HIGH COURT OF AUSTRALIA

                                                         Carter

                                                           Vs.

                                        Egg & Egg Pulp Marketing Board

                          (Latham C.J., Rich, Starke, McTiernan and Williams JJ.)

                                                 26 November 1942

Latham C.J.

This is a demurrer by the defendant The Egg and Egg Pulp Marketing Board for the State of
Victoria to a statement of claim in an action in which Walter Carter and others are plaintiffs. The
plaintiffs claim, first, a declaration that three Acts of the Parliament of Victoria are invalid;
secondly, a declaration that a particular regulation (No. 37) made under those Acts is invalid; and,
thirdly, an account of the defendant Board's dealings with large quantities of eggs delivered to the
Board by the plaintiffs and payment of any amount found due upon the taking of such account.

The statutes the validity of which is challenged are--the Marketing of Primary Products Act 1935
Vict. (No. 4337), the Marketing of Primary Products (Validation) Act 1939 Vict. (No. 4658), and
the Marketing of Primary Products Act 1940 Vict. (No. 4750). Act No. 4658 cured a defect in the
appointment of the defendant Board and gave it express authority to deal with egg pulp as well as
with eggs. The precise terms of Act No. 4750 are important only in connection with the third claim
made by the plaintiffs.

The principal Act (No. 4337) deals with the marketing of primary products. The provisions of the
Act have already been set out in some detail in the case of Matthews v. The Chicory Marketing
Board (Vict.)[1], where it was held that the Act was not invalid as infringing sec. 92 of the
Constitution of the Commonwealth, but that a particular provision, sec. 32, was invalid as imposing
a duty of excise contrary to sec. 90 of the Constitution. The Act has been applied to eggs and to egg
pulp and the defendant Board has been appointed under the Acts (as amended by Act No. 4658) in
relation to these commodities. (It will be unnecessary to refer separately to egg pulp, which is in the
same position as eggs.) Therefore, upon a proclamation being made by the Governor in Council,
eggs can be compulsorily acquired by the Board (Act No. 4337, sec. 16 (1) (a)) and the Board may
take possession of eggs so acquired (sec. 16 (1) (b)). The Board may sell acquired eggs and arrange
for their export (sec. 18). Sales and deliveries of a declared commodity by a producer otherwise
than to the Board are (with certain exceptions) penalized (sec. 19 (c)). Regulations may be made and
have been made prescribing qualities for eggs and grading &c. (sec. 43). The relevant regulations
are the Egg and Egg Pulp Marketing Board Regulations 1941. The regulations also provide that
producers should make certain returns when required (reg. 37).

It is contended for the plaintiffs that these Acts and Regulations are invalid; first, because they are
laws with respect to defence, which, it is said, is a matter within the exclusive legislative power of
the Commonwealth Parliament; secondly, because they are inconsistent with the National Security
Act 1939-1940 of the Commonwealth; and, thirdly, because they are inconsistent with regulations
made under that Act, particularly with the Egg Control Regulations--Statutory Rules 1939 No. 144
as subsequently amended. Though the first objection must be determined without any reference to
the laws which the Commonwealth Parliament has chosen to enact, it will be convenient first to
refer to the Commonwealth statutes and regulations which must be considered.

The National Security Act 1939-1940, sec. 5, confers upon the Governor-General a wide power to
make regulations for securing the public safety and the defence of the Commonwealth and the
territories of the Commonwealth and, more particularly, for authorizing the acquisition on behalf of
the Commonwealth of any property other than land and for prescribing the conditions of the
disposal or use of any property, goods, articles or things.

The first regulations authorizing the acquisition of a primary product were the Wheat Acquisition
Regulations (Statutory Rules 1939 No. 96) made on 21st September 1939.

The Egg Control Regulations were made on 9th November 1939. These Regulations have been
amended from time to time, but at all times they have provided for the control of dealings in eggs,
for the prohibition of the export of eggs except under licence from the Minister for Commerce, for
the compulsory acquisition of eggs by the Commonwealth, and for the taking possession of acquired
eggs on behalf of the Commonwealth. The Regulations also provide that the Committee appointed
under the Regulations may take action to facilitate the performance of any contract between the
Government of the United Kingdom and the Commonwealth for the sale and export of eggs.

The Governor in Council (Victoria) has made proclamations under Act No. 4337 declaring that eggs
described in the proclamations shall become vested in the defendant Board. It is not alleged that the
Commonwealth Minister has taken action to acquire eggs for the Commonwealth or that the
Commonwealth has taken possession, or sought to take possession, of any eggs by virtue of powers
created by the Egg Control Regulations. The case therefore does not directly involve the questions
which would be raised if the Commonwealth and the State of Victoria purported to acquire or take
possession of the same eggs. The fact that such questions may arise is, however, relied upon by the
plaintiffs as relevant to the validity of the State Acts and Regulations.

The defendant demurs to the statement of claim, contending that all the challenged Acts and
Regulations are valid, so that the statement of claim discloses no cause of action in relation to them.
The demurrer to the claim for an account stands upon a different basis and must be dealt with
separately.

The plaintiffs do not challenge the validity of any of the Commonwealth legislation which has been
mentioned. Indeed, the first argument of the plaintiffs is based upon the proposition that this
legislation is authorized by the provisions of the Commonwealth Constitution (sec. 51 (vi.))
conferring power upon the Commonwealth Parliament to make laws with respect to: "The naval and
military defence of the Commonwealth and of the several States, and the control of the forces to
execute and maintain the laws of the Commonwealth." The State Acts and Regulations, if enacted
by the Commonwealth Parliament, would (it is said) have been authorized by this provision of the
Constitution. It is contended that the power to make laws with respect to defence is an exclusive
power of the Commonwealth Parliament, so that this State legislation (being "defence legislation")
must be invalid.

In order to determine the character of the legislative power of the Commonwealth and of the States
with reference to defence it is necessary to consider not only sec. 51 (vi.) of the Constitution, but
also secs. 52, 69 and 114.
Sec. 52 provides that the Parliament shall, subject to the Constitution, have exclusive power to make
laws for the peace, order, and good government of the Commonwealth with respect to--"(ii.)
Matters relating to any department of the public service the control of which is by this Constitution
transferred to the Executive Government of the Commonwealth." Sec. 69 provides that on a
proclaimed date "the following departments of the public service in each State shall become
transferred to the Commonwealth:-- ... Naval and military defence ..." Sec. 114 provides that "a
State shall not, without the consent of the Parliament of the Commonwealth, raise or maintain any
naval or military force." Sec. 119 should also be mentioned. It provides that "the Commonwealth
shall protect every State against invasion and, on the application of the Executive Government of
the State, against domestic violence."

Sec. 51 (vi.) is not exclusive in terms. It confers a power affirmatively upon the Commonwealth
Parliament, but it contains no words which can be used in support of an argument that the States are
completely or in any degree excluded from dealing with the subject of defence. There is no reason
arising from the nature of the subject matter why a State should not, subject to such control as the
Commonwealth Parliament may think proper to be exercised, assist the Commonwealth to the
maximum in the defence of the country. Sec. 114 does not deny, or involve any denial of, the power
of a State even to raise or maintain military or naval forces, but, conceding the existence of such a
power, makes its exercise subject to the consent of the Commonwealth. It is therefore only in a
modified sense that even the power to raise or maintain naval and military forces can be said to be
exclusive to the Commonwealth.

Sec. 52 (ii.) relates to the control of matters relating to transferred departments. The transferred
departments are (sec. 69)--Posts, telegraphs, and telephones; Naval and military defence;
Lighthouses, lightships, beacons, and buoys; Quarantine. Power to legislate with respect to the
subject matters with which such departments deal is conferred, in my opinion, not by sec. 52 (ii.)
but by sec. 51 (v.)--posts, &c., sec. 51 (vi.)--defence, sec. 51 (vii.)--lighthouses &c., and sec. 51
(ix.)--quarantine. These provisions would be quite unnecessary if sec. 52 (ii.) conferred exclusive,
and therefore complete, legislative power in relation to these subject matters. I venture to refer to
what I said as to the meaning of sec. 52 (ii.) in R. v. Brislan; Ex parte Williams[2]. It may further be
observed that sec. 69 relates to the transfer of "departments of the public service in each State"--
i.e., to State public services. When the Commonwealth constitutes a department of its own, e.g.,
defence, the provisions of sec. 51 are sufficient to give the Commonwealth complete control of that
department. Any State legislation professing to control a Commonwealth department would be
invalid, because no State Parliament has or ever has had any power to legislate upon such a subject.
Sec. 52 (ii.), as I said in R. v. Brislan[3], is directed to establishing Commonwealth control of
certain State servants and State property, subject to conditions stated in secs. 84 and 85: Cf.
Pemberton v. The Commonwealth[4].

For these reasons I am of opinion that the power of the Commonwealth Parliament in relation to
defence is not exclusive, though it is paramount by reason of sec. 109, to which reference will be
made hereafter.

It is urged, however, that the Court should follow and apply certain statements that the defence
power is exclusive to the Commonwealth which are to be found in decisions of this Court. In
Commissioners of Taxation (N.S.W.) v. Baxter[5] there is a suggestion that the defence power is
exclusive, but, upon examination, it will be seen that this statement relates only to what I have
called the exclusive power, in a modified sense, to raise and maintain forces. Further, the statement
is obiter, as, indeed, are all the statements which were relied upon in this connection. In Farey v.
Burvett[6] Isaacs J. said that "to make defence adequate and successful full power must be within
the grasp of one hand." But "full power" is not the same thing as "exclusive power," and the learned
judge explicitly stated that "the States may, in directions not contravening express prohibitions, most
advantageously act by means of their own constitutional powers in aid of the common object"--i.e.,
the defence of the Commonwealth. (Sec. 114 is an example of the "express prohibitions" to which
reference is made.) In Joseph v. Colonial Treasurer (N.S.W.)[7], there is a statement that the defence
power is exclusive to the Commonwealth. But this statement in its full generality was not necessary
to the decision of the case, and should be limited to the aspect of the defence power which was in
question, namely, the exercise by the Executive Government of the royal war prerogative. The
statement in the (dissenting) judgment of Higgins J. in Australian Workers' Union v. Adelaide
Milling Co. Ltd.[8] that "the State of Victoria has not the war power" in its strict sense means no
more than that the power to declare or make war does not belong to the States. It was not, I think,
intended to mean that a State Parliament cannot pass any Act to assist in the defence of the
Commonwealth. For reasons which I have already stated I find myself unable to agree with the
statements of Knox C.J. and Isaacs J. in Pirrie v. McFarlane[9] that the defence power is exclusive.
These statements were admittedly obiter dicta.

