Fish Board v Paradiso [1956] HCA 60; (1956) 95 CLR 443 (15 October 1956)

HIGH COURT OF AUSTRALIA

FISH BOARD v. PARADISO [1956] HCA 60; (1956) 95 CLR 443

Constitutional Law (Cth.)

High Court of Australia
Dixon C.J.(1), McTiernan(2), Williams(1), Webb(1), Fullagar(1), Kitto(1) and
Taylor(1) JJ.

CATCHWORDS

Constitutional Law (Cth.) - Freedom of trade, commerce and intercourse among the States - State Act - Control of fish - Prohibition on sale unless sold under direction of Fish Board - Fish brought from one State into another - Delivery pursuant to contract of sale - Whether required to be sold under direction of board - Complaint - Removal into High Court - Dismissal - The Constitution (63 & 64 Vict. c. 12), s. 92 - Judiciary Act 1903-1955 (No. 6 of 1903 - No. 35 of 1955), s. 40 - The Fish Supply Management Acts 1935 to 1951 (Q.), ss. 27 (1), 27B.

HEARING

Sydney, 1956, August 14-16;
Melbourne, 1956, October 15. 15:10:1956
REMOVAL under s. 40 of the Judiciary Act 1903-1955.

DECISION

October 15.
The following written judgments were delivered: -
DIXON C.J., WILLIAMS, WEBB, FULLAGAR, KITTO AND TAYLOR JJ. The defendant in was, at all material times, the holder of a retail distributor's (shop) licence issued pursuant to The Fish Supply Management Acts 1935 to 1951 (Q.). In the course of his business, on 29th February 1956, he sold a fish to an inspector appointed under and for the purposes of the Acts referred to. The sale took place at the defendant's hop, the fish, the subject of the sale, being one of several purchased by the defendant from Clarence River Co-operative Limited, a co-operative society which, apparently, had established and was operating, in New South Wales, a market for the sale of fish pursuant to approval under s. 2 of the Co-operation (Amendment) Act 1949 (N.S.W.). Substantially the business of the company was that of selling fish taken by its members and other licensed fishermen. It was in the course of this business that the company sold to the defendant the fish in question which, together with the total consignment purchased by him, was trasnsported from New South Wales by the company's agents into Queensland, where, after being subjected to an examination, at the fish market in South Brisbane, to ascertain its suitability for human consumption, it was delivered by the company to the defendant. (at p448)

2. Subsequently to the sale by the defendant a complaint was laid on behalf of the Fish Board, a corporation constituted by the Acts first above referred to, charging that the defendant, in the Metropolitan Fish Supply District, sold fish "such fish not having first been brought to a market in that district and there sold at a sale conducted by the Board". After evidence had been given the complaint was removed into this Court under s. 40 of the Judiciary Act. (at p448)

3. The charge was laid under s. 27 (1) of The Fish Supply Management Acts which reads as follows: - "27. (1) No person shall in any district sell or purchase any fish unless such fish have first been brought to a market in that district and there sold at a sale conducted by the board." This provision is one of several in the Acts which are designed to control the distribution of fish throughout the various fish supply districts established under the Act. That this is the substantial object of the Act is not in dispute and it is unnecessary to refer to the provisions of the Acts in any great detail. Sections 27 and 27B, however, should be set out in full before entering upon a discussion of the questions involved. Those sections are in the following terms: -
"27. (1) No person shall in any district sell or purchase any fish unless such fish have first been brought to a market in that district and there sold at a sale conducted by the board:
Provided that the board, with the approval of the Minister, may from time to time exempt from the provisions of this sub-section, for such period, in such form, and subject to such terms and conditions as the Minister approves, any district or any part or parts of any district comprising all or any seaside areas or any local authority areas or parts of local authority areas in that district.
Notice of each and every such exemption shall be published in the Gazette and thereupon shall be judicially noticed.
(2) As far as possible any species of fish for sale brought to a market and certified as fit for human consumption shall be sold in the order of priority in which it has been brought to that market.
At each and every market the board shall have power to conduct all sales of fish therein by public auction or otherwise than by public auction and subject to such terms and conditions as it may, in its absolute discretion, deem fit to impose, and may in its absolute discretion determine the manner of such sales and the order of priority in which fish has been brought to that market.
(3) Any approval by the Minister under the proviso to sub-section one of this section may be based upon - (i) The average consumption of fish during such period as the board shall fix in the seaside area or local authority area or part of a local authority area concerned; or (ii) The average catch of fish during such period as the board shall fix by fishermen operating from the seaside area or local authority area or part of a local authority area concerned; or (iii) Such other basis as the board shall think fit in relation to the seaside area or local authority area or part of a local authority area concerned.
(4) A person shall not be convicted of the offence that in any district he did purchase fish contrary to the provisions of sub-section one of this section if he proves that he did not know and could not with reasonable care have ascertained that the fish the subject of the proceeding had not first been brought to a market in that district and there sold at a sale conducted by the board."
"27B. Where a depot has been established in a district all fish intended for sale in any district (whether in that district or in any other district) landed in the seaside areas, local authority areas, or parts of local authority areas in the district adjacent to such depot shall be brought to the depot.
Any person refusing or failing to observe the provisions of this section shall be guilty of an offence, and shall be liable to a penalty not exceeding twenty pounds.
Any person who purchases any fish required by this section to be brought to a depot which were not brought to that depot shall be guilty of an offence, and shall be liable to a penalty not exceeding twenty pounds:
Provided that a person shall not be convicted of purchasing any such fish if he proves that he did not know and could not with reasonable care have ascertained that the fish had not been brought to such depot." (at p450)

