CJ Burland Pty Ltd v Metropolitan Meat Industry Board

[1968] HCA 77

HIGH COURT OF AUSTRALIA

Barwick C.J., Kitto, Taylor, Menzies, Windeyer and Owen JJ.

C.J. BURLAND PTY. LTD. v. METROPOLITAN MEAT INDUSTRY BOARD

(1968) 120 CLR 400

6 December 1968

Statutes

Statutes—Interpretation—Validity of by-law—Power to make by-laws for "management and control" of public abattoirs—By-law providing for taking, without payment, parts of animals slaughtered—Parts taken divested from owner of animals—Remuneration in kind for "use" of abattoirs—Meat Industry Act, 1915 (N.S.W.), as amended, s. 30 (1)*.

Decisions

December 6.
The following written judgments were delivered:-
BARWICK C.J. AND MENZIES J. These two appeals raise exactly the same question of law and were, by consent, heard together. (at p402)

2. It seems that for many years the public abattoir at Homebush has been run on the basis that part only of the revenue required by the Meat Industry Board, constituted under the Meat Industry Act, 1915-1965 (N.S.W.) to run the abattoir and other facilities, should be provided by dues, rates, fees and charges imposed under or by virtue of s. 15 of the Act and that further necessary revenue should be obtained by taking from the owners of animals slaughtered at the abattoir some parts of the animal so slaughtered - either without payment or at an arbitrary price - and selling the parts so taken. As an indication of the money involved in this practice we were told that the value of parts of animals taken from the appellant, C. J. Burland Pty. Limited, is in the order of $26,000 a year. (at p403)

3. The taking of parts has been and is authorized by-laws which have been modified from time to time. In 1925 the relevant by-law then in force, viz. by-law 24, was unsuccessfully challenged: Jones v. Metropolitan Meat Industry Board (1925) 37 CLR 252 . There the High Court upheld a decision of Harvey C.J. in Eq. (1925) 25 SR (NSW) 553 that the by-law which provided for some parts of animals, the property of owners using the abattoir to slaughter their own stock, should become the property of the Board, either without payment or, as to some items, upon payment of prices fixed by the Board, or as to fat removed from carcasses, at the current market rates, was within power. In the Supreme Court, and perhaps in the High Court, the by-law was treated as validly relating to offal only and it was accordingly upheld as an exercise of the by-law-making power for the management and control of the abattoir and for the regulating and controlling of the use of the same conferred by s. 30 of the Meat Industry Act. Harvey C.J. in Eq. said:

"In my opinion the Board has the full power to say what portion of the offal can, consistently with the hygienic dressing of meat, be properly segregated so as to be identified as the property of the owner of the beast from which it comes. It is also within its power to determine what parts of the offal consistently with the hygienic dressing of the meat shall be removed by the owner and what shall not. It is within its power to say what parts of the offal shall be paid for and what shall not by reason of the difficulty or expense of identification. The only possible exception which in my opinion could be taken to this by-law is to those portions of it which provide for payment to the owner of a price fixed by the Board. I do not think that the leaning which the law has against the confiscation of the property of the subject without compensation applies to those circumstances. If it did the Board could not deprive the owner of the blood of the animals; yet it is, I think, clear that the abattoirs could not be used if the owners had that right. The method in which the offal should be dealt with must, I think, be left in the absolute discretion of the Board under its by-laws in order that the principal object of the Act viz., the hygienic dressing of meat may be secured" (1925) 25 SR (NSW), at p 559

In the High Court Knox C.J., Isaacs and Rich JJ. - Higgins and Starke JJ. dissenting - while saying that the judgment of Harvey C.J. in Eq. was right and should be affirmed, did, we think, go further than did that learned judge. Thus Isaacs J. in a judgment accepted by Knox C.J. and Rich J. said (1925) 37 CLR, at p 260:

