Licensing Court (SA) v White

[1918] HCA 6

24 CLR 318

THE LICENSING COURT (SOUTH AUSTRALIA) WHITE Licensing-Local option-Adoption - of resolution that number of licences be not H.[

increased or reduced-Effected of resolutionJurisdiction of Licensing Bench 1918.

Objection to renewal of licence on ground that premises not required for accom- modation of public-Licensing Act 1908 (S.A.) (8 Edw. VII. No. 970), secs. 44, MELBOURNE,

47, 59, 183, 199, 200, 203-Licensing Acts Further Amendment Act (No. 2) 1915 (6 Geo. v. No. 1236).

Sec. 44 of the Licensing Act 1908 (S.A.) provides that a Licensing Bench "shall hear, inquire into, and determine all applications for licences and for renewal of licences and also all objections which are made to any such applica- tions. Sec. 47 provides that one of the objections that may be taken to an appli- cation for a grant or a renewal of a publican's licence is "that the licensing of the premises is not required for the accommodation of the public." Sec. 59 provides that "(1) No licence shall be renewed nor shall any application be granted as a matter of course; and upon the hearing of any application for the grant, renewal, transfer, or removal of a licence, whether notice of objection has been delivered or not, and whether objection is taken at the hearing or not, the Bench shall hear, inquire into, and determine the application and all such objections (if any) on the merits, and shall grant or refuse the application

24 CLR 319

upon any ground which, entirely in the exercise of its discretion, it deems sufficient and against such grant or refusal there shall be no appeal." Secs. 177 to 182 provide for the taking of a local option poll of the electors in Local Option District. Sec. 183 provides that " (1) The resolutions to be sub- mitted at a local option poll are the following :-1. That the number of licences be reduced: 2. That the number of licences be not increased or reduced: 3. That the Licensing Bench may in their discretion increase the

Sec. 200 provides that "If the second resolution is adopted at a local option poll in any Local Option District, no licence of any class shall thereafter, whilst such resolution continues in force, be granted in such district, except in respect of premises licensed at the time of such poll or premises to which a licence existing within such district at such

Held, that the adoption of the second resolution only limits the number of licences that may be granted, and does not affect the discretion given to the Licensing Bench by sec. 59 to grant or refuse an application for a renewal of an existing licence.

Held, therefore, that where the second resolution has been adopted and an application is made for a renewal of a licence, the Licensing Court (which by the Licensing Acts Further Amendment Act (No. 2) 1915 was substituted for the Licensing Benches) may properly entertain an objection that the licensing of the premises is not required for the accommodation of the public.

Decision of the Supreme Court of South Australia, reversed.

APPEAL from the Supreme Court of South Australia.

On 2nd April 1910 a local option poll was taken in the Local Option District of Adelaide pursuant to the Licensing Act 1908, at which the second resolution mentioned in sec. 183 of that Act was adopted. Prior to and until 25th March 1917 William Thomas White was the holder of a publican's licence in respect of a certain public-house in the Local Option District of Adelaide. On 27th November 1916 he gave notice of his intention to apply for a renewal of the licence at the sittings of the Licensing Court to be held on 6th March 1917. On 5th February 1917 notice was given that on the hearing of the application for a renewal the granting thereof would be objected to on the ground that the premises were not required for the accommodation of the public. On the hearing of the application objection was taken on behalf of White that the Licensing Court had no jurisdiction to entertain the objection which had been taken, or to refuse to renew the licence on the ground that the premises were not required for the accommodation of the public.

24 CLR 320

The Licensing Court overruled the objection to its jurisdiction, and

adjourned the further hearing of the application to a day to be fixed.

COURT (S.A.)

A rule nisi was obtained by White for a prohibition to prohibit the Licensing Court from further proceeding to hear, inquire into and determine the objection to the granting of the renewal of the licence, and from not renewing or refusing to renew the licence. On the return of the rule nisi the Full Court made an order absolute for the issue of a writ of prohibition.

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

Cleland K.C. (with him Hannan), for the appellant. The adoption of the second resolution mentioned in sec. 183 of the Licensing Act 1908 does not destroy the discretion which the Licensing Bench was given by sec. 59, and which, under the Licensing Acts Further Amendment Act (No. 2) 1915, the Licensing Court now has, to refuse a renewal of a licence in any particular case. The Supreme Court treated the words of the second resolution as if they were enacted as a substantive provision of the Act. But the whole effect of the adoption of that resolution is stated in sec. 200, namely, to limit the discretion granted to the Licensing Bench by sec. 59 to the extent that they may not thereafter grant any new licences. Otherwise the discretion remains as wide as it was before.

Starke and Bennett, for the respondent. A refusal to renew a licence on a ground personal to the licensee does not debar the premises from being licensed, but a refusal on the ground that the premises are not required for the accommodation of the public has the effect of de-licensing the premises, and SO of reducing the number of licences. When the renewal of a licence is refused on a personal ground, a licence may under sec. 54 (1) (VII.) be granted for the same premises to some other person. It is therefore reasonable that when the second resolution is adopted the Licensing Bench should still be entitled to refuse a licence on a personal ground, but should not be entitled to refuse it on the ground that the premises are not

24 CLR 321

required for the accommodation of the public. Sec. 200 does not H. state the whole effect of the adoption of the second resolution. it did, then no operation would be given to the words or reduced" in the resolution. But sec. 203, by giving force for a certain period to a resolution which has been adopted, makes the second resolution in its terms a statutory enactment, SO as to prevent the reduction of the number of licences. There is no statutory meaning given to the word 'reduce," and a reasonable meaning may be given to it having regard to the purpose of the Act. One of the necessary results of giving a reasonable meaning to the word "reduce' is that a refusal of the renewal of a licence on the ground that the premises are not required for the accommodation of the public is in opposition to the enactment. Where the first resolution is carried the Legislature has expressly provided in sec. 199 that the discretion of the Licensing Bench to refuse licences is not to be affected by the consequent fixing of the number of licences that may be granted, but no such provision is made for the case where the second resolu- tion is carried, indicating that their discretion is to that extent taken away.

