New South Wales Supreme Court CITATION : Superintendent of Trade Measurement v Salmon [2003] NSWSC 1113 HEARING DATE(S) : 25/11/03 JUDGMENT DATE : 1 December 2003 JURISDICTION: Common Law Division JUDGMENT OF : Young CJ in Eq DECISION : Summons dismissed with costs. CATCHWORDS : HEALTH LAW [47] - Definitions- Meat- s 25(1) Trade Measurement Act 1989- Defendants charged with selling meat otherwise than by weight- The items they sold included chicken filos and chicken fillet steaks flavoured with teriyaki- Were the defendants selling "meat" within the meaning of the Act? WORDS & PHRASES- "Meat"- "Process". LEGISLATION CITED : Trade Measurement Act 1989 s 25(1) Accounting Systems 2000 (Developments) Pty Ltd v CCH Australia Ltd (1993) 42 FCR 470 Australian Gas Light Company v Valuer-General (1940) 40 SR (NSW) 126 Beckwith v The Queen (1976) 135 CLR 569 Collector of Customs v Agfa-Gavaert Ltd (1996) 186 CLR 389 Federal Commissioner of Taxation v Hamersley Iron Pty Ltd (1981) 37 ALR 595 Girobank plc v Clarke [1998] 1 WLR 942; [1998] 4 All ER 312 JH Dewhurst Ltd v Eddins [1935] 2 KB 105 CASES CITED : Kilmarnock Equitable Co-Operative Society Ltd v Inland Revenue Commissioners (1966) 42 TC 675 Metal Manufacturers Pty Ltd v Lewis (1988) 13 NSWLR 315 Moore v Farmers Mutual Manufacturing & Ginning Co (1938) 77 P (2d) 211 Re Sterns Playland Pty Ltd (No 2) (1982) 4 ALD 562 Slater v Evans [1916] 2 KB 403 Sweetway Sanitary Cleansers Ltd v Bradley [1962] 2 QB 108 Tiffins Ltd v Herron [1937] NZLR 566 Vibroplant Ltd v Holland [1981] 1 All ER 526 Williams v Metropolitan and Export Abattoirs Board (1953) 89 CLR 66 Superintendent of Trade Measurement (P) PARTIES : Gregory Joseph Salmon (D1) Rodney Clark (D2) Betina Clark (D3) FILE NUMBER(S) : SC 12266/03 COUNSEL : R J Bromwich (P) J V Nicholas SC and C Dimitriadis (D) SOLICITORS : D I Catt (P) Phillips Fox (D) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION YOUNG CJ in EQ Monday 1 December 2003 12266/03 – SUPERINTENDENT OF TRADE MEASUREMENT v SALMON JUDGMENT 1 HIS HONOUR: This is a summons seeking to to reverse the decision of Magistrate D Sweeney on 4 August 2003 dismissing five informations against Lenard's butchers of Murwillumbah and Tweed Heads. Lenard's seems to be the name of a franchised operation. The actual charges were against the franchisee of each operation, however this is a matter of no concern in the argument before me. 2 Each information alleged that the relevant defendant had sold meat otherwise than by weight contrary to s 25(1) of the Trade Measurement Act 1989. 3 That relevant Sub-section provides as follows: "A person who sells meat otherwise than at a price determined by reference to the mass of the meat is guilty of an offence." "Meat" is defined by sub-section 4 as follows: "In this section: " Meat " means so much of a slaughtered animal as is ordinarily sold for human consumption (whether or not after being subjected to a process of any kind) but does not include: (a) the whole or any part of rabbit or shellfish, (b) heads, feet, hearts, lights, kidneys, brains or sweetbread, or (c) meat packed as a pre-packed article." 4 It is common ground that chicken is an animal within the definition and that none of exceptions (a)-(c) apply. 5 Section 3 of the Act defines "sell" as including "offer or expose for the purpose of selling." 6 The five informations were in the terms of the section. The particulars were: (a) the defendant displayed for sale Chicken Mini Roast sweet mustard @ $6.95 each, 600g or $11.99 kg; (b) the defendant displayed for sale Chicken Mignon garlic @ $1.95 each, 120g or $16.50 kg; (c) the defendant displayed for sale Chicken Fillet Steaks teriyaki & garlic @ $2.75 each, 175g or $15.99 kg; (d) the defendant displayed for sale Chicken Spring Roll @ $1.95 each, 175 kg [sic] or $11.50 kg; (e) Chicken filo Madagascar green peppercorn & paprika offered for sale at $2.95 each. 7 Agreed facts were submitted to the learned magistrate. It is unnecessary to set these out save for paragraph 6 which is as follows: "6 A description of each of the Products is as follows: (a) 'Chicken Mini Roast Sweet Mustard' – deboned double butterfly breast