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…

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 White

Details

AGLC: Licensing Court (SA) v White [1918] HCA 6
Case: [1918] HCA 6
Decision Date: 27 February 1918

CaseChat Overview and Summary

The Licensing Court of South Australia appealed to the High Court against a decision of the Supreme Court of South Australia. The dispute concerned the jurisdiction of the Licensing Court to entertain an objection to the renewal of a publican's licence on the ground that the premises were not required for the accommodation of the public, following the adoption of a "local option" resolution that the number of licences should not be increased or reduced. William Thomas White, the licensee, had argued that the adoption of this resolution divested the Licensing Court of its jurisdiction to refuse renewal on this ground.

The legal issue before the High Court was whether the adoption of the second resolution under section 183 of the *Licensing Act 1908* (S.A.) – that the number of licences be not increased or reduced – limited the discretion of the Licensing Court, as established by section 59 of the same Act, to refuse the renewal of an existing licence on the ground that the premises were not required for the accommodation of the public.

The High Court, allowing the appeal, reasoned that the adoption of the second resolution under section 183 of the *Licensing Act 1908* (S.A.) primarily served to fix the maximum number of licences that could be granted in a district to the number existing at the time of the poll. Section 200 of the Act stipulated that no new licence could be granted thereafter, except in cases of removal, and that the number of licences should not be increased. However, the Court held that this did not extinguish the broader discretion granted to the Licensing Bench (and subsequently the Licensing Court) by section 59 to hear and determine applications for renewal and all objections on their merits, including the ground that the premises were not required for public accommodation. The Court found that the effect of the resolution was to limit the *granting* of new licences, not to remove the power to refuse *renewals* of existing licences based on the merits of objections.

Consequently, the High Court allowed the appeal, discharged the rule nisi for prohibition, and ordered that the rule nisi be discharged with costs, with the respondent to pay the costs of the appeal.

Orders