QUEENSLAND LAW REPORTER. NOVEMBER, 1910. [IN THE FULL COURT.] THE KING v. LICENSING AUTHORITY OF LOGAN AND Liquor-Provisional crtificate for licensed victualler's license- In January, 1910, D. obtained a provisional certificate under s. 33 of The Licensing Act of 1885. He erected an hotel. In March, a resolution was carried in the district under s. 115, viz.-"That no new licenses shall be granted." In July, the Licensing Authority granted a certificate for a licensed victualler's license to him. A motion to make absolute an order nisi for a certiorari, on the ground that the Licensing Authority had no jurisdiction to grant the certificate, was argued before the Full Court in July. Before judgment was delivered, it was ascertained that the Treasurer, under s. 51, had issued a license to D, and had received the fees from him. Held, that certiorari ought not to be granted. ORDER NISI FOR WRIT OF CERTIORARI. The Licensing Authority of Logan issued a provisional certificate for a licensed victualler's license to Francis Denny, in respect of premises situated at Alberton. He proceeded with the erection of the premises. On 16th March, 1910, a resolution that no new licenses should be granted was carried in an area within which Alberton was situated. On 6th July, 1910, Francis Denny applied, on the provisional certificate, for a certificate for a licensed victualler's license, and the Licensing Authority granted it. It was admitted that Francis Denny had complied with all the requirements to entitle him to the certificate, if the Licensing Authority had jurisdiction to grant the same. The prosecutor, Ferdinand Bahr, was one of the signatories to the notice demanding that the poll on this resolution be taken, and was a ratepayer of property within five miles of the premises in question. He also appeared before the Licensing Authority as an objector to the granting of the certificate. The prosecutor obtained an order nisi, calling on the Licensing Authority and Francis Denny to show cause why a writ of certiorari should not issue to remove the proceedings into the 1910. July 29, August 31. Cooper C J. Chubb J. F. C. THE KING . LICENSING AUTHORITY OF LOGAN AND DENNY, Supreme Court, on the ground that the Licensing Authority had no jurisdiction to hear or to grant the application. Stumm, for the prosecutor, moved the order absolute. The Ex parte Bank. provisional certificate was granted under The Licensing Act of 1885, s. 33. Cf. Schedule IV., Form 5. The license itself is issued by the Treasurer on the certificate given by the Licensing Authority. Cf. ss. 51, 33, Schedule III., Form 1; Schedule IV., Form 5; Schedule V., Form 1, and Schedule VI., Form 1. After the third resolution of s. 115 is carried, notice is given to the Minister and to the Licensing Authority-s. 120-and the Licensing Authority then has no power to grant a certificate for a license-s. 124. The whole question is whether a provisional certificate is or is not included within the words "new license in the third resolution-s. 115. The grant of a license for the premises at Alberton would be a new license. The provisional certificate and the certificate itself are not licenses. They are granted by the Licensing Authority, whereas the license is issued by the Treasurer. The Treasurer may not refuse to issue a license when a certificate has been granted—s. 51. Hence this application for certiorari to the Licensing Authority. R. v. Morris (1), R. v. Anderson, Ex parte Clark (2), R. v. Yaldwyn (3). The point decided in R. v. Morris (1) was that a provisional certificate could be granted while the third resolution was in force. But both Harding and Real JJ. stated that the effect of s. 124 is that the certificate for a licensed victualler's license cannot legally be obtained in respect of the provisional certificate during the continuance of the resolution. Sections 124 and 33, subsec. 6, are irreconcilable; the rule of construction applicable is stated in Beale's Cardinal Rules of Interpretation, pp. 425-6. Hart showed cause. Certiorari will not lie. If the Licensing Authority had power to grant the certificate, the remedy is not available, and if they had no power, there is nothing to quash, for the statute declares their certificate null and void, and the (1) 1894, 6 Q.L.J. 9. (3) 1889, 3 Q.L.J. 144. further declaration by this Court is of no greater effect-s. 124. Halsbury Laws of England, Vol. X., p. 192; Weston v. Sneyd (1). [REAL J. referred to In re Roche (2).] Certiorari is in the discretion of the Court, and will not be granted to this prosecutor, for he has no more interest than any other member of the public. He is not an objector under The Licensing Act of 1885, s. 41. Even if he could be regarded as an objector, his rights were exhausted on his objection to the provisional certificate. He is not a person aggrieved in any special sense. R. v. Morris (3), per Cooper C.J., Kydd v. Watch Committee of Liverpool (4). This was not a "new license " under s. 124. On the issue of the provisional certificate, there was a promise to grant a license on fulfilment of conditions. It was in effect a temporary license, on the strength of which the licensee spends money in erecting his premises; and the Licensing Authority were compelled to make it permanent on the fulfilment of those conditions-s. 33, subsec. 