Lee v Evans

112 CLR 276

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(Judgment by: Kitto J)

Lee v Evans

Court:

Judges: Barwick CJ

Kitto JTaylor J
Windeyer 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

Hearing date: ADELAIDE 22 September 1964;
Judgment date: 5 November 1964

SYDNEY

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Judgment by:
Kitto J

As regards the construction of s. 4a (1) of the Registration of Business Names Act, 1928-1961 (S.A.), I am of opinion that the magistrate was right in holding that the expression "invitation to the public" means an invitation made to the public generally and capable therefore of being acted upon by any member of the public. This appears to me to be the natural meaning of the words, and I see nothing in the context to require or justify the adoption of any other meaning. I regard the conclusionas strongly supported by observations of Warrington J. in Sherwell v Combined Incandescent Mantles Syndicate ^[F19] , of Scrutton L.J. in Lynde v Nash ^[F20] , of Eve J. in the latter case ^[F21] , of Viscount Sumner in the same case on appeal, Nash v Lynde ^[F22] , and of Jordan C.J. in Ex parte Lovell; Re Buckley ^[F23] .

I am not intending to hold, however, that the size of the immediate audience is necessarily conclusive of the question whether the invitation is an invitation to the public. That is a question of the true scope of the invitation. While it may be answered conclusively in one case by the terms in which the invitation was expressed, it may require in another case a consideration both of the words in which it was expressed and of the circumstances in which they were used. I see no reason to doubt that the statement of an invitation even to one person only may be seen, when considered in the light of all the circumstances, to be part of, even though only the first step in, the communication of the invitation to the public generally, so that if the lone hearer were to tell some stranger of it the stranger would be right in treating it as open to acceptance by him no less than by the hearer. But, with great respect to the learned Judges of the Supreme Court, I think it is going too far to say that proof of an invitation given to a person as a member of the public is necessarily proof of an invitation to the public. If a person, wishing to obtain a loan, makes his request to a stranger whom he picks at random in the street, it remains, I think, a question of fact whether his invitation is to the public or to the selected individual only. In many cases the answer may be easy, but that does not mean that the question is not there to be answered; and in considering the answer the distinction must not be overlooked between the case of an invitation which itself is open to acceptance by any member of the public who may be interested and the case of an invitation which itself is open to acceptance by a specific individual only but, if declined by him, is likely to be followed by similar invitations to other specific individuals in succession until an acceptor is found. The first of these is a case of an invitation to the public; the second, in my opinion, is not.

Construing the section correctly, as I think he did, the magistrate nevertheless dismissed the complaint because the evidence did not satisfy him beyond reasonable doubt that the invitation which the appellant made to the two Broadbents was an invitation to the public, though he considered that it was, within the meaning of the section, an invitation both to deposit money and to lend money and that it was made to the Broadbents as members of the public. Since the appeal to the Supreme Court was an appeal upon fact as well as law, it is for us to consider, if we think that the Supreme Court's decision proceeded upon a view of the section which should not be upheld, whether we for our part are satisfied beyond reasonable doubt that the offence charged was proved.

The appellant concedes, and I see no reason to doubt, that every element of the offence charged was proved, subject only to the question whether the invitation was an invitation to the public. Upon that question the magistrate's lack of the requisite satisfaction remained after careful consideration of the evidence given by the witnesses in the case, all of whom had been called by the prosecution. Had the appellant been convicted, I should not have been prepared to hold that there was no evidence to support the conviction. Moreover, if the account given by the witness O.C. Broadbent of his conversations with the appellant, as appearing from the transcript of evidence, were to be accepted as completely accurate I should myself have thought that the offence was proved beyond reasonable doubt. According to that witness the appellant made it very clear, in the course of the invitation in question, that he was engaged in trying to get a sufficient number of people to contribute money for the purpose of forming a company to take over his business and of getting the company listed on the Stock Exchange. His theme, according to the record of the evidence, was that "he was wanting more investors to form a public company". Assuming that what the appellant said to the witness was correctly recounted by the latter, the proper inference seems to me to be that the appellant wanted as many people as possible to lend him money, for which they would get shares if and when the proposed company should be formed and on which interest would begin to accrue at once, and that although he was putting the invitation to the Broadbents as people who he had reason to think might be interested in a timber investment it was a general invitation and was in course of being brought to the attention of as many potential acceptors as possible.

But the basic assumption is not warranted, for O. C. Broadbent's evidence appeared to the magistrate who heard it to contain "a certain amount of confusion as to just what was said". The same is true, though to a lesser extent, of the evidence of the son, J. N. Broadbent. The magistrate did not doubt the honesty of either, but, where the only witnesses who can depose to the making of an oral invitation, though they be honest, have given the magistrate who tried the case an impression of confusion on the crucial question, namely what exactly was said, and the magistrate in the end has not been satisfied beyond reasonable doubt by that evidence that the invitation really was an invitation to the public in the relevant sense, I do not see how a court of appeal can be so satisfied by a mere reading of the transcript of those witnesses' evidence.

It is true that a police constable gave evidence, which the magistrate accepted, as to a conversation he had with the defendant a month after the date charged, from which it is clear that the appellant expressly or impliedly admitted both that he had told O.C. Broadbent that he was "going round to various people getting them to invest", and also that thirty-five families, being some only of the people he had visited, had invested a total of about PD26,000 in the Chowilla Timber Supply Company. But that is consistent with the appellant's having made to each of the persons he visited an invitation which could not be construed as an invitation to the public.

On the whole of the material before us I have come to the conclusion that the case is not one in which the decision of the primary tribunal of fact should be reversed.

I would therefore allow the appeal and restore the magistrate's order.