Myerson v. Collard

25 CLR 154
(1918) 24 ALR 306

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(Judgment by: Higgins J.) Court:

Judges: Barton J
Isaacs J

Higgins JGavan Duffy J
Powers J
Rich J

Hearing date: 30 July 1918; 31 July 1918; 12 August 1918
Judgment date: 12 August 1918

Sydney

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Judgment by:
Higgins J.

Myerson let a house to one Schumack at 14s. per week. Schumack left, and Mrs. Collard, wife of a soldier on active service, who had occupied a room, took possession and put in furniture. On 2nd August, rent being in arrear, Myerson authorized Ward to distrain on the goods in the house for PD3 10s. rent due; and Ward distrained on certain of the furniture. On 8th August the goods distrained were sold. These acts were done in pursuance of the legal right of Myerson, except so far as reg. 12 of the War Precautions (Active Service Moratorium) Regulations 1916 made them illegal.

The defendant has been prosecuted by Mrs. Collard under reg. 12 for taking possession of the furniture, the summary prosecution having been authorized by the Attorney-General under s. 6 (3A) of the War Precautions Act. The regulation has been set out in the judgment of my brother Barton. It must be construed strictly, as being in derogation of the ordinary legal rights of the landlord. Having regard to this principle, and to the provision for an order for the "return" of articles seized or payment of their value, and to the context, I am of opinion that the words "belonging to" in sub-s. 1 (b) connote full property-that the articles (not a mere interest therein) have passed to the soldier or to his female dependent.

Mrs. Collard is a female dependent of her husband within the meaning of the regulations. Some of the furniture did not "belong to" her. Under the letting and hiring agreement of 19th October 1916, Hale to Elizabeth Collard, the property was not sold, was not to pass to Mrs. Collard until the weekly payments of rent, added to ten shillings paid for a mere option to purchase, should amount in value to PD21 5s. 9d, the scheduled value of the chattels. Reg. 12, therefore, does not apply to these chattels.

But, in my opinion, the position is different with regard to the other furniture seized. Not only has the Magistrate treated it as Mrs. Collard's, but on the meagre evidence he was bound to so treat it if he believed her. After describing the visit of Ward, the bailiff authorized by Myerson to distrain, and his leaving the warrant and inventory, she said:"Some of the furniture was my own, and some I had under a hire-purchase agreement. The green leather suite-a seven-piece suite-belonged to me-a dining-room suite I bought at Davidson & Co 's, and paid PD7 12s. 6d. for it. I also had some goods from S. J. Hale & Co on a hiring agreement." This latter agreement was put in evidence; and as I have said, it did not vest Hale's goods in Mrs. Collard. The agreement with Davidson (if there was one in writing) was not put in; the evidence that this furniture was her own was received without objection; and there was no cross-examination on the subject of her ownership. Davidson's secretary was called and said: "I know Mrs. Elizabeth Collard, to whom we sold a seven-piece dining-room suite on the time-payment system, but it was fully paid up on the day of the sale, the 8th August." The secretary attended the sale under the distraint, and managed to get the balance of the purchase money paid out of money which Mrs. Collard had borrowed. There is nothing to show that payment of the balance of the purchase money was made by the contract of sale a condition precedent to the vesting of the property in the purchaser; and, in the absence of such evidence, the property in the goods "sold" must be treated as having passed to the purchaser to whom they had been delivered. At the time of the distress, 2nd August, they "belonged to" Mrs. Collard-on the evidence; and, if we follow literally the words of reg. 12, Myerson committed an illegal act in taking possession.

It is urged, however, for Myerson, that there should be implied in reg. 12 a condition that there must be a mens rea-a knowledge of the facts which under reg. 12 would make the seizure illegal. At the time of the seizure, Myerson did not know that Mrs. Collard was a soldier's dependent, whatever his bailiff knew as to the claim of Mrs. Collard in respect of the goods; but at the time of the sale on 8th August the agents of Myerson knew of Mrs. Collard's claim to be a soldier's dependent. The offence, however, consists of seizing - not of selling; and the seizure took place before Myerson or his agents knew anything of Mrs. Collard's position as a dependent. Apart from the authorities, I should think it inconsistent with our duty to import into the regulation a condition which is not either stated or suggested. The regulation seems to have been drawn with a reckless disregard of the problems which it creates, and to have been thrown, like a bomb, among the differing and complicated systems relating to bills of sale, writs of execution, distraints, hire-purchase agreements. A landlord levies a distress for rent on a defaulting tenant, seizing the goods in the tenant's possession, and without the slightest idea that the goods belong to some soldier's dependent; and he becomes liable under s. 6 of the Act to a penalty not exceeding PD100 or to imprisonment for six months, or both, and to return the goods (to the owner) or to pay the value. This seems unjust, no doubt; but it is not for us to improve on legislation by inserting words which make it as we think just. Besides, if knowledge of the landlord has to be proved, the protection designed for a soldier's wife is practically worthless. Landlords do not usually know the domestic history of those who occupy their houses; and even if knowledge of the fact that the woman in possession of the furniture is the dependent of a soldier come to the landlord after distraining, it comes too late, for the act of seizing or taking possession is over; and the landlord may proceed to sell without disobeying reg. 12. So that if we read the regulation without the implied condition that the landlord must know before seizure, we put on the landlord the hardship of having to inquire before seizure; whereas if we treat the condition as implied, the protection supposed to be given to a soldier's wife becomes nugatory. It is surely fitting that, under such circumstances, we should not, by conjecture, add to the words of the regulation. The cases on the subject of mens rea are in an unsatisfactory state. Primarily, the meaning of Non est reus nisi mens sit rea would seem to be clear. An assault, when one strikes another, is an offence; but if one man be pitched into another by the violent impact of a railway collision, it is not an assault. The case before us, however, is one, ultimately, of the construction of a Statute, or rather an Order in Council under a Statute. What does reg. 12 mean? What does it say? The case in which publicans are charged with selling liquor to a drunken person, or butchers are charged with selling meat unfit for human consumption, are analogous; and in these cases it has been held that in the absence of the word "knowingly" or its equivalent, the publican or the butcher is liable to the penalty, even if knowledge has not been shown ( Cundy v Le Cocq ( 13 Q.B.D., 207 ); Hobbs v Winchester Corporation ( [1910] 2 K.B. 471 ). The answer to the argument that a man should not be convicted in such cases unless he have a guilty mind is suggested in Blaker v Tillstone ( [1894] 1 Q.B. 345 ), at p. 348-that "the Act of Parliament would be nugatory if such proof" (of knowledge) "were insisted on, for it would then always be open to the defendant to say that he was not aware of the condition of the article sold, and that it was not his duty under the Statute to make any inquiries on the point."

A point was taken that the part of reg. 12 which provides for repayment of the value of the goods seized is not within the powers granted by the War Precautions Act; but it has been abandoned.

According to my view, the PD14, as for the value of the goods seized, should be reduced to PD7 12s. 6d., the value of the furniture seized so far as it "belonged" to the respondent; and the conviction should be affirmed. I concur with all my learned colleagues on all the points raised, I think, except on this-that some think there is no satisfactory proof that the furniture "sold" by Davidson to Mrs. Collard belonged to her.