Sweeney v Fitzhardinge

[1906] HCA 73

716 HIGH COUliT

[1906.

H. G. OF A

Appeal allowed with coxts. Order appealed

1906.  fi'om dixcharged %rith. cuxtx. Rule ah-

G u k v il u c

xolute to evter judgincnt for the. p la in­

r.

tiff iv it! i costs for .£’829 14-s'.

xabject

WiT.LTAMS.

to an agreement signed by counsel and

filed in Court.

Foil

Solicitors, for the appellant, Aitken & Aitken.

i f *

Solicitor, for the respondent, The Crown Solicitor of New

Refd to

South Wides.

Stamps, .

Commissioner

Refd to

Teleffxtph

Cons

Stamps. Hooper V C. A. W.

fnvestmeni Co C om rots

(1995) 133

Territory

ALR130

Investment CoTcUfftiii

Insurance

(1995) 184

Office (2002)

CLR453

ITNTLR 182

Cons

Le Blanc v

Old TAB Lid

p̂003] 2 OdR

[HIGH COURT OF AUSTRALIA.]

SWEENEY

7\.1>I’EI.L.\XT :

FITZHARDINGE AND OTHERS .

R e s p o n d e n t s .

ON APPEAL FROM TH E SUPREM E COURT OF

NEW SOUTH WALES.

H. C. OF A, Liquor Acl {N'.S. IF.), {Xo. 18 o f 1898), sec. 108 — Liquor (Ameiidmeul] Act

1906.                  [N.S. IF.), {Xo. 40 o f 1905), sec^. 46-52—lieqintratioii o f club—Appeal to Quarter Sesfiions from an order o f Licensinq Court — lie-hearing.

S y d n k y ,

The Liquor {Amendment) Act 1905, which was passed for the purposes, Wor. 21, 22, amongst others, of making fresh provision for the control of the sale of liquor

23, 27.in houses licensed under the Principal Act, and also for placing cliib.s in which

Griffith C.J., liquor was sold on a footing analogous to tha t of licensed houses, gives the

Barton and

Licensing Courts iurisdiction to deal with the registration of sucli clubs, and to

Isaacs

JJ .

make orders in respect thereof. Sec. 1 provides th a t the Act sliall be “ con­ strued with the Liquor Act 1898” thereinafter referred to as tlie Principal Act.

Sec. 108 of the Liquor Act 1898 provided tha t “ Any person aggrieved by any adjudication of a Licensing Court . . . made under this A ct,” subject to certain exceptions, inaj’ appeal to the Court of Quarter Sessions, which “ shall have power to hear and determine the m atter of the appeal in a

4 C.L.K.] OF AUHTKALIA.

717

summary way, and shall and may exercise all the powers conferred by sec. .1

H. C. OF A.

of the Act 5 Wm. IV'. No. 22,” and the InterprttaUon Act 1897, sec. 12, pro­1906.

vided that every Act amending an Act should be construed with the amended

Act and as part thereof, unless the contrary intention should appear in the

SWEKNEV

V.

amending Act.

F it z -

H.4RDINOE.

Held, th a t the Liquor {Amendment) Act 1905 should be construed as part of the Liqtior Act 1898, and therefore, by sec. lOS of the la tter Act, an appeal lies to Quarter Sessions from an order made by a Licensing Court under the former Act, granting registration to a club.

'I’he omission of the words “ and as part thereof” from sec. 1 of the amemiing Act is not sufficient to show a “ contrary in ten tion” within the meaning of sec. 12 of the Interpretation Act.

Held, further, that such an appeal should be by way of rehearing, and, therefore, the reception of fresh evidence by the Court of Quarter iSessions is not objectionable provided th a t it is restricted to the issues raised before the Licensing Court.

The legislature having given the Court of Quarter Sessions a new appellate jurisdiction must be taken to have intended th a t th a t jurisdiction should be exercised according to the established mode of procedure in appeals befoie that Court.

Decision of the Supreme C o u rt: Ex parte Sweeney, (1906) 6 S. R. (N.S.W .), 146, affirmed.

A p p e a l from a decision of the Supreme Court of New South

Wales.

The appellant, who was secretaiy of a Workmen’s Club, ajiplied for ti certificate of registration of the club under Part V. of the [Aqavr (Amendment) Act 11)05, sec. 4(1. Certain objections were lodged, and tlie application came before the Licensing Court in accordance with sec. 49. The Court, after inquiry, granted the application and a certificate was issued. Two of the objectors appealed from this order to the Court of Quarter Se.ssions for tlie ilistrict, and tlie appeal came on for hearing before Fitzhardinge, District Court Judge and Chairman of Quarter Sessions, who held that an appeal lay under sec. 108 of the Liquor Act 1898, dealt with the appeal as a rehearing of the whole matter, in accordance with the usual practice in appeals to Quarter Sessions, and allowed the appeal.

'Phe appellant then applied to the Supreme Court for a writ of certiorari to remove the order of the Chairman of Quarter

718 HIGH COURT

[1906.

H.C. OF A.Sessions into tlie Supreme Court to be quashed, or in tlie alter­

1906. native, for a prohibition, on the grounds, inter alia, that the

SwEliNEYCourt of Quarter Sessions had no jurisdiction to entertain an

V.

F it z -appeal from the granting of an application for registration of a

HARDINOIi.club; that there was no jurisdiction to hear the appeal as a

rehearing; and that on the hearing of the appeal evidence was received of matters arising subsequently to the hearing bj>- the Licensing Court.

The Supreme Court, after argument, refused the application, discharging with costs the rule nisi that had previously been granted: Ex j>arte Sweeney {\).

It was from this decision that the present appeal was brought, by special leave, the respondents being the learned Chairman of Quarter Sessions and the two objectors who had appealed from the Licensing Court in the first instance.

A motion by L. Armstrong to rescind the special leave was

allowed to stand over to be argued on the appeal.

