Bird v John Sharp & Sons Pty Ltd - [1942] HCA 27

JOHN SHARP AND SONS PROPRIETARY

RESPONDENT. DEFENDANT,

ON APPEAL FROM A COURT OF PETTY SESSIONS OF National Security-Prices Regulations-Order fixing price of goods-Operation-

Repeal of regulations under which Order made-Substitution of new regulations Saving clause as to orders made under repealed regulations-Authority for Order in new regulations-Amendment of regulation authorizing Order by omission of MELBOURNE, portion thereof and insertion of identical and additional provisions-National Oct. 6, 28. Security Act 1939-1940 (No. 15 of 1939-No. 44 of 1940)-National Security (Prices) Regulations (S.R. 1939 No. 110)-National Security (Prices) Regula- tions (S.R. 1940 No. 176-S.R. 1941 No. 54), regs. 2, 2A, 22, 23-National Security (Prices) Regulations (S.R. 1941 No. 54), reg. 2-Prices Regulation Order No. 100.

The Commonwealth Prices Commissioner, acting under powers conferred upon him by the National Security (Prices) Regulations, Statutory Rules 1939 No. 110, made Prices Regulation Order No. 100 fixing the maximum prices at which declared goods might be sold. Statutory Rules 1939 No. 110 was repealed and replaced by the National Security (Prices) Regulations, Statutory Rules 1940 No. 176, reg. 2A (2) whereof provided: " All

under the repealed Regulations, which are in force at the commencement of these Regulations, shall, except SO far as they are inconsistent with these Regulations, be deemed to have been made under these Regulations." The provision of the new Regulations empowering the Commissioner to make orders of the nature of Prices Regulation Order No. 100 was reg. 23 (1), and by reg. 23 (5) it was provided: " 'Every order which has been, or is, made under sub-regulation (1) of this regulation shall apply in relation to all goods which are declared, whether before or after

66 CLR 234

the making of the order, to be declared goods and in respect of which the declaration is in force." Statutory Rules 1941 No. 54 provided that reg. 23 of Statutory Rules 1940 No. 176 should be amended by omitting sub-reg. and inserting in its stead new sub-regulations; the newly inserted sub-regula- tions conferred upon the Commissioner powers identical with those conferred by the omitted sub-regulation as well as certain further powers.

Informations for selling declared goods at prices higher than those fixed by Prices Regulation Order No. 100 were dismissed by the magistrate on the ground that Statutory Rules 1941 No. 54 repealed reg. 23 (1) of Statutory Rules 1940 No. 176 under which Prices Regulation Order No. 100 was to be deemed to have been made SO that Prices Regulation Order No. 100 ceased to have effect before the sales alleged in the information were made. On appeal by way of order to review :-

Held that Prices Regulation Order No. 100 continued in force after, and notwithstanding, the amendments made by Statutory Rules 1941 No. 54 in reg. 23 of Statutory Rules 1940 No. 176.

APPEALS, by way of orders nisi to review, from a Court of Petty Sessions of Victoria.

John Sharp &Sons Pty. Ltd. was prosecuted summarily in the Court of Petty Sessions holden at Melbourne,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1942] HCA 27
Decision Date: 28 October 1942

CaseChat Overview and Summary

The appellant, Henry Scorer Bird, appealed by way of orders nisi to review the decision of a magistrate who had dismissed three informations against the respondent, John Sharp & Sons Pty Ltd. The informations alleged that the company had sold declared goods at prices exceeding those fixed by the National Security (Prices) Regulations. The magistrate dismissed the charges on the basis that Prices Regulation Order No. 100, which fixed the relevant prices, had ceased to have effect prior to the alleged sales.

The legal issues before the court were whether Prices Regulation Order No. 100 continued in force after the amendments made by Statutory Rules 1941 No. 54 to regulation 23 of the National Security (Prices) Regulations (Statutory Rules 1940 No. 176), and consequently, whether the magistrate erred in rejecting the Order as evidence.

The court held that Prices Regulation Order No. 100 continued in force. While Statutory Rules 1940 No. 176 repealed the earlier regulations under which the Order was made, regulation 2A(2) provided that orders in force under the repealed regulations were to be deemed to have been made under the new regulations, unless inconsistent. Regulation 23(1) of Statutory Rules 1940 No. 176 provided the authority for the Commissioner to make such orders. Although regulation 23(1) was subsequently amended by Statutory Rules 1941 No. 54, the court found that the amendment, by omitting and re-inserting substantially identical provisions, did not extinguish the authority of existing orders. Furthermore, sub-regulation 23(5) of Statutory Rules 1940 No. 176, which stipulated that orders made under sub-regulation (1) applied to declared goods, served as a continuing source of validity for Order No. 100.

The appeals were allowed, with costs, and the cases were remitted to the police magistrate to be dealt with according to law.

Orders