Lee v Evans
112 CLR 276(Decision by: Taylor J)
Lee v Evans
Court:
Judges:
Barwick CJ
Kitto J
Taylor JWindeyer J
Owen J
Subject References:
Corporations
Business names
Prohibition of use in invitation to public to lend money
Legislative References:
Registration of Business Names Act 1928 (SA) - Section 4a
Judgment date: 5 November 1964
SYDNEY
Decision by:
Taylor J
The question we are called upon to consider in this appeal is whether upon the evidence in the case it can be said that an invitation extended to Owen Claud Broadbent and John Noel Broadbent to deposit moneys with or lend money to the appellant was, in the language of s. 4a (1) of the Registration of Business Names Act, 1928-1961, an invitation to the public. The magistrate before whom the complaint came in the first instance was of the opinion that it was not, but upon appeal to the Supreme Court the contrary view was taken and the appellant was then convicted. This decision, it seems to me, rests upon the proposition that an invitation to any member of the public, "as a member of the public", constitutes an invitation to the public.
With respect to the views of the members of the Full Court I am of the opinion that this broad proposition should be rejected for it takes no account of the character of the invitation which, it seems to me, is the critical question in this case. It is true that the Full Court entertained the view that the invitation to the Broadbents "was an incident in the course of a campaign to raise money from the public" [F24] but there was quite insufficient evidence to establish the nature or character of any invitation extended to any other member of the public. Indeed, it is only proper to say that this question was not the subject of any real inquiry before the magistrate. Consequently, as I see it, the real question before us is simply whether the invitation to the Broadbents can, in the circumstances, be characterized as an invitation to the public.
It is unnecessary to re-state the facts which have already been fully set out by the Chief Justice but two things must be borne in mind. The first is that it is common ground that the invitation which was proved by the evidence was communicated to the Broadbents alone, and the second, that the Chief Justice has observed, and I agree with him, that this invitation "was not general but particular to them". I mention these matters because I think it is necessary to draw a distinction between the essential character of the invitation and the manner of its communication or publication and it is the former element and not the latter which is ultimately of critical importance in the case. With this distinction in mind I add that in a case where the invitation is in essence an invitation to the public generally it is of no consequence whether it is communicated or published to one or many members of the public whilst in other cases the invitation may be so communicated or so published as to make the invitation, so published or communicated, an invitation to the public.
In the present case there was, in my view, nothing in the character of the invitation extended to the Broadbents to invest it with the character of an invitation to the public and the evidence does not establish any other publication or communication of a like invitation generally. It may be true, as the Full Court said, that the invitation to the Broadbents was "an incident in the course of a campaign to raise money from the public" [F25] but in order for the prosecution to succeed it was necessary to establish not merely that there was an invitation to the public to entrust moneys to the appellant for the purpose of investment but that there was an invitation to the public to deposit money with or lend money to the appellant and, further, that in extending that invitation the appellant used or made reference to the business name in question. To my mind the evidence is insufficient to establish that this occurred and, accordingly, I agree that the appeal should be allowed.