[liquor law – administrative law]

In re Reynolds

Supreme Court of New South Wales

Dowling C.J. and Stephen J., 29 May 1841

Source: Australian, 1 June 1841

SUPREME COURT, (Equity Side)

            SATURDAY - Before the Chief Justice, and Mr. Justice Stephen.

            Mr. Foster said this was an application brought before the Court on affidavit, and by which their honors would presently have the circumstances placed before them in a substantial way. The affidavit stated, that Mr. Reynolds was a licensed publican, and was the occupier of the house in question; that upon obtaining a certificate signed by Colone[l] Shadforth, and Major Smyth, two Justices of the Peace, sitting at Petty Sessions, and authorised to issue certificates for holding licenses; he the said Reynold took that certificate to the Colonial Treasurer, and tendered him that sum of money specified in the act, viz. £30, but the Principal Clerk of the office refused both to accept the money, or to recognise the certificate in any way, stating in justification of his conduct, that a letter had been received from Captain Innes, cautioning the head of the department not to accept the money, the license having been withdrawn. The learned counsel, now moved for a rule nisi calling upon the Colonial Treasurer (as a Ministerial Officer,) for aught else, (he had nothing to complain of,) why the certificate did not issue. It was important that the decision, as it should seem, of a Licensing Sessions of Magistrates should be upheld, for it was an indisupted fact that a certificate was issued and signed; this was not attempted to be impugned; and matter of such importance were not to be wholly disregarded; then arose the question, one which the learned Counsel said was worthy of grave discussion, whether a single Magistrate, by right of office as Principal Superintendent of Police had it in his power rightfully and lawfully to upset such a decision by the mere writing of a letter, prima facie, upon his own responsibility. The Court requested to see the Act of Council, commonly called the Licensing Act. The Judges had their attention drawn to the 21st sec. o the Act, which provides that “the said Colonial Treasurer, or other person as aforesaid, shall, and he is hereby authorised and required forthwith, after the receipt of every such certificate, to issue and register in his office, a license in one or other of the forms herein before prescribed, according to the tenor of such certificate, respectively upon payment being made to the Colonial Treasurer or other person as aforesaid of the sum of £30 sterling, for every public general license.” The Chief Justice remarked that the terms of the Act were imperative on the Colonial Treasurer. As at present advised, there was some difficulty in getting over the words “shall issue,” however, said His Honor, let a rule nisi be granted; the Court will be then in a better condition to judge of the merits of this case.