i OF AUSTRALIA. 463 ords which are often, and wisely, put in ayreements and H. C. or A. ards—merely in the hope of eliciting the opinion of the ree AND : 2 2 e FIrEMEN'S tralia, now contained in sec. 404, operates to withdraw assoctation 1 powers as were already contained in the original Act, under OF Eis ' i 'TRALASTA isions which have not been repealed. v. BROKEN Hi Pro- PRIETARY Co. Questions answered accordingly. B. L. [HIGH COURT OF AUSTRALIA.] < 3 i e i . APPELLANT; AND je é 4 . RESPONDENT, ON APPEAL FROM THE SUPREME COURT OF VICTORIA. H.C. or A. —Sale of marketable goods in places other than markets—' Places," mean- 1911 ing of —Public places—* Shop," meaning of—Disturbance of market—Markets ~ Act 1890 (Vict.), (No. 1115), sec. 25. Z Merzourne , Sec. 25 of the Markets Act 1890 (Vict.) provides that the commissioners of J#@ 13, 14» "markets "may fix the places within such town or portion of a town for the 1" _ holding of markets, and may there erect und build or cause to be erected Griffitho.J., 'or built, market houses with shambles stalls and other convenient buildings, ofttetaid H.C. or A. © 1911, —— RIcHARDSON vw AUSTIN. _ HIGH COURT And the said market places shall be the only. places' within. the sai portion of a town where any market for the sale of corn (except grain sold by sample) butchers' meat poultry eggs fresh butter vege other provisions shall for the future be held and kept, And if any pen section. Held also, on the evidence, that the place in question was a ": within the meaning of the section. Held also that the section does not exclude the ordinary remedies f turbance of market. Weedon v. Davidson, 4 C.L.R., 895, explained. Decision of Oussen J. + Austin v. Richardson, (1911) V.TARo, 115 82 ATT, 135, reversed. AppEAL from the Supreme Court of Victoria. At the Court of Petty Sessions, at-Geelong, on 27th Septer 1910, an information was heard whereby Herbert Arthur Mayor of the Town of Geelong, the respondent, on behalf of Council of Geelong, charged Horace Frank Richardson, the lant, for that, on 25th August 1910, at the Exchange, Little Street, Geelong, he "did expose for sale certain provisions u sold in markets to wit butter and such Exchange being other than the places appointed by the said Council and n made and provided." The information having been diene the respondent obtained an order nisi to review the decisio the ground that upon the evidence the appellant ought toh ha been convicted. November 1910 made it absolute, and imposed a fine of £5 the appellant. (Austin v. Richardson (1) ). The appellant 3 i by special leave appealed to the High Court. Q) (1911) V.L.R.,.11; 32 AL.T., 135. OF AUSTRALIA. 465 eee sufficiently stated in the judgments hereunder. 4- C. or A. 1911. ur and Sanderson (Bryant with them), for the appel- eee iy there is no offence under sec. 25 of the Markets Act 1890 v e sale or exposure for sale takes place in a public place. oo eg grammatical interpretation of the words "other public s or places" is other "public passages or public places." parte Cooke; In ve Donald v. Cooke (1) and Curmichael 'bes (2) that was assumed to be so, and in Weedon v. m, (3), the question was not raised, the only point for mination being whether the municipal council stood in the of the commissioners in respect of the right to recover a In inserting the exception of a man's dwelling-house e legislature recognized that exposure for sale in a jouse or shop might be held to be an exposure for sale place, and meant to make it clear that that should offence. [They referred to 3 Vict. No. 19 (N.S.W.), sec. kets and Fairs Clauses Act 1847, (10 & 11 Vict. ec. 14), 26 & 27 Vict. c. 13.] Even if the prohibition extends to enerally, the place in which the exposure for sale took was the appellant's shop, within the meaning of the 'The justices have found as a fact that it is a shop. ly the place is a shop, at any rate the place where was exposed for sale. Neither the fact that the appellant ods for other people there, nor that he sells by auction the place any the less ashop. See Pope v. Whalley, (4); sv. Ford (5); Wiltshire v. Willett (6); Fearon v. Mit- e is not a market, for that requires a concourse of sellers as of buyers. wis (with him Schutt), for the respondent. 'The history of islation shows that the word "places" is not limited to places. See 3 Vict. No. 19; 6 Vict. No. 7, secs. 71, 72; t. No. 18, sec. 6; 13 Vict. No. 40, sec. 6; Craies on Stutute ii (6) 110.B.N.S., 240 ; 31 L.J.M.C., 8. oa) LR. 7 Q.B., 690, at pp. 694, 696, 7Q. (8) L.R. 4Q.B., 316, at p. 319. 