Lukey v Edmunds
21 CLR 336(Judgment by: Barton J)
Between: Lukey
And: Edmunds
Judges:
Griffith CJ
Barton JIsaacs J
Gavan Duffy J
Rich J
Subject References:
Statutes
Interpretation
Generalia specialibus non derogant
Necessary commodity
Legislative References:
Gas Act 1912 (NSW) No 71 - s 15; s 20
Necessary Commodities Control Act 1914 (NSW) No 18 - s 1; s 2; s 7; s 8
Judgment date: 11 April 1916
Judgment by:
Barton J
The question is really whether the Necessary Commodities Control Act 1914 empowers the Commission appointed thereunder to inquire and report to the Governor, as to what should be the highest selling price to be charged for gas by the Australian Gas Light Co Such a power was conferred by s. 7 with respect to any "necessary commodity" and that term by s. 2 means, inter alia, (b) "gas for lighting, cooking, or industrial purposes," and (e) "any article which, after a report of the Commission, has by resolution of both Houses of Parliament been declared to be a necessary commodity." We need not concern ourselves with the second of these definitions.
The plaintiff and appellant, who is the secretary of the Australian Gas Light Co suing on its behalf, seeks to have it declared that, by reason of ss. 15 to 20 inclusive, of the Gas Act 1912, the gas supplied by the Company is not, and cannot be made by resolution, a necessary commodity within the meaning of the definition quoted. He also seeks an injunction against an inquiry or report by the Commission, which he alleges the defendant Commission threaten and intend.
There is no need to set out fully the provisions of ss. 15 to 20 of the Gas Act. The standard price to be charged to consumers, for gas supplied by either of the three companies mentioned in the first Schedule, is 3s. 6d. per thousand feet; subject to be increased above that rate by the Executive upon a Judge's certificate that greater cost of production has been caused by an industrial award, and subject, after any such increase, to be decreased for similar causes down to, but not below, the standard rate. There are provisions defining the limits of divisible profits, authorizing the capitalization of reserves, and permitting a limited appropriation out of revenue to meet expenses incurred through accidents, strikes, or the necessity to remove plant or works. Where the dividend exceeds the standard rate, through a reduction of price below the standard already mentioned, funds may be apportioned to the reserve within certain limits. The other provisions need not be mentioned, except to say that the whole of the six sections mentioned constitute a strict regulation of the operations and profits of the three scheduled companies.
Now, while these six sections apply only to the scheduled companies, operating in Sydney and Newcastle, the Act is in the rest of its provisions a general one for the purpose of regulating in regard to all gas supplied, whether by companies, local authorities, or persons, the standards of illuminating power, purity, and pressure, and the accounts and audits of suppliers; and also for other purposes usual in similar Acts passed elsewhere.
We do not know how many gas suppliers there are in New South Wales, but we know that there are many others besides the scheduled three. For we take judicial notice that there are eleven special Statutes incorporating companies in New South Wales for the supply of gas. In nine of these Acts a maximum price is fixed. An Ordinance (No. 53) of the Governor in Council, made under the Local Government Act 1906, with the force of law, empowers municipalities to fix the price of gas which they supply to customers. Further, the populations of Sydney, its many suburbs, and Newcastle, served by the scheduled companies, together number little less than half of the entire population of this State.
It is argued on behalf of the appellant that the three scheduled companies at least are exempt from the operation of the Necessary Commodities Control Act in respect of the price of gas. Reliance is placed on the maxim Generalia specialibus non derogant: it is urged that the special provisions of the Act of 1912 as to the standard price of gas when sold by any of the scheduled companies are the specialia, from which the general terms of ss. 7 and 2 of the Necessary Commodities Control Act are not intended to derogate; that when the Legislature of this State included gas among necessary commodities it had no thought of the gas supplied by the three companies. If we are to regard the provisions of the Act of 1912 as to price as specialia, it is a question whether we must not regard in the same way the nine special Acts so far as they relate to price, and the power given to gas-supplying municipalities by the Local Government Ordinance. If we do, and if we apply the appellant's argument to them, there is extremely little subject matter, if there is any, on which the provisions of the Necessary Commodities Control Act in this behalf can operate.
The existence of the maxim does not relieve us of the duty of determining the question before us "upon the intent of the Legislature" to be collected from "the cause and necessity" of the Act being made, from a comparison of the several parts of the Act, and from "foreign" (meaning extraneous) "circumstances," so far as they are properly before us and can justly be considered to throw light upon the question. The law laid down to this effect in Stradling v Morgan, [F3] at p. 204 has the endorsement of the high authority of Turner L.J. in Hawkins v Gathercole [F4] and of Lord Hatherley in Garnett v Bradley, [F5] at p. 952.
Now, the Necessary Commodities Control Act was passed to make special provision, during the present war and for not more than six months thereafter, against excessive charges. That is its cause and necessity as shown in s. 1, and the reason why its operation is to be only temporary. From a comparison of its several parts I deduce that the intention of the Legislature was to include in its operation all the articles enumerated, wheresoever and howsoever produced in New South Wales, in order to meet the cause and necessity which were ex facie the reasons for its enactment. It was not intended to impair the general relief aimed at by allowing the continuance of any special privilege in price which might obstruct the fair extension of the protection of the Act in this time of war to all localities and classes. The purpose of the Act is an economic regulation which may fail to be effective if exceptions from it are allowed. I do not think it was intended to allow such exceptions, having regard to the circumstances within our judicial knowledge which have led to the enactment.
A report from the Commission to the Governor (s. 7) furnishes to the Executive the information on which doubtless it will decide to notify in the Gazette the maximum price (s. 8). There is nothing to show that the maximum in respect of any particular commodity when declared will be so low as to paralyze profitable production, but our common sense tells us that such legislation as this, if it is to achieve its avowed purpose, must lead to some sacrifices for the general welfare.
I cannot think it was the intention of Parliament to exempt the plaintiff's company and its two associates in the Schedule from any such sacrifices if the need for them really arises. As to any such necessity, nothing is further from my mind than to express an opinion.
But the cause of the Act, the context, and the surrounding circumstances concur in impelling me to the conclusion that it was the intention of the Legislature that the gas supplied by this company should take its place as one of the necessary commodities the maximum price of which is to be regulated as the public interest may appear to the Governor in Council to dictate while the War lasts.
I am therefore of opinion that the gas supplied by the plaintiff's company is a necessary commodity within the meaning of the Act. It follows that the judgment of the learned Chief Judge in Equity upon the demurrer must be sustained.