James v Cowan [1930] HCA 48

James v Cowan [1930] HCA 48 - HCA 1930 case summary — Zoe

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The plaintiff, as I understood his counsel, admitted a deduction fi om the amount claimed of the sum paid under the acquisitions and adjustment of charges to f.o.b. Port Adelaide, amounting to £15,568 6s. Td. The defendants did not seriously contest the position that the plaintiff could have sold his fruit for £23,353 11s. 5d if his actions had been uncontrolled. Consequently, I should a) the difference, £7,785 4s. 10d. (2) Extra storage, extra wages, sundry expenses, loss of business and damage to goodwill. was a good deal of disturbance to the plaintifi's business by acquisition and seizures. His premises were used for storage pi his business methods and processes were slowed down and rendered more costly. He was put to expense in communicating with customers and others, and he also lost custom, both among supplit and purchasers, owing to the action of the defendants. But in connection with the loss of business it must be remembered after the Federal Dried Fruits Act No. 11 of 1928 the plaintiff only carry on business with a licence of the Federal authority. Further, the capital cost of erecting storage sheds should not be allowed. On the whole, I should award a lump sum of £1,000 for the various losses claimed under the items covered by this second head. (3) Carriers, nil. Expenses under this head were incurre i by the plaintiff in anticipation of seizures by the defendants and to put his dried fruits beyond their reach. (4) Liability to purchas and commission to brokers, £3,360. I see no reason to distrust plaintiff's evidence as to the items under this head. I should therefore, award the plaintiff a total sum of £12,145 4s. 10d. dama if it were held that the whole of the seizures of his dried fruits w wrongful and unauthorized. But, as in my opinion the acquisi and seizures of the plaintiff's dried fruits were authorized by the action must be dismissed with costs, except the costs of occasioned by the adjournment on 20th June 1929, which was du to the unreasonable conduct of the defendants.

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Clelland K.C. The power of acquisition conferred by sec. 28 of the Dried Fruits Act is limited to fruit which is the subject "matter of intra-State trade and does not extend to anything and the defendants in order to justify the seizures made must ow that they acted within the scope of that narrow authority. purposes of the seizure were (1) to enforce a determination ler sec. 20 of the Act that would be invalid by reason of lames v. State of South Australia (1), (2) for the purpose of inter- ing with and controlling his sales in the Commonwealth and ot merely in South Australia, and (3) to compel export of the ellant's fruit beyond the sea. The acquisitions were not made fide for the purposes of the Act but were directed against the ellant because he would not comply with the determinations of Board. The purpose of the acquisition must be a lawful purpose, nd if the purpose was only to compel the appellant to obey a mination of the Board which was not lawful it was not a good {uisition and was not within the authority of sec. 28. The repeated itions were made only owing to the appellant flouting the determinations of the Board and for the purpose of enforcing those minations, which were invalid. The State of New South Wales The Commonwealth (The Wheat Case) (2) has no application the present case. That case decided that where the only act is effect a change of ownership it does not interfere with trade and merce, but the Dried Fruits Act is directed to trade and commerce entirely. It is an Act the main power of which is to control trade, and to effectuate that power it gives incidentally the ancillary power f acquisition. The power of acquisition can only be exercised by a State subject to the Commonwealth Constitution, like any other power hat the State possesses. The power of acquisition under the Wheat isition Act was absolutely general, whereas the power under sec. the Dried Fruits Act was expressed to be " for the purposes of his Act or of any contract made by the Board." The onus lies on the ondents of showing that they were acting within sec. 28. The dence of the Minister was that the purpose of the acquisition of

