Goodwin v Jorgensen; Goodwin v Cordell

There being no need to import any limitation into the application of "hire-purchase agreement" according to s. 1 (5) of the Act or specifically into ss. 41 or 47 in order to sustain its validity, there is in my opinion no other basis upon which any limitation can be made. It is nothing to the point, in my opinion, that some territorial limitation must be made in relation to other sections of the Act because of the specific nature of the provisions there enacted. Nor in my opinion is there anything incongruous in the State making provisions such as are found in ss. 41 and 47 for the protection of the owner of those goods in relation to goods or persons within the State.

I am unable to gather anything from the address of the appellant to this Court which justified his instituting these proceedings in a court of petty sessions of New South Wales. In my judgment the reasons of the learned judges of the Court of Appeal [1] for reversing the judgment of Nagle J. [2] on each of the cases stated by the magistrate are entirely right. I am in so full accord with the reasons of the Court of Appeal that, with respect, I adopt their reasons as stated by them for expressing my view that the right answer to give to each case stated by the Magistrate is that his determination was erroneous in law.

1. [1971] 2 N.S.W.L.R. 417. 2. [1972] 2 N.S.W.L.R. 310.

I think that the order of the Court should be that each of the present appeals is dismissed with costs.

Section 41 of the Hire Purchase Act, 1960 NSW makes it an offence for the hirer of goods comprised in a hire-purchase agreement to fail to give the owner who has required it a statement in writing showing where the goods are. Section 47 of the Act makes it an offence for a hirer of goods to detain without just cause goods comprized in a hire-purchase agreement in respect of which the owner being entitled to take possession has served a notice of demand for possession with which the hirer has either refused or failed to comply and an order for delivering up has been made.

The appellant instituted proceedings under s. 41 against the respondent Cordell and under s. 47 against the respondent Jorgensen. The defendant Cordell was convicted and fined and the defendant Jorgensen was ordered to deliver up the goods the subject of the complaint. The magistrate, upon request, stated a case in each matter asking whether his order was in error because the hire-purchase agreement relied upon by the complainant had been made outside New South Wales. Nagle J. answered the questions in the negative, but appeals to the Court of Appeal of the Supreme Court of New South Wales were allowed and the cases were remitted to the magistrate with the opinion that he had erred in law. These appeals, by special leave, were heard together as were the proceedings in the Supreme Court.

Each section refers simply to " goods comprized in a hire-purchase agreement " There is no express limitation limiting their operation to cases where the hire-purchase agreement was made in New South Wales. Furthermore, the definition of hire-purchase agreement in s. 2 contains no such limitation. Section 1 (5) of the Act is as follows:

(i) hire-purchase agreements entered into after the commencement of this Act; and

(ii) agreements entered into before or after that commencement in relation to hire-purchase agreements to be entered into, or entered into, after that commencement.

(b) Section forty-seven of this Act applies to and in relation to hire purchase agreements entered into before the commencement of this Act as well as to and in relation to hire-purchase agreements entered into after that commencement.

Again there is no express limitation to agreements made in New South Wales. Indeed, this provision is clearly enough directed to the time when, and not the place at which, agreements are made.

The Court of Appeal derived the limitation to which it gave effect from the circumstance that most of the sections of the Act " deal only with agreements entered into in New South Wales " to use the language of Jacobs J.A. [1] , with which Holmes J.A. agreed [2] . Hope J.A. added:

the Act cannot be construed so as to entitle an owner to obtain an order pursuant to the provisions of s. 47 unless that owner is also subject to the obligations which the Act imposes upon persons who have recovered possession of goods pursuant to such an order. The relation between s. 47 and the other sections of the Act to which I have referred reinforces the view that the Legislature did not intend that most of the provisions of the Act should apply only to agreements executed in New South Wales and a few should apply not only to those agreements but to other agreements as well, and that in truth the Act contains a set of largely interlocking provisions all of which are applicable only to agreements entered into in New South Wales. [1] 1. [1972] 2 N.S.W.L.R., at p. 315. 2. [1972] 2 N.S.W.L.R., at p. 316. 3. [1972] 2 N.S.W.L.R., at pp. 316-317.

