Hendy v Rider [1919] HCA 1; (1919) 26 CLR 5 (7 March 1919)

HIGH COURT OF AUSTRALIA

Hendy Defendant, Appellant; and Rider Informant, Respondent.

H C of A

On appeal from the Supreme Court of Victoria.

7 March 1919

Isaacs, Higgins and Gavan Duffy JJ.

H. I. Cohen, for the appellant.

Starke, for the respondent.

Isaacs J.

We are of opinion that the appeal should be dismissed. The uncontroverted facts show that the appellant carried on the business of dealing in bottles and old metals and that he bought them from collectors of bottles and old metals. He held a licence under the Marine Stores and Old Metals Act 1915 as a dealer and to carry on the business of dealing in and buying and selling marine stores and old metals, and he thought it necessary to put up a notice that he did not buy rags, bones or fat, and requesting that those things should not be brought into his yard, and that he only bought bottles and metals. A witness deposed that the appellant carried on the business of a marine store. In itself that, of course, is not conclusive, but there was no objection to the evidence and it was not contradicted. The appellant himself did not give any evidence. The charge was dismissed by the magistrates, but on an order to review the Chief Justice of Victoria allowed the appeal, and remitted the case to the magistrates with the expression of his opinion that the establishment was one which would ordinarily be called a marine store. The learned Chief Justice, in the course of his judgment, stated his opinion as to what was the meaning of the expression a "marine store" within sec. 286 of the Health Act 1915. We do not think it necessary to say anything about that definition. We do not think that the definition was necessary for the case. The facts show that at all events the defendant carried on a business which under sec. 286 of the Health Act 1915 could not be carried on without the consent of the municipal council, because it was one which is usually carried on in or connected with establishments called marine stores. That business was carried on without that consent, the law was broken, and the order to review was rightly made absolute by the learned Chief Justice. This appeal should, therefore, be dismissed with costs.

Higgins J.

I should like to add that the difficulty of this case vanishes when one reads carefully the opening words of sec. 286. There is no obligation to show that this was in all respects a marine store. It may have been, or it may not. Certainly the appellant did not do some things which are usually done at a marine store. It is quite enough to show that he carried on "any of the trades businesses or occupations usually carried on in or connected with ... establishments" called "marine stores," and here he carried on the business of dealing in bottles and old metals. I think that the case was, in substance, decided by Hodges J. in Pope v. Franklin[1]. The very point was taken that it is not necessary to show that the defendant carried on all the occupations usually carried on in a boiling-down establishment.

Appeal dismissed with costs.

Solicitor for the appellant, D. C. Levy.

Solicitors for the respondent, D. H. Herald & Son.

[1] 26 A.L.T., 170.