Low v Bonarius [1904] HCA 24

Low v Bonarius [1904] HCA 24

The magistrate erred in dismissing the case based on the absence of sales of prohibited goods after the closing hour; the relevant question is whether the shop was closed to the public for purposes of trade within the meaning of the Act at the required time, which is a question of fact to be determined on the evidence.

Parties
Appellant: Peter Low; Respondent: C. A. Bonarius
Jurisdiction
Australia
Judgment Date
09 September 1904
Procedural Posture
Appeal / On Appeal From Supreme Court of New South Wales, After Special Case Stated by Stipendiary Magistrate Under the Justices Act 1902
Outcome
Order of Supreme Court varied and as varied affirmed; case remitted to magistrate to determine the correct question of fact; no costs of the appeal.
Legal Topics
Shops and Trading Hours, Shop Closing Regulations, Mixed Use Shops, Early Closing Acts, Fact Finding by Magistrate
Statutory Interpretation Administrative Law Shops and Trading Hours Shop Closing Regulations Mixed Use Shops Early Closing Acts Fact Finding by Magistrate

Case Brief

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Parties

Peter Low

Appellant

C. A. Bonarius

Respondent

Procedural Posture

Appeal / On Appeal From Supreme Court of New South Wales, After Special Case Stated by Stipendiary Magistrate Under the Justices Act 1902

Legal Issues

  1. 1 Whether a shop in which both fancy goods and news agent business is carried on must be closed at the earlier closing time fixed for fancy goods shops under the Early Closing Act 1899 (N.S.W.)
  2. 2 Whether the definition of 'closed' (closed to the admission of the public for purposes of trade) was satisfied by a barrier across the door while continuing to trade in newspapers
  3. 3 Whether the magistrate addressed the correct legal test when dismissing the charge

Ratio Decidendi

The magistrate erred in dismissing the case based on the absence of sales of prohibited goods after the closing hour; the relevant question is whether the shop was closed to the public for purposes of trade within the meaning of the Act at the required time, which is a question of fact to be determined on the evidence.

Court Disposition

Order of Supreme Court varied and as varied affirmed; case remitted to magistrate to determine the correct question of fact; no costs of the appeal.

Orders

  • Order amended to state that magistrate was wrong in dismissing the case on the ground stated by him.
  • Omission of direction that appellant pay costs to be omitted.