911) 1 Ch., 375; 27 T.L.R., 416. (9) 1Q.B.D., 59. H.C. of A. 1911, — RIcHARDSON vw AUSTIN, HIGH COURT Law, 4th ed., pp. 198, 297 ; Clarke v. Bradlaugh (1). See. the Markets Act 1890 is a substitution for the rights as to turbance of market: Weedon v. Davidson (2). The pen: clause is evidently designed to prevent injury to the right ferred by the immediately preceding clause. That right injured by the setting up of a rival market which on the dence was what was done here. Where words in an Act capable of two constructions that should be adopted wl supports the prohibition in the Act. [GrirrirH CJ. referred to Tuck & Sons v. Priester (3).] The exception of dwelling-houses and shops, neither of wl are public places, would be meaningless if "places" meant pul places. Even if the prohibition is confined to public places, building is a public place: Reg. v. Wellurd (4). The legis! intended to include in public places any place in which a market was set up: Ex parte Brian (5); Great Eastern Ra' Co. v. Goldsmid (6): Wilcow v. Steel (7); Mayor ée. of D chester v. Ensor (8); McHole v. Davies (9), This place can be held to be a shop by any application of the ordinary canon construction: Wiltshire v. Willett (10); Fearon v. Mitchell The business of the appellant was to hold auctions on market days. Grirrira C.J. The appellant was charged on the informat of the respondent, the Mayor of Geelong, that he the appellas 25th August 1910, within the Town of Geelong, did expose fot sale certain provisions usually sold in a market, namely butt e in a place other than the place appointed by the council not his dwelling-house or shop, contrary to the Statute in that made and provided. The Statute referred to is the Markets 1890, sec. 25 of which provides that "the said commissio —which in this case means the municipal council of Geelo "may fix the places within such town . . . for the hol (1) 8 Q.B.D., 63. 927, at p. 947. (2) 4 C.L.R., 895, at pp. 901, 902, (7) (1904) 1 Ch. 212, at p. 219. 907, 912. (8) LR. 4 Ex., 335. ona 1 9620) (9) 1Q.B.D., 59. (4) 14Q.B (10) 11 C.B.N.S., 240. (5) 23.B. +5) 125. (11) LR. 7 Q:B.; 690. (6) 25 Ch. D., 511; 9 App. Cas., OF AUSTRALIA. 467 ts, and may there erect and build or cause to be erected H.-C. oF A. it market houses with shambles stalls and other convenient te lings." The next provision in the section is that "the said Rycrarpson cet places"—that is, those established by the council— shall 2 the only places within the said town. . . . where any 'ket for the sale of corn (except corn or grain sold by sample) hers' meat poultry eggs fresh butter vegetables or other pro- sions shall for the future be held and kept." Then follows the ision under which the. charge was brought, "if any person yr expose to sale any of the said articles or other provisions ly sold in markets in any of the streets lanes entries or ublic passages or places other than the places which may appointed by the commissioners as aforesaid except in his ing-house or shop, every such person shall on conviction of for every such offence forfeit and pay the sum of Five .' The charge was that the appellant sold butter in other than the place appointed. When the case came the justices objection was taken for the appellant that no ce was disclosed by the information, and so the justices held. Cussen J. was of the contrary opinion with considerable He made absolute an order to review and imposed a fine. 'he appellant is a produce dealer in a large way of business in long. He occupies large premises of an irregular shape ving a frontage of about 100 feet to Little Malop Street. Part the premises extends back to another street, and the whole, ept » passage extending through to the back, is roofed in. terior of this building is used for receiving and storing luce, some sent by various owners to be sold by him, and me the appellant's own. The premises are closed and locked at it. On these premises the appellant holds auction sales once 'ice a week, and during the rest of the week he sells goods ere by private contract. Besides selling the goods of other 'sons the appellant also sells large quantities of butter of his n manufacture. Sometimes he sells a ton of his own butter a ek, and seldom, if ever, sells his own butter by auction. e first question is as to the construction of sec. 25. The pellant contends that in the phrase " or other public passages or places" the word "public" qualifies "places" as well as Griffith 0.3. a A68 H.C. or A. "passages." The respondent contends that the phrase sho 1911. ~ Ricuarpsow Section came before the Full Court of Victoria for considera Dv. AUSTIN. Griffith C.J. HIGH COURT read "or other public passages or any places." In 187! in the case of Ex parte Cooke; In re Donald v. Cooke (1). question there discussed was whether the place where the | were