Hartley v Walsh [1937] HCA 34

Regulations made under the Dried Fruits Act 1928 (Vict.) provided th person should sell or buy any dried fruits unless they had been p packing shed registered under the Act. Retail purchases, and, where th pose was to have the fruits processed or packed in registered packing purchases by owners of registered packing sheds from other such 0 from growers, and by registered dealers from growers, were excepted. regulations contained provisions relating to the construction, lighting, tion, cleansing, fumigating and spraying of packing sheds, probib employment at such sheds of diseased persons, prescribed methods of packing and describing dried fruits, and required that they be free disease, decay and deterioration.

Held, by Latham C.J., Rich, Evatt and McTiernan JJ. (Dizon J. that the regulations did not conflict with sec. 92 of the Constitution fering with the freedom of inter-State trade.

Sec, 18 of the Dried Fruits Act 1928 (Vict.) provided that towards ture of the Victorian Dried Fruits Board in administering the Act be contributed in the case of every registered packing shed a sum to mined in manner provided by the section.

Held, by Latham C.5., Evatt and McTiernan JJ., that this section was not H.C. or A.

ultra vires as imposing a duty of excise contrary to sec. 90 of the Constitution.

Apprats, by way of order to review, from a Court of Petty Sessions of Victoria.

Thomas Walsh, an inspector under the Dried Fruits Act 1928 (Vict.), Jaid an information against Frank Hartley in the Court of Petty Sessions at Mildura, alleging that on 27th March 1937 at Mildura the defendant sold certain dried fruits, to wit, forty-eight sweat boxes of currants, which had not been packed in a registered packing shed, contrary to reg. 22 of the Dried Fruits Regulations 1936, made under the provisions of the Dried Fruits Act. The informant also laid similar informations against Alfred Edwards, Herbert Windsor Tickell and Charles Dennett.

The evidence showed that the defendants, who were growers of dried fruit, sold some of their produce to Frederick A. James, a South Australian packer of dried fruits and the proprietor of a packing shed in that State, that James bought the produce in Victoria for the purpose, apparently, of conveying it to his packing shed in South Australia, that the produce sold was " unprocessed" and had not been packed in a registered packing shed, and that James was not registered as a shed owner or dealer in Victoria. The police magis- trate found as against each of the defendants that a sale in contra- vention of reg. 22 had been proved and that the regulations did not conflict with sec. 92 of the Constitution. The defendants were accordingly convicted of a breach of the regulations.

From these decisions the defendants appealed, by way of order

i Ward, for the appellants. Reg. 22 places a restriction on a factory

proprietor's acquiring unprocessed fruit from Victorian producers _and thus interferes with the freedom of inter-State trade. In the administration of the Act there is a discrimination between the packing sheds in Victoria and in other States. James v. The Commonwealth (1) rejected the theory that every regulation or

• statute constitutes a breach of sec. 92. The only test is wheth

the regulation in question operates so as to burden or hinder passing of goods into and out of the State. If so, it contray sec. 92. Such a restriction may so operate whether goods are transit or at the border or before or after crossing, and the restri may be direct, apparent or disguised (James v. The Commonwea (1) ). It is a question of fact whether any regulation does so operat Many health and sanitary regulations may be valid, but if th prohibit the sale of commodities they must necessarily restrict th freedom of trade. The regulation of sale may, but does no necessarily, so interfere. To decide the question of fact, it is ne to interpret the language of the statute and regulation and ascertaii the legal effect. [McTiernan J. - Does the regulation " canalize" the trade ?] A law which canalizes the flow of goods may be, but is not necessarily, valid. The expression "across the State borders' used in James v. The Commonwealth (2) is figurative and should understood as explained in that case (3). State laws of health sanitation should operate irrespective of movements of goods mn should apply to the sale of goods. Laws which discriminate ar invalid, but discrimination is not a necessary ingredient. If this is so, a form of trade which would otherwise exist will be termina The levy imposed by sec. 18 of the Dried Fruits Act 1928 for thi expenses of the board is really an excise duty and as such is wll vires the State Parliament.

The contract between the defendants and James was wholly Victorian contract and on the facts no question of inter-State tt arose. But, assuming that a question of interference with in

Vizard ; Ex parte Hill (5) there is nothing in the regulation is affects detrimentally any trade at all, although it may affect traders. Independently of that the criterion is whether at

(2) (1936) A.C, at pp. 630, 6315 55 (3) (1936) A.C., at p. 630; 65 Oe at pp. 58, 59. at p. 58.

@) (1936). , at p. 627; 55 CLR., (4) (1936) A.C, 578; 55

border there is something such as the passing of goods. This regula- H- ©:

tion operates at the place of production. It limits the persons to whom the grower is entitled to deliver goods, and it does not check the flow of inter-State trade. It canalizes it. Sec. 18 of the Dried Fruits Act 1928 does not impose an excise duty and is valid (Crothers v. Sheil (1); Turner v. Maryland (2); Peterswald v. Bartley (3) ).

Ward, in reply, referred to O. Gilpin Ltd. v. Commissioner for Road Transport and Tramways (N.S.W.) (4); Peanut Board v. Rockhampton Harbour Board (5); Riverina Transport Pty. Ltd. v. Victoria (6).

Laraam C.J. These are four appeals by way of order nisi to review the decisions of a magistrate convicting the appellants for a breach of reg. 22 of the Dried Fruits Regulations made under the Victorian Dried Fruits Act (No. 3670), sec. 20. The charge was that the defendants did, contrary to the regulations, sell certain dried fruits which said fruits had not been packed in a registered packing shed. The regulations, which were made on 21st September 1936, contain the following provisions : -

"22. No person shall sell or buy any dried fruits unless the dried fruits have been packed in a registered packing shed.

"22a. No person shall sell any dried fruits unless - (a) the dried fruits are packed and graded in accordance with these regulations ; and (b) the dried fruits are packed in packages of the sizes, dimen- sions, and materials, and are branded in accordance with these regulations.