Piddingtun {Curlewis and E. M. Mitchell with him), for the appellant. Where a Statute establishes a new Court or confers a new jurisdiction upon a previomsly exi.sting Court, there is no right of appeal unle.ss it is expressly conferred: Hardcastle on Statutory Law, 3rd ed., p. 139; Attorney-General v. Sillem (2); The Queen v. Stock (3). Sec. 108 of the Liquor Act 1898 refers only to adjudications under that Act, not to decisions of the Licensing Court under Part V. of the Act of 1905. That Part is more than a mere amendment of the original Act. By it clubs are dealt with and regulated for the first time, and no mention is made of appeals. The only limitation upon the life of a certificate of registration is that it may be suspended or can­ celled. [He referred to secs. 9, 13, 23, 41, 53 of the Liquor Act 1898, and secs. 1, 5, 42, 43, 48, 49, 55, 57 and 59 of the lAquor (Amendment) Act 1905.]

The decision of the Licensing Court in granting an application for a certificate is not an adjudication. The Court is not acting

(1) (1906) 6 S.R- (N.S.W .), U6.

(2) 10 H .L.C., 704.

(S) 8 A. & E ., 405.

4 C.L.K.] OF AUSTRALIA.

719

as a Court of summary jurisdiction, but in an administrative

H. C. OF A.

capacity: Reg. v. Sliarmun (1).

1906.

[G r i f f i t h C.J.—That case has been dissented from once or

SWEESEY

V.

twice since.]

F it z -

[Flannery, for the respondents, referred to The Queen v. Justices

H.ARDINGE.

of Manchester (2), and The Qaeen v. Boivman (3).]

The fact that the Court is constituted a Court of Record does not prevent it from acting ministerial]}’’ in certain kinds of proceedings. In these cases it can act upon inquiry, not only upon evidence.

[ B a r t o n J.—Is there not a distinction between the nature of

the Licensing Bench in England and the Licensing Courts under these Acts ? The former could take evidence not on oath. That does not appear to be witliin the power of the Licensing Courts liere.]

It appears from sec. 57 tliat the Court can act on evidence not on oath. Sec. 58 makes special provision for evidence on oath, where it is intended that it should be so taken in an application for cancellation of registration. If regi.stration is wrongly granted it is subject to cancellation after proper inquiry ; and under sec. 58 new matter would be brought forward by the inspector. [He referred also to secs. 28 and G4, and to the Clubs Act (Eng.) 2 Edw. VII., c. 28.] There is no machinery for the entertaining of an appeal; the materials that were before the Licensing Court can­ not be brought before the (]>uarter Se.ssions, and, if the latter Court did entertain an appeal, they could not give etfect to the judgment. In England the Appeal Court is empowered to make the order that the Licensing Bench could have made.

[G r i f f i t h C.J.—But if it appears that a right of appeal is

given, then everything necessary to make the appeal effectual

will be taken to have been also given.]

If an appeal had been contemplated the legislature would have expressed its intention to grant it. The fact that the decisions of the Licensing Court in its ordinary jurisdiction were subject to appeal is not sufficient reason for holding that, when a totally new sphere of action is opened to it, its decisions in the new sphere are also to be subject to appeal.

(1) (IS98) 1 Q.R., 57S. (2) (1899) I Q.B., 571.

(3) (1898) 1 Q.B., 06.3.

720 HIGH COURT

[190G.

H. C. OF A.[G r i f f i t h

C.J. referred to

Great Fingall Covsotidafed Ltd. v.

1906.        Slteehim (1).]

SWKENFV

Tlie Act of 1905 cannot be read as part of tlie Act of 1898 in

■

V.

F it z - such a way as to bring- adjudications under it within sec. 108 of

HARDINGE.the Principal Act. Sec. 12 of the Interpretation Act 1897 does

not apply, first, because the Act of 1905 is not a mere aniending Act, and, secondl} ,̂ because the words of sec. 1 exclude the opera­ tion of tlie Interpn'ctation Act, and limit the extent to which the aniending- Act is to be read in connection with the Principal A ct; the words “ as part thereof ” are excluded.

Even if there is an appeal to Quarter Sessions, it is not by way of rehearing, but an appeal in the strict sense, and no new material can be considered. There is no analogy between the decisions of a Licensing Court under this Part and tho.se of jus­ tices sitting in the ordinary way. The Licensing Court is specially constituted for a .special purpose. [He referred to Ponnamma v. Arumogam (2); Re TP. S. Hill (8); Bragg v. McCulloch (4); Ex parte Jefferis {5)\ Clancy Batchers’ Shop Employes Union aw l others (6); Mining Art (87 Viet. No. 18, sec. 106.] The words “ in a summary w ay” in sec. 108 do not mean by way of rehearing, but nierelj ̂ without a juiy, without the formality of an indictment by the Attorney-General, &c. [He referred to 5 Geo. II. c. 19; 4 Geo. IV. c. 96; 6 Geo. IV. No. 9 ; 2 Geo. IV. No. 13; 5 Geo. IV. No. 3; 8 Geo. IV. No, 5, sec. 10 ; The Qaeen v. Pilgrim (7).]

[ G r i f f i t h C.J.—But supposing that an appeal is given, and

there is no jirovision as to the procedure on the hearing of the appeal, who is to settle the procedure but the appellate Court

itself ?

There is no appeal from it.]

It cannot take evidence again if the power to do so is not conferred upon it. The admission of fresh evidence was really an exercise of original jurisdiction. [He referred to In re Farrar (8).]

Bolin, Armstrong and Flannery, for the respondents.

This is

(I) 3 C .L.R., 176.(5) 3 N .S.W . W .N ., 109.

(-2) (1905) A U., 383.(6) I C .L .R ., 181.

(3) 2-2 N.S.W . W .N ., 117.(7) L.R. 6 Q.B., 89.

(4) 15 N.S.W . W .N ., 31.

(8) 16 N .S.W . L.R. (B. & P.), 3.

4 C.L.ll.J

OF AUSTRALIA.

H. C. OF A.

not a case in wliicli special leave should have been granted.

It

1906.

has no general importance, as it merely involves the que.stion

whether this particular club should be registered. It does not

S W E E X E V

t.

affect other clubs, and therefore the special leave should be

F it z -

rescinded : Baj/naU v. Wh.ite ( 1).

H A R D I S f iK .

[ O iU F F iT H C.J.—Tliat case involved merely a question of

jirocedure, this case involves other points, including a very important (juestion of construction. i\roreo\er, the amount

involved is uncertain.

It may be more than £800.]