4. Provision is made by s. 27A for the issue of what are called wholesale distributors' licences, retail distributors' (shop) licences and retail distributors' (hawkers') licences and, by sub-s. (3) of that section, it is provided that a retail distributor's (shop) licence shall authorise the holder of that licence to purchase, for the purpose of sale directly to consumers, fish at any market in the district or in the part of a district specified therein, in accordance with the terms and conditions, if any, set out in that licence, and to sell that fish by retail from a shop at the address specified in the licence. (at p450)

5. The evidence in the case shows the course of business between the defendant and the company to have been as follows. It was the practice of the Brisbane representative of the company, one Kingston, to call upon various retailers of fish in Brisbane each Monday morning for the purpose of ascertaining their requirements for the following week. At the same time he would present accounts for supplies delivered during the previous week and collect the amounts outstanding. Having ascertained the retailers' respective requirements he would telephone the company's office at Maclean (in New South Wales) and communicate to an official of the company the details of each customer's order. Thereupon the orders would be made up and despatched by road transport to Brisbane together with an aggregate manifest for the carrier and individual invoices for each customer. The consignment would first of all be taken to the South Brisbane fish market for inspection pursuant to s. 26 of the Acts and, thereafter, Kingston would make deliveries to each retailer pursuant to each individual order. The fish the subject of the present charge was purchased from the company in accordance with this practice and it seems clear enough that it was brought into Queensland and there delivered to the defendant pursuant to a contract of sale made between him and the company. (at p450)

6. That, until the delivery of the fish to the defendant, the fish was in the course of inter-State trade was not contested by counsel for the board. It was also conceded that s. 27 (1) of the Acts and other associated provisions could not apply to the incidents of the sale and delivery to the defendant. These concessions were made, no doubt, in view of the decision of this Court in Cam & Sons Pty. Ltd. v. The Chief Secretary of New South Wales [1951] HCA 59; (1951) 84 CLR 442 . But it is contended that s. 27 (1) and other relevant provisions of the Act apply to every sale made subsequently to the point of time at which fish, the subject of an agreement such as that proved in the present case, cease to be in the course of inter-State trade. The sale by the defendant is, of course, said to have been made subsequently to such a point of time. To support this contention the provisions of s. 2A of the Acts are relied upon but there are, at the very least, grave difficulties in the way of producing this result by any application of that section, particularly if it should be thought that the agreement between the defendant and the company resulted in an actual first sale in Queensland. It is, however, unnecessary to pursue this point for the case is capable of being decided upon, and should be decided upon, a much broader basis. (at p451)

7. The prohibition contained in s. 27 (1) is a conditional prohibition against the sale or purchase of fish in any fish supply district and unless the specified condition has been observed any such sale or purchase is unlawful. No difficulty arises in applying the section to cases where no element of inter-State trade is present but difficulties resulting from the nature of the condition immediately obtrude themselves in cases such as the present. It may be conceded that the sale the subject of the charge against the defendant was an intra-State transaction and, as such, that it was, in general, subject to control by the State legislature. But when the sub-section as a whole is considered it appears quite clearly not as a provision the object of which is to make it unlawful for retailers to sell fish in Queensland, but rather as a provision designed to ensure that all fish in Queensland shall be initially distributed in each particular district by means of sales conducted by the board. This view, which is apparent from the terms of the sub-section itself, is confirmed by the marketing provisions of the Acts as a whole. In its application to the circumstances of the present case the effect of s. 27 (1) - if indeed, it can be read down pursuant to s. 2A in the manner suggested - was to render the sale by the defendant unlawful simply because he had not caused it to be brought, first, to the market in the district and there sold at a sale conducted by the board. This, of course, means that the defendant never was at liberty to sell the fish in question except in this manner. Yet it is contended on behalf of the board that such a provision left the defendant's inter-State trade untouched. He was, it is said, perfectly free to buy fish from the company and to have it delivered to him in Brisbane; only after delivery did the provisions of s. 27 (1) commence to have an impact on his trade. This may be literally true but, as we understand the argument, the provision can say no less to persons in the position of the defendant than "Although you may purchase fish for delivery from New South Wales and although you may have it delivered to you in Queensland you must immediately allow the board to sell it in the market on your behalf." In terms s. 27 (1) operated to prohibit the sale by the defendant of the fish ordered by him as from the moment of its entry into Queensland and the event which attracted the prohibition was its entry into that State. Such an operation is, however, denied to the sub-section by s. 1 (see Cam & Sons Pty. Ltd. v. The Chief Secretary of New South Wales (1951) 84 CLR 442 ). Nevertheless, it is said, from the moment the fish ceased to be in the course of inter-State trade the defendant was subject to the impact of the prohibition erected by the sub-section. Of course, if the sub-section had provided that all fish in or coming into Queensland, whether in the course of inter-State trade or not, should be delivered to the board for sale there could be no doubt that it would collide with s. 92. Indeed we do not understand that proposition to be in dispute. But what difference is there between such a provision and that now under consideration? In each case the plain object is to compel the purchaser to place his property in the disposition of the board; the only difference is in the sanction provided. In the one case a failure to deliver to the board goods in the course of inter-State trade would be punishable by such penalty as might be provided whilst, in the circumstances of the present case, the prohibition against re-selling goods purchased for re-sale serves precisely the same purpose. In the former case, of course, no option is given to the trader; he must, under penalty, comply with the statutory requirement. In the latter case, however, the Acts do not directly and imperatively require fish to be delivered to the board; the trader is free so to deliver it or not as he pleases. But he is told that unless he does he shall not be at liberty to deal with it. The distinction is, however, but a matter of words and, in truth, s. 27 (1), as the respondent seeks to construe it, does not give any practical option to the trader. In each case the impact on inter-State trade is, in our opinion, immediate and direct and constitutes an infringement of s. 92. Accordingly the complaint should be dismissed. (at p453)