"When by-law No. 24 is read, there is nothing in it which as owner of the abattoir the Board could not stipulate as part of its 'management and control' - very comprehensive words - and as 'regulating and controlling the use' of it, and as regulating the conduct of persons who voluntarily come there to slaughter cattle. It may be the terms are severe; at first sight they might seem harsh; some persons might even think them unduly stringent, having regard to facilities for removing and dealing with offal. But that is nothing to the point. As a bare matter of law, and strict construction, they are within the literal terms of the power contained in the first paragraph of s. 30 (1). The provision for fixing the Board's monthly 'current market-rate' does not detract from this, because on the face of the by-law that is so much to the good of the person concerned. If the Board can, within the literal terms of the power, refuse to allow the meat and fat and stomachs 'taken' by the Board to be removed at all, the fact of allowing a stated price is not a vitiating factor." (at p404)

4. This statement was relied upon before this Court in this case to support a contention that a by-law authorizing the Board to take any part of an animal slaughtered at the public abattoir would be within power. (at p404)

5. In 1934 the Board's method of conducting the abattoirs changed radically. From that time onward the Board itself slaughtered all animals tendered to it for that purpose by their owners. After slaughter, in accordance with by-law 11, the Board delivered to the owner the carcase, skin, tongue, kidneys, heart and liver. (at p404)

6. Thus, by-law 11 operates in a different setting to that in which the former by-law 24 did. Furthermore, it goes much further than the former by-law. For instance, it authorizes the Board to take without payment from bovine cattle-

(a) all fat removed from the carcase; (b) all the heads, feet and tail-tips; (c) all casings including weasands, bungs, middles, runners and bladders; (d) all meat or offal other than that previously specified (i.e. that which the Board is required to deliver to the owner). (at p404)

7. The present challenge was heard by Street J. and although the learned judge considered that by-law 11 was substantially different from the by-law upheld in Jones' Case (1925) 25 SR (NSW) 553; (1925) 37 CLR 252 he thought that he was constrained by the reasoning of the earlier decision of this Court, if not the actual decision to uphold by-law 11. (at p405)

8. Notwithstanding Jones' Case (1925) 25 SR (NSW) 553; (1925) 37 CLR 252 we consider that the Meat Industry Act does not warrant the course which the Board is now following by virtue of by-law 11. We read s. 15 of the Act as containing the Board's full power to obtain payment for the use of its property and for its services. The power conferred by s. 30 (1), pars. (6) and (6A) of the Act to make by-laws fixing, levying and collecting rents, fees and charges is a provision ancillary to s. 15. It is to be observed that s. 15 (3) requires "All fees or sums of money received by the Board or its officers under the provisions of this Act shall go to form a fund" to be expended as therein provided, and is not apt to cover payments in kind or amounts received by the sale of parts of animals taken by the Board from owners under the authority of by-laws. We do not think that the Act contemplates that the Board should be remunerated in kind for the use of its property or for service rendered by it. Section 15 clearly enough refers to money payments. Furthermore, despite Jones' Case (1), we do not regard by-law 11 as regulating or controlling the use of the public abattoir. If by-law 24, as it stood, was to be justified as relating only to the taking of offal - as to which the Board had the special power conferred by s. 14 (8) of the Act - by-law 11 cannot be so justified because, in terms, it relates to meat as well as to offal. The more comprehensive by-law is more difficult to justify, on grounds of hygiene and practicability, as being for the management and control of the abattoir. In our opinion by-law 11 is not a by-law for regulating and controlling the use of the public abattoir or for regulating the conduct of persons using the same. (at p405)

9. Since Jones' Case (1925) 25 SR (NSW) 553; (1925) 37 CLR 252 , however, s. 30 (1) of the Act has been amended to authorize the making of by-laws prescribing the terms and conditions upon which public abattoirs may be used and it was argued that by-law 11 could now be supported as a prescription of such terms and conditions. We did not accept this argument. By-law 11 deals with the power of the Board at the public abattoir, not with the terms and conditions upon which the abattoir may be used. Of course it is not to be denied that owners of animals who send them to the public abattoir to be slaughtered by the Board at fixed charges - as is now the practice - do, in one sense, use the abbattoir, but to our mind the terms and conditions to be prescribed are those to be observed by users other than the Board itself and a provision such, for instance, as all the heads, feet and tail-tips of animals slaughtered by the Board at the abattoir shall become the property of the Board for which no payment shall be made to the owner is not a term or condition upon which the owner "uses" the abattoir. Furthermore, as we have already said, the terms of s. 15 of the Act itself relating to charges etc. tend against construing s. 30 (1) as authorizing exactions in kind by force of by-laws as part of what owners have to pay for the use of the Board's property and for its services. (at p406)

