Hendy v Rider - [1919] HCA 1

RESPONDENT. INFORMANT,

ON APPEAL FROM THE SUPREME COURT OF Public Health-Offensive trades-Marine stores-Health Act 1915 (Vict.) (No.

Sec. 286 of the Health Act 1915 (Vict.) provides that " Any person (1) who establishes or carries on within any city town borough or shire without the consent in writing of the council thereof any of the trades businesses or occupa- tions usually carried on in or connected with the undermentioned works or establishments (that is to say) trade business process or manufacture whatsoever causing effluvia offensive fumes vapours or gases

or any other noxious or offensive trade shall be guilty of an offence," &. Held, that the business of dealing in bottles and old metals was a business usually carried on in or connected with marine stores within the meaning of the section, notwithstanding that it was carried on in such a manner as not to be offensive, and, therefore, that the carrying on of the business without the consent of the local council was an offence against the section.

Decision of the Supreme Court of Victoria (Irvine C.J.): Rider v. Hendy, (1918) V.L.R., 280; 39 A.L.T., 195, affirmed.

APPEAL from the Supreme Court of Victoria.

At the Court of Petty Sessions at Prahran an information was heard whereby Henry Rider charged that A. A. Hendy " did carry

26 CLR 6

A. on the business of a marine store without the consent in writing

of the Council of the City of Prahran." Evidence was given by the informant to the effect that the defendant was carrying on the business of a marine store at Duke Street, Windsor, but had not got the written consent of the Council of the City of Prahran; that the informant had frequently visited the defendant's premises and seen collectors bringing in bottles and old metals which the defendant purchased from them; that the defendant had a licence as a dealer in special wares under the Marine Stores and Old Metals Act 1915 that the defendant's premises were clean, and that there was nothing offensive there; and that there was a notice posted on the defen- dant's premises in the following words No rags, bones or fat bought. Please do not bring them in the yard. Only bottles and metals bought."

The magistrates having dismissed the information, the informant obtained an order nisi to review their decision on the grounds that on the evidence before the Court of Petty Sessions the defendant should have been convicted, and that the evidence showed that the written consent of the Council of the City of Prahran was neces- sary before the business carried on by the defendant could be legally carried on. On the return of the order nisi, Irvine C.J. made it absolute, and remitted the case to the Court of Petty Sessions for rehearing with the expression of his opinion that the defendant's premises were an establishment which would ordinarily be called a marine store and was therefore one which, whether offensive or not…

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: [1919] HCA 1
Decision Date: 7 March 1919

CaseChat Overview and Summary

The case of *Hendy v Rider* concerned an appeal to the High Court of Australia from a decision of the Supreme Court of Victoria. The informant, Rider, had laid an information against the appellant, Hendy, alleging that Hendy carried on the business of a marine store without the written consent of the Council of the City of Prahran, contrary to section 286 of the *Health Act 1915* (Vic.). Evidence was presented that Hendy dealt in bottles and old metals, purchased from collectors, and held a licence as a dealer in special wares under the *Marine Stores and Old Metals Act 1915*. The premises were described as clean, and a notice indicated that only bottles and metals were bought. The magistrates dismissed the information, but on review, the Supreme Court of Victoria, by Irvine C.J., made the order absolute, remitting the case for rehearing with the opinion that the business was one ordinarily carried on in a marine store and thus covered by section 286, irrespective of whether it was offensive.

The legal issues before the High Court were whether the business of dealing in bottles and old metals, as conducted by the appellant, constituted a business "usually carried on in or connected with marine stores" within the meaning of section 286 of the *Health Act 1915*, and whether the section applied to such businesses regardless of whether they were actually offensive. The appellant argued that section 286 should be interpreted as applying only to businesses that were in fact offensive, given its placement within the "Offensive Trades" division of the Act, and that the Supreme Court should not have interfered with the magistrates' finding that the business was not usually carried on at marine stores.

The High Court dismissed the appeal, holding that the facts established that the appellant carried on a business of dealing in bottles and old metals, which was a business usually carried on in or connected with establishments called marine stores. The Court found it unnecessary to definitively define "marine store" for the purposes of the case. It was sufficient that the business fell within the scope of section 286, which required council consent for such establishments, irrespective of whether the specific operation was offensive. The Court affirmed that the appellant's business, conducted without the necessary consent, constituted a breach of the Act, and the Supreme Court's order to review was rightly made absolute.

Orders