Symes v Stewart - [1920] HCA 73

ON APPEAL FROM THE SUPREME COURT OF

NEW SOUTH WALES. Licensing-Supply of liquor to person in state of intoxication-Hariding liquor to

owner thereof-Previous sale and delivery-Liquor handed back to licensee for safe-keeping-Liquor Act 1912 (N.S.W.) (No. 42 of 1912), sec. 53. SYDNEY, Nov. 16, 17.

Sec. 53 of the Liquor Act 1912 (N.S.W.) provides that " if the holder of any licence for the sale of liquor supplies liquor to any person who is at the time Knox C.J.,

in a state of intoxication," he shall be liable to a certain penalty.

Held, that the word "supplies" in that section includes a handing over to the owner where, whilst he was sober, there had been a previous sale to him completed by delivery and a handing back to the licensee for safe-keeping.

Hall-Dalwood v. Emerson, 87 L.J. K.B., 296, followed. Decision of the Supreme Court of New South Wales (Harvey J.) affirmed.

APPEAL from the Supreme Court of New South Wales.

At Ardlethan, in New South Wales, before a Police Magistrate, an information was heard whereby Peter Stewart charged that on 25th March 1920 George Richard Symes, being the holder of a pub- lican's licence for premises known as the Barellan Hotel at Barellan, did supply on such premises liquor to one John Samuel Lilburn, who was at the time in a state of intoxication. The Magistrate, having dismissed the information, on the application of the informant stated a case for the determination of the Supreme Court. The case, after setting out the evidence, continued: : It was proved upon the hearing that the defendant at 7.30 a.m. on 25th March

28 CLR 387

1920 sold and delivered a bottle of whisky to Lilburn, who was then sober that Lilburn gave the whisky back to the defendant for safe custody; that the defendant handed the whisky again to Lilburn at 12.45 p.m., when-Lilburn was in a state of intoxication. It was contended on the part of the defendant that the handing back of the whisky to Lilburn by the defendant was not supplying liquor within the meaning of sec. 53 of the Liquor Act 1912. upheld the contention, and I determined that the matter herein- before stated was insufficient to support the said information. The question for the Court is whether my said determination was erro- neous or not."

The case was heard by Harvey J., who answered the question in the affirmative and remitted the case to the Magistrate.

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

Leverrier K.C. (with him H. E. Manning), for the appellant. The word "supplies" in sec. 53 of the Liquor Act 1912 connotes that the person to whom the liquor is supplied is not the owner of it.

[ISAACS J. referred to Hall-Dalwood v. Emerson 1.] In that case the sale was of unascertained goods, and there had never been actual delivery of the goods to the defendant SO as to pass…

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 Symes v Stewart

Details

AGLC: Symes v Stewart [1920] HCA 73
Case: [1920] HCA 73
Decision Date: 17 November 1920

CaseChat Overview and Summary

This case involved an appeal to the High Court of Australia from a decision of the Supreme Court of New South Wales. The appellant, George Richard Symes, a publican, was charged with supplying liquor to John Samuel Lilburn, who was intoxicated, contrary to section 53 of the *Liquor Act 1912* (N.S.W.). The facts established that Symes had sold and delivered a bottle of whisky to Lilburn when he was sober. Lilburn then returned the bottle to Symes for safekeeping, and Symes handed it back to Lilburn later that day when Lilburn was intoxicated. A Police Magistrate dismissed the information, finding that the act of handing back the whisky did not constitute "supplying" within the meaning of the Act.

The legal issue before the High Court was whether the Supreme Court of New South Wales had erred in law by determining that the facts were sufficient to support the information, thereby overturning the Magistrate's decision. Specifically, the Court had to consider the meaning of the word "supplies" in section 53 of the *Liquor Act 1912* in the context of liquor that had been previously sold and delivered, then returned for safekeeping. The appellant argued that "supplies" implied providing something that was not already the property of the recipient, and that since Lilburn had already purchased the whisky, its return did not constitute a supply.

The High Court, led by Knox C.J., affirmed the decision of Harvey J. in the Supreme Court. The Court reasoned that the purpose of section 53, as part of a group of sections concerning the "supplying of liquor," was to protect vulnerable individuals, including those who are intoxicated, from themselves. Therefore, the word "supplies" should be interpreted liberally. The Court followed the English decision in *Hall-Dalwood v. Emerson*, holding that "supplies" in this context includes the act of furnishing or providing liquor, even if the recipient is the owner, particularly when the liquor was returned for safekeeping and subsequently handed back. Isaacs J. added that the meaning of "supply" is elastic and depends on its context and subject matter.

Consequently, the High Court dismissed the appeal with costs, upholding the Supreme Court's determination that the act of handing back the whisky to Lilburn, despite his prior ownership, constituted a supply within the meaning of section 53 of the *Liquor Act 1912*.

Orders