Buck v Bavone [1976] HCA 24

High Court of Australia Barwick C.J. Gibbs, Stephen, Mason, Jacobs and Murphy JJ. Buck v Bavone [1976] HCA 24

ORDER Appeal allowed with costs. Orders of the Adelaide Court of Summary Jurisdiction set aside and in lieu thereof order that the respondent be convicted of the second charge specified on the complaint. Matter be referred back to that Court for determination of the question of penalty and costs.

Cur. adv. vult.

The following written judgments were delivered:—

1976, May 14 Barwick C.J.

The respondent, Luigi Bavone, in the course of his business as a potato grower and seller which he carried on at Salisbury Downs, South Australia, in November 1974 sold to a Mr. Pasarelli of Broken Hill, New South Wales, a quantity of potatoes which he had grown. The potatoes were to be delivered to Broken Hill. At the time of this sale the respondent was not registered as a grower of potatoes under the provisions of the Potato Marketing Act, 1948-1973 S.A. ("the Act").

The appellant, an inspector employed by the South Australian Potato Board ("the Board") which is set up by s. 4 of the Act, complained that such selling by the respondent was contrary to s. 18 of the Act. Sub-section (1) of that section provides that "a person shall not grow potatoes for sale, or sell potatoes grown by him unless he is registered by the board as a grower".

The learned magistrate who heard the complaint held that there was no case for the respondent to answer since s. 18, properly construed, did not prohibit the interstate sale of potatoes by the respondent to a New South Wales buyer, though the respondent was not a registered grower under the Act. The basis of the construction placed upon s. 18 of the Act by the magistrate was that a prohibition of the grower unless registered under the Act would infringe s. 92 of the Australian Constitution. Thus, s. 18 was construed to avoid invalidity and held to have no application to the transaction in question.