Rogers v Jordan

[1965] HCA 25

HIGH COURT OF AUSTRALIA

Barwick C.J., Kitto, Taylor, Menzies, Windeyer and Owen JJ.

ROGERS v. JORDAN

(1965) 112 CLR 580

4 May 1965

Constitutional Law (Cth)—Marketing of Primary Products

Constitutional Law (Cth)—Freedom of inter-State trade—Whether burden involved in obligation to answer inquiries relating to goods brought from another State-Marketing of Primary Products Act 1958 (Vict.), s. 43*—The Constitution (63 &64 Vict. c. 12), s. 92. Marketing of Primary Products—"In the execution of this Act"—"As he thinks necessary"—Failure to answer inquiry—Whether inquiry authorized—Marketing of Primary Products Act 1958 (Vict.), s. 43*.

Decisions

May 4.
The following written judgments were delivered:-
BARWICK C.J. The appellant was charged before a Court of Petty Sessions in the State of Victoria with "having refused to answer an enquiry as to a matter within his knowledge relating to eggs, which was made of him by the informant, the person duly authorized by the Egg and Egg Pulp Marketing Board in that behalf, and acting in the execution of the Marketing of Primary Products Act 1958 contrary to the provisions of s. 43 of the said Act." (at p584)

2. The appellant was both a producer of eggs in Victoria and an importer of eggs from New South Wales. Eggs produced by him, or by a partnership of which he was a member, in Victoria, were sold and transported into New South Wales. Eggs which the appellant purchased and received from New South Wales were all kept physically distinct from any eggs which he, or the partnership of which he was a member, produced in Victoria. The eggs which the appellant derived from New South Wales he sold in Victoria. (at p584)

3. The informant, the now respondent, was an officer of the Egg and Egg Pulp Marketing Board (the Board) set up under the Marketing of Primary Products Act 1958 (the Act). He had a general authority given to him by the Board, inter alia, "in the execution of the Act, to make such enquiries as he thought necessary relating to any eggs or egg pulp". Having had some conversation with the appellant in which the circumstances under which the appellant obtained eggs from New South Wales were discussed, the respondent on the day in respect of which the appellant was charged put the following question to him: "To whom do you sell the eggs which you purchased from inter-State sources already mentioned by you to-day?" This was the form of the question which the magistrate found to have been put to the appellant. The form in which the question had been particularized by the prosecutor at the outset of the hearing of the charge was "To whom do you sell the eggs which you say you received from inter-State and various persons?" Having regard to the particulars, the magistrate's finding and the evidence given by the respondent in chief and in cross-examination, it must be taken, in my opinion, that the question put by the respondent in form and in substance sought of the appellant the identity of those of the appellant's customers to whom he ordinarily sold eggs which he procured from inter-State sources. The enquiry was not as to any specific shipment, parcel, quantity or quality of eggs. (at p584)

4. The appellant's refusal to answer this question resulted in his conviction upon the charge which I have set out. The appellant appealed to this Court by virtue of s. 39 (2) (b) of the Judiciary Act 1902-1960 (Cth) against this conviction. (at p585)

5. Section 43 (1) (d) and (2) of the Act, which is claimed to be the source of the respondent's authority to make the enquiry which he did make of the appellant and of the appellant's obligation to answer it, is in the following terms: "43 (1) In the execution of this Act any person authorized by the Board in that behalf whether generally or in any particular case may at any time - (d) make such inquiries as he thinks necessary relating to any eggs or egg pulp. (2) Any person who - (b) fails or refuses to . . . . answer any such inquiries as to any matters within his knowledge . . . shall be guilty of an offence against this Act". (at p585)

6. Arguments were presented to this Court by the appellant submitting that the provisions of s. 43 (1) (d) and (2) of the Act were either inapplicable to any eggs which were derived by the appellant from inter-State sources or, alternatively, that the insistence upon an answer as to how such eggs were disposed of was a burden on the inter-State trade of the appellant in such eggs: and that in either case s. 92 of the Constitution prevented the conviction of the appellant. The Court did not find it necessary to call upon the respondent in respect of these submissions being of opinion that they were without substance. (at p585)

7. However, the appellant also submitted that the question which was asked of him was not a question which he was required by s. 43 to answer. It was said in the first place that the enquiry constituted by the question was not in substance an enquiry as to any eggs but was really an enquiry as to the identity of the customers of the plaintiff's business. In the second place, it was said that the informant had no authority under the Act to ask the question so as to compel an answer because there was no purpose of the Act which either could be or be thought to be, or was in fact thought to be, served by the informant when making the enquiry. (at p585)

