Foggitt, Jones and Company Limited v New South Wales

In Foggitt, Jones and Company Limited v The State of New South Wales, the plaintiffs, a company incorporated in Queensland, sought an injunction to restrain the State of New South Wales and its officers from preventing them from purchasing pigs in New South Wales and transporting them to Queensland. The State had refused to supply railway trucks for this purpose, acting on the instructions of the Attorney-General, who asserted the right to prevent such export. The matter came before the High Court of Australia on a motion for an interim injunction, which by consent was treated as a motion for a decree.

The central legal issue before the High Court was whether section 5(1) of the Meat Supply for Imperial Uses Act 1915 (NSW) was a valid exercise of State legislative power, or if it infringed section 92 of the Australian Constitution, which guarantees freedom of inter-State trade, commerce, and intercourse. Specifically, the Court had to determine if the Act, by declaring all stock and meat in New South Wales to be subject to its provisions and to be held for the disposal of the Imperial Government, effectively prevented the export of such goods by their owners to another State, thereby contravening section 92.

The majority of the High Court, comprising Griffith C.J., Barton, Isaacs, and Rich JJ., held that section 5(1) of the Act, in so far as it purported to authorise the Government of New South Wales to prevent the export of stock by owners from that State to another State, constituted an interference with inter-State trade and commerce and was therefore invalid as an infringement of section 92 of the Constitution. The Court reasoned that section 92 secures to owners the right to transport their chattels across State borders without interference. While the Act did not, on its face, transfer ownership of the stock, it effectively prohibited owners from exercising their right to dispose of their property through inter-State trade, which was an impermissible restraint under section 92. Gavan Duffy J. expressed doubt as to whether the plaintiffs were entitled to the declaration sought.

By declaration, the High Court ordered that the State of New South Wales and the Attorney-General were not authorised to prevent, interfere with, or impede the export by the plaintiffs of their stock from New South Wales to Queensland. Further consideration of the matter was reserved, and an inquiry as to damages was ordered. The defendants were ordered to pay the costs of the action and the motion.