"Provided that the foregoing regulations 22 and 22a shall not apply - (a) to a sale by a grower of dried fruits produced by such "grower to the owner of a registered packing shed for the purpose of being processed or packed, or to the purchase thereof by such

(1) (1933) 49 C.L.R. 399. (4) (1935) 52 C.LR. 189. (2) (1882) 107 U.S. 38 ; 27 Law. Ed. 370. (5) (1933) 48 C.L.R. 266. (3) ee: 497, at pp. 506, (6) Ante, p. 327.

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

In view of this decision I do not see how it can be held that the charge made under the Dried Fruits Act is a contravention of sec. 90 of the Constitution.

The regulations provide that the dried fruits to which the regula- tions apply must be packed in sweat boxes branded in a specified manner and that before they have been processed in a packing shed they cannot be sold otherwise than to certain persons. The regulations permit sale of unprocessed fruits to the owner of a registered packing shed for the purpose of being processed or packed, or by the owner of one registered packing shed to the owner of another registered packing shed for that purpose, or to a registered dealer for the purpose of being sent immediately to a registered packing shed for that purpose. Further, the regulations do not apply to prohibit retail purchases by customers from retail sellers. In the cases under appeal all the defendants (who were not owners of registered packing sheds) sold unprocessed dried fruits to a person who was not the owner of a registered packing shed or a dealer and the transaction was not that of a retail purchase from a retail seller. 'Therefore the defendants were clearly guilty of the offences charged if the Act and the regulations are valid in their natural meaning.

Of course the validity of the Act or of the regulations cannot depend upon whether or not the sales made by the defendants in these Particular cases were part of inter-State trade and commerce or not. But if the Act and regulations should be held to be valid except with tegard to sales which are part of such trade and commerce, it would be important to consider whether the sales proved in these cases were sales of that description. The Victorian Acts Interpretation Act 1930, sec. 2, provides that the construction of all Acts is to be subject to the Constitution so that they are to be held to be valid to the extent to which they are not in excess of the legislative power of the Parliament of Victoria. It is necessary to consider the effect

_ of this provision only in cases where the Act is in excess of legislative power. For the reasons which I propose to give, I am of opinion a 'that the Act and regulations are valid in their application to all _ Sales, whether they are part of inter-State trade and commerce or not. It is therefore not necessary for me to decide whether the sales in question contained any relevant inter-State element. I

deal with the case upon the assumption that the sales in questio were sales in the course of inter-State trade.

The first question which, in my opinion, it is necessary to is whether the Act can, in the light of what was said by the Privy Council in James v. The Commonwealth (1), be held to be valid,

The regulation under which the defendants were prosecuted made under sec. 20 of the Dried Fruits Act 1928. This Act origi contained in sec. 5 a provision (since repealed) that subject to s 92 of the Commonwealth Constitution the Minister might compul- sorily acquire any dried fruits in Victoria grown and dried in Australi not being dried fruits held for export under and in accordance a valid and existing licence granted under the Commonwe Dried Fruits Control Act 1924. This section of the Victorian A was in all material particulars identical with sec. 28 of the Australian Dried Fruits Act 1924. In James v. Cowan (2) it held that "the exercise of powers"? under that section by the Minister was "invalid." I understand this statement to mean thatt act of the Minister in seizing the fruit of the plaintiff in that case a trespass because it was not authorized by the statute upon whi alone the Minister relied for his defence (See James v. Cowan (' I had understood that in James v. Cowan (4) the Privy Coun had expressly abstained from founding their judgment upon wh

James v. The Commonwealth (5) it has been stated by the Council that the result of James v. Cowan (6) was that "the Act which gave to the State powers of compulsory acquisition the orders and seizures made under it, were invalid as contravé sec. 92." The whole Act is condemned as "tantamount to 4 prohibition of export." Thus it has now been explained that

whole Act was invalid. If this be so, then identical reasonin applies in the case of the Victorian Act and the whole of that At has been invalid ab initio. The repeal of the offending se could not make the rest of the Act valid unless the rest of the A

(1) (1936) A.C. 578; 55 C.L.R. 1. (4) (1932) A.C. 542 (See p. 556); (2) (1932) A.C. 542 (See pp. 551, 559) ; C.L.R. 386 (See p. 394).

47 C.L.R. 386 (See pp. 390, 397). (5) (1936) A.C., at p. 622 ; 95 (3) (1932) A.G,, at p. 548; 47C.L.R., at p. 51.

'was re-enacted - and this has not been done. Thus, if what has H.C. or A.

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

"and Starke JJ., in W. & A. McArthur Ltd. v. Queensland (3):

(1) (1936) A.C. 578 ; 55 C.L.R. 1. (2) (1932) A, (3) (1920) 28 C.L.R. 530, at p. 5

"The prohibition by a State legislature of inter-State commodities either absolutely or subject to conditions by State law is . . . a direct contravention of sec. 92 ¢ Constitution." If this statement, taken in its full generality, ; expresses the true principle of law, then reg. 22 is clearly in at least in its application to inter-State sales. In order to this question it is necessary first to examine certain other p contained in the regulations and next to consider the decis the Privy Council in James v. The Commonwealth (1), which conti a binding exposition of the meaning of sec. 92. Reg. 22 prohibits the sale of any dried fruits unless they haye packed in a registered packing shed. Packing sheds, in order t registered under the Act, must obviously be sheds in Victoria. Ne son has a right to obtain registration as of course. Sec. 15 of the provides that new registrations may be refused if in the op of the Governor in Council there are in the relevant parts of Vie sufficient packing sheds capable of dealing with the fruit produ in that part of Victoria. The regulations contain very s provisions relating to the construction, lighting, ventilation, fumigating and spraying of packing sheds. Persons sufferii certain diseases cannot be employed in packing the fruit. are regulations relating to the packing of fruit in clean, securely constructed cases of a particular description and the cases are to bear the name and address of the owner or or packer of the fruit, or his registered brand ete. It is requ that the fruits shall be packed in a particular manner so that outer layers are a true indication of the average grade of the cont of the container, and all fruit must be prepared from sound, ripened fruit possessing the characteristic flavour of its is also provided that the fruit shall be thoroughly cured a d from all disease, decay, deterioration etc. These provisions al be found in regs. 15, 16 and 17. Other regulations provide

