Stock Health Service Pty Ltd v Brebner

[1964] HCA 60

HIGH COURT OF AUSTRALIA

Kitto, Taylor and Windeyer JJ.

STOCK HEALTH SERVICE PTY. LTD. v. BREBNER

(1964) 112 CLR 113

20 October 1964

Stock—Constitutional Law (Cth)

Stock—Stock medicines—Exemption from legislation—Medicine "prescribed in the course of his profession" by veterinary surgeon—Stock Medicines Act 1939- 1956 (S.A.), s. 4 (1)*. Constitutional Law (Cth)—Freedom of inter-State trade—Inter State character of transaction—What constitutes interference with freedom—The Constitution (63 &64 Vict. c. 12), s. 92—Stock Medicines Act, 1939-1956 (S.A.), s. 12 (a) *.

Decisions

October 20.
The following written judgments were delivered:-
KITTO J. I agree in the judgments about to be delivered. The appeal should be allowed and the convictions quashed. (at p114)

TAYLOR J. This is an appeal by both appellants from convictions in a court of summary jurisdiction for offences against s. 12(a) of the Stock Medicines Act, 1939 (S.A.). In terms the complaint alleged that on or about 20th June 1962 the appellants sold to Balquhidder Limited, a pastoral company in South Australia, a stock medicine which was not registered under the Act. It was proved or admitted at the hearing that on or about the date specified a quantity of stock lick which was not registered under the Act was sold to Balquhidder Limited by the first-named appellant. The stock lick had been prepared in South Australia by the second-named appellant in the circumstances hereinafter appearing. The first-named appellant is a company which, as its name implies, carries on the business of supplying stock medicines to farmers and graziers. Apparently it is incorporated in New South Wales where its principal place of business appears to be but it carries on its business in other States including South Australia. In the course of his duties in the latter State an agent of the first-named appellant visited the property of Balquhidder Limited on 11th June 1962 and obtained from its manager, one Mayfield, a written order for a quantity of stock lick. The order was addressed to the first-named appellant at its premises in New South Wales and it purported to be a "repeat" order. The earlier order had been given on 18th September 1961 and it had been accompanied by a document called a Particulars Chart which had been prepared by the agent whilst or after interviewing Mayfield. It purported to give particulars of the character of the property, including the soil type, predominant timbers, the nature of the pastures and the average rainfall, the character of the stock carried, the stock problems that had been encountered and other sundry information. Upon receipt of the order and this information the first-named appellant had passed on the particulars to a veterinary surgeon, Trevitt, who prepared on a printed form a prescription for what he considered to be an appropriate stock lick. The repeat order contained a little information additional to that included in the earlier Particulars Chart and upon its receipt it was submitted to Trevitt who amended the earlier prescription, whereupon it was despatched to the second-named appellant which made up the required quantity of stock lick according to the amended prescription and forwarded it to Balquhidder Limited. In the Act "sell" is defined to include "sending, forwarding, or delivering for sale or on sale" and this was thought by the magistrate who recorded the convictions to comprehend the part which the second-named appellant played in the transaction and, accordingly, it was also convicted of the offence charged. It remains only to be said that Trevitt, although practising his profession of veterinary surgeon in New South Wales, was a person registered under the Veterinary Surgeons Act, 1935-1938 of South Australia. (at p115)

2. The first contention advanced by the appellants was based upon s. 4(1) of the Act which, so far as relevant, provides that the Act "shall not apply to any stock medicine prescribed in the course of his profession by a person registered under the Veterinary Surgeons Act, 1935-1938" and there was considerable argument whether it could be said that the word "prescribed" was appropriate to describe the part which Trevitt played in the transaction and whether, if it did, he had prescribed the stock lick "in the course of his profession". On the hearing of the complaint a great deal of evidence was tendered and admitted in support of the prosecution which went to show that the information supplied to Trevitt was insufficient to enable an appropriate stock lick to be prepared, and indeed, that a prescription based upon such inadequate information could result in harmful effects upon the stock having access to the stock lick prepared in accordance with it. Further, it was sought to establish that Trevitt's conduct had not been in accordance with the ethical standards generally observed in the profession. Indeed, it was this evidence which led the magistrate to hold that Trevitt had been "shown as incompetent, ignorant and reckless". In the opinion of the magistrate he had exhibited a complete disregard for accepted professional procedures to such a gross extent that he could not properly be said to be prescribing or acting "in the course of his profession" as a veterinary surgeon. But upon this appeal much of the evidence which led to this conclusion was not relied upon and it was conceded that the question whether the stock lick prescribed by Trevitt was, in fact, appropriate or merely innocuous or, in the circumstances of the case, harmful, was an irrelevant consideration. What was urged by the respondent was that Trevitt could not be said to have prescribed in the course of his profession unless he did so "not otherwise than in pursuance of and in accordance with the standards or procedures received in the profession in South Australia i.e. adhered to or followed by mature professional men in good standing". But in my view this formulation extends far beyond the meaning of the expression under consideration. (at p116)

