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

Ex parte Nichols (1843) NSW Sel Cas (Dowling) 252; [1843] NSWSupC 6

mandamus, liquor laws

Supreme Court of New South Wales

Dowling C.J., Burton and Stephen JJ, 1 May 1843

Source: Dowling, Select Cases, Vol. 7, S.R.N.S.W. 2/3465, p. 101

Where magistrates have a discretion as whether to hold their deliberations in public or in private, concerning the grant of licences for public houses; held mandamus will not lie to compel the exercise of that discretion such that the meetings be held in public.*

Dowling C.J. This was an application made on the 27th, for a rule, calling on the Right Worshipful the Mayor and other worshipful justices of the city of Sydney, to shew cause why a writ of mandamus should not issue from this Court, directed to them commanding them to allow George Robert Nichols Gentleman, an attorney of the Supreme Court, to be present at a meeting, assembled under the local ordinance 2 Vic. No. 18, s. 14 (1838) for the special purpose of taking into consideration applications made for public house licences for the said City.

The application was made, not upon the ground of any individual personal interest of a party, claiming to have a public house licence, or, of a person interested in supporting or opposing such a claim on the part of another, but on the broad and abstract ground of an absolute unqualified right, inherent in the public to be present at the meeting of justices so assembled. It appears that the relator had made a formal demand on the late licensing day, to be present as of right as one of the public, which was formally refused, and the question for our determination is, whether the public, have such right, or in other words, whether the justices so assembled, are bound by law to conduct their proceedings with open doors.

The Court approaches the consideration of this question, with a jealous sense of the importance of subjecting the conduct of all public judicial functionaries to vigilant observation, and with no disposition to abridge the right of Her Majesty's subjects to be spectators and witnesses of all who are placed in magisterial authority for the public welfare. The question is whether the peculiar functions cast upon licensing justices under the local Act are such as are required by law, to be administered in public, as a matter of compulsory obligation. In deciding this question we must have regard to the provisions made by the legislature, on the subject, for we have no authority to enter into abstract considerations of popular convenience or expediency in favour of the right claimed. Does the local Act contemplate either within the letter or the spirit of it, that the licensing justices shall exercise their functions with open doors, or does it only constitute them a ministerial assembly authorized to exercise a sound discretion in sanctioning or rejecting the voluntary claims of individuals desirous of permission to carry on the trade of a publican? It may be considered that if the justices so assembled for the purpose of the Act constitute a tribunal with attributes analogous to those of a court of justice, the interests of the public may require within the bounds of reasonable accommodation, the utmost latitude of publicity. But if these attributes are not ascribed it is an assembly convened specially for the mere ministerial purpose, and vested with that sound and unfettered discretion with which honorable men fit for the service to be performed, ought to be armed, the reason for the publicity of their proceedings ceases.

Let us consider first, the object of the Licensing Act ; and secondly the duties of those who are to exercise the functions of licensing of the common right that every man may deal by retail, in fermented and spiritous liquors. But public policy and the interests of public health for morality require that this right should be restrained by law within certain bounds, quite irrespective of the general merits of the party desirous of carrying on the trade. No man is compelled to carry it on, but if he is desirous of so doing, he seeks the privilege and purposes to purchase it, with full knowledge of the obligations he must enter into and the qualifications he is bound to possess. He voluntarily submits his eligibility to the list of examination. The legislature has ordained the obligations and qualifications requisite, and then enacts who shalt ascertain whether the applicants come up to the prescribed standards.

The 11th section enacts that for preventing the granting of licences to improper persons, every person desirous of obtaining a licence shall, on or before the first Tuesday in the month of April in every year, deliver to the practising clerk of the Petty Sessions for the place or district within which it is proposed to exercise such licence, a notice in writing of his or her intention to apply for the same, and of the application fee for a publican's general licence or for a wine and beer licence, the applicant shall also deliver, or cause to be delivered with such notice a certificate signed by at least five known and respectable housekeepers residing within such town or district.

By the 14th section the mode of disposing of such applications is provided for and it enacts that a general meeting (to be called the "annual licensing meeting") of the justices of petty sessions acting in and for each district in the Colony in which petty sessions shall be held, shall be holden in their respective court houses or usual places of meeting, on the third Tuesday in the month of April in every year "for the special purpose of taking into consideration" applications for such licences as aforesaid: and it shall be lawful for the justices assembled at such meeting to grant to such persons, as shall be approved of by the majority of such justices (after taking the required recognizances) certificates authorizing such licences in the form given in the Act.

