On 6 December 1876 Charles Barthing was summoned under common law to answer a charge that “on the 28th October at Gipps-street, East Melbourne, and on divers days and hours between that day and the date hereof (29th ult.) he did keep and maintain a certain common dancingroom near the dwelling-houses of divers subjects of our lady the Queen, and also divers public streets there, and for his own lucre and profits caused and procured large numbers of persons there to assemble, and unlawfully and injuriously did make and cause to be made divers loud and annoying sounds and noises whereby the said subjects there residing and passing were greatly annoyed, disturbed, and incommoded, thereby causing a public nuisance, and against the peace of our said lady the Queen and her subjects.”
It was said that the defendant was a boot maker in Gipps-street, and that he had erected at the rear of his shop a weather-board building, with an iron roof, which he used for the purpose of a dancing saloon. This saloon was a regular nuisance to the neighbourhood, in consequence of the noises which emanated from it. It was frequented by young persons, and all sorts of improprieties were carried on: in fact, its frequenters seemed to go there not for legitimate dancing but for a good rollicking row. Barthing charged each 7 man 1s. for admission, but admitted the girls free.
Martin Evans, inspector of revenue for the corporation, on the 28th of October, visited Barthings’s saloon at half past 10 p.m., and gained admission paying 1s. to the defendant. There were 50 or 60 persons of both sexes in the building. The music which was played could be heard in the street a long way off, and the noise of the dancing about 50 yards away. Sydney Gibbons, analyst, said that he lived near the dancing saloon in question and had found it to be a most intolerable nuisance.
From the 28th October to the present time the dancing had been stopped about 11 o’clock, but previously it had been carried on sometimes all night. The language used by some of the frequenters of the saloon was so bad that he could not permit his drawing room windows to remain open, or allow his family to go into the balcony at night. The general noise which was created at the saloon was very offensive. The music played there consisted of a cornet, violin, and piano, and someone was frequently to be heard strumming on the piano on Sundays. The conduct of those who attended the saloon when they came out of the building was of the most disreputable character.
James Richard Church, clerk in the Parliamentary Library, who resided in Hotham-street, just behind and about 35 yards distant from the dancing saloon, was among several witnesses who gave similar evidence; while George Martin, who lived in George-street, and was the owner of four houses in Gipps-street, directly opposite the saloon, and David Lumsden, owner of four houses next to the saloon in Gipps-street, both added that in consequence of the proximity to the saloon, their properties had deteriorated in value.
Among the witnesses for the defence were: Thomas Davis, cabinetmaker, who said he lived in the neighbourhood of the saloon; Mrs. Ellen Walton, living in Hoddle-street, whose husband was absent at sea; Mrs. G. Gordon, another resident in the locality, who all agreed that they had patronised the saloon and found it well conducted, and causing no nuisance whatever.
Charles Barthing was tried in the Central Criminal Court before judge and jury two weeks later. He pleaded “Not Guilty”, and was defended by Mr. Purves, who argued that the prosecution had been instituted by a number of people who objected to all kinds of innocent amusement being indulged in by what they termed the “common people.” There was no ground whatever for a criminal proceeding, and if any property-owner had felt himself injured his proper remedy was to apply to the civil courts for an injunction.
In his summing up His Honour, Mr. Justice Molesworth, said that there was the consideration whether the benefit derived from what might be looked upon as a nuisance outweighed the inconvenience. That court, churches, theatres, cemeteries, might be looked upon as nuisances by those who lived in their neighbourhood, but then they were necessary for the public benefit. On the one hand the jury must consider whether the inconvenience suffered by the neighbourhood was sufficient to create a nuisance, and then they must say whether the utility of the place outweighed that consideration.
The jury retired, and after three hours’ deliberation returned a verdict of guilty on the second count of the presentment, in which the defendant was charged with making “a loud noise.”
HIS HONOUR sentenced the defendant to one hour’s imprisonment, and to pay a fine of £10 and intimated that if the dancing saloon continued to be carried on he would be again prosecuted.
From The Argus, 7 and 21 December 1876
Note. The dancing saloon has been identified as being behind the premises now known as Gipps Street Cellars, 17 Gipps Street. Winston Burchett, in his book, East Melbourne Walkabout, states that, “There have been grocers and wine and spirit merchants at this address since 1871, with a break of five years between 1877 and 1881, during which time Bedggood & Co. operated a boot factory on the premises.”