8. Whatever the function of the opening words of s. 43, "In the execution of this Act", it is clear that the person authorized by the Board in that behalf may at best only make such enquiries "as he thinks necessary" relating to any eggs. This, to my mind, does not mean that he can ask any question at all so long as it can be said to relate to eggs. Such a construction would give the authorized person an unlimited charter and subject the citizen to the possibility of oppressive and irrelevant questioning without remedy. It would indeed go far beyond the exigencies of the situation with which the statute deals. The Court, in my opinion, should not give such a construction to a statute unless no other construction is open to it. The exaction of answers from citizens under threat of prosecution for failure or refusal to make them is a serious inroad upon the liberty of the subject. Legislative processes which seek to give power to compel information should, in my opinion, be strictly construed, and their terms, as so construed, fully satisfied, if a prosecution under them is to succeed. Cf. Smith v. Barkley (1943) 170 LT 23 . (at p586)

9. Having regard to the terms of the section, there must, in my opinion, be some purpose for or in relation to which the questions must be thought to be necessary. For what purpose or to what end are they to be thought to be necessary? It seems to me that they must be thought to be necessary for the purposes of the Act; s. 43 is an ancillary provision to enable the Act to be effective and its purposes to be achieved. (at p586)

10. Assuming that the words "in the execution of this Act" are satisfied by the mere circumstance that the interrogator is acting as an official in purported pursuance of the authority given him by the Board - an assumption the validity of which I doubt - the presence of the word "necessary" in par. (d), in my opinion, thus limits the enquiries which can properly be made to such as could be, and are in fact, thought by the authorized person who makes them to be necessary for the purposes of the Act. If the enquiry could be thought to be necessary for that purpose in the circumstances in which it is made, then the question whether the enquiry should be made is in the discretion of the authorized person if he does think that they are necessary for that purpose. But if they cannot be thought to be necessary for the purposes of the Act, then it seems to me that the enquiries are not authorized, the citizen is not required to answer them, and cannot be convicted for refusing to do so. (at p586)

11. No doubt, in some instances, the fact that the authorized person has made an enquiry, having regard to its nature, may sufficiently evidence the fact that he did think it necessary for the purposes of the Act. But in other instances some evidence will be necessary to establish that the interrogator has held the view that the enquiry is necessary for the purposes of the Act. (at p586)

12. It is now convenient to consider what are the purposes of this Act. In Shanahan v. Scott (1957) 96 CLR 245 this Court examined the provisions of the Act and the majority of the Justices participating concluded that "in essence the legislation is for the collective marketing of agricultural pastoral and rural products of the State of Victoria" (1957) 96 CLR, at p 254 , the emphasis being on the marketing of the producers' products in contradistinction to the total regulation of the sale and distribution of these products in Victoria: see (1957) 96 CLR, at pp 250-252, 254 . With respect, I agree with their Honours' analysis of the Act and the conclusions they drew from it as to the scope of a marketing board's functions. (at p587)

13. It is clear from an examination of the Act, as the Court concluded in that case, that the Board has no general function to supervise the distribution of eggs in Victoria. Such concern as the Act exhibits for that matter is restricted to the setting up of committees pursuant to s. 16. These committees are not given any powers of compelling information from citizens. The Board is concerned with the disposal of the eggs vested in or delivered to it. Subject to the opening sentences of s. 20 (1) and the exercise of the powers under s. 20 (1) (c), it is saddled with the duty of obtaining for the producers who provided such eggs the best available price. Those parts of s. 20 (1) were held in Shanahan v. Scott (1957) 96 CLR 245 not to confer any independent powers (1957) 96 CLR, at p 252 . The purpose of the Act therefore is no more than the provision of machinery for and the collective marketing of eggs produced in Victoria. (at p587)

14. By dint of the provisions of the Commonwealth Constitution, the Board is placed in a competitive position in selling its eggs: it cannot be given a monopoly of selling eggs in Victoria. No doubt it would be a prudent step in competitive marketing to ascertain the extent of the demand for eggs in the State or in localities of it and the extent to which that demand is being met. But the obtaining of that information cannot, in my opinion, be said to be embraced in the purposes of the Act. If Parliament meant to arm the Board with powers compulsorily to obtain such information from its competitors, information the disclosure of which may be destructive of the competitors' business, much clearer and more substantial powers would, in my opinion, need to be given than are to be found in the ancillary provisions of s. 43. (at p587)

