De Bortoli v Kenny [1948] HCA 12

High Court of Australia Rich, Dixon and Williams JJ. De Bortoli v Kenny [1948] HCA 12

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

Cur. adv. vult.

The following written judgment of the Court was delivered:—

Aug. 20 Rich, Dixon and Williams JJ.

The appellant has appealed as of right from an order or orders of the Supreme Court discharging seven rules nisi for 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 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.

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. 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.