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

High Court of Australia Latham C.J. Starke, Dixon and McTiernan JJ. Field Peas Marketing Board (Tas) v Clements & Marshall Pty Ltd [1948] HCA 10

ORDER Appeal dismissed with costs including any costs incurred by the respondent by reason of the order directing hearing of the appeal in Sydney instead of in Melbourne.

Cur. adv. vult.

The following written judgments were delivered:—

1948. August 18 Latham C.J.

This is an appeal from a decision of Williams J. granting an interlocutory injunction. When they were before Williams J. the parties were not willing to treat the motion for an injunction as the trial of the action. When they came before the Full Court in the appeal they were willing to do so. Owing to the unfortunate indisposition of a member of the Court after the hearing of the appeal had begun, the hearing was continued before four Justices and judgment was reserved. When the Court learned that it was to hear a full argument upon s. 92 in Bank of New South Wales v. The Commonwealth [1] delivery of the judgment was delayed in the hope that the argument and decision in that case—in which judgment has just been given—would be of assistance in the consideration of the effect of s. 92 of the Commonwealth Constitution in relation to compulsory marketing legislation. In the result the decision given in the Banking Case [1] does not govern the question in this case.

1. (1948) 76 C.L.R. 1. 2. (1948) 76 C.L.R. 1.

The Court is not bound to act upon the proposal that the motion should be treated as the trial of the action, but can deal with the appeal as it came before the Full Court, simply as an appeal from Williams J. The Court is equally divided in opinion. In a case which did not involve any question affecting the constitutional powers of the Commonwealth the result would be that the decision of Williams J. would be affirmed, and the appeal would be dismissed: Judiciary Act 1903-1947, s. 23 (2) (a). It may be suggested, however, that the present case is governed by s. 23 (1), which is in the following terms:—"A Full Court consisting of less than all the Justices shall not give a decision on a question affecting the constitutional powers of the Commonwealth, unless at least three Justices concur in the decision." This case involves a question of the interpretation of s. 92 of the Commonwealth Constitution. The Commonwealth is not a party to the action, but the decision with respect to this question may inferentially affect the constitutional powers of the Commonwealth. There is a distinction between the decision upon a question in a case and a decision, judgment, decree, order or sentence in the case itself: see Baxter v. Commissioners of Taxation (N.S.W.) [1] . In that case it was held that "a decision of the High Court upon any question" as to limits inter se of constitutional powers of Commonwealth and State meant, not the judgment in the case [2] but, as Isaacs J. said, "what the Court decides to be the law with regard to that question; what it holds to be the proper answer to that particular question" [1] . Section 92 binds both the Commonwealth and the States and in some cases a decision upon the interpretation of s. 92 may therefore be a decision upon a question affecting the constitutional powers of the Commonwealth. Three Justices do not concur in a decision upon this question and therefore it appears to me that a proper course to pursue is to abstain from giving a decision upon it, with the result that the judgment of Williams J. should remain and the appeal should be dismissed. My brother Starke is of opinion that the case should be remitted to Williams J. All the other members of the Court agree in the result that the appeal should be dismissed. The interlocutory injunction therefore stands. The appellants should pay the costs of the appeal, including, in accordance with the undertaking given by the appellants when an order was made for hearing in Sydney instead of in Melbourne, any amount whereby the costs were increased by reason of such order.