Assuming that tliere is a riglit of appeal, it is by way of reliearing. I’lie appellate Court may regulate its own practice witli regard to the liearing of an appeal, and it will not be inter­ fered with unless it is manife.stly unju.st. Courts of Quarter Sessions had long established the practice of dealing with appeals by way of rehearing. 5 Wm. IV. No. 22, sec. 8, which was adojrted in sec. 108 of the Li(juor Act 1808, does not in any waj' limit the power of Courts of Quarter Sessions, and consequently sec. 108 incorporates in the most general way the appeal from justices to Quarter Sessions. It is to be presumed that the appel­ late Court will have the .same powers in entertaining the new class of appeals as it had in its former jurisdiction, without any exi)ress provision to that effect: Ihde^’ Case ; Enraght’s Case (2); Great Fingall Consolid((ted Ltd. v. Sheehan (8). [They referred also to Paley on Summary Conviction. ,̂ 8th ed.,pp. 807, 398 ; The King V. Sonthanvpfon Licensing Justices; Ex parte Cardy (4) ; Walsall Ovenseers v. Ijondon and N̂ orth TlVstern Railway Go. (5); Breedon v. Gill (0); The Queen v. Pilgrim (7); 5 Geo. II. c. 19; 22 tV 28 Car. II. c. 2.5; 2 Viet. No. 18, sec. 76; 18 Viet. No. 29, sec. 77 ; 25 ^Tct. No. 14-, sec. 60.]

An appeal is clearly given by sec. 108 of the Liquor Act 1898. Sec. 1 of the amending Act provides that it is to be read with the Principal Act, and therefore an adjudication under the Act of 1905 is an adjudication under the Principal Act within the mean­ ing of sec. 108 of the latter Act. If there were anj- doubt it is

removed b}’ sec. 12 of the Interpretation Act.

The Act of 1905

(1) 4 C .F.R ., 8f).(5) 4 App. Cas., 30, a t p. 40.

(•2) 6 Q.K. 1)., 376, a t p. 450. (6) 1 Ld. Rayin. 219.

(.3) 3 C .L K ., 176.(7) L.R. 6 Q.B., 89.

(4) (1906) 1 K .R , 446.

von. IV.

722 HIGH COURT

[1906.

H. C. OF A. is an amending Act within the meaning of tliat section. It cannot

be said tliat the contrary intention appears in sec. 1 of the

S w e e n e y amending Act merely because of the omission of the words “ and

Fri-z part thereof.” The object of sec. I is to make it clear that the HARDiNGE. Act is ail amending Act, and to indicate the Act which is to be regarded as the Principal Act. It incorporates the common law principle of construction that Acts in par i materia are to be read together as far as possible : Hardcastle, Statutory Latv, 3rd ed., pp. 147, 148: WaterlovL' v. Dobson (1). Sec. 12 of i\\e Interpreta­ tion Act requires that the two Acts shall be read as if they had been printed together unless the contrary intention appears. If the Acts are not read together there is no means of knowing the nature of the Appellate Court, its powers and practice. If it is admitted that the other parts of the amending Act are to be read with the Principal Act, there is no valid reason for excluding Part V. The mere arrangement of the Act cannot show a con­

trary intention.

[They referred to Norris v. Barnes (2).]

The granting of a certificate of registration is an adjudication. All the requisites are present, parties, power to make an order, and power to award costs. Reg. v. Sharman (3) has not been ajiproved; moreover, the Licensing Committee in England is a different body from our Licensing Court. Sec. 108 speaks of the refusal of a certificate to an hotel as an adjudication, implying that the grant of such a certificate is also an adjudication. Why, then, should the grant of a certificate to a club not be an adjudi­ cation ? There is nothing to suggest that evidence may be taken

otherwise than on oath in open Court.

[They referred to .secs.

57 and 64.]

The Court is a Court of Record : sec. 9, sub-sec. 5.

The power to direct an inquiry is not out of keeping with its judicial character. The result of the inquiry could be brought before the Court on oath.

As to the Avrongful reception of evidence, certiorari does not lie for such a mistake on the part of the Court, it will only go for excess of jurisdiction : Colonial Bank v. Willan (4). There

i.s nothing before thi.s Court to show that evidence wa.s wrongly

(1) 8 El. & Bl., 585; 27 E..».Q.B.,	(3) (1898) 1 Q.B., 578.
5.	(4) L.R. 5 P.C., 417.

(2) L .R . 7 Q.B., 537.

i C.L.K.l

OF AUSTRALIA.

udmitted or that any improper issue was dealt with by the C-

of a

Appeal Court; the only question raised and decided was whether

this was a homt fide club or not. On that point evidence was

S w e e n e y

admissible, whether it dealt with matters arising .subsequent to

F it z ­

the original hearing or not.

h a r d i n g e .

[B akton J. r e fe r re d to The King v. Excise Commissioners (1).]

Piddington, in reply, referred to In re Engla/nd (2) ; Tlie King v. Inhabitants of Newbury (3 ) ; and on the ijue.stion of

costs to Fwg. V. Thornton (4).

[Griffith C.J. referred to Madher v. Brotvn (5).

I saacs J. referred to Act No. 22 of 1905.]

Cur. adv. vult.

G r if f it h C.J. This case raises for decision two questions of November ■

2mi,

considerable importance. I'he first is whether an appeal lies to Quarter Sessions from the granting of registration of a club b}" a Licensing Court, and the second, whether, if an appeal lies, the case is to be dealt with by way of rehearing or upon the evidence that was before the Court below. The ijuestions arise in regard to tlie Liquor ^ct 1898 and tlie amending Act of 1905. The principal Act provides, amongst other things, for the establish­ ment of a Court called the Licensing Court. See. 5 provides that the Licensing Courts for the purposes of the Act shall be composed of appointed and official membei's, and shall be con­ stituted in a certain manner. The Courts are to consist of seven members in Sydney and three in the country districts. Each of the members becomes by virtue of his office a justice of the peace, if he was not one before, and holds office for three j-ears. Sec. 6 provides that the Licensing Court shall be a Court of record, with power to make rules for the conduct of its business and the enforcement of its orders, adjudications, and convictions. The Court is to ha\ e a seal, and the Chairman may administer oaths kc., and take depositions in any proceeding before the Court. Then follow various provisions as to the procedure before the Court, and other parts of the Act confer various powers upon it. Sec. 108 provides: [His Honor read the section and con-

(1) M. & s., 1.33.