15. I cannot discern merely from the nature and circumstances of the enquiry made of the appellant by the prosecutor any purpose of the Act for which the enquiry which was made of the appellant could be thought to be necessary. It was at one stage of the argument suggested that the enquiry might have been made as a means of checking or placing the prosecutor in a position to check the statements of the appellant as to his purchase of specific parcels of eggs from New South Wales, as a means of ensuring that all the eggs which were vested in the Board were delivered to it. But the prosecutor's question was not directed towards verifying or testing any information that had already been given by the appellant: and, in any case, was not concerned with the identity, or disposal, of any specific parcel or parcels of eggs. (at p588)

16. Thus the relationship, if any, between the enquiry and the purposes of the Act does not appear from the nature of the enquiry or from the circumstances in which it was made. The matter cannot be left to the speculation of the Court which, in my opinion, could not uphold the questioning and the resultant conviction merely because it can conceive some possible connexion between the enquiry and the purposes of the Act whether or not such relationship did in fact exist. The relationship not appearing ex facie, it must be shown by evidence. (at p588)

17. The only evidence given before the magistrate as to the purpose of the enquiry was that the prosecutor had instructions from the Egg Board to ask the question and that the purpose of asking the question was that he would know to whom the Egg Board's competitor was selling his eggs. (at p588)

18. In my opinion, this evidence does not establish that the question could be thought to be necessary for the purposes of the Act or that it was in fact thought to be necessary for that purpose; on the contrary, it indicates that the purpose of the question was not a purpose of the Act. (at p588)

19. In my opinion, the question asked in this case was not authorized by the Act and the appellant was not bound to answer it. (at p588)

20. The appeal should be allowed and the conviction quashed. (at p588)

KITTO J. I have had the advantage of reading the judgment prepared by my brother Owen, and I agree in it. (at p588)

2. There is, I think, a limitation to be recognized at each of the two points in s. 43 (1) (d) at which a power is conferred; for not only is the provision as a whole qualified by the introductory words "in the execution of this Act" but it is a general principle of statutory interpretation that, where it can be seen upon consideration of the subject-matter, the nature and the terms of a provision creating a power that the power exists only for the purposes of the enactment, the power is prima facie exercisable only for those purposes. By s. 43 (1) (d) the Board is empowered to give a certain authority to a person, and the giving of the authority in turn confers a power on that person to subject another to a legal obligation by making an inquiry of him. When the provision is regarded in the context of the whole Act the conclusion is, I think, inevitable that the two powers exist only for the better effectuation of the purposes of the Act. Accordingly I should think it clear, first, that an authorization by the Board to a person to make an inquiry cannot have effect under the section unless given by the Board in good faith for the purpose of assisting in the carrying of the Act into execution, and, secondly, that the making of an inquiry by a person authorized by the Board to make it cannot have effect under the section unless the person making it thinks the inquiry necessary, in the sense that in good faith he considers that he ought to make it because of a tendency which the answer may have to assist in the carrying of the Act into execution. Where these conditions are satisfied the inquiry is, in my opinion, made "in the execution of this Act". So long as the Board and the authorized person act in good faith in the manner described, the section sets no limit to the inquiries that must be answered, save that they must relate to eggs or egg pulp. (at p589)

3. There is nothing in the present case to justify a doubt that either the Board or the authorized person acted in good faith for the purposes of the Act, unless it be correct to say, as the appellant suggests, that the inquiry made of the appellant was inherently incapable of eliciting, and therefore could not have been authorized or made with a view to eliciting, an answer tending to assist in the execution of the Act. It seems sufficient to point to the purpose which is apt to be served by any inquiry made by a seller of goods as to the identity of his competitor's customers. If the Board could learn who the appellant's customers were it might endeavour by any means in its power to persuade them to change their supplier. Counsel for the appellant suggested, indeed he complained, that that was in fact the Board's purpose. We are not required to speculate as to whether it was or was not. Still less are we required to decide whether the suggested purpose should on the one hand be criticized as incompatible with the high standards of conduct normally to be expected of such a body as the Board, or should on the other hand be regarded as justifiable on the ground that a competitor who uses s. 92 of the Constitution in the way in which the appellant uses it invites total war. What matters for the resolution of the case before us is not any conclusion on a question of fairness or unfairness but simply the fact that the inquiry that was made of the appellant was manifestly capable of producing an answer tending to assist the Board to market more successfully the eggs produced in Victoria which it has the statutory duty of marketing. In view of that fact there arose, I think, from the prosecution's evidence as a whole a prima facie presumption of regularity sufficient to support a conclusion that the Board and the officer who made the inquiry acted for the purposes of the Act and not otherwise. There being nothing in the case to rebut that presumption, I am of opinion that the appellant was rightly convicted. (at p590)