3. Stock lick was not, until 1956, a stock medicine within the meaning of the Act and one of the witnesses upon whom the prosecution relied expressed the view that the specification of the constituent parts of a stock lick could not, in any sense, be regarded as "prescribing". According to him, in the profession, prescribing meant "the treating of illnesses and disease" whereas a person specifying the constituent parts of a stock lick "would be preparing either a supplement or an addition to the diet of the animal(s)" and he would not be "treating of illnesses and disease as distinct from improving the diet of the animal(s)". How far this evidence was admissible as an aid to the interpretation of the relevant provision, or, indeed, how far it is truly descriptive of the act of prescribing, is very much open to doubt. But, in any event, I have no doubt that the word "prescribed" as used in s. 4(1) must, of necessity, be taken to cover the specification of the ingredients of all so-called stock medicines including stock lick and, accordingly, the only question is whether Trevitt prescribed "in the course of his profession". I entertain no doubt that he did. Whether he prescribed on insufficient information either as to the stock for which the lick was intended or as to the character of the country on which they were depastured is not, I think, of any consequence in the case. Nor is it relevant to consider whether the stock lick actually prescribed was beneficial or harmful in the circumstances. The only relevant question is whether Trevitt prescribed "in the course of his profession" and I can see no reason for rejecting the submission that the evidence established that he did. He was consulted professionally, there seems no doubt that it is within the sphere of the professional duties of a veterinary surgeon to prescribe stock licks when engaged to do so and the act of prescribing was performed in the course of his professional duties. The suggestion that proof of incompetence in prescribing or proof that a prescription was given on insufficient information would take the act of prescribing outside the course of the professional duties of a veterinary surgeon does not, I think, bear examination. Considerations such as these cannot determine whether the act of prescribing was performed by Trevitt in the course of his profession for it is not, in my view, permissible to test whether it was outside the course of his profession to ask whether something he was engaged to do in the course of that profession was done competently or otherwise. (at p117)

4. This is enough to dispose of the case but it should be mentioned that it was contended that the sale, the subject of the charge, was protected by s. 92 of the Constitution. In my view there is no substance in this contention and it was disposed of during the argument. It is sufficient now to say that it clearly appeared that there was no inter-State element in the transaction capable of sustaining the contention. I add that, nevertheless, the point does seem to have been raised for decision and not merely colourably in an attempt to attract the appellate jurisdiction of this Court. (at p117)

5. The question whether the second-named appellant could, having regard to the extended definition of the word "sell", be said to have sold the stock lick in question was not argued and in the view I have taken it is unnecessary to discuss the point. But I mention it only because I do not wish to be taken to accept without argument the proposition that what was done by the second-named appellant constituted "sending, forwarding or delivering the stock lick for sale or on sale" in the sense in which that phrase is used in the Act. (at p117)

6. In the result the appeal should be allowed and the convictions quashed. (at p117)

WINDEYER J. The appellants were convicted by a special magistrate sitting at Port Adelaide of selling a stock medicine which was not registered under the Stock Medicines Act, 1939 (S.A). They appeal on two grounds. First they say that the provisions of the Act, so far as they purport to make their actions unlawful, are invalid by reason of s. 92 of the Commonwealth Constitution. Secondly they contend that their conduct could not amount to an offence under s. 12 of the Act, being they say put by s. 4 altogether outside the Act. Both matters were raised and argued as defences before the special magistrate who heard the charge. He rejected both defences. The element of federal jurisdiction that he exercised enables the appellants to appeal from his decision directly to this Court: Judiciary Act, s. 29(2). (at p118)