It is established that the provisions of the Act relating to the formation and contents of hire-purchase agreements refer only to hire-purchase agreements made in New South Wales: Kay's Leasing Corporation Pty. Ltd. v. Fletcher [2] . No doubt, too, other provisions of the Act may be similarly limited in their operation. The limitation in each case, however, springs from the terms and the subject matter of each of the various provisions itself, not from any over-riding limitation confining the operation of the Act as a whole to hire-purchase agreements made in New South Wales.

Furthermore, there are provisions in the Act which are unconnected with what Hope J.A. has described as " a set of largely interlocking provisions " [1] based upon provisions applicable only to agreements made in New South Wales. Such a provision is s. 42 which makes it an offence for a hirer to defraud the owner of goods by the disposal of goods comprized in a hire-purchase agreement. The purpose of this provision is clearly enough simply to discourage fraud by a person who, having the possession of the goods of another under a hire-purchase agreement, might be tempted to take dishonest advantage of his situation. There would be little to be said for confining a provision such as s. 42 enacted in relation to bailees to cases where the bailment agreement happened to have been made in New South Wales. I find s. 42 of assistance in two ways in the determination of the matter under consideration. First, it shows that to limit the operation of the Act to hire-purchase agreements in New South Wales would not of itself be a sufficient overall limitation for the purposes of the Act as a whole for the section clearly enough would not apply to a disposal outside New South Wales even if the hire-purchase agreement had been made in New South Wales, Secondly, it shows that there is in the Act a section creating an offence which is quite unconnected with any provision of the Act that does, upon its proper construction, relate only to hire-purchase agreements made in New South Wales. The existence of s. 42 is thus inconsistent with an overall limitation such as the Court of Appeal implied and is, in accordance with the general principle that crime is territorial, subject to a quite different limitation.

The restriction which the Court of Appeal has imported into s. 41 and s. 47 by implication does not rest upon anything in those sections or in s. 4 or s. 5, but simply upon the circumstance that the operation of certain other provisions of the Act is, upon the true construction of these provisions, confined to hire purchase agreements made in New South Wales. This, in my opinion, is not sufficient reason for implying a like restriction in either s. 41 or s. 47. It would be different if s. 41 and s. 47 had, to ensure their validity, to be confined in a manner that would be effected by the limitation adopted by the Court of Appeal. This, however, is not the case. To import the implication would do nothing to obviate the need for restricting the operation of s. 41 and s. 47 to acts or omissions occurring in New South Wales. In other words, the implication made is not a necessary implication in the sections in question, notwithstanding that such an implication may be necessary in other sections of the Act to preserve their validity.

Here, of course, no question of validity arises. Read as I would read it, there is ample nexus between each section and New South Wales. In Cordell's case it was sought to rely upon s. 45 of the Act but the proceedings against her were not to enforce the hire-purchase agreement.

In my opinion, the appeal should be allowed and the order of Nagle J. restored.

I have had the advantage of reading the reasons prepared by my brother Mason and agree with him that the appeal should be allowed for the reasons which he gives.

