Weedon v Davidson [1907] HCA 2; (1907) 4 CLR 895 (13 March 1907)

This is an appeal from a decision of Hodges J. reversing a conviction by a police magistrate upon a charge of selling provisions usually sold in markets in a place within the City of Melbourne other than the places appointed by the City Council. The question is whether the Statute law, as it now stands, prohibits such an act. In this case the question depends upon two Statutes, passed respectively in the third and sixth years of Queen Victoria.

It is necessary, in construing an Act which alters the law, to inquire what was the state of the law before the alteration was made, what was the mischief intended to be remedied, and what was the nature of the remedy provided. That is the oldest rule laid down for the construction of a Statute, and the last instance in which it was stated was only a few months ago in the House of Lords—Badische Anilin und Soda Fabrik v. Hickson[1]. In 1839 New South Wales had not been very long settled. There were no markets, and the legislature thought fit to pass the Act 3 Vict. No. 19, the preamble to which is as follows:—"Whereas several of the towns of the Colony of New South Wales have of late years greatly increased and are still increasing in population and buildings by reason whereof markets for supplying the inhabitants of the said towns with meat fish poultry butter vegetables and other provisions and also for buying and selling goods wares and merchandise are required to be held therein." Then various provisions were enacted, the first twenty-two sections relating to the election of Commissioners, &c. Sec. 23 is as follows:—"And be it enacted That it shall and may be lawful for the said Commissioners to fix the place or places within such town for the holding of markets and there to erect and build or cause to be erected or built a market house or houses with shambles stalls and other convenient buildings and the said market place or places shall be the only places within the said town where any market for the sale of corn (except corn or grain sold by sample) butchers' meat poultry eggs fresh butter vegetables or other provisions shall for the future be held or kept and if any person shall sell or expose to sale any of the said articles or other provisions usually sold in markets in any of the streets lanes entries or other public passages or places other than the place or places which may be so appointed by the Commissioners as aforesaid every such person shall on conviction thereof before a Justice of the Peace for every such offence forfeit and pay the sum of five pounds. 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." According to the practice of those days, that section was printed as a single sentence and the question is whether it should be regarded as one enactment or as containing separate independent enactments. That was in 1839.

Three years later, by the Act 6 Vict. No. 7, the corporation of Melbourne was established, and sec. 71 of that Act provided that:—"The Council of the said town shall have the same powers authorities duties and immunities in respect to markets as are given to the Commissioners to be elected and appointed under and by virtue of an Act of the Governor and Legislative Assembly passed in the third year of Her present Majesty intituled—An Act to authorize the establishment of markets in certain towns in the Colony of New South Wales and for the appointment of Commissioners to manage the same." The next section purported to transfer to the Council all the functions, duties and responsibilities at that time performed by or belonging to the Commissioners elected under the Act mentioned in sec. 71, assuming that Commissioners had been elected and had entered upon their functions in Melbourne.

There are markets in Melbourne, but they were established by the Council, and not by the Commissioners. The question is whether a market established by the Council is within the prohibition contained in sec. 23 of 3 Vict. No. 19. That Act was repealed by the Markets Statute 1864, and that again by the Markets Act 1890. Sec. 25 of the Act of 1890 is almost in the same terms as sec. 23 of 3 Vict. No. 19, except that it is punctuated and divided by full-stops. That same Markets Act 1890 declares that nothing in it is to repeal or alter the Act 6 Vict. No. 7.