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commerce, be paraphrased thus: Every owner of goods shall be at liberty to make such contracts for the transportation of : from one State to another as he thinks fit without interference by law'? (1). Then is added: "It follows that as soon as he ceases to be the owner of the goods the section ceases to have any operation so far as those goods are concerned." Sec. 92 cannot be limited, in its relation to commerce, to contracts for transportation. That is comprehensively dealt with in McArthur's Case (2), and I now add a reference to Dahnke-Walker Co. vy. Bondurant (3). That limitation seems, however, to have governe d the conception by which the paraphrase is moulded. When one ; it is fully apprehended that commerce includes " intercourse for the purposes of trade in any and all its forms, including the trans portation, purchase, sale and exchange of commodities," the true concept emerges. As already formulated, it consists of acts. acts are attributes not of property but of persons. The right of inter-State trade and commerce protected by sec. 92 from Stat interference and regulation is a personal right attaching to individual and not attaching to the goods. To think that there ca D be no infringement of sec. 92 when and in whatever circumstances a State expropriates property, is entirely to misconceive the nature of the situation. To say that on expropriation the new owner, the Government, is free to dispose of the property, and so the power disposition of the property is not interfered with, is nothing to point. The question is, how has the personal right of tradi inter-State by the former owner been interfered with ? That is a personal right, not a property right, and it is a right which no si State can give. The right of passing from one State to another, transporting goods from one State to another and dealing with them in the second State cannot be conferred by either State solely. 4 so sec. 92 must be understood. The right is not an adjunct of goods: it is the possession of the individual Australian, protecte 1 from State interference by sec. 92, and it is not a sufficient answer to him, when deprived of his goods in order to prevent him from exercising that right, that the new owner, the depriving State,

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by Lord Davey, said: "The rule laid down by the Act is a gene one, applicable to all the States alike, and the fact that it ope unequally in the several States arises not from anything done by t Parliament, but from the inequality of the duties imposed by States themselves." The subject receives considerable illum from the recent case of Attorney-General for Manitoba v. A General for Canada (1). The province of Manitoba passed lation, and ultimately in a very general form, for the a purpose of protecting its residents from the danger of loss ari from investing their savings in enterprises ill-designed, ill-equipper and ill-conducted. The subject was not denied by the Council to be " peculiarly within the domain of Provincial tion" (2), that is, as we should say, within the ambit of s legislative power so far as its own Constitution is concerned. the legislation insisted on every " person, firm or corporation," selling shares there, getting the approval of a Provincial This was, as construed, in derogation of the powers conf Dominion legislation on corporations formed under that leg There was no doubt about what was called the " objects " and "purposes" of the Act being the protection of the trustful ¢ tempted residents of Manitoba, in itself a purely Provincial obj and purpose. But the Privy Council said that the " effec sd the legal effect, of the Act was to run counter to the Dominion J need scarcely observe that an Act of Parliament cannot stand hi than a constitutional prohibition. And Viscount Sumner said «This is not a mere case of fixing the conditions of local trade or 0 regulating the form or the formalities of the contracts, under whiel business is to be carried on within the Province, or of pr the restrictions under which property within the Province acquired, nor is it a mere matter of local police regulations, or lo administration, or raising of local revenue, or a mere means ofa ing some purely Provincial object." (I have italicized the we "mere.") ". . . Neither isthe legislation . . . saved by the fe that all kinds of companies are aimed at and that there is no spet

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at length in Duncan v. State of Queensland (1). One demerit was found in this view which was sufficient to make it untenable, namely, a majority of the Court steadfastly refused to adhere to it. It must be confessed that it supplied a criterion which was difficult of application, but it may also be claimed that no criterion which is easier of application has hitherto been revealed. But with the progress of time and in spite of the fluctuations of mind and matter the Court has arrived at definite decisions which declare that some things are and some things are not impairments of the freedom - guaranteed by sec. 92. It has been decided in James v. South Australia - (2) that legislative restriction only is forbidden. In W. & A. McArthur Ltd. v. Queensland (3) a majority of the Judges said (whether aaa or as an essential part of their decision it is needless to discuss) that the State only was forbidden to interfere. Thus sec. 92 will do no more than nullify statutes of a State legislature which otherwise would operate to detract from such freedom. But not every statute comes within the category which operates to produce some effect upon inter-State trade. Commerce and intercourse consist of dealings and conduct. In McArthur's Case the decided that a State Act of Parliament which purported to reste commercial dealings of a class extensive enough to include inter-Stat contracts was pro tanto void. It will be observed that the scope and operation of the statute itself displayed a purpose of placing fetter upon commerce although it was inter-State. But in the | pronouncements of the Court (Roughley v. State of New South Wales ; Ex parte Beavis (4); Ex parte Nelson [No. 1] (5)) the Court, as I understand the decisions, considered that a statute which was not directed at commerce as such was not nullified by sec. 92. many years of exploration into the dark recesses of this subject I am content to take the decided cases as sailing directions upon which I may set some course, however unexpected may be the destinati to which it brings me, and await with a patience not enti hopeless the powerful beacon light of complete authoritative exposition from those who can speak with finality. In the meantii

At a glance

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Judgment (190 paragraphs)