Egg Marketing Board v Bonnie Doone Trading Co

The foundation of a Commodity Board is the declaration that some product of the soil of Queensland is a commodity (s. 9). The inappropriateness to eggs of the language "product of the soil" has been legislatively overcome and eggs have long since been a commodity. A commodity may be vested by law in the Board as and when it comes into existence (s. 9 (2)), but this has not been done with eggs. A Marketing Board is equipped with large powers for and in connexion with the sale of the commodity: s. 14. The general plan for the marketing of a commodity by a Marketing Board is to call for the commodity from each producer: he is to deliver it to the Board, to receive a certificate and ultimately to receive payment from the Board out of the proceeds of the Board's sales, calculated on the basis of the net proceeds of sale of all the commodity of a given standard delivered to and sold by the Board. The calculation is upon the amount of the commodity delivered during a prescribed period of time by all producers and of the proportion of such commodity delivered by the individual grower or producer during such period: s. 18. With respect to any particular commodity and the Board for such commodity, there is a legislative or quasi legislative power granted by the Act to the Governor in Council to modify or add to the provisions of the Act: past uses of the power also are confirmed and validated: s. 9 (1) (3) (7A) (7B). By s. 15 (1), as substituted for the purposes of the Egg Marketing Board, it was provided that all the commodity (that is, all eggs) shall be delivered to the Egg Board or its authorized agents. The delivery must be by the nearest usual practicable road or railway within such times, at such places and in such manner and quantities, description and condition as the Board may from time to time direct. The direction can be given by advertisement. Paragraph (b) of s. 15 (1) provided that a grower (an expression including the person by whom a commodity is produced or prepared: s. 2) should not, without the consent of the Board, remove any of the commodity grown or produced or prepared by such grower from the grower's premises except for the purposes of delivery thereof to the Board or its authorized agents as required by the foregoing provision. A person guilty by act or omission of any contravention of these sub-sections is guilty of an offence punishable by fine. By sub-s. (3) it is an offence to sell or deliver or bring or receive any of the commodity from any person except the Board: the Board may make certain classes of exception but none of them is material to the present case. There are provisions concerning delivery to the Board, e.g. it must be in the name of the grower, the Board cannot refuse a regular tender of any of the commodity of proper quality by the producer; so much as is stacked, etc. ready for delivery but is damaged or destroyed without fault on the part of the grower is to be paid for and is to share in the proceeds of all deliveries; cf. ss. 16, 18 and 19. Section 21 (as substituted by the Order in Council of 26th September 1941) prohibits the carrying of any of the commodity or the causing of it to be carried, within the part of Queensland defined or to any place beyond it except under permit from the Board. There is, of course, a general exception of carrying for the purpose of delivery to the Egg Board or its authorized agents, but that must be by the nearest practicable road or railway. Sub-section (b) gives a power of seizure to any inspector of the Board or member of the police force. It was used in the present case and therefore it is desirable to state its terms with a little more particularity. It will be borne in mind that the power is subject to the limitation that nothing should extend so as to affect trade, commerce or intercourse among the States. But its positive terms purported to enable an inspector appointed by the Board or a member of the police force to examine any vehicle upon which he might suspect that any commodity was carried contrary to the provisions of the legislation; it was expressed to enable him to stop the vehicle for sufficient time to allow the goods carried to be inspected, to search and inspect the goods or load carried and to seize any of the commodity found thereon. It made obstruction to the execution of the power an offence.

On 18th December 1958, a motor truck belonging to the plaintiff respondent, The Bonnie Doone Trading Company (N.S.W.) Pty. Ltd., was being driven along the Pacific Highway near Beenleigh towards Brisbane when it was stopped by transport police accompanied by inspectors of the Board. One of these was the second defendant appellant Bergin. The vehicle was laden with many cases or boxes of eggs, all produced in the defined area in the southeast of Queensland. There had been no permit to carry the eggs, they were not being carried to the Egg Board or its authorized agents and there had been no consent of the Board to the removal of the eggs from the premises of the grower where they had been produced. The eggs had, however, been taken down to a shed at Tweed Heads on the other side of the border with New South Wales and thence they had been brought back into Queensland. Nevertheless the officers seized the eggs and removed them from the plaintiff's vehicle. The purpose of this suit, the writ in which was issued on the following day, was to have the seizure declared unlawful and not warranted by the statutes and to obtain consequential relief and relief against the repetition of the wrong. The Supreme Court has taken the view that the eggs were, at the time of the seizure, in the course of inter-State trade and outside the ambit of the provisions relied on as authority for the seizure. The question is whether that view is correct.

