Hartley v Walsh [1937] HCA 34

Hartley v Walsh [1937] HCA 34 - HCA 1937 case summary — Zoe

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owner from such grower ; (b) to a sale of dried fruits by the ov of one registered packing shed to the owner of another tered packing shed for the purpose of being processed or pac' or to the purchase thereof by such owner ; (c) to a sale of fruits by a grower to a registered dealer for the purpose being immediately sent to a registered packing shed for the pu 7, of being processed or packed, or to the purchase thereof by dealer from such grower ; (d) to retail purchases of dried fruits by customers from grocers, storekeepers, or other such retail sellers." The evidence established that the defendants did sell dried fruit which had not been packed in a registered packing shed and the transaction did not fall within any one of the four exempti specified in the proviso to reg. 22a. The defendants cont first that the Act was invalid because it imposed an excise d contrary to sec. 90 of the Constitution of the Commonwealth, secondly that the regulations were invalid because they constitut an infringement of sec. 92 of the Constitution. : The contention that the Act imposes an excise duty depen upon sec. 18 of the Act, which provides that towards the expendit of the Victorian Dried Fruits Board in carrying out the Act shall be contributed in the case of every registered packing s sum determined by the board in accordance with the regulati and not exceeding an amount equal to 1/32 per penny per of the value of the dried fruits sold or forwarded for sale from packing shed in the preceding year. This contribution is specificall: provided as a contribution towards carrying out the Act and payment for services rendered and cannot, in my opinion, be reg as a tax forbidden by sec. 90 of the Constitution. A similar was dealt with by this court in Crothers v. Sheil (1). In that ca an Act dealing with the marketing of milk provided that the p of the milk should be paid to the suppliers with a deduction charges incurred in the treatment, carriage, distribution and sa of the milk and for the costs, charges and expenses of thi H tration of the Act by the Milk Board. It was held that this provisi for deductions did not " convert the scheme into one for ta

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been said in James v. The Commonwealth (1) is accepted in its literal significance, the whole of the 'Victorian Act is invalid. The result would be that sec. 20, which confers the power to make regulations, is invalid and that reg. 22, under which the appellants were convicted, was made without authority. If this view is right the appeal should succeed. I think the conclusion which I have stated follows from the actual words used by their Lordships in James v. The Commonwealth (1) in the passages cited. But I doubt whether the statements to which I have referred were made with express advertence to the particular question now under consideration. In James v. Cowan (2) itself their Lordships appear to me to have taken pains to avoid the conclusion that the whole Act was invalid and I therefore think that James v. Cowan (2) should be considered according to its own terms and not with the particular addition to the decision which was apparently made in James vy. The Commonwealth (1). Thus sec. 20 should not be regarded as invalid by reason of the decision in James v Cowan (2). In the next place it has been contended that the regulations operate to prevent, for example, a South Australian packer of dried fruits from carrying on his business of packing dried fruits in South Australia by purchasing dried fruits in Victoria for the purpose of treating them in his packing shed in South Australia, The owner of the South Australian packing shed plainly cannot obtain a Victorian licence for his shed in South Australia and he therefore is ina different position from that of any Victorian packer in relation to Victorian fruits. In my opinion, the business or occupation of packing fruits has no inter-State element in it. It is an operation carried on at a definite place and is begun and completed at that place. It is just like any other manufacturing or producing opera- tion, and in itself it includes no inter-State element. Therefore, _in my opinion, there is no substance in this particular argument. 'The principal contention of the defendants can be well expressed : in the statement contained in the judgment of Knox C.J., Isaacs

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away in the lorries. The agreements to sell were expre sales by description and not of specific goods. All parties kne and intended that dried fruit grown by the sellers in Victoria shouk without going through a Victorian packing shed, be supplied tot buyer for the purpose of his packing it in South Australia, express condition of the contracts required delivery in South Australi and I do not think that the arrangement by which the buyer w liberty at a reduction of price to do the cartage takes the trans out of the description inter-State trade. I think that in each ¢ the transaction was one of inter-State commerce. The regulation which the sales contravened was adopted on September 1936 in substitution for one made in 1930. The ne regulation forbids the sale or purchase of any dried fruits unless dried fruits have been packed in a registered packing shed. old regulation included a minor prohibition. But the new regula adds four provisoes which operate by way of exception. The excepts a sale by a grower of the dried fruit to the owner of a tered packing shed for the purpose of processing or packing. registered packing shed means a packing shed registered and appro by the Victorian Dried Fruits Board, and, as sec. 15 of the D Fruits Act 1928 shows, such a shed is necessarily situated in Vi The second exception is of a sale of dried fruits by the owner of registered packing shed to another for the purpose of processi packing. The third is of a sale by a grower to a registered d for the purpose of immediate dispatch to a registered packing s The fourth proviso excepts from the prohibition retail purcha dried fruits by customers from grocers, storekeepers and other retail sellers. This operates only as an exemption of the customer. The grocer, storekeeper or other seller remains Ne as an offender in respect of the sale. When the regulation | considered with its provisoes it is apparent that it would, if va confine the sale of dried fruit by the grower to packing sh registered in Victoria, or to intermediate dealers for delivery to su sheds. The effect is to forbid the sale or delivery of Victorian di fruit across the border to New South Wales and South Australia

At a glance

Court

Decision date

Before

Source

Judgment (173 paragraphs)