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Desmond Brian Smith v McGraw-Hinds (Aust.) Pty Ltd

 

[1976] FC 43

IN THE FULL COURT OF QUEENSLAND

O.S.C. No. 19 of 1976

DESMOND BRIAN SMITH

-v-

McGRAW-HINDS (AUST.) PTY. LTD.

ex parte Desmond Brian Smith

_____________________

Lucas J.

Douglas J.

Kneipp J.

_____________________

Judgment delivered by Douglas J. on 24th September, 1976. Lucas J. and Kneipp J. concurring.

_____________________

“APPEAL ALLOWED, MATTER TRANSMITTED TO STIPENDIARY MAGISTRATE TO ENTER ALL NECESSARY ADJOURNMENTS AND TO PROCEED ACCORDING TO LAW.”

_____________________

IN THE SUPREME COURT OF QUEENSLAND

O.S.C. No. 19 of 1976

DESMOND BRIAN SMITH

v.

McGRAW-HINDS (AUST) PTY. LTD.

Ex Parte: DESMOND BRIAN SMITH

JUDGMENT - DOUGLAS J.

This is an application for an Order to Review made by Desmond Brian Smith the complainant in a complaint under sec. 8(1) of the Unordered Goods and Services Act 1973-1974 (hereinafter referred to as the Act). The complaint charged that:—

“Between the Twenty-second day of August 1975 and the Third day of September 1975, at Mary Street Brisbane McGRAW-HINDS (AUST.) PTY. LTD. a body corporate incorporated under the law of the State of New South Wales did assert a right to payment of a charge for the making of a directory entry the said McGRAW-HINDS (AUST.) PTY. LTD. not having reasonable cause to believe that a note complying with Section 7 of the Unordered Goods and Services Act 1973-1974 had been signed by or on behalf of the person against or in relation to whom the said right was asserted.”

The terms of Sec. 8 of the above Act are as follows:—

Asserting a right to payment for directory entries or prescribed services. (1) A person shall not assert a right to payment of any charge or fee for the making of a directory entry or the rendering of a prescribed service, whether made or to be made or rendered or to be rendered by him or another person and whether made or to be made or rendered or to be rendered within or without the State or partly within and partly without the State, unless he has reasonable cause to believe (proof of which shall lie upon him) that a note complying with section 7 has been signed by or on behalf of the person against or in relation to whom that right is asserted.

Penalty: $500.

(2) Without limiting the generality of subsection (1) in proceedings for an offence that is contravention of that subsection the receipt by a person, at any place within the State, of a prescribed document relating to a directory entry or prescribed service that was sent or purports to have been sent, within or without the State, by or on behalf of the person who made or proposes to make that entry or rendered or proposes to render that service shall be deemed to be an assertion by that person, made at the place where the receipt occurs, of a right to payment from the first-mentioned “person of a charge or fee for the making of the directory entry or the rendering of the prescribed service, as the case may be.

(3) In this section ‘prescribed document’ in relation to a directory entry or prescribed service means a writing that asserts or implies that the payment of a charge or fee should be made for the making of the directory entry or the rendering of the prescribed service or that sets out the price for the making of the directory entry or rendering of the prescribed service.”

The complainant apart from formalities, relied on the terms of a document shown in the record as Exhibit (1), and purporting on the face of it to emanate from the respondent. The document is headed INVOICE/STATEMENT, and arrived into the hands of Mr. King a Director of Administration in the office of the Director-General of Tourist Services. Mr. King was the officer who received mail, scanned it, and marked it out to the appropriate section. He received Exhibit (1) with the mail. The document was addressed to Queensland Government Tourist Board but there was no contest that this was in mistake for the Queensland Government Tourist Bureau. Particulars were sought by the respondent “identifying the person against or in relation to whom the alleged assertion as to a right of payment was made”. Particulars were given in this form:—

“The conducting of the Queensland Government Tourist Bureau is a function of the Crown in the right of the State of Queensland, Ministerial responsibility for which is vested in the Honourable the Minister for Tourism and Marine Services, and on whose behalf payments of the class relevant to this matter are the duty of the Accountant, Queensland Government Tourist Bureau, Brisbane.”

