Rolfe v Willis

[1916] HCA 26

21 CLR 152

COMPLAINANT,

ON APPEAL FROM THE SUPREME COURT OF Licensing- Permitting drunkenness on licensed premises- Presence of drunken

person on premises-" Reasonable steps to prevent drunkenness - -Drunken person entering premises-Liquor Act 1912 (N.S.W.) (No. 42 of 1912), sec. 46. SYDNEY, March 28,29;

Sec. 46 of the Liquor Act 1912 (N.S.W.) provides that "If any licensee permits drunkenness

to take place on his licensed premises, he April 11.

shall be liable for the first offence to a penalty not exceeding five pounds and for the second or any subsequent offence to a penalty not exceeding twenty pounds. Where any licensee is charged with permitting drunkenness on his licensed premises, and it is proved that any person was drunk on his premises, it shall lie on the licensee to prove that he and the persons employed by him took all reasonable steps to prevent drunkenness on the premises."

Held, that the phrase "reasonable steps to prevent drunkenness" means such steps as ought reasonably to be taken by Way of precaution against the occurrence of drunkenness on the premises under any circumstances that may reasonably be anticipated, and to prevent its continuance when its existence

Held, further, that failure to prevent a drunken person from entering licensed premises, or, if reasonable steps have been taken to prevent him from entering, failure to eject him within a reasonable time, is failure to take reasonable steps to prevent drunkenness, unless the failure to prevent his entry or the failure to eject him was under the circamstances justified by the obligations of humanity or by some other obligation which the law can recognize.

21 CLR 153

Special leave to appeal from the decision of the Supreme Court of New South Wales: Ex parte Rolfe, 15 S.R. (N.S. W.), 427, rescinded.

APPEAL from the Supreme Court of New South Wales.

At the Court of Petty Sessions at Cooma an information was heard whereby John Willis, inspector of police, charged that on 12th September 1915 George Rolfe, being the licensee of certain licensed premises, did permit drunkenness on his licensed premises. The defendant having been convicted, an order nisi was obtained by him for a prohibition, which was discharged by the Full Court Ex parte Rolfe 1.

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

The material facts are stated in the judgment hereunder. Blacket K.C. and Alec Thomson, for the appellant. Upon the evidence the Magistrate was bound to find that the appellant and his employees had taken "all reasonable steps to prevent drunkenness" on the licensed premises within the meaning of sec. 46 of the Liquor Act 1912. If he came to the conclusion that the evidence for the defence should not be believed, that conclusion was unreasonable. Reasonable steps to prevent drunkenness do not involve the immediate ejection from the premises of a person who, in spite of all reasonable steps to pre- vent the entry of drunken persons, comes upon the premises in a drunken state, where it is necessary for the protection of that person that he should be allowed to remain: Canty v. Buttrose 2. There was no justification for the Magistrate finding either that the steps which were taken to prevent that which happened in this case were unreasonable, or that other steps ought to have been taken to prevent it happening. [Counsel also referred to Mitchell v. Gascoigne 3.]

Lamb K.C. (with him Watt), for the respondent. The Magis- trate was not bound to accept the evidence for the defence either as to how the appellant came upon the premises or as to what

115 S.R. (N.S.W.), 427. 2(1912) V.L.R., 363; 34 A.L.T., 91. 36 S.R. (N.S.W.), 717. 21 CLR 154

happened afterwards. The permitting a drunken person to enter

the premises and the allowing him to remain there is evidence of failure to take reasonable steps to prevent drunkenness Thomp- son v. McKenzie 1. In this case the only question is one of fact, and special leave to appeal should not have been granted: Green v. Worley 2. [Counsel also referred to Hope v. Warbur- ton 3; Somerset v. Wade 4; Radford v. Williams 5.]

[RICH J. referred to Edmunds v.James 6; Young v. Gentle 7.] Blacket K.C., in reply. The offence aimed at by the first part of the section is permitting persons to become drunk on the premises. The use of the words "permitting drunkenness shows that the drunkenness must be such that the licensee could have prevented it, and, therefore, that the drunkenness must have been brought about on the premises. In the second part of the section the reasonable steps referred to are steps to prevent the particular person getting drunk, and in this case no reason- able steps would have prevented it. If that is not so, and the reasonable steps required to be taken are steps to prevent drunkenness generally, then the Magistrate could not, on the evidence, find that such steps had not been taken.

Cur. adv. vult. The judgment of the COURT was read by

GRIFFITH C.J. This is an appeal from a judgment of the Supreme Court of New South Wales, dismissing, by majority, an appeal from a summary conviction of the appellant, a licensed publican, for permitting drunkenness to take place on his licensed premises. The charge was preferred under sec. 46 of the Liquor Act No. 42 of 1912, which is as follows:-

" If any licensee permits drunkenness or any indecent, violent quarrelsome, or riotous conduct to take place on his licensed premises, he shall be liable for the first offence to a penalty not exceeding five pounds and for the second or any subsequent offence to a penalty not exceeding twenty pounds,

1(1908) 1 K. B., 905. 220 C.L.R., 418. 3(1892) 2 Q.B., 134. 4(1894) 1 Q.B., 574. 578 J.P., 90 ; 110 L.T., 195 ; 30 6(1892) 1 Q.B., 18. 7(1915) 2 K.B., 661. 21 CLR 155

Where any licensee is charged with permitting drunkenness on his licensed premises, and it is proved that any person was drunk on his premises, it shall lie on the licensee to prove that he and the persons employed by him took all reasonable steps to prevent drunkenness on the premises."