2. The facts are simple. On or about 20th June 1962 the appellant Stock Health Service Pty. Limited, a company having its principal place of business in New South Wales, sold a ton of stock lick to Balquhidder Limited, a company carrying on a grazing business on a property of ten thousand acres near Yankalilla in South Australia. Olsson Industries Pty. Limited, the second appellant, is a manufacturer of chemical substances carrying on business in South Australia. It had made up this lick for Stock Health Service Pty. Limited. It made it up in South Australia according to a formula sent to it by Stock Health Service Pty. Limited. When made up the goods were sent by Olsson Industries Pty. Limited to Balquhidder Limited. The sale price was payable by Balquhidder Limited, the buyer, to Stock Health Service Pty. Limited, the seller. It is not disputed that this stock lick was a "stock medicine" within the definition in the Stock Medicines Act, 1939 as amended in 1956. It was not a stock medicine registered under the Act. (at p118)

3. The sale was made by Stock Health Service Pty. Limited in the course of its business of supplying to farmers and graziers stock licks that are made up not in accordance with a uniform standard formula, as the commercial proprietary brands of stock licks registered under the Act are, but made up to special prescriptions said to be based upon the needs of the stock of a particular customer. The company employs agents, salesmen, who visit farmers in various places in Australia and obtain orders from them for the preparation and supply of stock licks. Information to be used in deciding the composition of the stock lick to be supplied is sent by these agents to the company. The agent records on a printed form certain information about the customer's property and the stock there - type of soil, rainfall, nature of pastures, top-dressing applied, the stock carried, certain general characteristics of the wool, also whether or not certain stated diseases and unhealthy conditions have occurred in the stock carried, the occurrence of which could, in some cases at least, be symptomatic of nutritional difficulties or deficiencies. The completed form with this data is sent by the agent to Stock Health Service Pty. Limited at Parramatta in New South Wales along with an order, signed by the customer and by the agent, showing the kind of stock - e.g. milking cows, beef cattle, ewes and lambs, wethers, pigs - for which the lick is required and the quantity required. The company then employs one F. E. Trevitt, a veterinary surgeon practising his profession at St. Ives near Sydney, to prescribe, on the basis of the information thus obtained, a formula for a stock lick considered by him to be suitable for the case. The order form signed by the customer shows on it that it is for a "special prescription by F. E. Trevitt B.V.Sc.". (at p119)

4. The sale which is the subject of the charge in this case was made pursuant to an order for a ton of stock lick in blocks. The order was given by the manager of Balquhidder. The order was a repeat order. It was in fact the fourth order that the manager had given since 1960, when he first had dealings with Stock Health Service Pty. Limited. That company and Trevitt thus had had particulars earlier. The only additional information given with this order was in a notation on the order form which read - "Sheep are often on beach. This property is on the South Coast". On receipt of the order, Stock Health Service consulted Trevitt as usual. He specified the ingredients for a stock lick to meet this order, modifying in some respects his earlier formula for this property. The lick was made up by Olsson Industries Pty. Limited in accordance with Trevitt's specification (at p119)

5. I entirely agree in what was made clear by the Court during the argument that there was in all this no transaction of trade or commerce between the States within the meaning of s. 92 of the Constitution. Moreover, although this ground of defence was, I realize, seriously raised and earnestly argued, I have not seen how obedience to the restrictions and prohibitions contained in the Stock Medicines Act could in any case impair freedom of trade and commerce among the States. I do not think it is necessary to discuss the constitutional point further. (at p119)

6. The question then is whether the conviction was justified having regard to the terms of s. 4 of the Act. The relevant parts of it are as follows: "4. (1) This Act shall not apply to any stock medicine prescribed in the course of his profession by a person registered under the Veterinary Surgeons Act, 1935-1938, or any person who is holder of a permit under Part IIIA of that Act, nor to any stock medicine supplied by any such person for any stock for the time being under his professional care or charge. (2) This Act shall not apply to any stock medicine which is compounded in respect of any particular stock in the ordinary course of his business by any person registered as a pharmaceutical chemist under the Pharmacy Act, 1935-1937, but shall apply to any substance compounded by any such person for general use in the State." (at p120)

7. Trevitt, a Bachelor of Veterinary Science of upwards of twenty years' standing, is registered under the Veterinary Surgeons Act, 1935-1938, of South Australia. He is also registered under corresponding legislation in New South Wales and Victoria. At the time these proceedings began he was, and had been for some years previously, carrying on his profession in private practice in New South Wales. Earlier he had been a stock inspector. From 1958 onwards he had from time to time provided Stock Health Service with formulae for stock licks according to the procedure described above. The only question in the case is, Was the stock lick that was made up for Balquhidder according to his directions prescribed by him in the course of his profession? The burden of proving that it was lay upon the defendants, both as a matter of general principle (see Vines v. Djordjevitch (1955) 91 CLR 512, at p 519 ) and by reason of s. 56 of the Justices Act of South Australia. (at p120)