(4) 07 L.J.Q.B., 249.

(•2) 13 N..S. W. L.R., 121.(.5) I C.P.l)., 596.

(3) 4 T.K., 47.5.

HIGH COURT

[1906.

H. C. OF A. tinned.] Sec. 45 provides tliat any penson who sells liquor with­

out holding a licence authorizing him to do so shall, subject to

S w e e n e y

certain exceptions, be liable to penalties. Sec. 18, sub-sec. 5,

V.

Fnz-provides that that provision shall not extend to any person selling HAEDiNCE. liquor in a club house to members of the club or their guests, in (iiifflth C.J. premises of which the memliers “ are the bond fide owners or

lessees.” That Act, therefore, has no application to clubs ; they are entirel} ̂ free from restriction, and there is no prohibition of the .sale of liquor in them.

Then in 1905 the legi.slature determined to amend the Act of 1898, and by an Act No. 40 of 1905, which is entitled “ An Act to amend the law relating to the supply of intoxicating liquor, to regulate the supply of liquor by clubs ; to make better provision for the exercise of local option with regard to the supply of intoxicating liciuor; to aineiid the Liquor Act 1898 ; and for other purposes conse(juent thereon and incidental thereto,” it Avas in the first place enacted that sec. 18 sub-sec. (5) of the principal Act should be repealed, and then various provisions Avere made for the regulation of clubs. In effect the legislature undertook to deal Avith clubs in Avhicli licpior is sold, and to bring them under the same general laAvs as hotels or licensed premi.ses. The provisions, of course, are not the same in Avords, but the legislature under­ took to regulate the Avhole subject of clubs, and the scheme was, in short, tliat every club should be registered. Various conditions Avere laid doAvn as to tlie kinds of clubs that might be registered. If a club desired to be registered, the secretary Avas to give notice to the clerk of the Licensing Court of the District. A copy of

the application aa

'us to be submitted to the inspector for imjuiry

and report, and objections might be lodged. If no objection Ava.s lodged, the clerk granted the club a certificate of registration. But if an objection Avas lodged, it Avas provided by sec. 49 that the matter of the application should be dealt Avith by the Licensing Court. By ,sec. 50 it Avas provided that at the hearing of the application, objections miglit be taken by certain persons men­ tioned upon any one or more of certain specified grounds. There are, in all, thirteen different grounds of objection. By sec. 52 it is provided that Avhen an application for registration of a club is granted, a certificate of registration under the hand of the Clerk

4 C.L.R.] OF AUSTRALIA.

725

of the Court sliall be i.ssued to the club, for which a pre.sci-ibed

H. C. OF A.

fee is payable, according to the number of members in the club.

1906.

Sec. 58 provides that when an application for a certificate or

S w e e n e y

r.

renewal is refused the Chairman of the Court shall pronounce

F it z ­

the decision in open Court, stating the grounds of tlie refusal,

h a r d i n g e .

and shall cause the grounds to be entered on the records of the

Griltith C.J.

Court.

In the present case the appellant, the secretary of a club, applied to the clerk for registration, and objections were lodged. After hearing evidence the Licensing Court granted the applica­ tion for registration. From that decision the‘objectors appealed to the learned Chairman of Quarter Se.ssions, who, after rehear­ ing the case on fresh evidence, allowed the appeal and refused registration. The appellants applied to the Supreme Court for a certiorari, which was refused, and from that decision the present appeal is brought to this Court.

The first question is whether an appeal will lie from a Licensing Court to the Quarter Sessions. 8’here is no doubt that, as a general rule, an appeal will not lie from a Court unless an appeal is given by Statute, and usually, when a new Court is created and no appeal is given, f a c i e no appeal will lie. The (jue.stion is whether an appeal lies from the decision of a Licensing Court given under the Act of 1905. In order to support the contention that an appeal does lie, it is necessary to show that the provisions of sec. 108 of the Act of 1898 apply to it. That .section says:— “ Any person aggrieved by any adjudication of a Licensing Court or Court of Petty Sessions made under this Act,” subject to certain exceptions, may appeal to the Quarter Sessions. It is said for the appellant that the decision of a Licensing Court with respect to registration of a club is not an application made under the principal Act within the meaning of that section. In one sense that is true, and, if it were a matter to be determined on the words of the two Acts alone, that contention would be hard to answer. But there is another Act in force in New South Wales, called the Interpretation Act 1897, which by sec. 12 provides that “ Every Act amending an Act shall be construed with the amended Act and as part thereof, unless the contrary intention appears in the amending Act.” Tliere is no doubt that

[1906.

726   HIGH COUUT

H.C. OF A.the Act of 1905 is an Act aniending the Act of 189S. It is so

1906. described in tlie title, and the contents show clearly that it is.

SWEENKVIf, therefore, aiij- effect is to be given to sec. 12 of the Interpreta­

V.

F it z ­

tion Act 1897, the Act of 1905 is to be read as part of the Act of

h a r d in g e .1898 unless the contrary intention appears in it. If it is read as

Griffith C.J.part of the Act of 1898 then the words “ under this A ct” in .sec.

108 must mean “ under this or anj" aniending Act which forms part of it.” If it is so read, of course, an appeal will lie. It is contended, however, that the contraiy intention does appear in the amending Act. That is sought to be made out in various

waj'S.

The first point made is that in sec. 1 of the Act of 1905

are the words :—“ This Act shall be construed with the Liquor

Act 1898, hereinafter referred to as the Principal Act.”