10. Because the by-law now under challenge is substantially different and operates in a different setting from by-law 24 as it stood and operated when Jones' Case (1925) 25 SR (NSW) 553; (1925) 37 CLR 252 was decided it is not necessary here to do more than decide that, despite the decision in Jones' Case (1925) 25 SR (NSW) 553; (1925) 37 CLR 252 , by-law 11 is ultra vires because it is not authorized by s. 30 (1) of the Act. (at p406)

11. We would therefore allow the appeals. (at p406)

KITTO J. This case in my opinion is to be distinguished from the case of Jones v. Metropolitan Meat Industry Board (1925) 37 CLR 252 for two main reasons. In the first place, neither the evidence in the case nor general knowledge suggests that because of any practical difficulty or any consideration of public health or hygiene the expropriation partakes of the character of that management and control of an abattoir which is the subject of the express by-lawmaking power in s. 30 (1) (1). Secondly, s. 20A of the Meat Industry Act, 1915-1965 (N.S.W.), a section proclaimed ten years after the Jones' Case (1925) 37 CLR 252 , giving the Board the exclusive right at a public abattoir of slaughtering cattle and dressing carcases for human consumption, couples the grant of this monopoly with a power to charge such fees for slaughtering and dressing as may be prescribed by by-laws. This power exists side by side with the power given to the Board by s. 15 (1) to demand, collect and receive in respect of any services performed by it such dues, rates, fees and charges as may be reasonable or as may be prescribed by by-laws, and also with the power given to the Board by s. 30 (1) (6) to make by-laws providing for fixing, levying and collecting "rents, fees and charges . . . in connection with any public abattoir". (at p406)

2. The first of these grounds of distinction, in my opinion, makes directly applicable the firmly established rule of law that a statute will not be read as authorizing the expropriation of a subject's goods without payment unless an intention to do so be clearly expressed. As was held in Newcastle Breweries Ltd. v. The King (1920) 1 KB 854 , this rule applies a fortiori to the construction of a statute delegating legislative powers. (at p407)

3. The second distinction directs attention to the plain implication of the Act as it now stands, namely that the Board, being empowered to fix its remuneration for the services it renders and to do so in terms of money payments, is not intended to have power to take to itself the additional right of exacting tribute in kind. Analogy in case law is hardly necessary, for the principle expressio unius est exclusio alterius plainly applies and produces this result; but a near enough analogy may be found, if it be wanted, in Kirk v. Nowill and Butler (1786) 1 TR 118 (99 ER 1006) , where the King's Bench held that a corporation empowered to make by-laws and impose fines for breaches of their provisions was held to have no power to make a by-law providing for forfeitures of property for such breaches. The two reasons were relied upon: the absence in the relevant statute of any express authorization of provisions for forfeitures, and the exclusion, necessarily implied by the express provision for fines, of a power to provide for forfeitures. (at p407)

4. It is said on behalf of the Board that the by-law which is here challenged intends the meat which it expropriates to be a recompense to the Board, not for the slaughtering and dressing (and any other services) for which fees are authorized, but for some "use" which the meat-owner has of the abattoir when his animals are slaughtered there by the Board, and that the general power under s. 30 (1) (1) to make by-laws providing for "the management and control of all public abattoirs . . . and for regulating and controlling the use of the same, and prescribing the terms and conditions upon which the same may be used . . ." supports a by-law confiscating some of the meat as recompense for that additional "use". The contention overlooks the fact that the by-law selects the slaughtering of the animals, not any "use" of the abattoir apart from the slaughtering, as the event which attracts the operation of its provisions; and therefore if the confiscation of part of the meat has the character of recompense for anything it is recompense for the slaughtering. Indeed the attempt to relate the by-law to some other "use" of the abattoir by the meat-owner I find too artificial to be entertained. Only the Board "uses" the abattoir under the present system - it was the butcher who used it under the system which was under consideration in the Jones' Case (1925) 37 CLR 252 ; the Board uses it to do the slaughtering and dressing, and if the meat-owner pays the prescribed fees for those services he pays for all the "use" of the abattoir that in any reasonable use of language he can be said to have. (at p408)

5. I agree that the appeals should be allowed. (at p408)

TAYLOR J. By-law 11 (a), made by the respondent Board pursuant to the provisions of the Meat Industry Act, 1915-1965 (N.S.W.), is in the following terms:

"In the case of bovine cattle, excepting calves, slaughtered at the public abattoir: - (i) The Board shall deliver to the owner the carcase, hide (unsalted), tongue, tail, skirt, kidneys, heart and liver, also the caul and kidney fat.