It was further argued that the defence power was exclusive in the Commonwealth at least in relation
to matters as to which the Commonwealth had decided to exercise its power--in this case by the
National Security Act 1939-1940--in relation to the acquisition of goods generally, or by the Wheat
Acquisition Regulations in relation to primary products, or by the Egg Control Regulations in
relation to eggs. This is not really an argument that the Commonwealth power is exclusive as a
matter of constitutional law. It is a contention that, under a power which is not exclusive, the
Commonwealth Parliament has so legislated as to show an intention to exclude State legislation with
respect to a particular subject matter--an intention "to cover the field" (Clyde Engineering Co. Ltd.
v. Cowburn[10]). In order to determine whether such a contention is well founded it is necessary to
examine the relevant Federal and State legislation in order to ascertain whether there is
inconsistency between them.

I come therefore to arguments based upon sec. 109 of the Constitution. That section is as follows:--
"When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and
the former shall, to the extent of the inconsistency, be invalid." This section applies only in cases
where, apart from the operation of the section, both the Commonwealth and the State laws which
are in question would be valid. If either is invalid ab initio by reason of lack of power, no question
can arise under the section. The word "invalid" in this section cannot be interpreted as meaning that
a State law which is affected by the section becomes ultra vires in whole or in part. If the
Commonwealth law were repealed, the State law would again become operative (R. v. Brisbane
Licensing Court; Ex parte Daniell[11], per Higgins J.)--cf. Attorney-General for Ontario v.
Attorney-General for the Dominion[12] and Amalgamated Society of Engineers v. Adelaide
Steamship Co. Ltd.[13]. Thus the word "invalid" should be interpreted as meaning "inoperative."
This is, I think, made clear by the provision that the Commonwealth law "shall prevail"--that is, the
Commonwealth law has superior authority and takes effect to the exclusion of the inconsistent State
law.

Federal and State laws, each within the powers of the respective enacting legislatures, may be
inconsistent in terms in the sense that there is a direct conflict between them so that it is impossible
to give effect to both laws. A clear example of such inconsistency is to be found in R. v. Brisbane
Licensing Court; Ex parte Daniell[14]. A State statute provided that a State vote on liquor licensing
should be taken on the same day as that fixed for a poll at an election for the Senate of the
Commonwealth. A Commonwealth statute provided that no vote of electors of a State should be
taken under the law of a State on any day appointed for an election of the Senate. There was a direct
conflict between the two statutes and the State law was therefore inoperative.

But, when there is no inconsistency in the actual terms of the competing statutes, the
Commonwealth Parliament may have shown an intention to make its legislation upon a particular
subject exhaustive, so as to exclude any State legislation upon that subject. In such a case any State
law upon the subject will be inoperative by reason of sec. 109 (Clyde Engineering Co. Ltd. v.
Cowburn[15]; Hume v. Palmer[16], where State legislation was held to be invalid under sec. 109;
Stock Motor Ploughs Ltd. v. Forsyth[17], where State legislation was held to be valid, there being
no intention of the Commonwealth Parliament to exclude State laws upon certain subjects).

The exercise of a power conferred by a Federal statute may result in State legislation becoming
inoperative. Thus if a State law is inconsistent with an award of the Commonwealth Conciliation
and Arbitration Court either because there is a direct conflict or because the award is intended to be
a complete and exhaustive code in relation to particular matters, the State law is inoperative pro
tanto: "the State legislation must give way" (Engineers' Case[18]; Clyde Engineering Co. Ltd. v.
Cowburn[19]; H. V. McKay Pty. Ltd. v. Hunt[20]; Ex parte McLean[21]).

The co-existence in Commonwealth and States of constitutional powers to make laws with respect
to the same subject matter does not involve the extinction of State powers. If it were otherwise, all
Commonwealth legislative powers would be exclusive and sec. 109 would be unnecessary. So also
the co-existence of similar or even identical powers in Federal and State authorities does not in itself
involve inconsistency between statutes creating the authorities or conferring powers upon them
(Victoria v. The Commonwealth[22]--a case dealing with Commonwealth and State powers to
remove wrecks). There would be such inconsistency if it appeared that the Commonwealth
Parliament intended to exclude any operation of the State power.

But, even in the absence of such an intention, a question under sec. 109 may arise in the case of
such statutes. If each authority should exercise its powers a conflict may be created, e.g., if both
Commonwealth and State authorities sought to take possession of the same wreck. The question
would then be, in the case last cited, whether "the Commonwealth law upon its true interpretation
gave power to remove a wreck superior to and exclusive of the power of the State" (per Starke
J.[23]) or, to put the same question in other words, whether upon the true interpretation of the
Commonwealth statute, it appeared that it was intended that the Commonwealth authority should
have power to remove a wreck "without interference from any other public authority" (per Dixon
J.[24]). If this question is answered in the affirmative then the Commonwealth law "prevails," and
the State authority is superseded by the Commonwealth authority. The State law is accordingly
inoperative to the extent to which exercise of powers under it would interfere with the exercise of
Commonwealth powers. The State law is "invalid" to that extent, i.e., the law does not become ultra
vires, but it does not operate in relation to the matters in respect of which the Commonwealth power
is being exercised.

In the present case there is no inconsistency in terms between the Commonwealth laws relating to
national security or to primary products or to eggs on the one hand and, on the other hand, the State
Acts and Regulations mentioned. There is no indication in any of the Commonwealth provisions of
an intention to exclude State legislation with respect to any of these subjects. The Commonwealth
Egg Control Regulations and the State Egg and Egg Pulp Marketing Board Regulations deal to a
large extent with substantially the same subject matter. Both sets of Regulations, for example, deal
with the export of eggs. But no conflict arises if the State Board obtains a Federal licence to export
eggs. Again, both sets of Regulations deal with the acquisition of eggs. If the Commonwealth
exercised its power to acquire a particular lot of eggs, the eggs would become the absolute property
of the Commonwealth under reg. 14 of the Egg Control Regulations freed from all other rights,
interests, &c., affecting those eggs. If the State Board sought to exercise its authority to acquire the
same eggs, then, according to the State Act (No. 4337, sec. 16) the eggs would become the property
of the Egg and Egg Pulp Marketing Board. In that case--as also if Commonwealth and State each
sought to take possession of the same eggs--there would be a conflict between the two sets of laws
in their operation. How is such a conflict to be resolved? By interpreting the Commonwealth
Regulations, in accordance with their plain terms, as meaning, in relation to the acquisition and
possession of eggs, that the Commonwealth authority was to supersede any State or other authority
so as effectively to vest property or possession in the Commonwealth to the exclusion of all other
persons, including State authorities. The State legislation would be inconsistent with the
Commonwealth legislation so interpreted, because it would, if operative, prevent the
Commonwealth law from taking effect. Therefore, under sec. 109, the Commonwealth law would
prevail and as a result the Commonwealth title to the property and the Commonwealth right to
possession would prevail. But, for the reasons stated, such a possibility provides no ground for a
declaration, such as is sought in the present case, that the State legislation is invalid.

There is no allegation in the statement of claim of any facts showing any conflict in the exercise of
powers. The Commonwealth and State laws in question are not, in my opinion, inconsistent in their
provisions, there has been no conflict in their operation, and therefore the main claim of the
plaintiffs must fail.

The plaintiffs claim a declaration that reg. 37 of the State Regulations is invalid as being
unreasonable. Mr. Menzies for the plaintiffs admitted that he assumed a heavy onus in seeking to
have the regulation declared invalid upon this ground and he referred to the case of Jones v.
Metropolitan Meat Industry Board[25]--see also Williams v. Melbourne Corporation[26]. Par. 1 (a)
of the regulation is as follows: "Any officer, servant, or employee of the Board duly authorized by
the Board in that behalf may from time to time and at any time by notice in writing order any
producer who owns or controls, or has upon his premises more than 25 fowls to furnish to him a
return in or to the effect of Form 5 of the Schedule setting out the number of eggs produced during
such period or periods as may be specified in such notice by fowls which during such period
specified in the notice were owned or controlled by the producer notified or which during such
period specified were upon his premises, and setting out the manner in which and the names and
addresses of the person or persons to whom such eggs were disposed."

Par. 1 (b) gives similar powers in the case of a producer who at any time within twelve months
immediately preceding the notice owned or controlled or had on his premises more than twenty-five
fowls. The period specified in a return may extend to two years prior to the date of notice given
(par. 1 (c)). If the regulation meant that a return could be required of all eggs laid in any place by
fowls which during the specified period had at any time been upon the producer's premises, I would
agree that the regulation was quite unreasonable from every point of view. But I think that the
regulation may be read as limited to eggs laid on the premises of the producer. So construed, this
regulation is a reasonable means of acquiring useful information and preventing evasion of the Act.
Accordingly I am of opinion that the demurrer to this claim of the plaintiffs should also be allowed.

The claims of the plaintiffs which I have hitherto considered are based upon the contention that the
State Acts or Regulations are invalid. The claim which must now be considered rests upon the basis
that the State Acts are valid. Act No. 4337, sec. 23, requires that a board appointed under the Act
shall make payments to producers in respect of commodities delivered by them to the board "on the
basis of the net proceeds of the sale of all the commodity of the same quality or standard delivered
to the board" during prescribed periods and the proportion of the commodity delivered by each
producer during each such period. The plaintiffs allege that the Board has not made payments in
accordance with this provision and seek an account in respect of eggs delivered by the plaintiffs to
the Board. The defendant demurs to this claim upon two grounds: first, that this Court has no
jurisdiction to deal with it; secondly, that by reason of sec. 5 of Act No. 4750 the Board is not bound
to make payments upon the basis set forth in Act No. 4337 but that it may make payments upon
another basis as set out in that section, and that the plaintiffs have not alleged that the Board has not
made payments upon this alternative basis.