4. I would dismiss the appeal. (at p590)

TAYLOR J. I agree generally with the reasons and conclusions expressed by my brother Owen which I have had the opportunity of considering. However, as there is a difference of opinion concerning some of the comparatively minor matters which were the subject of argument on the appeal I propose to make some brief observations with respect to them. (at p590)

2. The first of these is the significance, in its context, of the expression which introduces the provisions of s. 43 (1) of the Marketing of Primary Products Act 1958 (Vict.) - "In the execution of this Act". Upon this phrase the appellant based an independent argument which asserted that it rested upon the prosecution to establish affirmatively that the inquiry which was directed to him was made in the execution of the Act. But I do not regard the phrase as importing any qualification of the various powers which the section confers beyond that which, in the absence of the phrase, would necessarily arise by implication from a consideration of the scope and object of the Act. This means that even if the phrase did not appear in the section the powers conferred by it could be properly exercised only if exercised in good faith for a purpose associated with the due administration of the Act. If, however, it appears that the powers have been exercised by a duly authorized person in circumstances where it appears that such a purpose may be served and nothing else appears the regularity of their exercise will be presumed. (at p590)

3. However, what we are concerned with is the power conferred by par. (d) of the sub-section which provides that an authorized person may "make such inquiries as he thinks necessary relating to any eggs or egg pulp". What the section authorizes is the making of such inquiries as an authorized person "thinks necessary". But the paragraph does not specify the purpose for which the inquiries must be thought to be necessary. However, it is beyond doubt that they must be thought to be necessary for some purpose associated with the administration of the Act and the carrying into effect of its provisions. And, of course, it will be sufficient if the authorized person, acting in good faith, thinks that the inquiries which he makes are necessary for some such purpose. This being so, it seems to me to follow that an inquiry made within the limits of the authority conferred by this paragraph will be, of necessity, made in the execution of the Act. (at p591)

4. Whether or not the respondent entertained the requisite belief does not seem really to have been a live issue before the magistrate but there was, in my opinion, sufficient evidence to establish that he did. It is true that an attempt was made to establish that the authority was used for an ulterior purpose but this attempt completely failed. The evidence as it stands was, clearly enough, capable of supporting the conclusion that the specific inquiry which was the foundation of the charge was made in order to elicit information necessary for the effective administration of the Act and, indeed, there is no evidence upon which it could be concluded that it was made for any other purpose. Further, it appears that the inquiry was not made unadvisedly but after consideration and, that being so, it must, I think, be taken to have been established presumptively that the respondent did entertain the necessary belief. (at p591)

5. Accordingly I would dismiss the appeal. (at p591)

MENZIES J. I agree that this appeal should be dismissed. (at p591)

2. Upon the matters about which there is a difference of opinion in this Court, I take the same view as Kitto J. and Owen J., whose judgments I have had the advantage of reading. The question which the appellant refused to answer did relate to eggs that were in Victoria and, when a person claims immunity from the provisions of the Act for eggs in Victoria on the ground that they were brought into the State from another State, I do not regard it as outside the scope of the Act for the Board to investigate his dealings with those eggs. (at p591)

WINDEYER J. I have read the judgment that is to be delivered by my brother Owen. I entirely agree in it. I shall merely add a few words on some aspects. (at p591)

2. The contention based on s. 92 of the Constitution was, I assume, seriously raised before the magistrate and not merely to fabricate a federal element in the case and thus enable an appeal to be brought directly to this Court. But it was a contention that rightly failed before the magistrate and it was doomed to failure here. It cannot be said that the appellant's trade in eggs sent by him from Victoria to other States or obtained by him from outside Victoria and brought to Victoria was unlawfully hindered by his having to answer inquiries about those eggs. (at p592)

