Cam & Sons Pty Ltd v Chief Secretary (NSW) [1951] HCA 59

High Court of Australia Dixon, McTiernan, Williams, Webb, Fullagar and Kitto JJ. Cam & Sons Pty Ltd v Chief Secretary (NSW) [1951] HCA 59

ORDER Appeal allowed with costs. Decree of Supreme Court of New South Wales set aside. In lieu thereof declare that s. 40B of the Fisheries and Oyster Farms Act 1935-1949 does not apply to a selling of fish (within the definition of to sell in s. 4 of the said Act) if the selling forms part of or is for the purpose of inter-State trade. And further declare that ss. 14 (c) and 94 in combination do not in their application to s. 40B (1) authorize the seizure of fish by reason of their being sold (within the said definition of to sell) if the selling forms part of or is for the purpose of inter-State trade. Reserve to the plaintiff liberty to apply to the Supreme Court of New South Wales in this suit as it may be advised for an injunction in the event of any threat or apprehension of a seizure or detention of fish of the plaintiff, which, having regard to s. 92 of the Constitution, are not liable to be seized or detained under the powers conferred by the Act. Order the defendants pay the costs of the plaintiff of the motion and suit up to and including this date.

Cur. adv. vult.

The following written judgments were delivered:—

Oct. 17 Dixon, Williams, Webb, Fullagar and Kitto JJ.

This is an appeal from a decree of the Supreme Court of New South Wales (Roper C.J. in Eq.) dismissing a suit brought by the appellant company against the respondents. The object of the suit was, primarily, to obtain a decision that s. 40B (1) of the Fisheries and Oyster Farms Act, 1935-1949 N.S.W. is invalid as inconsistent with the freedom of trade, commerce and intercourse among the States which is guaranteed by s. 92 of the Constitution of the Commonwealth. Alternatively a decision was sought that s. 40B (1) is to be construed as limited so as not to have an operation infringing the constitutional guarantee.