Opinion Number. 1491

Subject

financial agreement financial agreement: whether certain loans raised by Victoria render Commonwealth liable to pay sinking fund contribution: proceeds of ‘new loan’ applied to meet revenue deficit: whether loan raised to meet revenue deficit

Key Legislation

POST AND TELEGRAPH ACT 1901 ss 98, 136: CRIMES ACT 1914 s 14: POST OFFICE (MANAGEMENT) ACT 1837 (U.K.) (7 Will. 4 & 1 Vict. c. 33)

Date
Client
The Secretary, Postmaster-General

The Secretary, Postmaster-General’s Department, has forwarded the following memorandum for advice:

In view of the practice which has grown up in certain parts of the Commonwealth, more particularly in the capital cities, of the conveyance and delivery of letters, accounts, circulars, etc., otherwise than by post to the detriment of the Commonwealth revenue, this Department is considering the question of giving prominence in the Press to the fact that the conveyance of letters for hire or reward is an offence against the Post and Telegraph Act and is punishable by a heavy penalty.

However, from a reading of section 98 of the Act, it is difficult to arrive at a conclusion as to the precise position of the Department in this matter. That section provides for a penalty for the conveyance for hire or reward of a letter, but the definition of a letter does not appear to be covered by the Act, and it may be open to question what it embraces. It may be argued that the dictionary definition is too wide, bearing in mind that the Act refers under the heading of ‘Postal Article’ to letters, post cards, letter cards, telegrams, etc.

A further question which arises is whether, if a messenger engaged by a firm (which messenger would of course receive a ‘reward’ for his services) delivered the firm’s correspondence, there would be an infringement of the Act.

A still further question is whether a person or firm who employed an individual to deliver correspondence would be liable as well as the person who actually performed the service. Paragraph (a) of section 98(1) refers to the sending or the causing to be sent or conveyed otherwise than by post, but from a reading of the words immediately preceding the paragraph it would appear that a person who sent or caused the letter to be sent would be liable only if he did so for hire or reward.

Before taking the step referred to in the first paragraph hereof it is desired to know the precise position of the Department in the matter, and it would therefore be much appreciated if you would furnish advice on the points outlined above.

Enclosed herewith is a statement summarising previous opinions which have been furnished in connection with the matter.

Section 98 of the Post and Telegraph Act 1901–1923 reads as follows:

    1. No letter shall be sent or carried for hire or reward otherwise than by post.
    2. Any person who for hire or reward—

      1. sends or conveys or causes to be sent or conveyed any letter otherwise than by post; or
      2. takes charge of a letter for such conveyance

      shall be liable for every offence to a penalty of not less than five pounds nor more than Fifty pounds.

    3. Every letter sent or conveyed or caused to be sent or conveyed or taken charge of to be conveyed otherwise than by post shall be deemed to have been sent or conveyed or caused to be sent or conveyed or taken charge of for hire or reward unless the contrary is shown by the defendant.
    4. Nothing herein contained shall extend to any letter—
      1. Exceeding sixteen ounces in weight;
      2. Exclusively concerning goods sent and to be delivered therewith;
      3. Sent by any person concerning his private affairs by any special messenger; or
      4. Bona fide sent or carried to or from the nearest post office.

The first question relates to the meaning of the term ‘letter’ as used in the section. This term is not defined in the Act, nor is it a technical term. The term should therefore be construed in its popular sense unless there is something in the context to alter it. (See Beal’s Cardinal Rules of Legal Interpretation, p. 319, Craies on Statute Law, p. 149).

It is suggested in the Memorandum of the Secretary, Postmaster-General’s Department, however, that it may be argued that the dictionary definition is too wide, bearing in mind that the Act refers under the heading of ‘postal article’ to letters, post-cards, letter-cards, telegrams, etc. ‘Postal article’ is defined in the Act as follows:

‘Postal article’ includes letters, postcards, letter cards, newspapers, packets or parcels and all other articles transmissible by post, and includes a telegram when transmitted by post.

It may seem reasonable to conclude from the language of this definition that post-cards and letter-cards are not included in the meaning of the term ‘letter’ but I am doubtful whether such a conclusion is justified.

In this definition the draftsman has used a common form of drafting, namely, to describe a class of articles by means of a list of specific articles included in the class followed by a general expression indicating the class. This form of drafting ensures the inclusion of the articles specifically mentioned, but it cannot be assumed that the terms used in the list are mutually exclusive, and it is not uncommon to find a word used which denotes an article which is also included in the meaning of some other word in the list. For instance, ‘Post Office’ is defined in the Act as ‘a house building room railway postal van or carriage place or structure …’.

Even if it be assumed that the meaning of the word ‘letter’, as used in the definition of ‘postal article’ is narrower than the ordinary meaning of the word, it does not follow that the same meaning should be given to the word as used in section 98.

The term should be construed in each case by reference to its context. In the definition of ‘postal article’ a letter is regarded as a postal article, i.e. as an article which has been lodged for transmission by post. In this context the term is probably used with reference to the classification of articles which is adopted in the Act and in the Post and Telegraph Rates Act (which incorporates the Post and Telegraph Act). Under this classification post-cards and letter-cards are distinguished from letters, and are accepted for transmission at different rates of postage.

Section 98, however, does not deal with letters regarded as articles lodged for transmission by post, but with letters generally, whether transmitted through the post or by other means, and a classification of postal articles adopted for the purpose of the administration of the Postal Department is not applicable. It appears reasonable to assume, therefore, that in this section the term is used in its ordinary popular meaning.

