Cody v J H Nelson Pty Ltd
(1947) 74 CLR 629(Judgment by: LATHAM CJ)
Between: CODY
And: J H NELSON PTY LTD
Judges:
LATHAM CJRICH J
STARKE J
DIXON J
McTIERNAN J
Subject References:
National Security
Judgment date: 9 June 1947
Melbourne
Judgment by:
LATHAM CJ
This is an appeal by way of order to review from an order of a magistrate dismissing an information under the Black Marketing Act 1942. The offence charged was that the defendant company between 1st July 1945 and 31st January 1946 did an act which constituted black marketing as defined in the Black Marketing Act 1942 and the Black Marketing Regulations, to wit, failed to keep proper books and accounts as required by reg. 49 of the National Security (Prices) Regulations. The legislation by virtue of which such an offence is created is set forth in the case of R. v. Regos Ante, p. 613., which was heard at these sittings of the Court.
2. Seven other informations were laid against the defendant and they were heard together with the information in respect of which the magistrate made the order from which this appeal is brought. These other informations charged the defendant with selling meat to various persons at a price in excess of that fixed by the National Security (Prices) Regulations and orders made thereunder.
3. The defendant company carried on business as a wholesale butcher. The informant sought to prove that the company sold meat at prices in excess of those fixed by law. The witnesses called for the prosecution included retail butchers to whom it was alleged the unlawful sales were made. They, however, gave evidence that the manner of dealing between them and the defendant company had been changed, and that it had been arranged that the company should purchase meat as their agent and should charge to them the prices paid with additional charges for killing and delivery. This evidence was believed by the police magistrate and therefore the Crown cases on the seven informations failed. As to the eighth information, relating to failure to keep proper books, the magistrate said:-
"Regarding the other charge of not keeping proper books, now that I have held the defendant company acted as agent for Foden, Johnston and Bowman" (who were retail butchers who gave evidence in the case) "and that he was not selling or supplying his own goods in the course of his business as a wholesaler, this charge must also fail. He only has to keep books in connection with his own business as a wholesaler, and not if he is acting, as I have held he was acting, as agent."
4. This decision was in my opinion wrong. If a person carries on business as an agent he must, in a case to which reg. 49 of the Prices Regulations applies, keep such books and accounts as are proper for his agency business. But it does not follow that the decision of the magistrate should be set aside. It may be that it was right upon other grounds. But the appellant contends that the evidence showed that the defendant company was carrying on a business of supplying "an agency service," that it did not keep proper books for that business and that the defendant should accordingly be convicted. (at p634)
5. Various questions were argued upon the appeal and, in particular, the question of the validity of the Black Marketing regulation which made a breach of reg. 49 of the Prices Regulations a black-marketing offence. This question has been dealt with fully in the case of R. v. Regos Ante, p. 613., and I do not here repeat the reasons which I have given in that case for my opinion that the challenged Black Marketing regulation is valid. It was also argued that in the Court of Petty Sessions the whole case was conducted as a case relating to the sale of goods and to the keeping of books etc. appropriate to that business and not as a case relating to the supply of any service or to the books proper to be kept for an agency business.
6. Regulation 49 provides:-
"Every person who in the course of, or for the purposes of, or in connexion with, or as incidental to, any business carried on by him -
- (a)
- produces, manufactures, sells or supplies any goods whatsoever; or
- (b)
- supplies or carries on any service whatsoever, shall, for the purposes of these Regulations, keep proper books and accounts."
7. The case was fought before the magistrate under par. (a); that is, with reference to selling certain goods, namely meat, which it was proved had been "declared" as goods under reg. 22 of the Prices Regulations. There was no evidence that any service had been "declared." The respondent contended that the appellant should not now be allowed to make a new case upon appeal, namely that the books kept were not proper for an "agency service." The appellant would have difficulty in succeeding upon any such case not only because it would be a new case, but, further, because there was no evidence that any service had been "declared" under the Prices Regulations, and there is much to be said for the proposition that reg. 49(1)(b) applies only where a declared service is supplied or carried on. But these difficulties in the way of the appellant disappear if there was evidence that the defendant company carried on a business in the course of which it sold or supplied goods (viz., meat) which had been declared.
8. The evidence in the case was principally directed to the particulars of the seven alleged sales in respect of which the charges of selling at prices in excess of lawful prices were laid. But evidence was also given that the defendant company had carried on business as a wholesale butcher "for some number of years." In particular, an accountant gave evidence that the books kept by the company showed that the company was carrying on "an ordinary trading business." One of the witnesses acceded to the statement that the new arrangement as to buying as an agent was an "arrangement which he" (the manager of the company) "had with some of his other customers." This arrangement apparently applied (according to this evidence) only in the case of "some" of the customers. It would appear, therefore, that as to others of its customers the company acted as before, i.e., sold meat to them as a wholesale butcher. There was evidence therefore that the defendant company was dealing in meat, which was declared goods. The dealings in meat were partly as a principal (buying and selling), and partly as a buying agent with the added functions of killing and delivering. There was evidence that the books kept were not proper books for any kind of business - and in particular for the business of dealing in meat as the defendant in fact dealt with meat. Thus there was prima-facie evidence of a breach of reg. 49(1), par. (a), viz., the defendant company, in the course of a business which it carried on, sold and supplied declared goods and was therefore bound to keep proper books and accounts, and there was evidence that the books and accounts were not proper for that business. The statement of the magistrate's reasons for dismissing the charge of failing to keep proper books and accounts shows that he acted upon the erroneous view that proof that in certain cases the defendant was acting as agent made it unnecessary to consider whether, in the business as a whole which the defendant company carried on, it kept proper books. There was a case for the defendant to answer, and therefore the appeal should be allowed and the case should go back to the magistrate for rehearing.