I would add only a few remarks on one aspect of the matter that does occasion some difficulty. The effect of s. 2 (4) of the Hire-Purchase Act, 1960 NSW is that the provisions of ss. 13 to 17 of that Act apply where the owner takes possession of the goods pursuant to an order of the Court made under s. 47. However, the learned judges of the Court of Appeal considered that ss. 13 to 17 could only operate in respect of an agreement complying with the New South Wales Act and this supported them in their conclusion that the operation of s. 47 must be restricted to agreements made in New South Wales. Many of the provisions of ss. 13 to 17 can clearly enough be applied to the case of the repossession of goods under a hire-purchase agreement, no matter what the form of the agreement or where it was made. Examples are the provisions that require the owner to give a notice in the form of the 3rd Sch. before repossession (s. 13 (1)), to give a receipt for the goods (s. 13 (4)) and to retain the goods for twenty-one days after taking possession (s. 14), and those that enable the hirer to obtain redelivery of the goods upon giving the requisite notice and paying or tendering the amount due and remedying any breach of the agreement (s. 15 (1) (a) and s. 16). Other provisions, however (such as s. 15 (1) (b) and (c)), render it necessary to ascertain "the net amount payable", a term defined as the "total amount payable less the statutory rebates for terms charges and insurance as at the time of the owner taking possession of the goods" (s. 15 (2) (a)), and the 4th Sch. notice, which is required by s. 13 (3) to be given by the owner within twenty-one days after taking possession, also refers to "statutory rebates". A "statutory rebate" as defined in s. 2 (1) can only be determined by first finding the amount of the "terms charges", which is the amount of any charges, other than those in respect of freight, vehicle registration fees and insurance, which are included, together with the cost price, in the total amount payable (s. 3 (2) (e) (vii)). An agreement which was made in New South Wales and complied with the New South Wales Act would contain sufficient information to enable the terms charges, and therefore the statutory rebate, to be ascertained but it is highly probable that this would also be the case with most agreements made within Australia because of the similarity of the hire-purchase legislation of the various States and Territories. However, although the legislation throughout Australia is similar, it is not identical, and a statutory rebate calculated in accordance with the New South Wales Act might be different from that calculated in accordance with the law of another State or Territory. The question then arises whether in the 4th Sch. notice, and in the application of s. 15 (1) (b) and (c) of the New South Wales Act, in cases where the hire-purchase agreement was made outside New South Wales but possession of the goods was taken within that State, the statutory rebate should be calculated in accordance with the New South Wales Act or in accordance with the relevant law (if any) of the place where the hire-purchase agreement was made. Since this question does not fall for decision, and has not been fully argued, it would not be right to pronounce upon it. However the question is answered, it is not in my opinion correct to say that ss. 13 to 17 would not be applicable where an order was made under s. 47 in respect of goods the subject of a hire-purchase agreement made outside New South Wales and this suggested reason for construing s. 47 as applying only to agreements made in New South Wales is not valid.

The two appeals have been heard together. The respondent Jorgensen was convicted in proceedings initiated by the appellant of an offence under s. 47 of the Hire-Purchase Act, 1960 NSW and ordered to deliver up the goods the subject of the complaint. The respondent Cordell was convicted in proceedings also initiated by the appellant of an offence under s. 41 of the Act. In each matter the magistrate, at the request of the appellant, stated a case for the opinion of the Supreme Court of New South Wales. The cases stated are defective in that the facts have been stated inadequately and the questions have not been stated expressly, but are to be gathered by implication from the material recited. However, some additional facts appear from the judgments delivered in the Supreme Court and it is sufficiently clear that the cases raise for decision the question whether the magistrate's determinations were erroneous in law. Nagle J. held that they were not erroneous, but on appeal the Court of Appeal came unanimously to a different conclusion and the cases were remitted to the magistrate with that expression of opinion.

The owner of any goods comprised in a hire-purchase agreement may, at any time by notice in writing served on the hirer thereof, require him to state in writing where the goods are, or, if the goods are not in his possession, to whom he delivered the goods or the circumstances under which he lost possession of them, and any hirer who does not within fourteen days after the receipt of such a notice give to the owner such a statement or who gives a statement containing any information that is to the knowledge of the hirer false is guilty of an offence against this Act. Section 47 provides:

(1) Upon complaint made by an owner who is entitled to take possession of any goods comprised in a hire-purchase agreement or by any person acting on behalf of an owner that the hirer or any person acting on behalf of the hirer has refused or failed to deliver up possession of the goods on the service of a notice of demand made by the owner or by an agent of the owner authorised in that behalf, any justice of the peace may summon the person complained of to appear before a court of petty sessions and if it appears to the court hearing the case that the goods are being detained without just cause, the court may order the goods to be delivered up to the owner at or before a time, and at a place, to be specified in the order.

(2) Any person who neglects or refuses to comply with any order made under this section is guilty of an offence against this Act.