fillet folded, netted and stuffed with a mix of wholeseed mustard, honey and stuffing mix, then brushed with vegetable ghee and Hawaiian sprinkle and garnished with a sprig of parsley. ( Chicken Mini Roast ). A Chicken Mini Roast typically consists of no more than 73% (of the total weight) meat. (b) Chicken Mignon Garlic – skinless thigh fillet rolled tightly, wrapped in a trimmed rasher of bacon secured with a skewer and topped with a rosette of garlic butter and garnished with a sprig of parsley. ( Chicken Mignon ). A Chicken Mignon typically consists of no more than 70% (of the total weight) meat. (c) Chicken Fillet Steaks Teriyaki & Garlic – skin-on breast Fillet (tenderloin removed and scapula trimmed) coated on both sides with teriyaki and mushroom marinade and sprinkled with garlic steak spice. ( Chicken Teriyaki ). A Chicken Teriyaki typically consists of no more than 90% (of the total weight) meat. (d) Chicken Spring Roll Oriental Vegetable – Two spring roll pastry sheets filled with skinless thigh fillet, peking marinade, carrots, onion, capsicum, seasoning, chinese honey marinade, bacon, shallots and teriyaki mushroom marinade, then brushed with vegetable ghee and garnished with sesame seeds. ( Chicken Spring Roll ). A Chicken Spring Roll typically consists of no more than 47% (of the total weight) meat." 8 The learned magistrate said she had no difficulty in finding that the items particularised were offered for sale. 9 However, guided by the decision of the Kings Bench in JH Dewhurst Ltd v Eddins [1935] 2 KB 105, the learned magistrate found that the defendants were not selling "meat" as defined by s 25 of the Act. 10 The informant stated in the information that he was laying the informations "on behalf of the Superintendent of Trade Measurement". 11 The Superintendent, by summons filed 29 August 2003, seeks to set aside that determination and have the informations returned to the magistrate on the grounds that she erred in law in her construction of the Act. 12 I received written submissions from counsel and heard oral submissions on 25 November 2003. Mr RJ Bromwich of counsel appeared for the plaintiff and Mr JV Nicholas SC and Mr C Dimitriadis of counsel appeared for the defendants. I am indebted to all counsel for their diligent and concise presentation. 13 In view of the fact that this is seen by both parties as a test case involving legislation that is common throughout the Commonwealth except for Western Australia and that there is no decision of a superior court in Australia on the point, I considered it wise to reserve my decision. 14 The first question that arises on this appeal is whether her Worship erred (if she did err) in law or in a determination of fact. 15 Section 56(1)(c) of the Crimes (Local Courts Appeal and Review) Act 2001 gives an appeal as of right to a prosecutor against an order of a Local Court dismissing a matter, but only on a ground that involves a question of law alone. 16 The defendants do not dispute that the appeal involves a question of law. 17 However, I am troubled by the word "alone". Normally questions of statutory construction involve both questions of law and questions of fact; see eg Australian Gas Light Company v Valuer-General (1940) 40 SR (NSW) 126, 137-8. 18 Counsel for the plaintiff relies on the approach of the High Court in Collector of Customs v Agfa-Gavaert Ltd (1996) 186 CLR 389, 396-7 as to why this is a question of law alone. 19 I have considerable doubts about the point. Indeed parts of her Worship's judgment seem to approach the problem as at least in part a question of fact. Furthermore, kindred questions arising under the old Sales Tax Classification Acts were viewed as matters of fact on which evidence was given; see eg Re Sterns Playland Pty Ltd (No 2) (1982) 4 ALD 562. However, in view of the defendants' attitude, I believe I should just accept this submission and move on. 20 I thus need to consider the proper construction of s 25 of the Act. 21 Mr Bromwich puts that the live question is whether each of the products was "so much of a slaughtered animal as is ordinarily sold for human consumption (whether or not after being subjected to a process of any kind)". He says the pivotal phrase is "process of any kind". 