It is therefore plain that the requirement that any unpro shall not be sold except to a registered packing shed or for pa in a registered shed is directed to the objective of securing

ards and quality in an important food substance. They dea! with the subject of food standards with the object of protecting the health of the community and of protecting purchasers against _ receiving inferior goods as well as of maintaining the reputation of _ the products of the State. The States undoubtedly have general é power to legislate upon matters of health, including food standards, and, prima facie, such legislation is valid. But a law which is a : health law may nevertheless be also a regulation of trade. In fact _ yery many health laws dealing with food do operate by regulating

the sale of food. Such laws are very common and well known in relation to bread, fruit, milk, meat, butter, margarine and other

• food substances, as well as drugs. The question which arises in this case is whether a health regulation which operates by controlling _ sales, including inter-State sales, is an infringement of sec. 92 of the ~ Constitution.

A law regulating the sale of commodities and prohibiting the sale

of certain commodities unless prepared or treated in a certain way, _ even though the law is directed to the promotion of health, must be admitted to be a law with respect to trade and commerce. But sec. 92 does not prevent the making of laws with respect to inter- State trade and commerce. See James v. The Commonwealth (1), _ where transport and marketing laws made by a State Parlia- ment are declared to be not necessarily inconsistent with sec. _ 92 and where it is stated that legislation of this character may be i passed by the Commonwealth Parliament under sec. 51 (i.) of the : - Constitution, i Le., the trade and commerce power. As to such State

• legislation, the Privy Council quotes with approval a statement to _ this effect with reference to State laws from the judgment of Evatt J. a in R. v. Vizzard; Ex parte Hill (2). : The > in question in this case is very different from the
• section of the Act considered in James v. Cowan (3). In that case 'the only effect of the legislation, so far as inter-State trade was concerned, was to restrict and limit. This was done in what was _Tegarded as the interest of trade generally, but, so far as inter-State le was concerned, the only effect of the quota system contained

(1) (1936) A.C., at pp. 621, 622; 55 (2) (1933) 50 C.L.R., at p. 94. CLR. at pp. 50, 51. (3) (1932) A.C. 3 47 C.L.R. 386.

• in the Act was to prevent it or to reduce its volume. The regulation

in question in this case is very different in character. It is a reg tion of trade which is directed towards the promotion of all trade in dried fruits by insisting that they shall be properly treated before they are sold. The function of an Act in this regard may be compared ; with that of a traffic constable. He controls traffic by holding it up and letting it pass at intervals. Without such control traffie in any busy city would be in a state of chaos, and, indeed, could hardly - exist. A similar function is performed in relation to foodstuffs by requiring as a condition of their sale that they shall be in a condition for sale and that they shall be so standardized that persons will know what they are getting. In James v. Cowan (1) thei Lordships drew a distinction between legislation which was merely restrictive of inter-State trade and legislation which was directed to such objectives as the prevention of famine, disease and the li and it was expressly stated that such legislation would not obnoxious to sec. 92 " because incidentally inter-State trade w affected" (2). These passages were quoted with approval in James v. The Commonwealth (3). In the latter case the opinion of the Privy Council is clear that sec. 92 does not prevent the operation of "State laws of health and sanitation " (4). There is thus in James v. The Commonwealth (5) a plain recognition of the possible validity, not only of State health and sanitary legis lation, but also of State marketing legislation, as not being necessan inconsistent with sec. 92 even though that legislation applies inter-State trade. Where the marketing legislation in its relat to inter-State trade is merely and purely restrictive, as was the ca

invalid; but where the marketing legislation controls and directs and regulates inter-State trade and, as in the present case, insist upon proper standards being preserved, such a law is not a mé restriction of "' freedom at the frontier " and is therefore not rendered invalid by sec. 92.

(1) (1932) A.C. 542; 47 C.L.R. 386. (2) (1932) A.C., at p.559; 47C.L.R., at p. 397.

(3) (1936) A.C, at pp. 622, 623; 55 C.LLR., at pp. 51, 52. (4) (1936) A.C., at p. 55 C.LR., at p. 53.

Tt may be observed that, if the Parliament of Victoria is unable H. ©. oF 4.

to legislate to prevent the sale of inter-State dried fruit which is not fit or ready for consumption, the same proposition is true in the case of every State. Therefore the State of South Australia, for example, would not be able to prevent such sales. If the fruit was sold to purchasers in an inter-State transaction no South Australian legislation could penalize the transaction. Further, any similar Commonwealth legislation (limited, as it necessarily would be, to inter-State trade) would be invalid on the same ground. Accordingly there would be no means of preventing any food at all, however unfit for human consumption in fact. from being sold for human consumption if only the sale was part of inter-State trade. Further, ifa doctrine of free first sale is involved in sec. 92 (See The Common- wealth and Commonwealth Oil Refineries Ltd. v. South Australia (1) ; Vacuum Oil Co. Pty. Ltd. v. Queensland (2) ), then it would be impossible to prevent an inter-State purchaser from selling in his own State food or other products which were condemned as unfit for sale both by his own State and by the State from which he brought the goods. In my opinion, for the reasons stated, sec. 92 does not involve such consequences.