Thus in short the assertion was that the Crown in the right of the State of Queensland was a person against whom an offence under the Act might be committed.

The Stipendiary Magistrate made findings adverse to the respondent on all matters of necessary proof, with the exception that he held to the effect that the Crown in its capacity as the Queensland Government Tourist Bureau was not a person as referred to in sub-section 8(1) of the Act. On this ground he dismissed the complaint.

The Act does not bind the Crown. (Acts Interpretation Acts 1954 to 1971 sec. 13). As it was argued in the lower Court, it is argued for the appellant here that the Crown is a person against whom an offence under sec. 8(1) of the Act might be committed. On the other hand, for the respondent it is argued that the same meaning should be given to the word person wherever it appears in the sub-section, and further that the Crown is not a person within the meaning of that word as defined in sec. 13 of the Acts Interpretation Act 1954 to 1971. I cannot subscribe to the latter arguments.

The word “person” where it firstly and secondly appears in sec. 8(1) of the Act connotes an actor. Where it appears thirdly it connotes a person against whom action is taken, or in respect of whom something is done. It thus refers to persons generally, but also to persons acting in different capacities. It is those persons, fulfilling the capacity of persons firstly and secondly referred to in sub-section 8(1), against whom the strictures of the Act apply. Conceding for the moment that the Crown is a person in law for the purposes of the Act, we have the situation where the meaning of person, so far as capacity is concerned, must differ, since the Crown, as a person, cannot be a person described in the first or second category. This is so because the Act does not bind the Crown. If the Crown so desired it could carry out actions which, normally, would be a breach of the provisions of the Act. From this the converse cannot be read. Because it is open to the Crown to do what is proscribed, one cannot say that the Crown is in the position where it can have done to it what is proscribed. In this sense the meaning of the word person where it appears thirdly in the section is different.

The situation is put clearly by Lord MacDermott in Madras Electric Supply Corporation LD. -v- Boarland (Inspector of Taxes) L.R. 1955 A.C. 667 at 685:—

“The presumption that the same word is used in the same sense throughout the same enactment acknowledges the virtues of an orderly and consistent use of language, but it must yield to the requirements of the context, and it is perhaps at its weakest when the word in question is of the kind that readily draws its precise import, its range of meaning, from its immediate setting or the nature of the subject with regard to which it is employed.”

The next consideration is as to whether the Crown, in the right of the State of Queensland can be a person. There is no definition of “person” in the Act. The definition of “person” in sec. 36 of the Acts Interpretation Act 1954 to 1971 is “Includes a body corporate”. The fact that the word person is given a definition which includes “a body incorporate” does not mean that it is an exhaustive definition. It has been held that the word “person” in its ordinary and natural meaning and in the particular context includes the Crown. (See Madras Electric Supply Corporation LD. -v- Boarland (Inspector of Taxes) (supra) Lord Tucker at p. 692; Inland Revenue Commissioners -v- Whitworth Park Coal Co. Ltd. (In Liquidation) L.R. 1958 1 Ch. 792 at 822; Attorney-General -v- Hancock L.R. 1940 1 K.B. 427 at 435.) In Madras Electric Supply Corporation LD. -v- Boarland (Inspector of Taxes) (supra) at p. 692 Lord Tucker says:—

“This being the position, I can see no reason why the word ‘person’ in those parts of the Acts which do not impose a charge to tax should be construed otherwise than in its ordinary and natural meaning, which clearly includes the Crown.”

If one takes out the phrase “do not impose a charge to tax” from the above quoted extract and inserts in its stead the phrase “which do not relate to the doing of those things proscribed under the Act”, it would suit the present situation exactly.

I, therefore, am of the opinion that the Stipendiary Magistrate erred in making the findings complained of.

There was an argument addressed to this Court but not to the Court of first instance, that section 8 of the Act in its application to the set of circumstances here evidenced infringed the provisions of section 92 of the Constitution. It is said that the document is on its face a solicitation by or on behalf of a Sydney enterprise, sent from Sydney, inviting an order to be sent from Brisbane to Sydney.