alleged to have been made was a public or a private pl It did not occur to any one to suggest that that question entirely immaterial. On the contrary, it was assumed thi was the one question to be determined. It is true that the was not argued on both sides, the opposite view was not sented to the Court, and the case cannot be regarded decision upon the point. But that interpretation has accepted ever since—upwards of thirty years—until it oce to the ingenuity of someone to lay this information. In opinion that interpretation was the correct one as a matter mere grammatical construction, apart altogether from the noscitur e sociis, which has special application to a section fi as this is. I come to the conclusion that, as a matter of com English, the words "or other public passages or places" "or other public passages or public places." The most that Priester (2) to which I referred yesterday. Lord Esher said (3):—* We must be very careful in construing that sect because it imposes a penalty. If there is a reasonable pretation which will avoid the penalty in any particular | we must adopt that construction. If there are two reason constructions we must give the more lenient one. That is settled rule for the construction of penal sections." Li LJ., after referring to the suggested construction said (4): doubt whether in a penal section that construction would be ri It seems to me that we should be treading upon very dan; ground, and, having regard to the well settled rule that the G will not hold that a penalty has been incurred, unles (3) 19 Q.B.D., 629, at p. 638. (4) 19 Q.B.D.; 629, at pp. 64 OF AUSTRALIA. of the clause which is said to impose it is so clear that the st necessarily be within it, I think we ought to keep on side and say that the words 'unlawfully made' are ently ambiguous to enable the defendant to escape from the ty." But in deference to the argument pressed upon us, it is said that the matter is one of considerable import- ee, I will deal with the respondent's arguments a little more at f They are based, as I apprehend them, on three grounds, a comparison of the history of the previous legislation in Australia and in England, secondly, on the exception ined in the words "except in his dwelling-house or shop," thirdly, on the assumed object of the legislature in passing et. e history of the legislation is simple enough. The original passed by the legislature of New South Wales in 1839, 3 Vict. 19, sec. 23, was substantially the same as sec. 25 of the Con- ing Act of 1890, except that at the end of the section, there proviso which said that :—" Provided that nothing herein ined shall be construed to extend to prevent any person n selling or exposing for sale any of the articles aforesaid in x her dwelling-house or shop in any part of the said town." iat extended as well to the provision that the market place ld be the only place for the sale of marketable articles as to penal provision in the closing sentence. But in 1864 the lature of Victoria had repealed that Act and re-enacted the v as it now stands in the Act of 1890. In the meantime an Act had been passed in England—10 & 11 Vict. c. 14—called the whet Clauses Act 1847. Sec. 13 of that Act is as follows :— \fter the market place is open for public use every person other a licensed hawker who shall sell or expose for sale in any within the prescribed limits, except in his own dwelling- or shop, any articles in respect of which tolls are by the ial Act authorized to be taken in the market, shall for every h offence be liable to a penalty not exceeding forty shillings." that one can derive from that is that the Victorian legisla- ie, having had their attention called to the English Act, had thought fit to leave out the general proviso in the old Act, 3 Vict. 19, and make it applicable only to the penal provisions of H.C. oF A. 1911. — RicHarpsoN v. AUSTIN, Griffith O.3. H.C. or A. 1911. — RicHaRDsoN vw AUSTIN, Griffith O.J. HIGH COURT the section, adopting the exact words of the English. Act, at the same time retaining their own words of prohibition selling in any of the "streets lanes entries or other public ages or places" instead of adopting the English single "place." So that if the argument is of any weight—I have doubt if it has any at all—the history of the legislation entirely against the respondent. ' Then I turn to the argument based on the words " except his dwelling-house or shop." The argument is a familiar o1 namely, that when an exception is attached to a provision Statute, it is primd facie to be assumed that the legislatu thought that the thing excepted would otherwise have within the enactment. That argument must not be pressed 1 