Permewan Wright Consolidated Pty Ltd v Trewhitt

Permewan Wright Consolidated Pty Ltd v Trewhitt - [1979] HCA 58 - HCA 1979 case summary — Zoe

[35]

shall be guilty of an offence and liable, in respect of each offence to a penalty of not more than $200. The circumstances of the case so far as they are relevant were as follows. The appellant entered into an agreement with a group of companies which traded under the name of Bartters Enterprises ("Bartters"), whereby the appellant was appointed as Bartters' agent to sell on Bartters' behalf eggs which would be delivered by Bartters from Hanwood in New South Wales to the appellant in Victoria. Under the agreement the eggs remained the property of Bartters until the appellant sold them; if unsold they were to be returned to Bartters. The eggs the subject of the charges were produced in New South Wales by Bartters and were carried by Bartters' employees to Victoria and delivered there to the appellant, who, acting as Bartters' agent, displayed them for sale and sold them. The eggs were tested for quality and standard (by candling) and graded by Bartters in New South Wales in a way that would have satisfied the law of New South Wales if the eggs had been sold in that State. Bartters were not obliged, by the law of New South Wales, to test or grade any eggs which they sent to Victoria for sale; if, however, they chose to test and grade any eggs which they sent to Victoria for sale, those eggs would, if s. 41D applied, have to be tested and graded again. In the course of testing and grading some eggs - perhaps five per cent - may be damaged or cracked, but the process does not otherwise harm the eggs. The Board referred to in the relevant sections of the Act has an unfettered discretion to refuse to grant permission under s. 41C (4) to a producer to grade and test and mark or stamp his own eggs, and Bartters have not been given permission under that section. If Bartters are required to submit to the Board for grading and testing and marking or stamping the eggs which they wish to sell, they will be put to inconvenience and some delay, and will be required to pay to the Board the fee which may be charged under s. 41C (5) of the Act to defray the expense of grading, testing, marking and stamping the eggs - a fee which exceeds the cost to Bartters of doing their own testing and grading.

[77]

The law in question in the present case is not simply a general public health measure; it has two distinct aspects, one relates to that area of public health concerned with the fixing and enforcement of standards for perishable foodstuffs, the other to an elementary form of consumer protection and fair dealing in trade, requiring fair weights and measures and accurate labelling as to weights and quantities. This latter aspect, no less than that of public health, possesses a long history of legislative intervention and accompanying public acceptance and, in terms of permissible regulation for the purposes of s. 92, can, I think, stand in no different position from public health. Indeed, in their particular application to foodstuffs, the history of each in English law has been closely interwoven. As early as the thirteenth century the Assize of Bread and Ale, 51 Hen. III c. 1 (1266), prescribed varying qualities of bread and standard weights of loaf dependent upon the particular quality and also laid down general standards of weight for food and drink. Instances recur throughout the following centuries of laws concerning weights and measures and of presentments for the use of fraudulent weights and measures: Holdsworth, History of English Law, vol. II, pp. 222, 382, 390 and 467. Bread remained for long the especial concern of the legislature, as attested to by the numerous Acts of the eighteenth and early nineteenth centuries concerned not only with its price but also with its purity and freedom from adulteration. For at least the past hundred years legislation as to the purity of foodstuffs generally has been on the statute books: the Adulteration of Food or Drink Act 1860 U.K. and its successors were followed by similar colonial legislation and in 1878 consolidating legislation introduced a comprehensive code of Imperial weights and measures, continuing the system established in 1824 by 5 Geo. IV c. 74. Throughout the present century all Australian States have legislated extensively upon food standards and weights and measures.

[86]

Owen J. [47] also relied upon Wragg's Case but went on to say of an importer into Victoria of eggs that he "is not required to place them at the disposal of the Board. He may sell them wholesale, he may turn them into egg pulp, he may send them on to another State and he may sell them by retail, provided that in such last-mentioned case he first submits them to be graded and tested for quality and marked or stamped to indicate their grade and quality. To say that this last requirement infringes s. 92 seems to me to be a proposition that cannot be supported. It amounts to saying that a State law which has the effect of increasing the cost of selling goods by retail is invalid because by increasing that cost an importer of those goods from another State finds it less profitable or perhaps unprofitable to do so." There is, in my view, no element of discrimination present in this legislation, nor in the evidence adduced as to its administration so far as it relevantly affects the appellant. Nor can I regard as unreasonably restrictive of interstate trade a legislative requirement, in the case of a commodity such as eggs, that it should be made subject to the sort of impartial testing and grading which the present Act and regulations contemplate, processes which the legislature may well have concluded should not be entrusted to producers generally but only to a government agency and to those whom that agency authorizes and whose operations it can supervise. Eggs are so notoriously perishable a foodstuff that in their deteriorated state they have much enriched the English language in a number of picturesque phrases. There are, perhaps, few other foodstuffs which combine the qualities of being so dependent for their wholesomeness upon freshness, of being so prone to deterioration and the freshness of which at the time of purchase it is so difficult for the consumer to determine from outward appearance. They are not merely perishable but are enigmatic to the ordinary shopper; nor is this quality confined to their state of freshness, it can be no easy matter to distinguish by eye alone between the various weight-related grades of egg.