The question then is, what was the scope and purpose of that legislation? Consider the law before 3 Vict. No. 19. There were no markets in New South Wales, and probably none could be established, because a market at common law was in the nature of a franchise. It was generally established by charter, which might be proved by long use. It was a privilege conferred on some person in the nature of a monopoly, and the value of it consisted in its monopolistic character. Any person who interfered with it was liable to an action for what was called disturbance of a market. The legislature being minded to establish markets in New South Wales, it was desirable to define the attributes of markets when established. It is doubtful, perhaps, whether selling in streets adjoining an English market, or in other streets in a town in England where there was a market, would have been a disturbance of the market. It might have been in some cases, and not in others. It was very desirable that questions of that sort should be settled in reference to the new kind of market, and in my opinion the legislature, in sec. 23 of 3 Vict. No. 19, directed their minds to the question, and dealt with it. They provided for the establishment of markets, and said that when a market was established certain consequences should follow, amongst which the most important was that it should be unlawful to sell marketable goods except in the market. I think that that consequence followed the appointment of a market as an incident of it, and that, literally read, the Act said so. I think that was the substance of the law that was enacted; that is to say, that the Commissioners might establish markets, and that certain consequences should follow upon their establishment, this being one of them. That being the law, what is the effect of the provision in sec. 71 of 6 Vict. No. 7 that the powers of the Commissioners to establish markets should be transferred in Melbourne to another authority? It appears to me to follow as a matter of ordinary construction that the market, when established by the substituted authority, was to have exactly the same attributes, and enjoy the same protection, as a market established by the Commissioners. That is the plain meaning of the language of the section. I think that, according to the ordinary rules of construction, sec. 23 of 3 Vict. No. 19 must be read, so far as regards Melbourne, as if the word "Council" were substituted for the word "Commissioners." In no other way can effect be given to the plain intention of the legislature. Any other construction would lead to remarkable consequences. Suppose that, during the interval between the appointment of Commissioners and the passing of 6 Vict. No. 7 a market had been established by the Commissioners. The law would be that the sale of market articles was forbidden except in the market. The Council being substituted for the Commissioners, whose powers were transferred to the Council, suppose that the Council thought it desirable to change the position of the market. As soon as the position was changed, the unlawfulness of selling except in the market would cease. Such a construction would render the Act nugatory.

I am, therefore, of opinion, simply as a matter of construction, and applying the ordinary rules of construction, that sec. 23 of 3 Vict. No. 19 should, so far as regards Melbourne, be read as if the word "Council" were substituted for the word "Commissioners," and that the same consequences follow the establishment of a market as before. Therefore it has always been unlawful in Melbourne to sell these goods in any place other than a market. For these reasons, I think the decision of Hodges J. was wrong. He had no doubt as to the intention of the legislature, but he did not think they had expressed it. I also have no doubt as to their intention, but I think they have expressed it.

I am of the same opinion. In considering the form of sec. 23 of the Act of 1839 one is impressed with the fact that it is one section with three branches, providing for three different things all material to one end, one of them being the establishment of a market, the second being the making the market exclusive, and the third, granted as an incident necessary in the judgment of the legislature for the preservation of that market, a prohibition of the sale outside the market of a number of things classed together as marketable commodities. I regard the section as one enactment passed, although in three branches, for the accomplishment of one single purpose, which is the setting apart and protection of a market at any time coming under the Act. That section has been repeated in the Market Statute 1864, and in the Markets Act 1890, almost in the same words. The first Act for the incorporation of Melbourne—6 Vict. No. 7—passed in 1843, by secs. 71 and 72 enacted that the Council of Melbourne should have the same powers, authorities, duties and immunities in respect of markets as the Commissioners had under sec. 23 of 3 Vict. No. 19, and that from and after the election of a Mayor, all the functions, duties and responsibilities which were then performed by, or which belonged to the Commissioners, should be transferred to the Council, and that all the functions of the Commissioners should thereupon cease and determine. It is necessary to consider what the legislature meant by those words. It is plain that the Commissioners were to have nothing more to do with the establishment or protection of any market in Melbourne. Whether they had performed any such functions or not, does not appear in the case. But they were not, after the Incorporation Act, to perform them. And the entire control was to be given to the Council of Melbourne. There occur in sec. 23 of 3 Vict. No. 19 the words "place or places which may be so appointed by the Commissioners as aforesaid." But the site of the present markets was appointed by the Council. It is plain that, upon the transference of the powers and duties, the corporation alone was entitled to set apart places for markets. Although the Council would have that power, although in every other respect the provisions of sec. 23 would be carried over for the benefit of the Council on its undertaking its duties under 6 Vict. No. 7, sec. 71, and electing a Mayor, nevertheless it is contended on behalf of the respondent that the occurrence in the third branch of sec. 23 of 3 Vict. No. 19 of the words "place or places which may be so appointed by the Commissioners" renders it impossible for the corporation to enforce, as to any place they may themselves have appointed for a market, that part of the section, which is the safeguard made by the legislature, without the possession of which the corporation, in respect of the protection of markets, would be practically impotent. Is it easily conceivable that it was the intention of the legislature to take such a step as this? Is it conceivable that the legislature advisedly left those words where they stand on any other hypothesis than that they were satisfied that, by secs. 71 and 72 of 6 Vict. No. 7, they were vesting in the corporation of Melbourne sufficient power to protect the interests of the citizens in respect of these markets?

