Richardson v. Austin
(1911) 12 CLR 463(1911) 17 ALR 324
[1911] HCA 28
(Judgment by: Griffith CJ)
Richardson
v Austin
Judges:
Griffith CJBarton J
O'Connor J
Judgment date: 15 June 1911
Judgment by:
Griffith CJ
The appellant was charged on the information of the respondent, the Mayor of Geelong, that he on the 25th day of August, 1910, within the Town of Geelong, did expose for sale certain provisions usually sold in markets, to wit butter, in a place other than the places appointed by the Council, not being his dwelling house or shop, contrary to the Statute in that case made and provided. The Statute referred to is the "Markets Act 1890," s 25 of which provides that "the said Commissioners" - who in this case are the Council of Geelong - "may fix the places within such town ... for the holding of markets and may there erect and build or cause to be erected or built market houses with shambles stalls and other convenient buildings." The next provision in the section is that "the said market places" - that is those established by the Council - "shall be the only places within the said town ... where any market for the sale of corn (except corn or grain sold by sample) butchers' meat poultry eggs fresh butter vegetables or other provisions shall for the future be held and kept." Then follows the provision under which the charge was brought -
If any person sell or expose to sale any of the said articles or other provisions usually sold in markets in any of the streets lanes entries or other public passages or places other than the places which may be so appointed by the Commissioners as aforesaid except in his dwelling house or shop every such person shall on conviction thereof for every such offence forfeit and pay the sum of five pounds.
The charge was that the appellant sold butter in a place other than that appointed. When the case came before the Justices, objection was taken for the appellant that no offence was disclosed by the information or evidence, and so the Justices held; but Cussen, J, was of a contrary opinion, with considerable doubt, and made absolute an order to review, and imposed a fine.
The appellant is a produce dealer in a large way of business at Geelong. He occupies large premises of irregular shape, with about 100 feet in frontage to a street called Little Malop St. Part of the premises extends back to another street, and all except a passage leading to that street at the back is roofed in. The interior of the building is used for receiving and storing produce sent to the appellant for sale, together with produce of his own. The premises are closed and locked at night. The appellant holds auction sales once or twice a week, and on other days sells by private contract. Besides selling the goods of other people he sells large quantities of butter of his own manufacture, sometimes more than a ton in a week. This is seldom, if ever, sold by auction.
The first question is as to the construction of s 25. The appellant contends that in the phrase "or other public passages or places," the word "public" qualifies the word "places" as well as the word "passages." The respondent contends that it should be read thus - "or other public passages or any places." In the case of Ex parte Cooke, (1878) 4 VLR (L.) 1, this section came before the Full court of Victoria for consideration. The question there discussed was whether a place upon which a sale was alleged to have taken place was a public or a private place. It did not occur to anyone that that question was immaterial. On the contrary, it was assumed that it was the one question to be determined. It is true that the case was not argued on both sides. The case therefore cannot be regarded as a decision on the point. But that interpretation has been accepted ever since, now over thirty years, until it occurred to the ingenuity of someone to lay this information. In my opinion, that interpretation was the correct one as a matter of mere grammatical construction, apart altogether from the rule noscitur a sociis, although that rule is especially applicable to a section framed like this. I come to the conclusion as a matter of construction of ordinary English words that the phrase means "or other public passages or public places." The most that can be said for the respondent's argument is that the words are open to both constructions. Assuming that they are, the respondent is confronted by the difficulty pointed out by Lord Esher, M.R , and Lindley, LJ, in the case of Tuck v Priester, 19 QBD. 629, to which I referred yesterday. Lord Esher, at p 638, said -
We must be very careful in construing that section, becausee it imposes a penalty. If there is a reasonable interpretation which will avoid the penalty in any particular case, we must adopt that construction. If there are two reasonable constructions we must give the more lenient one. That is the settled rule for the construction of penal sections.
And at p 645, Lindley, LJ, after referring to the Act in question and a suggested construction, said -
I doubt whether in a penal section that construction would be right. It seems to me that we should be treading upon very dangerous ground, and, having regard to the well settled rule that the court will not hold that a penalty has been incurred, unless the language of the clause which is said to impose it is so clear that the case must necessarily be within it, I think we ought to keep on the safe side, and say that the words 'unlawfully made' are sufficiently ambiguous to enable the defendant to escape from the penalty.
But in deference to the argument that was pressed upon us, and as it is said that the matter is of considerable importance, I will deal with the respondent's arguments at more length. They are based, as I apprehend them, on three grounds, first, on a comparison with previous legislation both in Australia and in England; secondly, on the exception contained in the words "except in his dwelling house or shop;" and thirdly, on the assumed object of the Legislature in passing the Act.