Thus I reach the conclusion that a State law which is shown by its own provisions to be a law directed towards procuring standards of quality, condition and grade of articles of commerce is not invalid in its application to inter-State trade. Such a law may have little or no actual effect upon inter-State trade. On the other hand, it may have a considerable effect upon such trade. In the present case one result of the law is that South Australian packers cannot lawfully buy unprocessed Victorian fruit for the purpose of treating and packing it in South Australia. If the Commonwealth Parlia- ment took the view that such purchases ought to be permitted, it appears to me, as at present advised, though it is not necessary to decide the question for the purposes of this case, that Federal legis- lation could make such sales lawful either unconditionally or subject to such relevant conditions (for example, the sale being to or for an approved packing shed) as the Parliament thought proper to impose.

(1) (1926) 38 C.L.R. 408, at pp. 427 (2) (1934) 51 C.L.R. 108, at pp. et seq. 127, 128, 133, 134, 141.

H.C. oF A. Sec, 99 of the Constitution would prevent the Commom 6

Parliament from giving a preference to any State by such legisla and sec. 109 would operate to exclude the application of the s law in relation to inter-State trade.

Thus the result is, in my opinion, that the regulation in quest is a provision which is within the power of the State Parliament b as health or pure food legislation and as a regulation of tr including inter-State trade, and that it is not invalid as restrain freedom at the frontier in the sense attributed to that term in- judgment of James v. The Commonwealth (1) read as a whole.

trate of an offence against State law. The appeals are brou direct to this court on the ground that the Constitution is inyo It is said that the convictions are made in contravention of sec of the Constitution because the transactions in which the defe were engaged at the time of the alleged offence were those of State commerce. Unless the defendants were free to offend the provisions in question of the law of Victoria the freedom of t and commerce would be impaired. The defendants are gro currants, lexias and the like, which when dried become fruits" within the meaning of the Dried Fruits Act 1928

and marketing "dried fruits." Before "dried fruits" are tributed to the consumer here or abroad they must be "pa The State legislature licenses the packing sheds which do tl unimportant work. The definition of "packing shed" in gives a description of the operation. For it defines " packing sh to mean any building or erection in which dried fruits are ste

The licensing is done by a system of registration and of course registered packing shed must be in Victoria. The defendants 9 minded to sell their dried fruits before packing to the prop a South Australian packing shed. They entered into contr

sale which placed an obligation upon them to deliver the fruit

tement of price to take delivery himself at the orchard. This he did, but I am willing to suppose that the transaction was one of jnter-State trade. The regulations made under the Victorian Acts include a provision that no person shall sell or buy any dried fruits

'unless the dried fruits have been packed in a registered packing shed (reg. 22). In respect of the transactions in question the defendants have been convicted of an offence against this clause. The question is whether it is valid or involves an infringement of sec. 92. It is one of a number of clauses contained in Part VII. of the amended regulations - a part headed "The maintenance and good order of the industry." The clauses are directed to the use of proper boxes, proper branding, the seeding of currants, the inspection of fruits "packed or processed, the re-delivery of fruit by the packer to the grower by way of draw back, proper authentication of the receipt of fruit into a packing shed and the official authorisation of the temoval of fruit from the packing shed. Immediately following

reg. 22 is reg. 22a: "No person shall sell any dried fruits unless ~-(a) the dried fruits are packed and graded in accordance with these regulations ; and (5) the dried fruits are packed in packages of

'the sizes, dimensions, and materials, and are branded in accordance with these regulations."

_ Both clauses are subject to one proviso which falls into four -sub-heads. The proviso is as follows : " Provided that the foregoing 'regulations 22 and 22a shall not apply - (q) to a sale by a grower of dried fruits produced by such grower to the owner of a registered packing shed for the purpose of being processed or packed, or to the purchase thereof by such owner from such grower; (b) to a sale of dried fruits by the owner of one registered packing shed to the owner of another registered packing shed for the purpose of being processed, or packed, or to the purchase thereof by such owner ; (e) toa sale of dried fruits by a grower to a registered dealer for the of being immediately sent to a registered packing shed for purpose of being processed or packed, or to the purchase thereof by such dealer from such grower; (d) to retail purchases of dried

by customers from grocers, storekeepers, or other such retail lers."

The ground upon which the defendants say that reg, 22 offer

to prevent growers selling dried fruits to packing sheds in s Australia and New South Wales. There is, of course, no sens selling fruit which has been already packed by one shed to shed. So they say that the regulation operates to restrict comn in unpacked dried fruits to sales to Victorian packing sh dealers therefor. This appears to me to take a superficial view of the character and effect of the regulation. Packed and unpack dried fruits are not two descriptions of commodity, but two st in the preparation of one commodity for sale and distribution, 1 purpose of the regulation is not to check transactions in dried fru with other States or domestic or external trade in dried fruits, purpose is to secure quality and propriety in that trade. It nothing about passage across the border and does not ai restrict it. It is true that the dried fruits must go through Victorian packing shed but that is because it is considered nece in the interests of Victorian industry to ensure purity, qui reliability and attractive appearance in the form in which the d fruits go into distribution and consumption. In James v. The Co monwealth (1) the Privy Council deal with a number of laws wh dl one point of view impose restrictions upon freedom of action in commerce or intercourse which may be inter-State. Their Lord refer to the monopoly given to the Post Office and say : - " As thi

an interference with trade. Whether that be so or not, itis, ho a limitation notoriously existing in ordinary usage in all m civilized communities ; it does not impede freedom of correspond but merely, as it were, canalizes its course, just as ' free sp limited by well known rules of law. Very much the same is of the Wireless Telegraphy Act 1905. Nor can it be fairly said the Secret Commissions Act 1905 interferes with freedom o: in any sense in which that term is properly used. It forb irrespective of any State boundary, objectionable trade prac

(1) (1936) A.C., at pp. 625, 626; 55 C.LR., at pp. 54, 55.

ean make laws under sec. 51 (i.) with respect to inter-State trade

and commerce without infringing sec. 92. The same is true of the Commerce (Trade Descriptions) Act 1905-1933, which is merely directed to a special form of falsification. The Australian Industries Preservation Act 1906-1930 is for the repression of destructive 'monopolies, and is aimed at preventing illegitimate methods of

• trading."