I cannot help thinking that the supposition relied on by the respondent is quite unreasonable. The Council was, to my mind, so entirely substituted by the 6 Vict. No. 7 for the Commissioners in respect of the appointment and safeguarding of any market in Melbourne, that it would not be possible for any one, because of the mere fact that the Council and not the Commissioners had appointed the market, to escape the penalty attaching to what would otherwise be a clear breach of the law. I think the construction of secs. 71 and 72 of 6 Vict. No. 7 goes this far, that the powers of setting apart and safeguarding the markets vested in the Commissioners are equally vested now in the corporation. If that is so, there is included the power to enforce, as the Lord Mayor seeks to enforce in this case, penalties for an interference with the markets. Whether or not that interference comes within the definition of or the principles applicable to a common law disturbance of market, it is nevertheless the interference with the market at which this Statute aims.

Courts of Justice in England have been unhesitating in the enforcement of the intention of the legislature in cases not admitting of doubt, notwithstanding that the literal construction of portion of a Statute would, to a technical mind, impede the giving effect to that intention. As an illustration of the length to which the Courts have gone in giving force to the wishes of the legislature when clearly discernable in an Act, there is the case of Wigram v. Fryer[2]. In that case it was held by North J. that, notwithstanding the repeal of a section in a principal Act by an amending Act, certain powers expressly conferred by the repealed section must be implied from the amending Act, because of the necessity of those powers to the effective performance of the duties cast upon the Metropolitan Board of Works by the two Acts there in question. So that the very Act which repealed the section in the principal Act was held, notwithstanding the repeal, to impliedly embody in itself the powers that had been expressed only in that repealed section.

As I have said, I consider the words of secs. 71 and 72 of 6 Vict. No. 7 are sufficient for the purpose. But it is the practice, where the intention is quite clear, for Courts to modify the language of the Acts of Parliament to meet the intention. In Maxwell on Statutes, 4th ed., at p. 344, the matter is put in this way:—"Where the language of a Statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence. This may be done by departing from the rules of grammar; by giving an unusual meaning to particular words; by altering their collocation; by rejecting them altogether; or by interpolating other words; under the influence, no doubt, of an irresistible conviction that the legislature could not possibly have intended what its words signify, and that the modifications thus made are mere corrections of careless language, and really give the true intention. When the main object and intention of the Statute are clear, it must not be reduced to a nullity by the draftsman's unskilfulness or ignorance of the law, except in a case of necessity, or the absolute intractability of the language used. The rules of grammar yield readily in such cases to those of common sense." There is cited there the case of Salmon v. Duncombe[3]. That case is correctly described in Maxwell on Statutes, 4th ed., at p. 346, in these words:—"Where the clearly expressed intention of a Colonial ordinance was to give to any subject of the Queen resident in the Colony the power of disposing by will according to English law of property both real and personal, which otherwise would devolve according to the law of the Colony, and where a section of the ordinance was operative for that purpose, except that it concluded with the provision as if such subject resided in England, the effect of which would be to leave both the lex situs and the lex domicilii in operation, thus reducing the section to a nullity, it was held that the concluding words ought not to be so construed as to destroy all that had gone before, and therefore should be treated as immaterial, the powers conferred not being affected by the question of residence in England." And the same author says at p. 355:—"Notwithstanding the general rule that full effect must be given to every word, if no sensible meaning can be given to a word or phrase, or if it would defeat the real object of the enactment, it may, or rather it should, be eliminated. The words of a Statute must be construed so as to give a sensible meaning to them if possible. They ought to be construed ut res magis valeat quam pereat." I think that is the principle governing the position in this case.