6. The words, "new licenses," in s. 22, would not apply to a license where a provisional certificate had been granted. The provisional certificate falls within the exception to s. 124, as being a "license current and in force." Section 33 is an exception to the general provisions of s. 124. Pretty v. Solly (5), Churchill v. Crease (6), Craies Statute Law, 4th Ed., p. 210. He also referred to Countess of Rothes v. Kirkcaldy Waterworks Commissioners (7), Ex parte Corbett, In re Shand (8), In re Brockelbank, Ex parte Dunn and Raeburn (9), De Winton v. Mayor of Brecon (10), R. v. Justices of Surrey (11). Stumm, in reply: Certiorari lies, and the prosecutor has sufficient interest. R. v. Morris (3), per Griffith C.J.; R. v. Yaldwyn (12), In re Roche (2). He also cited Davenport v. The Queen (13). C.A.V. COOPER C.J.: This is a motion to make absolute a rule for a writ of certiorari in connection with an order made by the Licensing Authority of Logan, in which they granted a certificate (1) 1857, 1 H. & N. 703, (2) 1888, 7 N.Z.L. R. 206. (3) 1894, 6 Q.L.J. 9, at p. 11. (4) [1908] A.C. 327, at p. 330. (5) 1859, 26 Beav. 606, at p. 615. (6) 1828, 5 Bing. 177, at p. .180. Y (7) 1882, 7 A.C. 694, at p. 702. (8) 1880, 14 Ch.D. 122, at p. 129. (10) 1859, 26 Beav. 533. (13) 1877, 3 A.C. 115, at. pp. 128-9. F. C. THE KING V. LICENSING AUTHORITY OF LOGAN AND DENNY, Ex parte BAHR. F. C. THE KING V. Cooper C.J. for a licensed victualler's license to the applicant. The rule was obtained on the ground that the Licensing Authority had no jurisdiction to make the order. In January, 1910, the applicant had obtained a provisional certificate under The Licensing Act of 1885 for certain premises about to be erected by him. He erected the premises, which were suitable for an hotel. Sometime after, in March, the third resolution of the local option resolutions was passed-s. 115-and, nevertheless, the Licensing Authority granted him a certificate for a license. The question raised is whether they had any jurisdiction to do so. Since the argument, it has been discovered that the actual license had been granted to the applicant by the Treasurer, upon the certificate given by the Licensing Authority-s. 51. That being so, it seems to me that this Court would be making an order in the nature of a brutum fulmen if it decided that the Licensing Authority had no jurisdiction to grant the certificate in this case. A license has been issued by the Treasurer to the applicant. He has paid his fees, and the Court could make no order in this case that would be binding on the Treasurer. I therefore think that the Court ought not, in the exercise of its discretion, to grant an order for certiorari in this case, and that therefore the rule should be discharged. REAL J. I am of the same opinion. I think that this Court should not make an idle order, and no benefit can arise from granting the order asked for in this case. At the same time, I think it right to say that the reasons for the decision of the Full Court in R. v. Morris (1) seems to me to be applicable in the present case. I am also inclined to agree with the remarks of Griffith C.J. on the question of what persons are entitled to raise objections in this Court against the validity of proceedings by a Licensing Authority. I agree that the rule should be discharged. CHUBB J.: I am also of opinion that the rule should be discharged. Order nisi discharged, with costs. Solicitors for applicant: McCowan & Lightoller. Solicitor for defendant: A. W. Bale. (1) 1894, 6 Q.L.J. 9. at p. 11, CONTRACT-Continued. with his contract of agency, and gave judgment On appeal, held (per Curiam), that A. was Per COOPER C.J. and POWER J.: That A. BREACH OF THE PEACE-Language with of six years prior to the issue of the writ of intent to provoke. See VAGRANTS. CHARITABLE GIFT- See WILL. 3, 4. CONTRACT- 1. -Agreement-Principal and agent-Sole By an agreement made in 1891, A. became this agreement, A. ceased to deduct from Chubb J. found that there had been no pay- summons. Per REAL J.: That there was evidence to KITCHEN & SONS, LTD. v. THE BRISBANE 2. I. purchased a horse for M. of the facts amounted to ratification. When a new trial of an issue is directed, the On such new trial evidence must be given in Cox v. ISLES, LOVE & Co. BRISBANE BOARD OF WATERWORKS v. Hudd, And see PRINCIPAL AND AGENT. 1, 2. |