It is .said that this is a partial repetition of sec. 12 of the Inter­ pretation Act, and that, as the repetition is only partial, it must be taken that the part not repeated is to be excluded. 1 do not think that argument can be supported. No doubt, effect should be given to every provision in an Act, and to every word, if possible, in the provision. When there i.s a new enactment establishing a new body of law it is desirable to give effect, if possible, to every provision and every word, so that no word shall be wasted. But it very often happens that in passing fresh legi.slation the legislature makes a statement declaratoiy of the law. When it does so it does not add to the law, nor does it alter the duty of the Court. When there is fresh legislation dealing with matters that have already been the subject of legislation, then, ex necessitate rei, all the acts must be construed together for the purpose of answering any question arising under them. But these words really add nothing to the law, and impose no new additional duty on the Court, and they cannot be said to import the contention that the provisions of the Interpretation Act are to be excluded. Then it was said that the whole general scheme of the provisions about clubs was .such as to show that it was not intended that there should be an appeal in such matters. As I have pointed out, the general scheme of the Act was to put clubs on a footing very analogous to that of licensed premises. There is nothing improbable, therefore, in supposing that when the legis­ lature imposed these duties on a Court, which it declared to be a

1 C.L.U.] OF AUSTRALIA.

727

Court of record, and which it required to consist, in part, of judicial

H. C. OF A.

1906.

rrieinbers, it was intended that its decisions should be subject to

appeal in the same way as the decisions of an analogous Court

SWEKNEY

r.

on analogous matters under the principal Act. It is said that

F it z -

many of its duties are more of an administrative than a judicial

H A B D I S O E .

kind. Perhaps that is so. But they are imposed by law upon

Griffith C.J.

it as a Court, and its decisions are to be entered of record. If the matters that come before it are matters which can properly be determined by a Court of first instance, there is no reason why tliey should not be adjudicated upon by a Court of Appeal. Then it was said that from its nature a decision granting or refusing a certificate of registration was not the kind of thing likely to be made subject to appeal, and, further that in the principal Act the legi.slature plainly applied their minds to the various kinds of decisions that the Court had to give, and classified them, specifying which were to be iinal and conclusive and which were not. But I am unable to see anything in the language of the Act to indi­ cate that the legislature did apply their minds to any such matter. It may be that, if the legislature had applied their minds to the various grounds on which decisions might be given, the}’’ might have classihed the provisions and said that an appeal would lie in some cases and not in others. But that is, after all, mere conjecture, and I do not think it is sufficient to establish the con­ trary intention, which, by the Interpretation Act, tl)e Court is bound to find before holding that the provisions of the amending Act are not to be taken as part of the principal Act.

Being, therefore, unable to find any indication of contrary intention such as the Court could rest its decision upon, I have come to the conclusion that the Liquor {Amendment) Act 1905 must be construed as part of the principal Act, and as if its pro­ visions were provisions of that Act. When so construed, the appeal given by see. 108 from all decisions “ under this A ct” applies to all decisions given under the amending Act of 1905. It is quite clear that in man}* provisions of the Liquor {Amend­ ment) Act it is intended that there should be an appeal to Quarter

Sessions.

One instance is that of a new offence created by sec. 59,

for the sale of licjuor on club premises to persons who are not

728 HIGH COURT

[1903.

H. C. OF A. members of the club.

For the reasons given I am of opinion,

1906.        therefore, that tlie first objection fails.

S w e e n e y

The other point was that the appeal, if there is one, should not

V.

be by way of rehearing.

The origin of appeals to Quarter Sessions

F it z -

H.ARDINGE.

was fully discussed at the bar. Their history is stated in the

introduction to Paley on Summary Convictions, 7th ed., p. 12. The earliest instance of an appeal from a conviction by justices of peace was in Statute 22 Car. 2 c. 1, called the Conventicle Act, and the author says ; — “ That act, after authorizing a summary examination and recovery of penalties before any two justices, gave to the party convicted the privilege of an appeal in writing, to the judgment of the justices of the peace in tlieir next cpiarter- sessions, upon which ‘ he may plead and make his defence, and have his trial by a jury thereupon.’ ” It is obvious that if tlie appeal was to Quarter Sessions with a jury the case must be heard de novo, and it would have to be heard in the ordinary way. by the taking of evidence and the jury giving a verdict. That i.s the only instance, according to Paley, of an appeal to Quarter Sessions witli a jury. The next Act was passed in the following session, 22 &: 23 Car. 2 c. 25, an Act for the protection of Game. That gave an appeal by sec. 9 in these words :—“ It shall and may be lawful ” for any person aggrieved by any judgment given by any ju.stice of the peace by virtue of that Act “ to appeal unto the Justices of Peace in their General Quarter Sessions which shall happen to be held next after such judgment giv ên,” who were authorized to give such relief and make such order on the appeal as should be agreeable to the tenor of the Act; and their judgment, order or determination was, except in certain cases, to be “ hnal to all intents and purposes whatsoever.” Now, from that time down to the present it appears that it has been the uniform practice at Quarter Sessions in England to hear appeals from justices by way of rehearing, and without a jury. Indeed by the Act 5 Geo. II. c. 19, it was expressly declared that justices could take that course. It was declared that the particular object of the Act was not to introduce any new form of procedure, but to do away with technical objections to the form of the original proceedings, and the justices were directed to rectify all defects in form and to proceed to determine the truth and merits of the

Griffith C.J.

4 C.L.R.] OF AUSTRALIA.

729

matter of the appeal by the examination of witnesses on oath,

H. C. OF A.

in terms that clearly indicate, if there were any doubt—which

1906.

there is not—that that was already the practice of that Court.

.Sw e e n e y

V.

The practice of the Court is further stated by Liu^h J. in a

F it z -

passage (juoted by the learned Judges of the Supreme Court

II.AKDINGE.

from The Queen v. Pilgrim (1):—“ Generally speaking,” he .said,

Griffith C.J.

on appeal to the Quarter Sessions the justices are not limited to the evidence before the petty sessions, but they have to hear the whole matter de. novo, and the i.s.sue is the same, and the justices are put in the same position as the justices in the Court below. It is only in cases in which the particular Statute giving the appeal limits the inquiry to the same evidence, that the Quarter Sessions are precluded from going into fresh evidence, . . . .

but where there is no such limitation, either expressly or by implication, the matter is at large, and the Quarter Se.s.sions are to rehear the whole matter, and give their judgment upon all the evidence that is brought before them.” That is a statement of the general practice of Courts of Quarter Sessions on appeals from justices in England, and no doubt that practice has always been carried out in those Courts.

Courts of Quarter Ses.sions were introduced into New South Wales very early. Tlie first Statute or local ordinance on the subject is 5 Geo. IV. No. 8, which was passed in order to give etfect to the Imperial Act 4 Geo. IV. c. 96, authorizing the Governor to establish Courts of Quarter Sessions by proclama­ tion. That was followed up by later Acts, with the result that, the Act 5 William IV. c. 22 in effect gives Courts of Quarter Sessions in New South Wales the .same powers and duties as the Courts of Quarter Sessions in England. That being the nature of the Court, and that having been its ordinary practice during all these years, and the legislature having in 1898 e.stablished a new Court called a Licensing Court, and given an appeal from it to Quarter Sessions, what is to be inferred ? It is suggested that on such appeals the Court ought to be treated as a Court with some new procedure. There is no doubt as to the rule in England, stated by Luslt J. in The Queen v. Pilgrim (1), that “ it is only in cases in which the particular Statute giving the aj^peal limits

(1) L .R ., 6 Q .B., 89, a t p. 95.