This rule is not restricted to repugnancy. I find it again stated in Maxwell on Statutes, 4th ed., at p. 380, thus:—"It has been asserted that no modification of the language of a Statute is ever allowable in construction except to avoid an absurdity which appears to be so, not to the mind of the expositor merely, but to that of the Legislature; that is, when it takes the form of a repugnancy. In this case, the Legislature shows in one passage that it did not mean what its words signify in another; and a modification is therefore called for, and sanctioned beforehand, as it were, by the author. But the authorities do not appear to support this restricted view. They would seem rather to establish that the judicial interpreter may deal with careless and inaccurate words and phrases in the same spirit as a critic deals with an obscure or corrupt text, when satisfied, on solid grounds, from the context or history of the enactment, or from the injustice, inconvenience, or absurdity of the consequences to which it would lead, that the language thus treated does not really express the intention, and that his amendment probably does." These passages, with the authorities cited for them, are sufficient to show that, in case of need, the words "appointed by the Commissioners" might be read as "appointed by the Commissioners or by the Council," and, if necessary, I should not hesitate to read them so, and the construction would then be manifest. At the same time I am satisfied, for the reasons given by the Chief Justice that, upon the ordinary principles of construction, without the elimination or addition of a word, and by the effect of 6 Vict. No. 7, the Council are invested with the necessary power and authority to institute this prosecution, and to have the offender punished. I am, therefore, in favour of the allowance of this appeal.

The respondent was convicted under sec. 25 of the Markets Act 1890, of the offence of having exposed to sale certain provisions usually sold in markets, to wit fish, in a place in Melbourne other than the places appointed by the Council, and not being his dwelling house or shop. That section, by a course of legislation which it is not necessary to follow, is identical in all respects with sec. 23 of 3 Vict. No. 19, and it is upon its construction that this case turns. When Melbourne was constituted in 1842, the Act of Constitution handed over to the municipality all the powers necessary for the sanitation, policing, and general management of the town. It was a necessary and important part of that management that markets should be established, and protected. Instead of enacting separate provisions giving power to erect and establish markets, the Act made use of the general Markets Act then in existence (3 Vict. No. 19), and embodied certain of its provisions. It will be noted that that was a Statute dealing with the establishment of markets and nothing else, and its object and whole scope were accurately described in its title:—"An Act to authorize the establishment of markets in certain towns in the Colony of New South Wales; and for the appointment of Commissioners to manage the same." To what extent they have embodied those provisions is the matter for our determination. It would have been a very simple matter to have used words which would have had the effect of incorporating the whole of the provisions. That was not done. A special form of expression was used, and the question is whether that form of expression in sec. 71 of 6 Vict. No. 7 had the effect of incorporating the whole of sec. 23 of 3 Vict. No. 19.

Before dealing with sec. 23 of 3 Vict. No. 19, I shall refer to the words by which that section was embodied in the Melbourne Act of 1842, (6 Vict. No. 7). By sec. 71 of the latter Act it is enacted that—[His Honor read the section and continued]—Now, before examining what are the "powers, authorities and duties" which were handed over to the Council by that section, it is necessary to refer to the subject matter with which 3 Vict. No. 19 dealt. The word "market" is a word well known to the law, and the right to a market is a well known species of property. It was established in early days by charter, subsequently by local Acts, but it was a species of property which carried with it, for its own protection necessarily, certain incidents, and, just as the right of property in land carried with it the right of protection from trespass, so the right to a market carried with it the right of protection against what was called disturbance of market. Where disturbance of market took place, there was open to the owner of the right of market an action on the case at common law, or a proceeding for an injunction in equity, according to the form of wrong which had been committed. It is not necessary to refer in detail to all the incidents which the establishment of a market carried with it at common law; it is enough to say that a right of market was property, and that the law protected it. The extent of that protection may be gathered from the judgment of Lindley L.J., in Goldsmid v. Great Eastern Railway Co.[4]. That was a claim for disturbance of a market. It is not necessary to refer to the facts. Lindley L.J., said this:—"But without giving any definition of a market the authorities show that the grantee of a market has some exclusive rights, and those exclusive rights, without attempting to define them positively and negatively, include an exclusive right of inviting the public to come and buy and sell in the place where the franchise has authorized the market to be held." Then he referred to some other rights which are not material to the matter here under consideration. Such being the rights incident to the possession of a market, the extent of such rights depended at common law upon the terms of the grant of the franchise. In more modern times it became usual to grant rights of market by local Acts of Parliament, and in reference to them the author of the Encyclopædia of the Laws of England, in vol. 8, at p. 224, says:—"In modern times markets have been almost always established by local Acts of Parliament which establish and define their incidents. In order to shorten special Acts of this kind by rendering it unnecessary to repeat in each Act provisions usually inserted, and to ensure greater uniformity, the Markets and Fairs Clauses Act 1847, (10 & 11 Vict. c. 14), was passed." He then sets out certain provisions of that Act, amongst them sec. 13, which is as follows:—"After the market-place is open for public use, every person, other than a licensed hawker, who shall sell or expose for sale in any place within the prescribed limits, except in his own dwelling-place or shop, any articles in respect of which tolls are by the special Act authorized to be taken in the market, shall for every such offence be liable to a penalty not exceeding forty shillings."