In each case the hire-purchase agreement was entered into in the Australian Capital Territory between Television and General Finance Company (Australia) Ltd. as owner and the respondent as hirer. The respondent Jorgensen made no payments under her agreement, changed her address without notifying the owner and failed to deliver up the goods within the time specified in a notice of demand given on behalf of the owner. The respondent Cordell failed to state in writing the whereabouts of the goods the subject of her hire-purchase agreement within the time specified in a notice served on her on behalf of the owner. The respondents were at all times resident in New South Wales. In each case the goods were in the State at the time when the magistrate made his order and also, it seems, at the time when notice was served on the respondents respectively on behalf of the owner.

For the respondents it was submitted that neither s. 41 nor s. 47 applies to hire-purchase agreements entered into outside New South Wales, a submission which was upheld by the Court of Appeal. The Court's conclusion was based on the view that for reasons of constitutional validity the provisions of the Act (including s. 41 and s. 47) should be construed as applying only to hire-purchase agreements entered into within the State and on the alternative view that, as many provisions of the Act should be so limited in their application in accordance with the approach taken by this Court in Kay's Leasing Corporation Pty. Ltd. v. Fletcher [1] , the remaining sections should be so limited.

Although the Act broadly follows the model of a uniform Act drafted by the Commonwealth and the States in 1958 and 1959, it overlooks the problems which can and do arise when a hire-purchase agreement is entered into in one State or Territory and the goods to which it relates are in another State or Territory. The Act contains no specific provisions dealing with this situation. The question is therefore to be resolved by construing the particular sections in the light of the Act as a whole.

It is convenient to begin with the statutory definition of hire-purchase agreement contained in s. 2 (1) which describes the types of agreement which fall within the statutory concept. It is designed to ensure that the expression is not confined in its meaning to the classical form of hire-purchase agreement recognized in Helby v. Matthews [2] ; it excludes certain other agreements. It contains no suggestion of a territorial limitation.

Next, there is s. 1 (5) which, by sub-paragraph (a) (i) states that the Act applies to hire-purchase agreements entered into after the commencement of the Act, and by sub-paragraph (b) provides that s. 47 applies to hire-purchase agreements entered into before, as well as after, the commencement of the Act. The Court of Appeal thought that unless the sub-section was read down so as to apply only to hire-purchase agreements entered into within the State it would be invalid as applying to hire-purchase agreements made anywhere in the world. The consequence of so construing s. 1 (5) is to confine all the operative provisions of the Act to hire-purchase agreements made in the State.

This approach finds for s. 1 (5) a grander role than its authors contemplated. Its language and its context both indicate that its sole purpose was to indicate that the application of the Act to, and in relation to, hire-purchase agreements was prospective, except in so far as it made different provision for s. 47. Its place in s. 1 confirms that it is one of several sub-sections which are designed to show how existing and future hire-purchase agreements and agreements are affected by the continuation of certain provisions of repealed enactments and by the Act of 1960. The sub-section has nothing to say about the statutory concept of hire-purchase agreement - that matter, as I have said, is dealt with in the statutory definition. To read the sub-section down in the manner suggested is to give it an operation quite different from its intended role.

Once it is accepted that s. 1 (5) does not speak to the kind of hire-purchase agreements to, or in relation to, which the Act applies, no question of reading it down can arise for it has no conceivable operation which would imperil its validity. There was therefore no occasion for invoking a rule of construction which is applied in order to save a statutory provision from invalidity.

The respondent's approach derives no support from Kay's Leasing Corporation Pty. Ltd. v. Fletcher [1] . There the Court concluded that s. 26C and s. 31 of the Hire-Purchase Agreements Act, 1941-1957 should be read down, but after it had examined the operation of those provisions and not by reference to a restricted interpretation of provisions similar to s. 1 (5).

Section 41 would exceed the legislative power of the State if it were construed as creating an offence anywhere in the world. To preserve its validity it should be read subject to some qualification. The qualification which obviously presents itself is that the section applies to acts and omissions taking place in New South Wales. So construed the section is clearly within power.