730 HIGH COURT

[1906.

H. C. OF A. tii0 inquiry to the same evidence, that the Quarter Sessions are precluded from going into fresli evidence.” It is said tliat a con- SwEENEY trary rule is to be established here, and that it is to be taken that, Frrz- unless there is something in the Statute giving the appeal authoriz- HARDiNGE. ing fresli evidence to be taken, the inquiry is to be limited to the

Barton J. Same evidence as was before the justices in the first instance.

There is a passage in the judgment of James L.J. in Dale’s Case (1) which appears to me to be exactly in point. He said:—“ It was strongly urged that this was a new jurisdiction and a new procedure. According to my view of the case, that is not materiab because if a new jurisdiction is given to an existing Court—that is to say, a jurisdiction to deal with some new matters in a different mode and with a different procedure—if that jurisdiction be so given to a well-known Court, with well-known modes of procedure, with welMcnown modes of enforcing its orders, it must, unless the contrary be expressed or plainly’ implied, be given to that Court to be exercised according to its general inherent powers of dealing with the matters that are within its cot>-nizance.” I think that when the legislature in these Acts gave the Courts of Quarter Sessions a new jurisdiction in these cases they intended that it should bo exercised according to the general mode of procedure in that Court, and therefore that this appeal was properl} ̂ heai’d by Quarter Sessions as a rehearing. In mj’ opinion, therefore, both objections fail.

It is not necessary to consider whether, if either of them were

valid, the remedy would be by certiorari or prohibition.

A third point was suggested, as to new evidence having been received. But the reception of new evidence is not objectionable, for the reasons I have already given. If a new objection is allowed to be made before the Quarter Se.ssions, possibly objec­ tion ma}’ be taken because, bĵ entertaining a new objection, the Court would be trying a new issue and practicall}' assuming original jurisdiction, but no such case is made in the affidavits.

For these reasons I think that the appeal should bo dismissed.

B a r t o n J. His Honor has stated the matter fully. The

third question one may at once put out of the way.

The fact

(1) 6 Q B.D., 376, a t p. T50.

4 C.L.R.J

OF AL’STRALTA.

that the Judge receives evidence, in itself inadmissible, is not a H. C. of a .

(luestion of jurisdiction. I think, for the reasons given and to

Vie given, that this appeal was by waj" of rehearing, and it was

S w e e n e y

V.

therefore competent for the Court to hear fresh evidence if

F it z ­

necessary. If the evidence, though wrongly received, is within

h a r d i n g e .

the Court’s jurisdiction, that surely can not be a question to

Barton J.

be raised by certiorari or prohibition.

That is simply an instance

of the licence that every Court has to go wrong.

As to the first (piestion, whether an appeal lies at all, I refer, first of all, to the Inteiyretaiion Act 1897, sec. 12, which provides as follows [His Honor read the section and continued]. Does sec. 1 of the Liquor {Amendment) Act 1905 show a contrary intention ? Instead of repeating in full words which have already been enacted in the Interpretation Act, it deals with things a little more shortly, and at the same time leaves out jiart of that section. It says ;—“ This Act may be cited as the Liquor {Amendment) Act and shall be construed with the Liqtior Act 1898 hereinafter called the Principal Act.” It is argued that because the words “ shall be construed with the Liqtior Act 1898” are there and the words “and as part thereof” are not there “ the contrary intention” is shown. I am unable to

accede to that argument.

The section is not for the mere purpose

covered by sec. 12 of the Interpretation Act. It deals with other considerations and points out which is the Act to be referred to as the principal Act. The mere omission of the words “ and as

part thereof ” does not show a contraiy intention to sec. 12.

It

may show an inadvertent omission. But it does not nece.ssarily show even that. In my opinion, sec. 1 of the Act of 1905 may be read as merely pointing out the Act with which that Act is to be construed. That is, I think, the prime purpose of the section. It is a provision well framed by the draughtsmen in view of the frequency Yvith which fresh statutory provisions have the effect of amending moi’e than one prior Act. Under those circum­ stances it maj" have been thought that the pi’oper method was to insert a section when the new Act amends prior legislation in order to point out the Act which will be referred to in it as the principal Act, and with which it should be construed. For the purpose of such a section it may well be that this reference would

732 HIGH COURT

[1906.

H. 0. OF A. Re considered sufficient, and I am inclined to think that it is. If

it is contended that it is not so, then I tliink that the principle SwKENEY stated in the case of Salmon v. l)unc(mhe (1) would apply. In

F it z section in an Act of Natal dealino- with the law of HARDi.sGE. inheritance was framed so as to lead to a totally different conse­

Barton J.quence from that which the leo-islature had in the preamble

clearlj? expre.ssed to be their intention.

In the Privy Council it was held that where it was obvious that, by the mere carelessness or omi.ssion of the drauohtsman, lang'uao'e Irad been used which, if taken as correct, would have the etfect of defeating the manifest purpose of the Act, the words which brought about that result should be construed, if possible, in a sense which would not lead to the consequence of defeating the manifest intention of the legislature. That principle exactlj’ applies in this case to render futile the objections founded on the mere omission of the words “ and as part thereof.” I think tliat the reasoning on which the argument as to contrary intention is founded is in every part of it without any real force or validity. Passing now to the other reasons urged in support of the appeal. Prior legislation and practice, before the pa.ssing of this Act, con­ ferred the right of appeal to Courts of Quarter Sessions by way of rehearing in a summary way without a jury. This was the state of things when tlie Liquor Act, consolidating prior legi.slation on the subject, was pa.ssed. An appeal was there given to General or General Quarter Sessions, and the Court was to have power to hear and determine the matter of the appeal in a summary way and at once, “ and shall have and may exercise all powei’s conferred by the third section of the Act tifth William the Fourth number twenty-two; and the decision of the Court shall be final

and conclu.siv’e

sec. 108.

