De Bortoli v Kenny - [1948] HCA 12

DE BORTOLI

KENNY AND ANOTHER

RESPONDENTS. INFORMANT,

ON APPEAL FROM THE SUPREME COURT OF

NEW SOUTH WALES. Appeal-High Court-Appeal as of right-Decision of Supreme Court (N.S.W.) on

appeal from Court of Petty Sessions- Civil right amounting to or of the value of Three hundred pounds "-Price fixation- / Validity of notice-Sale of wine- Right to sell without the restriction of a notice as to fixed price-Competency of appeal-Special leave to appeal-Judiciary Act 1903-1947 (No. 6 of 1903- No. 52 of 1947), 8. 35 (1) (a) (2) -National Security (Prices) Regulations (S.R. 1940 No. 176-1947 No. 36), regs. 23 (1) (b), 45B (ba)-Prices - Regulation Order No.

Rules nisi for statutory prohibition granted for the purpose of bringing up for review seven convictions of the appellant for offences under the National Security (Prices) Regulations, and for each of which he had been fined £100, were discharged by the Supreme Court of New South Wales. The appellant appealed as of right to the High Court on the ground that the orders of the the Supreme Court fell within S. 35 (1) (a) (2) of the Judiciary Act 1903-1947 because they indirectly involved a question respecting a civil right amounting to or of the value of £300, the civil right being to sell goods without the restriction of a notice given by the Prices Commissioner fixing prices charge- able by the appellant.

Held that the orders of the Supreme Court merely affirmed the convictions which in themselves did not involve any civil right amounting to or of the value of £300, therefore the appeals were incompetent.

Kidney v. Melbourne Tramway and Omnibus Co. Ltd., (1902) 8 A.L.R. (C.N.) 29, disapproved.

In the circumstances, special leave to appeal from the decision of the Supreme Court of New South Wales (Full Court): Ex parte Bortoli; Re Kenny, (1948) 48 S.R. (N.S.W.) 288; 65 W.N. 93, in order to reconsider Horsey v. Caldwell, (1946) 73 C.L.R. 304, not granted.

76 CLR 454

APPEALS from the Supreme Court of New South Wales and APPLI-

CATION for special leave to appeal.

At a Court of Petty Sessions, Sydney, on the information of Charles Warren Kenny, an Investigation Officer of the Customs Department, Vittorio De Bortoli, of Bilbul, New South Wales, vintner, was charged as follows upon an information dated 1st August 1947, that he between 6th December 1945 and 16th April 1947, failed to comply with a provision of the National Security (Prices) Regulations made in pursuance of the National Security Act 1939-1946 and in force by virtue of the Defence (Tran- sitional Provisions) Act 1946 in that contrary to reg. 49 of the said regulations he being a person who in connection with a business carried on by him sold certain goods, namely wines, for the purposes of the said regulations did fail to keep proper books and accounts; (ii) upon three informations, all dated 1st August 1947, that he on 29th August 1946 3rd October 1946 and 22nd November 1946 respectively, at…

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.

Continue reading De Bortoli v Kenny

Details

AGLC: De Bortoli v Kenny [1948] HCA 12
Case: [1948] HCA 12
Decision Date: 20 August 1948

CaseChat Overview and Summary

The High Court of Australia heard appeals from the Supreme Court of New South Wales concerning seven convictions of Vittorio De Bortoli for offences under the National Security (Prices) Regulations. De Bortoli had been fined £100 for each offence. The Supreme Court had discharged rules nisi for statutory prohibition that De Bortoli had obtained to review these convictions. De Bortoli sought to appeal to the High Court as of right, arguing that the Supreme Court's orders indirectly involved a question respecting a civil right amounting to or of the value of £300, specifically the right to sell goods without the restriction of a notice from the Prices Commissioner.

The primary legal issue before the High Court was whether the appeals brought by De Bortoli were competent as appeals as of right under section 35(1)(a)(2) of the Judiciary Act 1903-1947. This required determining whether the orders of the Supreme Court, which affirmed the convictions, indirectly involved a question respecting a civil right amounting to or of the value of £300. The appellant contended that the validity of the Prices Commissioner's notice, and the potential financial consequences of its invalidity, engaged such a civil right.

The Court reasoned that the orders of the Supreme Court merely affirmed the convictions, and these convictions themselves did not directly or indirectly involve any civil right amounting to or of the value of £300. The Court distinguished between the financial consequences that might flow from the legal reasoning supporting a conviction and a civil right directly involved in the curial order itself. It held that the convictions, being criminal matters, did not satisfy the criteria for an appeal as of right under section 35(1)(a) of the Judiciary Act, regardless of the potential financial impact on the appellant's business. The Court considered the application for special leave to appeal separately, noting that the primary point of public importance concerned the validity of the price-fixing order, which had been addressed by subsequent amendments to the regulations and prior High Court decisions.

Consequently, the High Court found the appeals to be incompetent and ordered them to be struck out with costs. Special leave to appeal was refused.

Orders