Grannall v C Geo Kellaway & Sons Pty Ltd

The case of *Grannall v C Geo Kellaway & Sons Pty Ltd* involved an information laid against C Geo Kellaway & Sons Pty Ltd (the defendant company) for contravening section 23 of the *Farm Produce Agents Act 1926-1952* (NSW). The defendant company, a registered farm produce agent, was charged with exceeding the prescribed commission for the sale of 144 cases of apples consigned from Tasmania. The commission charged was 10 per cent, whereas the prescribed rate for fruit was 7.5 per cent. The matter was removed from the Court of Petty Sessions, Sydney, to the High Court of Australia.

The primary legal issue before the High Court was whether the provisions of section 23(1)(a) of the *Farm Produce Agents Act* and regulation 10(1)(a) thereunder, which restricted the commission chargeable by farm produce agents, were invalid as contravening section 92 of the Australian Constitution. Specifically, the court had to determine if these restrictions impaired the freedom of inter-State trade and commerce, either for the grower who consigned the produce or for the agent who sold it. A secondary issue arose regarding the territorial element of the offence, namely whether the alleged contravention occurred within New South Wales.

The Court reasoned that while the *Farm Produce Agents Act* regulated the conduct of agents and imposed limitations on their remuneration, there was insufficient evidence to conclude that these restrictions necessarily impaired the freedom of inter-State commerce. The sale of the apples was considered a transaction that likely formed part of the domestic trade of New South Wales, rather than being inseparably connected with the inter-State transportation. Therefore, the restrictions on commission did not fall under the protection of section 92 of the Constitution. However, the Court identified a critical issue concerning the location of the offence. It found that the evidence did not establish that the act of "charging" the commission occurred within New South Wales, as required by section 17 of the *Interpretation Act 1897* (NSW). The communication of the charge, likely through account sales and a cheque, was not shown to have been completed within the state.

Consequently, the High Court ordered that the information be dismissed. This outcome was based on the finding that the essential element of the offence, the charging of commission, had not been proven to have occurred within New South Wales, irrespective of the constitutional validity arguments.