Tindal v Calman [1905] HCA 39; (1905) 3 CLR 150 (30 September 1905)

HIGH COURT OF AUSTRALIA

Tindal Defendant, Appellant; and Calman Informant, Respondent.

H C of A

On appeal from the Supreme Court of New South Wales.

30 September 1905

Griffith C.J., Barton and O'Connor JJ.

Gordon K.C. (with him Blacket), for the appellant.

Piddington, for the respondent.

Gordon K.C. in reply.

The judgment of the Court was delivered by Griffith C.J.

Nov. 30

Griffith C.J.

Barton and O'Connor JJ

In this case this Court is asked, as it has been asked more than once before, to construe a Statute, not according to the language used by the legislature but according to some notion of what the legislature might have been expected to have said, or what this Court might think it was the duty of the legislature to have said or done. But the duty of a Court is to examine the language used, and to give effect to it, whether it approves or disapproves of what the legislature has provided, or whether it thinks or not that the legislature might more properly have done or said something else. We make these observations because on several occasions a similar argument has been addressed to us sitting here.

The question is as to the proper construction of the Cattle Slaughtering and Diseased Animals and Meat Act, No. 36 of 1902. That Act by sec. 5 provides that "every person intending to slaughter any cattle in any city, town, district, or municipality in which an inspector has been appointed, shall first give twelve hours' notice in writing to such inspector of the cattle intended to be slaughtered, specifying the place and time" with a penalty of five pounds for every head of cattle slaughtered, in "default of notice." That section is followed by sec. 8 which provides that; "It shall not be necessary for the proprietor or manager of any establishment for the extraction of tallow from the carcasses of cattle, or for salting beef for exportation, and being a licensed house or place, to give notice to any inspector of the cattle intended to be slaughtered by him." The term "licensed house or place" means premises in respect of which a licence has been issued under the provisions of Part II. of the Act. The licence is issued by the local authority under sec. 25. The application for a licence must be made with a description of the premises and buildings in respect of which the licence is applied for, and accompanied by payment of the prescribed fees.

By another Act called the Noxious Trades Act, No. 82 of 1902, it is provided, sec. 14, that "no licence shall be granted or being granted shall be operative for or in respect of any house or premises used as an establishment for the extraction of tallow from the carcasses of cattle or for the salting of beef for exportation as aforesaid, unless the proprietor thereof shall have entered into a recognizance to His Majesty with two sufficient sureties—himself in two hundred pounds and the sureties in one hundred pounds each in the form and with the conditions set out in the Second Schedule hereto."

In the present case the appellant is the manager of an establishment for the extraction of tallow from the carcasses of cattle and the salting of beef for exportation, and the establishment is a licensed house or place within the meaning of the Act first referred to. He comes exactly within the words of the exemption in that Act. The magistrate has convicted him on the charge of not giving notice before slaughtering of the cattle intended to be slaughtered by him. On an appeal from that conviction by way of special case stated for the opinion of the Supreme Court, the learned Judge who heard the appeal was of the opinion that the contention of the appellant was plainly and unmistakably wrong. But, as I have already pointed out, it is obvious that the appellant comes plainly within the literal provisions of the Act conferring the exemption. Why then should the Act not apply to him? The answer given is this, that, notwithstanding the fact that his establishment is one for the extraction of tallow from the carcasses of cattle and for the salting of beef for exportation—either of these is sufficient—the evidence showed that he sometimes sells beef there, sometimes to his workmen, sometimes in the form of tinned meat to labourers and others in the neighbourhood, and occasionally small quantities of beef to persons passing by. It is said that, that being so, he therefore ceases to be the proprietor of an establishment for the extraction of tallow or salting beef for exportation within the meaning of the Act. In support of that contention we were referred to the case of Essenden (Corporation of) v. Blackwood[1], which was a case upon the construction of a Statute, which exempted from rateability "land, the property of Her Majesty, which is unoccupied or used for public purposes," and that was held to mean land exclusively used for public purposes. But what is there in the nature of this case to show that an establishment ceases to be an establishment for the extraction of tallow and the salting of beef for exportation simply because some of the residual products of these processes are sold locally, or because some of the cattle slaughtered are not boiled down and salted? I must confess that I, for my part, fail to apprehend the argument. And if the history of the legislation on the subject is considered, the matter becomes, to my mind, even more clear.

The 5th section of the Act No. 36 of 1902 is taken from an Act passed in 1834 for the regulation of the slaughtering of cattle, 5 Wm. IV. No. 1, and its terms are practically the same as in the original. That Act was obviously intended to guard against cattle stealing. It contained various provisions for the giving of notice to the inspector by a person intending to slaughter cattle, and provided that, if that were not done, the skins of the cattle slaughtered were to be kept for the inspector to examine. The keepers of licensed slaughtering places where inspectors were not appointed, were to keep records of all cattle slaughtered and make returns of them to the justices. The skins of all cattle slaughtered were to be kept for a month, and shown on demand to the magistrates; and any person who failed to produce such skins or to give a satisfactory explanation of his failure to do so was liable to a penalty of £10. There was a provision that no person should destroy or deface the brand upon any skin, and a penalty was imposed on any person who committed a breach of that provision. There were other provisions for the watching of places suspected to contain stolen cattle, and entering them for the purpose of inquiry into cases of suspicion. All these provisions were obviously directed against the offence of cattle stealing, the main provisions being that before slaughtering notice should be given to the inspector. It then became his duty to examine the cattle slaughtered, to take a full and particular description of the colours, age, brands, marks, together with the name of the owner. These were to be entered by him in a book for the examination of a justice, and a weekly return was to be made of the number of cattle slaughtered in his district. The plain object of these provisions, as I have already pointed out, was the prevention of cattle stealing.

