Lukey v Edmunds

21 CLR 336

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(Judgment by: Griffith CJ)

Between: Lukey
And: Edmunds

Court:

Judges:
Griffith CJBarton J
Isaacs 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

Hearing date: SYDNEY 5 April 1916; 6 April 1916; 11 April 1916
Judgment date: 11 April 1916

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Judgment by:
Griffith CJ

This suit is brought to obtain a declaration that the provisions of the Necessary Commodities Control Act 1914 do not extend to or affect the Australian Gas Light Co That company was incorporated by an Ordinance passed in the year 1837, and its operations are carried on upon a very large scale in the City of Sydney and its suburbs lying to the south of Port Jackson and the Parramatta River. In 1912 an Act called the Gas Act 1912 was passed which contains general provisions, principally relating to the quality of gas, which are applicable to all persons corporations or companies supplying gas within the State, and also contains special provisions, embodied in ss. 15 to 20, applicable only to the companies mentioned in the first Schedule to the Act and such others as may afterwards be added by Statute. The companies named were the plaintiff company and two others, one of which supplies with gas practically the whole of the suburbs of Sydney lying to the north of Port Jackson and the Parramatta River, and the other supplies with gas the City of Newcastle, which is by far the largest provincial town in the State. These special provisions relate entirely to matters of internal finance. They establish what is called a "standard price," and allow the scheduled companies so long as they supply gas at that price to pay a dividend up to 10 per cent. on their original capital paid up before the passing of the Act, and 7 per cent. on paid-up capital issued as ordinary capital, and 5 per cent. on paid-up capital issued as preference capital, after the passing of the Act. The scheduled companies were also authorized to capitalize within six months from that date their reserves and premium capital. But the amount which might be so capitalized by the plaintiff company was limited to PD425,000. The "standard price" to be charged for gas supplied to private consumers by such companies is to be 3s. 6d. per 1,000 feet. If the cost of production should be increased by an alteration in labour conditions consequent upon an award made under the Industrial Arbitration Act 1912, a company were entitled to have the standard price chargeable to consumers raised. If a company reduced the price charged by them below the standard price they were entitled to pay an increased dividend according to a sliding scale, and, conversely, if they charged more than the standard price, the dividend that might be paid was to be reduced in a prescribed proportion. A company are not allowed to accumulate any funds beyond such amount as is required for certain special reserves, the permitted amount of which is limited, and for the payment of the permitted dividends.

The Necessary Commodities Control Act 1914 is a temporary Act, its duration being limited to the continuance of the present state of war and not more than six months afterwards. It empowers a Commission, of which the defendants, other than the Attorney-General, are the present members, to regulate the highest selling prices of necessary commodities in different parts of the State. The term "necessary commodity" is defined to include, inter alia, "coal," "or other fuel," "gas for lighting, cooking, or industrial purposes," and "any article of food or drink for man or for any domesticated animal."

The plaintiff company's contention is based on the rule of construction expressed by the maxim Generalia specialibus non derogant, which is thus formulated by the Earl of Selborne L.C. in the case of Seward v The Vera Cruz ^[F1] at p. 68:"Now if anything be certain it is this, that where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier and special legislation indirectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular intention to do so."

They contend that the provisions of the Necessary Commodities Control Act are inconsistent with the special provisions of ss. 15-20 of the Gas Act, and are capable of reasonable and sensible interpretation without extending them to the subjects and the companies specially dealt with by those sections.

In the statement of claim they alleged, apparently for the purpose of showing that if their contention is accepted there would be something left for the provisions of the later Act relating to gas to operate on, that "There were at the respective dates of the Acts mentioned in pars. 4 and 5 hereof"-i.e., the Gas Act 1912 and the Necessary Commodities Control Act 1914-"and there are at the present time a large number of companies persons and corporations supplying gas for public consumption in various parts of New South Wales other than the three companies named in Schedule One of the Gas Act 1912."

In my opinion this fact, regarded as a fact, is not matter pleadable as controlling the construction of the later Act. But the Court is bound to take notice of any laws in force by which the supply of gas by other persons or corporations is regulated. There are eleven special Acts in force regulating the supply of gas in New South Wales by as many companies, in nine of which the maximum price to be charged is fixed. By the Local Government Act 1906 (No. 56) municipal councils are allowed to carry on the business of the manufacture and supply of gas, and an Ordinance has been made under the Act by which the councils are authorized to fix the price of the gas supplied by them. These are matters of law of which the Court must take judicial notice, and are, I think, relevant to the present case. The Court may also, I think, take judicial notice of the fact that about half of the population of the State, and probably a much larger proportion of gas consumers, is concentrated in the two cities of Sydney and Newcastle. But a comparison of the number of companies or corporations which actually supplied gas at the date of the passing of the Necessary Commodities Control Act (which would be the relevant date if the inquiry were permissible) with the number of scheduled companies is, in my opinion, not relevant to the question to be determined.

The rule relied upon by the plaintiff company is not a rule of law, but a subsidiary rule of construction which may often be usefully applied in considering the intention of the Legislature. In many-perhaps nearly all-of the cases which literally fall within the rule as stated by Lord Selborne L.C., that rule is sufficient to determine the matter. But it is the duty of the Court not to confine itself to the mere verbal or literary effect of the provisions, as if applied to an abstract subject. It must, in the first place, have regard to the paramount rule laid down in Heydon's Case ^[F2] that the Court must consider the occasion of passing the Statute, the matter which was regarded as requiring an alteration of the law, and the nature of the remedy provided for the evil which required alteration.

Applying this rule, I find that it was a well known fact at the date of the passing of the Necessary Commodities Control Act that the existing state of war had disturbed the ordinary operations of commerce, and affected not only the cost of the production or importation of necessary commodities but also the ability of many persons to buy them.

In this state of things Parliament might well have thought it desirable to endeavour to prevent persons who had derived an advantage from the temporary conditions from unduly profiting by it at the expense of their less fortunate neighbours by charging a greater price for necessary commodities sold by them than was fair, having regard to the necessities and abilities of the consumers, notwithstanding that such a law might impose hardship upon the sellers of a commodity by obliging them to sell, if they sold at all, at a price even less than the actual cost of the commodity to them.

This, then, being the occasion of the passing of the law and the probable effect of its provisions, the question arises whether it ought to be inferred that Parliament intended that all persons and companies in the State engaged in the business of supplying gas should bear their share of the common burden, and that all consumers of gas should have the benefit of the burden so imposed, or whether they intended to exclude from that benefit a full half of such consumers by exempting the scheduled companies from the burden.

Considering the matter from this point of view, I come to the conclusion that the circumstances existing when the Necessary Commodities Control Act was passed, the local distribution of population in the State, and the temporary character of the law, are sufficient to show that Parliament did not intend to exempt the scheduled companies from its general provisions, even though they should have the effect of reducing the dividends permitted by the special provisions of ss. 15-20 of the Gas Act.

The appeal therefore fails.