As the name of the Egg Marketing Board itself connotes, the purpose of the legislation is the collective marketing of eggs in a defined area of Queensland. The limitations or exceptions in favour of inter-State trade recognize the impossibility of preventing individual egg producers from marketing their own eggs by selling them into another State. The Tasmanian legislation dealt with in Field Peas Marketing Board (Tas.) v. Clements and Marshall Pty. Ltd. [1] , a plan for the execution of which the Board was formed, has its analogies. But it involved the acquisition of the crop of field peas as and when it came into existence and moreover it was a fact that the exportation of field peas from Tasmania was a dominant means of disposing of the crop. Otherwise the general conception of the plans are similar, although in the present case there is the express exclusion of any operation upon inter-State trade. In the Field Peas Case [1] it was treated as evident that the purpose of the device of expropriating a commodity and vesting it in the Marketing Board was to intercept commerce and stop domestic or inter-State or foreign trade as the case may be, or all three. The plan adopted in that legislation was based on the view that, because the field peas were intercepted before they could go into inter-State commerce, the course of inter-State commerce was unhindered or free; but that basis could not, in my opinion, be sustained as valid [2] . Here there is no expropriation; instead the eggs are to be held on the poultry farm. The result is somewhat like the aspect placed by Barton and Isaacs JJ. on the legislation in question in Duncan v. State of Queensland [3] . There can be no doubt that, consistently with s. 92, the producer of eggs must be at liberty to engage in inter-State commercial dealing with his eggs. It may be assumed that the limitations excluding any operation of the legislation upon inter-State trade recognize this fact, but as and when the eggs are produced the property in the eggs is in the producer; it is for him to engage in inter-State trade with the eggs. The efficacy of the legislation in so far as it prevents him removing the eggs from the place where they are produced except for purposes of inter-State trade or, of course, under the permission of the Egg Marketing Board, is unimpaired. The respondent company in the present case based their plan, no doubt, upon this conception but there is necessarily a question whether by their plan the producer of the eggs was involved in any inter-State disposal of the eggs at all. The plan began with an attempt to make a general contract with each producer of eggs with whom it was proposed to deal. By a letter to each of them in the same form, written in June 1958, the plaintiff company asked the producer whether he could supply them with a weekly quantity of eggs and informed him that the company was willing to pay the ruling Queensland wholesale price as at the date of delivery, less the sum of 3d. per dozen to cover freight to one of the company's New South Wales depots. The letter said: "These eggs are to be transported to our depot at the grower's risk. Payment will be made within seven days of receipt of goods." A form was attached for the signature of the producer and the letter concluded with the statement that transport to the company's depot would be arranged by the company. The form to be signed stated that the producer agreed to supply to the company eggs for transport to one of the company's New South Wales depots on the basis of the letter. The form stated the present weekly quantity of eggs available in the case of the producer and that the quantity might be varied from week to week by giving seven days' notice. A number of growers entered into these contracts. The structure which the letter and the form dignified by the word "depot" was in fact a wooden shed at Tweed Heads, which the company occupied under licence from the owners. A truck or van of the defendant company, which was fitted for carrying cases of eggs and bore the company's name upon its sides, called for the eggs at the producers and picked them up. After a journey to the depot and back, the truck delivered supplies of eggs to various retailers and large consumers in and around Brisbane, all within the defined area of the plaintiff Egg Marketing Board. After a load of eggs had been collected from the producers, the van drove down to Tweed Heads, some part of the eggs were unloaded and left in the shed and others which had been left by previous vans in the shed were sometimes loaded. A load was made up of the amount required for the deliveries intended to be made to the shops and businesses to be supplied in Brisbane. After the New South Wales border was passed on the outward journey, one or two customers in New South Wales were sometimes supplied, although this did not regularly occur. After remaining a short time at the depot the truck or van returned into Queensland and drove back to the various customers who were supplied in and around Brisbane. It was upon one of these return journeys, if it may be so called, on 18th December 1958, that the truck was stopped and the seizure of the goods made in the manner described. After the issue of the writ on 19th December the plaintiff company continued the same practice and another seizure was made. It is perhaps not necessary to pursue the question of the company's subsequent trade: it is enough to say it has now changed its course of business.

1. (1948) 76 C.L.R. 414. 2. (1948) 76 C.L.R. 414. 3. (1948) 76 C.L.R., at p. 429. 4. (1916) 22 C.L.R. 556.

