Spencer Investments Pty Ltd v Evans

Spencer Investments Pty Ltd (the appellant) sought a grocer's licence for premises in the licensing district of Malvern. The application was opposed by F. H. Evans and others (the respondents). The Licensing Court approved the grant of the licence, subject to conditions. The objectors appealed to the Supreme Court of Victoria by way of a case stated, arguing that the Licensing Court lacked the power to grant the licence due to a prior local option poll. The Supreme Court upheld this argument, and the appellant appealed to the High Court of Australia.

The central legal issue before the High Court was whether a resolution for the reduction of licences, carried at a local option poll in 1920, imposed a permanent restriction on the Licensing Court's power to grant new grocer's licences in the Malvern licensing district, notwithstanding subsequent legislative changes and alterations to district boundaries. Specifically, the court had to determine if the provisions of the Licensing Act 1928, including section 288 which set a numerical limit on licences based on the number existing on 1 January 1917, were affected by the prior local option poll and the subsequent reduction order made by the Licensing Court.

The High Court, in allowing the appeal, reasoned that the relevant legislation, particularly the Licensing Act 1928, did not contain any express provision that continued the effect of the 1920 local option poll to impose a permanent numerical limitation on the granting of new licences. While section 2 of the Licensing Act 1928 preserved certain actions taken under repealed legislation, it did not preserve the legal consequences of a public general nature flowing from a local option poll. The court found that the provisions under which the poll was taken and the subsequent reduction order made had been repealed by the Licensing Act 1922 without any saving provision that would continue their effect. Furthermore, the court noted that section 288 of the Licensing Act 1928 explicitly stated that the number of licences should not exceed the number on 1 January 1917, "subject to the express provisions of this Act," and no such express provision existed to maintain the restriction imposed by the 1920 poll.

The High Court reversed the decision of the Supreme Court of Victoria. It ordered that the appeal be allowed, the order of the Supreme Court be discharged, and that the determination of the Licensing Court be affirmed. This meant that the Licensing Court had the power to grant the grocer's licence to Spencer Investments Pty Ltd.