far. But here it is obvious that selling or exposing for sale shop or dwelling-house fronting on a street would, if the sel or exposing for sale were on the street front, be clearly wii the enactment but for the exception. The exception was the: fore necessary, so that no assistance can be derived from exception. Then as to the argument from the assumed intention of legislature, there is nothing more dangerous and fallacious interpreting a Statute than first of all to assume that the | lature had a particular intention, and then, having made up on mind what that intention was, to conclude that that intention must necessarily be expressed in the Statute, and then proceed find it. One object was clearly to protect markets establi under the Act; another was to keep the streets and other p! clear from stalls and itinerant sellers of goods. But no one could predicate how the legislature would effect those objects. To that you must look at what they have said. As to setting rival markets or disturbing markets, the ordinary Courts of always had jurisdiction to award damages, or to grant an injun tion. In cases of that sort questions of considerable diffic both of fact and law, frequently arise, as is shown by the cases the subject, and we have no right to assume that the legislati intended that those questions should be left to be decided su marily by justices. I think it is in the highest degree improl able that in the year 1839 the legislature of New South Wales OF AUSTRALIA. ld have prohibited a market gardener from selling his pro- .in his own garden, which would be the result of accepting respondent's argument. All these arguments therefore fail, and we are thrown back on plain grammatical meaning which can only be that the word "places" means public places. It was suggested that this building is a " public" place, in the in which that word is used in the section, But a private customers. In my opinion this building is not a public place, id the word "places" in the section is used as applying to laces ejusdem generis with the other places that are mentioned. That disposes of the case, since the information discloses no ffence under the Statute. On the assumption that the section applied to any place, public rivate, a long argument was addressed to us to the effect that what the appellant did was to set up a rival market, or to disturb the corporation market. If he did so, he can be proceeded against action at law or suit for an injunction. To such an action or it he may have various defences, and it is sufficient to say that stices have not been empowered by the legislature to deal with ich a question summarily. Iu my opinion the case is not dis- inguishable from the case of Haynes v. Ford (1), decided in _ April this year by the Court of Appeal. For the reasons I have given I think that the appeal should be lowed. ; Ishould add that I am sorry that Cussen J. should apparently have been misled by some remarks that fell from members of this Court in the case of Weedon v. Davidson (2). Perhaps those observations were not so accurately expressed as they might ave been, but I do not think that anybody who had heard the iguments in that case could have misunderstood them. Barron J. Sec. 25 of the Markets Act has been before this Court in Weedon v. Davidson (2), and some inferences have been drawn from expressions used by the members of this Court in (1) (1911) 2 Ch., 237. (2) 4C.L.R., 895. H.C. or A. 1911. RICHARDSON w AUSTIN, Griffith C.J. H.C. or A. that case which, if justified, would be in favor of the resp 0 1911. —— RIcHARDSON v AUSTIN. Barton J. HIGH COURT But the question which has been the subject of argument = was not debated in that case, nor can the observations refer be really interpreted as a judgment upon that question. first question that arises is as to the meaning of the word "place in the third branch of see. 25. That section is a verbatim of sec. 28 of the Act of 1864, which, with other legislation, consolidated in the present Act. There was a previous Vict. No. 19, passed in 1839, which appears to have been amen by the Act of 1864. In sec. 23 of the Act 3 Vict. No. 19 ref is made to dwellings or shops, as to which I-shall have a words to say later on. That reference appears in the for proviso which says:— Provided that nothing herein contai shall be construed to extend to prevent any person from sell or exposing for sale any of the articles aforesaid "—that is mar! able articles—'" in his or her dwelling-house or shop in any of said town." For that proviso a substitution has been m: the insertion in sec. 25 of the Act of 1890 of the words "ex in his dwelling-house or shop" after the words " appointed the