Castlemaine Tooheys Ltd v South Australia [1986] HCA 58

High Court of Australia Mason A.C.J. Castlemaine Tooheys Ltd v South Australia [1986] HCA 58

ORDER Application for interlocutory injunctions dismissed. Order that the plaintiffs file and serve any further affidavits on which they rely on or before 13 October 1986 and that the defendant file and serve any further affidavits on which it relies on or before 27 October 1986. Further order that the costs of this application be costs of the defendant in the action and that the balance of the summons be stood over to a date to be fixed.

Cur. adv. vult.

Mason A.C.J. delivered the following written judgment:

Oct. 3 Mason A.C.J.

This is an application by the plaintiffs in the action for interlocutory injunctions restraining the defendant in the action from enforcing or causing to be enforced against the goods of the plaintiffs in interstate trade and commerce: (1) ss. 6 and 7 of the Beverage Container Act 1975 S.A. ("the 1975 Act") as amended by the Beverage Container Act Amendment Act 1986 S.A. ("the 1986 amending Act"), and (2) ss. 6 and 7 of the 1975 Act. In the action the plaintiffs seek declarations of invalidity of the provisions already mentioned, as well as other provisions in the legislation, including certain regulations, and a notice under s. 5b(2) of the 1986 amending Act on the ground that they contravene s. 92 of the Constitution.

The first three plaintiffs, members of the Bond Group of companies, are brewers in Queensland, New South Wales and Western Australia respectively. The fourth plaintiff is their South Australian agent. The remaining four plaintiffs are beer retailers ("the Booze Brothers Group") in South Australia who order beer from the first three plaintiffs for trans-shipment to that State. The orders by the retailers are placed with the agent for transmission to the brewers, and are accepted and satisfied under the terms of an agreement dated 24 April 1986, which provides that property in the goods ordered passes to the relevant retailer upon delivery to its premises in South Australia under a contract between the brewer and the retailer, the fourth agent undertaking to procure the transport of the goods to those premises. The plaintiffs' case is that, in consequence of these arrangements the three brewers, the agent and the retailers are engaged in interstate trade and commerce and that the protection given by s. 92 extends to the first retail sale by the importer in South Australia.