By the language of this section the body appointed to consider the applications is called the "annual licensing meeting", the persons qualified to be present are the justices who hold petty sessions acting in and for each district of the Colony. It is not a general session, nor is it a petty session, of justices, with the jurisdiction, power and authority incidental to courts of general and petty sessions respectfully. It is simply an assembly of commissioners or perhaps more proper expressed a committee, appointed for the special purpose of considering the propriety of granting certificates for licences, to such persons as comply with the conditions of the Act and are otherwise eligible. The legislature might have thought good to enact, that other persons, than justices of the peace should constitute the "annual licensing meeting", but for the most obvious reasons, the duty of attending such meetings is cast upon the local magistrates who from personal knowledge of their respective districts, are best qualified for the consideration of applications.

The annual licensing meeting is not a court of justice, to administer the general law of the land. It possesses none of the incidents of a court of justice such as to hear and determine matters in dispute, between party and party - to assert right and redress wrong. No jurisdiction is given to it to award punishment, or even to vindicate its own authority. A mere ministerial duty is cast upon it, to certify upon the voluntary claims presented, as the eligibility of the candidates. Their proceedings are not examinable by this Court by certiorari, which is one of the incidents to which a court of inferior jurisdiction is liable, unless otherwise provided by its constitution, nor could this Court compel them (except perhaps where a majority of the justices concur in granting the licence) to grant a certificate, although they might compel them to take into consideration applications properly made to them in conformity with the Licensing Act ( R. v. Farringdon (1824 [ R. v. Farringdon (1824), 4 Dowl. & Ry. N. P. 735]) and R. v. The Justices or Surrey (1824) [ R. v. The Justices of Surrey (1824) 5 Dowl. & Ry. N. P. 308]). The Legislature has carved out a peculiar mode of ascertaining the persons most eligible to hold licences - they have delegated an important trust to a certain body, upon the faith and confidence that it will be exercised with a sound and honest discretion, respect being had to the peace and welfare of society and the number of public houses which shall be licensed. For any abuse of such a trust, from corrupt and unworthy justices, doubtless they are criminally liable, R. v. Young & Pitts Esq. (1758) [ R. v. Young & Pitts Esq. (1758) 1 Burr. 556, 97 E.R. 447], R. v. Williams & Davis (1762) [ R. v. Williams & Davis (1762) 3 Burr. 1317, 97 E.R. 851], but being left to the exercise of an unfettered discretion, there seems to be no reason why their functions should be performed in public.

The legislature has not thought fit to enact that their powers shall be publicly and openly exercised, and the only question for us to determine is whether those powers are of such a nature as to invoke the public privilege to call upon us to command them to admit to their presence the public at large. It is not affirmed that they deny audience to applicants whose claims are of doubtful validity, or refuse them an opportunity of fully explaining any objections taken to the propriety of the application. If this had been predicated, a totally distinct question would have arisen, importing considerations of natural justice. This however is not a motion to compel them to hear a candidate for a licence against any alleged objectionable matter disqualifying him in the judgment of the magistrates to hold a licence, but it seeks to open the doors of the meeting to the idle curiosity of strangers, who have no personal interest in what is going on.

We are bound to assume until the contrary is shewn, that the discretion vested in the magistrates is discretely fairly and impartially exercised. We are not satisfied as to the exact course of proceeding adopted, but we must presume that they pursue the most obvious course which would be followed by men fit to perform the duties cast upon them. Those applications which are backed by the certificate of five known and respectable housekeepers, would probably be allowed at once. Others not so certified, might invite consideration of sound discretion, without reference to the general merits of the applicants, and induce the magistrates to hear it all and deliberate until the difficulties suggested were removed or explained. Again in applications though certified in terms of the Act, yet matters known to the magistrates upon their own advices, or coming to their knowledge from credible information, might well justify them in refusing to grant a public house licence, though the ground of refusal ought not to prejudice the party or unfit them for any other vocation. In cases of the latter description, we must assume that the party objected to is allowed a full opportunity of explaining away, if he can, the grounds of objection. With this limitation, we see nothing either in the terms of the action or in the principles of general expediency, which requires us to determine that the public have an absolute right to be present at the meeting. The parties assembled, not being a court of justice, instituted with all the sanctions, attributes and powers of a court, the most obvious impediments might arise in disposing of matters of a purely ministerial character if they were compelled to act with open doors. It might be insisted that every dispute or claim should be the subject of a solemn trial, with all exactness of legal formality - witnesses examined on both sides according to the rules of legal evidence and advocates heard in order to enable the justices to deliberate and summarily determine upon the simple question whether the party is in their discretion a fit person to hold a certificate within the intent and meaning of the Act. No such powers are vested in them and if they were so vested, they would throw most harassing obstacles and delays in the way of administrating their powers.