commissioners as aforesaid." As will be seen directly, I of opinion that there is no difference for the purposes of this between the meaning of the exception as it stood in the origi Act and as it now stands in its altered form in the Act of 189 The main subject of argument—and I think it is the del mining factor—is the meaning of the third branch of sec. 25. was argued that the word "places" bears a signification limited to public places, and therefore that all private pla apart from the markets themselves, are included in the prol tion contained in that branch of the section—with the excey of course, of dwelling-houses and shops, to which it is said possible exemption is limited,and within which it is said appellant's premises do not fall. There is, in the first plae considerable warrant for saying that the word "places" is in the third branch of the section in a sense ejusdem generis w the words "streets lanes entries or other public passages." would be to hold that, on the assumption that the word " pub was not necessarily intended as qualifying the word "places," doctrine applied as importing the qualification. That, howe' OF AUSTRALIA. 473 ink is scarcely necessary. It seems to me that these words, H- ©. or A. | in the ordinary sense, are perfectly clear. Taking them ieee hey stand, "in any of the streets lanes entries or other Rrcarpson lie passages or places," I think the ordinary reader, look- especially at the words "public passages or places," about the argument circled, would infer as a reasonable thing ee "places" were in the same class as "passages," and that blic passages and places" mean " public passages and public " That is the impression that these words conveyed to me e outset, and nothing has occurred to weaken it since. It is that in the first and second branches of the section the word " is used with a signification which might include private or places which are not public, and it has been argued that the word is used in that sense in the first two branches of the ion it must necessarily have been used in the same sense in third branch. But I think the word "places" in the third ich is used in a collocation which indicates that it is qualified word "public," applied to " passages " and " places " alike. e were referred to authorities on this question, and particu- to the case of Reg. v. Wellard (1). Now that was a very rent case. The place was held to be a public place under Act there in question. But a place may be public for purpose of a particular Act, and not public for the purpose mother Act of a different character altogether. The place held to be public was an unenclosed space accessible to public at all times of the day or night. No one, apparently, cised dominion over it, any more than dominion was exer- ver the place under consideration in the case of Ex parte 1 (2). An open place at the intersection of two streets may public place for the purpose of a particular Act, and might public place for the purpose of this Act. But there is no public place here. The right of exclusion constantly existed he hands of the appellant. He could have closed his place siness at any time of the day, and did close it every ing. That differentiates the place spoken of in these cases that we are dealing with. I do not think any of the udges who decided these cases would 'have said that either (1) 14 Q.B.D., 63. (2) 2 S.R, (N.S.W.), 125. Yor, x1. 33 AUSTIN. A74 H.C. or A. 1911. eS RicHaRDSON v AUSTIN, Barton J. HIGH COURT under the Statutes they were dealing with, or under the | Statute, a place such as the business house of the app could for a moment be deemed to be a public place. Then there is the consideration which has been referred | the learned Chief Justice that, when there is a question the sense in which a phrase is used, a construction adopted — the purpose of fixing penal liability upon a person mus founded upon words bearing a clear sense in the Act under sideration. In Tuck & Sons v. Priester (1), cited by the Chief Justice, Lord Esher MR. put it this way (2):—*If are two reasonable constructions we must give the more le one," and Lindley LJ. in the same case (3) speaks of "the settled rule that the Court will not hold that a penalty has incurred, unless the language of the clause which is said impose it is so clear that the case must necessarily be within The matter was put even more conclusively by Cave J. in 0; v. Lawrence (4) in these words:—'"It is a sound rule of struction that when any penalty or disability is imposec Statute on any of Her Majesty's subjects, the Court before whi any charge is preferred must be able to see clearly what conduct is which will render a person liable to the penalty