The Army anil Navy Licensing Case. FABER AND ANOTHER v. COOK LICENSING COMMITTEE.

Evening Post, Volume XXXI, Issue 69, 24 March 1886, Page 2

The Army anil Navy Licensing Case. FABER AND ANOTHER v. COOK LICENSING COMMITTEE.

MB. JUSTICE RICHMOND'S DECISION. At the sitting of tho Banoo Conrt this morning hia Honour Mr. Jnatioo liiohmond delivered tho following judgment : — This ia a claim for a mandannu. The plaintiff Fabor ia tho original holdor of a publioan's license iEsned under the Licensing Aot. 1881, for tho period of a roar onding tho 30lh Juno next. The plaintiff Liddlo ol&itns to be the temporary traueferoo of th« eamo liotmso; iv virtus of the grant in January last by tho Chairman of tbo Licensing Committee for the distriot of an application for ten • porary tranefor under eeotion 90 of tbo Act. The dtfondunta aro tho Liopsinp: Committee. The plaintiffs pray a mandamus commanding tho defendants to hoar aud determine an application for tho pormanont transfer of the hoonso from Faber to Liddlo. It appoars from tho siatomouk of tho claim that the plaintiffs made snoh an applioaticn in due couroo at the last qaarterly mooting of tbe Committee The olaim farther states (paragraph 5) that on tho hearing of tho application the Committee, on their own motion, took notion of a complaint which had been mado against plaintiff Liddle that on a. rfcant date » drunken man had boon sorvod with liquor in tbe hotol kept by lid die ; nnd heard tho evidence of a Mrs. Kolly in snpport of buou oomplaint ; that no notice whatever of any objection to tho grant of tho transfer, or of auy complaint as to the conduct of tbo hotel, or of the plaintiff Liddle aa licensee, or as proposed tranaferoo thoroof, had been given to the pkintiffa or eithor of thorn at any time previously to tho said quarterly meeting ; ' that tbe solicitor for the plaintiff Faber appliod to the Committoe for an adjonrnment of the application in order to enab'o the plaintiff or other persons affeoted ' thereby to answer tho eaid objection or oomplaint; but the Chairman of tho Committee (defondant tfraser) informed him that the Committee had mado up their minds to refuse an adjournment of tho hearing, and also to oanool tho licenso ; aud then stated that tho Committee had uuanimously decided to canool the lioenso. And further (paragraph 6), that tho Committco did not at fuch hearing assign or make known the objeotion oau iug tho refusal of transfer, or the ground on whioh tho license was canoallod. Thcao allegations aro fully admitted by the defendants ; and thereupon it is contended by the plaintiffs that tho Committee, by refusing to grat.t an adjournment for tho purposA of fnabling the plaintiffs to reply to the charge against them, aa »r<3Boribod by section 63, have in effoot refused to hear and determine tho application for trnnsfor. To this it is replied that tha Committee ohose to not under section 70, whioh enablos them at a quarterly meeting to pn t an end to any lioenso if it shall bo proved to their satisfaction that Ihe lioenscd honse is conducted in an improper manner. This bcotion, it is argued, contains no provision for an adjournment to enable tbo porson offootcd to mako his defonoe, and may be ootod upon by the Committee of their own motion without previous notification of the ohtrgo. To thia reasoning 1 there are two diatinot and conclusive answers. In the first place, there being beforo the Committee an application for a transfer, and tho alleged misoondnot of tho licensee having boon taken notioe of by tho' Committee of their own motion os a ground for refusing that application, the o»se fell within the provision of Eeotion 63, and it was not competent to tho Committee to trout tbo application, and the statutory provision relating thereto, as Bapersedod by their own attempted action under pootion 7G Tho objection waß used as an objection to transfer ; and it was not tho lons an objeo'ion because it was or might be aleo a ground for cancellation. On rofleotion it will, lam persuaded, appear to tho Committee thornselv&s as shocking to tho natural Benco of justice that the pMntiffa should bo doniod tho opportunity accorded to them by law of giving a deliberate answer, to tho cliarpo against them, considered aa an objeotion to transfer, for no other reason than that thoy were supposed, by the same alleged offence, to have oleo isourrcd the far hoavisr penalty of forfeiture. Suoh reasoning is in diroot opporition to tho spirit of English law, which at the present day requires that th« facility for defence shal be not diniiuißhed, but rather iccroased, in proportion to the gravity of the charge and its consoquonoeß. But, furthermore, lam of opinion that tbo Committee were altogether wrong in Rupyobing that they could proceed at once to cancel the lioenso without any pro\ivaa notification to ths parties affected, and without giving them an opportunity of being heard in their defenoo. It may ba true thfit there is nothing in the Statute expressly requiring suoh notification, but tkoro is nothing to tako away tho necessity for it. ' ' No proposition .' ' rays Baron Parko, delivering the jndgmeiit of the Exchequer Chamber, in the ease of Bonaber v. Evanr. 