THE LICENSING LAW

Dominion, Volume 1, Issue 226, 17 June 1908, Page 7

THE LICENSING LAW

—• i IMPORTANT JUDGMENT. APPLICATION FOR A CERTIFICATE OF FITNESS. DUTIES OP MAGISTRATES. Cbt telegeaph.— special coerespondent). Auckland, June 16. Mr. Justice Edwards gave judgment this morning in the case of Joseph Ambrose Douglas v. Robert Williatu Dyer. This was an action for a mandamus to the Stipendiary Magistrate to hear and determine the api .plication of the plaintiff for a certificate of fitness under Subsection 2 of Section 12 of the Alcoholic Liquors Sale Control Act, 1893. His 'Honour said that the plaintiff was a ; publican holding a license in respect of an hotel in Auckland city known as the Fitzroy Hotel. The defendant was a Stipendiary Magistrate, and chairman of the Licensing i Committee for the district within which the plaintiff's hotel was. situated. • A temporary transfer for the hotel in ; question was i granted to plaintiff on November 8 last, and a permanent transfer on Decern- ; ber 8. Prior to the granting of the teru- : porary transfer the defendant granted to the plaintiff a certificate of fitness under Subsection 2 of! Section 12 of the AJcoholio Liquors Sale Control Act, 1893. The 89th section of the Licensing Act,' 1891, required the plaintiff, notwithstanding the permanent transfer of the license to him, to apply for a license at the next annual licensing meeting . in tho same manner as if he were not a licensed person. 'The plaintiff accordingly lodged his application for a license, and applied for a certificate of fitness, but the application was not granted. The defendant . was requested, on behalf of tho. plaintiff, to hear him upon the application for such certificate of fitness, and also to hear evidence in ■ support, but the defendant refused. The mandamus was accordingly applied for. After reviewing a of cases quoted by counsel, His Honour said that, in his opinion, these cases were conclusive to show that the statute which he had now jirider Consideration s ™posed a duty upon.the, Magistrates to inquire into and ascertain the fitness of applicants for licenses under the Licensing Act, and to certify accordingly. The jurisdiction given by the statute in this respect was general. It was conferred upon every Magistrate, nor would the refusal of one Magistrate to grant a certificate to the applicant preclude another Magistrate from doing so. It was quite plain that for the correct and effectual exercise, of this most important' duty the tribunal charged with the duty of inquiring into tho matter must hear the applicant aid his witnesses. The duty of the •Magistrate was not limited to this. He svas certainly not bound to accept the applicant's case as presented by the applicant .and his.witncsses;, 'He: might make such further inquiry as he thought fit, but if in the course of that inquiry he was informed of facts that militated against the applicant's claim for a certificate he was certainly bound as a matter of common fairness and justice to inform tho applicant fully' as to the alleged facts beforo acting upon them to the detriment of the applicant. He had been somewhat surprised to hear counsel for the Crown in support of his contention that the discretion-of-the Magistrate under this enactment was arbitrary and uncontrolled, urging- that the decisions of,'tile Magistrates in such cases were founded upon police reports, which were confidential. It was new to him .to bear it argued that the status, and in this case the property, of a person' entitled to tho adjudication of a statutory tribunal could be taken from him on a confidential report made by police offioers, or by ally oile else to tho tribunal charged with the duty of inquiring into the matter. There were many cases which decided that in such' circumstances the person whose rights were affected must be given an opportunity of being heard, find that it mattered not whether, if that opportunity hid hot been given, the adjudication was in fact right or wrong. If the tribunal "chargod with the duty .proceeded regularly and made an honest adjudication upon the facts that adjudication, whother right or wrong, oould not be examined by this Court; - but if it proceeded without hearing the porson whoso rights were affected it could not justify that broach of duty by replying that" the adjudication was in fact that which would have been made if it lmd proceeded properly. He was at a loss to understand how it could be seriously argued that tho defendant in discharging his preliminary duty to inquire into tho same J matters as to which his adjudication had precisely tho same result was emancipated from the rules which unquestionably regulated the conduct of the Licensing Committee in Making the same inquiry into • the same matters. It was to bo observed that the defendant, in stating his ground for refusal had shown that he acted partly upon ■ tho- resolution; of the Licensing Committee and partly upon police reports, Isubsoquently furnished to him. His Honour had already made it clear that in his opinion tho defendant ought not to act either upon the one or the other. Tho duty of investigating the matter lay upon him. and upon him alone. The proper form of tho order appeared to be: "It is ordered that a writ of mandamus do issue directed to the defoiidant' Robert William Dyer, commanding „ •him to inquire and ascertain as to tho fit- - noss of the plaintiff, Joseph Ambrose Douglas, to/ have granted to'him a publican'j license. The order would, go in that form accordingly. '