Decision Reserved In Alliance Application For Writ

Press, Volume C, Issue 29620, 16 September 1961, Page 12

Decision Reserved In Alliance Application For Writ

(New Zealand Press Association)

WELLINGTON, Sept. 15. Mr Justice Hutchison reserved his decision on an application in the Supreme Court today for a writ of prohibition against the Licensing Control Commission prohibiting it from taking any steps to entertain, hear or determine applications for liquor licences for restaurants in no-licence areas. The writ is sought by the New Zealand Alliance. The nominal plaintiff in the action is Alfred Bramwell Cook, a Salvation Army officer and chairman of the executive of the Alliance, an incorporated body. The three members of the commission, Samuel Thompson Barnett, William George Gentry, and Frank Patrick Kelly, are named as first defendants. Twelve Wellington and Auckland restaurateurs who are applicants for licences are named as second defendants.

The Willington applicants are Anastasios Economu, James Patrick McCashin, and Wilhelmus Geradus Noorts.

The Auckland applicants are Jeanne Ellen Murray, Sidney Junes Conlon, Margery Louisa Harre, Roderick Charles Campbell, Frank Dingwall Culliford, William James Lane, Mary Margaret Lane, Rjelof Jacobus Feijen, and Johannes Romeijn. Dr. B. D. Inglis with him Mr R. F. Pethig, appeared for the Alliance, Mr R. C. Savage for the first defendants, Mr C. I. Patterson for the Wellington second defendants,, and Mr C. P. Hutchinson for the Auckland second defendants.

The grounds for the application for a writ were' that under the provisions of the Licensing Act, 1908, and its amendments the commission has no jurisdiction to determine any of the applications by the second defendants. Dr. Inglis said some doubt was felt about the plaintiff’s

status in the proceedings, but it had been agreed between counsel that acceptance by the defendants of the plaintiff’s position would not prevent them from raising the question of status or that of the Alliance in any proceedings before the commission. The 'Licensing Act of 1908 was the principal act which defined the sale of liquor, he said. The 1910 amendment provided for no-licence districts at the determination of the electors in such districts at any licensing poll.

Restaurant licences were introduced into New Zealand by the amendment of 1960. which contained, to all intents and purposes, a code for such licences, although it was submitted they were subject to the provision of the principal act and its amendments. “No Authority”

In order to hear and determine applications for restaurant licences the commission must take the view that section 32 of the 1960 act empowered it to do so. But that section did not authorise restaurant licences in no-licence areas, said Dr. Inglis. The electors in such areas had determined, as the act entitled them to do, that there be no licences in the districts.

In the absence of express words, the Legislature could not be taken to have intended to impose restaurant licences in Such districts in opposition to the declared will of the electors. No such express words were to be found in section 32. The commission could not be presumed to be empowered to perform a forbidden act.

It was important to emphasise that the words in section 32. “notwithstanding anything in the principal act,” did no’ appear in a position where they would be expected to have a blanket effect, Dr. Inglis said.

The effect of the section would be that although a restaurant was licensed to sell liquor, other provisions in previous acts prohibited liquor from being sold or delivered to the restaurant or being stored therein. It would mean simply that the restaurant licence could not operate because, although it was licensed to sell liquor, it could not get supplies. Alternatively the district was one in which the licence

was in force and consequently other sections of the previous acts ceased to be effective for any purposes in such district. If that were so, section 32 had effectively repealed two previous sections.

Looking at either alternative the Legislature could not have intended that a licence could be granted independent of the determination of the electors. Defence Argument

In reply Mr Savage said that because of the. complicated series of acts, the matter had to be approached on a broad basis in order to arrive at the intention of the Legislature. The language of section 32 was in the widest terms so far as power to grant a restaurant licence was concerned. A restaurant was defined as any premises other than a publican’s,' tourist house or accommodation licence. It applied to anywhere in New Zealand unless there was some provision in the acts to restrict or limit any areas where a licence might not be granted. The provisions in the principal act which related to licences that could be granted under that act were in wide and general terms. The question was what provisions restricted the areas in which licences could be granted. The terms ‘nolicence’ did not come into being until 1910, and there was subsequently a fundamental change in the approach to the whole question when the voting was on a national basis.