McTIERNAN J. In this case I would first construe sub-s. (1) of s. 27 of The Fish Supply Management Acts without reference to s. 92 of the Constitution. It is an obscure sub-section and it must be borne in mind that it is penal. Does it apply to a sale of fish caught outside Queensland? Doubtless, such fish may be brought to a "market" of the Fish Board, and there released by it for wholesale or retail distribution in Queensland, according to the marketing procedure established by the Act. But is it compulsory first to bring such fish there and have them sold by the board? (at p453)

2. Sub-section (1) of s. 27 applies only to sales or purchases in a fish supply district. There is no provision in the Act stating to what market conducted by the board in a fish supply district, fish caught outside Queensland are to be brought. How, in the case of such fish, is the condition that fish are to be brought to a market, if applicable, to be applied? If it is applicable to such fish, it would seem that the Act leaves open the question as to what market they are to be brought. But arguing from s. 27B, it is apparent that the Act contemplates a more orderly scheme of marketing in the case of local fish than leaving the fishermen or the supplier free to choose the market from which any fish in his hands is to be distributed for wholesale or retail sale. Section 27B applies to "all fish intended for sale . . . landed in the seaside areas, local authority areas etc." These areas are clearly within the territorial limits of Queensland. Section 27B says that where a "depot" (another name for "market" according to s. 2) has been established by the Fish Board in a fish supply district, all such fish shall be brought to a depot described as "adjacent". Section 27B determines the market to which they are to be brought for the purposes of sub-s. (1) of s. 27. (at p453)

3. It has been stated that sub-s. (1) of s. 27 is a penal provision. I think it is not clear that the intention of the Act is to force fish from external sources, as well as locally caught fish, through the markets of the board. If sub-s. (1) of s. 27 does intend that consequence, the provision makes it a matter merely of practical necessity rather than of legal obligation. In the case, however, of locally caught fish, steps necessary to channel it through the markets of the board are, by s. 27B, made a matter of legal obligation. Why should there be this difference if the intention of sub-s. (1) of s. 27 is to penalise the sale of either category of fish if the conditions stated in the sub-section have not been observed? I think that it is necessary to proceed upon the view that the intention of the Act is not to subject fish from external sources to compulsory marketing control. This view raises no doubt of the application for example of s. 26 to such fish. (at p454)

4. Counsel for the Fish Board stated in the course of argument that the circumstances in reference to which the Act was passed, were that the supply of fish from Queensland fisheries is inadequate to meet the demand of consumers, and that unfair competitive buying of the local supply had to be suppressed. It is reasonable to say, I think, that while these circumstances might call for compulsory marketing provisions dealing with fish from local sources, they do not so cogently suggest that similar provisions should apply to fish from external sources coming into Queensland to supplement the internal food supply. Indeed they may suggest the contrary. The express provisions of the Act in my opinion evince no intention to apply sub-s. (1) of s. 27 to fish other than fish from local sources. (at p454)

5. That result is, I think, entirely consistent with the circumstances, as stated by counsel, in view of which the Act was passed. For these reasons I think that this is not a case in which it is necessary to decide any question under s. 92. I think the prosecution should fail. (at p454)

ORDER

Complaint dismissed. Costs of the defendant in the court of petty sessions and in this Court to be taxed and paid by the complainant board.