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Cody v J H Nelson Pty Ltd

Cody v J H Nelson Pty Ltd

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Case Copied 9 June 1947 48 min read

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J. H. NELSON PROPRIETARY LIMITED National Security-Price control-Offence-" Black marketing " - Statute-Con-

struction- " Ejusdem generis"-Regulation-Validity-Keeping proper books and accounts-Supply of goods-Supply of services-Wholesale butcher-Agency transactions-Purchases of meat for and on behalf of retailers-Nature of books MELBOURNE, and accounts-Black Marketing Act 1942 (No. 49 of 1942), ss. 3, 4, 17 (a)- May 13, 14 Black Marketing Regulations (S.R. 1943, No. 274-1945 No. 114), reg. 3-National Security (Prices) Regulations (S.R. 1940, No. 176-1946, No. 19), reg. 49.

Regulation 3 of the Black Marketing Regulations is a valid exercise of the power to make regulations conferred by S. 17 (a) of the Black Marketing Act 1942.

R. v. Regos, ante, p. 613, followed. The defendant company, which carried on the business of a wholesale butcher, was charged on eight informations in a Court of Petty Sessions with offences under the Black Marketing Act 1942. Seven of the informations related to sales of meat to retailers at prices in excess of those allowed by law; the eighth information alleged that the defendant had failed to keep proper books and accounts as required by reg. 49 of the National Security (Prices) Regulations and was therefore guilty of black marketing by reason of reg. 3 of the Black Marketing Regulations. The magistrate found that the transactions charged in the first seven informations were not sales of meat but that the meat had been delivered to the retailers under an arrangement by which the defendant acted as their agent in purchasing stock at the yards and charged them the amount paid plus costs of killing and delivery. As to the eighth information, he was of opinion that the defendant had to keep books only in connection with its

74 CLR 630

own business as a wholesaler, and not if it was acting, as he found, as agent, and in view of this finding the information failed. On appeal from the dismissal of the eighth information,

Held that the fact that the defendant had acted as agent in some transactions did not absolve it from the duty imposed by reg. 49 to keep books which were proper for its business and, as the magistrate did not appear to have directed himself to this question, the information should be remitted for rehearing.

APPEAL from a Court of Petty Sessions of Victoria.

Eight informations laid by Herbert Bede Cody charged J. H. Nelson Pty. Ltd., in a court of petty sessions, constituted by a police magistrate, at Footscray, with 'black-marketing" offences. The informations were heard together, the informant presenting all his evidence as one case, and no evidence being adduced by the defendant. The defendant carried on the business of a wholesale butcher. Seven of the informations alleged sales of meat by the defendant to retailers at prices in excess of those fixed by law. The eighth information charged that the defendant 'did an act which constituted black marketing as defined in the Black Marketing Act 1942 and the Black Marketing Regulations, to wit,…

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: [1947] HCA 17
Decision Date: 9 June 1947

CaseChat Overview and Summary

The appellant, the informant Herbert Bede Cody, appealed to the High Court of Australia from a decision of a magistrate who dismissed eight informations against the respondent, J. H. Nelson Pty. Ltd. Seven of these informations alleged offences of selling meat at prices exceeding those fixed by law, while the eighth alleged a failure to keep proper books and accounts as required by regulation 49 of the National Security (Prices) Regulations, thereby constituting "black marketing" under the Black Marketing Act 1942 and its associated regulations. The magistrate found that the transactions in question were not sales but agency arrangements, and consequently dismissed all informations.

The legal issues before the High Court included the validity of regulation 3 of the Black Marketing Regulations, which declared contraventions of regulation 49 of the National Security (Prices) Regulations to be black marketing, and whether the magistrate erred in dismissing the eighth information. Specifically, the court had to determine if the respondent, as a wholesale butcher, was obligated to maintain proper books and accounts for its business, including any agency transactions, and if the magistrate's finding that agency transactions absolved the company from this duty was correct.

The High Court held that regulation 3 of the Black Marketing Regulations was a valid exercise of the power conferred by section 17(a) of the Black Marketing Act 1942, following the decision in *R. v. Regos*. Regarding the eighth information, the court found that the magistrate's reasoning was flawed. The fact that the respondent acted as an agent in some transactions did not exempt it from the requirement under regulation 49 to keep proper books and accounts for its overall business. The magistrate had failed to consider whether the books kept were proper for the business as a whole, which included both wholesale activities and agency arrangements.

Consequently, the High Court allowed the appeal, set aside the magistrate's order dismissing the eighth information, and remitted the matter to the Court of Petty Sessions for a rehearing. The court determined that there was a prima facie case to answer regarding the failure to keep proper books and accounts, irrespective of whether the transactions were viewed as sales or agency services.

Orders