Then in the year 1851, an Act was passed, 15 Vict. No. 13, to amend the laws for the slaughtering of cattle and to secure the immediate destruction of animals dying of disease. The first seventeen sections of that Act referred entirely to the subject of animals dying of disease, and the prevention of their being used by the public for food. But after sec. 18 there follows a fresh preamble, at the beginning of sec. 19. That preamble and section are as follows: "Whereas it has been found inconvenient and is considered unnecessary to require cattle slaughtered at places or establishments for the extraction of tallow from the carcasses of such cattle or for the salting of beef for exportation to be regularly inspected by the inspectors of slaughter-houses Be it therefore enacted That after the passing of this Act it shall not be necessary for the proprietors or managers of establishments for the extraction of tallow from the carcasses of cattle or for salting beef for exportation and licensed as slaughter-houses to give notice to any inspector of slaughter-houses of the cattle intended to be slaughtered by them nor shall any inspector be required to examine any such cattle or to take or make entries of the descriptions or other particulars now by law required to be taken and entered by him upon making such examinations." Then follows sec. 20, which is a proviso to sec. 19, that no licence shall be granted, or being granted shall be operative for or in respect of any house or premises used as an establishment for the extraction of tallow from the carcasses of cattle or for the salting of beef for exportation until the proprietor has entered into a recognizance with two sufficient sureties. The form of the recognizance is set out in the schedule, the condition being "that whereas the said A. B. is to be licensed to slaughter cattle on his premises situate at ... and the said A. B. intends to employ his said premises as a place or establishment for the extraction of tallow from the carcasses of cattle or for salting beef for exportation (as the case may be) if the said A. B. shall keep a book in which he shall enter a particular and faithful account and description of all cattle slaughtered on the said premises specifying the colours marks brands sex and apparent age of such cattle and the time of slaughter and the names of the persons by whom such cattle were delivered at the said premises and of the persons on whose account the said cattle were received and of the persons to whom or for whose use the tallow extracted from the same or the beef salted has been delivered and shall permit such book and all cattle intended to be slaughtered to be inspected by any person who may require to see the same and shall transmit once in each fortnight to the Bench of Justices at ... a report of all cattle slaughtered together with the particulars above mentioned in writing under his hand or in his absence under the hand of the manager of the said establishment. Then this recognizance to be void otherwise to remain in full force." That is to say, the legislature, reciting that it was inconvenient and unnecessary to require an inspection in these establishments, exempted the proprietors of them from that liability upon their undertaking to perform themselves the duties which the inspector would otherwise have had to perform. And, if we are to apply the historical knowledge which we must be taken to possess, we cannot fail to know that by the year 1851 what were called boiling down establishments and meat works for the salting of beef for exportation had been established in this country, and that in these places the slaughtering of cattle went on wholesale, and the legislature, taking this into consideration, and knowing that these places were very different from ordinary slaughtering yards, and that for the purpose of carrying on such a business buildings and plant would be erected which could easily be seen, and by which the nature of the establishment could be known at once, and that when application was made for a licence to slaughter, it would be obvious on inspection what sort of a place it was, made provision that the proprietor, on entering into a recognizance to do himself what the inspector would otherwise have had to do, should be exempt from the necessity of giving notice of his intention to slaughter. But even if we had no knowledge of these facts, any doubt would be set at rest by the language of the Act, without reference to them. The only condition, therefore, that has been imposed by the legislature is that the establishment shall be one of a particular kind. If the establishment is of that kind, it falls within the exemption. What more then is there to be said? I confess that I am altogether unable to bring myself to understand the argument that a man, who is exempted by law from an obligation, is nevertheless liable to fulfil that obligation because he has done something which the legislature did not contemplate that he would do when it granted the exemption. I am really unable to deal with the argument any more in detail. Out of respect to the learned Judge who decided the point, and the strenuous argument that was addressed to us by Mr. Piddington, I should have been pleased if I could have appreciated the contention raised on behalf of the inspector, but I am unable to do so.

The appellant is clearly within the exemption, and the fact that he, to a small extent, disposed locally of the waste products of the boiling down and other processes seems to me an entirely irrelevant matter.

I may mention that it was stated in evidence that the proportion of this local business to the general operations of the establishment does not exceed four per cent. This, though in one sense large, the operations of the establishment being very large indeed, was relatively trivial.

For these reasons we are of opinion that the appeal should have been allowed by the Court below, and that the conviction should be quashed.

Appeal allowed with costs. Order appealed from discharged. Conviction quashed with costs.

Solicitors, for appellant, Macnamara & Smith.

Solicitor, for respondent, The Crown Solicitor of New South Wales.

[1] 2 App. Cas., 574.