imposed." On the law laid down in the two cases mentioned ther a great many decisions to the same effect. The construi which would render the appellant liable in this case is one of which, at the very worst for the appellant, are equally applic If that is so, the construction which does not impose the lial is to be adopted, and that is the construction which "places" in the third branch of the section "public places common with the other places enumerated. But it is said that, if the word "places" is as construed | there is no reason for the exception of dwelling-houses and I think that is not so. A dwelling-house or shop in a usually in a street or thoroughfare or in some place ace the public, it may be a square, and goods exposed for sa side such a tenement are in the ordinary sense exposed fc (1) 19 Q.B.D., 629. (3) 19 Q.B.D., 629, at p. 645. (2) 19 Q-B.D., 629, at p. 638. (4) 95 O.BD. 152, at pl OF AUSTRALIA. ely be so exposed for sale without literally being exposed | to provide for such cases was, I think, the intention of the slature in making the exception. It seems to me, therefore, xb the word " places" in the third member of the section means 'ic places." 'he further question arose whether the appellant's place of eption and sale of articles or goods sold by auction, he carried a business of his own in the sale of a marketable commodity, ter, a very large business at times. There was nothing in the structure from such places as have been held in England to shops. It is unnecessary to labour this point, inasmuch as the ion we hold as to the first question settles the whole case, but, it were necessary to decide whether this were a shop or not, [ should have no hesitation on the subject, especially in view of he case of Haynes v. Ford (1), in which case the judgment of _ Neville J. has been affirmed by the Court of Appeal. On the - whole case I am of opinion that the appeal must be allowed. O'Connor J. The conviction under review in this case is founded upon sec. 25 of the Markets Act 1890. The history of __ previous legislation throws no light whatever upon the question we have to decide. The prosecutor, in framing the information, very properly alleged as part of the case he had to prove that the sale did not take place in the appellant's dwelling-house or shop. _ It is a well settled rule in prosecutions that, where an act is made offence subject to a penalty, but it is déclared not to be an ffenece under certain circumstances, then the excepted cireum- stances must be negatived in the information and in the proof by he prosecutor. he prosecutor, therefore, took upon himself the iden of proving that this sale did not take place in a shop. I ve no doubt that the finding of the magistrates that the sale take place in a shop was correct, and on that ground alone, art from the question of law raised, this conviction cannot (1) (191}) 2 Ch., 237. eee en citer public place. As'a matter of fact they can H- ©. oF A. 1911. — street or other public place, unless they are behind glass, Rrcxarpson w AUSTIN. Barton J. 476 HIGH COURT H.C. or A. stand. As the question is of some importance I will add my 1911, yeasons for thinking that the decision that the place was eee a shop is not justified. It is impossible and indeed unnecesary { Aver, 'efine exhaustively what is a shop, but there are certain inci of this particular business which, it seems to me, cannot be left of consideration in determining whether the structure in questi here was a shop or not. Speaking generally, the appellant' premises were a collection of covered in places or rooms at th rear of other buildings fronting a public street, and opening to a right of way on either side. There is an entry to thema from the public street in front. The business carried on was tl of an auctioneer on a somewhat large scale. The place was cal by the auctioneer in his advertisements "The Exchange." A: matter of fact it was the appellant's permanent place of busin The portion of it in which the sale of butter was carried on ¥ separated from the rest of the premises. There a permane store of butter was kept, principally the appellant's own proper and very large quantities of butter, amounting to over a ton week, were sold there by retail. The auction sales of butter other produce were held apparently two or three times a day on one day of the week, and very frequently on other days. Unde those circumstanées it is clear that the place was a place for { sale of goods stored and brought there for the purpose of b sold, and those goods were sold by retail. In that you have the elements of a shop, and the question is whether the additior use to which the place was put in any way detracts from that character. zi It was held by Earle C.J. in Wiltshire v. Willett (1) t sale on commission and a sale by auction in a place do not away from that place the character of a shop. That decision followed in that respect by the Court of Appeal, and was appro by Cozens-Hardy M.R. in Haynes v. Ford (2). I think, th fore, that the building in which this butter was sold, the sw of the charge, being so used, was in all essentials a shop witl the meaning of sec. 25, and that the prosecution therefore on that question of fact. But apart from that arises the more important question as t () 11C.B.N.S., 240, (2) 27 T.L.R., 416. 