(ii) All other fat removed from the carcase shall become the property of the Board, for which no payment shall be made.

(iii) The Board shall deliver to the owner such quantities of tripes, brains, and cheek meats as are required, upon payment of the cost of removal, collection, preparation, and delivery.

(iv) All the heads, feet, and tail-tips shall become the property of the Board, for which no payment shall be made. (v) The Board shall deliver such casings as are required, consisting of weasands, bungs, middles, runners, and bladders, to the lessee of the casing cleaning unit at the public abattoir nominated by the owner, upon payment by him of the cost of removal, collection, preparation, and delivery. No person shall remove any casings from the public abattoir prior to such casings being treated in a manner satisfactory to the Board.

(vi) All meat or offal other than that herein specified shall become the property of the Board, for which no payment shall be made." (at p408)

2. It will be seen that the by-law purports to divest from an owner a number of parts of all bovine cattle brought to the metropolitan abattoirs for slaughter and to vest these parts in the Board without payment. (at p408)

3. By-law 11 (b) (c) and (d) contain not dissimilar provisions relating respectively to calves, pigs and sheep and lambs and need not be set out. It is said that legal justification for promulgation of the by-law is to be found in s. 30 (1) (1) and (6) of the Act. These provisions authorize the Board to make by-laws not inconsistent with the Act

"(1) providing for the management and control of all public abattoirs, public sale-yards, and public meat markets, and all other places and buildings vested in or acquired by it; and for regulating and controlling the use of the same, and prescribing the terms and conditions upon which the same may be used, and for regulating the conduct of all persons using the same or resorting thereto, or slaughtering, buying, selling, or dealing therein;"

and

"(6) providing for fixing, levying and collecting rents, fees, and charges for the use of or in connection with any public abattoir, public sale-yards, or public meat market". Were it not for the decision of the majority of this Court in Jones v. Metropolitan Meat Industry Board (1925) 37 CLR 252 I would have thought it sufficient merely to say that neither of these statutory provisions conferred authority upon the Board to make the by-law. However, in Jones' Case (1925) 25 SR (NSW) 553 Harvey C.J. in Eq. in the Supreme Court, upheld an earlier by-law which authorized the Board to retain certain specified portions of offal on payment of prices fixed by the Board and, further authorized the Board to retain other portions without payment. He did so because he was of the opinion that

". . . the Board has the full power to say what portion of the offal
can, consistently with the hygienic dressing of meat, be properly segregated so as to be identified as the property of the owner of the beast from which it comes" (1925) 25 SR (NSW), at p 559 and "It is also within its power to determine what parts of the offal consistently with the hygienic dressing of the meat shall be removed by the owner and what shall not" (1925) 25 SR (NSW), at p 559

This being so, the by-law was upheld as a provision for the "management and control" of public abattoirs and "for regulating and controlling the use of the same". In this Court the majority may perhaps be regarded as having taken a somewhat broader view of the extent of a power to make laws providing for the "management and control" of abattoirs but it is beyond question that in reaching their decision problems of hygiene were present to their Honours' minds. (at p409)

4. In the present case the operation of the by-law is much more extensive than that under consideration in Jones' Case (1925) 25 SR (NSW) 553; (1925) 37 CLR 252 and it appears that, in its present form, it operates to vest in the Board without payment products of very considerable commercial value. Further, no serious attempt is, or can now be, made to justify its provisions on grounds of hygiene. This being so it is clearly not justifiable as a provision for the management and control of the abattoirs. Nor is it justifiable as a provision "prescribing the terms and conditions upon which the same may be used" for, in view of the provisions of s. 30 (1) (1), I do not regard this head of power as authorizing the prescription of remuneration to be paid by those using the services provided by the abattoirs. Nor can it be regarded as a provision authorizing the expropriation of property. Finally, I add that it is impossible to characterize the by-law as one providing for "fixing, levying and collecting rents, fees, and charges for the use of or in connection with any public abattoir". In my view the appeal should be allowed. (at p410)

