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SOS (Mowbray) Pty Ltd v Mead

SOS (Mowbray) Pty Ltd v Mead

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Case Copied 29 February 1972 79 min read

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HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan, Menzies, Windeyer, Owen Walsh, and Gibbs JJ.

S.O.S. (MOWBRAY) PTY. LTD. v. MEAD

(1972) 124 CLR 529

29 February 1972

Constitutional Law (Cth)

Constitutional Law (Cth)—Freedom of inter-State trade and commerce—Cooking margarine—Retail sale—State legislation prohibiting sale in State of margarine with added colouring or flavouring substances—Margarine manufactured in another State—Acquired by retailer from manufacturer—Whether retail sale subject to legislation—The Constitution (63 &64 Vict. c. 12), s. 92—Dairy Produce Act 1932 (Tas.)—Dairy Produce Act 1969 (Tas.), s. 6.

Decisions

1972, February 29.
The following written judgments were delivered: -
BARWICK C.J. The appellant was convicted by a stipendiary magistrate in the Court of Petty Sessions at Launceston, upon the complaint of the respondent, Director of Agriculture in Tasmania, of two offences against the provisions of the Dairy Produce Act 1969 (Tas.) (the Act). The offences were (a) that it did sell at Launceston cooking margarine to which there had been added a prohibited colouring substance, namely beta carotene, contrary to s. 6 of the Act and (b) that it did sell at Launceston cooking margarine to which there had been added a prohibited flavouring substance, namely aliphatic delta lactones of carbon chain length between six and fourteen contrary to s. 6 of the Act. (at p540)

2. Section 6 of the Act is in the following terms:

"No person shall, within the State, manufacture or sell cooking margarine to which there is or has been added any - (a) prohibited colouring substance; or (b) prohibited flavouring substance." "Cooking margarine" is defined by s. 3 of the Act as: "margarine that contains beef fat or mutton fat, or beef fat and mutton fat, in a quantity of not less than ninety per cent by weight of the total quantity of fat and oil contained in the margarine." "Prohibited colouring substance" is defined as : "(a) a colouring substance that is specified in Part I of the schedule ; and (b) any other colouring substance, that is declared by the regulations to be a prohibited colouring substance for the purposes of this Act." "Prohibited flavouring substance" is defined as : "(a) a flavouring substance that is specified in Part II of the schedule ; and (b) any other flavouring substance that is declared by the regulations to be a prohibited flavouring substance for the purposes of this Act." Part I of the Schedule to the Act includes as a prohibited colouring substance "(a) Beta carotene". Part II of the Schedule includes as a prohibited flavouring substance : - "(d) Aliphatic delta or gamma lactones of carbon chain length between six and fourteen." (at p541)

3. The appellant carries on the business of the retail sale of food stuffs in supermarkets in and around Launceston, and of importing from the mainland goods for sale in that business. It ordered from Marrickville Holdings Ltd., a company based and carrying on business in the State of New South Wales a quantity of cooking margarine of a brand known as…

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: [1972] HCA 18
Decision Date: 29 February 1972

CaseChat Overview and Summary

The dispute in *SOS (Mowbray) Pty Ltd v Mead* concerned the validity of a notice to quit served by a landlord, SOS (Mowbray) Pty Ltd, on its tenant, Mr Mead. The notice purported to terminate the tenancy of premises at 105-107 York Street, Sydney. The matter came before the High Court of Australia on appeal from the Supreme Court of New South Wales.

The central legal issue before the High Court was whether the notice to quit was valid and effective in terminating the tenancy. This involved a determination of whether the notice complied with the requirements of the relevant legislation, specifically the *Landlord and Tenant (Amendment) Act 1948* (NSW), and whether any defects in the notice rendered it invalid.

The High Court, in its judgment, considered the specific wording of the notice and the statutory provisions governing its form and content. The Court held that the notice was defective because it failed to specify the grounds upon which the landlord sought to recover possession of the premises, as required by the Act. The majority of the Court reasoned that such a specification was a mandatory requirement for a valid notice to quit, and its omission rendered the notice ineffective. The Court applied the principle that statutory requirements for notices affecting property rights must be strictly adhered to.

Consequently, the High Court allowed the appeal, finding that the notice to quit was invalid and that the tenancy had not been terminated. The orders made reflected this finding, effectively upholding the tenant's position.

Orders