James v The Commonwealth - [1928] HCA 45

41 CLR 442

THE COMMONWEALTH OF AUSTRALIA

DEFENDANTS.

AND OTHERS Constitutional Law-Freedom of inter-State trade and commerce-Licences to be

granted by prescribed authority " of four States-No prescribed authority' for two States-Limitation of quantity of dried fruits which may be carried from SYDNEY,

one State into another State-Discrimination-Preference given to one State Nov. 29;

over another State-Regulations ultra vires-Use by Commonwealth of State Dec. 12.

instrumentalities-The Constitution (63 &64 Vict. c. 12), secs. 92, 99, 117-- Dried Fruits Act 1928 (No. 11 of 1928)-Dried Fruits Acts 1924-1927 (S.A.) (No. 1657-No. 1835)-Dried Fruits (Inter-State Trade) Regulations 1928 (Statutory Rules 1928, No. 91).

The validity of a Federal Act or of regulations made thereunder cannot be attacked on the ground of interference with freedom of inter-State trade and commerce sec. 92 of the Constitution protects inter-State trade against State interference, but does not affect the legislative power of the Commonwealth.

W. &A. McArthur Ltd. v. Queensland, (1920) 28 C.L.R. 530, followed.

41 CLR 443

The Dried Fruits Act 1928 provides that dried fruits shall not be delivered for carriage or carried from one State into another State unless a licence has been issued under the Act permitting such carriage, and " prescribed authorities " are the only persons authorized by the Act to issue such licences. By virtue of sec. 9 of the Acts Interpretation Act 1904 prescribed " means prescribed by the Act or by regulations made under it. No prescription of any authorities is made by the Act, but clause 2 of the Dried Fruits (Inter-State Trade) Regulations 1928 states that " ' prescribed authority means the Dried Fruits Board of the State of Victoria, New South Wales, South Australia or Western Australia, as the case may be, constituted by the Dried Fruits Acts of the respective States." No authority is prescribed for the State of Queensland or the State of Tasmania. By clause 4 of the Regulations licences can only be obtained from the prescribed authority of the State in which the dried fruits are delivered for carriage into another State.

Held, that the Dried Fruits Act 1928 does not give preference to one State over another State, but that the Regulations made thereunder do and are therefore invalid as being obnoxious to sec. 99 of the Constitution. DEMURRER.

Frederick Alexander James brought an action in the High Court against the Commonwealth of Australia and H. C. Brown, William Newman Twiss, the Adelaide Steamship Co. Ltd. and Howard Smith Ltd., in which the statement of claim was substantially as follows

1. The plaintiff is a fruit merchant residing and carrying on business at Berri in the State of South Australia and has carried on the like business at Berri and formerly at Adelaide in the said State for a considerable number of years.

2. The defendant Brown is and was at all times material the secretary of the Department of Markets of the Commonwealth of Australia, the Department of the Commonwealth which administers an Act of the Parliament of…

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 James v The Commonwealth

Details

AGLC: James v The Commonwealth [1928] HCA 45
Case: [1928] HCA 45
Decision Date: 12 December 1928

CaseChat Overview and Summary

Frederick Alexander James, a dried fruit merchant, brought an action in the High Court against the Commonwealth of Australia and other parties, including shipping companies. James sought declarations that the Dried Fruits Act 1928 and the Dried Fruits (Inter-State Trade) Regulations 1928 were invalid. He argued that these laws unlawfully interfered with his business by imposing licensing requirements and quotas on the inter-State carriage of dried fruits, preventing him from fulfilling his contracts. The Commonwealth and one of its officers demurred to the statement of claim, asserting the validity of the Act and Regulations.

The central legal issues before the High Court were whether the Dried Fruits Act 1928 and its accompanying Regulations contravened sections 92 and 99 of the Australian Constitution. Specifically, the court had to determine if the Act and Regulations unduly restricted inter-State trade and commerce, and if they gave an unlawful preference to one State over another. The plaintiff also raised arguments concerning the delegation of legislative power and potential contraventions of section 117 of the Constitution, though the latter was not a primary focus of the court's determination.

The High Court, in a joint judgment by Knox C.J. and Powers J., held that section 92 of the Constitution, as interpreted in previous cases, primarily protected inter-State trade from State interference and did not invalidate Commonwealth legislation. However, they found that the Dried Fruits (Inter-State Trade) Regulations, by defining "prescribed authority" to include only the Dried Fruits Boards of Victoria, New South Wales, South Australia, and Western Australia, and by requiring licences to be obtained from the prescribed authority of the State of delivery, effectively precluded owners of dried fruits in Queensland and Tasmania from obtaining licences. This absence of a prescribed authority for Queensland and Tasmania, while such authorities existed for other States, constituted a preference to some States over others, rendering the Regulations invalid under section 99 of the Constitution. Higgins J. concurred with this reasoning regarding section 99, finding that the Regulations created a preference, although he considered the Act itself to be valid.

The Court's decision was that the demurrer should be overruled. While the Dried Fruits Act 1928 was not found to be invalid, the Dried Fruits (Inter-State Trade) Regulations 1928 were declared to be invalid as they contravened section 99 of the Constitution by giving preference to certain States over others.

Orders