Fearnley v Finlay

This interesting case raised the question of “whether a person who is engaged in the business of agisting cattle on their land has a storer’s lien on the cattle for their lawful charges for storage, preservation and other expenses in relation to the cattle, under s 3 of the Storage Liens Act 1973 (Qld)?”. The answer to that question is important given the vast size of the pastoral industry in Queensland and frequency with which agistment of livestock takes place, especially in times of drought. The decision of the Court is also important as it deals with some important points of statutory construction.

The agreement for agistment was, as is common, founded upon an oral contract that the respondent would agist cattle on certain properties in consideration for the payment of agistment fees. Based upon that simple agreement the respondent claimed that a lien arose under the Storage Liens Act for outstanding agistment fees and charges over the cattle which had been agisted under the agreement. The Storage Liens Act 1973 was the updated and modernised Warehousemen’s’ Liens Act which was amended in 1995 to modernise the language. The effect of the change of the wording in the Act from “Warehousemen” to “Storers” together with the wide definition of goods had the effect that the ordinary meaning of the words in s 3, “goods deposited with the storer for storage”, might have encompassed the situation where livestock were agisted.

The decision of the Court was delivered by Jackson J (with whom Holmes and Morrison JJA agreed). His Honour made a number of very important points with respect to statutory interpretation and, in particular, in relation to the varying weight to be given to the text as opposed to “context”.

• His Honour succinctly identified the approach to the construction of statutes as:

“The method of the modern law of statutory interpretation requires that the ‘task of statutory construction must begin with a consideration of the text itself’ and ‘[s]o must the task of statutory construction end’, whilst also not forgetting that the ‘the modern approach to statutory interpretation ... insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise’”.

• In relation to the matter before the Court, cattle were within the definition of “goods” in the Storage Liens Act.
• However, for the Storage Liens Act to apply the goods must have been deposited with the storer “as bailee for reward” although that could apply to the holding of livestock in some circumstances.
• His Honour identified that the agistment of cattle is not merely a contract of storage; livestock are agisted for the purposes of production as were the circumstances in the present matter.
• Statutory “purpose” or “intention” for s 14A of the Acts Interpretation Act or for the purpose of the common law rules of construction are objective concepts and are matters which exist within the text and structure of the statute but may be ascertained by consideration of history and the surrounding common law.
• An examination of the history of the legislation indicated an intention to alter the law to benefit warehousemen who did not have a common law lien in respect of storage costs. The revision of the legislation did not operate to affect that position.
• The long title of the Act identifying it as an “act to amend the law relating to the warehousing of goods” was also identified as an important part of the context of the Act.

In his reasons for decision, his Honour also identified at some length the nature of contracts of agistment, which may be of different kinds and which may or may not involve the owner parting with possession of the livestock. He also discussed the principle of “legality” as it applied in the present case where an interference with property rights brought the principle into operation.

In the result the Court found that no lien arose under the contract of agistment.