Lawry v West

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.