8. A good deal of evidence was given which showed clearly enough that other veterinary surgeons called did not approve of the actions of Trevitt in prescribing stock lick as he had done in this and other cases. They said that the data that he had was insufficient and unreliable because collected by travelling salesmen unskilled in veterinary medicine. It goes without saying that the efficacy of any medicine prescribed for the treatment of any condition of ill health of mankind or animals must largely depend upon an accurate diagnosis of the ailment and a knowledge of its causes. It also goes without saying that accuracy of diagnosis must largely, if not wholly, depend upon the accuracy and sufficiency of the information on which diagnosis is based. But the question in this case was not whether the stock lick that Stock Health Service supplied to Balquhidder was a good medicine or a bad medicine. It was not whether Trevitt had prescribed in a perfunctory way or a careful way. It was not whether some other practitioners would have declined to provide a formula for a stock lick without having more information than he had. It was not as to his skill, competence or experience as a veterinary surgeon. It was whether the stock medicine sold to Balquhidder was prescribed by him in the course of his profession. (at p120)

9. The case for the Crown was apparently that a veterinary surgeon could not be said to be prescribing in the course of his profession unless both his methods of diagnosis and, it seems, the content of his prescription would have met with the approval of other members of the profession. Such a proposition is clearly mistaken. And it is hard to see why the Crown tendered much of the evidence that it did. It was both irrelevant and prejudicial and ought not to have been admitted. It included statements by other veterinary surgeons of what they thought the Act meant when it spoke of a veterinary surgeon prescribing in the course of his profession, of what they thought were desirable and undesirable practices and of what they thought other members of their profession thought. A document called a code of ethics was admitted in evidence although it was not only irrelevant in itself but contained nothing in point. One witness, Cameron-Stephen, was heard to say that a veterinary practitioner specifying the ingredients of a stock lick could not be prescribing. "He would be preparing either a supplement or an addition to the diet of the animal. He would not be treating. I believe prescribing means the treating of illnesses and disease as distinct from improving the diet of the animal." But, once it be admitted that a stock lick is a stock medicine for the purpose of the Act, it cannot be said that it cannot be prescribed. The main purpose of such a medicine may be to make good dietetic deficiencies, especially of minerals, and thus to prevent disease and to promote health. One of the difficulties throughout the case arose from a seeming confusion between considerations of animal husbandry and animal health, the care of flocks and herds on the one hand, and the treatment of sick animals on the other, between preventive and curative medicine. Much examination and cross-examination was devoted to particular conditions of disease or ill health, the existence or non-existence of which on a customer's property was noted on the forms that were sent by agents to Stock Health Service and which Trevitt had when prescribing. But not only was it irrelevant to consider whether Trevitt's prescriptions were or were not efficacious, there was in the questions asked by the Crown a misapprehension of their purpose. There is no evidence that it was said by anyone that the stock lick sold would cure the ailments mentioned on the forms. Stock licks are designed to promote health rather than to cure ills; to correct nutritional deficiencies that cause ill health. The occurrence of particular pathological conditions may be indications of deficiencies, and thus useful in considering correctives. The magistrate's statement in his judgment that Trevitt "presscribed a stock lick which was supposed to cure the animals from conditions they might or might not have had" is quite wide of the mark. Except perhaps in relation to hypo-magnesaemia, grass staggers, I do not think that he put forward his prescription as a cure. (at p122)

