Smith v Capewell
142 CLR 50926 ALR 507
(Judgment by: Gibbs J)
Between: Smith
And: Capewell
Judges:
Barwick CJ
Gibbs JStephen J
Mason J
Murphy J
Aickin J
Subject References:
Constitutional Law (Cth)
Judgment date: 4 October 1979
Melbourne
Judgment by:
Gibbs J
The respondent was charged in the Central Court of Petty Sessions, Sydney, on the information of the appellant that between 1st April 1976 and 10th April 1976 at Botany in the State of New South Wales he did carry on the business of a skin dealer, otherwise than under and in accordance with the authority conferred by a licence issued under s. 124 or s. 125 of the National Parks and Wildlife Act, 1974 (NSW), as amended ("the Act"). The magistrate who heard the proceedings appears to have accepted, or assumed, that the respondent did carry on the business of a skin dealer at Botany, for he said that the only question was whether the respondent was required to hold a licence under the Act or whether he was exempted from that requirement because of the interstate nature of the transaction. He answered that question favourably to the respondent and dismissed the information.
The evidence was not altogether clear, but there now seems to be no dispute that the following facts were established by the evidence. The respondent carried on business at Charleville, in Queensland, as a fauna dealer, and was registered under the relevant Queensland legislation. However, he did not hold a licence under s. 124 or s. 125 of the Act. In March 1976 the respondent agreed to sell some skins to Furedy and Co., of Botany, but after he had brought the skins to New South Wales he found that the prices offered by that company had dropped and instead sold the skins to Gee Bros. Pty. Ltd., also of Botany. This transaction was completed before 1st April 1976, the former of the dates mentioned in the information, but, in any case, no reliance is placed on it by the appellant, apparently because it is considered to have been of an interstate character.
Early in April 1976 the respondent called at the premises of Gee Bros. Pty. Ltd., at Botany, and spoke to Mr. Gee, a director of that company, about the earlier transaction. During the discussion, Mr. Gee "negotiated a further order". The evidence did not disclose the precise nature of this further order, but pursuant to it the respondent delivered a quantity of kangaroo skins to Mr. Gee on about 9th April 1976 at Botany, where the skins were off-loaded from the respondent's truck on to one of Mr. Gee's trucks. The skins were obtained in Queensland, and the respondent was granted a permit under the Queensland legislation to remove them from Charleville to Wallangarra, on the border between Queensland and New South Wales. Each skin bore a numbered plastic tag issued by a department of the Queensland Government. Mr. Gee knew that the respondent carried on business in Queensland, and it can be inferred that when he placed the order he believed that the skins would be brought from Queensland, and since the skins were tagged he must have known that they had come from Queensland. However, there was no evidence that it was an express stipulation of the contract that the skins would be brought from Queensland.
To determine whether the respondent was within the protection of s. 92 of the Constitution, it is necessary to ascertain with precision what were the acts and events which, in the absence of that constitutional guarantee, would render him liable to be convicted of the offence with which he was charged. The section of the Act which created that offence was s. 105, which provides, inter alia, as follows:
"A person shall not -
- (a)
- exercise or carry on;
...
the business of a skin dealer, unless he does so under and in accordance with the authority conferred-
- (d)
- by a skin dealer's licence under section 125; or
- (e)
- in so far as the act constituting the offence forms part of the business of a fauna dealer - by a fauna dealer's licence under section 124."
By s. 125 (1) an authorized officer may issue a licence, referred to as a skin dealer's licence, authorizing a person to buy or sell skins as a skin dealer, and otherwise to exercise or carry on the business of a skin dealer. The expression "skin dealer" is defined in s. 5 as follows:
"'Skin dealer' means a person who exercises or carries on-
- (a)
- the business of dealing in the skins of protected fauna, whether by buying or selling or by buying and selling, and whether or not he deals in other things; or
- (b)
- the business of tanning the skins of protected fauna, whether or not he tans other skins, or both, and whether on his own behalf or on behalf of any other person, and whether or not he exercises or carries on any other business."
