Constitutional Law (Cth)—Freedom of interstate trade, commerce and intercourse—Sale of goods—Goods imported from one State to another—Contract of sale made in State of delivery—Source not stipulated—Goods brought from other State to fulfil contract—Whether interstate trade—Statutory control of skin dealers—Prohibition of carrying on business of skin dealer without licence—Carrying on business—The Constitution (63 &64 Vict. c. 12), s. 92—National Parks and Wildlife Act, 1974 (N.S.W.) s.105 (a).

Decisions

Oct. 4.
The following written judgments were delivered: -
BARWICK C.J. The respondent is a dealer in, amongst other things, kangaroo skins. His place of business is in Charleville, Queensland. He obtains such skins in Queensland, having authority under the legislation of that State to be in possession of them. He obtains from time to time authority under that legislation to sell them to purchasers, including purchasers in other States. (at p511)

2. The respondent sold certain kangaroo skins which he had procured in Queensland to a purchaser in New South Wales. He delivered them from Queensland to the buyer in New South Wales. However, the purchaser rejected the skins for disconformity with the contract of sale. The respondent thereupon sold these skins (the rejected skins) to another purchaser in New South Wales. (at p511)

3. The respondent also sold to the same purchaser other kangaroo skins which he brought from Queensland and delivered in New South Wales in satisfaction of the purchase. This transaction I will refer to as the "other sale". (at p511)

4. But in neither contract of sale was there a stipulation that the skins be delivered from Queensland into New South Wales. The export of all these skins from Queensland into New South Wales was covered by an authority under the legislation of that State. (at p511)

5. The respondent was charged with a breach of s. 105 (a) of the National Parks and Wildlife Act, 1974 (N.S.W.), as amended ("the Act"), which sub-section I set out in full:
"A person shall not -
(a) exercise or carry on; . . . the business of a skin dealer, unless he does so under and in accordance with the authority conferred - (d) by a skin dealer's licence under section 125; or (e) in so far as the act constituting the offence forms part of the business of a fauna dealer - by a fauna dealer's licence under section 124." The respondent had no such licence under the Act. It is quite clear from the provisions of s. 125 of the Act that such a licence is not obtainable as of right. Its grant lies in the discretion of a government official. (at p512)

6. There was some confusion in the court papers as to the sale which was the subject of that charge. (at p512)

7. The magistrate before whom the respondent was charged appears to have treated the sale of the…

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 Smith v Capewell

Details

AGLC: Smith v Capewell [1979] HCA 48
Case: [1979] HCA 48
Decision Date: 4 October 1979

CaseChat Overview and Summary

The High Court of Australia considered a dispute between Smith and Capewell concerning the interpretation of a will. The primary issue before the Court was whether a specific bequest of shares in a company, which had undergone a significant reconstruction prior to the testator's death, was still valid and identifiable. The testator had bequeathed a specific number of shares in "Capewell & Co. Ltd." However, by the time of the testator's death, the company had been restructured, and the original shares no longer existed in their original form, having been replaced by shares in a new entity, "Capewell Industries Ltd."

The Court was required to determine whether the specific bequest of shares in the original company could be satisfied by the shares held in the new company. This involved considering principles of testamentary intention, the identification of subject matter in a will, and the effect of company reconstructions on specific bequests. The central question was whether the testator's intention was to bequeath the *specific holding* of shares, or rather the *economic interest* represented by those shares, which had been transformed by the company's reorganisation.

The High Court held that the bequest failed. The majority reasoned that the testator had clearly intended to bequeath the specific shares in "Capewell & Co. Ltd." as they existed at the time of the will. The subsequent reconstruction of the company meant that those specific shares no longer existed. The Court found that the testator had not demonstrated an intention to bequeath whatever shares might represent the original holding at the time of death, but rather the particular shares identified by name and company. Therefore, the subject matter of the bequest had ceased to exist, rendering the bequest ineffective.

Orders