No doubt none of the statutory regulations cited in the passage relates to the treatment or preparation of commodities, but over a

"wide field they illustrate how legislation adopted alio intuitu may superficially appear to affect freedom of commerce although on a full consideration it clearly involves no invasion of the freedom ' guaranteed by sec. 92. In insisting that Victorian dried fruits shall go through a Victorian packing shed it may, in the phrase of Lord _ Wright, be said to " canalize its course," and the canal involves the treatment of what flows through it for the purpose of ensuring that it shall emerge in a state which shall damage neither the Victorian consumer nor the reputation of Victorian vegetable products in external markets. In my opinion sec. 92 does not invalidate reg. 22 of the Victorian Dried Fruits Regulations as amended, and the convictions were right. The appeals should be dismissed with costs.

Dixon J. Each of the appellants was convicted upon an informa-

_ tion charging him with selling dried fruits which had not been packed

in a registered packing shed, contrary to a regulation made under the Victorian Dried Fruits Acts.

The sale in respect of which he was so convicted was made in Victoria to the proprietor of a packing shed situated in South Australia. The sellers were Victorian growers. The agreement to sell was in each case in writing and was expressed to require delivery

_ at the buyer's shed in South Australia. But an arrangement was made that if the buyer carted the fruit himself from the seller's premises there should be a deduction from the price. In three of the four cases a pencil note of the deduction was made underneath the contract thus - " Less £1 per ton cartage." In fact the buyer

'in inter-State trade. It merely illustrates how the Commonwealth 4. C. or A.

H.C. or A. did send lorries to the seller's premises and the fruit was tal

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

commercial transaction. The regulation itself recognizes that it is so. The sale and delivery of commodities remains, I imagine, at or near the centre of the conception of trade and commerce, although transportation now belongs to the circumference of trade, commerce and intercourse. The regulation deals specifically with sale. It restricts the class of buyers and does so upon a basis which excludes sale to other States.

In my opinion sec. 92 of the Constitution protects the parties to

an inter-State sale from its operation. It is not a case of State law saying that a commodity shall not be sold or disposed of at all unless

and until it is treated or prepared in some particular manner.

Ordinary trade and commerce include the buying of raw material for treatment. It is difficult to suppose that, consistently with sec. 92, a State law could forbid the sale of greasy wool except to a scourer carrying on business in the State or the sale of wheat except toa miller in the State.

The regulation now in question was attacked on behalf of the appellants as a device to avert the consequences of the decision of the Privy Council in James v. The Commonwealth (1) and was defended on behalf of the respondent as a praiseworthy attempt to secure the purity, quality and proper condition of a product of the State of Victoria. The true purpose or policy inspiring the regulation appears to me to be beside the question. For it operates entirely to forbid inter-State trade between growers and packers in unpacked dried fruit and permits intra-State trade in that commodity.

In my opinion the appeals should be allowed and the convictions set aside.

Evarr J. These are appeals by a number of persons, each of whom was convicted for a breach of reg. 22, made under the Dried Fruits Act of the State of Victoria.

_ The evidence showed that F. A. James, the owner of a packing shed in South Australia, made contracts to purchase from the appellants certain dried fruits which had been dried upon their

: Tespective farms. At the date of the contracts, the dried fruits, then Be

The purchase of unprocessed dried fruit for packing is an ordinary H. ©. or A.

in "sweat-boxes," were not fit for human consumption, becay their chemical composition was still unstable.

The terms of the contracts need not be set out, because, wh or not there was a stipulation for delivery of the dried fruits to in South Australia, it was the intention of all parties that Ji ,

acts connected with the making and performance of these p: contracts of sale, including the subsequent placing of the dried upon James' lorries, were transactions containing an inter element, for it may be taken that the contracts of sale pen by the regulations, whether strictly inter-State contracts or no took place in the course of inter-State trade (Vacuwm Oil Co. Ltd. v. Queensland (1) ). But this only shows that the regula affected, and necessarily controlled to some extent, inter-Stat well as purely Victorian trade. And, as I pointed out in & Vizzard ; Ex parte Hill (2) in a passage subsequently quoted

approval by the Privy Council in James v. The Commonwealth (

"sec, 92 does not guarantee that, in each and every part of a which includes the inter-State carriage of commodities, the owner of commodities, together with his servant and agent and each and every dent contractor co-operating in the delivery and marketing of the comm and each of his servants and agents, possesses, until delivery and mark are completed, a right to ignore State transport or marketing regulat and to choose how, when and where each of them will transport and m the commodities."

Reg. 22, the validity of which in relation to inter-State transa ct is impugned by the appellants, makes it an offence to sell or buy drie fruits which have not been packed in a registered packing Reg. 22a penalizes the sale of dried fruits unless they are pac graded and branded in accordance with the regulations. But cer sales and purchases are exempted from penalty.

Although counsel for the appellants attached little significa the point, it has been suggested that, although the convictions we for breach of reg. 22, the proviso to reg. 22a indicates the true ni and quality of reg. 22. It is clear that the proviso camn neglected. But it does not, as suggested, exhibit any

(1) (1934) 51 C.L.R. 108. (3) (1936) A.C. at pp. 621, 622 (2) (1933) 50 G.L.R., at p. 94. C.LR., at pp. 50, 51.

discrimination against inter-State sales (Riverina Transport Pty. Ltd. y. Victoria (1) ). Further, the only sales exempted from penalty by provisos a, 6 and c are sales made for the very purpose of being processed or packed. Proviso d exempts from penalty only the purchaser by retail, not the seller, obviously because all antecedent gaps in the possible chain of commercial disposal have already been closed up. The result is to prevent the disposal of dried fruits which are not properly packed, graded, handled and processed. In other words, the scheme of penalties is levied with the one object of securing proper packing and processing of all Victorian-grown dried fruit.