The first question is whether the Court has jurisdiction to deal with this claim. The claim is based
entirely upon State legislation. It does not involve any question of the interpretation of the
Commonwealth Constitution. It could have been made the subject of a separate proceeding. If it had
been made the subject of a separate proceeding it could not have been suggested that this Court had
any jurisdiction in relation to it. But it has been joined in a single proceeding with other claims
which do involve the interpretation of the Constitution and which therefore do fall within the
jurisdiction of the High Court (Judiciary Act 1903-1940, sec. 30 (a)). Does this circumstance bring
within the jurisdiction a claim which, being completely severable from claims which are within the
jurisdiction, would otherwise not have been within the jurisdiction?

Sec. 30 (a) of the Judiciary Act gives to the High Court original jurisdiction "in all matters arising
under the Constitution or involving its interpretation." This phrase repeats the words of sec. 76 (i.)
of the Constitution, which provides that the Parliament may make laws conferring original
jurisdiction on the High Court in such matters. Sec. 30 of the Judiciary Act is such a law. The
Judiciary Act, sec. 2, provides that unless the contrary intention appears "matter" includes any
proceeding in a court. But no statutory provision can either fix or extend the meaning of the word
"matter" in the Constitution, and it is clear that the intention of Parliament in inserting sec. 30 of the
Act was to exercise the power conferred by sec. 76 of the Constitution: Cf. The Commonwealth v.
Brisbane Milling Co. Ltd.[27]; R. v. Maryborough Licensing Court; Ex parte Webster & Co.
Ltd.[28].

It was contended for the plaintiffs that in sec. 30 of the Act and in sec. 76 of the Constitution
included any proceedings in a court. This action is a proceeding in a court; that proceeding involves
(in relation to some claims in the action) the interpretation of the Constitution; therefore, it is said,
the whole action, including all claims made therein, is a matter which involves the interpretation of
the Constitution.

All matters which come before a court involve legal proceedings of some kind. But it does not
follow that, in a particular connection, the term "matter" is used as descriptive of the legal
proceeding itself. A single legal proceeding may involve several matters in an ordinary sense of that
word--as when several claims are joined in one action.

The word "matter" appears in the Judicature Chapter of the Constitution in secs. 73, 74, 75, 76, 77
and 78. Secs. 75 to 78 relate to the original jurisdiction of the High Court. It was said in In re
Judiciary and Navigation Acts[29], that in secs. 73 to 77 the word "matter" was used with the same
meaning and that it did not mean "a legal proceeding, but rather the subject matter for determination
in a legal proceeding"[30]. (Secs. 73 and 74 were not directly in question in that case, and possibly
the word may have a wider meaning so as to include, in sec. 73, the whole of any legal proceeding
whatever the subject matter or subject matters of the proceeding may be; and, if the question arose
in relation to sec. 74, the references to "decision," "question" and "matters" would require careful
consideration.) Sec. 75 provides that the High Court shall have original jurisdiction in certain
matters and sec. 76 provides that the Parliament may make laws conferring original jurisdiction on
the High Court in certain other matters. Sec. 77 provides that "with respect to any of the matters
mentioned" in secs. 75 and 76 the Parliament may make certain laws. Plainly, therefore, the word
"matter" must be used in the same sense at least in these three sections.

But the meaning of a word with so many possible meanings must be affected by the context in each
case where it is used. Thus, in sec. 75 (i.) a "matter arising under a treaty" is described by reference
to the character of the controversy between the parties, whoever they may be. The nature of the
questions involved in a proceeding would determine whether the High Court had jurisdiction under
this provision. But sec. 75 also applies to "matters ... (ii.) Affecting consuls or other representatives
of other countries: (iii.) In which the Commonwealth, or any person suing or being sued on behalf
of the Commonwealth, is a party: (iv.) Between States, or between residents of different States, or
between a State and a resident of another State: (v.) In which a writ of Mandamus or prohibition or
an injunction is sought against an officer of the Commonwealth." In these cases the nature of the
"matter" is determined, not by the character of the controversy, but in (ii.), (iii.) and (iv.) entirely
and in (v.) partly by the identity of a party or of the parties to the controversy. Thus the High Court
has original jurisdiction, for example, whenever the Commonwealth sues or is being sued. In such a
case the Court has jurisdiction in the legal proceeding, whatever the nature of the claim made or of
the defence raised, simply because the Commonwealth is a party to the proceeding. The important
provision in the present case is sec. 76 (i.): "any matter arising under this Constitution, or involving
its interpretation." In this instance, the significant element is that the matter in controversy between
the parties, whoever they may be, must itself arise under the Constitution or involve its
interpretation. It is only in respect to such a matter that the Court will have jurisdiction under sec.
76 (i.).

Under sec. 77 (iii.) the Parliament may make laws with respect to "any of the matters mentioned" in
secs. 75 and 76 "investing any court of a State with Federal jurisdiction." For this purpose "matters"
must, not in any general way, but in relation severally to each of the nine distinct classes of matters
mentioned in secs. 75 and 76, be given the same interpretation. In the case of matters falling within
sec. 76 (i.) the application of sec. 77 will produce the result that the Parliament may invest a State
court with Federal jurisdiction in any matter arising under or involving the interpretation of the
Constitution. If "matter" were interpreted in this instance to mean "a legal proceeding" including all
claims made in that legal proceeding, this provision would become absurd. A claim involving the
interpretation of the Constitution may be joined with all kinds of other claims against the same
defendant which has nothing to do with the Constitution--e.g., with claims based upon breach of
contract or upon tort. The provision cannot be interpreted to mean that the Commonwealth
Parliament may, for this reason, not only invest State Courts with jurisdiction in cases of contract
and tort (a jurisdiction which they possess quite independently of and prior to the Constitution), but
also may confer such jurisdiction as "federal jurisdiction"--which would be an absurd provision.

I have not been able to discover any case dealing with the precise point which arises in the present
case. There are decisions upon sec. 40 and sec. 40A of the Judiciary Act which, holding those
sections to be valid, support the view that the Court can adjudicate in a case from which all
questions of constitutional significance have been eliminated by the rejection of contentions based
upon the Constitution, the whole cause, and not merely the cause so far as its decision depends upon
such contentions, having been removed into this Court under one or other of those sections: See
George Hudson Ltd. v. Australian Timber Workers' Union[31]; Pirrie v. McFarlane[32]; Ex parte
Walsh and Johnson; In re Yates[33]--and cf. Ruhamah Property Co. Ltd. v. Federal Commissioner
of Taxation[34]. But the cause is so removed only if a decision upon the Constitution was necessary
for the determination of the case (R. v. Maryborough Licensing Court[35]; Miller v. Haweis[36]). R.
v. Carter; Ex parte Kisch[37] applies the same rule (as to the removal of the whole cause) to a case
coming into the Court under sec. 30 of the Judiciary Act. These cases were approved in Hopper v.
Egg and Egg Pulp Marketing Board (Vict.)[38] and R. v. Bevan[39]. But in each of these cases a
single claim or charge or a defence thereto was supported upon several grounds, one or more of
which involved the interpretation of the Constitution. None of the cases mentioned presented the
feature which is to be found in this case, namely, an entirely severable claim having no relation
whatever to another claim or claims made in the same proceeding which other claim or claims alone
involved the interpretation of the Constitution.

For the reasons stated I am of opinion that the claim for an account, not being in itself a matter in
which this Court has jurisdiction, does not become such a matter by being associated with other
claims in relation to which the Court has jurisdiction. The demurrer to the part of the statement of
claim which relates to this cause of action should therefore also be allowed. It accordingly becomes
unnecessary to deal with the other grounds of demurrer based upon the provisions of Act No. 4750.

Under Order XXIV., rule 10, of the Rules of Court the demurrer of the defendant to the statement of
claim should be allowed with costs. In my opinion judgment should be given for the defendant with
costs upon the causes of action in respect of which the claims numbered 1, 2, 3 and 4 are made. No
judgment should be given by this Court upon the claim as to which the Court has no jurisdiction.
The defendant will be at liberty to apply that the whole statement of claim should be struck out for
want of jurisdiction.

Rich J.

I have had the opportunity of reading the judgment of my brother Williams and agree with it.

In my opinion the demurrer should be allowed with costs.

Starke J.

The plaintiffs in this action claim declarations:--1. That the Marketing of Primary Products Acts
Nos. 4337, 4658 and 4750 of Victoria are invalid, inoperative, and of no effect. 2. That the Egg and
Egg Pulp Marketing Board Regulations 1941 made by the Governor in Council in pursuance of the
powers conferred upon him by the Marketing of Primary Products Acts and all other powers
enabling him in that behalf are invalid, inoperative, and of no effect. 3. Alternatively with claim 2,
that reg. 37 of the Egg and Egg Pulp Marketing Board Regulations 1941 is wholly, or as to clause 1
(a) thereof, unreasonable, invalid and of no effect. 4. Alternatively, if the Marketing of Primary
Products Acts are valid and operative, that the defendant had failed to comply with the requirements
of sec. 23 (1) of the Act No. 4337 in that the payments required by the section have not been paid or
accounted for to the plaintiffs. And ancillary relief and payment of any amount properly payable to
the plaintiffs is also claimed. The defendant demurred to the statement of claim and this demurrer
now falls for decision.

The Marketing of Primary Products Acts enable the Governor in Council to declare commodities for
the purposes of the Act, appoint marketing boards in relation to the commodities declared, vest the
declared commodities in boards as the absolute owner thereof, convert the rights and interests of
every person in the commodities so vested into a claim for payment in accordance with the Acts,
and also enable the boards to sell and market the commodities and to do all things necessary or
expedient in that behalf.

Eggs have been declared a commodity under these Acts and egg pulp is deemed to be a commodity
by force of the Act No. 4658. A board known as the Egg and Egg Pulp Marketing Board has been
constituted and appointed under the Acts. And on 13th May 1941 the Governor in Council made
certain regulations called the Egg and Egg Pulp Marketing Board Regulations 1941 pursuant to the
powers contained in the Acts. The Acts and the Regulations and the acts done pursuant to the
Regulations all appear, on their face, to be within the constitutional powers conferred upon the State
of Victoria by its Constitution.

The Commonwealth Parliament has no authority to repeal laws passed by the States within the
limits of their constitutional powers, though the Commonwealth Constitution Act and various of its
provisions may render those laws inoperative wholly or in part: See Roughley v. New South Wales;
Ex parte Beavis[40]. And it has been argued, on various grounds, that the Constitution Act does so
operate in respect of the Marketing of Primary Products Acts of Victoria and the Regulations made
thereunder.

