Wilcox v Donohoe - [1905] HCA 68

APPELLANT; DONOHOE

RESPONDENT.

ON APPEAL FROM THE SUPREME COURT OF

NEW SOUTH WALES. Beer Excise Act 1901 (No. 7 of 1901), secs. 4, 8 -Excise Tariff Schedule-Making

beer without a licence-Liquor below dutiable standard when brewed--Subsequent increase in alcoholic strength-Not part of process of making. Appeals to High Court-Specialleave-Supreme Court exercising federal jurisdiction

-Less than appealable amount involved-Appeals from State Courts exercising original federal jurisdiction-Judiciary Act 1903 (No. 6 of 1903), secs. 35, 38,

The appellant, not having a brewer's licence, brewed a liquor containing a lower percentage of proof spirit than the standard fixed for excisable beer by the Excise Tariff, 1902, and the liquor having been bottled and stored on the appellant's premises, the contents of some bottles were subsequently found, on analysis by the Customs authorities, to have increased in alcoholic strength to

point above the standard. The increase could only be accounted for as the result of a secondary fermentation in the bottles, which was no part of the process of brewing, and which every reasonable precaution had been taken to prevent.

Held, that the maker was not guilty of the offence of making beer without a licence, within the meaning of sec. 8 of the Beer Excise Act 1901.

The appellant was prosecuted by the Customs authorities in a Court of summary jurisdiction under sec. 134 (c) of the Excise Act 1901, and was con- victed, and fined. He obtained a rule nisi for a statutory prohibition from the Supreme Court. The matter then came before a Judge in Chambers, exercising the powers of the Supreme Court under sec. 114 of the Justices Act 1902 (N.S.W.), who, without going into the merits, discharged the rule on the ground that he had no jurisdiction to entertain an application for a prohibition against a Court exercising federal jurisdiction.

Held, that the Judge had jurisdiction, inasmuch as the appellant was entitled under sec. 137 of the Excise Act 1901, to apply to the Supreme Court for a statutory prohibition, instead of appealing direct to the High Court under sec. 35 of the Judiciary Act 1963.

3 CLR 84

The writ of prohibition referred to in sec. 38 of the Judiciary Act 1903, which confers on the High Court exclusive jurisdiction in "matters in which a writ of mandamus or prohibition is sought against an officer of the Common wealth or a federal Court" is the prerogative writ for the control by the Superior Courts of inferior Courts exceeding their jurisdiction, and does not include the statutory writ of prohibition in New South Wales, which is in reality a form of appeal.

Ex parte Stelling, 1904, 4 S.R. (N.S.W.), 201, over-ruled on this point. Held, further, that, as the amount involved was less than the appealable amount, special leave to appeal to the High Court was necessary, but that under the circumstances it should be granted as a matter of course.

The words "Court or a Judge of a State" in sec. 39, sub-sec. 2…

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 Wilcox v Donohoe

Details

AGLC: Wilcox v Donohoe [1905] HCA 68
Case: [1905] HCA 68
Decision Date: 27 September 1905

CaseChat Overview and Summary

The Supreme Court of New South Wales considered a dispute between Wilcox and Donohoe concerning the alleged manufacture of beer without a licence, contrary to the *Beer Excise Act 1901*. The central issue was whether the beer in question, which was below the dutiable alcoholic strength at the time of brewing but subsequently increased in strength, constituted an offence under the Act.

The court was required to determine whether the process of increasing the alcoholic strength of beer after it had been brewed, but before it was subject to excise, could be considered part of the "making" of beer for the purposes of the *Beer Excise Act 1901*. This involved interpreting the definition of "making" within the context of the Act and its associated excise tariff schedule.

The court reasoned that the Act defined "making" as the process of brewing beer. It found that the subsequent increase in alcoholic strength, which occurred after the brewing process was complete, was not part of the initial making of the beer. Therefore, the beer, being below the dutiable standard when brewed, did not fall within the scope of the offence as defined by the legislation. The court concluded that the actions of the defendant did not constitute the unlawful making of beer under the *Beer Excise Act 1901*.

Orders