That is practically identical with the portion ofsec. 23 of 3 Vict. No. 19, which is in question here, and although the Act of 1847 was passed eight years after 3 Vict. No. 19, it is evident, as is pointed out by the author of the passage I have quoted, that it merely embodied clauses then well recognized as being usually inserted in Acts of that nature. I think there can be no doubt that that provision in the English Act was intended for the protection of the statutory markets, to which it was to be applied. It was framed to define what should amount to disturbance of those markets, and the incidents of markets at common law, and to replace the somewhat cumbersome remedies for the protection of markets which then existed at law and in equity. Such being the incidents of markets at common law and of the statutory markets created in England at the time when the Act 3 Vict. No. 19 was passed in New South Wales, let us examine the provisions of sec. 23 of that Statute. I do not attach any importance to the fact that the original imprint of the section was not punctuated. We often have to construe sections of old Acts of Parliament which, although they deal with the same subject matter, deal with many aspects of it in one sentence. Looking at the terms of sec. 23, we find that the first portion gives an authority to erect and build markets. The next declares that "the said market place or places shall be the only places within the said town where any market ... shall for the future be held," thereby making the right of holding that market to be exclusive, one of the first incidents of a market at common law. Next comes the provision for the protection of the right of market from disturbance, in the same terms as the English Act I have referred to—making it an offence for any person to sell any provisions usually sold in markets "in any of the streets lanes entries or other public passages or places other than the place or places which may be so appointed by the Commissioners as aforesaid," and it is under this provision that the offence in this case has been charged. Finally, there is the proviso that nothing in the section "shall be construed to extend to prevent any person from selling or exposing for sale any of the said articles aforesaid in his or her dwelling house or shop in any part of the said town."

During the course of the argument I was much impressed by Mr. Duffy's argument that the portion of that section creating an offence was independent of the incidents of a market. The argument was well worthy of consideration. But after thinking it over, I have come to the conclusion that the words in question do not create an offence independently of the incidents of the market, but have, as in the English Statute, created the offence and attached the penalty as an incident of the market for its protection, and in substitution for that which the law had previously given against disturbance of market at common law and in equity.

Such being the powers and authorities of the Commissioners under 3 Vict. No. 19, those powers and authorities were by 6 Vict. No. 7 vested in the corporation. The market was handed over with all its incidents. It was intended to have in the hands of the Council the same incidents as it had in the hands of the Commissioners. Having once come to the conclusion that the protection afforded by making it punishable to sell market goods outside the markets is an incident of a market, there can be no ambiguity in sec. 71 of 6 Vict. No. 7. The power and authority to establish the market clearly gives power and authority to establish the market with all its incidents. Under those circumstances, there is only one rule of interpretation to be applied, that is, to give the section its plain meaning, according to the rules of ordinary grammatical construction, having regard to the subject matter. It would, in my opinion, be mere waste of time to refer to cases bearing on the rules of construction relating to ambiguities. There is no ambiguity here, when once we determine what are the incidents of the market to be created. Under these circumstances, I am of opinion that all the incidents of a market created under 3 Vict. No. 19 attach to markets established by the Melbourne Council, and amongst them the incident of making punishable by fine the unlicensed hawking which is the subject of this prosecution. That being so, the respondent was rightly convicted, and the judgment which set aside that conviction is therefore erroneous.