WINDEYER J. I have had the advantage of reading the judgments prepared by my brothers Menzies and Owen. I agree with their Honours' conclusions. By-law 11 should, I think, be held to be invalid. I say this notwithstanding what was said by a majority of this Court in Jones v. Metropolitan Meat Industry Board (1925) 37 CLR 252 in speaking of a by-law which was in somewhat similar terms but operated in different circumstances. That case was followed by the Supreme Court of New Zealand in Smith v. Blenheim Borough Council (1928) NZLR 536 . The judgments there are instructive, but of course only persuasive for us. And they appear to have turned partly on the fact, also regarded as significant in Jones' Case (1925) 37 CLR 252 , that, because of the way in which the work of slaughtering was done, it was

". . . impossible to keep each butcher's offal separate . . . impossible to return to each his own, and, apart from the Health Department's Regulations, no individual butcher could succeed in an action to recover his own offal" (1928) NZLR, at p 555

In the present case it is not said that the taking by the Meat Industry Board of the portions of carcases in dispute was necessary in the interests of health or that their delivery to the appellant, the owner of the slaughtered beasts, was impracticable. (at p410)

2. Section 30 (1) of the Act provides for the making of by-laws for "the management and control" of public abattors, and for "regulating and controlling the use of the same, and prescribing the terms and conditions upon which the same may be used". I appreciate that these are wide words. "Management" especially is a wide word. But it must be read in its context: see e.g. Clements v. Bull (1953) 88 CLR 572 . Section 30 (1) (6) provides for the imposition, by by-law, of "rents, fees, and charges" for the use of the abattoir. This means monetary payments. It does not authorize the compulsory taking of property. Section 30 (1) is not to be read as enabling the Board to take compulsorily the property of a user of the abattoir as a "term and condition" of its use. The phrase "terms and conditions upon which the same may be used" refers, it seems to me, to such matters as the times, manner and method of permitted use, not of the consideration for which use will be permitted. (at p411)

3. I would allow the appeals. (at p411)

OWEN J. Each of these appeals raises the question of the validity of by-law 11 purporting to be made pursuant to the provisions of the Meat Industry Act, 1915-1965 (N.S.W.). (at p411)

2. Under the Act the Metropolitan Meat Industry Board (the Board) is empowered to conduct and does in fact conduct a public abattoir at Homebush to which cattle, calves, pigs, sheep and lambs are brought by their owners to be slaughtered. In each of the present cases the plaintiff company carries on business as a wholesale butcher in the metropolitan abattoir area, an area which is defined by s. 6 of the Act to be the Country of Cumberland, and all its beasts are slaughtered for it by the Board at the Homebush abattoir which is the only slaughtering establishment in the area which is available to it. It appears that in the earlier stages of its activities the Board did not itself do the work of slaughtering at the abattoir. What it did was to make the abattoir premises and its facilities available to those who wished to slaughter their own beasts there. In more recent times, however, the Board has itself carried out the work of slaughtering and processing the carcases for wholesale butchers who bring their beasts to the abattoir. (at p411)

3. Section 13 of the Act imposes upon the Board the duty of managing and maintaining all public abattoirs and of doing all such things as may be expedient and in accordance with the Act to prevent diseased or unwholesome meat from passing into consumption in the metropolitan abattoir area. Section 14 (1) enables it to establish, maintain and conduct abattoirs and, by s. 14 (8) it may make such arrangements as it thinks fit with regard to the purchase, collection and disposal of offal or other matter, apply any manufacturing process thereto, convert it into a merchantable article and sell it. Section 15 empowers it to demand and collect "such dues, rates, fees, and charges as may be reasonable or as may be prescribed by by-laws" for the use of any of its property and for any services performed by it. Section 30 (1) (1) and (6) provide that:

"(1) The Board may make by-laws not inconsistent with this Act- (1) providing for the management and control of all public abattoirs . . . and for regulating and controlling the use of the same, and prescribing the terms and conditions upon which the same may be used, and for regulating the conduct of all persons using the same or resorting thereto, or slaughtering, buying, selling, or dealing therein; . . .

