Ex parte WARD

Real J.

HURLEY V. WARD, without adequate means of support. But if this privilege of making the application for future maintenance is exercised, the complaint should contain an allegation that the child is left with adequate means of support, or some equivalent allegation, though it is best to follow the words of the statute. This complaint does not contain any such allegation. The only thing alleged is that the complainant wants an order for maintenance. And, so far as the order directs future maintenance to be paid, it cannot be upheld, except for the two months after the child's birth. If, when the child is born, the father does not maintain it, proceedings may be taken under the Act of 1840, and the decision in this case does not affect the right to take fresh proceedings for maintenance. The order of the Magistrate will be affirmed, so far as it relates to confinement expenses, including the clothing and maintenance of the child for two months after its birth; but the order directing the payment of future maintenance beyond the period of two months cannot stand. No costs will be allowed.

Order nisi made absolute as to so much of the conviction
as ordered future maintenance after a
maintenance after a period of two
months; but the order nisi discharged so far so it sought
to quash the Magistrate's order for the payment of
confinement expenses ; no costs.

Solicitors for appellant: McGrath & Hunter.

[IN THE FULL COURT ]

THE KING v. THE JUSTICES OF EMERALD,

Ex parte GRIFFIN.

Licensing law-Provisional certificate--Constitution of Licensing Authority Notice of meeting "to every Justice usually acting for or residing in the district"—The Licensing Act of 1885 (49 Vic., No. 18), ss. 6, 17.

Where no Licensing Justices are appointed for a district any Justice of the Peace qualified to exercise jurisdiction as a Justice of the Peace within the licensing district may sit as member of the Licensing Authority,

Where the notices of the quarterly meeting of a Licensing Authority required by s. 17 were not given and the meeting was adjourned, and in the meantime the notices were duly given, the Court refused to interfere with an application which although set down for hearing for the first day of the quarterly meeting had been heard and grarted at the adjourned meeting.

ORDER NISI FOR A PROHIBITION.

Application was made at the quarterly meeting of the Licensing Authority at Emerald for a provisional certificate for premises about to be erected at Policeman's Creek. The hearing was adjourned by Messrs. Twine and Penrose, the Justices of the Peace occupying the Bench, for a week, the case being then called on before Mr. Jones, the Police Magistrate, and Mr. Twine, a Justice of the Peace. Mr. Ryan, who was in Court, pointed out that the Licensing Authority had no jurisdiction to hear the application, as the notices to Justices required by s. 17 of The Licensing Act of 1885 had not been given. The case was further adjourned, and in the meantime the notices required by the Act were given by the Clerk of Petty Sessions to the Justices within the district, and finally the application was heard and granted on 24th July, 1907.

The Licensing Authority granting the application consisted of Mr. Jones, the Police Magistrate, and Messrs. Twine and O'Byrne, Justices of the Peace. Mr. Jones was the Police Magistrate appointed for the district within which Emerald is situated. Mr. Twine was a Justice of the Peace who resided within the licensing district. Mr. O'Byrne was also a Justice of the Peace; his place of residence was at Emerald, but for

1907.

October 28.

Real J.

Power J.
Noel A.J.

F. C.

THE KING U. THE JUSTICES OF EMERALD, Ex parte GRIFFIN.

a considerable portion of the year he lived at Longreach, a place outside the district, where he carried on business, and as he was not at Emerald when the notices were sent out, no notice was sent to him by the Clerk of Petty Sessions. No Licensing Justices had been appointed under s. 6 of The Licensing Act of 1885 for the district in which Emerald is situated.

The order nisi was granted by Power J., on the grounds that the justices had no jurisdiction to grant the certificate, because s. 17 of The Licensing Act had not been complied with, and because neither the Police Magistrate nor O'Byrne was under ss. 6 and 17 of that Act qualified to adjudicate.

Ryan (Walsh with him) moved the order absolute. No Licensing Justices have been appointed for Emerald, hence by s. 6, the Licensing Authority consists of the Justices of the Peace exercising ordinary jurisdiction within the district. The interpretation to be placed on s. 6 is shown by s. 17, which requires notices to be sent to every Justice usually acting for and residing in the district. The Justices notified are the only persons qualified to sit. Section 7 limits jurisdiction in licensing cases to those Justices only who presumably have some local knowledge by reason of residence and the performance of the dutics in the district, and that makes notice to them imperative. O'Byrne was therefore incompetent to sit, both by reason that he did not reside or usually act, and also by reason of the lack of notice. The Queen v. Newborough (1) Ex parte Spence (2), R. v. The Justices of Rockhampton (3), The Queen v. The Justices of Surrey (4), The Publicans Act of 1853, s. 17, Cooper's Statutes, p. 2149; In re Jones (5). By the granting of a provisional certificate to Mrs. Leahy, the prosecutor's application for a provisional certificate was prejudiced, and hence she is a party aggrieved. The King v. Groom (6).