I am of the same opinion. By the Act 3 Vict. No. 19—now embodied in the Markets Act 1890 (see sec. 45)—provision is made for the election of market Commissioners by the householders of any town. These Commissioners were to have power to appoint market officials (sec. 23), to purchase lands (sec. 24), to fix places for markets (sec. 25), to make by-laws for the regulation of "any such market" (sec. 26), to borrow money on the security of the tolls (sec. 27), to collect market dues (sec. 31), to demise the market dues (sec. 33), to seize any offender and take him before a justice (sec. 35), to institute proceedings in the name of the chairman of the Commissioners (sec. 39), to recover penalties (sec. 40).

But by the Act which constituted the Melbourne corporation, 6 Vict. No. 7, sec. 71, it is enacted that the Melbourne City Council "shall have the same powers authorities duties and immunities in respect to markets as are given to Commissioners to be elected" as prescribed in the Markets Act. It will be noticed that the powers of the elected Commissioners are conferred on the elected Council without exception or qualification, in all their completeness, and (it must be assumed) in substance, and not merely in form. The question in this case has arisen under sec. 25 of the Markets Act. That section provides that:—"The said Commissioners may fix the places ... for the holding of markets," and "the said market places shall be the only places ... where any market for the sale" of certain provisions shall be held; and if any person sell any of the said provisions in any of the streets, &c., "other than the places which may be so appointed by the Commissioners as aforesaid" he shall on conviction forfeit £5. The learned Judge has taken the view that the Council can fix the places for markets, but that these places are not to be the only places where a market may be held, inasmuch as the places fixed are not "the said market places," that is to say, are not places fixed by Commissioners. For a similar reason he thinks that the penalty for selling in the streets does not apply where market places have been fixed by the Council, not by Commissioners; and he has therefore quashed the conviction of a hawker for selling in the streets. If this view is right, several of the other powers given to the Council will be found to be futile and ineffectual on similar reasoning—see for instance, secs. 26, 28, 29, 31, 34, 35, 36, 39. Passing by the consideration that if the words of the Statute are to be rigidly followed, without regard to consequences, Davidson has been rightly convicted as he has been selling in places not fixed by either Commissioners or Council, I ask, What is the effect of sec. 25 in substance? To my mind, it confers on the Commissioners a power to fix markets which shall be the sole markets and the sole places (except shops, &c.), in which anyone may sell the provisions referred to without incurring a penalty. In short, the latter words of the section define and explain what fixing the market places means. The markets are to be monopolies, as always under English law. This power to fix market places, and to produce thereby the consequences so defined, has passed, in my opinion, to the Council. The scope and ambit of the powers of the Council were intended to be precisely the same as the powers of the Commissioners; and the powers were to be effectual to their end, not nugatory. We should reach the same result, in my opinion, by applying the principle of necessary implication. The implication, I admit, must be necessary, not probable. I think that conjecture is too often allowed to usurp the name and place of necessary implication; but when, after careful examination, it is impossible to conjecture the purpose and efficacy of words that are clear, without giving words that are not clear a certain construction, we are pretty sure to be within the safe limits of necessary implication. There is a maxim of the civil law which seems to me to be applicable—one of those well-weighed sentences that carry on their own face a convincing argument for their soundness—Cui jurisdictio data est, ea quoque concessa ease videntur, sine quibus jurisdictio explicari non potuit. What applies to judicial powers applies also to powers such as those conferred on the City Council.

Appeal allowed. Order appealed from reversed. Order nisi discharged, with costs.

[1] (1906) A.C., 419, at p. 426.

[2] 36 Ch. D., 87.

[3] 11 App. Cas., 627.

[4] 25 Ch. D., 511, at p. 548.

High Court of Australia

Weedon v Davidson [1907] HCA 2; (1907) 4 CLR 895 (13 March 1907)

HIGH COURT OF AUSTRALIA