It appears to me to be important to begin by ascertaining whether the delivery to the plaintiff company of eggs by the producers, in pursuance of the agreement or arrangement they had made, formed part of any inter-State trade. In my opinion it did not. The producer of eggs who delivered the eggs to the plaintiff company engaged in nothing but an intra-State transaction. The fact that the letter to him stated that the eggs were to be transported to the company's depot at the grower's risk and that from the Queensland wholesale price there was to be a deduction of 3d. per dozen to cover freight to one of the company's New South Wales depots, does not appear to me to involve the producer in any inter-State transaction, nor does the statement in the form of agreement he was to sign that he agreed to supply to the company eggs for transport to one of their New South Wales depots. The whole contractual obligation of the producer was to supply eggs and that was performed in Queensland and, of course, within the defined area under the superintendence of the Board. Once he had handed the eggs over they were out of his control and in the possession and disposition of the company. I would not construe the two documents, the letter and the form of agreement, as including any contractual promise on the part of the company that it would transport the eggs to its depot in New South Wales, but if such a contractual promise to the grower is to be imputed to the company as the result of the expressions in the two documents, that does not mean that the disposition to the company was a transaction of inter-State commerce on the part of the producer: it meant only that he had received an undertaking that the eggs would be taken upon an inter-State journey by the company. It follows from this that the protection of s. 92, whether directly or under the exclusory provisions of the legislation, was not obtained by the producer when he entered upon the transaction. A necessary consequence is that the removal of the eggs from his premises involved an infringement of the legislation and that the intended sale of the eggs by him to the company was illegal and void. The company did not obtain property in the eggs; it did, however, obtain exclusive possession of them. There seems to be no reason why its attempt to carry them into New South Wales for the purpose of bringing them back from New South Wales might not be frustrated by a seizure. It is true that an intended journey into another State may not be stopped by State law if that State law is based upon some characteristic or incident forming or belonging to the conception of inter-State commerce. A somewhat abstract statement of the principle may be found in what I wrote in the case of the Hospital Provident Fund [1] . It contains this sentence which appears to be in point: "But if the fact or event or thing with reference to which or in consequence of which the law imposes its restriction or burden or liability is in itself no part of inter-State trade and commerce and supplies no element or attribute essential to the conception, then the fact that some secondary effect or consequence upon trade or commerce is produced is not enough for the purposes of s. 92" [1] . It would be impossible for the State to prevent the vehicle making an inter-State journey if the intervention of the State was based upon some ground concerned with traffic or journeying. It is of course clear that a vehicle may be taken out of inter-State intercourse for reasons which are not based upon the fact that it is so engaged. If it were stolen or if it were dangerous, s. 92 would have nothing to say to the authorities who stopped it. The eggs in the present case can be seized, notwithstanding the inter-State journey, if they are seized simply on the ground that they were not committed to inter-State trade and were removed from the producer's premises not in furtherance of inter-State trade and illegally. On the return journey the same considerations apply. The company was in possession of eggs which, contrary to Queensland State law, had been removed from the premises where they were produced. They had not been removed for the purposes of inter-State trade: they had been removed for the purpose of delivering them to a trader who would sell them in Queensland. They were being carried on Queensland roads in violation of a State statute. For the carriage on Queensland roads had nothing to do with any inter-State transactions in eggs by persons who, under the general law, were at liberty to deal in eggs. The eggs were being transported as a result of a breach of a Queensland statute in full operation and governing the disposition of the eggs except a disposition in the course of inter-State trade. There had been no disposition in the course of inter-State trade. The journey of the eggs to Tweed Heads and back certainly was an inter-State journey and could not be stopped; but it had nothing to do with inter-State trade in the eggs. The trade in the eggs was within Queensland. To carry them into New South Wales and back again could not alter that fact. The disposal of the eggs by the producer to the company was an intra-State dealing and the intended disposal by the company to the retailers and businesses in Queensland was an intra-State dealing. The fact that, in the carriage of the eggs in the meantime, the border was crossed could not alter those facts. On that ground I think the seizure was valid under State law and involved no impairment of the freedom of trade, commerce or intercourse among the States. I think, therefore, that the suit ought to have been dismissed.

1. (1953) 87 C.L.R. 1. 2. (1953) 87 C.L.R., at p. 17.

