Woolworths (Victoria) Ltd v City of Glenorchy

[1990] TASSC 24

Serial No 18/1990
List "A"

COURT:                 SUPREME COURT OF TASMANIA

CITATION:            Woolworths (Victoria) Ltd v City Of Glenorchy [1990] TASSC 24; (1989) TASSC 87; A18/1990

PARTIES:  WOOLWORTHS (VICTORIA) LTD
  TRADING AS PURITY SUPERMARKETS
  v
  THE MAYOR, ALDERMEN AND CITIZENS
  OF THE CITY OF GLENORCHY
  BURDEN

FILE NO/S:  LCA 27/1990
DELIVERED ON:  22 June 1990
JUDGMENT OF:  Neasey J

Judgment Number:  A18/1990
Number of paragraphs:  7

Serial No 18/1990
List "A"
File No LCA 27/1990

WOOLWORTHS (VICTORIA) LTD TRADING AS PURITY SUPERMARKETS v THE MAYOR, ALDERMEN AND CITIZENS OF THE CITY OF GLENORCHY AND BURDEN

REASONS FOR JUDGMENT  NEASEY J

22 June 2990

1. This is a motion to review an order made by magistrate Mr. Wright on 7 May 1990, whereby the learned magistrate held that a seizure of certain articles of food under s116(4) of the Public Health Act 1962 was a lawful seizure. The articles of food consisted of pieces of paw paw, pineapple pieces, loose dates, dried apricots, apricot pieces, dried pears, pineapple rings, and other similar articles. They were seized by Glenorchy City Council inspectors on 28 September 1989 at a store run by the appellants at Glenorchy. The articles had been offered for sale in wicker–type baskets, in which they were displayed uncovered and otherwise unprotected.

1. Section 116(4)(d) of the Public Health Act 1962 provides as follows:

"(4)     Subject to s62A, an inspector may –

(a)take for examination or analysis any carcase or article that he is entitled to inspect under the foregoing provisions of this section, or any portions or samples of that carcase or article;

(b)open any package containing any such carcase or article or any such article;

(c)weigh, count, measure, gauge, or mark any such carcase, article, or package, and fasten, secure, or seal it or any door or opening affording access to it;

(d)seize any animal, or carcase, or any such article wherever found which is, or which he has reasonable grounds for believing to be, dangerous or injurious to health, or unwholesome, or unfit for use, or to be a prohibited article, and any package or vessel enclosing or containing any such article;

(e)...; and

(f)...".

1. The respondent contends that the goods seized are prohibited articles within the meaning of s62(1) of the Public Health Act. A prohibited article, pursuant to s62(1), means "an article the manufacture, sale, or use of, or other dealing with, which in its then state or condition is prohibited by this Part or the regulations, either absolutely or conditionally".

1. The regulations relied upon in the present case within s62(1), are contained in reg20 of the Public Health (Food Hygiene) Regulations 1977. These in the relevant parts provide as follows:

"20 – (1)    No person shall –

...

(d)Manufacture, prepare, store, pack or offer or expose to sale any article of food –

(i)in a place which is at any time used as a sleeping apartment, stable, or toilet or which is in direct communication with a sleeping apartment, stable or toilet; or

(ii)in a place in which any animal or thing is kept, or any work is carried on, whereby the article of food is liable to be contaminated or its wholesomeness or cleanliness injuriously affected;

...

(4)    No person shall expose food which is ordinarily consumed in the state in which it is sold –

(a)for sale on any counter, serving structure, table, or shelf in any premises in such a position where it can be handled, touched, or breathed upon by the public unless the food –

(i)is covered by glass; or

(ii)is so enclosed or contained in a covered receptacle, or is so wrapped, as to protect it from possible contamination; or

(b)without adequate protection from flies and other insects, animals, dust, and any unwholesome matter in a window space that is not so constructed as to protect the food from other insects, animals, dust, or other unwholesome matter.

(5)    Sub–regulation (4) does not apply to fruit or vegetables or to a smorgasbord."

1. The part of reg20 relied upon to justify the seizure in this case is reg20(4), as set out above. However, sub–reg20(5) provides that reg20(4) does not apply "to fruit or vegetables ...". The applicant contends that the seized articles did constitute fruit, and so the seizure was illegal. The respondents reply that "fruit", within the meaning of reg20(4), means whole fruit, of the kind ordinarily protected by its integuments, such as skin, shell, husk, rind or the like. This latter submission, the learned magistrate upheld, thus holding that the seizure was lawful.

1. The simple question is therefore, whether the word "fruit" should be interpreted within the context of these regulations in the limited sense contended for by the respondents. I do not think so. I do not think it is a legitimate exercise for the court to read down the meaning of a plain word in order to satisfy its own idea of what the regulation was meant to achieve. The basic rule of law is that the language of a statute is to be construed in its ordinary and natural sense, even if the result is inconvenient – the Amalgamated Society of Engineers v The Adelaide Steamship Co Ltd (1920) 28 CLR 129 at p161; Broken Hill South Ltd v The Commissioner for Taxation (NSW) (1936) 56 CLR 337 at p371; Statutory Interpretation in Australia, by DC Pearce at paras14 and following.

1. If the language is not sufficiently plain to admit of such ordinary and literal interpretation, then further problems arise, but they do not arise here. In my opinion, the Gertrude Stein argument prevails. To adopt and modify the words of the lady, "fruit is fruit is fruit". The word has an ordinary and plain meaning. Fruit can be presented in a number of different forms, such as whole, fresh, dried, in portions, and the like. The regulation makes no distinction. It simply excludes fruit. These seized articles do come within that description, and therefore the regulation did not apply to them. I imagine it would be a simple matter to enact a fresh regulation in which the desired distinctions are made, if that is thought to be necessary in the interests of public health. Needless to say, this decision is not intended to say anything about which relevant procedures are desirable and which are not. The application will succeed, and relevant consequential orders be made.