COMPLAINANT, National Security-Black marketing-Offence-Price control-Declared good&Port
wine-Sale at price greater than fixed price-Maximum price-Fication- Relation to sale of goods " substantially identical" upon "terms and conditions SYDNEY,
substantially identical"-Vagueness and uncertainly.--Volidity of Order- April 30
Severability of clauses in Order-AdmissionsDirecto of company-Authority May 1.
to bind company-Black Marketing Act 1942 (No. 49 of 1942), 88. 3-5-National BRISBANE,
Security Act 1939-1943 (No. 15 of 1939-No. 38 of 1943), 88. 5 (5), 10 (4)- June 15.
Acts Interpretation Act 1901-1941 (No. 2 of 1901-No. 7 of 1941), 8. 46 (b)- National Security (Prices) Regulations (S.R. 1940 No. 176-1942 No. 513), Latham C.J., Starke, Dixon,
reg. 23 (1), (1A) (g) (h)-Prices Regulation Order No. 1015.
The meaning of the words "substantially identical goods' and "terms and conditions substantially identical" in relation to the sale of goods, as used in the definition of 'ceiling date" in clause 2 and in clause 3 of Prices Regula- tion Order No. 1015, is not so vague and uncertain as to make the Order invalid as not fixing a price. Even if some other clauses of the Order are bad which was not decided, the validity of clause 3 is preserved by the operation of S. 5 (5) of the National Security Act 1939-1943 and S. 46 (b) of the Acts Interpretation Act 1901-1941.
A manager of a company who has general authority to act in and in relation to the business of the company has authority to deal with any inquiry by government officials into the affairs of the company in relation to a possible breach of the law by the company in the ordinary conduct of its business, and a statement made by him in relation to such a matter is admissible in evidence against the company. Constitutional Law - Judicial power - Black marketing - Offence - Prosecution
-Consent of the Attorney-General-Report from Minister-Advice of committee -Administrative or judicial-Summarily or upon indictment-Penalty- Maximum and minimum prescribed-The Constitution (63 &64 Vict. c. 12), 8. 71-Black Marketing Act 1942 (No. 49 of 1942), S. 4 (2), (3), (4).
Section 4 (4) of the Black Marketing Act 1942, which provides that the offence of black marketing-which may be prosecuted summarily or upon indictment and for which maximum and minimum penalties are prescribed- shall not be prosecuted without the written consent of the Attorney-General after report from the Minister administering the regulations in relation to which the offence was committed and advice from a committee appointed by the Attorney-General and consisting of a representative from each of the three specified Commonwealth Departments, does not involve any exercise of judicial power and, therefore, is not an infringement of S. 71 of the Constitution.
Ex parte Coorey, (1944) 45 S.R. (N.S.W.) 287; 62 W.N. 167, approved.
ORDERS NISI to review.
Upon the complaint of Herbert Bede Cody, an officer of the Department of…
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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AGLC
Fraser Henleins Pty Ltd v Cody [1945] HCA 49
Case
[1945] HCA 49
Decision Date
CaseChat Overview and Summary
Fraser Henleins Pty Ltd (the company) and its managing director, Reginald Arthur Crowther, were charged with black marketing offences under the *Black Marketing Act 1942* (Cth). The company was accused of selling port wine at a price exceeding the maximum fixed under the National Security (Prices) Regulations, specifically Prices Regulation Order No. 1015. Crowther was charged as a director actively concerned in the company's business. Both were convicted and appealed to the High Court of Australia.
The High Court was required to determine several legal issues. These included whether the terms "substantially identical goods" and "substantially identical terms and conditions" within Prices Regulation Order No. 1015 were so vague as to render the Order invalid. The Court also had to consider the admissibility of statements made by Crowther as admissions against the company, the severability of potentially invalid clauses within the Order, and the constitutional validity of section 4(4) of the *Black Marketing Act 1942*, which prescribed a pre-prosecution consent procedure.
The Court reasoned that the phrases "substantially identical goods" and "substantially identical terms and conditions" were not so vague as to invalidate the Order. It held that while determining substantial identity might involve questions of degree, this did not render the provisions uncertain, drawing parallels with similar concepts in other legislation. The Court found that Crowther, as the general manager of the company, had the authority to deal with inquiries from government officials regarding the company's business, and therefore his statements made during such an inquiry were admissible against the company. Furthermore, the Court affirmed that even if some clauses of the Order were invalid, the remaining valid provisions, particularly those relating to price fixing based on a "ceiling date," were preserved by the operation of section 5(5) of the *National Security Act 1939-1943* (Cth) and section 46(b) of the *Acts Interpretation Act 1901-1941* (Cth), demonstrating the principle of severability. The Court also found that the pre-prosecution consent mechanism in section 4(4) of the *Black Marketing Act 1942* did not infringe section 71 of the Constitution as it did not involve the exercise of judicial power.
The High Court dismissed the appeals, upholding the convictions of both Fraser Henleins Pty Ltd and Reginald Arthur Crowther. The company's conviction and fine were affirmed, as was Crowther's sentence of imprisonment.