Section 47 stands in a different position. It provides the owner of goods comprised in a hire-purchase agreement, who is entitled to possession of those goods, with a summary remedy in circumstances where the hirer has refused or failed to deliver up the goods on service of a notice of demand. It creates a criminal offence which arises when there is a failure to comply with an order for delivery up. The existence of the summary remedy avoids the necessity for an action in detinue in the Supreme Court or the District Court. The remedy takes the place of the proceedings formerly available under s. 32 of the Police Offences Act, 1901-1966 which had been modified by s. 20 of the Hire-Purchase Agreements Act, 1941-1949. By s. 2 (1) (d) of the Hire-Purchase Agreements (Amendment) Act, 1957 there was substituted a new section providing for proceedings for the recovery of possession of goods broadly similar to the proceedings now provided for by s. 47, but limited to goods comprised in a hire-purchase agreement "entered into in the State of New South Wales". That limitation is not to be found in s. 47.

Once the true character of s. 47 as a curial remedy is perceived, there seems to be no need to read it down, for jurisdiction cannot be exercised unless the defendant is within the State. But if it should be thought that s. 47 requires to be read more narrowly, it certainly extends to a refusal or failure to deliver up goods the subject of a hire-purchase agreement in the possession of a hirer who is resident within the State. It is my view that the interpretation of s. 47 reveals no problem of validity.

There remains for consideration the question dealt with by Hope J. in the Court of Appeal [1] which is one of some difficulty. His Honour drew attention to what he described as the "inter-locking provisions" of the Act and the relationship between s. 47, through s. 2 (4), with provisions which should be read as relating to agreements made within the State. An owner before taking possession of goods comprized in a hire-purchase agreement for non-payment of instalments is required to give notice to the hirer in the form of the notice contained in the 3rd Sch. and, after taking possession of the goods, the owner is bound to give a notice in the form contained in the 4th Sch. (s. 13). These provisions apply to the taking of possession pursuant to an order made under s. 47. The form of the 3rd Sch. notice presents no difficulty, but it is said that the 4th Sch. notice assumes that the agreement is governed in all relevant respects by the Hire-Purchase Act, 1960 NSW, as amended.

The 4th Sch. notice contains a number of references to the Act and to particular provisions of it, including s. 11 (3), s. 13 (3), s. 14 and s. 15. It requires the amount of "statutory rebates" to be specified. As its heading "Advice to Hirers" implies, it draws the reader's attention to the hirer's rights to reinstate the agreement by paying arrears and remedying breaches, his right to complete the agreement and his liability for the owner's loss, if any, in the event of non-compliance.

Except as to statutory rebates, no difficulty can arise in specifying in a 4th Sch. notice relating to goods comprized in a hire-purchase agreement made outside the State the amounts which are required to be stated in the notice. There is a real difficulty in determining how the requirement that the amount of statutory rebates be specified should be complied with. An agreement made outside the State may or may not specify terms charges on which the calculation of the amount of statutory rebates depends (see definition of statutory rebate in s. 2). It will depend on the requirements of the legislation in the place where the agreement was made. Even so there is the question whether on its true construction the expression "statutory rebates" relates to what are terms charges within the meaning of the hire-purchase legislation of other States and the Territories.

It is perhaps conceivable that the effect of the giving of a 4th Sch. notice by the owner of goods under a hire-purchase agreement made outside New South Wales who recovers possession of the goods pursuant to an order for delivery up made under s. 47 is that the rights and liabilities of the parties are thenceforth to be ascertained on the footing that the provisions of the Act apply as if the agreement were made in New South Wales. But this is not the occasion to attempt an answer to that question. Suffice it to say that the owner of goods comprized in a hire-purchase agreement made outside the State is bound to give a 4th Sch. notice to the extent that he can comply with its requirements. Whether he gives it on the hypothesis suggested above or on the footing that it specifies statutory rebates under the New South Wales Act or under the legislation of the State or Territory in which the agreement is made are matters to be left for later consideration. Accordingly it is my view that the considerations based on s. 2 (4) and s. 13 do not justify the conclusion that s. 47 must be read as the respondent suggests.

For these reasons it is my opinion that the appeal should be allowed.