18, QB. 162 ; S.C. 20, L.J.. Q.B. 137, " can be more olearly established than that a man oaDnot in our the loss of his liberty or pre« party for an offenoe by a judicial proceeding until bo haa had a fair opportunity of being heard before it was issued ; nnlesii, indood, the Legislature haa expressly or impliedly given an authority to aot without that neceaaary preliminary." To tho eoino effeot Lord Campbell says in Bartlett v. Kirksrood • 2 B and B. 771; S.C. 23 L.J. QB 9: "Tlicro most be an opportunity given to every person before judgment is paseod npon him cf bein? heard in hi* defenoa; and it is essential that tbo charge Bhould always be intimated to tbe supposed delinquent." It ia unnecessary to mnltiply citations in snpport of so well-established a dootrine. If it bo oontondod that the plaintiffs, being represented by their eolioitor. had both a snfficient intimation of the oharge and a anffioiont opportunity of defence, it must bo answered that there was neither tho one nor the other. The solicitor was in attendance for an entirely different purposo, and was not, nor could Teisonablv be supposed to be. instructed to defend a proooeding againat his olianta under section 76. Aa respects the proceedings under seotion 76, the plaintiffs must bo regarded as absent p»rt:es, and the action of the Committee has violated the prinoiple that no man should be condemned unheard. Liddlo's alleged contravention of the Act mr&ht ba legitimately taken notioe of by the Committee of their own motion as an objection to sanctioning the transfer to him of tha license; snbjoot, of oonrce, to tho right of the plaintiff d to an adjonrnment under eootion 63 ; but as a ground for forfeiting the license evidence of the alleged offence could not be at onca brought forward and acted npon without previous warning. Proceedings under seotion 76 should alwaye be begun by somo notice to the parties interested, oalling on them to show can so why the license should not be forfeited, acoompani«d by some intimation of tho ground on which it is proposed to proceed. It has been set np as a further ground of defonoo that Faber was inoompetent to transfer to Liddle, having previously m»do a transfer to one Gill, whioh was Banotioned at the Licensing Meeting in September, 1885. This objeotion was not raised when tbo plaintiff a preferred their application. Had it been bo raised, time onght to havo been riven to answer i<. Ab it appears that Liddle has been admitted by the Chairman as temporary transferee from the lato liceneee, the plaintiffs have pn'mi facia sufficient title to support the present olaim. Taking tho Committee on iheie own ground, and supposing ttat tho right to the lioeneo at the date of tbe last meeting was vested in Gill, tbe impropriety of the course adopted by them in pretending to oanoel tho license beoomes even more glaringly evident, for the person interested was, ai they state thornselves in bo many words, neither preeent nor represented, and prosnmably must havo boon in total ignoranoa of the proceedings. As regards the intrinsic efficiency of tho alleged ground of forfeiture I am not called upon to givo a decision ; bnt I think it desirable to Bay tbat it appears to me at leaet doubtful whether ovidonoo of tbe commission by tho licensee of a ringlo offonce against the statute can be taken by the Committee as in itself sufficient proof that the lioensed honse is conducted in an improper manner. Tha argument addressed to me by Mr. Gully on this head, founded upon the terms of eoction 205. appears very worthy of consideration. Section ICO affordi a similar inference, viz that a solitary offenoe against the Aot is not in general, per se, a ground of forfeiture. Under Section 76 I inoline to think that something like habitual bad conduct of tha house roust be shown. The reenlt of the view which I take of the proceedings is, that th-j Committee have refused to hear and determine the plaintiff's application in tho mods prescribed by the Btatnte, and that a ca3<s ia made out for the issue of a writ requiring tho Committee to exercise their juriadiotion. The pretended cancellation of the liceneo must be taken to be a nullity. Tho writ of mandamus can contain no declaration on the f nbiaot ; bnt assuming that no order or certificate has yet been issued to give_ effect to the decision of the Committee, my intimation of the opinion of this Court will be, I apprehend, all that is requisite. At regards the time for hearing, I take it ba settled by the case of Begina v. Hurae; N.Z L.B. 2, SC. 94 -that the Conrt has jurisdiction to order a meeting of the Committee to bo hold as soon as convenient. The Chairman must convene a special meeting for tin pnrpose, unless the Maroh quarterly meeting should happen to have been continued to the present time by adjournment. Not less than seven days' notioe should bo given of ths day appointed for the hearing. There should also be pro]. Of notice of intended objections. As this judgment is for the direction of a lay tribu

nal, I wish to make it fully understood that thisconrt pivos no opinion whatever regpeotng Mr. Liddle as transferee of tbe licenaoe. Iho question, when it again comes before the Committee, oan bo determined by them npon its morits. For anything that I know, tho conclusion at which thoy arrived on tho former ocoaaion may tarn cnt to havo been correct in substance so far as tho rafußal to sanolion a transfer is concorned. Bnt it ia not enough that a judicial body shall arrive at a just conoluwon. Kvery such body is further bound to tako care that its mode of prooednro sba'l be iast. Tho jnst thing must bo done in a just way. Unwilling aa I am to givo costs against porsons who aro gratuitously didoharging a difficult, and ofbn an invidious, publio duty, I feel bound in this oase to follow the precedent of Regina v. Hnrae. Mandamus granted with costs. After a short dieoussion the costs were fixed at -C15 15s (and coßts oat of ponket).