Joske v Dental Cash Order Company Pty Ltd [1916] HCA 7; (1916) 21 CLR 172 (28 February 1916)

HIGH COURT OF AUSTRALIA

Joske Informant, Appellant; and The Dental Cash Order Company Proprietary Limited Defendants, Respondents.

H C of A

On appeal from the Supreme Court of Victoria.

28 February 1916

Griffith C.J., Barton, Isaacs, Gavan Duffy and Rich JJ.

Sir William Irvine K.C. and Starke, for the appellant.

Pigott, for the respondents.

Sir William Irvine K.C., in reply.

C.J. Griffith read the following judgment:—

Feb. 28

Griffith C.J.

The relevant words of sec. 72 of the Medical Act 1915 on which the charge was founded are "No person who is not registered as a dentist shall, nor shall any company, ... use or have ... exhibited at any place (either alone or in combination with any other word or words or letters) the words dental company or dental institute or dental hospital or dental college or college or school of dentistry or any name title words letters addition or description implying or tending to the belief that he or such company is registered under this Act or any corresponding enactment previously in force or that he or such company is qualified to practise dentistry or is carrying on the practice of dentistry or is entitled to or to use such name title word letters addition or description."

It will be observed that as to the specified words the prohibition is absolute, as to other words it depends on their tendency.

The respondents were charged with exhibiting the words "dental company" in combination with other words. What they did was to exhibit at their registered office their name, which is "The Dental Cash Order Company Proprietary Limited."

The case was presented to the Magistrate on the basis that the use of the two words "dental" and "company" in the respondents' name constituted an offence, and the same contention was put forward before us, although afterwards abandoned. The learned Magistrate apparently accepted this view, and convicted the respondents. A majority of the Supreme Court were of a contrary opinion.

In my opinion, in the expression "the words dental company ... college or school of dentistry" the term "words" is used to denote the enumerated compound phrases separated from each other by the word "or." The only difficulty in this construction is the use of one set only of inverted commas for the words "college or school of dentistry," but the grammatical construction is plain and cannot be controlled by what is an obvious printer's error.

The use of the term or phrase "dental company" is, therefore, absolutely prohibited. I construe the prohibition to mean the use of the words, whether in immediate conjunction or not, in such a manner that the word "dental" is used to qualify by way of description the word "company" so as to indicate that the company is concerned in the practice of dentistry on human beings, but does not include the case when other words are interposed which show that that word is not so used. For instance, the use of the words "dental and homœopathic company" or "dental anæsthetic company" would be a use of the prohibited phrase, but the use of the words "dental chair manufacturing company" would not. In the first case the phrase may properly be said to be used, in the second not. In the present case, therefore, it is necessary to ascertain as a matter of fact whether the use of the name of the company falls within the prohibition so interpreted. The respondents say that the term "cash order" is a substantive, the meaning of which is well known as meaning an order by which the holder is enabled to obtain goods or services on time payment, and that the word dental qualifies this substantive, and does not point to the character of the company. If this is so, the case is not within the prohibition. If, on the other hand, the words "cash order" are a mere parenthetical or adjectival phrase denoting a particular kind of dental company, it is within it. This is a question of fact, to which the Magistrate did not apply his mind. This Court cannot find the fact as a Court of first instance except by taking judicial notice of the meaning of the words as actually used, and saying that the words "cash order" must, as a matter of legal construction, be read as an adjectival phrase and not as a substantive—that is, that the name means "cash order dental company." I do not know whether that is the true meaning of the words or not. I am inclined to think it is not, but I am not prepared to found a decision upon my own ignorance. In my opinion the respondents have not been legally convicted because the Magistrate never applied his mind to the real question for decision. The strictly appropriate order, if any is made, would be to remit the case to him for further consideration. Special leave to appeal would not, under the circumstances, have been given for any such purpose. I think, therefore, that either the leave to appeal should be rescinded, or the appeal dismissed.

Barton J.

I am of the same opinion.

J Isaacs read the following judgment:—

Isaacs J

The Legislature has in relation to human dentistry (see sec. 37 of the Act) prohibited entirely the use of certain words, including the words "dental company." To prevent evasion by making some verbal addition to the specified words, the prohibition of their use is expressly stated to be "either alone or in combination with any other word or words or letters."

The defendants have used those very words in combination with the words "Cash Order" interpolated between them. They have also added other words at the end, namely, "Proprietary Limited," which the Court can see at once are immaterial. The Police Magistrate convicted the defendants, and the question is: Have the Company shown the conviction was wrong? The Supreme Court by a majority held they had. Madden C.J. thought they had not, and in my opinion the learned Chief Justice was right. The respondents' argument before us adopted the view of àBeckett J., who held that so far as the specific words prohibited by sec. 72 are concerned, any separation of them by another word destroys their identity, and with that the specific prohibition. For instance, according to that view a company, though forbidden to call itself "Dental Company" could, without violating the specific prohibition, call itself the "Dental and Medical Company." His Honor considered that the prohibition extending to combination did not apply to combination by interpolation. In this view, it would be an offence to use "Surgical Dental Company" or "Operative Dental Company" or "Dental Company Limited," but not to use "Dental Surgical Company" or "Dental Operative Company" or "Dental Limited Company."