The nature of the compulsory scheme embodied in the regulations is plainly visible. It is to ensure that all dried fruits grown in Victoria shall be prepared, packed, graded and branded in registered packing sheds within the State before they are released for consump- tion, either within Victoria or elsewhere. By the operation of regs. 22 and 22, growers, buyers and sellers are all compelled to submit to the rule that all Victorian dried fruits shall be prepared in a way which will protect the health of the consumer and, at the same time, by careful packing, handling and grading, tend to build up the teputation of the locally produced article, and so increase its sale and consumption. To this end, the system of processing at registered packing sheds is established. The sheds must be constructed so as to prevent any contamination of the dried fruits, sweat boxes must be properly cleansed and fumigated, the sheds must be managed so as to secure the best possible preparation of the dried fruits, and a careful system of inspection is set up, centred around the official supervision of the sheds. Further, the regulations provide for compulsory packing and branding with the name of the owner or dealer. Grading according to standard and uniformity of quality in each package are required. The dried fruits must be delivered to the packing sheds in approved sweat boxes, and treatment of the dried fruits at the shed must take place between fixed hours, outside which they may not even be delivered at the sheds. The whole

_ "process " takes only a few hours, but its importance is sufficiently obvious. The purpose of the restrictions is to ensure that the quality

of the commodity shall be improved and perfected, and that th difference in quality between fruits shall be clearly ascertained, s that, by guaranteeing the consumer against both imposition danger to health, the reputation of Victorian-grown fruits will enhanced.

It is only as a necessary incident of the compulsory scheme by regs, 22 and 22a, buying and selling of dried fruits is restricted, The penalties attached by regs. 22 and 22a select the point of s t But that is only because the prevention of the sale of unprocessed fruit is an essential part of the scheme, if it is to be made effectiy It is true that the State of Victoria might have framed its regulatio ns somewhat differently. It might have directly enacted that deli at the registered packing sheds should be compulsory. But sue regulation, in order to be effective, would necessarily have penali delivery elsewhere than at a packing shed. The question whe' the most obvious and convenient point - the point of sale selected for the imposition of the penalty for not conforming to scheme, as is the case with most Health and Pure Foods Acts (See, for example, Victorian Health Act 1928, sec. 215), or whether the penalty is imposed by reference to the fact that there has been

is not material. The States have legislative power over inter-Stat as well as local sales (James v. The Commonwealth (1) ). The question is whether the particular regulation of sale interferes
" freedom as at the frontier."

The scheme of the regulations is to require an adequate prepara

adequate is for the State to determine, and here the State has 8 that treatment at a registered packing shed is essential. The sales that are permitted are sales which ensure that such treatment will take place.

Learned counsel naturally emphasized that James, the pi in the cases under review, possesses an efficient packing in South Australia, and that the consumers, whether they resident in South Australia, or Victoria, or elsewhere, would sufficiently protected. But this is not the way to determine whet

the present scheme can lawfully be applied to all Victorian-grown H- C. or A.

fruit. If Victorian growers are entitled to sell and deliver dried fruits which are not yet deemed to be in a proper state for consump- tion to a purchaser in another State merely because he will pack and prepare them efficiently, such growers must be equally entitled to sell the fruit in a similar condition, either to packers in another State who will not pack or prepare them adequately, or to consumers or dealers in another State who will not pack them at all. For, although the legislation of the other States of Australia may deal efficiently with the protection of the health of the consumer, and with the proper grading and preparation of the consumable product, it may deal with those matters neither efficiently nor at all.

Here, the State of Victoria, not for the purpose of restricting the sales of its dried fruits either within Victoria, or inter-State or over- seas, but for the purpose of increasing such sales, chooses to insist that its product shall be above suspicion, in order to preserve its veputation with dealers and consumers wherever they may be. For this purpose, the State requires that the dried fruits shall be properly treated and packed at sheds where, in its opinion, the treatment and packing will be adequately carried out. The regula- tions apply, not only to purely Victorian sales, but to sales having an inter-State aspect or element and to sales having an overseas aspect or element. It would be subversive of the whole scheme if inter-State sales were granted an immunity from its operation.

It cannot be denied that, in the present regulations, the State of Victoria is to some extent exercising its legislative authority with a view to stimulating trade in dried fruits, domestic, inter-State and overseas, as well as in relation to industry, health and sanitation. But the principles stated in Vizeard's Case (1) and approved by the Privy Council (James v. The Commonwealth (2) ) recognize that the legislative authority of the States in relation to inter-State trade is concurrent with that of the Commonwealth, and that much of the general reasoning of McArthur's Case (3) cannot be supported.

Ifit were shown that the authority of the State was being exercised in order to prevent the free passage of commodities from State to

(1) (1983) 50 C.LR., at p. 94. (2) (1936) A.C. 578; 55 CLR. 1. (3) (1920) 28 C.L.R. 530.

• State, the principle of James v. Cowan (1) would be applicable.

there is no evidence to support such a finding, and the magis has found to the contrary. Both in James v. Cowan (1) and Ja v. The Commonwealth (2) the courts denounced what was call a" quota" scheme for controlling marketing for it infringed see. 9 either by directly penalizing sales across the border beyond permitted amount or by expropriating a merchant's dried because he refused to submit to such a scheme. The restric there imposed bear no resemblance to the regulations here in que which interfere in no way with freedom as at the border. growers and dealers are at perfect liberty to sell or buy for deliy inter-State, subject to the condition that the commodity shall be adequately treated and packed in Victoria. It was argued if the present regulations were valid, many other enactments State would have to be deemed valid, and several possible in of State laws were referred to by way of analogy, e.g., a State which simply prohibited all sales of Victorian-grown wheat to amy purchaser, local or inter-State, unless and until such wheat had gristed into flour within Victoria. But such an instance wou

expressed, the law insisting upon local gristing would not re! such matters as the storage, grading or preparation of wheat for but would prohibit all trade in Victorian-grown wheat, wl domestic or inter-State.