It is a fallacy to say, that because they are to "take into consideration" and "may lawfully grant" an application for a licence, therefore they are sitting in a court of justice, and are bound to admit the public to listen to their proceedings. There is scarcely any analogy between their duties, and those of a court appointed to hear and determine judicially. Constituted for the special purpose of granting or refusing licences for a particular trade, they are no more a court of justice, than are the licensers or examiners of collegiate bodies, justified for conferring degrees, or professional privileges. Such bodies, deliberate in private on the merits of the candidate and whilst privacy is essential to the freedom of discussion and full deliberation on the one hand, it is of equal advantage on the other to the candidate, in protecting them from the publication of matter, which though affording a good and sufficient reason in the exercise of a sound discretion for withholding a licence, ought not to prejudice him in his general character and interests as a member of society. All that the refusal of a licence amounts to is, that the party has not made out his title to the privilege sought. It is not necessarily a disgrace that a man shall be refused a publicans licence, for good cause appearing to the justices, who may have sufficient grounds for withholding it as matter of sound discretion.

It is a general principle that where justices are vested with a discretion in any power in a matter over which they have jurisdiction, they are not compellable to give their reasons for their determination: South Cadbury v. Braddon (1711) [ South Cadbury v. Bradden (1711) 2 Salk. 607, 91 E.R. 515] and R. v. The Justices of Devon (1819) [ R. v. The Justices of Devon (1819) 1 Chit. 34]. And the principle is that the Court will not compel justices to do an act which may subject them to personal liability: R. v. The Justices of Buckinghamshire (1823) [ R. v. The Justices of Buckinghamshire (1823) 2 Dowl. & Ry. N. P. 689], R. v. Broderip (1826) [ R. v. Broderip (1826) 7 D. & R. 861, 5 B. & C. 239, 108 E.R. 89]. Were we to compel the assembly to throw open their doors to the public, when not required so to do by the act of Council, it is possible that they might be subjected to annoyance if not responsibility for the utterance of matter, or the expression of opinions, in the honest discharge of the discretionary trust committed to their hands - a position into which they ought not to be thrown.

It may be assumed, that the magistrates, acting honestly in the discharge of their trust, would have no objection to throw open their doors to all the world, from the natural repugnance of upright minds, to avoid secrecy in the performance of a public duty; but the question is, whether this should be left to their own discretion or whether they should be compelled, at all hazards, to admit the public. Cases of delicacy affecting the character of candidates might arise, which in justice to them required the utmost secrecy, and is it to be said that the magistrates are bound to admit the public at such inquiries, reckless of the consequences to themselves and the parties directly interested? Like all other deliberative bodies they must be left to their own discretion whether they will perform their duties with closed or open doors. It is essential to the freedom of discussion and of action, that they should be possessed of their power, unless it can be made out that they are acting as a court of public justice. It is notorious that legislature and corporate bodies constitutionally exercise their power of excluding strangers and though the presence of the public at their proceedings is either winked at, or tacitly allowed, yet it is not as a matter of right but simply of discretion, and liable to be suspended at any moment without the power of effective remonstrance.

Regarding as we do the "annual licensing meeting", not as a court of public justice, but as an assembly appointed for performing a special ministerial duty, fettered by no other obligations than those which are dictated by a sound and reasonable, and not a capricious discretion, we think they are not compellable by mandamus to allow the presence of the public during their proceedings. We therefore think that the rule nisi for the mandamus must be discharged.

Rule Discharged.

Published by the Division of Law, Macquarie University