The case made against the appellant was that about 8 o'clock on Sunday evening, 20th September 1915, a married woman who lived in the neighbourhood of the appellant's licensed premises was found by the police in a state of helpless drunkenness in a stable, part of the premises. She was removed by them to a bedroom, with the consent of the appellant's daughter, and kept there until she had sufficiently recovered to be removed to her home. These facts were sufficient to bring the case within the second paragraph of sec. 46, and to cast upon the appellant the burden of showing that he and his employees had taken all "reasonable steps to prevent drunkenness on his licensed premises."

It was proved, and indeed not disputed, that neither the appel- lant nor any person employed by him had failed to take any reasonable step to prevent drunkenness from taking place on the premises, in whatever sense that phrase is used, unless failure to prevent the woman's original entry under the circumstances which we will state, or failure to have her forthwith removed, was in law a failure to take such steps.

If the matter were free from authority, we should have been disposed to think that the phrase "permitting drunkenness to take place" connoted that either the inception of, or some progress in, the drunken condition took place on the licensed premises. But this view is excluded by authority, by which, in view of the course of legislation, we are bound. (See Hope V. Warburton 1; Worth v. Brown 2 ).

In our opinion the phrase " reasonable steps to prevent drunkenness" means such steps as ought reasonably to be taken by way of precaution against the occurrence of drunkenness on the premises under any circumstances that may reasonably be anticipated, and to prevent its continuance when its existence is discovered.

161 L.J.M.C., 147 56 J.P., 328. 240 Sol. J., 515; 63 J.P., 658. 21 CLR 156

It would seem to follow, as was indeed indicated in the case of Hope v. Warburton, that merely permitting a drunken person to remain upon the premises may be sufficient proof of permitting drunkenness to take place upon them. In such a case, therefore, failure to cause the ejection of the drunken person within a reasonable time would be a failure to take reasonable steps to prevent drunkenness, unless such failure to eject was under the circumstances justified by the obligations of humanity or some other obligation which the law could recognize. Similar con- siderations apply to the original admission of a drunken person.

The question of what is a reasonable time for ejecting must depend upon the circumstances.

This appears to have been the view taken by Williams J. in the case of McRobie v. Bowden 1 and by Cooper J. in Agnew v. Matthew 2.

The appellant called witnesses to show how the woman came to be in the stable, His groom deposed that she had twice opened a latched gate in the outer fence of the appellant's premises, separating them from a lane, and staggered into the yard, where he, after once turning her out, had on her second entry laid her on a heap of hay in the stable to rest until she could be removed. It appears on this statement that the groom, for whose actions the appellant is responsible, finding the woman in the yard, did not at once eject her, and in that sense failed to prevent her continued presence upon the licensed premises.

It is suggested that the Magistrate did not accept the story of the groom. He was, of course, at liberty to accept any part of it which he believed, and to rejectuny part which he did not believe.

The real question, therefore, for decision is whether the appel- lant succeeded in showing that the groom took all reasonable steps to prevent the woman's coming upon the premises in a state of drunkenness, or, if he did, whether he failed to take all reasonable steps to prevent her remaining there in that state. This is a question of fact, and not of law. It is not the practice of the Court to grant special leave to appeal where the decision of a Magistrate upon a question of fact is impeached by statutory prohibition.

124 N.Z.L.R., 10. 233 N.Z.L.R., 225. 21 CLR 157

The special leave will therefore be rescinded.

Special leave to appeal rescinded. Solicitor for the appellant, F. F. Mitchell, Cooma, by P. B. Colquhoun &King.

Solicitor for the respondent, J. v. Tillett, Crown Solicitor for New South Wales.

[HIGH COURT OF AUSTRALIA.]

THE COMMISSIONER OF TAXES FOR

CURRIE AND OTHERS

RESPONDENTS.

PLAINTIFFS AND DEFENDANT,

ON APPEAL FROM THE SUPREME COURT OF SettlementDutyTrusts to take effect on death of settlor-" Property comprised

in such settlement"-Alteration of property settled-Locality of property- Administration and Probate Act 1890 (Vict.) (No. 1060), sec. 112- Adminis- tration and Probate Act 1903 (Vict.) (No. 1815), secs. 9, 15, Sched. 2.

Sec. 112 of the Administration and Probate Act 1890 (Vict.), as amended by the Administration and Probate Act 1903 (Vict.), provides that 66 Every settle- ment of any property made on or after the 16th day of December 1870 by any person containing trusts OT dispositions to take effect after his death, shall upon the death of the settlor be registered within the prescribed time such trusts or dispositions shall be valid unless such settlement be SO regis- tered. No settlement shall be registered unless the trustees or some other person interested under the settlement have filed a statement setting forth