ON APPEAL FROM THE SUPREME COURT OF Marketing of Primary Products-Egg and Egg Pulp Marketing Bourd-Regulation-
Validity- Prohibition against any person placing eggs in cold storage without consent of board-Not restricted to eggs vested in the board-Statutory power to make regulations-For purposes necessary or expedient for the administration of the Act or for carrying out the objects of the Act-Regulating the storage of the commodity-Marketing of Primary Products Acts 1935-1953 (No. 4337-No. 5710) (Vict.), ss. 18 (1) (c), 43 (1) (b) (iv)-Egg and Egg Pulp Marketing Board Regulations 1953, reg. 44.
The defendant was charged by information with breach of reg. 44 of the Egg and Egg Pulp Marketing Board Regulations 1953 which provides that no person shall without the consent of the Egg Board place or cause to be placed any eggs in cold storage premises. Regulation 44 was made in purported pursuance of the power conferred upon the Governor in Council by S. 43 (1) of the Marketing of Primary Products Acts 1935-1953 (Vict.) to make regula- tions, inter alia, " providing for all or any purposes (whether general or to meet particular cases) 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-
(b) in relation to any board for or with respect to-
regulating the transport treatment manufacture grading processing branding labelling packing storage marketing selling export and delivery of the commodity (whether the same is produced within or outside Victoria) or the packages containing such commodity." The defendant appealed against an order by the Supreme Court to review the decision of the court of petty sessions dismissing the information.
Held: by Dixon C.J., Williams, Webb and Fullagar JJ., Kitto J. dissenting, (1) that the discretionary power which the regulation purported to give of
prohibiting the cold storage of eggs went beyond the power to regulate the particular operations enumerated in S. 43 (1) (b) (iv), and (2) that the regulation was not within the scope and general operation of
the legislation which was to give the board control of eggs with a view to marketing them. Hence reg. 44 fell neither within the particular nor within the general regula- tion-making power conferred by S. 43 (1), and it was ultra vires.
The functions of marketing boards under the Marketing of Primary Pro- ducts Acts 1935-1953 (Vict.), considered.
Decision of the Supreme Court of Victoria (Lowe J.), Scott v. Shanahan (1956) V.L.R. 469, reversed.
APPEAL from the Supreme Court of Victoria.
By information dated 9th February 1956 George Scott as informant charged Henry Shanahan of Moama, New South Wales with that he on 3rd October 1955 at Tongala, Victoria, did without the consent of the Egg and Egg Pulp Marketing Board cause eggs to be placed in cold storage premises in contravention of the provisions of reg. 44 of the Egg and Egg Pulp Marketing Board Regulations 1953.
The information was…
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 Shanahan v Scott
Sign in free to access the full text
Details
AGLC
Shanahan v Scott [1957] HCA 4
Case
[1957] HCA 4
Decision Date
CaseChat Overview and Summary
Shanahan v Scott concerned an appeal to the High Court of Australia from a decision of the Supreme Court of Victoria. The appellant, Shanahan, had been charged with contravening regulation 44 of the Egg and Egg Pulp Marketing Board Regulations 1953, which prohibited any person from placing eggs in cold storage without the consent of the Egg and Egg Pulp Marketing Board. The Supreme Court had made absolute an order nisi to review a decision of a magistrate who had dismissed the information, finding the regulation to be invalid.
The central legal issue before the High Court was whether regulation 44 was ultra vires the powers conferred by the Marketing of Primary Products Acts 1935-1953 (Vict.). Specifically, the court had to determine if the regulation fell within the general power to make regulations for purposes necessary or expedient for the administration of the Act or for carrying out its objects, or within the specific power to make regulations for or with respect to regulating the storage of the commodity.
A majority of the High Court (Dixon C.J., Williams, Webb, and Fullagar JJ.) held that regulation 44 was ultra vires. Their reasoning was that the regulation, by imposing a prohibition subject to the Board's consent, went beyond the power to "regulate" storage as contemplated by the Act. Furthermore, the majority found that the regulation's broad scope, extending to eggs not vested in the Board and those already sold by the Board, exceeded the legislative plan of collective marketing. They concluded that the regulation attempted to supplement, rather than complement, the Act's provisions by extending regulation into a field independent of the Board's marketing powers. Kitto J. dissented, finding that the regulation was a necessary and expedient measure for the effective marketing of eggs, given their perishable nature and fluctuating supply, and thus fell within the regulation-making power.
The High Court allowed the appeal with costs, discharged the order of the Supreme Court, and ordered that the order nisi to review be discharged with costs.