GRIFFITH C.J. It has often been pointed out that, under the licensing systems in operation in most or all of the States of the Commonwealth, a licence for the sale of liquor is granted after consideration of the fitness both of a person and of premises. It is a single licence granted after consideration of both matters. An attempt was made in argument to treat a licence as divisible, SO that it should be regarded as a licence to a person and separately as a licence for premises, but there is nothing in the Act to justify such a division. I can quite understand that the Legislature might have made such a separation, but they have not done SO.

Under the Licensing Act 1908 of South Australia two authorities have jurisdiction to deal with licences. One is the Licensing Bench the other consists of the electors of the district. The functions of these authorities are quite distinct. That of the electors is limited to prescribing general rules as to the total number of licences that it is permissible to grant in the district, and they have no concern with

24 CLR 322

the granting of individual licences. In the absence of any resolution the total number of licences that it is permissible to grant is as large or as small as the Licensing Bench think proper. Their discretion

COURT (S.A.)

is uncontrolled (sec. 59). The general rules are expressed in the form of three alternative resolutions submitted to a poll (sec. 183), the first being "that the number of licences be reduced," the second "that the number of licences be not increased or reduced," and the third that the Licensing Bench may in their discretion increase the number of licences." It is manifest that the language of these resolutions is elliptical. In the first resolution the words the number of licences" mean the number of licences which it is per- missible to grant, and "reduced' means reduced below the number of licences then existing. In the third resolution the word "number" has the same meaning, and the word "increase" means increase beyond the existing number. I come to the conclusion, if it is necessary to do so, that in the second resolution also the word " number" means the number of licences that it is permissible to grant, which limit is to remain unaltered, that is, the limit is to be the same as the number of existing licences, and is neither to be reduced, as it must be when the first resolution is adopted, nor increased, as it may be when the third is adopted. It appears, then, that in each case the subject matter of the resolution is the extent of the power of the Bench, which, within its limits, is plenary, and that it has nothing to do with the exercise of the Bench's discretion within the limits of the power. If, therefore, there were no more in the Act, I should come to the conclusion that the only effect of the adoption of the second resolution is that the limit of the number of licences that it is permissible to grant shall neither be increased above, nor reduced below, the existing number, and that the resolution has nothing to do with such a diminution in number as may arise from non-renewal of an individual licence for any cause, which diminution might in another context be included in the word "reduction." This view is supported by Schedule C, which speaks of a "reduction" in pursuance of a resolution to reduce.

I agree, however, with Mr. Cleland's contention that the effect of the resolutions is to be ascertained from the express provisions

24 CLR 323

of the Act which declare their effect, and not from their naked words H. C. OF alone. The Legislature prescribed what the effect of the adoption of each resolution should be. The effect of the adoption of the first resolution is that the number of existing licences is to be reduced by one-third (sec. 183 (2) ), SO that as to one-third of the existing licences a renewal cannot be granted. But they went on (sec. 199 (2) ) to say that the Licensing Bench should not be con- fined to that reduction, but might further reduce the number to any extent they thought fit. Sec. 200 provides that " If the second resolution is adopted at a local option poll in any Local Option District, no licence of any class shall thereafter, whilst such resolu- tion continues in force, be granted in such district, except in respect of premises licensed at the time of such poll or premises to which a licence existing within such district at such time is removed." That is to say, the limit shown by the number of then existing licences shall not be exceeded, and new premises shall not be licensed, even within that limit, except in the case of a removal of a licence. That, in my opinion, is the effect, and the only effect, of the resolution, and the only qualification which its adoption imposes on the discre- tion of the Licensing Bench. It is, indeed, hardly conceivable that the discretion allowed to continue if the first resolution is adopted should be denied to the Bench on the adoption of the second. think, therefore, that the Licensing Bench had, and, since the amending Act of 1915, the Licensing Court has had, jurisdiction to entertain the objection in question.

An argument has been founded on sec. 203, which provides that a resolution when adopted is to continue in force until altered or rescinded by a resolution adopted at a subsequent local option poll. But it is obvious that a provision fixing the time during which a rule is to continue in force is quite irrelevant to the question of what is the rule. The force of the resolution is not affected by that section.

For these reasons I am of opinion that the appeal should be allowed.

BARTON J. I entirely agree.

24 CLR 324

RICH J. I agree.

Appeal allowed. Order appealed from dis-

COURT (S.A.)

charged. Rule nisi for prohibition discharged with costs. Respondent to pay costs of appeal. Solicitor for the appellant, F. W. Richards, Crown Solicitor for South Australia.

Solicitors for the respondent, Stock &Bennett.

[HIGH COURT OF AUSTRALIA.]

COLCLOUGH.

THE FEDERAL COMMISSIONER Income Tax-Assessment-Income from personal exertion-Employee of company-

Shares issued to employee-Dividends-Remuneration for services-Income Tax MELBOURNE,

Assessment Act 1915-1916 (No. 34 of 1915-No. 39 of 1916), sec. 3.

Pursuant to the articles of association of a company an employee received for his services, in addition to a fixed salary, the amount of the dividends upon a certain number of shares which were for that purpose allotted to him as fully paid up, but which he could only retain so long, substantially, as he remained in the service of the company.

Held, that the amount of such dividends was income from personal exertion within the meaning of sec. 3 of the Income Tax Assessment Act 1915