Slattery v Bishop

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.