22 The dictionary meaning of "process" is a systematic treatment of some kind; see eg Girobank plc v Clarke [1998] 1 WLR 942, 947; [1998] 4 All ER 312, 317. 23 In the present case Mr Bromwich says trays of substantially identical products have been produced by the process of combining raw chicken with other foodstuffs in order to have a ready to cook product for sale. The chicken is now chicken which has been subjected to a process and is still within the definition of "meat". 24 Mr Bromwich puts that subjection to a process is not limited to cooking, freezing, salting or preserving. This, he says, is made clear by the words "of any kind" following the words "process". 25 Mr Nicholas says that such a construction of "process" leads to absurd results. He says that if it were correct then it could be said that a corned beef sandwich was "meat" which had to be sold by weight because it was produced by a systematic process by which corned beef was combined with bread and butter and pickles to make it into a sandwich. 26 Mr Nicholas also points to the problems that are caused by adopting this approach which virtually means calling a product containing meat as wholly meat. If one is selling a carcass which includes items excluded from the definition of meat, does one sell the meat portion of the carcass by weight and the balance how one likes? If steak and kidney is sold as a composite product, does one sell the steak by weight and the kidney separately, or does one sell the whole by weight as once the kidney is mixed with diced steak, there has been a process which makes the whole lot "meat"? 27 There is little case law to guide one in the present case. I will discuss the leading authorities in due course. However, I might note at this point the decision of Kitto J in Williams v Metropolitan and Export Abattoirs Board (1953) 89 CLR 66, 73, that, even without specific definition, a court would hold that cooked meat remains meat. 28 Mr Bromwich submits that I should treat the section as remedial legislation and that it should be construed to give the fullest relief which the fair meaning of its language will allow: see Accounting Systems 2000 (Developments) Pty Ltd v CCH Australia Ltd (1993) 42 FCR 470, 503. 29 Mr Nicholas says that this is not remedial legislation, though it really does not take the matter much further if it were. If it is to be usefully classified at all, it is penal legislation, though again, this is of little moment; see eg Beckwith v The Queen (1976) 135 CLR 569, 576. 30 Mr Nicholas also puts that in any event it is too facile and unsophisticated a view of legislation to classify it one way or the other as often the legislation represents a compromise between competing interests; cf Metal Manufacturers Pty Ltd v Lewis (1988) 13 NSWLR 315, 326. 31 In general, I agree with Mr Nicholas' submissions on this point. I cannot see any assistance in classifying the type of provision which I have to construe in this case. 32 I have looked at many cases where courts have had to construe the term "process". These include Kilmarnock Equitable Co-Operative Society Ltd v Inland Revenue Commissioners (1966) 42 TC 675; Vibroplant Ltd v Holland [1981] 1 All ER 526 and on appeal [1982] 1 All ER 792 and the Girobank case referred to earlier in these reasons. In none of them was there the fact situation which called for the court to consider whether the term "process" covered a systematic course of conduct in which product A was combined or associated with product B. 33 Not every systematic treatment will be a process. Thus, in Sweetway Sanitary Cleansers Ltd v Bradley [1962] 2 QB 108, 115, Lord Parker giving the judgment of a Queens Bench Divisional Court said that adding disinfectant to effluent could not be regarded as a process of the effluent. 