Marriott v Coleman [1963] HCA 46

High Court of Australia Dixon C.J. McTiernan, Taylor, Menzies and Owen JJ. Marriott v Coleman [1963] HCA 46

ORDER Appeal allowed with costs. Order of the Supreme Court varied (1) by substituting No for Yes as the answer to each of the questions asked in the Case Stated and (2) by deleting the order for costs and substituting therefor an order that the costs of the respondent in the Supreme Court (Marriott) be paid by the appellants in the Supreme Court (Coleman).

Cur. adv. vult.

The following written judgments were delivered:—

1963, Oct. 29 Dixon C.J.

This is an appeal by special leave from an order of the Supreme Court of Victoria, made under the Licensing Acts of that State, answering certain questions upon a case stated by the Licensing Court in favour of the present respondents. The Supreme Court was constituted by the Chief Justice (Herring C.J.), Sholl J. and Little J.

The application before the Licensing Court was for the registration in pursuance of Pt XII of the Licensing Act 1958, of the Bentleigh Returned Sailors', Soldiers' and Airmen's Club, of which the appellant Marriott is secretary, in respect of certain premises situated at 538-540 Centre Road, Bentleigh. It was found by the Licensing Court that the premises were in the immediate vicinity of a place of public worship.

By section 246 (1) it is provided that, at the hearing of any application for the grant or renewal of the registration of a club, objections may be taken by any person or council hereinafter in this Act mentioned upon one or more of the following grounds. Then are set out grounds lettered from (a) to (o). Ground lettered (m) is "That the premises are in the immediate vicinity of a place of public worship hospital or school".

The Licensing Court found without doubt that the premises are in the immediate vicinity of a place of public worship. But the question of the nature of the ground, that is, whether it provided an imperative bar or a discretionary reason for refusing an application, proved not so easy.