It is unnecessary to make more than a short reference to the Act 5 Wm. IV. No. 22. The third section of that Act pre.scribed the conditions under which liberty was given to every person aggrieved to appeal from a summary conviction to the next Court of General or Quarter Sessions under certain conditions, and went on to say;—“ And the justices at .such ses.sions so assembled shall hear and thereupon finally determine the matter

(1) 11 App. Cas., 627.

4 C.L.H.l OF AUSTRALIA.

733

of every sucli appeal in a summary way and their judgment

H. C. OF A.

1906.

thereon shall he hnal and conclusive to all intents and purposes,”

and so on. Now, what i.s the meaning of the words “ in a sum­

SwEENKV

r.

mary way ” ? I do not think anybody has ever attempted to say

F it z ­

that where an appeal is by way of rehearing, a fimtissimi juris

h a r d i n g e .

form of appeal, if the Court considers evidence that is not in the

Harlon J.

depositions and deals with the matter upon the new evidence as well as that originally taken, it could be considered as exer­ cising original jurisdiction. To hear and determine the matter of the appeal in a summary way seems to me to imply more than one thing. Certainly it implies the absence of a jury. There can be no (jue.stion about that. But the words also imply, in my judgment, a hearing upon evidence taken orally before the Court, and not merely upon a consideration, as a Court of Ajipeal, of the depositions already taken. Even if this might not have been the case otherwise, yet legislation and practice having both ap])roved that Court in its treatment of apj êals by way of rehearing, and that being the law and the practice when the Liquor {Amendment) Act 1905 was passed, the Court of Quarter Sessions being a Court in which, the legis­ lature knew, appeals were dealt with liy way of rehearing, and the legislature not knowing of any kind of appeal to (Quarter Sessions excejit appeals by way of rehearing, the (juestion arises whether by the u.se of the particular woi'ds the legislature did not intend them to have that well known and defined meaning which they have alwa3's had when u.sed in relation to appeals to Quarter Session.s. In mj’ opinion that is

tlie sense in which the words should be read.

There is no

necessity to strain them for that purpose. And, therefore, I am of o2union that the word was used to define that summaiy way of rehearing which was original and customaiy in Courts of Quarter Sessions. The appeal to Quarter Sessions was originall}" an api^eal from one set of justices to another, from the petty to the General Sessions; that is, from a smaller to a larger meeting of magistrates. Was it a Court of_,j|appeal from the oidinar^' Court of 2:ietty sessions in the sense that it could take into account onlj* the depositions taken in the Court of first instance in a case where depositions were taken, and upon reading those

734 HIGH COURT

[190C).

H . C. OF A.

alone come to a determination ? To have prescribed that would

1906.        have merely been to give to a larger set of magistrates the right

SWFENEYto pronounce upon depositions taken before another set of magis­

r.

F it z -

trates. An appeal under those circumstances would, to my mind,

HAK D I NO E.have been of no conceivable advantage. The only argument by

Barton J.which it could be claimed that one Court was superior to the

other would be that the members of one were more numerous than those of the other. It is scarcely conceivable that that should be considered a reason for granting an appeal to Quarter Sessions, meaning, as was long ago settled, to Quarter Sessions as ordinarily constituted, or, as the result of subsequent legisla­ tion, to a Chairman of Quarter Sessions exercising the functions of Quarter Sessions. I cannot see in this an indication of an}̂ intention to alter the method of hearing appeals, but I am led to the opinion that the intention was to grant an appeal in the way known to practice, and that is by way of reliearing.

I agree with the Chief Justice that the appeal should be

dismissed.

IsA.vcs J. I am also of opinion that this appeal should be dismissed, and, in view of the general importance of the questions involved, I shall state my reasons. The appellant contended that the Court of Quarter Sessions had no jurisdiction to entertain the appeal from the Licensing Court, and he rested his case on three grounds.

The first ground was :—That no appeal whatever to Quarter Sessions has been provided by law, in the case of the grant of an application for a certificate of registration of a club under the Liquor {Amendment) Act 1905. This contention was supported

by two arguments.

It was said that, without the aid of sec. 12

of the Interpretation Act (No. 4 of 1897), it was impos.sible to connect the appeal section of the principal Act with the amending Act, and that the incorporating provisions of sec. 12 of the Inter­ pretation Act do not apply because the contrary intention appears in the amending Act, both by reason of the wording of its first section and by reason of the general purview of the whole Act. In my opinion this argument is unsound. It is unnecessary to say what the result would be apart from sec. 12 of the

4 C.L.ll.J OF AUSTRALIA.

735

Interpretation Act. That .section is a legislative declaration of

H. c. OF A.

general application, that when any Act is amended by a later

1906.

Act the tM'O shall be regarded as one connected and com­

S w e e n e y

V,

bined statement of the will of Parliament, unle.ss the contrary

F it z ­

intention appears in the amending Act.

h a r d i n g e .

Prim d facie, thi.s

general rule applies in the case of every amending Act, and the

Isaacs J.

onus of di.splacing it rests upon those who assert the contrary intention; they have the bui’den of .satisfying tlie Court that, by express words or necessary implication, the legislature has indi­ cated in the amending Act its intention to depart from the ordinary rule expressed in the section referred to. So far as express words declaring a contrary intention are concerned they do not exi.st in this case, but the Court has been invited to infer it from the fact that, whereas the Interpretation Act provides that the amending Act shall be con.strued with the amended Act and as part thereof unle.ss the contrary intention appears, sec. 1 of the amending Act, on the other hand, merely saj’s that the amending Act shall be construed with the principal Act, and does not go on to use the words “ and as part thereof.” But no nega­ tive words are used and no provision is inserted that can be regarded in any way as inconsistent or incompatible with the general rule. It is merely overlapping at the mo.st, and that is not, in my opinion, sufficient to over-ride, or in otlier words, to repeal, for this purpose by implication the distinct provision in sec. 12. So far, therefore, as sec. 1 of the amending Act is alone concerned, I can see no reason for refusing to apply to the amending Act the ordinary provisions for appeal. Then it is sought to aid the construction argued for by a general considera­ tion of Part Y. of the Act of 1905. It is said that it is new legi.s­ lation on a new subject and represents a code (juite complete within it.self, and that, as no reference can be found in that Part of tlie Act conferring any riglit of appeal, no such right exists. The Act, however, in dealing with clubs is not taking up abso­ lutely new matter. Clubs were the subject of special considera­ tion in the principal Act, and enjoyed a certain measure of e.xemption under the 5th sub-section of sec. 13, and in the amending Act the legislature simply repealed that sub-section and placed clubs on another footing. It required henceforth

736 HIGH COUKT

[1906.