There are several matters to be noted with reference to this case. In the first place, the appeal is to us by special leave from the Full Court of Queensland. We granted special leave after we had set aside, on appeal to us by special leave, an order of the Supreme Court of Queensland giving leave to the Egg Marketing Board to appeal from the decision of the Supreme Court to the Privy Council. We set aside that order because we considered that the case fell within s. 39 (2) (a) of the Judiciary Act 1903-1960 Cth, a provision which has repeatedly been held valid. It was argued that s. 92 was not involved in the decision of the Supreme Court because of the provisions of the Queensland legislation designed to exclude inter-State transactions from the operation of that legislation. There are two answers to this argument. The first is that the ascertainment of what is excluded by State law is clearly governed by the interpretation of s. 92 and depends upon the general operation of that constitutional provision. The second is that whatever the State law might say, s. 92 as a constitutional provision governed the case, that is to say, it conferred a freedom which must govern the claim of the plaintiff company to be immune.

Another matter to note is that at one stage of the hearing of the present appeal the respondent company was disposed to put in issue, as a matter of State constitutional law independently of the federal Constitution, the validity of the Order in Council of 26th September 1941. The point had not been taken in the Courts below and, whether for that reason or for some other, counsel abandoned the contention. It may be added that he did so without making clear to us exactly what was the basis of the challenge to validity.

The third matter to note is that there is a cross-appeal. It could not have been sustained consistently with the foregoing reasons, but however that may be, it was in fact expressly abandoned during the hearing of the appeal.

The action was based upon the seizure by the second appellant on behalf of the Egg Marketing Board of cases of eggs, the property of the respondent. This company had bought the eggs from poultry farmers in Queensland in and about the Greater Brisbane area and then carried the eggs by truck to Tweed Heads in New South Wales. The eggs were seized while in transit from Tweed Heads to retailers in the Greater Brisbane area. The respondent had bought the eggs to sell them to retailers in that area. The seizure of the eggs took place on the Pacific Highway in Queensland after the truck carrying them had re-crossed the border. The Board claimed that under the Queensland Acts relating to the marketing of commodities, the produce of the State, and Order in Council made thereunder it had exclusive rights of marketing eggs in the Greater Brisbane area. The Acts are entitled The Primary Producers' Organization and Marketing Acts 1926 to 1957 Q.. Certain statutory powers are given by the Acts and the Order in Council to the Board's inspectors to safeguard its marketing rights. One of these powers is to seize eggs which are being carried in Queensland otherwise than to the Board without a permit. The appellants sought to justify the seizure of the eggs, the subject of the action, as a lawful exercise by the second appellant of his statutory power to seize eggs carried in contravention of the Acts and the Order in Council. But because of s. 92 of the Constitution there are express provisions in the Acts and Order in Council which show they are not intended to derogate from freedom of trade, commerce and intercourse among the States. The only question in controversy is whether when the eggs were seized they were intra-State merchandise. If they were the statutory power then exercised afforded a good defence to the action.

The eggs were bought from the poultry farmers with whom the company negotiated contracts very soon after its incorporation, which was in New South Wales. The negotiations originated in its registered office at Grenfell, two hundred miles west of Sydney. The conditions of each contract were that the poultry farmer would supply weekly to the company at his farm a certain quantity of eggs to be delivered by the company's truck to its "depot" at Tweed Heads: the eggs were to be graded at the farm and the price was to be the ruling wholesale price in Queensland less three pence to cover cartage to the "depot": until delivery there the eggs were to be at the poultry farmer's risk: he was to be entitled to payment within seven days, which the company agreed to make by cheque drawn on a bank in New South Wales and paid to the poultry farmer through a bank in Queensland.

Some months after these contracts were entered into with the poultry farmers, the company obtained a licence from a New South Wales company to use its garage at Tweed Heads as a depot. The purpose for which the respondent company entered into the contracts with the poultry farmers was to obtain supplies of eggs to sell to retailers in the Greater Brisbane area. Eggs were sold only to retailers from whom the company had obtained orders. Its course of business was that when eggs were delivered by the poultry farmers, the truck was not driven directly to the retailers' shops to satisfy their orders, but it was driven to the garage at Tweed Heads; there the load of eggs on the truck were adjusted to match the quantity of eggs needed on the return journey to supply the retailers with the quantities of eggs they had ordered. If the truck arrived with more eggs than were required for that purpose the surplus was left in the garage; if there were less eggs on the truck when it arrived at the garage than the quantities ordered by the retailers, the deficiency was made up by taking back sufficient of the surplus left behind on a previous occasion.