3. The proposition that s. 43 of the Marketing of Primary Products Act 1958 (Vict.) is confined in its operation to eggs produced in Victoria is said to follow from the majority judgment in Shanahan v. Scott (1957) 96 CLR 245 . But that judgment depended upon a view that the regulation there in question travelled beyond the subject-matter with respect to which the Act authorized regulations to be made. It was held that, using a phrase that Isaacs J. had used in a similar context, it was an attempt not to complement but to supplement the legislation. Here we are concerned with whether the inquiry that the respondent made was an inquiry that could be made in the execution of the Act itself. The relevant provisions of the Act are concerned with the marketing in Victoria of eggs, and no doubt mainly, if not wholly, with the marketing in Victoria of eggs laid by fowls in Victoria. But the powers of inquiry that it authorizes are not in terms confined to inquiries about such eggs, and I see no reason for so confining them. If they are to be confined at all, they are in my view confined to inquiries about eggs that at the date of inquiry were in Victoria, or at some earlier time had been there, whether produced there or not. (at p592)

4. As to the contention that the inquiry made by the respondent was not an inquiry "relating to any eggs": It is no doubt possible to read the words of the Act as referring only to an inquiry concerning some particular eggs then presently existing, and as not including eggs of some general description or eggs already sold to consumers, and perhaps eaten. If this be the correct construction, inquiries as to matters such as the number of eggs delivered in the previous week from a particular poultry farm or store and the persons to whom they were delivered would be beyond power. But it seems to me that is revealed as too narrow a construction when the power of inquiry is read with the power to inspect and take copies of records relating to eggs and the section is read as a whole bearing in mind the objects and purposes for which the Board is constituted. (at p592)

5. As to the particular inquiry in this case: The evidence is not precise as to the actual words used. The questioning may have been as to the persons to whom particular consignments of eggs received from sources outside Victoria had been sold by the appellant ; or it may have been as to the persons to whom the appellant was accustomed to sell the eggs that he obtained from sources beyond Victoria. In either case the inquiry could, it seems to me, be properly called an inquiry "relating to any eggs" - the eggs the subject of the inquiry being eggs that the appellant said he had got from outside Victoria. The inquiry was made by the respondent on instructions from the Board. It is not necessary I think to consider for what reason the Board required the information. There are many purposes for which it might legitimately be wanted. It would be wrong to imagine that it might have been wanted for some wholly illegitimate purpose. (at p593)

6. I would therefore dismiss the appeal. (at p593)

OWEN J. The appellant was found guilty of an offence against s. 43 of the Marketing of Primary Products Act 1958 (Vict.). That section provides that "43 (1) In the execution of this Act any person authorized by the Board in that behalf . . . may at any time - (a) enter any premises where eggs or egg pulp are believed to be produced stored sold or offered for sale ; (b) inspect and take samples of any eggs or egg pulp ; (c) inspect and take copies of or extracts from any records relating to any eggs or egg pulp ; (d) make such inquiries as he thinks necessary relating to any eggs or egg pulp. (2) Any person who (a) obstructs or hinders any person authorized as aforesaid in the execution of his powers under this section ; (b) fails or refuses . . . to answer any such inquiries as to any matters within his knowledge ; or (c) makes any false answer to any such inquiries - shall be guilty of an offence against this Act." The Board to which the section refers is the Egg and Egg Pulp Marketing Board for which Div. 2 of the Marketing of Primary Products Act makes provision. (at p593)

2. The charge was that the appellant had refused to answer an inquiry relating to eggs made by an authorized officer of the Board in the execution of the Act and one of his defences was based upon s. 92 of the Constitution. (at p593)

3. The appellant was a producer of eggs in Victoria, some of which he sold and delivered to egg producers in New South Wales and from these producers he in turn bought eggs produced in New South Wales which were delivered to him in Victoria where he resold them to customers in that State. On 17th August 1964 the respondent, an inspector employed by the Board, with that Board's authority and acting under its instructions, interviewed the appellant. In answer to questions put by him the appellant gave the respondent the names of the producers of eggs in New South Wales from whom he was obtaining his supplies. He was then asked to whom he resold eggs obtained by him from New South Wales and this question he refused to answer. For that refusal he was prosecuted and convicted. (at p594)

