Cam & Sons Pty Ltd v Chief Secretary

Cam & Sons Pty Ltd v Chief Secretary - [1951] HCA 59 - HCA 1951 case summary — Zoe

[7]

The effect of s. 40B (1) cannot be appreciated without reference to certain other provisions of the Act. First, s. 40 (1A), which was inserted by the Co-operation (Amendment) Act 1949 N.S.W., provides that, as from the commencement of the 1949 Act, no person other than the corporation sole constituted under s. 41A (that is, the defendant the Chief Secretary of New South Wales), or a trading society to which the Governor has given approval to establish, control or operate markets for the sale of fish pursuant to s. 10A of the Co-operation Act, 1923-1949, shall sell fish in any market referred to in s. 40 (1), that is (having regard to the repeal of the Sydney Corporation Act, 1932-1942 by the Act No. 30 of 1948) any market established under the Act or provided and controlled by the council of a municipality or shire. Next it is to be observed that s. 40A creates a fish supply district to be known as the Metropolitan Fish Supply District, with boundaries which, by proclamation under the Act, have been extended to include within it (as we have been informed by counsel), the whole of New South Wales except the Western Division. Thirdly, the expression in s. 40B (1), "the market in the district", must be understood, in the light of the definition of market in s. 4 and the repeal of the Sydney Corporation Act 1932-1942, as meaning any fish market established in and for a district under the Act; and the power to establish fish markets is reposed in the Minister (that is, the defendant the Chief Secretary) by s. 41B (1) (a). Finally, it must be observed, in regard to the reference in s. 40B (1) to "any market established, controlled or operated by a trading society under and in accordance with the provisions of section 10A of the Co-operation Act, 1923-1949 ", that the last-mentioned section prohibits a trading society from establishing, controlling or operating any markets for the sale of fish except with the approval of the Governor after a report and recommendation furnished to the Minister by an advisory council or an advisory committee.

[10]

The statement of claim, as amended, alleges that the plaintiff is a company carrying on business at Pyrmont (par. 1); that the defendant the Chief Secretary of the State of New South Wales is the Minister vested by the Fisheries and Oyster Farms Act, 1935-1949 N.S.W. with the administration of that Act (par. 2); that the defendant Buttsworth is the Under-Secretary to the defendant Minister (par. 3); and that the defendants have established markets for the purposes of the Act (par. 4). It alleges also that the plaintiff carries on the business of catching fish by means of deep sea trawling and the business of providoring (par. 5); that fish so caught are brought to the plaintiff's premises and there cleaned, graded and packed (par. 6); that a portion of the fish caught by the plaintiff, when packed, is sold by it to buyers residing in and carrying on business in the States of Victoria and Queensland, and not in any market established under the Act (pars. 7 and 12); that a further portion is forwarded by the plaintiff for sale by the defendants on a commission basis in markets established by them pursuant to the Act (pars. 8 and 11); and that the remaining portion is sold by the plaintiff in the course of its providoring business and not in any market established under the Act (pars. 9 and 12), the providoring business consisting in the sale of fish to buyers residing and carrying on business in the States of New South Wales, Victoria and Queensland (par. 10). All the fish so sold are conceded to be sold for human consumption (par. 10a). Then follow allegations that on 5th September 1950 the plaintiff received from the defendant Under-Secretary a letter ordering the plaintiff in future to deliver all fish taken by it to the markets in conformity with s. 40B of the Act (par. 13); that since receiving that letter the plaintiff has continued to carry on its business as previously described (par. 14); and that on 21st September 1950 certain inspectors appointed under the Act came to the plaintiff's premises and seized and took away certain of the plaintiff's fish on the ground that the plaintiff had failed to comply with the directions contained in the letter and had failed to deliver those fish to the market in conformity with s. 40B (par. 15). It is alleged also that the plaintiff fears that further parcels of its fish will be seized in purported pursuance of the provisions of the Act for the failure of the plaintiff to deliver such fish to the market in conformity with the section mentioned, and that the plaintiff will be seriously hampered in the carrying on of its business and will suffer irreparable injury (par. 16).

[28]

Since the defendants have shown plainly an intention to act towards the plaintiff on the basis that the prohibition in s. 40B (1) operates to prohibit the plaintiff from selling its fish even in inter-State trade, the plaintiff is entitled to relief. It would be possible to grant an injunction in general terms, restraining the defendants and each of them from causing or permitting any inspector to seize any fish of the plaintiff in excess of the powers conferred upon him by the Act; but it is undesirable as a matter of discretion to grant such an injunction, first because the defendants may be expected to endeavour to secure that in future the Act is applied in a manner consistent with s. 92, and secondly because it is desirable that an injunction, if any is required for the adequate protection of the plaintiff, should relate to specific instances of threatened action in excess of the authority which the Act confers when construed as subject to s. 92. The relief to which, in our opinion, the plaintiff is entitled in the circumstances of the case is a declaration that s. 40B of the Fisheries and Oyster Farms Act, 1935-1949, does not apply to a selling of fish (within the definition of to sell in s. 4) if the selling forms part of or is for the purpose of inter-State trade, and a further declaration that ss. 14 and 94 in combination do not in their application to s. 40B (1) authorize the seizure of fish by reason of their being sold (within the said definition of "to sell") if the selling forms part of or is for the purpose of inter-State trade. No declaration which could be framed consistently with the statute as affected by the combined operation of s. 92 of the Constitution and s. 1 (3) could avoid leaving the defendants with the difficulty of determining for themselves and at their own risk whether each seizure which is contemplated in future for breach of s. 40B is within the residue of power which remains after giving effect to s. 92, the legislature having chosen to give no other guidance than that which is provided by making the application of s. 40B to any given circumstances dependent upon its consistency with the Constitution. The plaintiff will be sufficiently protected by reserving to it liberty to apply to the Supreme Court in this suit for an injunction in the event of any threat or apprehension of a seizure or detention of fish of the plaintiff which, having regard to s. 92, are not liable to be seized or detained under the powers conferred by the Act.

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Decision date

Before

Source

Judgment (37 paragraphs)

Parties

Cited By (2)