I cannot find any provision in section 98 or in any other part of the Act which indicates that the term, as used in section 98, is intended to be used in any sense different from, or narrower than, the sense in which it is ordinarily understood in common language, and I am of opinion, therefore, that in construing section 98 the word should be given its ordinary meaning.

It may be mentioned that in a case arising under the United States law, it was held that the word ‘letter’ had no technical meaning, but must be understood in the sense in which it was generally understood among business men. (United States v. Thompson, 28 Fed. Cas. p. 97).

‘Letter’ is defined in the Oxford English Dictionary as ‘a missive communication in writing, addressed to a person or body of persons; an epistle.’ This may be accepted, I think, as the ordinary meaning of the word, and, in my opinion, this meaning may reasonably be accepted as the meaning of the word as used in section 98.

The second question on which advice is desired is ‘whether, if a messenger engaged by a firm (which messenger would of course receive a ‘reward’ for his services) delivered the firm’s correspondence there would be an infringement of the Act.’

I presume that the Secretary, Postmaster-General’s Department refers to ‘an infringement of the Act’ upon which proceedings could be successfully instituted. If so, the question to be considered, for practical purposes, is whether a conviction for an offence against the section could be obtained in the circumstances of the case submitted by him.

In the event of a prosecution being instituted against such a messenger for an offence against section 98, it would be necessary for the Department to prove that he conveyed a letter otherwise than by post, or that he took charge of a letter for such conveyance, and there should be no great difficulty in obtaining evidence to prove this.

By virtue of sub-section (2) of section 98, and section 14 of the Crimes Act 1914, the onus of proof would then rest on the defendant, and it would be necessary for him to prove:

  1. that he did not convey or take charge of the letter for hire or reward, and/or
  2. that the letter was within one of the exceptions specified in sub-section (3).

I presume that in the case submitted it is not contemplated that the messenger received a fee for each letter, but that he received a weekly wage for his services.

In this case, the defendant would probably prove, in the first place, that he received a weekly wage under a general contract of service for the performance of various duties including the conveyance of letters, and would contend that no part of that wage could be regarded as ‘hire or reward’ for the conveyance of letters.

In order to rebut this contention it would be necessary for the Department to ask the Court to accept the view that a portion of his wages could be regarded as hire or reward for the conveyance of letters.

As his second ground of defence, the defendant would probably rely on paragraph (c) of sub-section (3). In the circumstance of the case submitted I think that the defendant would find it difficult to convince the court that the letter was a letter sent by a person concerning his private affairs by a special messenger and it is probable that the letter could not be brought under any of the other exceptions specified in sub-section (3).

It seems probable, however, that the court would decline to accept the view that portion of the messenger’s wages should be regarded as hire or reward for the conveyance of letters.

A decision based on this view would involve serious interference with existing rights and customs and with the conduct of the business of the community.

In view of this fact, and the fact that the section is a penal enactment, I think that the court would construe the section strictly, and would require to be satisfied that the defendant received some definite payment or reward as hire or reward for the conveyance of letters.

It is probable, also, that the court would consider the object sought to be achieved by the section, and I think that it would arrive at the conclusion that the section was intended to prevent the establishment of any business, in competition with the business of the Post Office, for the conveyance of letters for hire or reward, and that the conveyance of a letter by a messenger in the circumstances mentioned could not be regarded as one of the acts intended to be prohibited by the section.

Where several firms employed a common messenger, however, the case against the messenger would be much stronger.

The decision in the case of Circular Delivery Company (Limited) v. William Clare (20 L.T.R. p. 701) may be cited, I think, as throwing some light on this question. This was an early decision on a similar section of the English Act, and the headnote to the case reads as follows:

By the 7 Will 4 & 1 Vict. c. 33, the Postmaster-General has the exclusive privilege of conveying letters from place to place, with this exception (inter alia), ‘Letters sent by a messenger on purpose concerning the private affairs of the sender or receiver thereof.’ The appellants were a company formed in London called ‘The Circular Delivery Company (Limited)’ the purpose being ‘to deliver for or on behalf of its shareholders and members circulars, newspapers, etc.’. One Jules Clovell who was a shareholder, delivered a business circular to the offices of the company, in an envelope, to be delivered according to its address: Messrs. Newell & Son, 5, Eccleston Street, NW. The company caused it to be delivered accordingly at its address:

Held, that this was a violation of the Act, and was not within the exemption.

The judgment of the court in this case was as follows:

The case is really too clear for argument.

The third question submitted is ‘whether a person or firm who employed an individual to deliver correspondence would be liable as well as the person who actually performed the service’.

The first sentence of section 98 appears to prohibit the sending of letters for hire or reward otherwise than by post, but does not impose any penalty for contravention of this provision.

In regard to the portion of the sub-section which imposes a penalty, the Secretary, Postmaster-General’s Department, has pointed out in his memorandum that from a reading of the words immediately preceding paragraph (a), it would appear that a person who sent or caused the letter to be sent would be liable only if he did so for hire or reward. This appears to be the correct interpretation of the provision.

It is probable, however, that the employer would be liable to punishment under section 136 of the Act, which provides that ‘every person who aids abets counsels or procures the commission of an offence against this Act shall be liable to the same punishment as if he actually committed the offence.’

[Vol. 25, p. 135]