McGee and Wolfenden

[1907] HCA 1

946 HIGH COURT

[1907.

H. C. OF A. appellants desire to proceed with the inquiries pending the appeal,

and as proceedings under the judgment ô this Court have been

Baynestayed until further order they apply for the suspension of the

V.

stay. 1 think that in such cases the analogy of appeals to ttie High Court should be followed rather than that of appeals to the House of Lord.s.

B lake .

At first I was disposed to think that the removal of the stay would not prevent an independent application to the Supreme Court to stay proceedings. But on consideration I think that it would have that effect so far as the pending appeal to tlie King in Council was relied on as a ground for a stay, although it would not prevent a postponement of proceedings on special grounds.

At present I do not see any sufficient ground for removing the stay. The summons will be adjourned generally with leave to bring it on again if the parties are so advised.

Application refused.

Solicitor, for plaintiffs, F. S'. Stephen, Melbourne.

Solicitors, for defendants, Blake & Riggall, Melbourne.

B. L.

[H IG H COURT OF

A U ST R A L IA .]

McGEE I n f o r m a n t ;

WOLFENDEN

D e f e n d a n t s .

H . C. OF A.

1907.  Ex PARTE McGee,

M elbourne , S P E C IA L L EA V E TO A P PE A L .

March 12.

Griffith C.J.,

Lictm iw j Act 1906 [Viet.) {No. 2068), see. 91—S^mday— Hours during which sale

O’Connor, and Barton, o f liquor to public is prohibited— Person found on licensed 'premises— Special

Hig^ns JJ.

leave to appeal refused.

4 C.L.K.] OF AUSTRALIA.

947

Two persons having been found a t 4 p.ni. on a certa in Sunday on certa in licensed prem ises, th e licensee was prosecuted and convicted under sec. 91

H . C. o f A.

1907.

(3) of the Licenswr) Act 1906 for tl ia t be being such licensee, certain persons

'—•—'

were found on his premises on th a t Sunday. On order to review ,

Hoo<l3.

McGee

quashed the conviction, holding th a t sec. 91 was inapplicable, inasniuch as a W olfenden •

d istinction is draw n in th a t A ct and the Lieeminrj Act 1890 between Sunday E.x

parte

and “ the hours during which th e sale of liquor to the public is p roh ib ited ,”

Mc(iKE.

and th a t th a t phrase is lim ited to th e days o ther than Sundays, and to the hours of those days o ther than the hours specified in licences as those during which liquor m ay be sold. {McGee v. Wot/enden, (1907) V .L .R ., 195; ‘iS

A .L .T .,

103.)

Held (by a m ajority of the Court), th a t the case was not one in which special leave to appeal should be granted .

M o t io n for .special leave to appeal from a decision of the Supreme

Court of Victoria.

At the Court of Petty Se.ssion.s at Footscray, Albert T. Wolfen- deii was prosecuted on a charge, under sec. 1)1 (H) oi the Licevsintj Act 190(1, that he being the licensee of certain licensed premises, to wit, the Ship Inn at Footscray, certain persons were found on the .said premises on Sunday the 13th January 1907.

The evidence showed that two men were found by the police on the premi.ses in (juestion about 4 p.m. on the day mentioned.

The defendant, having been convicted and lined £2, obtained an order nisi to review tlie conviction which was made absolute by Hood J., wlio held tliat sec. 91 of the Lice-nsing Act 190(1 was inapplicaV)le to the case, inasmuch as a distinction is drawn in that Act and the Licensing Act 1890 between Sunday and “ the hours during which the sale of liquor to the public is prohibited,” and that that phrase is limited to the days other than Sundays, and to the hours of those days other than the hours specified in licences as those during which liquor may be sold : McGee v. Wolfenden (1).

The informant now moved for special leave to appeal to the High Court from that decision.

Liiffg K.C. (with him Meagher), for tlie applicant. The matter is one of great importance for, if the decision of Hood J. is right, the Licensing Act 1906 must be amended. The decision is not

(1) (1907) V .L .R ., 195 ; 28 A .L .T ., 163.

948 HIGH COURT

[1907.

H. C. OF A. cleai'ly right, but is probably wrong. The distinction which

existed in tlie Licensing Act 1890 between Sunday and “ tlie

McGee hours during which the sale of liquor to the public is prohibited ”

. is done away with by sec. 75 of the Act of 190(5. The learned Ex FAME Judg-e has misread the Act of 1906 in two instances:—The

___ ’ expres,sion “ during the hours when liquor may not be sold or di.sposed of to the public ” in sec. 22 must appl}̂ to Sunday, for the exception therein of persons being served with their meals between the hours of twelve and two and six and eight can only apply to Sunday; he omitted to notice that by virtue of sec. 185 of the Act of 1890, as amended by sec. 79 of the Act of 1906, the provisions as to Sunday trading apply to the persons excepted from sec. 76 of the Act of 1906, just as do the provisions of .sec. 128 of the Act of 1890 as to trading between the hours of 11..30

and the language .should not be strained. The two distinct ex­ pressions “ Sunday ” and “ the hours during which the sale of liquor to the public is prohibited” are used in secs. 80 and 81 of the Act of 1906, showing that the distinction is kept up in that Act.]

p.

m. and 6 a.m.

[Griffith C.J.—The meaning given by Hood J. to the words

On the other hand in sec. 22 the latter expression is used in such a way that it can only apply to certain hours of Sunday.

[H iggin.s j .—Counsel -has indicated two points in which, admittedly, the learned judge has mi.sread the Act; and I think the decision is not so clearlj ̂ right that we should refuse special leave to appeal.]

Griffith C.J.

A majority of the Court is of opinion that this

is not a case in which special leave to appeal should be granted.

Hpecial Leave to appeal refused.

Solicitor, for applicant, Guinness, State Crown Solicitor.

B. L.