Spencer Investments Pty Ltd v Evans [1954] HCA 30

High Court of Australia Dixon C.J. McTiernan, Webb, Fullagar and Taylor JJ. Spencer Investments Pty Ltd v Evans [1954] HCA 30

ORDER Appeal allowed. Order of the Supreme Court of Victoria discharged. In lieu thereof order that the determination of the Licensing Court be affirmed and that the matter be remitted to the Licensing Court to enable that court to exercise its discretion to extend the period mentioned in par. 12 of the case stated, namely the period of one year from 15th September 1952 fixed for the fulfilment of the condition upon which the issue of a grocer's licence was approved. Respondents to pay the costs of the appeal to this Court and of the case stated for the opinion of the Supreme Court.

Cur. adv. vult.

The following written judgments were delivered:—

June 22 Dixon C.J.

I have had the advantage of reading the judgment prepared by Fullagar J. and I concur in it. I desire to add only the following observations.

1. The application before the Licensing Court was for a certificate authorizing the issue of a grocer's licence for premises to be erected and the court approved the grant of a certificate conditionally upon the erection of a building in accordance with a plan. Prima facie to do this falls within the power conferred upon the Licensing Court by s. 65 (a) and s. 90 (2) (b) (ii) of the Licensing Act 1928 as amended by the Licensing (Amendment) Act 1949. The question is whether there is contained in the statutory provisions now in force a restriction upon that power based upon a particular resolution adopted at a local option poll that was held on 21st October 1920. It was a resolution for the reduction of licences and it was carried in a then existing licensing district the boundaries of which included the site of the proposed premises. The statutory provisions in pursuance of which the poll was held on 21st October 1920 were repealed in the year 1922. The restriction based upon the resolution must be found in the provisions of the now existing law, including, of course, in that expression any provisions now in force the effect of which may be to continue the operation of earlier provisions. The existing law on the subject is undeniably contained in the Licensing Act 1928 as amended by subsequent Acts (all of which will be found enumerated in the margin of Act No. 5767 not yet in operation). But once the almost self-evident proposition that the restriction must be found in the statutory provisions at present in force is recognized and its consequences unreservedly accepted, it seems to me that all foothold is lost for the contention that there is such a restriction.