Grannall v C Geo Kellaway & Sons Pty Ltd [1955] HCA 5

High Court of Australia Dixon C.J. Webb, Fullagar, Kitto and Taylor JJ. Grannall v C Geo Kellaway & Sons Pty Ltd [1955] HCA 5

ORDER Information dismissed. Informant to pay the costs of the hearing in the Court of Petty Sessions at Sydney. Otherwise no order as to costs.

Cur. adv. vult.

The Court delivered the following written judgment:—

March 1955 Dixon C.J., Webb, Fullagar, Kitto and Taylor JJ.

This cause is before the Court pursuant to an order of removal made under s. 40 of the Judiciary Act 1903-1950. The court from which it is removed is the Court of Petty Sessions at Sydney. The proceeding is an information for a summary offence against s. 23 of the Farm Produce Agents Act 1926-1952 N.S.W.. Before the order for removal was made the information had been heard upon evidence and the evidence had been concluded. The order for removal referred the cause to the Full Court pursuant to s. 18 of the Judiciary Act 1903-1950. The evidence consisted for the most part of some documents put in as exhibits and of mutual admissions made between the parties. The constitutional element which brought the cause within s. 40 of the Judiciary Act was supplied by s. 92 of the Constitution.

The defendant is a company registered under the Companies Act of New South Wales and carries on business as a farm produce agent within the definition of that occupation contained in s. 2 (1) of the Farm Produce Agents Act 1926-1952 N.S.W.. Section 23 (1), which creates the offence in respect of which the information was laid, provides that no farm produce agent shall charge, sue for or recover any fees, charges, commission, reward or other remuneration—(a) for or in respect of the sale or disposal of farm produce except commission not exceeding the prescribed commission. A commission is prescribed by the regulations made under the Act. Regulation 10 which was given its present form as from 2nd January 1953 (1953, No. 1) prescribes a commission of seven and one-half per cent of the price realized where the farm produce is fruit, as distinguished from vegetables, potatoes and other edible roots or tubers. The information alleges that the defendant company on 4th August 1953 contravened s. 23 of the Act and reg. 10 in that it did charge commission for or in respect of the sale or disposal of farm produce, to wit 144 cases of apples consigned from one B. G. Direen, in excess of the commission prescribed. The information proceeds to give figures showing that the charge was ten per cent. Section 23 (1) (a) does not cover the whole ground of a farm produce agent's remuneration. The subject of the reward which par. (a) restricts is described by the words "for or in respect of the sale or disposal of farm produce". Paragraphs (b) and (c) of sub-s. (1) of s. 23 go on to deal with further incidental work in connection with the sale or disposal of farm produce. These provisions cover fees, charges, commission, reward or other remuneration for or in respect of the performance or doing of any service, act or thing incidental to the sale or disposal of farm produce or in relation to any farm produce sold or disposed of by the farm produce agent or forwarded or delivered to or received by him for sale or disposal. Paragraph (b) provides that remuneration of this kind may not be charged, sued for or recovered, unless such service, act or thing is a service, act or thing prescribed as one in respect of which fees, charges, commission, reward or other remuneration may be charged, sued for or recovered. Then paragraph (c) of the same sub-section provides that the amount charged, sued for or recovered in respect of any service, act or thing so prescribed shall not be in excess of the fees, charges, commission, reward or other remuneration prescribed for such service, act or thing. Regulation 10 (2) prescribes certain services, acts or things, for the purposes of par. (b) of s. 23 (1), as those in respect of which fees, charges, commission, reward or other remuneration may be charged, sued for or recovered, and it fixes the maximum remuneration for the services, acts or things so prescribed. The relevant items are "stamps and stationery 6d. per consignment" and "unloading, storing and handling fruit forwarded from other States 1d. per case".