Horsey v Caldwell [1946] HCA 63; (1946) 73 CLR 304 (10 December 1946)

HIGH COURT OF AUSTRALIA

H C of A

10 December 1946

Latham C.J., Rich, McTiernan and Williams JJ.

Mason K.C. (with him Badham K.C. and Benjafield), for the appellant.

Spender K.C. (with him Byers), for the respondent.

Mason K.C., in reply.

The judgment of the Court was delivered by:?

Latham, C.J.

This is an appeal by special leave from an order of the Court of Quarter Sessions setting aside a conviction for an offence under the Black Marketing Act 1942, s. 4. The respondent, Henry Ernest Caldwell, was charged with an offence under s. 4 of the Act in that he did an act which constituted black marketing within the meaning of s. 3 of the Act in that contrary to reg. 29 of the National Security (Prices) Regulations made in pursuance of the National Security Act 1939-1943 he did sell by retail declared goods to wit meat being 2 lbs. and 3 ozs. of weight of gravy beef and four lamb kidneys at a price namely 3s. 8d. being a greater price than the maximum price, namely 2s. 4d., fixed in relation to the said goods under the said regulations for the sale of the said goods.

In order to succeed in the prosecution it was necessary for the prosecutor to show that the maximum price which I have mentioned had been fixed by an order made under the Prices Regulations. In order to do this he relied upon Prices Regulation Order No. 2166 which fixed the price or purported to fix the price of meat. Paragraph 8 of that order was in the following terms. It applies to sales by retail and the sales in question were sales by retail: "I fix and declare the maximum price at which meat of the classes ... specified in the Sixth Schedule to the order may be sold by retail in New South Wales to be the prices specified therein."

There is then a proviso which is immaterial for the purposes of this case. In the Sixth Schedule the prices set out opposite meat of the descriptions mentioned in the charge I have read were the prices alleged in the charge to be the maximum prices.

It is objected, however, that the Prices Regulation Order is invalid for two reasons. In the first place it is said that when reference is made to the Sixth Schedule it is seen that prices are fixed varying according to the areas in which meat is sold. In the present case the relevant area is Area 1a. In order to understand what Area 1a is, it is necessary to refer to the Seventh Schedule. In the Seventh Schedule Nos. 1 to 7 are defined and Area 1 is divided into 1a, 1b and 1c. Area 1a includes the City of Sydney and six shires and fifty-eight municipalities which are in the vicinity of Sydney. It is contended that the fixing of prices in relation to this area is invalid. The basis of the argument is to be found in the provisions of reg. 23 of the Prices Regulations which provide?I read only the relevant part?"The Commissioner may with respect to any declared goods" ?meat is declared goods?"from time to time, in his absolute discretion by order published in the Gazette ? (a) fix and declare the maximum price at which any such goods may be sold generally or in any part of Australia or in any proclaimed area." A proclaimed area is an area proclaimed by the Commissioner under reg. 21. There is no evidence that Area 1a as described in the Seventh Schedule was proclaimed under reg. 21. Accordingly it is not necessary to pay any attention to the provisions about proclaimed areas. The result is that the order fixing the price must be justified, if at all, either as fixing and declaring maximum prices at which goods may be sold generally or as fixing and declaring the price at which goods may be sold in any part of Australia.

This, as I have said, is an order which is limited to New South Wales and the part of reg. 23 which I have read draws a distinction between "generally" and "part of Australia." Prices are not fixed in the order "generally" ?i.e. for the whole of Australia. The question then is whether the order complies with the provisions of the regulation by fixing prices in any "part of Australia." It is argued for the respondent to the appeal that the regulations draw a distinction between parts of Australia and proclaimed areas which are in Australia and that if the words "part of Australia" are interpreted as meaning any portion of the land which constitutes Australia, then no good reason can be assigned for drawing a distinction between parts of Australia and proclaimed areas. It is further argued that part of Australia must mean such a part of Australia as a State or Territory, that is, a part which in some manner is recognized as a part in relation to Australia rather than in relation, as I follow the argument, to some portion of Australia itself. Thus, for example, Sydney and municipalities surrounding Sydney (the argument would concede) might be a part of New South Wales but would not be a part of Australia within the meaning of the regulations, although New South Wales would be a part of Australia within the meaning of the regulation.

In the opinion of the Court it is not necessary to decide this question in this case because par. 8 of the order which I have read fixes the maximum prices in New South Wales, which, it is admitted, is "part of Australia." Regulation 23 (1A) provides as follows: "In particular, but without limiting the generality of the last preceding sub-regulation, the Commissioner, in the exercise of his powers under that sub-regulation, may fix and declare?(a) different maximum prices ... in respect of different ... localities of trade, commerce, sale or supply." I read only the relevant parts. Accordingly, the Commissioner may, in the exercise of the powers conferred by sub-reg. (1) (which include powers to fix prices in any part of Australia and New South Wales is ex hypothesi a part of Australia), fix maximum prices in respect of different localities of sale. What the Commissioner has done is to fix in respect of the areas mentioned in the Seventh Schedule different prices in relation to meat sold in those areas. They are therefore localities of sale and the Commissioner in selecting those areas and varying the prices in respect of them has exercised a power which is expressly given to him. Accordingly in our opinion par. 8 of the order read in conjunction with Schedules Six and Seven is valid.

Although it is not necessary to determine in this case whether the construction of the words "any part of Australia" contended for on behalf of the respondent to this appeal is right, we would not wish it to be thought that we had any real reason for doubting that the areas in the Seventh Schedule are parts of Australia; but it is not necessary to determine that question in the present case.

