Horsey v Caldwell

73 CLR 304

National Security-Black marketing-Offence-Declared goods- Meat-Sale at price

greater than fixed maximum price-Mazimum price-Fication-" Proclaimed area " - " Part of Australia"-Provisions in regulation-Quaere, mutually SYDNEY,

exclusive alternatives-Order-Validity-Severability of clauses-Conviction- Penalty-Black Marketing Act 1942 (No. 49 of 1942), SS. 3, 4-Crimes Act 1914-1941 (No. 12 of 1914-No. 6 of 1941), S. 20-National Security (Prices) Regulations (S.R. 1940 No. 176-1946 No. 19), regs. 21, 22, 23 (1), (1A), 29, 45B (ba).

The methods of fixation prescribed by reg. 23 (1) of the National Security (Prices) Regulations may be exercised concurrently.

Ex parte Byrne Re King, (1944) 45 S.R. (N.S.W.) 123; 62 W.N. 104, approved.

By reason of amendments to reg. 23 (1) and reg. 45B made by Statutory Rule 1946 No. 19 made subsequent to the decision in Willmore v. The Commonwealth, (1945) 70 C.L.R. 587, that decision no longer applies.

For the purposes of Prices Regulation Order No. 2166 the Commissioner, in the seventh schedule to the order, divided the State of New South Wales into nine areas, principally on the basis of including in the respective areas certain contiguous municipalities and shires. Area 1A included the City of Sydney and six shires and fifty-eight municipalities in the vicinity of Sydney. By par. 8 of the order the Commissioner purported to fix and declare the maximum prices at which meat might be sold in New South Wales to be the prices shown in the sixth schedule. The prices SO fixed and declared were different in respect

Held that the areas were "localities of sale" within the meaning of reg. 23 (1A), therefore par. 8, read in conjunction with the schedules, was valid.

Semble: The areas specified in the seventh schedule to Prices Regulation Order No. 2166 are " parts of Australia " within the meaning of reg. 23 (1) (a).

73 CLR 305

APPEAL from a Court of Quarter Sessions of New South Wales.

At a Court of Petty Sessions, Sydney, on the information of Leslie Rupert Horsey, an Investigation Officer in the New South Wales Prices Branch, Henry Ernest Caldwell was charged under S. 4 of the Black Marketing Act 1942 in that he did an act which con- stituted black marketing within the meaning of S. 3 of that Act in that contrary to reg. 29 of the National Security (Prices) Regulations, made in pursuance of the National Security Act 1939-1943, he did at Sydney, within the City of Sydney, sell by retail declared goods, to wit, meat being two pounds and three ounces of weight of gravy beef and four lamb kidneys at a price (3s 8d.) being a greater price than the maximum price (2s. 4d.) fixed in relation to those goods under the said regulations for the sale of those goods. Caldwell was convicted and was sentenced to be imprisoned with hard labour for three months. He appealed against his conviction and sentence to a Court of Quarter Sessions under S. 122 of the Justices Act 1902-1940 (N.S.W.).

The Chairman of Quarter Sessions…

CaseChat Overview and Summary

This case concerned an appeal to the High Court of Australia from a decision of the Court of Quarter Sessions of New South Wales. The appellant, an Investigation Officer in the New South Wales Prices Branch, had laid an information against the respondent, Henry Ernest Caldwell, for selling meat at a price exceeding the maximum fixed under the National Security (Prices) Regulations. Caldwell was convicted in the Court of Petty Sessions but successfully appealed to the Court of Quarter Sessions, which quashed the conviction.

The High Court was required to determine the validity of Prices Regulation Order No. 2166, which fixed the maximum price of meat. Specifically, the court had to consider whether the Commissioner had the power to divide New South Wales into various areas and fix different maximum prices for meat in those areas, and whether the methods of price fixation prescribed by regulation 23(1) of the National Security (Prices) Regulations, particularly the alternatives presented by sub-paragraphs (a) and (b), could be exercised concurrently within the same order. The respondent argued that the areas defined in the order were not valid "parts of Australia" or "localities of sale" within the meaning of the regulations, and that the order improperly combined two mutually exclusive methods of price fixation.

The Court held that the areas defined in the Seventh Schedule to Prices Regulation Order No. 2166 were valid "localities of sale" within the meaning of regulation 23(1A) of the National Security (Prices) Regulations. It reasoned that regulation 23(1A) expressly permitted the Commissioner to fix different maximum prices in respect of different localities of trade, commerce, sale, or supply, and that the areas delineated in the order, including Area 1A encompassing the City of Sydney and its vicinity, fell within this power. The Court also found that the methods of price fixation under regulation 23(1)(a) and (b) were not mutually exclusive and could be exercised concurrently in the same order, citing the Supreme Court of New South Wales in *Ex parte Byrne Re King*. The Court further noted that subsequent amendments to regulation 45B had addressed the issue raised in *Willmore v. The Commonwealth*, rendering that objection to the order's validity no longer applicable.

Consequently, the High Court allowed the appeal, setting aside the order of the Court of Quarter Sessions and restoring the original conviction and sentence imposed by the magistrate. The Court found that the minimum sentence prescribed by the Black Marketing Act 1942 had been imposed, and therefore, no further consideration of the penalty was required.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established