James v Commonwealth [1935] HCA 38

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at Adelaide and Berri for a number of years. 2. Since 1922 the plaintiff has devoted most of his time and ' attention to dealing in " dried fruits " (within the meaning ascribed to those words by an Act of the Commonwealth Parliament entitled the Dried Fruits Act 1928-1935) and in connection with, or in the course of, such dealing in such dried fruits, has grown and dried fruit on his orchard at Berri, purchased large quantities of dried fruits from other growers at Berri and surrounding districts, cleaned, graded, processed and packed dried fruits so grown or acquired by him, and sold the same partly in the Commonwealth and partly in England, Canada, New Zealand and elsewhere. Most of the dried fruit so sold by the plaintiff has been, and is, packed and sold with h registered brand " Trevarno " attached, and under that descrip- n; and his dried fruit sold under such brand has become known purchasers as indicating the plaintiff's dried fruits, grown and in South Australia. All the plaintiff's dried fruits had at time of the issue of this writ, in fact, acquired a good reputation, d he did, and does, a large business in and there has been, and ll is, a strong demand and a large sale for the said dried fruits ner alia) in New South Wales, Victoria, Western Australia and jouth Australia. _ 3. The Dried Fruits Board of South Australia is a board which as originally constituted by, or pursuant to, an Act of the Parliament of South Australia entitled the Dried Fruits Act 1924, which Act nd the Acts amending the same have now been repealed and ed by the South Australian Dried Fruits Act 1934 under which e Board is continued and the Board has at all times since gust 1928 been a " prescribed authority " under, or pursuant to, the Commonwealth Dried Fruits Act 1928-1935 and regulations. 4. In 1928 the Parliament of the Commonwealth passed the Dried Fruits Act 1928 (No. 11) which Act was amended by the Dried Fruits Act 1933 (No. 59) and further amended by the Dried Fruits Act 1935 (No. 5) and the Act (No. 11 of 1928) as amended, is now known and cited as the Dried Fruits Act 1928-1935 and is herein -Telerred to as "the Act." Regulations have from time to time been

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by the Minister is in the form and to the effect following: Dried Fruits Act 1928-1933. - Dried Fruits (Inter-State Trade) Regu- lations. - Percentage of dried fruits to be exported from Australia. Whereas by reg. 6 of the Dried Fruits (Inter-State Trade) Regulations it is prescribed that owners' licences shall be issued upon the follow conditions (among others) : - (ii) That the licensee shall export fron Australia or cause to be exported on his behalf, during the period which his licence has been issued and during such further as a prescribed authority considers necessary such percent of the dried fruits produced in Australia during any specified p which came into the possession or custody of the licensee to the date of issue of his licence or which came into the p sion or custody of the licensee on and after the date of this licence as is from time to time fixed by the Minister upon | report of a prescribed authority and notified in the Now therefore I, Thomas Cornelius Brennan a member of Executive Council acting for the Minister of State for Com and acting in pursuance of the said regulations and of a report of prescribed authority do hereby fix the undermentioned percenta; of dried fruits produced in Australia during the periods spe which come into the possession or custody of any licensee and required to be exported by him or on his behalf in accordance wi the above-mentioned conditions of his licences. Dried fruits pro duced in Australia during the period commenced on Ist Janua 1935 and ending on 31st December 1935: Per centum - currants 874, sultanas 90, lexias 75, prunes 663, peaches 70, pears 5. Dried fruits produced in Australia during the period commenci on Ist November 1934 and ending on 31st October 1935: Pt centum - apricots 60, nectarines 60. Dated this twentieth day of February 1935. - Thos. ©. Brennan. For the Minister of State for Commerce." The Minister intends that the said determination is sti Ue and should remain in force until altered by him.

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Huddart Parker Ltd. v. The Commonwealth (1), stated that proposition was an accepted thesis. Again, in O. Gilpin Led. vy. Commissioner for Road Transport and Tramways (N.S.W.) (2), Dizon J. stated that he was not satisfied that the proposition was correct, though prepared to act upon it. Long before these cases, various Justices had expressed opinions that sec. 92 bound the Commonwealth and the States alike, but the point was not, I think, the subject of argument until the year 1916, when, in Duncan v. Queensland (3), the Commonwealth submitted that the section was a limitation upon the powers of the States to resti inter-State trade. The point was expressly reserved, though Chief Justice and other Justices, as then advised, could see no sor reason for so limiting the construction of sec. 92. The argumer in that case are worth attention. The question was again argued 1920 in McArthur's Case (4); and its reaction upon the propel interpretation of sec. 92 led in that case to "a closer examination of this question than any previous occasion upon which the Court" had "considered it,"' with the result that five Justices concur in the proposition already stated. The summary power of dismi the action and striking out the statement of claim in the p case should not, in these unusual circumstances, be exercised. The plaintiff should be allowed to pursue his action to a final decision, - in this Court or elsewhere. ; The demurrer remains for consideration. It was hardly denied that, having regard to the decision of the Judicial Committee in James v. Cowan (5), the provisions of the Dried Fruits Act 1928- 1935 passed by the Commonwealth Parliament, and the regulations thereunder, contravened sec. 92 of the Constitution if the provisions of that section applied to the Commonwealth as well as to the States. It was suggested that the Court should reconsider McArthur's Case (4), and the proper interpretation of sec. 92 of the Constitution. It is, of course, open to this Court to reconsider its decisions (Aus: tralian Agricultural Co. v. Federated Engine-Drivers and Firemen's Association of Australasia (6); The Tramways Case (No. 1] (re

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the Court arrived at an interpretation of sec. 92. In James y. - The Commonwealth (1928) (1), the Court again expressed the opinion _ that the Commonwealth was not bound by sec. 92. As the Court decided the proceeding then before it on another ground, it may not have been necessary in strictness to pronounce upon the question; but, however that may be, the Court did in fact doso. In Huddart Parker Ltd. v. The Commonwealth (1931) (2), the validity of regulations under - Commonwealth legislation was upheld, although if sec. 92 bound the Commonwealth they were open to attack under that provision; attack which would have required very serious consideration. No such attack was made, and the case was decided upon the basis that sec. 92 ought not in this Court to be considered as bindi the Commonwealth. The question was referred to by Evatt J. (3). In Victorian Stevedoring and General Contracting Co. Pty. Ltd. Meakes v. Dignan (1931) (4) similar regulations were uph the same way. In R. v. Vizzard; Ez parte Hill (1933) (5), Duffy C.J., Evatt and McTiernan JJ. expressed their disapprov of the view that sec. 92 did not affect the Commonwealth. In O. Gilpin Ltd. v. Commissioner for Road Transport and Tramwa (V.S.W.) (6), I considered it desirable to express my own % views upon the vexed question of the manner in which sec. 92° operates in reference to the States. Having done so, I ended my judgment with the following statement : - " It is because of these facts that I have thought it desirable to consider the present case independently of authority. In doing so, I have assumed that the - Commonwealth is bound by sec. 92. While I recognize the strength of the considerations which led to the decision to the contrary, I have 4 never felt satisfied that they sufficed to raise a necessary implication limiting the application of the provision to the States. Although quite prepared to follow the decision of the Court in James v. TheCom- monwealth (1), that the Commonwealth is not bound, I have not in this or previous cases based any affirmative reasoning upon it " (7).

James v Commonwealth [1935] HCA 38 - HCA 1935 case summary — Zoe

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Judgment (234 paragraphs)

Cases Cited (1)