Low v Bonarius [1904] HCA 24; (1904) 1 CLR 578 (9 September 1904)

HIGH COURT OF AUSTRALIA

Low Appellant; and Bonarius Respondent.

H C of A

On appeal from the Supreme Court of New South Wales.

9 September 1904

Griffith, C.J., Barton and O'Connor, JJ.

W. A. Walker and Bignold for the appellant.

Kelynack for the respondent.

Walker, in reply,

September 9th

Griffith, C.J.

This was an appeal from a decision of Cohen, J., on an appeal by way of special case stated by a stipendiary magistrate under the Justices Act. The prosecution was under the Early Closing Act 1899, and the charge was that the defendant "was the shopkeeper of a certain shop within the metropolitan shopping district, being a shop mentioned in Part III. of Schedule I. to the said Act in which a trade was carried on ... not being a trade usually carried on in a news agent's shop, which was unlawfully not closed, and kept closed, for the remainder of the day at and after the closing time deemed to be chosen for such day in respect of such shop, by or under Part I. of the said Act, that is to say, one o'clock after the hour of noon," &c. The defendant was a seller of fancy goods, and carried on in the same shop the business of a seller of newspapers and news agent. The time appointed by law for the closing of fancy goods shops was one o'clock in the afternoon on Wednesdays, the time for closing news agents' shops being much later. Sec. 20 of the Early Closing Act, 1899, provides that:—"Every shop mentioned in Schedule I." (which includes news agents' shops), "in which is carried on any class of trade not usually carried on in shops mentioned in the schedule, shall be closed at the closing time fixed by or under this Act for shops not mentioned in the schedule." The result of this provision is that this class of shop in which this mixed business is carried on, viz., that of a seller of fancy goods together with that of a newspaper seller and news agent, had to be closed at one o'clock in the afternoon. That had been decided by Cohen, J., in a previous case of Smith v. Morrison, 17 N.S.W. W.N., 65. Any other construction of sec. 20 would, practically, give no effect whatever to secs. 20 and 21 of the Act. In the present case the appellant, at 1 p.m., the time for closing mixed shops such as this, closed one of the two half doors of the shop opening on the street, and put a table inside the shop across the opening thus left, and there is evidence that, during the afternoon, he sold some newspapers to customers across the table. Those facts being in evidence before the magistrate, he held that "there was no proof that the defendant had his shop open for the purpose of selling anything that he was prohibited from selling after one o'clock that day," and dismissed the information. But that was not the question at all. If the shop is one in which the mixed business described is carried on, and it is kept open, it does not matter for what purposes it is kept open. The prohibition in the Act is against keeping open a shop in which any business other than those included in Schedule I. is carried on. The prosecutor appealed by way of special case stated under the Justices Act, and the appeal was heard by Cohen, J. He held, following his previous decision, that the magistrate was wrong, and I agree that he was clearly wrong. The facts which the magistrate found were not a ground for dismissing the information. He decided the case on a ground which was really quite irrelevant. It was proper, therefore, that the case should go back to him for reconsideration. But the learned Judge went on to say: "I am of opinion that, as a matter of law, the shop was open for purposes of trade"; and he held that the defendant should have been convicted of the offence with which he was charged. Now that question the magistrate had not determined at all. He found only that the shop was not "open for the purpose of selling anything that" the defendant "was prohibited from selling after one o'clock that day." That, as already pointed out, was not the question he had to determine. The question was whether the shop, being a mixed shop, was or was not open. But, if the case goes back to the magistrate with the expression of opinion given by the learned Judge, the magistrate will be obliged to convict the defendant. It should go back to him simply with the intimation that he has determined it on an irrelevant point.

The question whether a shop is "closed to the admission of the public for purposes of trade," is a question of fact in each case. If it was not so closed, the defendant was guilty; if it was, he was not guilty, and should have been discharged. The "admission of the public" does not mean merely allowing them to come in through the door, because, by the definition in the Act, the word "shop" includes a stall at which goods are sold, and that would be open if the public were allowed access to it for the purpose of trade. But the facts in this case seem to me ambiguous. It does not follow because a shop is one in which two kinds of business are usually carried on, that a single business cannot lawfully be carried on in the same premises at another time. To give an illustration, if at one o'clock the doors of the shop were closed, and a table placed upon the pavement in front, and newspapers put on it and sold there, that might very reasonably be held to be the opening of a new shop on the footpath, and that might be so, whether the seller stood in or out of the shelter of the doorway. The question, in truth, in a case like this, is whether the shop, considered as a mixed shop, in which the business of selling fancy goods was carried on, was in substance open to the admission, that is, the access, of the public for the purposes of trade; or whether, on the other hand, considered as such a shop, it was in substance closed to access, so as to be, for the time being, a mere newspaper shop or stall. That was a question of fact which the magistrate ought to have determined, and the case must therefore go back to him for its determination, with the expression of our opinion. What conclusion he ought to come to under the circumstances, it would not be desirable for us to say. The order, as it now stands, amounts practically to a direction to convict. The learned Judge should have said only that the magistrate was wrong in point of law, and that the only point of fact which he had determined was irrelevant. The order, therefore, should be amended so as to read that the magistrate was wrong in dismissing the case on the ground stated by him. With that variation the order made by the Judge should stand.

Barton, J. and

O'Connor, J.

concurred.

Order of the Supreme Court varied by omitting the words "and that he was not right," and adding after the word "mentioned," the words "on the ground stated by him." The direction that appellant pay the costs to be omitted.

Order so varied affirmed.

No costs of the appeal.

Solicitor, for the appellant, N. W. Montagu.

Solicitor, for the respondent, The Crown Solicitor of New South Wales.