H. C. OF A. registration and all the nece.ssary and incidental investigation and .safeguards precedent to registration as a condition of con- SwEENEv tinued exemption of clubs from the general provisions of the F jtz licensing law. Consequently, the notion of an entirely new sub- h a r iu n ( ;f . ject of legislation is not accurate. Clubs to be exempt in future

isa.-ics.). must be registered, and the duty of deciding whether a club i.s registrable or not is placed on the Licensing Co\u't as one of its ordinary judicial functions.

The principal Act must certainly be consulted to discover what is meant by the expression “ the Licensing Court.” So much i.s conceded, though it is .said that is sufficiently accounted for by the presence in .sec. 1 of the direction to construe the Act with the principal Act. But in addition to that there are penalties pro­ vided, as in sec. 59, with respect to which there would be no appeal if the appellant’s contention is given effect to; and, if there be an appeal to some other Court with regard to the penalties under sec. 59, I do not see how the argument of a com­ plete code entirely excluding appeal can be maintained. Again, what is to be tlie procedure of the Licensing Court on an appli­ cation to regi.ster a club ? Secs. 49 and 57 of the Act 1905 lay down the duties of the Court in most general terms and prescribe no specific procedure. Plainly it was thought that the ordinaiy procedure provisions would apply, and this consideration mili­ tates again.st the view of the appellant that the club provisions in the later Act form a separate and complete code, and that the two Acts are to be regarded as quite independent enactments.

It was further urged on behalf of the appellant that the only appeals given were in respect to adjudications under the principal Act, because the appeal sec. 108 uses the expression “ made under this Act ” with respect to adjudications which may be appealed against.

If, however, the rule of incorporation contained in .sec. 12 of the Interpretation Act applies, so that the amending Act is con­ strued as part of the principal Act, no difficulty exists. The argument, if succe.ssful, would equally exclude the operation of all the other sections of Part IX. of the principal Act with respect to proceedings under the amending Act, a result improbable in the last degree.

4 C.L.K.]

OF AUSTRALIA.

Finally, on this branch of the case it was urged that the grant

H. C. OF A,

of registration of a club wa.s not an adjudication within the

1906.

meaning of sec. 108 of the principal Act, and Reg. v. Sha.rman

SWEEKF.Y

V.

(1) was cited in support of this contention. That was a case in

F it z -

which a Divisional Court held that under the English Licensing

HAB.D1SGE.

Acts certiorari would not lie to bring up the order of a Licen­

Isaacs J.

sing Committee to be quashed. That ca.se is very hard to follow, and English Judges have found it difficult to appreciate : see Kex V. Johnson (2). But in any event it cannot affect the que.stion

here. The Licensing Court is by the principal Act expres.sly declared to be a Court of record with power to administer oaths in any licensing or other matter, complaint or other proceeding to bo heard or determined or dealt with by such Court, and elaborate provisions are made for punishment for contempt, and these and similiar provisions make it perfectly evident that the tribunal is a' Court in the strictest sense of the term, and that it acts judicially. Its determinations are in fact termed by the Statute adjudications, even when it grants or refuses a licence or a permit. Consequently there is nothing unusual in allowing an appeal from its decisions to another judicial tribunal, and therefore this contention fails also; the result being in my opinion that an appeal is given in a case of this nature.

The secoird ground of objection was that, if an appeal is given at all, it must be determined b}" the Court of Quarter Sessions on the evidence adduced before the Licensing Court and upon no other. Shortly put, the contention is that the Court of Quarter Sessions cannot take evidence on appeal. This is so opposed to the recognized and constant practice at Quarter Sessions, and so inconsistent with the due performance of the functions of that Court, that it would require the clearest legislative language to support it, and no such provi.sion can be found. On the contrary, so far as affirmative words can be pointed to, they are quite against the argument. Sec. 108 of the principal Act provides that the matter of the ajjpeal shall be determined in a summary way, and that the Court shall have and may exercise all powers conferred by the 8rd section of 5 William IV. No. 22. The last named Act also'declares that the Court shall determine the

(1) (1898) 1 578.

(1905) 2 K .B ., 59, at pp. 65 and 66.

VOL. IV.

48

738 HIGH COUKT

[1906.

H. C. OF A. matter of appeals from justices in a summary way. Wlien tlie

history of the Court of Quarter Se.ssions is looked to it is found

■Sw e e n e ythat the words “ in a summary way ” were necessary in order to

V.

F it z -

displace the previous practice of trying appeals with the aid of a

HAKUINGE.jury. The Court of Quarter Sessions, however, must still deter­

Isaacs J.mine the facts as well as tlie law, and, as facts cannot be deter­

mined without taking evidence, it seems impossible to escape the conclusion that the Court of Quarter Sessions must hear the evi­ dence for itself. It is said that “ appeal ” means reconsideration of the evidence already given; in some Courts and on some occasions that is so, but the word “ appeal ” has no invariable meaning. In a late case, Darlotv v. Shuttleworth (\), the word “ appeal ” was held to include “ error.” In the present ca.se the phrase “ in a summary way ” seems to place its meaning beyond doubt.

The third and last ground of apjieal was based on the wrongful admission of evidence by the Court of Quarter Se.ssions. Even if that were established, the wrongful reception of evidence on a proper issue would not amount to a usurpation of jurisdiction. It would be merely^an erroneous ruling in a matter which the Court had juri.sdiction to determine.

For these reasons I am of opinion that the judgment of the Supreme Court appealed against was correct, and that this appeal

should be dismissed.

•

Appeal dismissed. A2ypellant to pay one set of cost to respondents Wynn and Burrows.

Solicitor, for appellant, Percy Owen by P. J. Pratt.

Solicitor, for re.spondents. The Croion Solicitor of Neiv South

Wales, A. A. Lysaght hy B. A. McBride.

C. A. W.

(1) (1902) 1 K .B ., 721.