[196]

Harper's Case [18] was discussed in S.O.S. (Mowbray) Pty. Ltd. v. Mead [19] . In that case the appellant company carried on the business of the retail sale of foodstuffs in supermarkets in Tasmania. In one of such supermarkets it sold packets of margarine which had been manufactured by Marrickville Holdings Ltd. in Sydney. They formed part of an order for such margarine placed by the defendant with Marrickville Holdings Ltd. The written order had been handed by the managing director of the appellant in Tasmania to an employee of Marrickville Holdings Ltd. who took the order to Sydney where it was accepted by Marrickville Holdings Ltd. To comply with that order, the margarine was manufactured in New South Wales and loaded into a refrigerated van belonging to a carrier. The carrier caused the van to be loaded on a ship in Sydney for shipment to Hobart and there unloaded. The van was then driven by the carrier directly to Launceston where its contents were placed on display for sale in the supermarket and there sold to a purchaser. The precise form of the written order does not appear from the report but it is plain from what is said in the judgments that the order required the delivery of the margarine by the New South Wales manufacturer for carriage to the purchaser in Tasmania. The Dairy Produce Act 1969 Tas. provided that no person should within Tasmania manufacture or sell cooking margarine to which there had been added any "prohibited colouring substance" or "prohibited flavouring substance". Cooking margarine was defined, as were the prohibited colouring substances and the prohibited flavouring substances. It was not disputed that the margarine in question did contain those prohibited substances nor that the margarine so sold fell within the statutory definition, and that the prohibited substances had been added in the ordinary course of the manufacture of the margarine. The appellant was prosecuted for contravening the prohibition on sale and convicted by the magistrate. In this Court McTiernan, Menzies, Windeyer and Gibbs JJ. upheld the conviction, Barwick C.J., Owen and Walsh JJ. dissenting. Again I consider first the majority judgments. McTiernan J. relied on Milk Board (N.S.W.) v. Metropolitan Cream Pty. Ltd. [20] and examined the terms of the legislation there dealt with. He concluded that none of the provisions in the Tasmanian Act could be regarded as simple legislative prohibitions in that they did not have the effect of precluding persons from importing cooking margarine as such but only margarine which contravened the section. He therefore classified the legislation as being regulatory only in that it controlled the composition of the commodity. I pause at this point to observe that in North Eastern Dairy Co. Ltd. v. Dairy Industry Authority of N.S.W. [1] the decision in Milk Board (N.S.W.) v. Metropolitan Cream Pty. Ltd. was overruled and accordingly this aspect of the reasons for judgment of McTiernan J. in the Mowbray Case can no longer be sustained.

[237]

However, reg. 79 goes far beyond what is reasonably necessary for the purpose of ensuring that no milk is sold which is likely to constitute a danger to health. It has not been established that milk pasteurized in accordance with the law of Victoria would be less wholesome than that pasteurized in New South Wales. I would not doubt that a law of New South Wales might validly prescribe standards of purity of milk sold in that State, even if imported by the seller from another State, and might insist that the milk should have been pasteurized in accordance with a prescribed procedure, assuming the prescription to be reasonable. However, reg. 79 (10) (c) enables the Authority to prevent entirely the sale in New South Wales of any milk pasteurized elsewhere, however free from defect it may be. Moreover, none of the provisions can be described as merely regulatory - each goes far beyond mere control of the incidents of the transactions in question. Stephen J. agreed with the reasons for judgment of Barwick C.J. Mason J. said [37] : It is necessary, then, to proceed to the question of constitutional validity. If the first sale within a State of goods imported there for the purpose of sale forms part of interstate trade for the reasons given by Barwick C.J. in S.O.S. (Mowbray) Pty. Ltd. v. Mead [38] then a prohibition against the sale or supply of goods extending to imported goods is a burden on interstate trade, unless the prohibition can be classified as regulatory. But it does not follow that if the first sale by the importer is not part of interstate trade, a general prohibition against sale is consistent with s. 92. The prohibition may be held to constitute a burden on interstate trade either because the sale is inseparably connected with that trade or because it may appear that the effect of the prohibition is to destroy that trade: see Vacuum Oil Co. Pty. Ltd. v. Queensland [39] ; Fish Board v. Paradiso [40] ; O'Sullivan v. Miracle Foods (S.A.) Pty. Ltd. [41] . I regard each of these cases, as did Walsh J. in S.O.S. (Mowbray) Pty. Ltd. v. Mead [42] , as authority for the proposition that a prohibition applying to the first sale by an importer within a State may constitute a burden on interstate trade. To the extent to which the observations in Wragg v. New South Wales [43] may be thought to be inconsistent with this proposition I would not follow them.

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