      1.

      That the defence power of the Commonwealth is exclusive.

      The argument freely rendered is that the decisions of this Court so magnify the defence power
      that any measure that might conceivably, even incidentally, aid the effectuation of the power of
      defence, is authorized by the Constitution, and the Court must hold its hand and leave the rest
      to the judgment, wisdom, and discretion of the Parliament and the Executive it controls, even
      to depriving the States of their executive departments of government: See South Australia v.
      The Commonwealth[41]. Such a power, it is asserted, is in its nature exclusive, and that
      conclusion is reinforced by the provisions of secs. 52, 69, 114, and 119 of the Constitution.

      The marketing of commodities such as wheat, meat, or eggs, &c., might conceivably aid, it
      was said, the defence of the Commonwealth, and consequently the regulation thereof by
      legislation falls within the legislative, and the exclusive legislative, domain of the
      Commonwealth. The argument goes far toward the destruction of the federal system
      established by the Constitution Act, but perhaps not much farther than the recent decisions of
      this Court. The broad principle of this federal system is to be found, as regards the States, in
      the provision of the Constitution Act, that their powers are left unaffected except in so far as
      the contrary is provided (James v. The Commonwealth[42]).

      The Constitution, by sec. 52 thereof, gives the Commonwealth exclusive power to make laws
      with respect to matters relating to any department of the public service, the control of which is,
      by the Constitution, transferred to the Executive Government, and by sec. 69 the departments
      of naval and military defence in each State were transferred to the Commonwealth. But this
      does not extend to any matter, as was contended, which is dealt with by the department of
      naval and military defence. It relates to the administrative control of the department. Again,
      sec. 114 prohibits the States from raising naval or military forces and sec. 119 requires the
Commonwealth to protect the States against invasion and, on application of the Executive
Government of a State, against domestic violence. Again, the legislative power of the
Commonwealth can be exercised beyond the territorial limits of a State; it is not confined
within the boundary of a State. But except as provided, as already mentioned, the Constitution
does not make the legislative power of the Commonwealth in respect of naval and military
defence exclusive of the power of the States (See James v. The Commonwealth[43]), though if
a law of a State is inconsistent with a law of the Commonwealth the latter prevails
(Constitution, sec. 109).

2.

That at all events the defence power of the Commonwealth is exclusive in respect of all matters
within its ambit upon which the Commonwealth legislates, for the Commonwealth then
occupies that field to the exclusion of the States.

Thus the National Security Act 1939-1940 (No. 15 of 1939 and No. 44 of 1940) empowers the
Governor-General in Council to make regulations for securing the public safety and defence of
the Commonwealth, authorizing the acquisition, on behalf of the Commonwealth, of any
property other than land; and that power, it was pointed out, had been exercised by the
Governor-General in Council in the Wheat Acquisition Regulations, the Egg Control
Regulations, and other regulations as well. The exclusive legislative authority of the
Commonwealth over the subject matters dealt with in these regulations is not thereby
established, though the laws of the State may be inconsistent with the legislative provisions
made by the Commonwealth, which will then prevail (Constitution, sec. 109).

3.

That the Marketing of Primary Products Acts of the State of Victoria and the Regulations
thereunder were inconsistent with the law of the Commonwealth, namely, the National Security
Act 1939-1940 and the Egg Control Regulations made thereunder (See National Security Act,
sec. 18) and are consequently by force of the Constitution invalid, to the extent of the
inconsistency.

It is unnecessary for me to discuss over again what is a law of the Commonwealth for the
purposes of sec. 109, or what makes the law of a State inconsistent with a law of the
Commonwealth, and I merely refer to my own view of the matter in Clyde Engineering Co.
Ltd. v. Cowburn[44]; Ex parte McLean[45]. The mere imposition of a tax involves no
inconsistency (In re Silver Bros. Ltd.[46]), and still less does the existence of legislative
powers over the same subject matter in both the Commonwealth and the States. The
inconsistency, if it exists, must arise out of the exercise of those powers.

By reg. 14 (1) of the Commonwealth Egg Control Regulations it is provided:--"The Minister,
from time to time, by order published in the Gazette, may declare that any eggs described in
the order are acquired by the Commonwealth and those eggs shall thereupon become the
absolute property of the Commonwealth freed from all mortgages, charges, liens, pledges,
interests and trusts affecting those eggs and the rights and interests of every person in those
eggs are hereby converted into claims for compensation."

But the Minister has never exercised this power and no declaration has ever been made that all
or any eggs are acquired by the Commonwealth. It was said, however, that the Commonwealth
Act and regulations disclose an intention to deal with the subject matter and prescribe the law
in relation to the acquisition and marketing of eggs and egg pulp. The argument breaks down,
however, at the threshold, for the Commonwealth discloses no intention to acquire or market
any eggs or egg pulp and does not prescribe the law in relation to the acquisition and marketing
of eggs and egg pulp unless and until a declaration is made. Consequently no inconsistency at
present arises with the Marketing of Primary Products Acts of the State of Victoria.

4.

Another contention is that reg. 37, or at all events reg. 37 (1) (a), is unreasonable and therefore
inoperative.

But "unreasonable" in this connection means that the regulation is so oppressive and capricious
that no reasonable mind can justify it (Widgee Shire Council v. Bonney[47]; Brunswick
Corporation v. Stewart[48]). The Marketing of Primary Products Acts gives power to the
Governor in Council to make regulations providing for all or any purposes necessary or
expedient for the administration of the Act or carrying out the objects of the Act and in
particular and without affecting the generality of the foregoing, prescribing the form in which
returns and statistics shall be made and furnished in accordance with the Act, and the
particulars to be supplied therein and the persons (whether producers or not) by whom the
same shall be made and the time and mode of making and furnishing same. The regulations
must be published in the Gazette and laid before both Houses of Parliament, which may
disallow the same: See Act No. 4337, sec. 43.

The Acts, it will be remembered, vest the eggs and egg pulp in the Marketing Board and
provide for compensation to producers during prescribed periods of time: See Acts Nos. 4337,
sec. 23, and 4750, sec. 5. The periods of time for the purpose of computing payments are
annual periods: See reg. 28. The regulation 37 prescribes that the Marketing Board may by
notice in writing from time to time and at any time order any producer who owns or controls or
has on his premises more than twenty-five fowls or who has at any time within twelve months
immediately preceding such notice owned or controlled or had upon his premises more than
twenty-five fowls, to furnish a return in a prescribed form setting out the number of eggs
produced during such period or periods, as may be specified in such notice, by fowls which
during such period specified in the notice were owned or controlled by the producer notified or
which during such period specified were upon his premises, and setting out the manner in
which and the names and addresses of the person or persons to whom such eggs were disposed.

In Jacobs v. Gray[49] in this Court the validity of the regulation does not appear to have been
doubted and in Taylor v. Anstis[50] the regulation was upheld. But it is now attacked on the
ground that it extends not only to fowls owned or controlled by the producer but to fowls
during the period specified in the notice upon his premises. It was suggested that these latter
words would cover the case of fowls laying eggs on the producer's premises without his
knowledge. But that is quite contrary to ordinary principles of construction and to the frame of
the Regulations themselves. They assume that the producer knows that fowls are laying eggs
upon his premises and are part of his production. The regulation is expressed in wide general
words so as to prevent evasion. In my opinion, it is not unreasonable in any relevant sense.

5.
      Lastly, there remains for consideration the demurrer so far as it affects the alternative claim for
      compensation under the Marketing of Primary Products Acts. It is to the jurisdiction of this
      Court and also to the sufficiency in substance of the allegations in the statement of claim. The
      Constitution gave original jurisdiction to this Court in certain matters (sec. 75), and enabled
      Parliament to make laws conferring original jurisdiction on this Court in any matter arising
      under the Constitution or involving its interpretation (sec. 76). And original jurisdiction was
      conferred by Parliament on this Court in all matters arising under the Constitution or involving
      its interpretation (Judiciary Act 1903-1940, sec. 30). Knox C.J. said in R. v. Maryborough
      Licensing Court[51]: "The matters in respect of which original jurisdiction is or may be
      conferred on the High Court are limited to those set out in secs. 75 and 76 of the Constitution,
      and it is, in my opinion, clear from the language used in the relevant sections of the Judiciary
      Act that Parliament did not intend by that Act to attempt to confer on the High Court original
      jurisdiction in respect of any matter not covered by secs. 75 and 76 of the Constitution. Any
      attempt to confer on the High Court original jurisdiction in respect of any matter beyond these
      limits would, of course, be unconstitutional, and therefore ineffective, and it is the duty of this
      Court in construing sec. 40A (of the Judiciary Act) to place upon its words, if possible, a
      meaning which will not offend against the limitations imposed by the Constitution on the
      power of Parliament to confer original jurisdiction on the High Court." Isaacs J. added[52]:--
      "As to the interpretation of sec. 40A, reading it as a whole and in conjunction with the other
      sections with which it is associated, I construe its language as going no further than the
      Constitution itself. Its language is certainly capable of that construction, and therefore, in
      conformity with a well-established principle, that construction should be adopted."

Again, in In re Judiciary and Navigation Acts[53] it was said by five members of this Court: "It was
suggested in argument that matter meant no more than legal proceeding, and that Parliament might
at its discretion create or invent a legal proceeding in which this Court might be called on to
interpret the Constitution by a declaration at large. We do not accept this contention; we do not think
that the word matter in sec. 76 means a legal proceeding, but rather the subject matter for
determination in a legal proceeding. In our opinion there can be no matter within the meaning of the
section unless there is some immediate right, duty or liability to be established by the determination
of the Court": See South Australia v. Victoria[54].