For the appellants it was said that the present regulations prol inter-State trade in unpacked and unprocessed dried fruits. such a generalization takes no account whatever of the pi the packing and processing, which is not to transform the fruits into a different saleable commodity, but only to improve ! purity, quality, condition and merchantability as dried fruit. - similar generalization might be made in relation to every State | requiring that, before a commodity is released for general sale a consumption, it shall be put into consumable condition, and pa and graded according to declared standards. In such might equally be contended that there is a complete prohibitio inter-State (and local and overseas) sales of impure foods, of 0

(1) (1982) A.C. 542; 47 CLLR. 386, (2) (1936) A.C. 578; 55 CLR. |

: p milk, of unstamped silver, of unbranded poisons, of H.-C: or A. 1937.

partly refined sugar, of ungraded fruit, of unpacked butter, or of uninspected butchers' meat. The general nature of the respective Hanriey Jaws is sufficiently indicated by the illustrations given. And,as I Warss, illustrated in my judgment in Vizzard's Case (1), it is often impossible amy, to leave out of account the scheme and purpose of legislation which -ischallenged as being contrary to sec. 92. In every civilized country, at any rate, it is agreed that incidental restrictions upon, and control of, the methods of trade are quite essential to its profitable conduct. As I stated in Vizzard's Case (2), ; " Roughley's Case (3) is entirely inconsistent with the notion that, by sec. 92, every person who is engaged, even solely, in inter-State trade is given an ___ unconditional right to choose his own method of conducting that trade within the borders of each and every State. The case proceeds upon the contrary hypothesis that the State may prescribe general rules for the conduct of trade and business and to these rules all persons must conform without sec. 92 being in any way affected." __ It is also erroneous to contend that, so long as an inter-State sale is contemplated or effected, sec. 92 confers an unqualified right tosell or purchase within the State of origin a consumable commodity

in whatever condition it may be, and whatever may be the stage

teached in the course of its being prepared, packed, processed and completed.

The present appellants also argued that the packing business of James in South Australia will be impeded by the present regulations, for all packing of Victorian dried fruits will have to be done in Victoria. The same argument, put in a slightly different form, was

that there is discrimination between Victorian packing sheds and Sheds outside Victoria. The argument, however put, overlooks two important facts. One is that sec. 92 does not guarantee the tight to carry on a business in one State by purchasing consumable commodities from another, although, in the opinion of the second State, such commodities have not reached the stage of being fit or 'Properly prepared for consumption. The second is that there is no dis- crimination against another State merely because one State chooses to 'secure that its scheme of compulsory packing, grading and branding 'under proper inspection shall be carried out within the State. In

a (1933) 50 C.LLR., at pp. 79, 80. (2) (1933) 50 C.L.R., at p. 91. (3) (1928) 42 C.L.R. 162.

truth, the State has no effective power to secure that it sh carried out at all, except within its own borders. The exe sovereignty within territorial limits is not identical with discrimi

Two other points should be noted. First, it was contended thi because the statute gave the board authority to collect a chat not greater than the sum which would be realized by a levy b; on the output of the packing sheds, a duty of excise contrary to se 90 was imposed. Having regard to the decision in Crothers y. (1), it is very difficult to regard the charge as a duty of excise, especially as the charge is not intended to be passed on to consumer, but back to the grower. Even if the charge was a dut of excise, its invalidity would not affect the validity of the the Act (See sec. 2 of the Acts Interpretation Act 1930 of the State Victoria). Second, it was suggested that reg. 22 might pe (inter alia) sales within Victoria of dried fruits grown and p in States outside Victoria. But a perusal of the regulations mak it clear that, from first to last, they are dealing with dried r grown in Victoria. Victorian growers alone are represented on board to which the administration of the Act and regulations | been committed.

Sec. 112 of the Commonwealth Constitution recognizes "inspection laws" may be passed by a State legislature, Quick and Garran said in 1901 :- -

"The inspection laws of a State are those laws which a State may en 0 the exercise of its police powers, providing for the official view, survey, examination of personal property, the subjects of commerce, in ord determine whether they are in a fit condition for sale according to the ¢ cial usages of the world (Foster v. Port Wardens (2)). 'The exam extends to the quality, form, size, weight, and measurement of imported " (The Annotated Constitution of the Commonwealth - Comment p. 943).

The decisions of the Privy Council in James y. Cowan (3) James v. The Commonwealth (4) illustrate the fact that, in application of sec. 92, it will seldom be necessary to call in ai principles gradually evolved in the interpretation of the Constit of the United States. There the powers of the individual s

(1) (1933) 49 C.L.R. 399. (3) (1932) A.C, 542; 47 (2) (1876) 94 U.S. 246; 24Law. Ed. 122, (4) (1936) A.C, 578 ; 55

Australia, where their powers are concurrent with those of the Commonwealth. But it is of significance that, even in the United 'States, laws of the general character now challenged would probably be regarded as valid inspection laws. Two short references may be given. First, Chief Justice Marshall in Gibbons v. Ogden (1) said that

"the object of inspection laws is to improve the quality of articles produced by the labour of a country ; to fit them for exportation; or, it may be, for domestic use. They act upon the subject before it becomes an article of foreign commerce or of commerce among the States, and prepare it for that purpose. They form a portion of that immense mass of legislation, which embraces everything within the territory of a State, not surrendered to the general government : all which can be most advantageonsly exercised by the States themselves."

Tater, in the case of Turner v. Maryland (2), the concept of inspection laws was again examined, and many illustrations given of the kind of legislation which the court regarded as included within the category of such laws. So far as they go, these decisions of the Supreme Court of the United States support the conclusion that the present regulations are not inconsistent with sec. 92 of the Constitution. The appeals should be dismissed.

