Halpin v Clowes [1930] HCA 35; (1930) 44 CLR 461 (16 October 1930)

HIGH COURT OF AUSTRALIA

Halpin Claimant, Appellant; and Clowes Defendant, Respondent.

H C of A

On appeal from the Supreme Court of Victoria.

16 October 1930

Isaacs C.J., Gavan Duffy, Rich, Starke and Dixon JJ.

Ashkanasy, for the appellant.

C. Gavan Duffy, for the respondent,

The following written judgments were delivered:—

Oct. 16

Isaacs C.J.,

Gavan Duffy, Rich and Dixon JJ.

Sec. 320 of the Health Act 1919, which corresponds with sec. 360 of the Health Act 1928, provides that "in the execution of this Act any authorized officer ... may ... (e) seize detain or remove to some suitable place any animals or things with respect to which he has reasonable grounds to believe there has been a contravention of this Act." The respondent, who is an authorized officer, seized at the appellant's factory some boxes of a product which the appellant called "Sunflower C.B." but which the respondent considered to be margarine. And the case stated says: "The goods seized were, for the purpose of the proceedings only, conceded to be margarine within the meaning of the Health Act 1919." Pursuant to sec. 326, sub-sec. 2, the respondent delivered a portion of the goods seized to the appellant and, pursuant to sub-sec. 1 of the same section, he gave notice to the appellant of the seizure in the form prescribed by the Seizure (Claims Procedure) Regulations 1925 made under the Health Act 1919. The grounds assigned in the notice were (i.) false description, (ii.) not labelled as required by the Health Act 1919 and regulations, (iii.) coloured in contravention of the Health Act and regulations, (iv.) margarine sold without containing starch.

The appellant made applications to justices, pursuant to sec. 327, complaining of the seizure, and they made orders disallowing the seizures upon the ground that no power to seize the product, which was a food or substance, was given by the Health Act 1919 except when a sample had previously been procured by an officer and proved by analysis to contain something, the sale or use of which in such food or substance is prohibited. From the orders disallowing the seizures the now respondent appealed, pursuant to sec. 364, to the Court of General Sessions, which confirmed the orders of the justices, but stated a case for the Supreme Court. The Supreme Court was of opinion that the seizures were authorized by sec. 320 (e), and that power was given by the Health Act 1919 to seize food although no sample had been procured and proved by analysis to contain something, the sale or use of which in such food or substance is prohibited. In this opinion we agree. We think sec. 320 (e) confers an independent power of seizure which arises in the conditions which it describes. The contention of the appellant was that the words "in the execution of this Act," with which the section begins, limit its application to cases in which the officer is in the course of exercising some other power specifically given by the Act. Upon this assumption, it was said that, as the only specific power of seizing food was that given by sec. 324, a seizure of food could not be made unless the condition prescribed by that section was observed, namely, that a sample was first procured and proved by analysis to contain something the sale or use of which in such food or substance is prohibited. We think this contention is founded upon a misunderstanding of the words "in the execution of this Act." These words are satisfied whenever, as here, one of the powers expressed to be given by the section is exercised in a bona fide attempt to obtain obedience to the provisions of the statute.

The further contention on the part of the appellant that the presence of sec. 324 in the statute required the conclusion that sec. 320 (e) did not extend to the seizure of "foods, drugs or substances" either at all, or at least without compliance with the conditions prescribed by sec. 324, cannot be supported. The powers given by sec. 320 (e) are not dependent upon the exercise of the powers conferred by sec. 324. We do not mean to suggest that the provisions of sec. 324 have any reference to the facts of this case. It follows that the ground upon which the seizure was disallowed by the justices and by the Court of General Sessions is erroneous. But that does not necessarily end the matter. For sec. 327 empowers the justices to disallow a seizure notwithstanding that it was authorized when made. It contemplates an inquiry not merely into the question whether the authorized officer had power to seize, but also into the question whether there has in fact been a contravention of the Act and whether on the facts the property seized ought to be dealt with in the manner provided by sub-sec. 2 of sec. 327. In this case, however, upon the facts found by the special case and the admissions made by the appellant for the purposes of the proceedings, there can be no doubt that the Supreme Court was right in confirming the seizure. We do not accede to the argument of the appellant that the express exoneration conferred in sec. 326 (3) indicates the accuracy of his main argument, and we think it unnecessary to enter into detailed reasons for this opinion. But we consider it desirable to direct attention to the absence of the word "thing" from sec. 326 (3), an omission that recurs in the Act now in force—No. 3697, sec. 366 (3).

For these reasons the appeals should be dismissed with costs.

Starke J.

The construction put upon sec. 320 of the Health Act 1919 by the Supreme Court of Victoria is plainly right. "In the execution of this Act" means, as the learned Judges of that Court said, for the purpose of carrying out the Act and ensuring its due observance. The same words occur in sec. 319, and are there clearly used in that sense. The authorities conferred by sec. 319 and sec. 320 are not conditioned upon, or merely ancillary to, the exercise of other powers given elsewhere in the Act. One passage, however, in the judgment of the learned Judges, may lead to some misapprehension:—"Upon the concession made on behalf of the respondent" (Halpin) "for the purposes of these proceedings only, that Sunflower C.B. is margarine within the meaning of the Health Act 1919, it is clear that there was a contravention of the Act in regard to this substance. We answer the question stated for us by saying that the appeal should have been allowed in the Court below, and determine the appeals by confirming the seizures." Now, sec. 327 provides that any person claiming any animals or things seized under the Act may complain to a justice, and the complaint shall be heard and determined by any two justices who (after hearing the evidence) may confirm or disallow the seizure, wholly or in part, and make an order accordingly. The words of the section grant a power, but, in my opinion, do not—as the passage cited might be thought to suggest—impose an obligatory duty to confirm a seizure whenever the Act has been contravened: they give a discretion—a judicial discretion—to exercise the power according to the circumstances of the case. Thus, a label may be false or incorrect (cf. sec. 207 (g)), and yet, if it were altered or withdrawn, a contravention of the Act might, in such circumstances, be avoided. The justices might, in my opinion, on the alteration or withdrawal, or on proper undertakings given, disallow the seizure. The discretion is not, however, arbitrary, and the justices should not disallow a seizure merely because the complainant is poor, or for other like reason.

The appeals should be dismissed.

Appeals dismissed with costs.

Solicitor for the appellant, Joan Rosanove.

Solicitor for the respondent, Frank G. Menzies, Crown Solicitor for Victoria.