2 O'Connor J. OF AUSTRALIA. of his very careful argument, made it clear that there is an er of two ways, either, as the appellant contends, the word " must be supplied before it or, as the respondent con- , the words "any of the" must be supplied before it. The of expression is elliptical, some words must be supplied, | the question is what word or words must be supplied. if, as Mr. Davis contends, the words to be supplied are iy of the" then an offence is committed, whether the sale place in any place, public or private, which is not the dant's dwelling-house or shop. If the appellant is right, n unless the sale takes place in a public place, which is not a elling-house or shop, no offence has been committed. Mr. is's principal argument, as I understood it, was put in this uy. The main body of the section protects the right of market inst any sale in any place, public or private, and the remedy en ought to be co-extensive with the right. It appears to me it does not follow at all. We must remember what is the ure of the remedy given. It is a penal prosecution before strates resulting in a summary conviction. It may very Il be that the legislature, though giving a right to protection uinst every form of sale which would interfere with the market ht, and would amount to a disturbance of market at common , stopped short of placing the full remedy in the hands of gistrates. The principle according to which a section of this ind is to be interpreted seems to me to be of some importance in where the interpretation is doubtful. There is no doubt at one time there was a very much more rigid rule of inter- tion of criminal provisions in Statutes than there is now, but modern rule is very well stated by James LJ. in Dyke v. ott; The "Gauntlet" (1). He said :—" It was much pressed in Court below, and again before their Lordships, that the jute being a penal, or,as it was phrased, a highly penal one, it s to be construed strictly. It appears to their Lordships essary to say a few words as to this topic, which is so often ssed in argument. No doubt all penal Statutes are to be con- (1) LR. 4 P.C., 184, at p. 191. rpretation of section 25. I think Mr. Davis, in the course H. C. or A. 1911. — guity in the use of the word " place," that it may be read in Rrozarpson v AUSTIN. 0 Connor J. H.C. or A. strued strictly, that is to say, the Court must see that the igil. a) Rrowarpson Used, and must not strain the words on any notion that the: Austin. 0'0onnor J. EKA COURT charged as an offence is within the plain meaning of the 1 been a slip, that there has been a casus omissus, that the thi so clearly within the mischief that it must have been intended be included and would have been included if thought of. On other hand, the person charged has a right to say that the tl charged, although within the words, is not within the spi the enactment. But where the thing is brought within words and within the spirit, there a penal enactment is to be strued, like any other instrument, according to the fair com: sense meaning of the language used, and the Court is not to or make any doubt or ambiguity in the language of a Statute, where such doubt or ambiguity would clearly not found or made in the same language in any other instrument That I think is the rule which [ may describe as the mo rule by which we are to be guided in interpreting penal Stai One fair way of looking at the section is to inquire: what the scope of the legislation, and will the construction conte for carry the provision beyond that scope? he scope is eli to protect the market, and, if the protection of the market effected fairly adequately by protecting it from sales in pu places round about the market, or in the neighbourhood of the market, it appears to me that is all the protection which the taken as a whole, contemplated. In Haynes v. Ford (1), althi the decision was upon a Statute somewhat different in word: think exactly the same principles of interpretation as intention of the Act were applicable. Cozens-Hurdy MR. regard to a section very similar