Woodhill v Kempton [1960] HCA 65

High Court of Australia Dixon C.J. Menzies and Windeyer JJ. Woodhill v Kempton [1960] HCA 65

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The Court delivered the following written judgment:—

Aug. 31 Dixon C.J., Menzies and Windeyer JJ.

This is an appeal from a judgment of Ferguson J. upon a case stated by a licensing magistrate who decided that he had no power to grant the appellant's application to extend a permit granted under s. 57A of the Liquor Act, 1912, as amended, in respect of the dining-room of the "Beachcomber" Hotel, Toukley, to the lounge of the hotel, because the lounge was also a bar or a bar-room (inasmuch as it was a place where liquor was served over a counter). Ferguson J. upheld the magistrate's decision. We agree with the reasons given by Ferguson J. and do not find it necessary to add to them except in so far as the argument presented to this Court calls for comment.

In support of the appeal, some reliance was placed upon the use of the word "guest" in the first proviso to s. 64 (1), which it was claimed indicated that it was lawful to serve liquor to any person having a meal in a bar outside ordinary hours, and that this in turn showed that provided there was a permit under s. 64, meals could be served to the public in bars in off times, so that there was no reason why a further permit under s. 57A could not be granted for a bar. If this argument were correct, it would seem that a permit under s. 57A would not be necessary to enable the appellant to serve the public drinks with meals in the lounge of the hotel during off hours if a permit were obtained under the proviso to s. 64 (1), so that the argument would prove too much; but we are satisfied that the argument itself should be rejected. We think that ss. 57 (2) (a), 64 and 64A make it plain that in off times a bar-room must be closed to the public and that, apart from s. 57A, the only permitted use of a bar-room is in accordance with the proviso to s. 64 (1). In that provision the word "guest" is not used to describe a member of the public who comes in for a meal, but a person who is of like character to a bona fide inmate or traveller. This is in accordance with the decision of Ferguson J., and we agree with the reasons that his Honour gives for this conclusion.

The question, therefore, whether a permit under s. 57A can be granted for a bar or a bar-room depends upon the terms of that section, and no assistance towards an affirmative conclusion can be drawn from s. 64 (1) or any other provision of the Act.

Ferguson J. decided that it is only in accordance with the second proviso to s. 57A (2) that a permit may be extended to such part of the premises as is a bar, and with this too we agree. We consider that this particular provision, viz. that for a special occasion on a stated date a permit may be extended to cover a bar, shows that in the ordinary case a permit cannot be granted for a bar. This is supported by consideration of the general scheme of s. 57A, that a permit should be for that portion of licensed premises in which meals are regularly supplied to the public in off hours; ss. 57, 58, 64 and 64A prevent a bar being used for such a purpose.

This appeal must therefore be dismissed.