Richardson v. Austin

(1911) 12 CLR 463
(1911) 17 ALR 324
[1911] HCA 28

---

(Judgment by: Barton J)

Richardson
v Austin

Court:

Judges: Griffith CJ

Barton JO'Connor J

Hearing date: 13, 14 June 1911
Judgment date: 15 June 1911

---

Judgment by:
Barton J

At the outset I should like to say that there is no foundation for the inferences in favour of the respondent's contention which have been drawn from expressions used by the members of this court in the case of Weedon v Davidson . The subject of argument here was not the subject of argument there, nor can the observations referred to be rgarded as necessary parts of the judgments in which they are found.

The first question which arises is as to the meaning of the word "places" in the third branch of s 25. That section is verbatim with s 28 of the Act of 1864, which, with any other legislation on the subject, has been consolidated by the present Act. There was a previous Act, 3 (Vict), No 19, passed in 1839, which appears to have been amended by the Act of 1864. In the Act 3 (Vict), No 19, the reference to dwellings or shops, upon which I shall have a word or two to say presently, appears in the form of a 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." A substitution for that proviso has been made by omitting it, and in its place inserting in s 25 of the Act of 1890 the words "except in his dwelling house or shop" after the words "appointed by the Commissioners as aforesaid," and as will be seen presently, I am of opinion that there is no difference for the purpose of this case between the effect of the proviso in the Act 3 (Vict), No 19, and that of the exception in the Act of 1890.

The main subject for argument, and I think it is the determining factor, is as to the meaning of the word "places" in the third branch of the section. It was argued that the word "places" bears a signification not limited to public places, and therefore that all places, apart from the market itself, are included in the prohibition conveyed in that branch of the section, with the exception, of course, of dwelling houses or shops, to which it is said any possible exemption is limited, and within which class it is said the appellant's premises do not fall. There is considerable warrant for saying that the word "places" as used in the third branch, is used in a sense ejusdem generis with the words "streets lanes entries or other public passages;" that is to say, that the doctrine of ejusdem generis can be applied to the words as they stand, even if the word "public" does not qualify the word "places." But there is no need to apply the doctrine if the words, read in their ordinary sense, are clear. Taking them as they stand, "in any of the streets lanes entries or other public passages or places," I think the ordinary reader would infer as a reasonable thing that the effect of the adjective "public" was to qualify "places" as well as "passages," and make of them one class of public resorts; and that "public passages or places" meant "public passages or public places." That was the impression which the reading of those words conveyed to me at the outset, and nothing that has occurred since has shaken it. It is true that in the first and second branches of the section the word has been used in a signification that might include private places, or places not public, to put it more correctly, and it has been argued that a word used in a particular sense in an earlier part of a section must be taken to mean the same thing when we find it again used in a later part. That is a correct assumption primá facie, but the context may prevent us from making it, and here the later occurrence of the word is in a collocation which shows that the "places" within the eye of the draftsman were public places as qualified by the word "public" applying to "passages" and "places" alike. We had references to authorities to show us what was a public place, and particularly to the case of R v Wellard, 14 QBD. 63. Now, that was a very different case. A particular place may be a public place for the purpose of one Act and not for the purpose of another. The place there held to be public was an unenclosed space accessible to the public at all times of the day or night. Although it was private property, nobody apparently was exercising any dominion there, any more than dominion was apparently exercised in the case decided in New South Wales of Re Brian, 2 NSW SR (L.) 125. An open space at the intersection of two streets may be a public place for the purpose of a particular Act, possibly for the purpose of this Act; but there is no such public place here. The ability to exclude the public existed at every moment in the hands of the appellant. He could have closed his place of business at any time of the day, and did close it every evening. That differentiates his place from those in both the cases cited. It seems to me to be of a different character, and I do not think any of the Judges in either of those cases would have said that with regard to the Statutes they were dealing with, or the present Statute, a place such as the business house of the appellant could for a moment be deemed to be a public place.

Then there is the consideration which has been referred to by the learned Chief Justice, that it must clearly appear, when there is a question about the sense in which a word or phrase is used, that a construction fixing a penal liability on a person is founded upon words bearing a clear sense in the Act under consideration. In the case of Tuck v Priester, 19 QBD. 629, cited by the learned Chief Justice, Lindley, LJ, states that it is a 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." The matter was put by Cave, J, in Crane v Lawrence, 25 QBD. 152 at p 154, as follows: -

It is a sound rule of construction that when any penalty or disability is imposed by Statute on any of Her Majesty's subjects, the court before which any charge is preferred must be able to see clearly what the conduct is which will render a person liable to the penalty so imposed.

Taking the law as laid down in these decisions, which are only samples of a great number to the same effect, it seems to me that, putting the matter at its worst for the appellant, the construction which would render him liable in this case is one of two constructions which at the most are equally applicable. But, as Lord Esher, M.R , says in Tuck v Priester, "if there are two reasonable constructions we must give the more lenient one," and the construction which does not impose the liability is to be adopted, that is, the construction which makes "places" in this third branch of the section "public places" in common with the other places enumerated. It is said, however, that if the word "places" is construed here as "public places," there is no reason for the exception of dwelling houses and shops. Now, I think that is not so. A dwelling house or shop in a town is usually in a street or thoroughfare, or in some place accessible to the public, it may be in a square, and goods exposed for sale outside such tenements are in the ordinary sense exposed for sale in such a place, and cannot be so exposed without being literally in that position. Unless they are behind glass they are exposed for sale in the thoroughfare or street in the ordinary sense, and such I take to be the meaning of the Legislature in making the exception. It seems to me, therefore, that the places aimed at in the third branch of s 25 are public places.

The further question arose whether the defendant's place of business was a shop. It was a place in which, apart from the reception and sale of articles and goods sold by auction, he carried on a substantial business of his own in the sale of a marketable commodity, butter, a very large sale at times, and a constant business. There was nothing in the construction of the premises, nor was there anything in their use which differentiated the structure or the use to which it was put from the places which have been held in the English cases to be shops. It is unnecessary to labour this point, inasmuch as the opinion we hold on the first question settles the whole case; but if it were necessary to decide whether this were a shop or not I should have no hesitation on the subject, especially in view of the case of Haynes v Ford, (1911) 1 Ch 375, in which the judgment of Neville, J, has been affirmed by the court of Appeal - see 27 T.L.R 416.

On both grounds I am of opinion that the appeal must succeed.