4. For the appellant a number of submissions was made before the magistrate and on this appeal. In the first place s. 92 was invoked on his behalf. It was said that in buying eggs produced in New South Wales and reselling them in Victoria, the appellant was engaged in inter-State trade and commerce and that to require him to disclose to an officer of the Board the names of his customers in Victoria would impair or burden his right to conduct those inter-State transactions. It was pointed out that, under the Marketing of Primary Products Act, the Board carries on the business of selling eggs in Victoria and it was said that to compel the appellant to disclose the names of his Victorian customers to a rival seller of eggs who might use the information thus obtained to persuade those customers to deal with it rather than with the appellant would seriously impede his inter-State business. In so far therefore as s. 43 purported to require him to answer the question asked of him, it was invalid. (at p594)

5. The learned magistrate rejected this contention, not being satisfied on the material before him that the appellant's inter-State commercial activities would be burdened or impeded if he was required to tell the board the names of his Victorian customers to whom he made sales of eggs introduced by him from New South Wales. That was a conclusion to which his Worship was entitled to come and I agree with it. (at p594)

6. Next it was contended that the inquiry made of the appellant was not made in the execution of the Act because, so it was said, the powers conferred by s. 43 can be exercised only in relation to eggs produced in Victoria which under the Act have become the property of the Board. If in fact eggs about which an inquiry is made happen to be eggs produced outside Victoria or if, while produced in Victoria, the eggs are not the property of the Board, the inquiry is not one made in the execution of the Act. It is an unauthorized inquiry and the person of whom it is made is not obliged to answer it. It would follow that in such cases questions such as "Whose eggs are these ?" or "Where did you get these eggs ?" would not be authorized and need not be answered. For this proposition reliance was placed on the decision in Shanahan v. Scott (1957) 96 CLR 245 . That case was concerned with the validity of a regulation made under the Marketing of Primary Products Act which provided that no person should without the consent of the Egg and Egg Pulp Marketing Board place or cause to be placed any eggs in cold storage. The regulation-making provision of the Act empowered the making of regulations "providing for all or any purposes . . . necessary or expedient for the administration of this Act, or for carrying out the objects of this Act, and in particular, without affecting the generality of the foregoing . . . for or with respect to . . . regulating the transport treatment manufacture grading processing branding labelling packing storage marketing selling exporting and delivery of the commodity (whether the same is produced within or outside Victoria) or the packages containing such commodity". The majority of the Court took the view that a regulation which purported to prohibit the cold storage (without the Board's consent) of all eggs including eggs that had never become the property of the Board, eggs that had become its property and had been resold by it and eggs that had been brought into Victoria from another State was not within the regulation-making power. It could not be upheld as one necessary or expedient for the administration of the Act or for carrying out its objects nor could it properly be said to be one which "regulated" the storage of eggs. It was "a form of prohibition" operating "as a complete prohibition" unless consent happened to be obtained ; further the particular regulation-making power under which it was sought to support it related "to the conditions, manner and occasion in which the various things the provision mentioned are done rather than to the possibility of doing them at all". We were also referred to Peppers Self Service Stores Pty. Ltd. v. Scott (1958) 98 CLR 606 . There the question was whether a regulation requiring persons displaying eggs for sale by retail to place upon them a card showing, inter alia, their country or state or territory of origin was within the regulation-making power contained in the Act. It was held that it was not but that decision does not, I think, throw light upon the question involved in this appeal. In my opinion it was open to the magistrate to find, and I think he rightly found, that the inquiry made of the appellant in the present case was one made in the execution of the Act and the mere fact that the eggs to which it related had been produced in New South Wales and brought into Victoria did not take it out of that category. (at p595)

7. It was then submitted that the question asked of the appellant was not an inquiry "relating to any eggs" but an inquiry "relating to customers" and was therefore not authorized by s. 43 (1). But the question directed to ascertaining the names of persons who were buyers of eggs from the appellant was plainly an inquiry "relating to eggs" and it did not cease to be such an inquiry because it also related to those who were buyers of them. (at p595)

8. Finally it was said that there was no evidence that the question asked of the appellant was one which the respondent had thought it necessary to ask. I do not agree. The information which the appellant was asked to supply was information which might well be thought to be necessary to enable the Board to carry out its functions under the Act and the inspector was directed by the Board to ask the question which was in fact asked. An inference that the inspector thought it necessary to ask the question was one which might properly be drawn and no good reason has been shown for interfering with the decision of the magistrate. (at p596)

9. I would dismiss the appeal. (at p596)

Orders

Appeal dismissed with costs.