Moran and Cato Pty Ltd v Cantlon - [1914] HCA 60

MORAN &CATO PROPRIETARY LIMITED # APPELLANTS

DEFENDANTS, CANTLON

ON APPEAL FROM THE SUPREME COURT OF Trading Stamps - " Issue" on sale of goods-Coupons entitling purchaser to obtain

other goods free- Promise by manufacturer or original vendor-Distribution by retailer - Trading Stamps Act 1901 (Vict.) (No. 1750), secs. 2, 3. MELBOURNE,

* The Trading Stamps Act 1901 by

' Trading stamp company sec. 2 provides that " Trader' means

means and includes any person firm or any person firm or company carrying

company who supplies any trading on any business who issues trading

stamps to any trader and undertakes to stamps to customers. Trading stamp

redeem the same or that the same will includes any stamp coupon cover pack-

be redeemed by giving or delivering age document means or device supplied

to the holder thereof any money or by any trading stamp company or issued by any trader which entitles the holder thereof to demand and receive

Sec. 3 provides that " (1) No person shall on the sale of any goods issue any from any trading stamp company or

trading stamps," and imposes a penalty from any person firm or company other

on a person doing so. than the said trader any money or

18 CLR 579

A retail dealer who, on sales by him of goods, passes on to the purchasers coupons whereby the manufacturer or wholesale merchant from whom the retail dealer purchased the goods and received the coupons promises that upon presentation by a user of the goods to the agent of the manufacturer or wholesale merchant of a certain number of the coupons such agent will give in exchange certain other goods, does not "issue trading stamps" within the the meaning of sec. 3 of the Trading Stamps Act 1901.

So held by Griffith C.J. and Powers J., Isaacs J. dissenting. Decision of the Supreme Court of Victoria (Hodges J.): Cantlon v. Moran &Cato Proprietary Ltd., (1914) V.L.R., 141 35 A.L.T., 132, reversed.

APPEAL from the Supreme Court of Victoria.

At the Court of Petty Sessions at Melbourne on 24th December 1913 an information was heard whereby Joseph Adam Cantlon charged that Moran &Cato Proprietary Ltd. did on the sale of certain goods, that is to say, 28 one pound packets of " Burford's No. 1 Starch" issue trading stamps to the informant contrary to the Statute in that case made and provided.

The evidence disclosed the following facts :-W. H. Burford &Sons Ltd., of Adelaide, South Australia, were manufacturers in South Australia of starch which for the purposes of sale they put up in packets. In each of the packets they placed a coupon which, in addition to the picture of a wringer, contained substan- tially the following statement -"This wringer value 18/6 free to users of Burford's No. 1 Starch. The world's best. One coupon for free wringer. In order to thoroughly establish Burford's No. 1 starch on the market we are giving every user during the next twelve months…

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: [1914] HCA 60
Decision Date: 20 October 1914

CaseChat Overview and Summary

The appeal concerned Moran & Cato Pty Ltd, the appellants, and Joseph Adam Cantlon, the respondent. The dispute arose from an information laid by Cantlon alleging that Moran & Cato, a retail grocer, had issued trading stamps to him contrary to the *Trading Stamps Act 1901* (Vic.). The coupons in question were contained within packets of starch manufactured by W. H. Burford & Sons Ltd. and promised that upon presentation of a specified number of coupons to the manufacturer's agents, certain goods would be provided. The High Court of Australia heard the appeal from a decision of the Supreme Court of Victoria, which had overturned a dismissal by the Court of Petty Sessions.

The central legal issue before the High Court was whether the retail grocer, Moran & Cato, in distributing coupons provided by the manufacturer W. H. Burford & Sons Ltd. with the sale of their starch, was "issuing trading stamps" within the meaning of section 3 of the *Trading Stamps Act 1901*. This required the Court to interpret the definitions of "trader" and "trading stamp" as provided in section 2 of the Act, particularly the distinction between a "trader" issuing stamps and a "trading stamp company" supplying them, and the nature of the promise made by the issuer.

Griffith C.J. and Powers J. held that the appeal should succeed. They reasoned that the coupons, as originally issued by W. H. Burford & Sons Ltd., were not trading stamps because they were redeemable by the manufacturer or its agents, and thus did not fall within the definition of a trading stamp which entitles the holder to demand goods from a person *other than* the original issuer. They further held that Moran & Cato, by merely distributing these coupons as part of the sale of the manufacturer's goods, did not "issue" them in the sense contemplated by the Act. The term "issue" was interpreted to mean making a promise on one's own behalf, not merely passing on a document containing a promise made by another. Isaacs J., dissenting, argued that the plain language of the Act prohibited any trader from giving a trading stamp to a customer on the sale of goods, and that Moran & Cato's act of handing over the coupons with the starch constituted an "issue" within the ordinary meaning of the word, thereby rendering the entire scheme of the Act nugatory if interpreted otherwise.

The High Court, by majority, allowed the appeal. The order nisi to review the decision of the Court of Petty Sessions was discharged, and the order of the Supreme Court of Victoria was reversed. Moran & Cato Pty Ltd. were to pay the costs of the appeal.

Orders