Consequently a matter involving the interpretation of the Constitution is a subject for judicial
determination in which some right duty or liability of a party is to be established which may involve
the interpretation of the Constitution. If there be such a matter then, as I said in R. v. Bevan[55], the
jurisdiction of this Court is attracted and it has full authority for the complete adjudication of the
matter and not merely the interpretation of the Constitution. And once that jurisdiction is acquired it
is not lost by reason of the rejection of the constitutional point. But there must be a matter, a cause
of action, in the sense indicated, and not merely a legal proceeding in which the interpretation of the
Constitution arises in respect of some matters or causes of action. The jurisdiction of this Court is
not attracted to matters or causes of action arising in a legal proceeding which cannot involve the
interpretation of the Constitution. The definition of in the Judiciary Act, sec. 2, and the High Court
Procedure Act 1903-1937, sec. 2, includes "unless the contrary intention appears-- ... any
proceeding in a Court whether between parties or not, and also any incidental proceeding in a cause
or matter", but these definitions cannot transcend the Constitution or enable Parliament to confer a
jurisdiction upon this Court which the Constitution does not allow.
The statement of claim in the present case alleges two distinct matters or causes of action, one based
upon the invalidity of the Marketing of Primary Products Acts and the Regulations made
thereunder, which involves the interpretation of the Constitution; the other based upon the validity
of the Acts and Regulations and the non-performance of their provisions, which does not involve the
interpretation of the Constitution. In the former case this Court has jurisdiction to adjudicate upon it
completely, including the reasonableness of reg. 37 and not merely the interpretation of the
Constitution. In the latter case this Court has no original jurisdiction whatever to adjudicate upon
the matter. The application of these propositions to secs. 38A, 40, and 40A of the Judiciary Act are
stated in Re Drew[56]; R. v. Maryborough Licensing Court[57].

It is unnecessary in this view to consider the demurrer so far as it affects the sufficiency in substance
of the alternative claim based on the validity of the State Acts and Regulations. But as the point was
argued perhaps I may state my conclusion. The statement of claim alleges that the defendant failed
to comply with the provisions of sec. 23 (1) of Act No. 4337 that subject to the Act the Board
"shall" make payments to each producer in respect of the commodity delivered to the Board. But the
Act No. 4750, sec. 5, prescribes that notwithstanding anything in sec. 23 of the Act the Board "may"
make payment in the manner prescribed in that Act. The statement of claim does not exclude
payment to the plaintiffs in the manner prescribed by the later Act. The duty imposed upon the
Board is in substance in the alternative either to comply with the provisions of sec. 23 (1) or those
contained in sec. 5 of Act No. 4750. But if the obligation of the Board be alternative and not
absolute, then strictly the pleading should so allege or there would have been a fatal variance under
the common law system of pleading and even now a variance curable by amendment: See Bullen
and Leake, Pleadings, 3rd ed. (1868), vol. 1, p. 60; Chitty on Pleadings, 7th ed. (1844), vol. ii., pp.
315-318; Penny v. Porter[58]; Tate v. Wellings[59]. Strictly, therefore, the cause of action based on
the Marketing of Primary Products Acts omits a material allegation and consequently is also
demurrable on this ground.

The result is that the demurrer in this action on the part of the defendant should be allowed.

McTiernan J.

The submissions by which the plaintiffs support the statement of claim, the subject of this demurrer,
involve questions arising under the Constitution.

The first submission is that the Constitution of the Commonwealth gives to the Parliament of the
Commonwealth exclusive power to make laws with respect to defence. It is then submitted that, as
the existence of a state of war and the emergencies growing out of it have drawn within the field to
which this power extends the subject matter of many provisions of the Marketing of Primary
Products Acts of Victoria, including those which have been brought into operation for the purpose
of regulating the marketing of eggs and egg pulp, those provisions of these Acts are invading a field
of power which belongs exclusively to the Commonwealth. The submission that the Parliament of
the Commonwealth alone has power to make laws with respect to defence is based mainly on sec.
52 (ii.) of the Constitution, and reliance is also placed on observations regarding the defence power
in the cases cited in argument in support of this submission. Neither sec. 52 (ii.) nor any other
provision of the Constitution expressly says that the power conferred on the Parliament by sec. 51
(vi.) is an exclusive power of the Parliament of the Commonwealth. Sec. 52 (ii.) provides that the
Parliament shall have exclusive power to make laws with respect to, among other things, matters
relating to any department of the public service the control of which is by the Constitution
transferred to the Executive Government of the Commonwealth. It is provided by sec. 69 that on a
date or dates to be proclaimed by the Governor-General after the establishment of the
Commonwealth certain departments of the public service in each State, including naval and military
defence, "shall become transferred to the Commonwealth." The result of secs. 52 (ii.) and 69 is that
the Parliament of the Commonwealth has exclusive power to make laws with respect to matters
relating to the department of naval and military defence. It is contended that this exclusive power
extends to all matters which are within the ambit of the defence power in time of peace or war. This
contention concentrates on secs. 52 (ii.) and 69 as the source of the legislative power with respect to
defence. If these sections were the source of that power, sec. 51 (vi.) would appear to be otiose, and
this could be said of this placitum if the power conferred by sec. 52 (ii.) to make laws with respect
to matters relating to the department of naval and military defence were as wide as that conferred by
sec. 51 (vi.). But a comparison of the language of sec. 51 (vi.) and sec. 52 (ii.) makes it impossible
to say that each covers the same ground. The former is clearly not otiose, and these considerations
are sufficient to destroy the contention that sec. 52 (ii.) combined with sec. 69 defines the defence
power of the Parliament of the Commonwealth. Its power to make laws covering the field to which
the Marketing of Primary Products Acts extend could not, in my opinion, be rested on sec. 52 (ii.).
That power is derived from sec. 51 (vi.). There is not any identity between the things to which those
Acts apply and things which could be properly described as matters relating to the department of
naval and military defence. The powers conferred by sec. 51 (vi.) are not, as has been observed,
declared by the Constitution to be exclusive powers of the Parliament of the Commonwealth. The
words of sec. 51 (vi.) do not imply any prohibition against a State making laws with respect to
defence within its own territorial jurisdiction. Indeed, its power to maintain a naval or military force
would be saved by sec. 107 if sec. 114 did not impose a prohibition against the raising or
maintaining such a force without the consent of the Parliament of the Commonwealth. Sec. 119
imposes a duty on the Commonwealth to protect every State against invasion and, on the application
of the Executive Government of the State, against domestic violence. The core of the power
conferred by sec. 51 (vi.) is the defence of the Commonwealth and the States by force and the
control of the forces. But this does not exhaust the content of the power conferred by sec. 51 (vi.).
Subject to sec. 114 every State has power to make laws for its own peace, welfare and good
government operating within the field to which sec. 51 (vi.) extends. Any such State law would not
prevail and would be void to the extent to which it was inconsistent with a valid Commonwealth
law, but it would not be void as an unlawful invasion of an exclusive field of Commonwealth power.
Neither sec. 52 (ii.) nor any other provision of the Constitution supports the submission that no
other Parliament but that of the Commonwealth has power to make laws with respect to any subject
which falls within the ambit of the power of the Parliament of the Commonwealth to legislate with
respect to defence. The observations from the cases which were relied upon to support the
submission are not authority for so wide a submission as the plaintiffs make and need to make to
bring about the invalidity of the Marketing of Primary Products Acts. In any case it was not
contended that these observations had any authority except as obiter dicta.

The second submission on behalf of the plaintiffs is made on the footing that the Marketing of
Primary Products Acts are within the legislative powers of the State. According to this submission
these Acts and the Regulations made under them are, within the meaning of sec. 109 of the
Constitution, inconsistent with Commonwealth law, with the result that this law prevails and the
State Acts and Regulations are invalid. The Commonwealth law with which it is submitted that the
State Acts and Regulations are inconsistent is, first, the National Security Act and, secondly, the law
contained in that Act and the Egg Control Regulations. The Act gives power to the Governor-
General in Council to make regulations which will operate substantially in the same way as the State
Acts in relation to any product that is within their scope. But this consideration is not sufficient to
justify the conclusion that there is inconsistency between the State Acts and Regulations and the
Commonwealth Act (Victoria v. The Commonwealth[60]). The Egg Control Regulations were made
pursuant to the power to make regulations conferred on the Governor-General in Council by the
National Security Act. These Regulations confer power on the Minister to expropriate eggs on
behalf of the Commonwealth. They empower the Minister to expropriate substantially in the same
field as that to which the State Acts apply. The Minister has not exercised the power of
expropriation conferred on him by the Commonwealth Regulations. So long as the power is not
exercised, inconsistency between the Commonwealth law and the State law cannot be deduced from
the provisions of the Commonwealth law authorizing the Minister to expropriate (Victoria v. The
Commonwealth[61]). There are, however, self-executing regulations. Reg. 11 provides that after the
commencement of these Regulations, no person shall export any eggs unless licensed so to do under
these Regulations and in accordance with the terms and conditions of the licence. Reg. 12 gives
power to the Minister to issue licences to export eggs and egg pulp and to cancel or suspend any
such licence. Reg. 13 prescribes the terms and conditions of the licence. Sub-sec. 1 (d) of sec. 18 of
the Marketing of Primary Products Act 1935 provides that a marketing board may make such
arrangements as it deems necessary with regard to the sale of the commodity for export or for
consignment to other States or countries, and for the purpose of this provision sales of the
commodities for oversea ship's stores shall be deemed to be sales for export. The State Regulations,
which are known as the Egg and Egg Pulp Marketing Board Regulations, prescribe the standards of
quality and grades of eggs which are for export. It may be that there would be inconsistency
between State and Commonwealth law if the Commonwealth licence also prescribed terms and
conditions relating to the quality and grade of the product to which it referred, but it would not
follow that the Marketing of Primary Products Acts are wholly invalid. In my opinion the second
submission made on behalf of the plaintiffs should also fail.

The plaintiffs also claim that reg. 37 of the State Regulations or par. a of clause 1 of this regulation
is invalid on the ground that it is unreasonable. This claim does not raise a question under the
Constitution or involving its interpretation. But it is consistent with the practice which the Court
adopts in applying sec. 30 of the Judiciary Act 1903-1940 to decide the question whether the
regulation or that part of it is invalid on that ground because it is involved in a matter over which
the Court is given jurisdiction by that section.