Lilley showed cause.

The provision of s. 17, requiring notice, is directory only. The clerk is blameable if he does not do it, but his neglect to do it does not invalidate any proceedings.

(1) 1869, L.R. 4 Q.B. 585.

(2) 1876. 40 J.P. 740.

(3) 1901, 11 Q.L.J. 12.

(4) 1870, L.R. 5 Q.B. 466.

(5) N.Z. Dig. 843.

(6) [1901] 2 K.B. 157.

The Justices of Middlesex v. The Queen (1), Caldow v. Pixell (2).
His omission could not alter the date of the meeting, for that is
fixed by Statute, s. 14. Cf. ss. 17 and 19. It is only under the
latter section that a penalty is imposed. A Licensing Authority
is composed of Justices of the Peace ordinarily exercising
jurisdiction within a district. All the members of the Court
in this case had jurisdiction to hear it. The commission of a
Justice of the Peace extends throughout the State. The meaning
of s. 17 is that notice must be given to the Justices of the district
usually acting, but it does not require any notice to be given
to any other Justice, who, however, is not dis qualified from acting.
If there was an intention to disqualify Justices outside the
district, it would have to be expressly stated.
Cf. s. 9. In any
event, the adjourned meeting of 24th July was properly
constituted, and if any defect of notice existed, it had then
been remedied by notice of the adjourned meeting. The whole
case was re-heard on that day. Further, the objection to O'Byrne
is too late, even if he had no right to sit. It should have been
taken at the hearing. In taking part in the adjudication, he
acted innocently. No objection was taken to him at the time.
If notice under s. 17 is essential to give jurisdiction to any
Justice of the Peace, the Clerk of Petty Sessions would have
power to defeat any application. In this case prohibition ought
not to be granted. The defect was latent, and in such cases
this remedy is discretionary.
Shortt on Mandamus and
Prohibition, p. 446.

REAL J. The question raised in this case depends on the construction to be placed on ss. 6 and 17 of The Licensing Act of 1885. It was contended that s. 6 should be read as if the language used was the same as in the New Zealand statute, viz., "a Licensing Bench shall consist of justices acting and usually residing in the district." does not say anything of the sort.

But our section
What it does say

is that "the Licensing Authority for each district shall,
except as hereinafter otherwise provided, consist of the Justices
of the Peace exercising ordinary jurisdiction within the district."
(1) 1884, 9 A.C. 757, at p. 778.
(2) 1881, 2 C.P.D. 562 at p. 566.

F. C.

THE KING V.

THE JUSTICES OF
EMERALD, EX

parte GRIFFIN.

Real J.

F. C.

THE KING . THE JUSTICES OF EMERALD, EX parte GRIFFIN.

Real J.

It seems to me that if we adopted the contention of the appellant we would be reading into the Act words which would impose a new disqualification with regard to Justices who were not specially appointed to sit as Licensing Justices, or the Police Magistrate appointed for the town or district. It seems to me that we should not do that. Although the Act provides that appointments of Licensing Justices may be made, it also provides that where no appointments have been made, licensing matters shall be determined before the usual Justices' Court in the district, and be dealt with by the persons who are there, and who have authority to exercise the ordinary jurisdiction of Justices at that particular time and place. As to the other objection that notices had not been sent to the Justices as required by s. 17, if we inclined to the view that the section had not been complied with, and that the giving of the notice was a condition precedent to jurisdiction, what could the Court do? Bring up the certificate to be quashed, and order the Justices to enter adjournment, and proceed with the hearing as in R. v. Licensing Justices of Rockhampton, Ex parte Skinner (1)? But nothing would be gained in this particular case by sending the case back, for immediately the Justices' attention was called to the omission, they entered an adjournment, and did not deal with the case until the Clerk of Petty Sessions had issued the notices. It seems to me that the section is directory, but even assuming that the notice is a condition the performance of which

was necessary before the certificate could be granted by the Justices, that condition had been performed before they attempted to exercise the jurisdiction of hearing and determining the application. For those reasons I think the prohibition should be refused. POWER J. and NOEL A.J. concurred.

Order nisi discharged, with costs.

Solicitors for applicant: T. W. Biggs, for Hobler & Powell, Rockhampton.

Solicitors for respondent: Foxton, Hobbs & Macnish, for B. M. Lilley, Rockhampton.

(1) 1901, 11 Q.L.J. 12,