C.A. 1902. In re 66 66 accordingly. This is a strong case, as the proceedings were for a mandamus, not for certiorari. In Reg. v. London County Ex parte Council(1) it was laid down that "One principle is that anyFRETHEY," body is disqualified to act on any judicial matter in referO'DRISCOLL'S ence to which he has any pecuniary interest, or any real APPLICATION... bias. This is undoubtedly the law, but the bias which dis“qualifies must be in connection with the litigation in question. For example, preconceived opinions though it is unfortunate that a Judge should have any-do not consti"tute such a bias, nor even the expression of such opinions, for it does not follow that the evidence will be disregarded." In the present case - following as closely as possible the language of Mr. Justice Blackburn in Reg. v. Rand(2)—it seems to me that the only way in which the facts could affect the judgment of the Stipendiary Magistrate would be that he might have a tendency to favour his creditor, with whom, he seems to have been on friendly relations; and that is an objection not in the nature of interest, but of a challenge to the favour. If, then, it appeared that there was any real likelihood of bias upon that account, the certificate ought (other considerations apart) to be quashed; but if there was a mere possibility of bias, that is not a sufficient ground. Mr. Justice Blackburn speaks both of a real likelihood of bias" and of "real bias," but I assume most strongly in the appellant's favour that a real likelihood of bias is enough, though actual bias may be admitted not to have existed. It appears to me, however, that the most that can be said in the present case, as in Reg. v. Rand (2), is that no more has been established than that there are circumstances from which a suspicion of favour might arise; and this conclusion is certainly strengthened by the admission of counsel for the appellant that there was no actual bias. All the cases show that mere suspicion of bias, not arising from interest, is insufficient to disqualify. This being the law, and it being admitted that there was in fact no bias on the part of the Stipendiary Magistrate arising out of his transactions with McIntosh, it is impossible to grant the writ upon the first ground. I must not be understood to hold that if it is admitted that there is in fact no bias, though apart from that admission there are circumstances from which a real likelihood of bias might be inferred, a writ of certiorari should be granted in a case in which the ground of bias alleged is not interest, but (1) 71 L.T. 638. (2) L.R. 1 Q.B. 230. is in the nature of a challenge to the favour. I am inclined to think that in such a case the writ should not go; but it is unnecessary to decide that point. C.A. 1902. Ex parte FRETHEY, In re The second ground upon which the writ is moved is that the Stipendiary Magistrate had predetermined the application. O'DRISCOLL'S The facts relied upon in support of this ground are as tol- APPLICATION, lows: In May, 1900, one Goodwin was the owner and licensee of a licensed house called the Village Inn," at Bell Block, near New Plymouth. The house was old and in bad repair, and it was not really required in its neighbourhood. On the 20th of May, 1900, the Stipendiary Magistrate visited the Village Inn, and warned the licensee that the house must sooner or later be rebuilt, or the licence could not be continued. There was some conversation between the Stipendiary Magistrate and Goodwin as to another site for a licensed house. Goodwin suggested a site at Fitzroy, which the Stipendiary Magistrate did not approve. The Stipendiary Magistrate himself suggested another site, near Bell Block. Nothing came of these suggestions, but the result must have been that Goodwin was led to believe that the Stipendiary Magistrate was prepared to consider an application for.the grant of a new licence to another house in a more suitable locality if the licence for the Village Inn were allowed to lapse. On the 17th of August, 1900, McIntosh entered into a contract with Goodwin for the purchase of the Village Inn. There is no evidence upon the point, but there is a strong probability that Goodwin informed McIntosh that the Stipendiary Magistrate was prepared, if the licence for the Village Inn were allowed to lapse, to consider an application for a licence for a new house in a more suitable locality. It is clear, at all events, that the object of McIntosh in purchasing the Village Inn was, if possible, to obtain a licence for a new house in a more suitable locality, for on the following day his solicitors addressed to the Stipendiary Magistrate a letter in these terms [His Honour here set out the letter]. The Stipendiary Magistrate referred this letter to the Inspector of Licensed Houses in the district, who on the 23rd of August reported to him as follows [His Honour set out the Inspector's report]. Thereupon the Stipendiary Magistrate, on the same day, wrote to McIntosh's solicitors the following letter [His Honour set out the Magistrate's letter]. Counsel for the appellant contends that, if the matter could C.A. 1902. Ex parte be the subject of a contract, this correspondence would amount to a contract by the Stipendiary Magistrate to grant a licence to McIntosh's nominee, if personally suitable, and if the other FRETHEY, conditions laid down by the Stipendiary Magistrate were comO'DRISCOLL'S plied with. The Stipendiary Magistrate says that he does not APPLICATION. consider that he was giving any assurance at all, and that his In re letter was intended merely as an expression of his views at the time when it was written, and that these views were subject to be changed at any time before the licence was granted; he says that notwithstanding his letter he would have had no hesitation in refusing the application if the evidence had shown at the hearing that there was no need of any other hotel in New Plymouth, or if another application had been made (for example) for a brick building of a much superior description and upon a better site. Without expressing any doubt as to the sincerity of the Stipendiary Magistrate, this explanation does not conclude this point in the respondent's favour. The question is "whether "there was a real likelihood arising from the circumstances, "such as would give rise to a challenge for favour," that the Stipendiary Magistrate "would have a bias" in favour of the respondent's application. I find myself compelled to say that there was such a likelihood. The Stipendiary Magistrate, as the Licensing Committee, was, I think, entitled to say to McIntosh, or to any other person who chose to inquire, that in his opinion at the time another house was required in New Plymouth; he was also entitled, I think, to say that, subject to any proper objections which might be established before him at the hearing, a particular locality would be suitable for a new house. The cases of Hamilton v. Fraser(1) and In re The Wanganui Licensing Committee (2) support this view. The letter of the Stipendiary Magistrate, however, goes a great deal further than this. The Stipendiary Magistrate begins by referring to the request of McIntosh's solicitors that he would give his assurance that if the licence of the Village Inn were allowed to lapse, an application for a new house at New Plymouth would be entertained by him. He then states that the letter had been referred to the Inspector of Licensed Houses for his report, and that the Inspector had reported. that, provided the hotel was erected on the site named, and was suitable as regards plans, &c., he approved, as another (1) N.Z. L.R. 5 S.C. 1. (2) 10 N.Z. L.R. 583. C.A. 1902. Ex parte FRETHEY, In re • APPLICATION. hotel was much needed in New Plymouth. The Stipendiary Magistrate then goes on to say that, provided the site met his approval, that certain accommodation for the public was provided, and that not less than £3,000 was expended, he would be prepared to grant a licence to such a hotel at the next O'DRISCOLL'S annual meeting. He adds, He adds, "The plans to be submitted for "my approval, and building to be completed by June 1, 1901." Whatever construction the Stipendiary Magistrate may have intended should be put upon this letter, it would be impossible, I think, for McIntosh, to whose solicitors it was addressed, or for any other person, to doubt that its meaning was that if McIntosh allowed the licence of the Village Inn to lapse, and complied with the other conditions expressed in the letter of the Stipendiary Magistrate, a licence would be granted for the new house indicated in the correspondence, to a suitable nominee. This seems to me to be put beyond a doubt by the concluding paragraph of the letter. The tenor of the letter, in fact, suggests-what was doubtless intended by McIntosh at least-that a scheme should be carried into effect whereby the licence of the Village Inn should be in effect transferred to a new house in New Plymouth. Such a scheme is not in itself unlawful on the part of the applicant, as has been held by this Court, with reference to this same house, in the case of Ex parte Gaukrodger, In re O'Driscoll's Application(1); but this ruling must, I think, be subject to this that, as the licence could not be removed, but a new licence must be applied for, it was the duty of the Stipendiary Magistrate, if any existing licence were allowed to lapse, to consider every application for a new licence in any part of the licensing district on its merits, in the interests of the public alone. It follows, therefore, that it was not proper upon the part of the Stipendiary Magistrate to commit himself to any statement or expression which involved, or appeared to involve, a promise to grant a new licence to any particular house. This, in my opinion, is what the letter of the Stipendiary Magistrate does in effect promise. Having. in view the terms of that letter, it would, I think, be very difficult, if the conditions imposed by the letter were complied with, for the Stipendiary Magistrate to weigh with an entirely unbiassed mind the merits of contending applications for a new licence. It is, I think, a reasonable inference that if McIntosh expended £3,000 in building a house, and in complying with (1) 20 N.Z. L.R. 660; 3 Gaz. L.R. 390. C.A. 1902. Ex parte In re the conditions laid down in the letter of the Stipendiary Magistrate, upon the faith of that letter, and another person had applied for a new licence for a slightly better house, in a FRETHEY, slightly better locality, the fact that the Stipendiary MagisO'DRISCOLI's trate had by that letter promised, or appeared to promise, APPLICATION. a licence to McIntosh upon compliance with those conditions might render it exceedingly difficult for the Stipendiary Magistrate to approach the consideration of the rival applications with a wholly unbiassed mind. The Stipendiary Magistrate himself says no more upon this point than that he would have had no hesitation in refusing the respondent's application "if another application had been made for, say, a brick "building of a much superior description, and on a better "site." There was, in fact, another genuine application for a new licence, which was refused by the Stipendiary Magistrate. The evidence leaves no doubt, and it is not in fact disputed, that the respondent's was the more meritorious application. If, however, this motion is made by a person entitled to the writ ex debito justitiæ, that is a matter which cannot be taken into consideration by this Court. To do so would be to constitute this Court an appellate Court to review the decision of the Stipendiary Magistrate upon the merits, which it is not, and cannot be. It has now to be considered whether or not the appellant is entitled to the writ ex debito justitia. The appellant is not a resident in the neighbourhood of the premises, within the meaning of "The Licensing Act, 1881," section 59: Isitt v. Taylor(1). He is one of ten persons who signed a memorial intended to comply with section 57, ibid. The Stipendiary Magistrate held, and properly held, that this memorial was irregular, and that it did not give the persons who signed it any locus standi: Section 58, ibid. He, however, allowed counsel for the persons whose names appeared upon the memorial to address him, and he offered to them the opportunity of calling evidence, if they had seen fit to do so. The 64th section of the Act provides that "No person "other than a person entitled to appear before the Licensing "Committee and object personally to the granting of a new "licence may appear and oppose the granting of such licence, "and the Licensing Committee may award such costs as they "shall deem just to the party who shall succeed in the pro (1) 10 N.Z. L.R. 646. |