to this, said (2) :—* The sec. 10 was to protect the market against what might be initerant vendors, people who sold their goods in alleys or or other open spaces, and the section also prevented them selling in any room which they might hire for the purpose ¢ inn or a warehouse. Then there was a saving, which oug! be construed as an express permission, that the section did apply to persons who, sold in their own shops. The question (1) 27 T.L.R., 416. (2) 27 T.L.R., 416, at p. 417. OF AUSTRALIA. yp within the permission given by sec. 10." if we look at the wording of the Act itself, the prohibition st selling in any of the streets, lanes, entries or other lic passages. All those are public places, sales in which be likely to affect the carrying on of the market author- /by the Act to be established, and to go beyond that would take a much further step than is at all necessary to pro- the market. One of the strongest arguments against Mr. 's contention is that, if it were adopted, it would go beyond tection required and would have the effect of prohibiting of marketable commodities of every kind which were not in a dwelling-house or shop. Many illustrations might be siven similar to that given by the learned Chief Justice in his judgment, where a sale, which could in no way do harm to the 'ket, and which would certainly not be a sale in a dwelling- or shop, would be prohibited. It seems to me, applying . test laid down by James LJ. in Dyke v. Elliott; The auntlet" (1), that the fair interpretation of this section, ording to the scope of the Act, and looking at the rest of the tions, is to restrigt the prohibition of sales to places of the same as streets, lanes, entries and other public passages. In my m, therefore, the proper word to be supplied before " places" public," and not the words for which Mr. Davis contends. _ The proper interpretation of the section being that there can offence unless the sale takes place in a public place, it is that the sale in question did not take place in a public place in the meaning of the Statute. The words "public place" > general words, and the sense in which they are used is to be red only from the subject matter with which the legislature ealing when it used them. A "public place" for the pur- of defining the offence dealt with in Reg. v. Wellard (2) me thing, in Ex parte Brian (3), it was quite another. Here blic places" must be interpreted with regard to the objects of ute, that is, the protection of markets. If the appellant's .R. 4 P.C., 184, at p. 191. (2) 14 Q.B.D., 63. (3) 2S.B (N.S.W.), 125. hat the defendant was doing was selling within his H- ©. or A. 1911. — it is a special provision which does not occur in this case. RicHarpson v AUSTIN. O'Connor J. H.C. oF A. - 191), SS RicHARDSON v. AUSTIN. O'Connor J. HIGH COURT ~ premises can be described as a public place, then every which attracts a large number of persons is a public place. names of shops which might be given by way of illustration Melbourne and Sydney will readily occur to anyone, where tl isa large stream of people going in and out all day. It hardly be contended that in an Act of this kind such shops intended to be included in the term "public places" within #l meaning of this section. On that ground, therefore, which is of fact, I think the appellant must succeed. I would like to add to what has been said by my brother with regard to the case of Weedon v. Davidson (1) that son expressions were used which perhaps went beyond the necessity of the occasion, and have, I think, been misunderstood. Look at my own judgment there, I find that I said that the rem having been given by this penal section, was in substitution other remedies under the old law. That statement is accur: but I did not intend to convey that the remedy was substiti to the exclusion of other remedies given by the old law. If words bear that meaning I think they went too far. There is 1 reason why the old remedy for the protection of market right by action for disturbance of market should not exist at the s time as this new remedy. The enforcement of the old remed; a very different thing from the enforcement of this new remedy which lays open to prosecution not only a person who sets a market, but every person who sells goods contrary to the visions of sec. 25. For these reasons I am of the opinion the learned Judge below took an erroneous view of the case, that the appeal must be allowed. i Appeal allowed. Order appealed from charged. Order to review discha with costs. Order of the jus restored. Respondent to pay the c of the appeal. Solicitors, for the appellant, Doyle & Kerr. Solicitors, for the respondent, Harwood & Pincott. (1) 4C.L.R., 895.