Field Peas Marketing Board (Tas) v Clements and Marshall Pty Ltd [1948] HCA 10

414 HIGH COURT [1947-1948.

[HIGH COURT OF AUSTRALIA.]

MANIA) AND ANOTHER 3 DEFENDANTS,

FIELD PEAS MARKETING BOARD a APPELLANTS ;

AND

CLEMENTS AND MARSHALL PROPRIE- Re TARY LIMITED : = SPONDENT.

PLAINTIFF,

H.C. or A, High Court—Appeal—Procedure—Question affecting constitutional powers of Com- 1947-1948. monwealth—Court constituted by four Justices—Court equally divided—Judiciary SJ Act 1903-1947 (No. 6 of 1903—No. 52 of 1947), 8. 23.

Mmtrouryr, as ; ; Constitutional Law—Freedom of inter-State trade, commerce and intercourse—

pa Marketing of primary producte—Marketing board constituted under State Act One1 3 6. —Commodity divested from growers and vested in board as owner—Contracts for Hass, sale of commodity declared void—Provision that nothing in the legislation should SypNey, interfere with operation of 8. 92 of Commonwealth Constitution—Legislation 1948. contravening 8. 92—Extent of invalidity—Marketing of Primary Products Act August, 18. 1945-1947 (9 & 10 Geo. VI. No. 41—11 Geo. VI. No. 20) (Tas.)—Marketing Latham 0.J., of Primary Products (Field Peas) Act 1946-1947 (10 Geo. VI. No. 35—11 po Geo. VI. No. 12) (Tas.). 2 SEE On an appeal to the Full Court of the High Court by the defendants from

the decision of Williams J. in Clements and Marshall Pty. Ltd. v. Field Peas Marketing Board (Tas.) (Ante, p. 401) granting the plaintiff company an interlocutory injunction, the parties proposed that the appeal be treated as the trial of the action. The Court, which was constituted by four Justices, was equally divided in opinion as to the effect of s. 92 of the Commonwealth Constitution on the Tasmanian legislation which was challenged by the plaintiff.

Latham ©.J. and McTiernan J. were of opinion that, as a decision on the question raised as to s. 92 in relation to State legislation might inferentially affect the constitutional powers of the Commonwealth, the proper course, in view of s. 23 (1) of the Judiciary Act 1903-1947, which requires that " a Full Court consisting of less than all the Justices shall not give a decision on a