Shanahan v Scott [1957] HCA 4

High Court of Australia Dixon C.J. Williams, Webb, Fullagar and Kitto JJ. Shanahan v Scott [1957] HCA 4

ORDER Appeal allowed with costs. Order of Supreme Court discharged; in lieu thereof order that the order nisi to review be discharged with costs.

Cur. adv. vult.

The following written judgments were delivered:—

1957, Feb. 15 Dixon C.J., Williams, Webb and Fullagar JJ.

The purpose of this appeal by special leave is to obtain from this Court a decision upon the validity of a specific provision of the Egg and Egg Pulp Marketing Board Regulations 1953 of the State of Victoria. The question depends entirely upon the extent of the power of subordinate legislation conferred upon the Governor in Council of that State by the Marketing of Primary Products Acts 1935-1953. The provision the validity of which is attacked is No. 44 of those regulations. It purports to make it an offence for any person, without the consent of the Egg and Egg Pulp Marketing Board, to place or cause to be placed any eggs in any cold storage premises or to subject any eggs to any preservative treatment. The expression "cold storage premises" is defined by the regulations to mean any premises at or in any part of which eggs are received or stored for the purpose of being chilled. There is a proviso saying that nothing in the regulations shall prevent "a person or owner of any eggs" (sic) preserving a quantity of eggs not exceeding thirty dozen for his own domestic requirements.

An information was laid against the present appellant by the respondent, who is an officer of the board, for that on 3rd October 1955 at Tongala he did without the consent of the board cause eggs to be placed in cold storage premises in contravention of the provisions of the regulation. It appeared on the hearing of the information before the court of petty sessions at Echuca that the appellant was manager of a firm carrying on business in New South Wales and in that capacity he had caused eggs which may be supposed to have been produced in New South Wales to be placed in cold storage in Tocumwal in Victoria. Although the point taken against the validity of reg. 44 was that it was not authorised by the terms of the Victorian legislation the magistrate decided in favour of the defendant on the ground that the regulation invaded s. 92 of the Constitution of the Commonwealth and dismissed the information. An order nisi to review this determination was obtained and on the return before Lowe J. it was made absolute. There was no attempt to support the decision of the magistrate under s. 92 and upon the question whether under State law reg. 44 was ultra vires Lowe J. took the view that the provision was a valid exercise of the power conferred upon the Governor in Council by s. 43 (1) of the Marketing of Primary Products Acts 1935-1953. His Honour accordingly made the order nisi to review absolute, set aside the dismissal of the information and remitted it to the Magistrate for further hearing.