34 In Federal Commissioner of Taxation v Hamersley Iron Pty Ltd (1981) 37 ALR 595, the full Victorian Supreme Court compared and contrasted the terms "treatment" and "process". A number of cases are discussed, see particularly pp 607-8. In virtually all of the cases digested, "process" indicates a treatment of raw material which makes it more marketable such as grading aggregate, sorting nails into different sizes, matching skins, sorting rags. 35 The American dictionary of Words and Phrases Volume 34 gives a large number of examples which give the same impression. I will merely quote from the Arizona Supreme Court in Moore v Farmers Mutual Manufacturing & Ginning Co (1938) 77 P (2d) 200, 211 which, following Webster's Dictionary, said that process meant: "to subject (especially raw material) to a process of manufacturing, development, preparation for the market etc; to convert into marketable form, as livestock by slaughtering, grain by milling, cotton by spinning, milk by pasteurizing, fruits and vegetables by sorting and repacking." 36 I have not found a case where combining a product with another product or refining a product to produce a new product has been described as a process. The word "manufacture" is more apposite in such situations. 37 I am thus not convinced of the validity of the argument that the products being sold by the defendants were meat which had undergone a process of some kind. 38 As I have said, the learned magistrate was much influenced by the decision of the Divisional Court in JH Dewhurst Ltd v Eddins (supra). In that case, a butcher was selling what he described as stuffed meat. That product was lamb or pork stuffed with a mixture of chopped meat, breadcrumbs, parsley etc, the stuffing weighing about 20-25% of the total weight. 39 The English statute prohibited the sale of butchers' meat other than by weight. Butchers' meat was defined as "beef, mutton, veal, lamb or pork, whether fresh chilled, frozen or salted … ." 40 Avory J with whom Hawke and G Lawrence JJ agreed, said at p 108 that 'the pieces of meat were not sold as butchers' meat, but were sold as a composition called stuffed meat." 41 Despite the distinctions drawn by Mr Bromwich between the two statutes, I believe that the magistrate was correct in accepting the case as a guide to the construction of the present section. 42 A similar case involving milk shakes was decided by Myers CJ in New Zealand, Tiffins Ltd v Herron [1937] NZLR 566. A milk bar proprietor was charged with selling milk without a license. The court held that in selling a milk shake, the defendant was not selling milk. Myers CJ said at 570: "It is true that the word 'milk' forms part of the name under which the article 'milk shake' is known and sold, but there is no magic in that ... . The appellant in selling milk shakes was not selling 'milk' within the meaning of the statute. He was selling a compounded product or mixture of which it is true the foundation was milk and the greater part of the mixture was milk, but … that is not sufficient; the compounded article was not 'milk' within the meaning or contemplation of the statute." 43 For completeness I will note that in Slater v Evans [1916] 2 KB 403, the Kings Bench Divisional Court held that ice-cream is not 'meat' within s 3 of the Sunday Observance Act 1677 (Imp). 44 An argument that was put both in the Dewhurst case and before me is that if the defendants' construction is correct, even the slightest addition such as salting meat or selling it with a sprig of parsley will mean that there is no sale of meat. Those scenarios are removed from the case where the addition of another substance substantially changes the character of the article sold. 45 There was also some debate before me as to the effect of s 22 of the Act which provides for measurement of an article on sale. I cannot, with respect, see how this section assists me one way or the other. 46 It was also put to me by Mr Bromwich that I would be assisted by reference to the National Food Standards Code which has been adopted in this State by regulation. I do not see how looking at regulations can assist the construction of this legislation. 47 Accordingly, my view is that the learned magistrate was correct in the decision she reached. 48 The summons is thus dismissed with costs. ********************** Last Modified: 12/02/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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