MoTrernay J. The principal question in each appeal is whether teg. 22 of the Dried Fruits Regulations of Victoria infringes sec. 92 of the Constitution. The regulations were made by the Governor in Council under the Dried Fruits Acts of the State. Reg. 22 prohibits, _ Subject to the exceptions in the proviso to this regulation, the sale or Purchase in Victoria of any dried fruits which have not been "packed in a registered packing shed, that is, a packing shed in

• Victoria approved of and registered with the Dried Fruits Board of Se State. The grower is by the regulation saved from the necessity having the produce packed in a registered packing shed before he lawfully sell. The proviso says, first, that he may sell his to the owner of a registered packing shed for the purpose of

processed or packed ; secondly, that the owner of one registered

(1) (1824) 22 U.S. 1, at p. 203; 6 (2) (1882) 107 U.S. 38; 27 Law. Ed. Law, Ed. 23, at p, 72. 370

ion to inter-State commerce are far more restricted than in H. ©. or A.

packing shed may sell to another for either of the above-mentior purposes ; thirdly, that the grower may sell to a registered d for the purpose of immediate despatch to a registered packing for either of these purposes. The proviso also excepts the purcha by the owner of the packing shed or the dealer from the prol

The proviso lastly guards the retail customers from any liabi which they might presumably have been exposed because the drit fruits purchased by them had not been packed in a registered she a result which could have occurred only if antecedently to th purchase there had been an evasion of the prohibition. The of reg. 22 is to prohibit any sale or purchase of dried fruits whi have not been packed in a shed under official supervision, but the same time to authorize a limited trade in dried fruits which h

in defined channels which lead to the registered packing shed These sheds are made the outlets for all dried fruit to the int

upon which this trade in dried fruits is excepted from the prohib can be fulfilled only by sales for delivery in Victoria. This is com

of reg. 22 out of Victoria. The weight of this emphasis is disp by the consideration that it is difficult to see how the regulat 0 would not interfere with the freedom of inter-State trade, a

that in its present form it has that effect, if another condition added to the regulation excepting inter-State sales of dried fruit provided only they were made for the purpose of processing packing in a prescribed place outside the State. But does J emphasis which is placed on the omission to except interSta sales of dried fruits, which have not been packed in a regi shed, involve the assumption that the State is forbidden by

to extend the prohibition introduced by the regulation to sa dried fruits entered into within its territorial limits in the e inter-State trade? In my opinion the omission to except inter sales, conditionally or unconditionally, does not turn the regulation into a violation of the freedom of inter-State t™ guaranteed by sec. 92. The scope of this section is narrower th

the ambit of the legislative powers of the State with respect to trade H. ©. or A.

and commerce, including inter-State trade and commerce, carried baal

on within its boundaries (James v. The Commonwealth (1) ). Harruey It cannot be doubted that it is within the powers of a State to

intervene in trade and commerce, whether inter-State or intra-State.

carried on within its boundaries, by making a law prescribing the method in which goods sold within its boundaries should be prepared or treated or fixing the standard or quality of the goods. The inter- vention of a State in this manner is not necessarily inconsistent with the freedom of trade guaranteed by sec. 92.

Reg. 22 does not interfere with trade and commerce otherwise than by making it necessary that all dried fruits, whether sold for local consumption or for delivery in another State, should possess a particular standard or quality, that is, that they should have been packed in registered sheds which are under the supervision of the Victorian Government. The omission to make any exception. whether conditionally or unconditionally, of inter-State sales made in Victoria of fruit not possessing this standard or quality does not in itself vitiate the interference. The effect of the exceptions which have been made in the case of sales of dried fruits that have not already been packed in a registered shed is to " canalize " the trade in the commodity from the growers to the market through these sheds. The fruit emerges from the sheds as a commodity which, according to the standard imposed by Victorian law, has then become fit for sale in Victoria, whether sold in inter-State or intra-State trade. The regulation operates, it is true, to interfere with trade in dried fruits, but it is not a just assumption to make, that it is an open or disguised interference with the passage of dried fruits into or out of Victoria. The operation of the regulation is in no way inconsistent with the freedom of the border (James v. The Common- wealth (2)). It follows that reg. 22 is not within the scope of sec. 92

_ Another ground, upon which the appellants submitted that the _ Act and regulations are invalid, was that they operate to impose an excise duty on dried fruits, the power to levy a duty of excise

(1) (1936) A.C., at pp. 632, 633; 55 (2) (1936) A.C., at pp. 630, 631; 55 C.LR., at pp. 60, 61. GLR., at pp. 58, 59.

H.C. or A.. being an exclusive power of the Commonwealth. I agree pata is no substance in this submission (See Crothers v. Sheil (1) ).

Harriey It follows that the convictions were right. The appeals ;

Victoria. HD.A [HIGH COURT OF AUSTRALIA.) CoMPLAINANT, AND HILTON Z i i 7 'i ; ' . Re DEFENDANT,

ON APPEAL FROM THE SUPREME COURT OF SOUTH AUSTRALIA.

H.C. or A. Road Transport - Controlled route - Unlaufully "causing" vehicle to be

193 route - Contract to deliver goods - Goods delivered by employee in Ww absence - No instructions given by employer - Road and Railway MELBOURNE, 1930 and 1931 (S.A.) (Nos, 1967 and 2020), sec. 14. May 17, 18, 28. 'The defendant was charged with causing a motor vehicle to be dri Hatha 0. controlled route contrary to sec. 14 of the Road and Railway Rich, Dixon' 1930 and 1931 (S.A.). He had agreed with the vendor of a tractor

and MeTiernan : JJ. it to the purchaser. When the tractor was ready for delivery the

was absent and had left his business in charge of his son. 'The vendor the son that the tractor was ready for delivery. The defendant had any instructions to his son about delivering the tractor, and the so