Preston v Dononoe.

Preston v Dononoe. - [1906] HCA 39 - HCA 1906 case summary — Zoe

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its Rules are "to raise a fund by the voluntary subscriptions of the members to supply medicines and other articles required for relief in sickness or other ailment, medical advice, and attendance to members, their wives, children, and kindred, as hereinafter provided." Rule 3 provides that : - * This Institution shall con- sist of an unlimited number of members, who shall have equal interests, and shall be subject to and governed by these laws and the provisions of the Acts relating to Friendly Societies. All persons who are for the time being members of any Society for the time being connected with this Institution, and all persons for the time being entitled to medical benefits by the rules of any such Society, shall be members of this Institution." Rule 6 provides that : - * Members of any Society connected with this Institution, shall have the privilege of being on both the Dispensary and Medical Institute lists or either of them." So far as regards these members of the Institute, subscriptions are under the Rules made by the societies to which they belong at a fixed rate per member. If that were all that there is in the case, no difficulty would have arisen. But Rule 7 is as follows : - * In addition to the membership provided for in the Rules and Regulations of this Institution, there shall also be a restricted form of membership which shall entitle the persons requiring the same to purchase medicines and other articles required for relief in sickness or other ailment at a scale of charges to be adopted by the Institution ; which scale, however, shall be subject to amendment by the Institution as it may in its uncontrolled discretion from time to time deem necessary or expedient. Such members shall be known as ' Purchasing Mem- bers,' and shall acquire no interest whatever in the funds of the Institution, nor shall they acquire any of the rights and privileges of the other members, nor any other rights or privileges whatso- ever save only the right of purchase from the Dispensary of the

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that: - *" Each Society shall supply every member on the spensary list good on their books with a prescription book, to signed by the Secretary of the Society of which he is a mem- r (with seal attached). The Medical Officer shall write all his riptions and repetitions of same therein." -Itis contended for the respondent, who represents the Pharmacy Board of Victoria, that Rule 7 is invalid, that it is a mere evasion of the law, that these so called "purchasing members" are not members of the Institute at all, and that in substance the Institute } carrying on the business of a chemist and druggist, and is ling goods to anybody who applies for them. For the pellants it is contended that Rule 7 is not wltra vires, that it s been certified by the Registrar of Friendly Societies, that thereupon it is not competent for a Court of Petty Sessions or the Supreme Court to inquire into its validity, that these so called "purchasing members" must be taken to be members of the 'itute, and that, as the Institute is merely supplying goods to those members, it is not carrying on the business of a chemist and ist within the meaning of the Medical Act 1890. LT agree that, if the Institute is merely dealing in a manner withorized by the Friendly Societies Act 1890 with its members, is not carrying on the business of a chemist and druggist with- in the meaning of the Medical Act 1890. The two Acts were assented to on the same day and must be read together. I think that if the society is lawfully established to do a particular thing under the Friendly Societies Act 1890, the Institute cannot be "said to be carrying on business contrary to the Medical Act 1890. It is necessar 'y now to refer to some of the sections of the Priendly Societies Act 1890. See. 5,as amended by the Friendly Societies Act 1891, provides that: - * Societies may be registered under this Act vo provide by voluntary subscriptions of or levies upon the members thereof with or without the aid of dona- tios: - . . . (.) For providing medical attendance for and dispensing medicines to members their husbands wives widows children or kindred." There is no other section of the Act which would cover the business: the Institute is carrying on in the Present case. By sec. 11 it is provided, amongst other things,

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of in this instance? The Institute kept a dispensary and sold frugs there to anybody who chose to enter and pay a fee of six- e, whereupon he was entered as a purchasing member of the Tnstitute. I will suppose for a moment that that was the sole object of the Institute. What would be said of a body of ten more persons associated together and calling themselves a endly society, whose object was the selling of drugs only to ons who paid sixpence a year and thereupon were called embers of the society 7? In my opinion such a society as that ould not be a society for " dispensing medicines to members their wsbands wives widows children or kindred," but it would be a ty for selling medicines to any member of the public who was ling to pay sixpence a year. They would be holding them- 'lyes ont as vendors of medicines, their customers being inclusive of all who would pay sixpence a year. I am very much disposed to think that a society of that kind - apart from the Medical Act 90 - would, if it consisted of more than twenty members, be unlawful under the Companies Act 1890 as being an association of more than ten persons carrying on business for gain. But I am quite prepared to say that it would not be a society for " dis- ing medicines to members their husbands wives widows dren or kindred" within the meaning of the Friendly Societies #1890. If therefore such a society were formed, and by inad- ence were registered, and a certificate of registration were , in my opinion that acknowledgment of registration would confer upon that society no protection or right which a society thorized by the Act has. Such a society ought therefore to be onsidered as if it was not registered. If, then, a society consti- tuted for lawful objects incorporates within its objects unlawful id unauthorized objects, I think the same consequences must follow. So far as these objects are unlawful and unauthorized, Society cannot claim any benefit from the Friendly Societies Act 1890. I am of opinion, therefore, that this Institute cannot

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nr the medicine. The Rules were put in, and the justices prac- cally decided that Rule 7 was an answer to the information, and dismissed it. Then the informant obtained an order to view, which was made absolute by Hood J. on 14th February. 'The defendants obtained special leave to appeal to this Court, ; bstantially on the following grounds : - "1. That the Supreme Court of Victoria was wrong in holding d adjudging that Rule 7 of the Rules of the Prahran United Friendly Societies' Dispensary and Medical Institute, which were put in evidence at the hearing before the Court of Petty Sessions Prahran, was ultra vires, and afforded no answer to the 'information. «9. That Rule 7 having been duly registered by the Registrar of friendly societies, in pursuance of the Friendly Societies Acts, could not be challenged in the proceedings before the Court of Petty Sessions at Prahran, or before the Supreme Court, or alternatively in any other manner than that provided by the Friendly Societies Act 1890." In Baroness Wenlock v. River Dee Company (1), the company med was empowered by Statute to borrow upon mortgage of s lands any sum not exceeding in the whole £25,000. The com- my borrowed more than that sum, and afterwards the Lands Improvement Company advanced it a still further sum, having 'statutory power to advance money to landowners for the improve- 'ment of their land. There was a clause in one of the Land Improvement Company's Acts making the execution by the Inclosure Commissioners of a charge on land, in pursuance of the , conclusive evidence of the validity of the charge. The _Tnelosure Commissioners did execute a charge on the lands of the iver Dee Company for the repayment of the sum advanced to at company by the Lands Improvement Company. It was held the Court of Appeal that the River Dee Company had no power to borrow beyond the express limit of £25,000 ; that the e mentioned merely established that everything which could be done under the Act of which it was a part had been duly and

At a glance

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Decision date

Before

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Judgment (120 paragraphs)

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