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Decisions of the Superior Courts of New South Wales, 1788-1899

In re Pashley (1828) NSW Sel Cas (Dowling) 764; [1829] NSWSupC 8

liquor laws - mandamus - reception of English law - supervision of inferior courts


Supreme Court of New South Wales

Forbes C.J., Stephen and Dowling JJ, 2 March 1829

Source: Dowling, Select Cases, Vol. 2, Archives Office of N.S.W., 2/3462


[p. 140] [The Court will not grant a mandamus to Justices to compel them to license an ale house; nor will the Court compel the justices to give their reasons for refusing an ale house license.]

In re Geo Pashley[1 ]

J Stephen moved a rule to shew cause why a Mandamus should not be directed to the licensing justices of Sydney, commanding them to grant a public house license to A. D. on a suggestion that a license had been refused to this individual (Dowling J.) did you ever hear of an instance of a mandamus to justices to compel them to grant a public house license (We may compel them to hear an application but not comply with it).  It is submitted that S. 9 of the local ordinance G  4. No 2 is imperative upon the Magistrates to renew a licence unless the holder shall have been convicted of a breach of his recognizance, or shall have so conducted himself as to be in the opinion of the Magistrates unfit to be again licensed here there was no conviction for a breach of recognizance nor any other ground for refusing to renew the licence and the Magistrates ought at least to be compelled to give their reasons for refusing it (Dowling J. we cannot compel [p. 141] them to give their reasons the matter is peculiarly for their determination and within their exclusive jurisdiction.

Forbes CJ  Adverting to the question alone perhaps it would not bear the strict interpretation of my brother Dowling in holding that in no case would the Court compel the Magistrates to grant a license.  That section does leave some discretion in the Court but finding by the 8th Section the Governor has the power of limiting the power of licenses that shall be granted; and that if there shall be a reduction of the number of licenses granted for the preceding year, the Magistrates shall select such houses as shall appear to them to have been kept in most orderly manner.  I think we are bound to leave it to the Justices exclusively to determine to whom a license shall be granted without assigning their reasons for the refusal

Stephen J concurred

Dowling J.  I am clearly of opinion that this Court has no authority to grant a Mandamus to the Justices [p. 142] to compel them to grant a license at all events to a person whom they may think ineligible, still less can we compel them to assign their reasons for refusing the license.  We may compel them to hear an application but not to grant it this point has been clearly settled in a late case.  In Rex v Farrington without (4 D. & R. 735) where the Justice refused the application for an Ale house license and it being suggested that their refusal proceeded from a mistaken view of their jurisdiction, the Court refused a Mandamus even to hear the application reheard (See Rex v Js Surrey 5. D. & R. 308).  It is a general principle that where Justices are vested with a discretionary power in a matter over which jurisdiction, they are not compellable to give their reasons for their determination (South Cadbury v Braddon 2 Salk 607).  In this case the local act gives the Governor the power of previously of fixing the number of public houses which shall be granted in different parts of the Colony.  And this principle is that this Court will not compel justices to do an act which may subject them to personal liability and [p. 143] it is for the Justices to determined what persons shall be licensed so as the number fixed upon by the governor shall not be exceeded this is a matter peculiarly for their determination.  It is in their discretion.  They must as in all cases where a discretionary power is vested, exercise a sound and reasonable, not a capricious, discretion.  If they act corruptly or from undue motives they are subject like other persons abusing their trust to criminal visitation.  It is not for us to determine upon the policy of vesting this authority in the hands pointed out by the local ordinance but the legislature having, for wise purposes given this authority, to the justices we cannot interfere with their jurisdiction.

Rule refused


Source: Australian, 6 March 1829[2 ]




In the Supreme Court, on Monday last, Mr. Francis Stephen applied for "a rule to shew cause why a mandamus should not issue, directed to the Principal Superintendent of Police for the district of Sydney, and the rest of the Magistrates, in General Sessions assembled,  in and for the district of Sydney, commanding them to grant a license to Mr. George Pashley, of the Wellington Inn, Sydney, to sell and retail spirits, ale, and other fermented liquors, in the said house."

It appeared, on affidavit, that Pashley had held a license for three years, for the last two of which he had kept the Wellington Inn - that he had never been fined - that he not forfeited his recognizance - and that he had nevertheless been informed, and he believed it, that his application for a license had been refused, and that several new houses, which had not been licensed before, were to be licensed for the ensuing year.

Mr. Justice Dowling observed, that a mandamus could not issue to compel the Justices to grant a license - that this was a dictum of Lord Holt in a case, the name of which he did not recollect.

Mr. F. Stephen observed, he was well aware that, by the LICENSING ACTS OF ENGLAND, it was entirely discretionary with the Justices to grant or to refuse a license - and that, accordingly, a mandamus could not be granted in England; but that, he would submit, such an application might be made in this Colony, where the Magistrates were bound, by the Act of COUNCIL, to renew the licenses of such as were licensed the preceding year, provided they had not forfeited their recognizance; - that, in fine, it was a matter of right, which the present applicant could claim.  Mr. F. Stephen then read Act No. 2. of 7th Geo. 4, sect 9, to shew that the party applying had a right; and he observed, that it was upon the subject of the Magistrates having the entire discretion, without any condition, that the case of Bassett v. Godschall, 3 Wils. 121, and another case in Strange's reports, were decided in favor of the Justices.

Mr. Justice Dowling expressed himself as of opinion that the Justices were invested with a DISCRETIONARY power, and that the Court could not grant a mandamus.

His Honor the Chief Justice observed, that although by sect. 9, it was declared, "that at the next licensing day, every license previously granted, upon the application of the holder or holders, should be renewed before any new license should be granted, unless the holder or holders of the license, so required to be renewed, should have been convicted of a breach of his recognizance, or should have so conducted himself, herself, or themselves, as to be in the opinion of the said Magistrates unfit to be again licensed; " yet, that by the preceding section, a power was given to the Governor to fix the number of public houses; and it was there declared, "that if there should be a reduction of the number of licenses granted for the preceding year, the Magistrates are to select such houses as should appear to them to have been kept in the most orderly manner;" that it was  well known that a reduction was to take place in the number of licenses for the preceding year, and that at present there was no evidence but that this house might be amongst the number that it was found necessary to refuse, in order to bring down the number to that licensed by the Governor, and that he therefore could not grant the motion.[3 ]

Mr. Justice Stephen concurred, and the learned Counsel took nothing by his motion.



[1 ] See also R. v. Pashley, 1829.

[2 ] See also Sydney Gazette, 5 March 1829.

[3 ] The Australian, 6 March 1829, went on to comment that the magistrates often said that they would decide these cases according to justice not law.  In those circumstances, the Australian, thought, there was reason to be apprehensive about the reluctance of the judges to supervise the magistrates.  The Australian ended with a tinge of racism: it said that the head of the resident magistracy in Sydney was a foreigner, despite the position requiring "the fullest exercise of home-bred British feeling, British independence, and plain honest British integrity".

Published by the Division of Law, Macquarie University