Ex parte Aurelius: Re Worrall

[1966] NSWCA 2

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Ex parte Aurelius: Re Worrall & anor [1966] NSWCA 2
Hearing dates:	14 April 1966
Date of orders:	15 April 1966
Decision date:	15 April 1966
Before:	Wallace P Jacobs JA Holmes JA
Decision:	Rule made absolute
Legislation Cited:	Liquor Act 1912 (NSW) s 57A, 120, 170.
Cases Cited:	Ex parte James re Furlong 49 SR 349
Category:	Principal judgment
Parties:	Oliver Stanley Aurelius Sergeant Frank Worrall His Honour Judge Clegg
Representation:	Counsel: Mr Holt (for Aurelius) Mr Tanner (for Worrall) Mr Schofield (for Judge Clegg)
File Number(s):	81/1966
Decision under appeal	Court or tribunal: Court of Quarter Sessions Date of Decision: 8 March 1966 Before: Clegg DCJ

Judgment

1. WALLACE P: This is an application to make absolute a rule nisi for a writ of mandamus directed to His Honour Judge Clegg and Sergeant Frank Worrall, a District Licensing Inspector under the Liquor Act.

2. It appears that the applicant, Oliver Stanley Aurelius, the holder of a publican’s licence in respect of licensed premises known as the Elanora Hotel situated at East Gosford in the Brisbane Waters Licensing District applied to the Licensing Court at Gosford for a permit for the sale and disposal of liquor for consumption under and in accordance with the provisions of s57A of the Liquor Act, which was original inserted in 1927. To this application two grounds of objection were taken by the respondent Worrall under s29 of the Act. The applicant’s supplication for such a permit was not an original application for a grant as he has previously been issued with such a permit. This, of course, is a feature of importance.

3. After the Licensing Magistrate had dismissed the application the applicant appealed to the Quarter Sessions in pursuance, no doubt, of the provisions of ss(1) of s170 of the said Liquor Act. This appeal came on to be heard before his Honour on 18 February 1966 when the only question argued was whether His Honour had jurisdiction to hear the appeal. On 8 March 1966 His Honour delivered a judgment where he held he had no jurisdiction and he declined to proceed with the hearing.

4. Those are the circumstances in which the application for mandamus arose. The ratio of his Honour’s judgment can be given by quoting from the closing passages of the judgment where His Honour said:

“I am of the opinion that the addition of the words ‘by a further grant’ after the words ‘from time to time’ in s57A are significant and were inserted deliberately by the Legislature to make it clear that a new permit was to be obtained on the expiry of an existing one and that the holder was not entitled to a renewal as of course.

Great reliance was placed by counsel for the appellant on sub-section (2), (3) and (4) of s170 which he contended related back to the sub-section (1) and therefore the section envisaged that an appeal lay to Quarter Sessions. In my view this contention is erroneous. It is not as though there were no appeal at all from the refusal to grant a permit under s57A, in fact, such an appeal is specially provided for in s170(5) and it is to this appeal that I think sub-section (2), (3) and (4) relate.

I am therefore of the opinion that the present application is, to use the words of s170, ‘an application for a permit under s57A of this Act’, and consequently I have no jurisdiction to entertain this appeal.”

5. I am of opinion that the matter raised is of considerable difficulty and there is much force in the views expressed by His Honour, but on reflection I have reach the view that, with respect, His Honour erred. Section 57A originally provided that the permit should continue until revocation and that the decision of the Licensing Magistrate as to the grant or refusal of the permit should be final and conclusive. The section was amended in 1946, for relevant present purposes, so as to eliminate the finality and conclusiveness of the Magistrate’s decision and also it was provided that the permit should last only for a period of a year; that is to say, until 30 June next following the grant of the permit. The amendment added “but may be renewed from time to time by a further grant”. But simultaneously s170 was amended in important respects. First sub-section (4) was added as a new provision and sub-section (5) was also so added.

6. The present scheme of appeal as appearing from s170 can therefore be said to be that the general appellate provision is contained in sub-section (1), which has been in existence for fifty years or so, that per medium of the Justices Act the appeal comes through Quarter Sessions. There is, however, the comparatively new sub-section (5) carved out from the general appellate provision exceptions in the cases of a licence, meaning a new publican’s licence, the removal of a licence and “an application for a permit under s57A”.

7. In my opinion the decision in this case turns on the final analysis of the true construction of that last-quoted phrase “an application for a permit under s57A” in its content and in the light of the other provisions of the Act. It must be remembered that sub-section (1), (2) and (3) existed long before the provisions of sub-section (4) and (5). They related clearly enough to appeals through the Justices Act to Quarter Sessions. That is to say, they appertained to the provisions of sub-section (1). When sub-section (4) was introduced it provided that sub-section (2) and (3) should extend and apply to every permit issued s57A, inter alia. By sub-para (b) thereof this new sub-section expressly referred to the phrase “the renewal of any permit”. So does s57A in effect because, as I have already indicated, it includes the phrase “but may be renewed from time to time by a further grant”.