This seems to be a fair submission. The evidence is scant. There is evidence of the receipt of the document in the office of the Queensland Government Tourist Bureau. Otherwise the complainant relies on the face of the document. I have already said to the effect that, on the Magistrate's findings the document, appears to be in contravention of provisions of the Act. The face of the document shows that it came from a Sydney office, and requires that, if the offer is accepted, the payment advice slip forming part of the document, be returned to that Sydney office. The formal complaint and summons was directed to the Sydney office.

It seems to follow that, unless sec. 8 of the Act effects a permissible regulation of a manner of trading, it must be taken to contravene the provisions of sec. 92 of the Constitution.

The next matter for consideration is us to whether the section is regulatory as such or not. There has been a great deal of discussion in the High Court for a very long time on the various nuances attaching to this proposition. I propose to go directly to two of the more recent cases, which I believe are illustrative of the method of approach which should be taken here.

I refer first to a statement made by Barwick C.J. in North Eastern Dairy Co. Ltd. -v- Dairy Industry Authority of New South Wales 1976 50 A.L.J.R. 120 at p. 126:—

“Having applied the particular statutory provision according to its proper construction to the relevant situation in fact, the question is whether its operation thus explicated, leaves trade and commerce free. It will do so although it produces an impact upon interstate trade if its provisions do not in their nature go beyond the adjustment of the rights of man and man in a free and legally regulated society. The question is not from what is the interstate trade and commerce to be free: nor is it from what kinds of staturoty provisions it is to be free. The statutory provisions must not infringe the freedom of interstate trade and commerce. The concept of freedom and the word “free” carry within themselves their own limitation. Perhaps the analogy of freedom of speech cannot be bettered. A man enjoys freedom of speech though he may not defame his fellows. The relationship of one man to another in a civilized society furnishes the basis for the conclusion that inability to defame without consequence is not an impairment of freedom, properly understood. The freedom of the individual to engage in interstate trade and commerce is included in the freedom of interstate trade and commerce which the Constitution guarantees. Thus laws to ensure public health and honesty and fairness in commercial dealings form examples of laws which the concept of freedom of trade and commerce does not deny.”

Next I refer to Samuels -v- The Readers' Digest Association Pty. Limited 1969-1970 120 C.L.R. 1. The whole of the discussion in that case is helpful relevantly in this case. I refer particularly to, without quoting from it, the judgment of Kitto J. pages 27 to 32. At page 38 Taylor J. says:—

“In the present case the sections impugned deal with conduct in merchandizing which, it seems, is considered by the legislature of South Australia to be unfair or oppressive, or, as Latham C.J. said in Home Benefits Pty. Ltd. v. Crafter (1939) 61 C.L.R., at p. 714, ‘as parasitical upon legitimate trade’ and, therefore, a reprehensible practice in trade. It is not, I think, for us to say whether such conduct is reprehensible or not and, though “much water has run under the bridge in the United States of America since the decision in Munn v. Illinois (1876) 94 U.S. 113, at p. 132; 24 Law Ed. 77, at p. 86 - a case referred to by Lathan C.J. in his concluding remarks in the case just cited - it is, in my view, sufficient to say that the object of the legislation fairly appears as the proscription of undesirable and objectionable practices in merchandising, that it is, clearly enough, legislation upon that topic and that it was therefore, within the province of the South Australian Parliament to enact the impugned provisions applicable to trade generally without affecting the freedom accorded by s. 92 to trade commerce and intercourse among the States.”

Adverting again to the provisions of the Act I think they do no more than to proscribe “undesirable and objectionable practices in merchandising”, in this instance in relation to the selling of space in directories.

The order to review should be made absolute, and the matter transmitted back to the Stipendiary Magistrate to enter up all necessary adjournments and to proceed according to law.

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Editorial Notes

  • Published Case Name:

    Desmond Brian Smith v McGraw-Hinds (Aust.) Pty Ltd

  • Shortened Case Name:

    Desmond Brian Smith v McGraw-Hinds (Aust.) Pty Ltd

  • MNC:

    [1976] FC 43

  • Court:

    QSC

  • Judge(s):

    Lucas J, Douglas J, Kneipp J

  • Date:

    24 Sep 1976

Litigation History

No Litigation History

Appeal Status

No Status