In Widgee Shire Council v. Bonney[62] Griffith C.J. said:--"With regard to the objection that the
by-law is unreasonable, I think that since the cases of Slattery v. Naylor2(1888) 13 App. Cas. 446.
and Kruse v. Johnson3(1898) 2 Q.B. 91. it is very difficult to make a successful attack on a by-law
on this ground. In my opinion, the intention of the legislature, as evidenced by the section to which I
have referred, was to leave to the local authority in the first instance, and to the Governor in Council
in the second, the decision of the question of the expediency of exercising the powers conferred on
them. The existence of a power and the expediency of its exercise are quite different matters. The
question of the existence of the power can always be determined by a court of law. But, in my
opinion, the expediency of the exercise of a power is not a matter for determination by a court.
What might be regarded by everyone as a reasonable and proper by-law to make in a city or in a
large country town might in the case of a small country township or sparsely-settled district (to all
of which the Act in question applied) be regarded by some persons as unreasonable. But it is
obvious that the question whether the circumstances of the locality warrant the exercise of a power
is one of expediency and not of competency. Otherwise the validity of a by-law would have to be
determined upon extrinsic evidence as to the circumstances of the particular locality. I do not know
of any instance in which such a doctrine has ever been suggested. In my opinion, the legislature has
deliberately and intentionally made the local authority, subject to the approval of the Governor in
Council, the sole judge of such matters, subject only to this qualification, that, if a by-law is such
that no reasonable man, exercising in good faith the powers conferred by the statute, could under
any circumstances pass such a by-law, it might be held invalid on that ground as being an abuse of
the power, and therefore not within it. This view is in accord with the accepted rule that the exercise
of discretion by local authorities will not be reviewed by a court of law in cases where they are
authorized to execute such works as may be necessary." In Williams v. Melbourne Corporation[65],
it was decided that in the High Court the unreasonableness of a by-law made under statutory power
is not treated as a separate ground of invalidity: See the report[66]. The Court, however, decided
that although a by-law on its face relates to the subject matter of the power of which it professes to
be an exercise yet it might be declared to be unauthorized by the grant of power because of its
unreasonableness. "To determine whether a by-law is an exercise of a power, it is not always enough
to ascertain the subject matter of the power and consider whether the by-law appears on its face to
relate to that subject. The true nature and purpose of the power must be determined, and it must
often be necessary to examine the operation of the by-law in the local circumstances to which it is
intended to apply. Notwithstanding that ex facie there seemed a sufficient connection between the
subject of the power and that of the by-law, the true character of the by-law may then appear to be
such that it could not reasonably have been adopted as a means of attaining the ends of the power. In
such a case the by-law will be invalid, not because it is inexpedient or misguided, but because it is
not a real exercise of the power" (per Dixon J.[67]). The attack on the regulation is based on the
view that it purports to give the person authorized by the Board power to require the person, to
whom he may give notice, to furnish information which he could not reasonably be expected to
supply and for that reason it exceeds the powers which it is to be presumed that the legislature
entrusted to the Executive. Upon the face of the regulation there is a connection between it and the
power conferred by sec. 43 (1) (a) (iv.). The subject matter of the power includes returns and
statistics. The question whether it would be unreasonable to require a person to whom a notice
might be addressed to supply the information mentioned in the regulation depends upon the
circumstances. It may well be that the keeping of twenty-five fowls or more is a fair criterion of
whether the keeper is engaged in such business and that a person who was conducting poultry
keeping as a business would put his fowls in pens or other enclosures and have records of their
produce which would enable him to furnish the particulars to be supplied in conformity with the
regulation. There is no evidence of the circumstances to which the regulation applies, but every
intendment should be made in favour of the reasonableness of the regulation. It was made by the
Governor in Council and Parliament has not seen fit to disallow it: See Marketing of Primary
Products Act 1935, sec. 43. Speaking of a by-law made even by a local authority, Channell J. in Salt
v. Scott Hall[68] said: "The Court does not readily interfere to set aside as unreasonable and void
by-laws which a local authority has deliberately adopted, for it recognizes that the local authority is
itself the best judge as to whether" (it) "is required ... or not." There is, in my opinion, nothing
before the Court which would warrant it in deciding that the operation of the regulation is such that
parliament never intended to give authority to the Governor in Council to make it.

Another and diverse claim is made in the action. It does not involve any question arising under the
Constitution or involving its interpretation or any other question attracting the original jurisdiction
of this Court. The claim is for an account. It is based on the allegation that the defendant was bound
by sec. 23 of the Marketing of Primary Products Act 1935 to account to the plaintiffs, but did not
fulfil its obligation under that section. Sec. 5 of the Marketing of Primary Products Act 1940
provides that notwithstanding anything contained in sec. 23 the Board may discharge its obligation
to the producer in accordance with the provisions of sec. 5. One ground on which the defendant
Board demurs to this claim is that the obligation is not pleaded according to the provisions by which
it is created, that is in the alternative: Compare Penny v. Porter[69]; Tate v. Wellings[70]; White v.
Wilson[71]. The contrary argument on behalf of the plaintiffs is that sec. 5 was added by way of a
proviso to sec. 23, and for that reason there is no need for the plaintiffs to notice it in their statement
of claim; but it is for the defendant to plead sec. 5 if it relies on it. This argument should succeed if
sec. 5 came into the legislation by way of a proviso to sec. 23: See Thibault v. Gibson[72]; R. v.
James[73], and the other cases cited in that case: Pye v. Metropolitan Coal Co. Ltd.[74]. In my
opinion sec. 5 is not a proviso to sec. 23. The effect of the two Acts is that there is a duty on the
Board to act in conformity with sec. 23 or sec. 5. In my opinion the ground, which has been
mentioned, of this demurrer is good in principle.

But the claim for this account contains no element that would attract the original jurisdiction of this
Court. It is also argued on behalf of the defendant that the statement of claim, in so far as it claims
this account, is demurrable because it contains no element that attracts the original jurisdiction of
the Court and alleges a cause of action which is separate from and has no element in common with
any other cause of action alleged in the statement of claim which does attract the original
jurisdiction of the Court. In my opinion this is a good ground of demurrer. I agree with the Chief
Justice that there is no lawful authority for joining the claim for the account in this action.

In my opinion the demurrer should be allowed and there should be judgment in the action for the
defendant.

Williams J.

The amended statement of claim in this action, in which the plaintiffs, who carry on the business of
poultry farmers at Werribee in the State of Victoria, are suing the Egg and Egg Pulp Marketing
Board of Victoria, a body which is incorporated and operates under three Victorian Acts, Nos. 4337
of 1935, 4658 of 1939 and 4750 of 1940, combines three causes of action.

In the first cause of action the plaintiffs are seeking declarations that Act No. 4337 was invalidated
by the coming into force of the National Security Act 1939 on 9th September 1939 or of the first
regulations (Wheat Acquisition) passed to implement the powers conferred by sec. 5 of that Act on
21st September 1939 or of the Egg Control Regulations on 9th November 1939; that Act No. 4658,
which came into force on a date subsequent to those of the National Security Act and the Wheat
Acquisition Regulations but prior to that of the Egg Control Regulations, was invalidated either ab
initio or on the last-mentioned date; and that Act No. 4750, which came into force subsequently to
all three dates, was invalid ab initio. They contend that on one of these dates the Commonwealth
Parliament propounded a law relating to the acquisition and disposal of eggs pursuant to its power
under the Constitution to make laws relating to naval and military defence, that this power is an
exclusive power, and that when it is exercised with respect to any particular subject matter, this
subject matter becomes one of the matters placed by the Constitution within the exclusive
jurisdiction of the Commonwealth Parliament, so that any State legislation on the subject becomes
invalid.

The powers and duties of the Commonwealth Parliament relating to defence are contained in secs.
51 (vi.) and (xxxix.), 52 (ii.), 69, 114 and 119 of the Constitution. Sec. 51 (vi.) and (xxxix.) confers
upon the Commonwealth Parliament power to make laws for the peace, order and good government
of the Commonwealth with respect to the naval and military defence of the Commonwealth and of
the several States and the control of the forces to execute and maintain the laws of the
Commonwealth and matters incidental thereto. There are many analogies between this power and
the powers contained in the Constitution to levy customs and excise duties and grant bounties. Sec.
90 provides that on the imposition of uniform duties of customs the power of the Parliament to
impose duties of customs and of excise and to grant bounties on the production or export of goods
shall become exclusive. Sec. 91 preserves the rights of the States to grant bounties on mining for
gold, silver or other metals and to grant any bounty on the production of goods with the consent of
both Houses of the Parliament expressed by resolution. Sec. 114 provides that a State shall not
without the consent of the Parliament of the Commonwealth raise or maintain any naval or military
force. This section does not provide for the consent being given by resolution of both Houses, so
that it would have to be authorized by an Act of the Commonwealth Parliament. This consent could
extend to one or more States, but unless and until the requisite authority was conferred upon a State
or States by the Commonwealth no State would have any power to legislate on this subject. The
power to legislate with respect to raising and maintaining naval and military forces is therefore
withdrawn from the States within the meaning of sec. 107 and is as exclusive to the Commonwealth
as the power to grant bounties on the production or export of goods. Sec. 69 provides that the
departments of naval and military defence, just like the department of customs and excise, are to be
transferred to the Commonwealth. Sec. 52 provides that the Commonwealth shall have exclusive
power to make laws for the peace, order and good government of the Commonwealth with respect
to (ii.) matters relating to any department of the public service the control of which is by the
Constitution transferred to the Executive Government of the Commonwealth, and (iii.) other matters
declared by the Constitution to be within the exclusive power of the Parliament. The matters
included in (ii.) would not be confined to laws relating to the internal organization of the transferred
departments but would extend to any subject matters which such departments would ordinarily
administer. Matters in (iii.) would, for the reasons already given, include legislation with respect to
raising and maintaining naval and military forces in the Commonwealth. Sec. 61 vests the exercise
of the executive power of the Commonwealth in the Governor-General and this power extends to
the execution and maintenance of the laws of the Commonwealth. Sec. 70 provides that in respect to
matters which under the Constitution pass to the Executive Government of the Commonwealth, all
powers and functions which at the establishment of the Commonwealth are vested in the
Government of a Colony shall vest in the Governor-General. The Constitution provides therefore
for the transfer of the departments of naval and military defence to the Commonwealth, for the
withdrawal from the States of any power to legislate with respect to raising and maintaining naval
or military forces without the consent of the Commonwealth, for the conferring of exclusive power
to legislate on these matters upon the Commonwealth Parliament, and for the transfer to the
Executive Government of the Commonwealth of the sole executive power relating to naval and
military defence. The power contained in sec. 51 (vi.) is not expressly made exclusive by sec. 51.
But the section does not expressly make any of the powers it contains exclusive, although from the
content alone of some of the powers it is plain that they are exclusive. For instance, placita (iv.),
(xxx.), and the first limb of placitum (xxxi.) are exclusive powers, while other powers derive their
exclusiveness from other parts of the Constitution. The content of the defence power is probably
sufficient by itself to show that it was intended to be an exclusive power. It includes in one
comprehensive phrase power to make laws for the naval and military defence of the Commonwealth
(a matter beyond the legislative powers of any State), for the defence of the several States (so that if
the States could also make such laws there would be two Parliaments with power to make laws for
each individual State) and with respect to the control of the forces to execute and maintain the laws
of the Commonwealth. But any doubt on the point is removed when it is read in conjunction with
the other sections of the Constitution to which I have referred and compared with the analogous
provisions relating to customs, excise and bounties. It is the duty of the Commonwealth to be ready
at all times to protect every State against invasion, and, on the application of the Executive
Government of the State, against domestic violence. The defence power is, therefore, unlike many
of the powers in sec. 51 which lie dormant until the Commonwealth Parliament legislates on a
particular subject matter, a power which the Commonwealth Executive and Parliament must
actively exercise at all times, whether the Commonwealth is at peace, or war, if the Commonwealth
is to be always ready to discharge its obligations. Even if the power is concurrent there would
probably be a continuing implication that the defence legislation passed by the Commonwealth
Parliament was intended fully to occupy the field of any measures required for defence having
regard to the danger of invasion or domestic violence existing from time to time, so that under sec.
109 any State legislation on the subject of defence would be invalidated at birth. But the sounder
view is that the defence power is an exclusive power. It would not be conducive to the security of
the Commonwealth for seven legislatures in the time of war to be able to legislate on the subject of
defence and for this Court to have to determine in each case to what extent the Acts of the States
were invalid under sec. 109. This is the view which has previously been taken by most of the
Justices of this Court. It was held in Joseph v. Colonial Treasurer (N.S.W.)[75] that, because the
Commonwealth is the sole defence authority, only the Executive Government of the Commonwealth
can exercise the Royal war prerogative. It was said in the joint judgment of Isaacs, Powers and Rich
JJ.[76] that "in the allocation and distribution of powers effected by the Constitution of the
Commonwealth the defence power is exclusively assigned to the Commonwealth." In Pirrie v.
McFarlane[77] Knox C.J. said: "The Commonwealth has exclusive power to make laws with respect
to matters relating to naval and military defence." Isaacs J.[78] reiterated in extenso the view
already succinctly expressed in the joint judgment in Joseph's Case[79]. Rich J.[80] also expressed
views in accordance with this judgment.

