Unger v Mason

The case of *Unger v Mason* concerned an appeal to the High Court of Australia from a decision of the Supreme Court of Victoria. The appellant, Kurt Unger, a wholesale druggist, was charged with selling liquor without a licence, contrary to section 161 of the *Licensing Act 1928* (Vic.). Unger had sold medicated wine to a licensed victualler, and he contended that he was exempt from the licensing requirements under section 5(1)(c) of the *Licensing Act*, which provided an exception for certain individuals selling liquor for medicinal purposes.

The central legal issue before the High Court was the interpretation of section 5(1)(c) of the *Licensing Act*. Specifically, the Court had to determine whether the exemption applied to wholesale dealers in drugs who were not registered pharmaceutical chemists. This involved construing the phrase "any apothecary registered pharmaceutical chemist or druggist or legally qualified medical practitioner administering or selling any spirituous or fermented liquors for medicinal purposes" and considering whether the term "registered" applied to both "pharmaceutical chemist" and "druggist," or only to "pharmaceutical chemist."

A majority of the High Court (Starke, Dixon, McTiernan, and Williams JJ., with Latham C.J. dissenting) held that section 5(1)(c) did not exempt wholesale dealers in drugs who were not registered pharmaceutical chemists from the operation of the *Licensing Act*. The majority reasoned that the grammatical construction of the provision indicated that "registered" qualified both "pharmaceutical chemist" and "druggist," meaning that only registered pharmaceutical chemists or registered druggists were excepted. They noted that while the *Medical Act 1928* provided for the registration of pharmaceutical chemists, there was no provision for the registration of "druggists" as such. Therefore, a person described as a "druggist" would only be exempt if they were also a registered pharmaceutical chemist. The Court also considered the purpose of the exemption, which was primarily to allow those directly involved in administering to the sick to provide medicinal liquor, and concluded that wholesale sales to intermediaries like licensed victuallers did not fall within this intended scope.

The High Court, by a majority, dismissed the appeal. The decision of the Supreme Court of Victoria, which had remitted the information to the Court of Petty Sessions with a direction to convict, was affirmed. Consequently, the appellant, Kurt Unger, was found not to be exempt from the licensing requirements of the *Licensing Act* and was liable to be convicted for selling liquor without a licence.