(6) providing for fixing, levying and collecting rents, fees, and charges for the use of or in connection with any public abattoir . . ."

By-law 11 (a) is in these terms:

"(a) In the case of bovine cattle, excepting calves, slaughtered at the public abattoir: - (i) The Board shall deliver to the owner the carcase, hide (unsalted), tongue, tail, skirt, kidneys, heart, and liver. (ii) All fat removed from the carcase shall become the property of the Board, for which no payment shall be made. (iii) The Board shall deliver to the owner such quantities of brains, and cheek meats as are required, upon payment of the cost of removal, collection, preparation, and delivery. (iv) All the heads, feet, and tail-tips shall become the property of the Board, for which no payment shall be made. (v) All casings, including weasands, bungs, middles, runners and bladders shall become the property of the Board, for which no payment shall be made. No person shall remove any casings from the public abattoir prior to such casings being treated in a manner satisfactory to the Board. (vi) All meat or offal other than that herein specified shall become the property of the Board, for which no payment shall be made."

I have italicized those parts of the by-law which purport to vest in the Board without payment property belonging to the owner of the slaughtered beast. By-law 11 (b) deals with calves, by-law 11 (c) with pigs and by-law 11 (d) with sheep and lambs and each paragraph follows the lines of par. (a) in providing that certain parts of the slaughtered beast "shall become the property of the Board, for which no payment shall be made". The evidence shows that many of these parts such as fat, tripes, sweetbreads and casings have a market value, which in the case of beasts slaughtered for the plaintiff C. J. Burland Pty. Limited is said to total some 26,000 pounds per annum. (at p412)

4. The attack upon the validity of the by-law was based upon the fact that it purports to deprive those who bring their beasts to the abattoir to be slaughtered by the Board of their property in parts of the slaughtered beast and vest that property in the Board without compensation and, so it is said, the Act contains no provision enabling such a by-law to be validly made. For the respondent Board, however, it was submitted that by-law 11 is a valid exercise of power. It was said that justification could be found for it in ss. 15 and 30 (1) (6) to which I have referred earlier and which enable the Board to demand, collect and receive dues, rates, fees and charges for the use of the abattoir and for services performed by it and to make by-laws accordingly. But that argument cannot, in my opinion, be sustained. The dues, rates, fees and charges of which those sections speak plainly refer only to monetary charges to be met by payment in cash and not in kind. It was also submitted that the by-law was supportable as being one "providing for the management and control" of the abattoir and "for regulating and controlling the use of the same, and prescribing the terms and conditions upon which the same may be used" within the meaning of s. 30 (1)(1). In support of this submission reliance was placed upon the decision of the majority of this Court (Knox C.J., Isaacs and Rich JJ., Higgins and Starke JJ. dissenting) in Jones v. Metropolitan Meat Industry Board (1925) 37 CLR 252 upholding the validity of a by-law (No. 24) which was a predecessor of the present by-law 11. The by-law there in question was made at a time when slaughtering at the abattoir was not done by the Board but by the wholesale butchers who brought their beasts there and used the Board's premises and facilities. It was headed "Disposal of Offal" and went on to provide, in the case of cattle, that:

"No offal shall be removed from the abattoir premises except as permitted by this By-law. The Board will take all sets of heads and feet, also tail-tips, and will pay for the same at a price to be fixed by the Board. The Board will permit the owner to take and remove from the Abattoir all tongues, tails, and hearts, also livers, cheeks, palates, and scrag meat, sufficient for butchers' retail trade requirements, if desired. The Board will take all kidney-fat which has been removed from any carcase, caul, rough fat, and gut-fat (except such caul-fat as the Board is satisfied the owner has sold for butchers' retail trade requirements, or to margarine manufacturers for the purposes of conversion into oleo-margarine), and pay for same at the current market rate, to be fixed by the Board immediately before the end of each month, such price to hold good during the month then ensuing. All stomachs intended for the production of tripes shall be cleaned and cooked in the Board's tripery by or for the owner. Steam and water and the necessary conveniences will be supplied at a charge of 6d. per tripe. All stomachs not treated for production of tripes shall become the property of the Board without payment for same. The Board will take all other offal without payment for same."