One of the other specifically forbidden titles enclosed like all the others in quotation marks, is "college or school of dentistry." We cannot assume an error, printer's or otherwise, especially seeing the form appears both in the original Act of 1898 and the consolidated Act of 1915. The reasoning referred to would maintain that an offence is committed if the whole bunch of words is used—a thing practically impossible; but if a company merely called itself "College of Dentistry," the identity being gone, there would be no offence, and I am not sure it could be brought under the later provisions. I am unable to think this was the construction intended by Parliament.

The Legislature expressed no restriction on the combination that left the use of the specified words prohibited. But the limitation is found in the identity of meaning to be attributed to those same words when found in the combination. When they are so combined with other words as to change the essential meaning conveyed by them in juxtaposition, their use ceases to be unlawful, because they cease to be the conjunctive expression indicated by the Legislature. The essential meaning of "dental company" is that the person or company using those words holds himself or itself out as a company carrying on business as a dentist.

Added words may in their ordinary natural significance destroy that signification. For instance, "Dentists' Materials Manufacturing Company" would be clearly free from objection. And as the ordinary meaning of English words is notorious and of public knowledge, we must take judicial notice of it, refreshing our minds with dictionaries and generally accepted works, if necessary. Again, if the added words have a special meaning in a particular trade, that must be proved. A special meaning known to the public when the words are used in a particular collocation need not be proved, because what the public know the Judges are taken to know. In the present case no special trade meaning was proved to attach to the words "cash order," It may be that if such a meaning had been established, public-notoriety might still be necessary. That need not be now discussed. Then as to the ordinary meaning of the added words, they do not in any way negative the primary meaning of the two words "dental company" in conjunction. The term "Dental Cash Order Company" I take to be a dental company having some special system as to what it calls "cash orders." What that system is, and how it distinguishes this company from other dental companies, is unexplained. Reading those words as a member of the public, I should be in doubt whether it meant that no orders for dental work were accepted except for cash payment, like cash grocers, or whether it meant that some document called a "cash order" passed between company and customer, either by the Company giving it or receiving it, in the latter case an order, for instance, by the patient on some other person. This doubt, I should feel, could only be resolved by asking the Company what it meant by "cash order." But I should have no doubt in my own mind that it was, at all events, a dental company, because I have no notion whatever as to what is meant by a "dental cash order," and no notion that such a thing exists, or is asserted to exist, and the expression is meaningless to me. This leaves the essential meaning of the two words "Dental Company" undisturbed notwithstanding the interpolation of the other words, and consequently the offence was committed. The conviction ought to have been confirmed, and this appeal should, in my opinion, be allowed.

J Gavan Duffy read the following judgment:—

Gavan Duffy J

I agree with the conclusion arrived at by the Chief Justice as to the interpretation of sec. 72 of the Medical Act 1915, and I think that the question to be determined in this case is whether in the name of the defendant Company exhibited at its registered office, the word "Dental" qualifies the word "Company" or qualifies the expression "Cash Order" and not the word "Company." If it qualifies the word "Company," the conviction should stand, if not, it should be set aside. It is said that the parties did not raise this question before the Magistrate, and that he did not apply his mind to it, and that, accordingly, the case should be sent back to him for further consideration. I am disposed to think that he did incidentally determine this very question in the process of determining the somewhat different issue submitted to him, but as the affidavits left me in doubt on the subject, I asked Mr. Pigott whether his client desired a rehearing on terms which I stated to him, and which I considered fair. He declined to accept a rehearing on the terms suggested, and he did not then, or at any time, ask for a rehearing on any terms. I must therefore decide the question at issue on the evidence as it stands. In my opinion the name of the Company was intended to convey and does convey to the public that it is a dental company of some kind; and the epithet "dental" is applicable to the word "Company" and not to the expression "Cash Order." I consider that on the evidence before him the Magistrate was at liberty to convict, and as I cannot assume that he was possessed of any special knowledge or information which would enable him to give a meaning to the words in question different from that which I have given to them, I think he was bound to do so.

Rich J.

I have read the judgment of my brother Gavan Duffy, and I agree with it.

Appeal allowed. Order appealed from discharged. Order nisi to review discharged with costs in the Supreme Court.

Solicitor for the appellant, Ernest Joske.

Solicitor for the respondents, Septimus A. Ralph.