"Sell" is defined by the same section to include offer for sale. The expression "carry on" is not anywhere defined. Kangaroos are protected fauna: see s. 5 ("protected fauna") and sch. 11.
In my opinion, an isolated sale of kangaroo skins, not made in the course of carrying on a wider business of selling such skins, would not be an offence against s. 105 (a) of the Act. The expression "carry on business", in its ordinary meaning, signifies a course of conduct involving the performance of a succession of acts, and not simply the effecting of one solitary transaction. In Smith v. Anderson (1880) 15 Ch D 247 , where the Court of Appeal considered the effect of s. 4 of the Companies Act, 1862 (UK) which spoke of an "association...formed...for the purpose of carrying on any... business", Brett L.J. said (1880) 15 Ch D, at pp 277-278 :
"The expression 'carrying on' implies a repetition of acts, and excludes the case of an association formed for doing one particular act which is never to be repeated."
In Kirkwood v. Gadd [1910] AC 422 , at p423 , Lord Loreburn L.C. said: "What is carrying on business? It imports a series or repetition of acts." In the same case Lord Atkinson (1910) AC, at p 431 , referred with apparent approval to the statement of Brett L.J. in Smith v. Anderson (1880) 15 Ch D, at pp 277-278 . Similarly, in Premier Automatic Ticket Issuers Ltd. v. Federal Commissioner of Taxation (1933) 50 CLR 268 , at p 298 , Dixon J., in a passage frequently quoted, said that "the carrying on or carrying out of any profit-making undertaking or scheme" in a taxation statute, "appears to cover, on the one hand, the habitual pursuit of a course of conduct, and, on the other, the carrying into execution of a plan or venture which does not involve repetition or system..." The decision in Cornelius v. Phillips [1918] AC 199 is not authority for any different view of the meaning of the expression. It was there held that a money-lender had carried on the business of money-lending at an hotel which was not his registered address although he had effected only one transaction at the hotel. In that case, which was recently discussed and distinguished in Yango Pastoral Co. Pty. Ltd. v. First Chicago Aust. Ltd. (1978) 139 CLR 410 , the single transaction which fell within the statutory prohibition was conducted by a person who was, on any view, carrying on a money-lending business. Similarly, in Lowe v. Cant (1961) SASR 333 , it was held that a milk vendor who had been allotted a zone under regulations governing the supply of milk and who, on one occasion, delivered milk to a householder in another zone, had carried on business as a retail vendor of milk within a zone other than that allotted to him. Again, there was no doubt that the milk vendor was carrying on business as such or that the isolated transaction which occurred outside his allotted zone was done in the course of carrying on that business. In these cases, although the defendant engaged in only one transaction of the kind proscribed, that transaction was done in the course of carrying on a business. A single transaction may amount to the carrying on of a business, although no other transaction has so far been effected, if it is proved that there was an intention to carry on a business and that the transaction was undertaken in pursuance of that intention: Fairway Estates Pty. Ltd. v. Federal Commissioner of Taxation (1970) 123 CLR 153 , at pp 164-165 . It seems clear that a solitary transaction of sale or purchase of skins in New South Wales will only constitute an offence against s. 105 (a) of the Act, if the sale of purchase has been made by the defendant with the intention that it shall be the first of several transactions in a business which he thereby commences to carry on, or if it has been made in the course of a business which the defendant is carrying on elsewhere.
The Act contains in s. 101 a provision which makes it unlawful to sell kangaroo skins unless the case falls with one of the exceptions provided by that section. Section 101 in terms refers, inter alia, to the buying or selling of "any protected fauna" but, by s. 5, "fauna" is defined to include any mammal and "mammal" is defined to include the skin of a mammal. The fact that s. 101 prohibits a sale of kangaroo skins supports the conclusion that s. 105 (a) does not simply duplicate the prohibition, but applies to the case of an individual sale of such skins only if it was effected in the course of carrying on a business.
