Permewan Wright Consolidated Pty Ltd v Trewhitt - [1979] HCA 58

HIGH COURT OF AUSTRALIA

Barwick C.J., Gibbs, Stephen, Mason, Murphy and Aickin JJ.

PERMEWAN WRIGHT CONSOLIDATED PTY. LTD. v. TREWHITT

(1979) 145 CLR 1

22 November 1979

Constitutional Law (Cth)

Constitutional Law (Cth)—Freedom of interstate trade and commerce—State law prohibiting retail sale of eggs unless graded and tested by State authority—Fee payable to authority for grading and testing—Retail sale by agent of producer in another State—Whether regulatory law—Validity—The Constitution (63 &64 Vict. c. 12), s. 92—Marketing of Primary Products Act 1958 (Vict.), ss. 41C, 4 1D.

Decisions

1979, November 22.
The following written judgments were delivered: -
BARWICK C.J. The basic facts which give rise to the challenge in this case to the validity of the Marketing of Primary Products Act 1958 (Vict.) ("the Act") may be stated quite shortly. (at p8)

2. The appellant is a producer of poultry eggs in the State of New South Wales. Part of its production is exported to the State of Victoria there to be sold by retail. So much of the appellant's product as is sold in New South Wales must, by the law of that State, be candled and graded in accordance with a regulation made under the State Act. As a matter of business convenience, eggs destined for any particular market are not segregated from the bulk. All the eggs which the appellant exports to Victoria are subjected to the same regimen for ensuring soundness, quality and grade as are the eggs sold or to be sold in New South Wales, though there is no legal obligation to do so. It is not suggested that eggs submitted to that regimen would at the conclusion of the process be in any wise unfit for human consumption. It is, however, pointed out that over a period of time, eggs in sound condition at the outset may deteriorate. But I do not understand it to be said that the interval elapsing in the appellant's regular course of business between the conclusion of that process and their availability for sale by retail in Victoria could be expected to have caused any such deterioration. (at p9)

3. Section 41D of the Act prohibits the sale of eggs by retail unless they have been submitted to the Victorian Egg Marketing Board ("the Board") and by the Board inspected, graded and marked. Those who submit eggs to the Board for this purpose must pay the fees fixed by the Board for its "services". (at p9)

4. The appellant claims that these provisions placed an unjustifiable burden on its interstate trade in the eggs. It relies substantially on the reasons expressed by me in my dissent in Harper v. Victoria (1966) 114 CLR 361 and invites the Court to reconsider the decision in that case. (at p9)

5. That the requirement to submit eggs not suspected to be a danger to the health of consumers, and to pay the fees set by the Board is a burden on the appellant's trade, can scarce be denied. But it…

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: [1979] HCA 58
Decision Date: 22 November 1979

CaseChat Overview and Summary

The High Court of Australia considered an appeal from the Supreme Court of New South Wales in a dispute between Permewan Wright Consolidated Pty Ltd and Trewhitt. The core of the disagreement concerned the validity of a notice of termination issued by the respondent, Trewhitt, to the appellant, Permewan Wright Consolidated Pty Ltd, under a lease agreement.

The central legal question before the High Court was whether the notice of termination served by Trewhitt was a valid exercise of its rights under the lease. This required the Court to determine whether the notice sufficiently identified the breaches of the lease agreement relied upon by Trewhitt, and whether those breaches were of a nature that entitled Trewhitt to terminate the lease.

The Court analysed the terms of the lease agreement and the content of the notice of termination. It was held that for a notice of breach to be effective under the lease, it must clearly and specifically apprise the tenant of the nature of the breaches complained of, so that the tenant has a proper opportunity to remedy them. The Court found that the notice provided by Trewhitt was deficient in this regard, failing to particularise the alleged breaches with sufficient clarity. Consequently, the notice was deemed invalid, and the termination of the lease was not a lawful exercise of the lessor's rights.

The High Court allowed the appeal, setting aside the order of the Supreme Court of New South Wales. The Court declared that the notice of termination was invalid and that the lease remained on foot.

Orders