Cody v J H Nelson Pty Ltd
(1947) 74 CLR 629(Judgment by: RICH J)
Between: CODY
And: J H NELSON PTY LTD
Judges:
LATHAM CJ
RICH JSTARKE J
DIXON J
McTIERNAN J
Subject References:
National Security
Judgment date: 9 June 1947
Melbourne
Judgment by:
RICH J
This is an appeal by an informant from a decision of a magistrate dismissing an information. The information was one of a number heard together, all of which were dismissed. That, before us, charges the defendant with failing to keep proper books of account. The other informations which have not been made the subject of an appeal contain charges of selling meat at excessive prices contrary to the National Security (Prices) Regulations. All the informations were laid under the Black Marketing Act. The defendant succeeded in persuading the magistrate that on the evidence of the informant it appeared that it had not sold the meat to persons named in the information as having bought it at excessive prices. The transactions according to the finding of the magistrate were not sales by the defendant but formed part of an employment by the alleged buyers of the defendant as their agent to secure meat for them. This conception of the transactions was carried over by the magistrate into the information charging the defendant with a failure to keep proper books. It is not contested that, as the evidence stood at the close of the informant's case, the proof supported a conclusion that the books kept were improper. But the magistrate took the view that under reg. 49 of the National Security (Prices) Regulations under which the offence was constituted it was unnecessary for an agent to keep books in connection with agency transactions. In announcing his decision the magistrate expressed himself as if this charge related only to the accounting in connection with the same customers, who numbered only three, as were named in the other informations. I do not know why he supposed that the charge was so limited. It would hardly make sense if it were restricted to the accounts of three customers of an entire business. However, there was but a scintilla of evidence that other customers employed the defendant as agent. In my opinion the decision of the magistrate was wrong for the reason that as the evidence stood proper books of account of the business considered as a whole were not kept. The business appears prima facie to have been that of a wholesale meat vendor and I do not think that an inference that it had entirely lost that character was justified as the evidence was left. The point, however, on which the appeal was opened was a different one. It was that reg. 49 covered the supply of services as well as businesses involving the sale or supply of goods. No doubt this is so, but the appellant became involved in difficulties as to whether the point had been made before the magistrate. Having regard to these difficulties, I prefer to place my decision on the ground above stated, which I think is sufficiently covered by the order nisi to review. In this case, as in the case of R. v. Regos Ante, p. 613., the point was taken that reg. 3 of the Black Marketing Regulations, Statutory Rules 1943 No. 274 as amended by Statutory Rules 1945 No. 114, reg. 3, by which contraventions of reg. 49 of the National Security (Prices) Regulations are made black marketing is beyond the powers of the Governor-General in Council. The wide powers given by s. 17(a) of the Black Marketing Act are expressed in language which, according to its ordinary meaning, is wide enough to cover the regulation attacked. But counsel proceeded to restrict its meaning by arguing from the context and the use of the ejusdem-generis rule. I think it is enough in this judgment for me to say that it is impossible to impose a sufficient restriction upon the regulation-making power to exclude from its ambit a regulation such as that made by reg. 3 of the Black Marketing Regulations.
2. The appeal should be allowed, the magistrate's order set aside and the information remitted to the magistrate for rehearing.