Field Peas Marketing Board (Tas) v Clements and Marshall Pty Ltd

The parties to this appeal were the Field Peas Marketing Board (Tas) as the appellant and Clements and Marshall Pty Ltd as the respondent. The dispute concerned the validity of the Tasmanian Marketing of Primary Products (Field Peas) Act 1946-1947, which established a marketing board for field peas. The respondent company sought an interlocutory injunction to restrain the Board from obstructing its contracts for the purchase of field peas from growers and their subsequent sale to merchants in other States. The appeal was heard by the Full Court of the High Court.

The primary legal issue before the Court was whether the Tasmanian legislation, which divested field peas from growers and vested them in the Board, and declared contracts for their sale void, contravened Section 92 of the Commonwealth Constitution, which guarantees freedom of inter-State trade, commerce, and intercourse. A further issue arose regarding the effect of a specific provision within the legislation that stated nothing in the Act should interfere with the operation of Section 92. The Court was also required to determine the appropriate course of action given that it was equally divided in its opinion on the constitutional question.

The Court was constituted by four Justices, with Latham C.J. and McTiernan J. forming one view, and Starke J. and Dixon J. forming differing views. Latham C.J. and McTiernan J. considered that the case involved a question affecting the constitutional powers of the Commonwealth, and therefore, pursuant to Section 23(1) of the Judiciary Act 1903-1947, a decision could only be given if at least three Justices concurred. As this condition was not met, they proposed refraining from giving a decision on the constitutional question and dismissing the appeal. Starke J. was of the opinion that the case should be remitted to the primary judge. Dixon J. held that the provisions of the Field Peas Act contravened Section 92 of the Constitution and that the decision of the primary judge was correct.

Ultimately, the Court ordered that the appeal be dismissed. This outcome meant that the interlocutory injunction granted by Williams J. was to stand. The appellants were ordered to pay the costs of the appeal.