8. It seems to me, therefore, that the phrase “application for a permit” appearing in sub-section 5(a) must be construed so as to exclude a renewal of the permit, a phrase which the Act itself uses on at least two occasions, and of course in sub-section (2) it is a phrase which is impliedly incorporated by virtue of sub-section (4). In other words, in sub-section (2) the wording in relation to permits under s57A is deemed to read “any person appealing against the refusal of the renewal of a s57A permit shall” – etc.

9. This, as I say, leads me to the view that the Act itself does distinguish between renewals of permits and the original grant of the permit. It is true that the renewals of permits are by of grant and it has long been accepted that the renewal of a licence is not a continuance of an old licence but the regranting of the old (Ex parte James re Furlong 49 SR 349). This, to me, however is not the vital point. To me it is a pure question of construction and all the relevant provisions must be regarded to solve the said point.

10. It is quite clear that renewals of publican’s licences are not caught by sub-section 5(a). The scheme of sub-section 5(a) is to deal with registration of clubs and, as I say, applications for permits. Such matters go by way of appeal in accordance with the provisions of sub-section 5(b) and appropriate cases go to the Full Bench of the Licensing Court, but the reasons why renewals of publicans’ licences remain with the superior court, the District Court Judges (Quarter Sessions) is obvious to all. There is an important proprietary right in question and its continuance is a matter deemed to be of greater importance to the citizen than the original grant.

11. Now it is true that a permit under s57A is by no means identical with a publican’s licence which goes on indefinitely subject to objections which may be lodged under s 29. Nevertheless a permit under s57A is a valuable piece of intangible property and once held its renewal seems to be a matter of considerable importance, more so perhaps than the original grant.

12. In the result, as a I detect a distinction drawn by the legislation itself between a renewal of a permit and an original application, I feel this distinction should be carried down into sub-section 5(a), having regard to the context of the phrases which I have quoted a couple of times already. This leads me to the view, therefore, that in connection with the renewal of a permit a refusal by the Licensing Magistrate to grant the renewal, be it by way of new grant or otherwise, goes to Quarter Sessions and not to the Licensing Court.

13. For those reasons I am of opinion that the rule should be made absolute and that the mandamus should go.

14. JACOBS JA: I agree, and I agree with the reasons stated by the learned President.

15. Section 57A refers to renewal of permits under that section. Section 170(4) in effect recognises, by its application of sub-section (2) to a permit under s57A that there can be a renewal of a permit under the latter section. That being so, the reference in ss5 of s170 to an application for a permit under s57A must in my view be taken to be a reference to the original application for a permit and not an application for a permit by way of renewal.

16. I think that, although the method in which it has been stated in the Act is not completely clear, the problem only arises by the appearance in s57A of the words “by a further grant”. However, in my view the important words are “may be renewed”.

17. I think in the present case that what was before the Court was a renewal and therefore the law relating to renewals as stated in s170 rather than that relating to applications was the proper law to be applied.

18. HOLMES JA: I agree with the order proposed by the President and with his reasons and with the reasons of my brother Jacobs.

19. For myself I would like to add this: s170(1), (2) & (3) were the only appeal provisions until in 1946 sub-section (5) was added for a special type of appeal in respect of new applications for licences and removal applications. However, renewals were as previously, to be dealt with by sub-section (1). At the same time sub-section (1) was added, clearly bring in a special provision in relation to, inter alia, “issued permits”, that is to say renewals of permits. This maintains the distinction between the type of appeal under sub-section (1) and that under sub-section (5).

20. The words “by a further grant” in s57A do not alter my view. Renewals of leases and of licences are a “further grant” but they are grants made in pursuance of an application to renew and not upon an application made for an entirely new privilege such as a fresh licence or the removal of a licence. This view, I think, is maintained in the difference between s170(1), (2), (3) and (4) on the one hand and sub-section (5) on the other.

21. WALLACE P: The order of the Court is that the rule is made absolute and mandamus is directed to go the respondents in accordance with the rule.

22. There will no order as to costs.

23. MR HOLT: On the question of costs, it was not our fault at the start that we were here and, secondly, Sergeant Worrall was represented by my friend at Court. It is not as though he did not oppose the making of the order. In the circumstances it has been contested as between the parties and it is not our fault we are here, and I submit the Court should award costs against the firstnamed respondent.

24. WALLACE P: on the whole, there will be no order for costs.

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Decision last updated: 03 February 2016