Slattery v Bishop - [1919] HCA 58

BISHOP AND ANOTHER

RESPONDENTS. DEFENDANTS,

ON APPEAL FROM THE SUPREME COURT OF Factories and Shops-Grocer, meaning of-Sale of articles usually sold by grocer-

Evidence-Factories and Shops Act 1915 (Vict.) (No. 2650), sec. 226. Practice (High Court)-Appeal from Supreme Court of State-Special leave-Rescis.

sion-Question of fact.

Held, by Knox C.J., Isaacs and Rich JJ., that a shopkeeper who habitu- ally in the course of his business sells goods of a description usually sold by a given class of traders is not for the purposes of the Factories and Shops Act 1915 (Vict.) excluded from that class by reason of the fact that his business includes the sale of other articles to an equal or greater extent.

Held, therefore, by Knox C.J., Isaacs and Rich JJ. (Gavan Duffy J. dissenting), that where, on a prosecution under sec. 226 of the Factories and

27 CLR 106

Shops Act 1915 for that the defendants carried on the business of a grocer in which business no employee receiving not less than a certain wage was engaged, and employed an improver in connection with that business not being entitled under a certain determination of the Grocers' Board to do so, BISHOP.

the evidence established to the satisfaction of the Magistrates that the defen- dants, who kept a ham and beef shop, habitually in the course of their business sold articles that are usually sold by grocers, it was not reasonably open to the Magistrates to decide that the defendants were not grocers.

The High Court will grant special leave to appeal in a proper case on a ques- tion of fact where that question is one of ultimate fact based on admitted facts and the object of the appeal is to secure uniformity in the administration of justice.

Decision of the Supreme Court of Victoria (Hood J.) reversed.

APPEAL from the Supreme Court of Victoria.

At the Court of Petty Sessions at Caulfield an information was heard whereby John Joseph Slattery, an Inspector of Factories and Shops, charged that George James Bishop and William Robert Bishop, trading as Bishop Brothers, on 22nd March 1919, being a date subsequent to the coming into operation of the determination of the Grocers' Board, carried on the process, trade or business of a grocer, in which process, trade or business no employee receiving not less than 65s. per week of 48 hours was engaged, and that they unlawfully employed in connection with such process, trade or business, one improver, William Borlase, they under the provisions of the determination of the Board not being entitled to employ in such process, trade or business, any improver. The prosecution was under sec. 226 of the Factories and Shops Act 1915 (Vict.). After hearing evidence the Magistrates dismissed the information, holding that the defendants did not carry on the business of a grocer. The informant obtained an order nisi to review that decision, which was discharged by Hood J., who held that the question whether the defendants carried on a…

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 Slattery v Bishop

Details

AGLC: Slattery v Bishop [1919] HCA 58
Case: [1919] HCA 58
Decision Date: 5 November 1919

CaseChat Overview and Summary

The case of *Slattery v Bishop* involved an appeal to the High Court of Australia from a decision of the Supreme Court of Victoria. The appellant, an Inspector of Factories and Shops, had laid an information against the respondents, George James and William Robert Bishop, trading as Bishop Brothers, alleging they had unlawfully employed an improver in their business, which was claimed to be that of a grocer, in contravention of the *Factories and Shops Act 1915* (Vic.). The Magistrates had dismissed the information, finding that the respondents did not carry on a grocery business. The Supreme Court of Victoria, through Hood J., upheld the Magistrates' decision, deeming the classification of the business a question of fact not amenable to review.

The central legal issue before the High Court was whether the Magistrates' finding that the respondents were not grocers was reasonably open to them on the evidence presented. Specifically, the court had to determine the legal principle governing the classification of a business as a "grocer" under the *Factories and Shops Act 1915*, particularly when the business sold a mix of goods, including those typically sold by grocers and others. The court also considered whether the High Court should grant special leave to appeal on a question of fact, especially when uniformity in the administration of justice was at stake.

The High Court, in a majority decision, held that a shopkeeper who habitually sells goods of a description usually sold by a given class of traders is considered part of that class for the purposes of the Act, even if their business also includes the sale of other articles to an equal or greater extent. The court reasoned that where the evidence clearly establishes that a shopkeeper habitually sells a number of items commonly sold by grocers, it is not reasonably open for a tribunal to conclude that they are not grocers. This conclusion was strengthened by the fact that the respondents had sought a suspension certificate for grocers' closing hours and had secured their stock of groceries after those hours. Consequently, the High Court found that the Magistrates' decision was not reasonably open on the admitted facts and that Hood J. erred in discharging the order nisi.

The High Court allowed the appeal, reversed the decision of the Supreme Court of Victoria, and convicted the respondents of the offence charged, imposing a fine of one shilling. The appellant was ordered to pay the respondents' costs of the appeal, as per an undertaking given when special leave to appeal was granted.

Orders