Otzen v Beabout - [1947] HCA 49

RESPONDENT. DEFENDANT, National Security-Prices control-Declared goods-Hotel and business carried on

therein owned by company-Liquor-Sale - by barmaid at price greater than fixed maximum priceOffence-Liability of licensee--Barmaid and licensee employees SYDNEY,

of company-National Security (Prices) Regulations (S.R. 1940 No. 176- Dec. 4, 12.

S.R. 1946 No. 93), reg. 29 (1) (a), (3)-Liquor Act 1912-1946 (N.S.W.) (No. 42 of 1912-No. 34 of 1946), ss. 15, 43.

A hotel was owned and the business therein was conducted by a company which employed a manager and a barmaid. The manager was the licensee of the hotel under the Liquor Act 1912 (N.S.W.). On the barmaid selling some whisky at a price greater than the maximum price fixed under the National Security (Prices) Regulations an information was laid against the licensee for a contravention of the regulations. The information was dis- missed on the ground that the sale made by the barmaid was a sale by the company and not by the licensee. Upon appeal,

Held, that although the barmaid was the servant of the company she was, by presumption under S. 43 of the Liquor Act 1912 (N.S.W.), the agent of the licensee and, in the circumstances, it was on his behalf, within the meaning of reg. 29 (3) of the National Security (Prices) Regulations, that she sold the whisky, and that therefore the magistrate's decision was erroneous.

CASE STATED.

In an information laid by Ernest Otzen, an officer of the Depart- ment of Trade and Customs, it was alleged that on or about 4th October 1946, at Medlow Bath, New South Wales, William Keith Beabout, of the Hydro Majestic Hotel, Medlow Bath, did contravene a provision of the National Security (Prices) Regulations made in pursuance of the National Security Act 1939-1946 and that contrary

75 CLR 117

to reg. 29 of those regulations he did sell in the lounge of the said hotel declared goods to wit spirituous and fermented liquors, being one nip of 'Old Crony Australian whisky and one 8 oz. glass of beer at a price, namely 2s., being a greater price than the maximum price, namely 1s. 11d. fixed in relation to those goods under the regulations for the sale of those goods.

Regulation 29 of the National Security (Prices) Regulations provides, so far as material, as follows '(1) A person shall not (a) sell or offer for sale any declared goods at a greater price than the maximum price fixed in relation thereto under these regulations for the sale of those goods

(3) For the purposes of this regulation, any person on whose behalf or at whose place of business any declared goods are sold or offered for sale at a greater price than the maximum price fixed, in relation thereto, under these regu- lations, for the sale of those goods, whether the goods are sold or offered for sale contrary to the instructions of the person or not, shall be deemed to have contravened the provisions of this regula- tion, unless the court…

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 Otzen v Beabout

Details

AGLC: Otzen v Beabout [1947] HCA 49
Case: [1947] HCA 49
Decision Date: 12 December 1947

CaseChat Overview and Summary

This case involved an appeal to the High Court of Australia concerning a charge laid against William Keith Beabout, the licensee of the Hydro Majestic Hotel, for contravening the National Security (Prices) Regulations. The alleged contravention was the sale of liquor at a price exceeding the maximum fixed by the regulations. The sale was made by a barmaid employed by the company that owned the hotel, not directly by Beabout. The magistrate had dismissed the information, finding that the sale was by the company and not by the licensee.

The legal issues before the High Court were whether the barmaid's sale of liquor at an excessive price constituted a contravention of regulation 29 of the National Security (Prices) Regulations by the licensee, Beabout, and whether the magistrate's decision to acquit was erroneous in law. Specifically, the court had to determine if the barmaid was acting "on whose behalf or at whose place of business" the declared goods were sold, within the meaning of regulation 29(3), and how the provisions of the Liquor Act 1912 (N.S.W.) interacted with the federal regulations.

The High Court held that the magistrate's decision was erroneous. Applying section 43 of the Liquor Act 1912 (N.S.W.), which presumes that a person selling liquor is either the licensee or the agent or servant of the licensee, the court found that the barmaid, although a servant of the company, was, by legal presumption, acting as the agent of the licensee, Beabout. Therefore, the sale was deemed to have occurred on Beabout's behalf for the purposes of regulation 29(3) of the National Security (Prices) Regulations. The court reasoned that the Liquor Act establishes the licensee as the authorised seller of liquor, and any sale by an employee on the licensed premises is presumed to be under the licensee's authority, even if the employee is also a servant of the hotel owner. The court noted that the exculpatory provisions of regulation 29(3) indicated that actual knowledge or complicity was not required for liability under that sub-regulation.

The High Court allowed the appeal, set aside the magistrate's order of acquittal, and remitted the information to the stipendiary magistrate to be dealt with according to law.

Orders