De Bortoli v Kenny [1948] HCA 12; (1948) 76 CLR 453 (20 August 1948)

HIGH COURT OF AUSTRALIA

DE BORTOLI v. KENNY [1948] HCA 12; (1948) 76 CLR 453

Appeal

High Court of Australia
Rich(1), Dixon(1) and Williams(1) JJ.

CATCHWORDS

Appeal - High Court - Appeal as of right - Decision of Supreme Court (N.S.W.) on appeal from Court of Petty Sessions - "Civil right amounting to or of the value of Three hundred pounds" - Price fixation - Validity of notice - Sale of wine - Right to sell without the restriction of a notice as to fixed price - Competency of appeal - Special leave to appeal - Judiciary Act 1903-1947 (No. 6 of 1903 - No. 52 of 1947), s. 35 (1) (a) (2) - National Security (Prices) Regulations (S.R. 1940 No. 176 - 1947 No. 36), regs.23 (1) (b), 45B (ba) - Prices Regulation Order No. 1015.

HEARING

Sydney, 1948, August 18-20. 20:8:1948
APPEALS from the Supreme Court of New South Wales and APPLI-
CATION for special leave to appeal.

DECISION

August 20.
The following written judgment of the Court was delivered: -
RICH, DIXON AND WILLIAMS JJ. The appellant has appealed as of right from an statutory prohibition. The rules nisi were granted for the purpose of bringing up for review seven convictions of the appellant for offences under the National Security (Prices) Regulations. The appellant was fined 100 pounds for each offence. The respondent objects that no appeal lies as of right from the orders and that the appeal is or the appeals are incompetent. For the appellant, however, it is contended that the orders of the Supreme Court fell within s. 35 (1) (a) (2) of the Judiciary Act because they indirectly involved a question respecting a civil right amounting to or of the value of 300 pounds. (at p460)

2. The civil right said to be in question is to sell without the restriction of a notice given by the Prices Commissioner fixing prices for the appellant. The Supreme Court has overruled an objection on the part of the appellant to the validity of the notice. The decision that the notice was valid forms part of the essential groundwork upon which the orders were based. If the notice is valid, certain consequences affecting the appellant's rights would follow. Among these, the appellant says, would be the inability to recover from his customers to whom he has sold goods at prices exceeding the prices named in the notice large amounts which are still outstanding: amounts exceeding 300 pounds. Another consequence which the appellant says must ensue is what may be compendiously, but perhaps not quite accurately, called a loss of the value of the goodwill of his business, a loss exceeding 300 pounds. (at p461)

3. We think that the appellant's contention cannot prevail. The reason is that it confuses the financial consequences which may ensue from the decision of a point of law as part of the court's ratio decidendi with the question respecting a civil right involved in the curial order. It is the curial order of the court from which the appeal must be brought, not the decision of points of law in the course of reaching the judgment embodied in the order. There must be a question directly or indirectly respecting a civil right of the required value and that question must be involved not in what the court holds to be the law but in what the court does by its order. Here what the orders of the Supreme Court do is to affirm convictions for offences. The legal points lying behind those orders are another matter. The convictions themselves do not involve any civil right of the required amount. We have never admitted appeals in criminal matters without special leave, either because of the financial consequences of the questions involved in the reasoning supporting the conviction or of those ensuing from the punishment, whether imprisonment or fine. (at p461)

4. We do not think that Kidney v. Melbourne Tramway & Omnibus Co. Ltd. (1902) 8 ALR (CN) 29 can be relied upon as an authority on the meaning of s. 35 (1) (a) of the Judiciary Act. (at p461)

5. We think that the appeals are incompetent. (at p461)

6. We shall proceed to deal with the application for special leave to appeal. The applicant if he had wished could have appealed to this Court as of right but he chose to appeal to the Supreme Court. Of the points raised by Mr. Barwick, none appears to us to raise any question of public importance except the point that the price fixing order under which the applicant was prosecuted was not authorized by the National Security (Prices) Regulations. The order in question was a notice in writing dated 14th July 1945 which notified the applicant that the maximum prices at which he might sell certain brands of wine on and from the date thereof should be as therein set out. It was a notice purporting to be made under the provisions of par. 8 of Prices Regulations Order 1015 which has been before this Court on several occasions and is known as the "Ceiling Prices Order." The decision of this Court in Willmore v. The Commonwealth [1945] HCA 33; (1945) 70 CLR 587 established that par. 8 was not authorized by these regulations so that any notice given under it would be invalid. But after that decision the Prices Regulations were amended by 1946 Statutory Rules No. 19 which came into force on 29th January 1946, and inter alia, by reg. 6 amended reg. 45B of the Prices Regulations by inserting par. (ba). Regulation 45B as so amended then read that any notice authorized to be made or given under these regulations may be made or given so as to apply according to its tenor, in the case of an order, to any person to whom a notice is given in pursuance of an order. Regulation 6 (2) of 1946 Statutory Rules No. 19 provided that every order and provision of an order purporting or appearing to have been made in pursuance of par. (b) of sub-reg. (1) of reg. 23 before the commencement of this regulation and every notice in writing given under such order or provision should, by virtue of this regulation, have, after the commencement of this regulation, the same force and effect as it would have had if reg. 45B as amended by this regulation had been in force at the time when the order or provision was made. In Horsey v. Caldwell (1946) 73 CLR, at p 313 the view was expressed by this Court that since reg. 45B (ba) the objection which was successful in Willmore v. The Commonwealth [1945] HCA 33; (1945) 70 CLR 587 was no longer open. Paragraph 8 of Prices Order 1015 was there considered to be a provision of an order purporting or appearing to have been made under reg. 23 (1) (b) so that a notice given to a person under this paragraph would be a notice given in pursuance of an order within the meaning of par. (ba). If reg. 6 (2) of 1946 Statutory Rules No. 19 cured the failure to notify the name of the person in the Gazette, it must have equally cured the failure so to notify the goods. Mr. Barwick pointed out the verbal difficulties involved in this view but the intention with which the amendment was made is sufficiently apparent. In all the circumstances, therefore, we do not think that any case has been made to give special leave in order to reconsider Horsey v. Caldwell [1946] HCA 63; (1946) 73 CLR 304 . Special leave should therefore be refused, and the appeals struck out with costs. (at p462)

ORDER

Appeals struck out with costs. Special leave to appeal refused.