Fish Board v Paradiso - [1956] HCA 60

FISH BOARD

COMPLAINANT; PARADISO

ON REMOVAL FROM A COURT OF PETTY SESSIONS OF

QUEENSLAND. 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), 8. 92-Judiciary Act 1903-1955 (No. 6 of 1903-No. 35 of 1955), 8. 40-The Fish Supply Management Acts 1935 to 1951 (Q.), 88. 27 (1), 27B.

Section 27 (1) of The Fish Supply Management Acts 1935 to 1951 (Q.) pro- vides: " 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

Held, by Dixon C.J., Williams, Webb, Fullagar, Kitto and Taylor JJ., McTiernan J. expressing no opinion, that the sub-section, in so far as it pur- ports to prevent a purchaser of fish in the course of inter-State trade from dealing with it upon its delivery to him in Queensland otherwise than by placing it at the disposal of the board, has an immediate and direct impact upon inter-State trade and constitutes an infringement of S. 92 of the Con- stitution by McTiernan J. that the sub-section is not intended to apply to

REMOVAL under S. 40 of the Judiciary Act 1903-1955:

Upon a complaint made under S. 27 (1) of The Fish Supply Management Acts 1935 to 1951 (Q.) by the Fish Board by David Herbert Pluckrose, its secretary, Sam Paradiso was charged before the Court of Petty Sessions, Brisbane, that on 29th February 1956, at Kedron, Brisbane, he did in the Metropolitan Fish Supply District

95 CLR 444

OF A. sell fish, such fish not having first been brought to a market in that

district and there sold at a sale conducted by the board, contrary to the said Acts. The defendant pleaded not guilty.

At the close of the defendant's case the further hearing of the charge was adjourned to a date to be fixed, whereupon the defendant applied on motion to the High Court for and obtained an order pursuant to S. 40 of the Judiciary Act 1903-1955 removing the cause into the High Court, upon the ground that such cause involved the interpretation of the Constitution of the Commonwealth and in particular S. 92 thereof.

The relevant facts and statutory provisions are sufficiently set forth in the judgments of the Court hereunder.

C. G. Wanstall Q.C. (with him M. B. Hoare), for the defendant. The statutory scheme disclosed by SS. 27, 27A and 27B of The Fish Supply Management Acts 1935 to 1951 infringes S. 92 of the Constitution by imposing a burden which, although prima facie imposed in relation to an act of intra-State trade, has the necessary effect qua the importer of rendering his freedom completely illusory. Section 27 takes…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Fish Board v Paradiso

Details

AGLC: Fish Board v Paradiso [1956] HCA 60
Case: [1956] HCA 60
Decision Date: 15 October 1956

CaseChat Overview and Summary

The case of *Fish Board v Paradiso* involved a complaint laid by the Fish Board against Sam Paradiso for selling fish in Queensland without it first being brought to a market and sold under the direction of the Board, contrary to section 27(1) of *The Fish Supply Management Acts 1935 to 1951* (Q.). The matter was removed into the High Court of Australia on the grounds that it involved the interpretation of section 92 of the Commonwealth Constitution, which guarantees freedom of trade, commerce, and intercourse among the States. Paradiso, the defendant, was a retail fish shop proprietor who had purchased fish from a New South Wales supplier, which was then transported to Queensland and delivered to him.

The High Court was required to determine whether section 27(1) of the Queensland Act, by requiring fish to be sold at a Board-conducted market before being sold by a retailer, infringed section 92 of the Constitution. Specifically, the Court had to consider whether the provision imposed a burden on inter-State trade by preventing a purchaser of fish in the course of inter-State commerce from dealing with it upon its delivery in Queensland, other than by placing it at the disposal of the Board.

A majority of the Court, comprising Dixon C.J., Williams, Webb, Fullagar, Kitto, and Taylor JJ., held that section 27(1) of the Queensland Act, in its application to fish brought into Queensland in the course of inter-State trade, had an immediate and direct impact upon that trade. The Court reasoned that the provision, by compelling the purchaser to place their property at the disposition of the Board for sale, effectively prohibited the retailer from selling the fish unless it first went through the Board's market. This restriction, regardless of whether it was framed as a prohibition or a conditional liberty, was found to constitute an infringement of section 92 of the Constitution. McTiernan J., however, expressed no opinion on the constitutional question, finding that the relevant section of the Act was not intended to apply to fish from external sources and therefore the prosecution should fail on that basis.

The High Court ordered that the complaint be dismissed and that the costs of the defendant in both the court of petty sessions and the High Court be paid by the complainant Board.

Orders