ON APPEAL FROM THE SUPREME COURT OF Sunday entertainment - Charge for admission- - " Place " Pertion of room railed
off and charge for admission to it - Entrance to rest of room ree-Advertising entertainment-21 Geo. III. c. 49, secs, 1, 3. May 29, 31;
The Act 21 Geo. III. c. 49 is in force in Australia. In a large room a public entertainment within the meaning of 21 Geo. III. e. 49 was given on a Sunday. Portion of the room, containing about two. fifths of the sitting accommodation, was railed off, and in this portion the Sept. 3, 4, 13.
seats were more comfortable than those in the rest of the room, and it was the best part of the room for hearing and seeing the entertainment. The only entrance to the railed off portion of the room was from the other portion. There was only one entrance to the room from the outside, and any person Higgins JJ.
might enter there without payment and participate in the entertainment, but a charge was made for entering the portion of the room which was railed off.
Held (Isaacs and Higgins JJ. dissenting) that neither the room itself nor the portion of it railed off was "a house, room, or other place, or used for public entertainment or amusement" upon Sunday and to which persons" were "admitted by the payment of money," within sec. 1 of 21 Geo. III. c. 49, and, also, that the advertising of an entertainment to be given under such circumstances was not within sec. 3 of that Act.
Judgment of Chomley J.: Cawsey v. Scott, 28 A.L.T.. 112, reversed.
An action was brought in the Supreme Court by Henry Cawsey against Ebenezer Erskine Scott to recover penalties under the Act 21 Geo. III. c. 49. The plaintiff alleged that the defendant was on three several Sundays " the keeper of a house, room, or place in Fitzgerald's Circus Building situate at South Melbourne which was then opened or used for public entertainment or amusement and to which persons were then admitted by the payment of money or by tickets sold for money." For this the plaintiff claimed a penalty of £200 in respect of each Sunday. Alternatively the plaintiff claimed a penalty of £100 from the defendant for managing or conducting such entertainment, or, alternatively, a penalty of £50 for receiving money or tickets sold for money for such entertainment. A further penalty of £50 was claimed for advertising such entertainment on two of the Sundays. The defence was a general denial.
In reference to the advertisements it was proved that at one of the entertainments a reflection was thrown by a lantern on a screen showing a notice stating that on the next Sunday a similar entertainment would be given.
The other facts are sufficiently set out in the judgments here- under.
Chomley J., who heard the action, gave judgment…
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.
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AGLC
Scott v Cawsey [1907] HCA 80
Case
[1907] HCA 80
Decision Date
CaseChat Overview and Summary
The case of *Scott v Cawsey* involved an appeal to the High Court of Australia from a decision of the Supreme Court of Victoria. The plaintiff, Henry Cawsey, had sued the defendant, Ebenezer Erskine Scott, seeking penalties under the Imperial Act 21 Geo. III. c. 49 (the Sunday Observance Act 1780). Cawsey alleged that Scott was the keeper of a place used for public entertainment on Sundays to which persons were admitted for payment, and also for advertising such an entertainment.
The legal issues before the High Court were whether the defendant's establishment constituted a "house, room, or other place" within the meaning of section 1 of the Act, and whether persons were admitted to such a place by the payment of money or by tickets sold for money. Additionally, the court considered whether the advertising of the entertainment fell within the scope of section 3 of the Act. The core of the dispute revolved around the interpretation of "admission by payment of money" in circumstances where a general entertainment was free, but a portion of the venue offering enhanced comfort was subject to a charge.
A majority of the High Court, comprising Griffith C.J. and Barton J., allowed the appeal, overturning the Supreme Court's judgment. Their Honours reasoned that the Act required the place of entertainment itself to be one to which admission was charged. In this case, the entire hall was open to the public free of charge, and the payment was for a reserved seating area within the hall, not for admission to the entertainment itself. They found that the reserved section did not constitute a separate "house, room, or other place" for the purposes of the Act, and that charging for extra comfort after free admission to the entertainment did not contravene the statute. This reasoning was supported by the English case of *Williams v. Wright*. Isaacs and Higgins JJ. dissented, finding that the railed-off portion could be considered a distinct "place" to which admission was charged, thus falling within the Act's prohibitions.
The High Court ordered that the appeal be allowed and the judgment of the Supreme Court of Victoria be reversed. Consequently, the plaintiff's claim for penalties was dismissed.