10. I may leave the irrelevancies that were fostered by a mistaken view of what the Act means and turn to its actual words. The phrase in s. 4(1) "prescribed in the course of his profession" in relation to a veterinary surgeon does not I think differ essentially from the phrase in s. 4(2) "compounded . . . in the ordinary course of his business" in relation to a pharmaceutical chemist. They are counterparts, each appropriate to the calling it describes. An attempt in the argument for the Crown to treat the two phrases as being fundamentally different was I think mistaken. The words "in the course of his profession" mean in the performance of a distinct professional engagement. They point to acts done by a veterinary surgeon in his professional capacity - not to something done by him in some other capacity as for example when addressing a public meeting or in a letter to a newspaper on some subject of public controversy or as a director of a company. A professional man may no doubt in the course of his profession write a textbook or lecture to students. But it was conceded for the appellants that s. 4(1) of the Act when it speaks of a veterinary surgeon prescribing in the course of his profession is speaking of prescriptions given by him in his professional capacity to or for particular persons who may be called his clients. And I agree that the scheme and purpose of the Act shows that the exception that s. 4(1) creates is so limited. That however being granted, he can be acting in the course of his profession although he be not paid directly by the client for whom he prescribes. The client may be a person who obtains his services through the medium of another person or institution, that other person or institution paying him: the position of medical practitioners employed by hospitals, public corporations and private companies provides many analogies. I see no ground for saying that Trevitt did not prescribe in the course of his profession the stock lick he prescribed for Balquhidder. It seems to me that clearly he did so and that therefore the appellants ought not to have been convicted. It is thus unnecessary to consider whether the acts of the second appellant, Olsson Industries Pty. Limited, could in any event have amounted to a sale within the extended meaning the Act gives to that word. (at p122)

11. Before leaving the case I feel bound to add that the strictures that the magistrate made on the professional competence of Trevitt were not only irrelevant. They were not warranted by the evidence. I have carefully read the whole of the evidence and the exhibits. I can find there no justification for the statement that Trevitt was shown as "incompetent, ignorant and reckless", or that "he cannot be said to have acted conscientiously". These things may all be true. I say nothing at all as to that. All I say is that the evidence does not show them to be so. It is regrettable that not only was the true issue in the case lost sight of but that, on the invitation apparently of the prosecution, the magistrate should in his judgment have made findings that the evidence did not support and which reflected so gravely on the integrity of a person who was a witness not a party. I shall simply mention two matters as illustrations of the way in which irrelevant material was made the basis of insupportable conclusions. Pages and pages of the evidence deal with the question whether any advantage is to be gained by including a supplement of phosphorus in a lick for sheep. There is a strong body of scientific opinion and literature, supported by experiments by officers of the C.S.I.R.O., that the use of phosphatic licks is "uneconomic and useless". Those who say so generally condemn as "superfluous and expensive" the inclusion in licks for use in South Australia of all mineral trace elements other than cobalt and copper. They may be right in this. But the use of phosphorus and other minerals in licks has in fact been common and their usefulness, of phosphate in particular, has been supported in articles by well-qualified persons. To disparage Trevitt because his prescription included various elements the efficacy of which in a lick was discounted or denied by witnesses for the prosecution shows only that of two views on the matter he accepted one rather than the other. That could throw no light at all on whether he was prescribing in the course of his profession. Then too, a great deal was said about copper (introduced as copper sulphate) as one of the constituents in the stock lick he prescribed. Before this Court counsel for the Crown went so far as to say that his doing so was "intensely dangerous", that "if one puts copper in a stock lick there is a grave danger of causing copper poisoning". Once again that is irrelevant. That a medicine prescribed by a professional man may prove harmful does not mean that he did not prescribe it in the course of his profession. But the statement was moreover extravagant. In fact many of the proprietary brands of commercial stock licks registered under the Stock Medicines Act contain a modicum of copper - some of them more than the trace, .14 per cent, in Trevitt's prescription for Balquhidder. Yet they are available to anyone to purchase and use. That copper is a common ingredient in stock licks in South Australia is not surprising. In a very large area of the State there is a copper deficiency which has a deleterious effect on the wool grown by sheep depastured there. Of course it is unwise to give copper to animals where as a result of the composition of the soil, the nature of the vegetation, or recent top-dressing with copper sulphate it is not needed or would be harmful. But there is no evidence at all that the use on Balquhidder of a stock lick made up to Trevitt's prescription was in any way harmful. The manager of Balquhidder was entirely satisfied with it. He said "It was not intended to heal any particular problem" but that "the purpose of the blocks was to improve the health of the sheep" and that "the blocks worked very well and I was happy with them". It was not, it seems, any complaint by him that led to the institution of this prosecution. (at p124)

12. The convictions should be quashed. (at p124)

Orders

Appeal allowed with costs. Convictions and orders of the Magistrate set aside. In lieu thereof order that the complaints be dismissed with costs to be fixed by the Port Adelaide Court of Summary Jurisdiction. Matter remitted to the said Court for the amount of the said costs to be fixed accordingly.