Licensing Court (SA) v Cummins - [1919] HCA 47

THE LICENSING COURT (SOUTH AUS- CUMMINS

ON APPEAL FROM THE SUPREME COURT OF Licensing-Forfeiture of licence-Jurisdiction of Licensing Court-Management of

premises not satisfactory-Acts amounting to offences-Licensing Act 1917 (S.A.) (No. 1322), secs. 80, 81. Sept. 26;

Sec. 80 of the Licensing Act 1917 (S.A.) provides that '(1) If any person holding a licence under this Act is within a period of two years convicted two several times of offences for which his licence is liable to be forfeited as in this Act provided

the Special Magistrate or justices by whom such person is convicted for the second offence, or the " Licensing "Court for the district in which the licensed premises in respect of which such person holds a licence are situate, may, or if any person holding a licence under this Act is within a period of three years convicted three several times of such offences as in this section before mentioned, the Special Magistrate or justices by whom such person is convicted for the third offence, or the' Licensing " Court as in this section before mentioned shall, upon information by any person and on proof of the convictions,

declare such licence to be forfeited, and such licence shall thereupon cease to be of any force or effect, and the person whose licence is SO forfeited shall thereupon be disqualified for a term of two years from holding any licence under this Act. (2) No such declaration of forfeiture shall be made by the" Licensing "Court except upon information lodged with the Clerk within four months after such second or third conviction (as the case may be) as aforesaid, and upon seven days' notice of the hearing of such information, and of the time and

27 CLR 27

place of the meeting of the" Licensing "Court being given by the Clerk to the holder of such licence." Sec. 81 provides that (1) An inspector may apply to the Licensing 'Court to forfeit any licence on the ground that the management of the licensed premises has not been satisfactory.

(3) If the, Licensing "Court is satisfied that the management of the premises has not been satisfactory, and is of opinion that the licence should be forfeited, the Court shall feited, and such licence shall thereupon cease to be of any force or effect."

Held, that the unsatisfactory nature of the management of licensed premises may, for the purpose of authorizing a forfeiture under sec. 81, be established by proof of a series of acts which are offences upon conviction for two or more of which the licence is liable to forfeiture under sec. 80 and in respect of none of which has there been a conviction.

Decision of the Supreme Court of South Australia reversed.

APPEAL from the Supreme Court of South Australia.

At the sittings of the Licensing Court for the Southern Licensing District of South Australia on 16th August 1918, applications were made by an inspector of licensed premises for the forfeiture of 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 Licensing Court (SA) v Cummins

Details

AGLC: Licensing Court (SA) v Cummins [1919] HCA 47
Case: [1919] HCA 47
Decision Date: 1 October 1919

CaseChat Overview and Summary

The Licensing Court of South Australia appealed to the High Court of Australia against a decision of the Supreme Court of South Australia. The dispute concerned the forfeiture of two licences held by Richard William Cummins, a storekeeper, and a storekeeper's Australian wine licence. The Licensing Court had ordered the forfeiture on the ground that the management of the licensed premises was unsatisfactory, specifically citing instances of supplying liquor by the glass to be drunk on the premises, which was contrary to the terms of the licences. Cummins had obtained a rule nisi for prohibition from the Supreme Court, which was made absolute, quashing the forfeiture orders.

The central legal issue before the High Court was the proper construction of sections 80 and 81 of the *Licensing Act 1917* (S.A.). Specifically, the court had to determine whether the Licensing Court had the jurisdiction to forfeit a licence under section 81 based on unsatisfactory management, even if the conduct constituting that unsatisfactory management had not resulted in any convictions, and if such conduct was also an offence for which a licence could be forfeited under section 80 upon conviction. The Supreme Court had held that section 81 must be interpreted to avoid repugnancy with section 80, thereby limiting its application to breaches of good management other than those covered by section 80.

The High Court reasoned that section 80 provides for forfeiture upon proof of specific convictions, with procedural requirements regarding the timing of information and notice. Section 81, however, grants the Licensing Court an independent power to determine for itself whether the management of licensed premises has been satisfactory and to order forfeiture if so satisfied. The Court found no inherent repugnancy between the two sections. It held that the acts alleged, namely the supply of liquor by the glass to be drunk on the premises, could indeed justify a finding of unsatisfactory management under section 81, irrespective of whether convictions had been obtained for those specific acts. The Court concluded that the Licensing Court had jurisdiction to make the forfeiture orders.

Consequently, the High Court allowed the appeal, discharged the order nisi for prohibition, and reinstated the Licensing Court's declarations of forfeiture.

Orders