The crossing and re-crossing of the border by company's trucks in sending eggs from the poultry farms round Brisbane to retailers in the same vicinity and the use of the garage at Tweed Heads were obviously measures adopted to attract the protection of s. 92. The sending and carriage of the eggs within Queensland from the farms to the retail shops would have been clearly domestic commerce and outside the scope of s. 92. It would not have been sufficient to remove the eggs from the category of the domestic commerce of Queensland while they were being carried within the State if the truck had crossed and re-crossed the border on its route from the farms to the shops for no other substantial purpose than to attempt to give the immunity from the law of Queensland which s. 92 extends to inter-State merchandise. That would be conduct of the kind which has come to be known as "border hopping". It would be a mockery of the Constitution to hold that it is conduct worthy to be called trade, commerce or intercourse among the States. The crucial question seems to me to be whether the character of inter-State merchandise was given to the eggs carried back across the border by the procedure at the "depot" of adjusting the load to match the orders in hand from the retailers in the Greater Brisbane area. Clearly the stoppage for that purpose could not change the character of the substantial part of the consignment that remained on the truck from intra-State merchandise to inter-State merchandise. As regards any given quantity of eggs off-loaded at the "depot", to leave them there until reloaded on a subsequent occasion to be carried back to Queensland was a temporary affair too trivial to alter their category from intra-State to inter-State merchandise.

It was a condition of the contract between the company and each poultry farmer from whom he bought eggs that they were to be delivered to the "depot" at Tweed Heads. The facts show that such delivery was but a step in the transfer of the eggs from places in Queensland to other places in the same State. Such a transfer of commodities is domestic commerce not inter-State commerce. A motor vehicle transporting goods or passengers across State lines prima facie constitutes inter-State commerce. If the motor vehicle is engaged in inter-State transportation it does not necessarily follow that the carriage of any passengers or the buying and selling of any goods on the vehicle is inter-State commerce. The buying and selling of the eggs that were seized was not inter-State commerce merely because they had been transported to a point across the border, the "depot" at Tweed Heads. The "depot" was not furnished for holding or storing eggs. The deposit of any eggs left there was temporary and provisional. It is a clear inference from the facts that any eggs the company left in the "depot" were put there for sale and delivery in intra-State trade within Queensland; unless delivered in New South Wales on the way back. It was an essential step in the intended movement of the eggs to their Queensland buyers to leave eggs there and was part of the intra-State commerce to which the movement belonged. The fact that the truck on which the eggs were seized had crossed the border in the course of the journey it was making did not convert the character of the eggs to inter-State merchandise or destroy the illegality of the intra-State traffic in them resulting from the disregard by the respondent of the law of Queensland. In my opinion the alleged trespass was justified under the Acts and Order in Council mentioned above. It follows that the action ought to have been dismissed. I would allow the appeal.

I agree in the judgment of the Chief Justice and would add nothing to it.

I am entirely in agreement with what the Chief Justice has said concerning this matter and accordingly I am of the opinion that the appeal should be allowed.

I have had the advantage of reading the judgment of the Chief Justice. He has fully stated the facts. I need say little more than that I entirely agree that the transaction in which the respondent was engaged got no protection either from s. 92 of the Constitution or from s. 21 (10) of The Primary Producers' Organization and Marketing Acts 1926 to 1957 and the Order in Council. It was not in truth a transaction of inter-State trade. It was merely another form of the border-hopping with which we have become so familiar. It involved, of course, a crossing and re-crossing of the State border. But decisions of this Court now make it clear that inter-State commerce is not constituted by engaging in forms and pretences. Buying and taking delivery of eggs in Queensland for resale and delivery in Brisbane does not become a transaction of inter-State commerce because the eggs are driven to Tweed Heads and back before delivery in Brisbane. And it makes no difference that in the course of this journeying the eggs are taken to a shed, called a depot, at Tweed Heads and there sometimes transferred from one lorry to another lorry before being taken back to Queensland. It seems probable that the word "depot" was adopted and the re-loading done to make the facts of this case appear like those in Naracoorte Transport Co. Pty. Ltd. v. Butler [1] and Beach v. Wagner [2] . But it is a vain notion that what are the real indicia of commerce in one case can by spurious adoption in another case constitute the essence of commerce. Nothing is gained by using words or performing ceremonies to disguise a sham. The respondent apparently considered that Tweed Heads was a kind of Alsatia for Queensland eggs. But once the eggs emerged again into Queensland they were liable to seizure under Queensland law.

1. (1956) 95 C.L.R. 455. 2. (1959) 101 C.L.R. 604.

I have nothing to add to what the Chief Justice has said as to s. 39 (2) (a) of the Judiciary Act 1903-1960 or the other matters to which he refers at the end of his judgment.