It follows that in my opinion the Commonwealth Parliament alone can legislate on subjects which
relate exclusively to defence, such as the raising, maintaining, and control of the armed forces of the
Commonwealth.

But the ambit of the defence power is wide enough, especially in war-time, to embrace many
subjects which do not appertain exclusively to defence. The meaning of the power does not change,
but its application depends upon circumstances, so that as circumstances change so may its
operation as a power enabling the legislature to make a particular law (per Dixon J. in Andrews v.
Howell[81]). In war-time the power confers upon the Commonwealth Parliament and the Executive
which it controls authority to take any action which can conceivably aid in the defence of the
Commonwealth having regard to the magnitude of the danger which has to be met. The emergency
justifies measures being taken which entrench upon subject matters which are normally within the
exclusive domain of the States. All kinds of economic measures such as price fixing, rationing of
goods and services, acquisition of property, and restrictions upon buying and selling, may be
required to organize the nation for modern total war. Legislation on these subjects is legislation with
respect to matters upon which the States are entitled to legislate not to defend themselves but to
carry out the civil policy of the government, and to do so in times of war as well as in times of
peace. There is no suggestion in Joseph's Case[82] or in Farey v. Burvett[83] that, in the absence of
Commonwealth action, the State of New South Wales could not in the former case have passed
legislation acquiring the wheat, or that the State of Victoria could not in the latter case have fixed
the price of bread in Victoria. The mere existence of a state of war would not prevent the Victorian
Parliament passing legislation establishing the defendant Board or empowering it to acquire and
dispose of eggs produced in Victoria under its power to make laws for the peace, order and good
government of Victoria.

But the Commonwealth Parliament would have a concurrent power to legislate on this subject if
such legislation could conceivably assist in the defence of the Commonwealth, and, if and when the
Commonwealth Parliament did so, its legislation would prevail over the State legislation by virtue
of sec. 109 of the Constitution to the extent to which the State law was inconsistent with the
Commonwealth law. This extent must be determined by ascertaining from a comparison of the two
competing laws the degree to which the Commonwealth Parliament intends its law to occupy the
field to the exclusion of the operation of the State law. The National Security Act, sec. 5, merely
authorizes the Governor-General to make regulations for securing the public safety and the defence
of the Commonwealth with respect to the matters therein mentioned, which include the acquisition
on behalf of the Commonwealth of any property other than land. The Wheat Acquisition
Regulations have nothing to do with the acquisition of eggs. The Egg Control Regulations, apart
from regs. 11 to 13 which relate to the export of eggs (including egg pulp), merely create the
necessary machinery to enable the Minister to acquire certain eggs. Nothing in sec. 5 of the Act or
in the Regulations can be construed as an entry by the Commonwealth into the field occupied by the
Victorian Acts. This entry will only take place, and it will only be possible to judge the extent of the
intrusion, if and when an order is made under reg. 14 acquiring the eggs therein specified. If these
eggs are eggs subject to the Victorian legislation a condition of inconsistency may arise between the
two laws. But it is possible that any inconsistency may be avoided even when an order is made,
because the order may provide for the acquisition of the eggs from the Board after the Board has
acquired them from the producer under State legislation, or it may not apply to eggs in Victoria at
all. The law of the Commonwealth applicable under sec. 109 is sec. 5 of the Act and the Egg
Control Regulations made thereunder, and not the order. But it is the order which will identify the
eggs which are to become subject to the law of the Commonwealth embodied in the Act and the
Regulations (Clyde Engineering Co. Ltd. v. Cowburn[84]; Ex parte McLean[85]; Tasmanian
Steamers Pty. Ltd. v. Lang[86]). If there is any inconsistency between the rights of the
Commonwealth and of the Board with respect to these eggs, the two laws will then come into
collision and the Commonwealth law will prevail. This will not effect a repeal of the Victorian Acts.
They could only be repealed by the Victorian Parliament. But so long as the inconsistency exists the
Victorian Acts will be inoperative. The action therefore fails so far as it seeks declarations that the
Acts Nos. 4337 and 4658 became invalid on any of the three dates or that Acts Nos. 4658 and 4750
were invalid ab initio.

In the second cause of action the plaintiffs seek a declaration that reg. 37 of the Egg and Egg Pulp
Marketing Board Regulations 1941 was invalid ab initio on the same constitutional grounds, or
alternatively on the ground that it is unreasonable. The regulation is not the same as that which this
Court held to be invalid in Jacobs v. Gray[87]. The meaning of unreasonable is explained in the
cases collected in Brunswick Corporation v. Stewart[88]. For the reasons already given the
constitutional ground fails, and I agree for the reasons given in the preceding judgments that the
regulation is not unreasonable.

In the third cause of action the plaintiffs claim an account and payment of the amount payable to
them by the Board under sec. 23 of the Act No. 4337 in respect of eggs delivered by them to the
Board between 30th June 1938 and 1st July 1941. In popular language a cause of action is the act on
the part of the defendant which gives the plaintiff his cause of complaint (Jackson v. Spittall[89]). It
has been defined more explicitly as every fact which it would be necessary for the plaintiff to prove,
if traversed, in order to support his right to the judgment of the Court (Read v. Brown[90];
Halsbury, 2nd ed., vol. 1, p. 8). "It is a well settled rule of law that damages resulting from one and
the same cause of action must be assessed and recovered once for all. The difficulty in each instance
arises upon the application of this rule, how far is the cause which is being litigated afresh the same
cause in substance with that which has been the subject of the previous suit. The principal
consideration, says De Grey C.J., in Hitchin v. Campbell3(1771) [1746] EngR 267; 2 Black. W. 827
[96 E.R. 487]. is whether it be precisely the same cause of action in both, appearing by proper
averments in a plea, or by proper facts stated in a special verdict, or a special case. And one great
criterion, he adds, of this identity is that the same evidence will maintain both actions" (per Bowen
L.J., Brunsden v. Humphrey[92]).

In order to establish the first cause of action the facts which the plaintiffs would have to prove, if
traversed, would be that during the period subsequent to 9th November 1939 the Board had
deprived them of the possession of and had sold their eggs. There could be counts for trespass to
goods and trover alleging that the plaintiffs had suffered damage from these acts of the Board, or the
plaintiffs could elect to waive the tort and sue for the proceeds of sale as moneys had and received
to their use (United Australia Ltd. v. Barclays Bank Ltd.[93]). But the statement of claim only asks
for declarations that the Victorian Acts are invalid, and does not seek any consequential relief.
Presumably the plaintiffs still desire to recover the value of their eggs if the Acts are invalid. If so,
the statement of claim would have to be amended, because they would not be entitled to bring a
fresh action asking for damages which they could have claimed but omitted to claim in the present
action (Conquer v. Boot[94]). The plaintiffs have simply pleaded a third alternative cause of action
asking that, if the Victorian Acts are valid, they may have an account of the amount payable to them
under the Act No. 4337, sec. 23. It is a claim for compensation made by residents of Victoria against
a Victorian corporation arising out of transactions wholly occurring in Victoria. Sec. 23 prescribes
periods for determining the amount payable to producers (the statement of claim refers to two pools,
1938 to 1940 and 1940 to 1941), defines the deductions the Board is entitled to make, and provides
that the decision of the Board upon certain matters shall be final and conclusive. The third cause of
action relates to two distinct periods. Neither of these periods is conterminous with the period
subsequent to any date upon which the Victorian Acts could have been invalidated. Indeed, the first
period commences approximately fifteen months before the earliest of the three dates. The facts
required to prove damage (if the plaintiffs amend their statement of claim and allege that if the
Victorian Acts are invalid they are entitled to recover damages in tort) would be essentially different
from those required to prove the amount of compensation to which the plaintiffs would be entitled
under sec. 23. If the plaintiffs waive the tort and sue for moneys had and received, the position
would be the same because they would be seeking to recover the amount received from the sale of
their own eggs less such deductions as the Court thought proper, whereas under sec. 23 their claim
would be for their share of the proceeds of sale of the two pools for particular periods less certain
statutory deductions and subject to the decision of the Board on certain matters being final and
conclusive. So that, to borrow the words of Sargant J. in Goldrei, Foucard & Son v. Sinclair &
Russian Chamber of Commerce in London[95], "this alternative claim constitutes, in my judgment,
a separate and distinct cause of action resting on a different foundation and involving very different
remedies." As Lord Moulton, in delivering the judgment of the Privy Council, said in Payana Reena
Saminathan v. Pana Lana Palaniappa[96], the first and third causes of action "are in truth
inconsistent and mutually exclusive causes of action."

