Lawry v West - [1947] HCA 5

LAWRY AND OTHERS

APPELLANTS; DEFENDANTS, WEST

RESPONDENT. INFORMANT, Public Health-Sale of "adulterated" food-Taking of samples for analysis - Neces-

sity that sample represent whole bulk-Supply of milk in bulk-Mill carried in cans for delivery-Samples not taken from all cans- Sale to health inspector- Health Act 1928-1935 (Vict.) (No. 3697-No. 4333), 88. 215, 216 (c), 247 (1), (4).

Section 247 of the Health Act 1928-1935 (Vict.) provided :- " (1) Any authorized officer-(a) (on payment or tender to any person preparing making manufacturing or dealing in any food drug or substance or to his agent or servant of the current market value thereof or of the rate prescribed) may at any place of preparation making manufacture sale or delivery or at any place in course of delivery or at any premises whatsoever demand and procure such samples as are required for the purposes of this Act.

(4) The procuring of any sample pursuant to this section and the payment or tender of the current market value thereof or of the rate pre- scribed (as the case may be) shall for all purposes of this Act be deemed to be a sale by such first-mentioned person or his agent or servant (as the case may be) to such officer of the food drug or substance contained in the sample."

The defendants carried on business as dairy farmers, supplying milk in bulk to distributors but not selling it by retail. Pursuant to a general contract for the daily delivery of not less than fifty gallons to a milk-distributing com- pany, the defendants consigned eight 12-gallon cans of milk to the company on a lorry owned by them and driven by one of them. An authorized officer under the Health Act stopped the lorry in a street and took one pint of milk from each of five of the eight cans, paying the driver the "current market value thereof." Each pint taken was found on analysis to be below the standard for fatty solids prescribed under the Act. The officer charged the defendants

73 CLR 290

with a breach of S. 215 of the Act in that they sold milk which (by reason of S. 216 (c) ) was 'adulterated ' inasmuch as it did not comply with the standard prescribed under the Act. He relied on the taking of each or all of the five pints as constituting a "sale" to him within S. 247 (4) and on the deficiency in each or all as establishing the offence charged. Evidence was given that the defen- dants' COWS were first machine-milked and then "stripped " by hand the milk from the machines was carried into vats and then run into cans, and the stripped milk was also put in the cans; the stripped milk would have a higher milk-fat content, and, unless it was equally distributed among the cans, some might be below and others above the prescribed standard. The magistrate before whom the charge was heard dismissed the information, being…

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.

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Details

Case: [1947] HCA 5
Decision Date: 2 April 1947

CaseChat Overview and Summary

The appellants, dairy farmers, were charged with selling adulterated milk contrary to section 215 of the *Health Act 1928* (Vic.). The informant, a health inspector, had stopped a lorry carrying eight cans of milk consigned by the appellants to a distributor. The inspector took a one-pint sample from each of five of these cans, paying the driver the market value. Analysis revealed these samples were deficient in fatty solids, failing to meet the prescribed standard. The appellants argued that these samples did not represent the bulk of the milk being sold, particularly as the milk was a mixture of machine-milked and hand-stripped milk, with the latter having a higher fat content. The magistrate dismissed the information, finding that the samples should have been taken from all eight cans, or the milk bulked, to be representative. The Supreme Court of Victoria overturned this decision, but the appellants appealed to the High Court.

The central legal issue before the High Court was whether the samples procured by the health inspector were taken in accordance with section 247 of the *Health Act 1928* (Vic.), and consequently, whether the procuring of these samples constituted a "sale" for the purposes of the Act under section 247(4). Specifically, the court had to determine if the samples taken from only five of the eight cans adequately represented the bulk of the milk being dealt with by the appellants, and if not, whether section 247(4) could operate to deem the procuring of such inadequate samples as a sale.

The High Court held that the magistrate had correctly decided that section 247 had not been complied with. The court reasoned that the term "sample" inherently implies a representative portion of a larger bulk. Given the evidence that the milk was a mixture of machine-milked and hand-stripped milk, and that the distribution of the higher-fat stripped milk might not have been uniform across all eight cans, taking samples from only five cans was insufficient to establish that the entire consignment of milk was adulterated. As the procuring of the samples was not done in accordance with the requirements of section 247(1) – that is, as a representative sample of the bulk being dealt with – the deeming provision in section 247(4) did not operate to create a statutory sale. Therefore, no sale of adulterated food was proven.

The High Court allowed the appeal, set aside the order of the Supreme Court, and discharged the order nisi, thereby restoring the magistrate's decision to dismiss the information.

Orders