The second objection to the validity of the order is based upon the presence in the order of par. 12. Paragraph 12 is in the following terms. It is headed "Variation of Maximum Prices by Notice" and states: "Notwithstanding the foregoing provisions of this Order, I declare the maximum price at which meat of any class specified in a notice in pursuance of this paragraph may be sold by any person to whom such notice is given to be such price as is fixed by the Commissioner by notice in writing to such person." That paragraph of the order reproduces the words of reg. 23 (1) (b). It does not itself fix the price in any case. It only declares that, in pursuance of the regulation, prices may be fixed by notice in writing given to particular persons.

In the case of Willmore v. The Commonwealth[1] , under the regulations as they then stood it was held by the Court that such a provision in a prices order was ineffectual to fix a price and that under the regulations as they then stood it was necessary to state in an order in the Gazette the name of the person in respect of whom it was proposed to fix prices. It was held that an order made under reg. 23 (2) (b) (1) must identify the person to whom notice is to be given and therefore that a paragraph of a prices order which was substantially in the same terms as par. 12 in the present case was void.

The regulations however have been changed since the decision in that case and by a regulation which was not referred to in argument before the Court, introduced by Statutory Rule 1946 No. 19, reg. 45B was amended. Regulation 45B (ba) reads as follows, the amendment, the terms of (ba), having been introduced by the Statutory Rule which I have last mentioned: "Any order declaration or notice authorized to be made or given under these Regulations may be made or given so as to apply according to its tenor to?(ba) in the case of an order, any person to whom a notice is given in pursuance of the order." That provision removes for the future, that is in relation to future orders, the objection which was held to be fatal in the case of Willmore v. The Commonwealth[2] . The statutory rule included this further provision relating to the past:?"Every order, or provision of an order, made, or purporting or appearing to have been made in pursuance of paragraph (b) of sub-regulation (1), or paragraph (b) of sub-regulation (2) of regulation 23 of these regulations before the commencement of this regulation, and every notice in writing given under any such order or provision, shall, by virtue of this regulation, but subject to any amendment or revocation made or purporting to have been made by any subsequent order or notice (whether before or after the commencement of this regulation), have, after the commencement of this regulation, the same force and effect as it would have had if regulation 45B of the National Security (Prices) Regulations, as amended by this regulation, had been in force at the time when the order or provision was so made, and had continued in force up to the commencement of this regulation."

Accordingly under reg. 45B (ba) the objection which was successful in Willmore v. The Commonwealth[3] is no longer open in the case of the present order. In any event even if par. 12 were held to be invalid it is severable from the other provisions of the order. I refer to the decision in the case of Fraser Henleins Pty. Ltd. v. Cody[4] .

But the substantial argument which has been raised on behalf of the respondent is this?let it be the case that par. 12 might be validly included in an order, yet it cannot be validly included in an order together with such a provision as par. 8. That is to say, the argument is that reg. 23 (1) provides that the Commissioner may by order published in the Gazette do either (a) or (b), but it is contended that he cannot do (a) and (b) at one and the same time. It is not contested that he might do (a) on one day and (b) on the next day or vice versa. The argument is that these alternatives are mutually exclusive and that powers mentioned in these pars. (a) and (b) of reg. 23 (1) cannot be exercised in the same order.

In the first place it should be observed that there is no foundation for a contention that there could be any objection to the order on the ground that different prices are fixed for the same goods in the case of the same persons. Such an argument is excluded by the words in par. 12 "notwithstanding the foregoing provisions of this Order." Those words show that if a price were fixed by a notice in writing pursuant to par. 12 that price would supersede any price that would otherwise have been effective under par. 8.

The argument is that the word "or" in reg. 23 presents two mutually exclusive alternatives. When the word "or" is used in relation to two or more alternatives, it is not necessarily the case that the alternatives are mutually exclusive. The question as to whether they are mutually exclusive or not must be determined by applying the general rule that words should be construed to ascertain the intention of the provision in question to be collected from the whole of its terms. In the present case there is no difficulty whatever in understanding and applying the provisions of the regulations if the alternatives are regarded as not mutually exclusive.

Regulation 23 means that in relation to any goods either method or both methods of fixing prices may be utilised. The object of par. (b) of reg. 23 (1) is to make it possible, notwithstanding a general fixing of prices for particular goods, to apply individual prices to individual traders when it is thought by the Commissioner desirable to take that course. There is, in our opinion, nothing in the words of the regulation which prevents the application in the same prices order of the two methods of fixing prices, it being necessary of course if the second method is adopted to take the further step of giving a notice in writing to the persons sought to be affected. We agree with the view of reg. 23 on this point which was taken by the Supreme Court of New South Wales in the case of Ex parte Byrne; Re King[5] . We are therefore of opinion that the objections to the validity of the order fail. The appeal is therefore allowed with costs. The order of the Court of Quarter Sessions is set aside. The order of the magistrate and the conviction are restored.

Appeal allowed with costs. Order of the Court of Quarter Sessions set aside. Order of the magistrate and conviction restored.

Solicitor for the appellant, G. A. Watson, Acting Crown Solicitor for the Commonwealth.

Solicitors for the respondent, McFadden & McFadden.

1. [1945] HCA 33; (1945) 70 C.L.R. 587.

2. [1945] HCA 33; (1945) 70 C.L.R. 587.

3. [1945] HCA 33; (1945) 70 C.L.R. 587.

4. [1945] HCA 49; (1945) 70 C.L.R. 100.

5. (1944) 45 S.R. (N.S.W.) 123; 62 W.N. 104.