J Bernard & Co Pty Ltd v Langley [1980] HCA 39

High Court of Australia Gibbs A.C.J. Stephen, Mason, Murphy, Aickin and Wilson JJ. J Bernard & Co Pty Ltd v Langley [1980] HCA 39

ORDER Demurrer allowed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Oct. 28 Gibbs A.C.J.

The plaintiff, a company which carries on business in Victoria as a meat wholesaler, has brought the present action in this Court against the defendants, who are respectively a meat inspector appointed pursuant to the Meat Industry Act 1978 N.S.W., as amended, ("the Act") and the New South Wales Meat Industry Authority constituted under the Act ("the Authority"). The plaintiff has delivered a statement of claim to which the defendants have demurred, and we have heard argument on the demurrer. The material allegations in the statement of claim, which for the purpose of the argument must be taken to be correct, are as follows. The plaintiff, in the course of carrying on its business, bought meat, whether slaughtered in or out of Victoria, and sold such meat both inside and outside Victoria. On or about 1 August 1979 the plaintiff entered into an agreement to sell certain meat to J. C. Huttons Ltd. ("Huttons"), a smallgoods manufacturer which carried on business in New South Wales. It was a term of the agreement that the plaintiff would deliver the meat from premises in Victoria to the premises of Huttons at Canterbury in New South Wales. The plaintiff purchased the meat in Victoria and caused it to be transported by truck from Victoria to the premises of Huttons at Canterbury. It does not appear where the meat had been slaughtered. The meat was brought into New South Wales for human consumption. On or shortly after the arrival of the meat at Huttons the first defendant inspected and seized the meat, and caused it to be tagged for identification and placed in cold storage under the control of the Authority. The seizure was made in intended exercise of the powers conferred by s. 29 of the Act, in that the first defendant alleged that he found or reasonably suspected that the meat had been or was being dealt with contrary to the Act in the following respects — (a) that it was brought into New South Wales unaccompanied by the certificate prescribed by reg. 14 of the Meat Inspection and Stamping Regulations 1978 N.S.W., as amended, ("the Regulations") and therefore contrary to s. 43 of the Act; (b) that it was brought into New South Wales without a notice having been given in the form prescribed by reg. 15 of the Regulations; and (c) that it was offered for sale for human consumption contrary to s. 41(1)(b) of the Act. The defendants allege that the meat at the time it was brought into New South Wales was unfit for human consumption. The plaintiff has requested the Authority to return the meat to it but the defendant has refused to do so. The plaintiff has complained of the seizure to a justice of the peace in accordance with the procedure prescribed by s. 29 of the Act and the hearing of the complaint has been adjourned pending the determination of the present proceedings. The plaintiff asserts that the seizure of the meat by the first defendant, and the refusal of the Authority to return the meat, were unlawful, because s. 92 of the Constitution has the effect that ss. 29 and 43 of the Act are either void or inapplicable to the meat in question, and that reg. 15 of the Regulations is void. It claims declarations, damages and costs.