I have italicized those parts of the by-law which purport to have vested in the Board without payment property belonging to the owner of the slaughtered beast and a comparison of this by-law with by-law 11 shows that by-law 11 covers a field far wider than that to which by-law 24 extended. The provisions of by-law 24 which dealt with sheep, pigs and calves followed similar lines to those which dealt with cattle. (at p414)

5. Unlike the present cases, it appears from the report of Jones' Case (1925) 25 SR (NSW) 553 in the Supreme Court that evidence had been given in that case to the effect that the methods then used by butchers who carried out slaughtering operations at the abattoir were such that in some cases it was impossible and in others difficult for the owner of a slaughtered beast to identify the offal which came from that beast and that, in these circumstances, it was necessary, as a matter of hygiene and to prevent congestion, that the Board should dispose of the offal without delay. As it seems to me, it was in the light of these facts that Harvey C.J. in Eq. who heard the case in the Supreme Court upheld the validity of the by-law. His Honour said (1925) 25 SR (NSW), at p 559:

"In my opinion the Board has the full power to say what portion of the offal can, consistently with the hygienic dressing of meat, be properly segregated so as to be identified as the property of the owner of the beast from which it comes. It is also within its power to determine what parts of the offal consistently with the hygienic dressing of the meat shall be removed by the owner and what shall not. It is within its power to say what parts of the offal shall be paid for and what shall not by reason of the difficulty or expense of identification." (at p414)

6. In this Court Isaacs J., with whose reasons Knox C.J. and Rich J. agreed, was of opinion that the by-law was within power as being one for the "management and control" of the abattoir and for "regulating and controlling the use of the same, and prescribing the terms and conditions upon which the same may be used". But Higgins J., with whom Starke J. agreed, could find nothing in the Act which would authorize the making of a by-law the effect of which was to confiscate without payment the property of persons slaughtering their beasts at the abattoir. (at p415)

7. From what I have said it will be seen that by-law 11 goes much further in the way of the expropriation of property without compensation than did by-law 24 and that the earlier practice by which the owners of beasts did their own slaughtering at the abattoir has been abandoned. Nor have we before us any evidence of the kind which appears to have been given in Jones' Case (1925) 37 CLR 252 and which may, perhaps, have played some part in the decision of the majority in the High Court. It may be thought that, having regard to differences which I have mentioned between the materials which were before the Court in Jones' Case (1925) 37 CLR 252 and those which are now before us, the decision in the former case should be distinguished. But I myself feel - as did Street J. from whom these appeals are brought - that what was said by Isaacs J. (1925) 37 CLR at p 260 under the head of "prima facie authority", would, if applied to the present cases, result in the conclusion that by-law 11 is within the power to make by-laws providing for the management and control of the abattoir and the regulation and control of the abattoir and the regulation and control of its use. But with great respect to Isaacs J. and to those who agreed with him, I am unable to accept that view. (at p415)

8. In London and North Western Railway Co. v. Evans (1893) 1 Ch 16, at p 28, Bowen LJ said

". . . the legislature cannot fairly be supposed to intend, in the absence of clear words showing such intention, that one man's property shall be confiscated for the benefit of others, or of the public, without any compensation being provided for him in respect of what is taken compulsorily from him. Parliament . . . can, of course, override or disregard this ordinary principle . . . if it sees fit to do so, but it is not likely that it will be found disregarding it, without plain expressions of such a purpose." (at p415)

9. I can find no such purpose expressed or necessarily to be implied anywhere in the Act. Indeed it seems to me that s. 14 (8) provides a strong indication that the legislature did not have any such purpose in mind. (at p415)

10. I would allow the appeals. (at p415)

Orders

In each case, appeal allowed with costs. Order that the decretal orders of the Supreme Court of New South Wales, in so far as the same order that the suits be dismissed with costs, be set aside and in lieu thereof declare that by-law No. 11 of the by-laws relating to the public abattoir and the meat hall at Homebush Bay and the public saleyards at Flemington and Homebush Bay, published in the Government Gazette No. 1 of 8th January 1965, as amended by amendments to the said by-law published in the Government Gazette No. 41 of 12th March 1965, and the Government Gazette No. 43 of 29th April 1966, is ultra vires the respondent and is null and void.

In each case, order that the respondent pay the appellant's cost of suit.