Now, the history of the legislation is simple enough. The original Act was passed by the Legislature of New South Wales in 1839-3 (Vict), No 19, s 23. That was substantially the same as s 25 of the consolidating "Markets Act 1890," except that at the end of the section there was this proviso - "Provided that nothing herein contained shall be construed to extend to prevent any person from selling or exposing for sale any of the articles aforesaid in his or her dwelling house or shop in any part of the said town." That extended as well to the provision that the market place should be the only place for the sale of marketable articles as to the penal clause in the concluding sentence. But in 1864 the Legislature of Victoria repealed that Act, and re-enacted it in the form in which it now stands in the Act of 1890. In the meantime, an Act had been passed in England - 10 and 11 (Vict), c. 14 - called the "Market Clauses Act 1847." s 13 of that Act is as follows: -
After the market place is open for public use every person other than a licensed hawker who shall sell or expose for sale in any place within the prescribed limits except in his own dwelling place or shop any articles in respect of which tolls are by the special Act authorised to be taken in the market shall for every such offence be liable, etc.
Now, the only assistance, if any, that one can derive from that is that the Victorian Legislature, having had their attention called to the English "Market Clauses Act," had thought fit to leave out the proviso which was in the old Act before them, and to apply it only to the penal clause, adopting the exact words of the English Statute, at the same time retaining their own words of prohibition against selling in any of "the streets lanes entries or other public passages or places," instead of adopting the English single word "place." So that if the argument is of any weight at all - I have some doubt as to whether it is entitled to any - the history of the legislation is entirely against the respondent.
I turn to the next argument as to the exception - "except in his dwelling house or shop." The argument is a familiar one, namely, that when an exception is placed in a Statute, primá facie it is to be assumed that the Legislature thought that the thing excepted would otherwise have been within the enactment. It is an argument that cannot be pressed too far. But here it is obvious that the selling or exposing for sale in a dwelling house or shop fronting a street, if the selling or exposing for sale were on the street front, would be clearly within the enactment unless excepted. The exception was therefore necessary, and no assistance can be derived from that argument.
As to the argument with respect to the assumed object of the Legislature in passing the enactment, there is nothing more dangerous and fallacious in interpreting a Statute than to begin by assuming to know what the Legislature meant to do and that it had a particular intention, and then, having made up your mind as to what their intention was, to conclude that it must necessarily be found in the Statute, and proceed to find it. One of the objects the Legislature had in view was clearly to protect the markets established under the Act; another was to keep the streets and other public places clear from the stalls of itinerant vendors of goods. But you cannot predicate how they were going to effect these objects. To do that you must look to what they have said. As to setting up rival markets or disturbing markets, the ordinary Courts always had jurisdiction to award damages or to grant an injunction. In cases of that sort questions of considerable difficulty both of fact and law frequently arose, as is shown by the cases on the subject, and one has no right to infer that it was intended that those difficult questions should be left to be summarily decided by Justices of the Peace. Further than that I think it is in the highest degree improbable that in the year 1839 the Legislature of New South Wales would have prohibited a market gardener from selling his own produce in his own garden, which would be the result of accepting the respondent's argument.
All these arguments fail, and we are thrown back on the plain grammatical meaning, which can only be that the word "places" refers to public places, and therefore the section applies only to public places.
It was suggested that this building was a public place in the sense in which the word is used in the section; but a private building does not become a public place because the owner has been fortunate enough to attract a large crowd of customers. In my opinion, this building is not a public place, and the word "places" is used in the section as applying to places ejusdem generis with the other places which are mentioned.
That really disposes of the case, because the information discloses no offence under the Statute. On the assumption that it applied to any place, public or private, an elaborate argument was addressed to us that what the appellant in effect did was to set up a rival market or to disturb the corporation's market. If he did, he can be proceeded against at common law or in a suit for an injunction. To that he might have several defences, but it is sufficient to say at present that the Legislature did not empower Justices to deal with such matters summarily. In my opinion, the case is not distinguishable from the case of Haynes v Ford, (1911) 1 Ch 375, 27 T.L.R 416, which was decided in April of this year by the court of Appeal. I think, therefore, the appeal must be allowed.
I should add that I am sorry that the learned Judge from whom the appeal has been brought should have apparently been misled by some observations made by the members of this court in the case of Weedon v Davidson, 13 ALR 87. Perhaps those observations were not so accurately expressed as they might have been; but I do not think that anybody who had heard the argument in that case could have misunderstood them.