The question whether s. 105 (a) would infringe s. 92 of the Constitution in its application to the present case depends on whether the respondent, in the course of carrying on the business of a skin dealer, engaged in acts of interstate trade and commerce. If he did, the section, if it applied, would directly and immediately restrict or burden that interstate trade, for it would prohibit the respondent from carrying on the trade, and although the prohibition would be relaxed if the respondent were licensed, a licence was not obtainable either as of right or if definite and reasonable conditions were satisfied - the grant of the licences was purely discretionary.
There is no doubt that the agreement made early in April between the respondent and Mr. Gee, considered alone, was an intrastate transaction which the law might validly prohibit. That agreement contained no express stipulation that the skins would be supplied from Queensland, and it was not suggested that there was any necessary implication to that effect. In those circumstances the agreement is indistinguishable from the first and third of the methods discussed in W. & A. McArthur Ltd. v. Queensland (1920) 28 CLR 530 , at pp 540, 559-560 , and on the authority of that case, which on this point has often been followed, the agreement, considered in isolation, was not of an interstate character. Moreover, the fact that the respondent carried on business in Queensland as well as in New South Wales did not necessarily mean that he engaged in acts of interstate trade, for "it is very clear that a person may carry on business in every State of the Commonwealth and yet never engage in an act of interstate commerce": Hospital Provident Fund Pty. Ltd. v. Victoria (1953) 87 CLR 1 , at p 38 . However, the respondent did in fact engage in acts of interstate trade in carrying on the business. The carriage of the skins from Queensland to New South Wales was beyond doubt an act of interstate trade. The respondent carried the skins in the course of, and for the purpose of, his business as a skin dealer, and completed the carriage by delivering the skins to Mr. Gee. The carrying on by the respondent of his business in New South Wales consisted of one inseverable transaction - he brought the skins across the border and delivered them in pursuance of the order previously placed by Mr. Gee. I cannot distinguish the present case from North Eastern Dairy Co. Ltd. v. Dairy Industry Authority of NSW (1975) 134 CLR 559 . In that case, the owner of goods took them over the border for the purpose of selling them, and it was held that s. 92 protected the sale as well as the carriage. The case was not one in which goods were sold within a State by a person who had bought them from an interstate seller; the person making the first sale within the State had himself brought the goods across the border - he was what Jacobs J. called an "exporter-importer" (1975) 134 CLR, at p 629 . My reason for holding that s. 92 applied was that the sale, although in itself of an intrastate character, was "an inseparable concomitant or consequence" of an interstate transaction (1975) 134 CLR, at p 599 . In the present case also the respondent is an "exporter-importer". It is true that in Northern Eastern Dairy Co. Ltd. v. Dairy Industry Authority of NSW the contract of sale was made after the goods had crossed the border, whereas in the present case the contract of sale may have already been made - at least an order had been placed - before the goods were brought from Queensland to New South Wales. With all respect to those who take a different view, that difference does not seem to be material. In each case the actual carriage of the goods across the border was an act of interstate trade, and the delivery of the skins for the purpose of satisfying an anterior contract or order is just as inseparable from that carriage as was the subsequent sale from the carriage in the North Eastern Dairy Case. Indeed, the argument for regarding the sale and delivery in the present case as inseparable from the interstate carriage is in one respect stronger than that which prevailed in the North Eastern Dairy Case. The sale and delivery to Mr. Gee only came within s. 105 (a) if it occurred in the course of carrying on a business. The circumstances which show that this single transaction was done in the course of carrying on a business also show that an integral part of the transaction was the carriage of the skins by the respondent from Queensland to New South Wales.
It was not contended in the present case that s. 105 (a) could be upheld as a regulatory measure for the protection of native fauna-no doubt the decision in Fergusson v. Stevenson (1951) 84 CLR 421 inhibited the appellant from advancing any such argument.
For these reasons, in my opinion, the provisions of s. 105 (a) of the Act could not validly apply to the acts with which the respondent was charged. I therefore consider that the magistrate correctly dismissed the information and that this appeal should be dismissed.