Cody v J H Nelson Pty Ltd

(1947) 74 CLR 629

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(Decision by: McTIERNAN J)

Between: CODY
And: J H NELSON PTY LTD

Court:

Judges: LATHAM CJ
RICH J
STARKE J
DIXON J

McTIERNAN J

Subject References:
National Security

Hearing date: May 13, 14 1947
Judgment date: 9 June 1947

Melbourne

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Decision by:
McTIERNAN J

I am of opinion that this appeal should be allowed.

2. The information to which it relates contained a general allegation of a breach of reg. 49 of the Prices Regulations. There were no particulars furnished of the breach alleged. The regulation imposes an obligation both in respect of goods and services. The information now in question was heard with seven other informations alleging that the offence of black marketing was committed by selling meat by wholesale at prices in excess of the prices fixed under the regulations. These informations and the present information were dismissed. The magistrate held that in the case of each of the traders to whom it was charged that the defendant sold meat at a price in excess of the fixed price the transaction was that the defendant purchased stock as the trader's agent and charged him the amount which it paid and the cost of killing and delivery: and that none of the alleged incriminating transactions was a sale of goods.

3. The magistrate's decision on the information alleging a breach of reg. 49 was in these terms:-

"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 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."

The finding that the defendant was not selling or supplying his own goods in the course of his business as a wholesaler, if correct, might be an answer to a charge under reg. 49(1)(a), but not necessarily under reg. 49(1)(b).

4. The informant, by his grounds of appeal, seeks to have the defendant convicted under reg. 49(1)(b). He relies upon a view of the facts which is consistent with that taken by the magistrate but disputes the correctness of the magistrate's view that the defendant was not bound by reg. 49 to keep books in respect of the services which he supplied as an agent. In order to establish this ground of appeal it would be necessary for the informant to show that these were services within the meaning of reg. 49(1)(b) and that they were "declared services." There was no proof before the magistrate of what were "declared services": such evidence will not be received by this Court in such a proceeding as the present: it being strictly an appeal. It was urged on behalf of the defendant that the informant had not hitherto alleged that the offence charged consisted of a contravention of reg. 49(1)(b) and that the Court should not at this stage entertain the case made in the grounds of appeal. But this is hardly a new case: it is within the terms of the information; and no particulars were sought or given of the breach of reg. 49 which the informant would seek to prove. In any case, I think that as the evidence stands, the objection can have no weight. Although the point was not clearly made in this Court on behalf of the informant, there is evidence that besides entering into transactions of the nature found by the magistrate, the defendant carried on the business of supplying or selling by wholesale. The Chief Justice refers to this evidence in detail. If there was any defect in the proof of a breach of reg. 49(1)(b), there was, at any rate a case to answer under reg. 49(1)(a). That case was not disposed of by the finding that the transactions relied upon to support the other informations were not sales, but transactions carried out by the defendant as an agent. Upon the evidence that the defendant's business included selling or supplying by wholesale, and the evidence of the state of its books, there is a case for it to answer whether the books satisfied the requirements of reg. 49.

5. The submission that the regulation declaring a contravention of reg. 49 to be the offence of black marketing is invalid is dealt with in the case of R. v. Regos Ante, p. 613. The regulation is valid.

6. The magistrate's order dismissing the information the subject of this appeal should be set aside and the information remitted to the Court of Petty Sessions for rehearing.