Ex Parte Nelson (No 1) [1928] HCA 33

Ex Parte Nelson (No 1) [1928] HCA 33

By majority, sec. 154 of the Stock Act 1901 (N.S.W.) does not violate sec. 92 of the Constitution as it is a genuine quarantine measure justified to protect local stock from disease and not a regulation of interstate trade; nor is it invalid under sec. 109 for inconsistency with the Quarantine Act, nor under sec. 90 as a customs law. The conviction under sec. 154 was valid. By majority, sec. 158(j) does not violate sec. 92. Orders nisi for prohibition were accordingly discharged. Minority reasoned that sec. 154 and sec. 158(j) were directed at and burdened interstate trade and thus invalid under sec. 92.

Parties
Applicant/defendant: George Nelson; Informant/inspector of Stock: Oscar Ernest Edward Couch; Informant/inspector of Stock: Samuel Rutherford Scott; Respondent/solicitor for the State: Crown Solicitor for New South Wales (J. V. Tillett)
Jurisdiction
Australia
Judgment Date
22 October 1928
Procedural Posture
Constitutional Law Case Stated/prohibition / High Court Application for Prohibition Removed From Supreme Court of New South Wales
Outcome
Rules nisi for prohibition discharged with costs (majority), convictions affirmed (majority). Dissent: Prohibition should issue.
Legal Topics
Sec. 92 Constitution – Freedom of Interstate Trade, Inconsistency of State and Commonwealth Laws – Sec. 109, State Quarantine/inspection Power, Customs Power – Sec. 90, Regulation or Prohibition of Stock Importation
Constitutional Law Trade and Commerce Quarantine Law Sec. 92 Constitution – Freedom of Interstate Trade Inconsistency of State and Commonwealth Laws – Sec. 109 State Quarantine/inspection Power Customs Power – Sec. 90 Regulation or Prohibition of Stock Importation

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 13 Party arguments 2 Amounts and remedies 4
Sign in to unlock

Parties

George Nelson

Applicant/defendant

Oscar Ernest Edward Couch

Informant/inspector of Stock

Samuel Rutherford Scott

Informant/inspector of Stock

Crown Solicitor for New South Wales (J. V. Tillett)

Respondent/solicitor for the State

Procedural Posture

Constitutional Law Case Stated/prohibition / High Court Application for Prohibition Removed From Supreme Court of New South Wales

Legal Issues

  1. 1 Does sec. 154 of the Stock Act 1901 (N.S.W.) violate sec. 92 of the Australian Constitution regarding absolute freedom of interstate trade, commerce and intercourse?
  2. 2 Is the State law inconsistent with the Commonwealth Quarantine Act under sec. 109?
  3. 3 Does the State Act impinge on Commonwealth customs power under sec. 90?

Ratio Decidendi

By majority, sec. 154 of the Stock Act 1901 (N.S.W.) does not violate sec. 92 of the Constitution as it is a genuine quarantine measure justified to protect local stock from disease and not a regulation of interstate trade; nor is it invalid under sec. 109 for inconsistency with the Quarantine Act, nor under sec. 90 as a customs law. The conviction under sec. 154 was valid. By majority, sec. 158(j) does not violate sec. 92. Orders nisi for prohibition were accordingly discharged. Minority reasoned that sec. 154 and sec. 158(j) were directed at and burdened interstate trade and thus invalid under sec. 92.

Court Disposition

Rules nisi for prohibition discharged with costs (majority), convictions affirmed (majority). Dissent: Prohibition should issue.

Orders

  • Demurrer allowed with costs. Rules nisi for prohibition discharged with costs.