Lucas v Graham - [1907] HCA 46

ON APPEAL FROM THE SUPREME COURT OF Licensing Act 1906 (Vict.) (No. 2068), secs, 31, 32-Licensing Act 1890 (Vicl.)

(No. 1111), secs. 5, 12-" Australian" wine licence-.." Colonial' wine licence- Rights and obligations of licensee-Permitting liquor other than wine &. to be MELBOURNE,

brought on premises-Liquor purchased for customer. Sept. 25.

Sec. 32 (1) of the Licensing Act 1906 (Vict.) is not limited to liquor (other than wines, &.), brought on the licensed premises for the purpose of sale by the licensee, or which is the property of the licensee.

The effect of sec. 31 (1) of the Licensing Act 1906 is to change the name of a colonial wine licence to an Australian wine licence. Sec. 32 imposes the same restrictions upon the holders of all such licences, whether they were originally granted as colonial wine licences or as Australian wine licences.

Held, therefore, that a person who, before the Licensing Act 1906 came into force, obtained pursuant to the Licensing Act 1890 a renewal of his colonial wine licence, and who in 1907 permitted stout bought on behalf of a customer to be brought on his licensed premises, was properly convicted of an offence under sec. 32 (1) of the Licensing Act 1906, which forbids the bringing of liquor other than Australian wine on premises for which an Australian wine

Judgment of Supreme Court (Graham v. Lucas, (1907) V.L.R., 478 29 A.L.T., 10), affirmed.

APPEAL from the Supreme Court of Victoria.

On 28th March 1907, at the Court of Petty Sessions at Melbourne, an information was heard, whereby Thomas Graham,

5 CLR 189

inspector of the Latrobe Licensing District, charged Anthony Lucas that he, on 19th January 1907, then being the holder of an Australian wine licence within the meaning of the Licensing Acts, and then holding a licence for the licensed premises situate at 240 and 242 Collins Street, Melbourne, did permit certain liquor, to wit, stout, to be brought on the said licensed premises contrary to the said Acts.

It appeared from the evidence that, on 3rd December 1906, the defendant, who was the proprietor of a café, carrying on business in the above-mentioned premises, was granted a certifi- cate of renewal of his colonial wine licence for the ensuing year by the Licensing Court sitting at Melbourne; and that, on 19th January 1907, one of his waiters went out from those premises and purchased at a neighbouring hotel on behalf of a customer, who had provided the money for the purpose, some stout to be consumed, as it was consumed, by the customer at the café with a meal supplied by Lucas. It was contended for the defence that sec. 32 1 of the Licensing Act 1906 did not apply as Lucas was the holder of a colonial wine licence. The Court of Petty Sessions having dismissed the information, an order nisi to review their decision was obtained on the grounds that the holder of a colonial wine licence for the year…

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 Lucas v Graham

Details

AGLC: Lucas v Graham [1907] HCA 46
Case: [1907] HCA 46
Decision Date: 25 September 1907

CaseChat Overview and Summary

This case involved an appeal to the High Court of Australia from a decision of the Supreme Court of Victoria. The appellant, Anthony Lucas, was the holder of an Australian wine licence and was charged with permitting liquor other than wine to be brought onto his licensed premises. The liquor in question was stout, purchased by a waiter on behalf of a customer who provided the money for the purchase and consumed the stout on the premises with a meal. The Court of Petty Sessions had dismissed the information, but the Supreme Court made an order absolute to review that decision.

The legal issues before the High Court were whether section 32(1) of the *Licensing Act 1906* (Vic.) applied to liquor brought onto the premises for a customer's consumption rather than for sale by the licensee, and whether the section applied to a holder of a licence that was originally a "colonial wine licence" renewed after the commencement of the 1906 Act but before the Act's assent. The appellant contended that section 32(1) was limited to liquor intended for sale by the licensee and that his licence, being a renewed colonial wine licence, was not subject to the restrictions of the 1906 Act.

The High Court affirmed the judgment of the Supreme Court. The Court held that section 32(1) of the *Licensing Act 1906* was not limited to liquor intended for sale by the licensee or liquor owned by the licensee, but applied generally to any liquor other than wine brought onto the premises. Furthermore, the Court determined that section 31(1) of the 1906 Act effectively changed the name of a "colonial wine licence" to an "Australian wine licence," and section 32 imposed the same restrictions on holders of both types of licences, regardless of when they were originally granted. Therefore, the appellant, as the holder of a licence that was now an Australian wine licence, was subject to the prohibition against permitting other liquor to be brought onto his premises.

Orders