By sec. 76 (i.) of the Constitution the Commonwealth Parliament may make laws conferring
original jurisdiction on the High Court in any matter arising under the Constitution or involving its
interpretation. By sec. 77 (ii.) the Parliament may define the extent to which the jurisdiction of the
High Court shall be exclusive of that which belongs to or is invested in the Courts of the States. The
Judiciary Act 1903-1940, sec. 30, confers this original jurisdiction on the High Court and, by sec.
38A, makes it exclusive in matters (other than trials for indictable offences) involving any question
however arising as to the limits inter se of the constitutional powers of the Commonwealth and
those of any State or States. The first two causes of action in the statement of claim are matters
which fall within sec. 30 (a). Previous decisions of this Court, several of which are referred to in R.
v. Bevan[97], have established that a constitutional question arises when its determination becomes
necessary upon the ascertained or asserted facts of the case. In other words, whenever there is
woven across the warp of the facts constituting a cause of action the woof of a constitutional
question, this Court has original jurisdiction to determine the whole of that cause of action. Secs. 40
and 40A of the Judiciary Act are complementary to secs. 30 (a) and 38A, and it would be strange if
this Court did not have the same jurisdiction under the latter sections where the proceedings
originate in the Court as it has under the former sections when the cause is removed into this Court.
in secs. 30 and 38A and in secs. 40 and 40A do not apply to the whole proceeding, but only to those
claims or causes of action which raise a constitutional question. If the Commonwealth Parliament,
by defining in sec. 2 "Suit" to include any action or original proceeding between parties, "Cause"
any suit, and "Matter" any proceeding in a court, intended to give a wider meaning to matter and
cause, the sections would be beyond the power to confer original jurisdiction on this Court granted
by the Constitution and they would have to be read down in accordance with sec. 15A of the Acts
Interpretation Act 1931-1941 to preserve their validity. But the sections themselves on their proper
construction appear to me to be limited in this way.

For these reasons the third cause of action is not a matter in which this Court has original
jurisdiction. It is unnecessary, therefore, to determine the demurrer that by reason of the provisions
of sec. 5 of the Act No. 4750 the defendant could discharge its obligation to pay compensation to
the plaintiffs under sec. 23 or alternatively under sec. 5, so that the third cause of action is defective
because the plaintiff should have alleged that he had not received compensation under either section.

I agree that the demurrer should be allowed with costs.

Demurrer allowed with costs.

Solicitor for the plaintiffs, Joan Rosanove.

Solicitors for the defendant, Henderson & Ball.

[1] [1938] HCA 38; (1938) 60 C.L.R. 263.

[2] [1935] HCA 78; (1935) 54 C.L.R. 262, at pp. 274, 275.

[3] [1935] HCA 78; (1935) 54 C.L.R. 262.

[4] [1933] HCA 18; (1933) 49 C.L.R. 382.

[5] [1907] HCA 76; (1907) 4 C.L.R. 1087, at pp. 1126, 1127.

[6] [1916] HCA 36; (1916) 21 C.L.R. 433, at p. 451.

[7] [1918] HCA 30; (1918) 25 C.L.R. 32, at pp. 46, 47.

[8] [1919] HCA 27; (1919) 26 C.L.R. 460, at p. 475.

[9] [1925] HCA 30; (1925) 36 C.L.R. 170, at pp. 191, 192.

[10] [1926] HCA 6; (1926) 37 C.L.R. 466.
[11] [1920] HCA 24; (1920) 28 C.L.R. 23, at p. 33.
[12] (1896) A.C. 348.
[13] [1920] HCA 54; (1920) 28 C.L.R. 129, at p. 154.
[14] [1920] HCA 24; (1920) 28 C.L.R. 23.
[15] [1926] HCA 6; (1926) 37 C.L.R. 466.
[16] [1926] HCA 50; (1926) 38 C.L.R. 441.
[17] [1932] HCA 40; (1932) 48 C.L.R. 128.
[18] [1920] HCA 54; (1920) 28 C.L.R. 129, at p. 154.
[19] [1926] HCA 6; (1926) 37 C.L.R. 466.
[20] [1926] HCA 36; (1926) 38 C.L.R. 308.
[21] [1930] HCA 12; (1930) 43 C.L.R. 472.
[22] [1937] HCA 82; (1937) 58 C.L.R. 618.
[23] (1937) 58 C.L.R., at p. 628.
[24] (1937) 58 C.L.R., at p. 631.
[25] [1925] HCA 54; (1925) 37 C.L.R. 252, at p. 261.
[26] [1933] HCA 56; (1933) 49 C.L.R. 142, at pp. 150, 155.
[27] [1916] HCA 39; (1916) 21 C.L.R. 559, at pp. 565, 568, 579.
[28] [1919] HCA 71; (1919) 27 C.L.R. 249, at p. 253.
[29] [1921] HCA 20; (1921) 29 C.L.R. 257, at p. 266.
[30] (1921) 29 C.L.R., at p. 265.
[31] [1923] HCA 38; (1923) 32 C.L.R. 413, at p. 431.
[32] [1925] HCA 30; (1925) 36 C.L.R. 170.
[33] [1925] HCA 53; (1925) 37 C.L.R. 36, at pp. 57, 58, 129, 130.
[34] [1928] HCA 22; (1928) 41 C.L.R. 148, at p. 151.
[35] [1919] HCA 71; (1919) 27 C.L.R. 249.
[36] [1907] HCA 44; (1907) 5 C.L.R. 89.
[37] [1934] HCA 50; (1934) 52 C.L.R. 221, at pp. 223, 224.
[38] [1939] HCA 24; (1939) 61 C.L.R. 665.
[39] Ante, p. 452.
[40] [1928] HCA 48; (1928) 42 C.L.R. 162, at p. 207.
[41] [1942] HCA 14; (1942) 65 C.L.R. 373.
[42] [1936] UKPCHCA 4; (1936) A.C. 578, at p. 611.
[43] [1936] UKPCHCA 4; (1936) A.C. 578.
[44] [1926] HCA 6; (1926) 37 C.L.R. 466, at pp. 524 et seq.
[45] [1930] HCA 12; (1930) 43 C.L.R. 472, at p. 479.
[46] (1932) A.C. 514, at p. 521.
[47] [1907] HCA 11; (1907) 4 C.L.R. 977.
[48] [1941] HCA 7; (1941) 65 C.L.R. 88, at p. 97.
[49] Unreported; noted 14 A.L.J. 434.
[50] (1940) V.L.R. 300.
[51] [1919] HCA 71; (1919) 27 C.L.R. 249, at pp. 253, 254.
[52] (1919) 27 C.L.R., at p. 256.
[53] [1921] HCA 20; (1921) 29 C.L.R. 257, at p. 265.
[54] [1911] HCA 17; (1911) 12 C.L.R. 667.
[55] Ante, at p. 465.
[56] (1919) V.L.R. 600.
[57] [1919] HCA 71; (1919) 27 C.L.R. 249.
[58] (1801) 2 East. 2 [102 E.R. 268].
[59] (1790) 3 T.R. 531 [100 E.R. 716].
[60] [1937] HCA 82; (1937) 58 C.L.R. 618.
[61] [1937] HCA 82; (1937) 58 C.L.R. 618.
[62] [1907] HCA 11; (1907) 4 C.L.R. 977, at pp. 982, 983.
[63] (1888) 13 App. Cas. 446.
[64] (1898) 2 Q.B. 91.
[65] [1933] HCA 56; (1933) 49 C.L.R. 142.
[66] (1933) 49 C.L.R., at pp. 150, 154, 155, 158, 159.
[67] (1933) 49 C.L.R., at p. 155.
[68] (1903) 2 K.B. 245, at p. 248.
[69] (1801) 2 East. 2 [102 E.R. 268].
[70] (1790) 3 T.R. 531 [100 E.R. 716].
[71] (1800) 2 Bos. & Pul. 116 [126 E.R. 1188].
[72] (1843) 12 M. & W. 88, at p. 94 [152 E.R. 1122, at p. 1125].
[73] (1902) 1 K.B. 540.
[74] [1934] HCA 9; (1934) 50 C.L.R. 614; (1936) A.C. 343; 55 C.L.R. 138.
[75] [1918] HCA 30; (1918) 25 C.L.R. 32.
[76] (1918) 25 C.L.R., at p. 46.
[77] [1925] HCA 30; (1925) 36 C.L.R. 170, at p. 184.
[78] (1925) 36 C.L.R., at pp. 191, 192, 199, 212.
[79] [1918] HCA 30; (1918) 25 C.L.R. 32.
[80] (1925) 36 C.L.R., at pp. 220, 221.
[81] [1941] HCA 20; (1941) 65 C.L.R. 255, at p. 278.
[82] [1918] HCA 30; (1918) 25 C.L.R. 32.
[83] [1916] HCA 36; (1916) 21 C.L.R. 433.
[84] [1926] HCA 6; (1926) 37 C.L.R. 466.
[85] [1930] HCA 12; (1930) 43 C.L.R. 472.
[86] [1938] HCA 30; (1938) 60 C.L.R. 111.
[87] Unreported; noted 14 A.L.J. 434.
[88] [1941] HCA 7; (1941) 65 C.L.R. 88, at pp. 97, 99.
[89] (1870) L.R. 5 C.P. 542, at p. 552.
[90] (1888) 22 Q.B.D. 128, at p. 131.
[91] [1746] EngR 267; (1771) 2 Black. W. 827 [96 E.R. 487].
[92] (1884) 14 Q.B.D. 141, at p. 147.
[93] (1941) A.C. 1.
[94] (1928) 2 K.B. 336, at p. 345.
[95] (1918) 1 K.B. 180, at p. 192.
[96] (1914) A.C. 618, at p. 625.
[97] Ante, p. 452.
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