responsibility of doing so. We know that then the power to add to the number of sacred days would be exercised with great care. But we do not see fit to give the Govern­ ment power to add limitations to hours of ordinary days, and perhaps thereby please some great body in the State by prohibiting the sale of liquor for certain hours in a day.” It is not for us to say what was the actual motive of the Legislature in enacting the section in this form ; it is ours to say what the Legislature intended by its words ; but, in deciding what is the meaning of the words, we must see whether the literal construction does not give a reasonable and consistent meaning ; and it is quite reasonable and consistent to suppose that the Legislature gives power to add to the number of sacred days but not to add to or to diminish the hours for sale on secular days. If the literal construction gives a reasonable and consistent meaning, that is enough for us. Although personally I should probably wish that there were the power contended for, as to hours, I have no right to give effect to my personal wish or to what I may regard as my common sense. The point is that it is the will of the Legislature and not any personal wish of the Judges that is to be carried into effect.

I think that the majority of the Supreme Court were right, and that the appeal should be dismissed.

Powers J. I agree that the appeal should be dismissed on the ground that the Act does not give the Governor power to prohibit the sale of liquor between certain hours. I do so for the reasons stated by the majority of the Supreme Court.

Starke J.

I agree with the majority of the Supreme Court.

Appeal dismissed with costs.

Solicitor for the appellant, J. V. Tillett, Crown Solicitor for New South Wales.

Solicitor for the respondent, J. Buchanan.

B.L.