FRUIT CONTROL

Evening Post, Volume CVII, Issue 59, 13 March 1929, Page 10

FRUIT CONTROL

BOARD'S POWERS

VALIDITY QUESTIONED

GAZETTE A NEWSPAPER?

The Pull Court, consisting of their Honours Mr. Justice Herdman, Mr. Justice ' Adams, Mr. Justice MacGrcgor, Mr. Justice Ostler,' and JMx: Justice Kennedy, was engaged to-day in hearing a case of considerable importance to fruitgrowers throughout New Zealand. Tho parties were: J. Redpath. and Sons, Ltd., of Christchurch, plaintiff, and the New Zealand Fruit Export Control Board. Mr. E. Parry appeared for the plaintiff, and Mr. A, Gray, K.C., with him Mr. J. F. Stewart, for the de-

fendant.

The board was constituted in February, 1925, under the Fruit Control Act, 1924, and up to December, 1920, by agreement with the fruitgrowers hi'tlib provincial districts of Auckland, Taranaki, Hawkcs Bay, Wellington, Marlborough, Nelson, and Canterbury, its activities were directed towards developing a profitable export trade in,apples and pears, with Europe and South America. In December, 192G, the board published notice of its intention to assume limited control of all apples and pears produced in those districts, and intended for. export to overseas markets. Anticipating the issue of the notice, which was published in the newspapers in each of the districts affected, the board had applied to the Department of Agriculture for the preparation of regulations defining the means by which the board should notify its intention of assuming control. Regulations were prepared by the Department and made by Order-in-Council on 22nd December, 1926, and were published in the "Now Zealand Gazette" on the following day. .' No notice' of. the making of the regulations was communicated to the.Board, which, without knowledge of them, published the notice in the newspapers. .The notice was not published in the Gazette as the regulations purported to require. On Ist February, 1927, the board purported to assume control, and had since, then exercised such control. • . . The plaintiff contended that tho control assumed by the board was invalid, and it claftned tho right to deal directly with the fruit growers independently of the board and to.sell their fruit to overseas purchasers without the inter<volition! of the board. . QUESTIONS FOR COURT. The questions for determination by the Court were: (1) Whether under tho Act the Governor-General-in-Couricil was empowered to/make a regulation requiring the board to publish in the Gazette notice of its intention to assume control? (2) whether, assuming that the requirements for giving notice' had been complied with by the'board; in December, 1926, that .notice applied, only to fruit in existence at the time,' or whether it was of indefinite duration,applying to fruit coming into existence at future times; and (3) whether the 1 board was at present ;entitled to exercise the powers consequent upon a proper giving of notice, or- whether tho plaintiff was free to export fruit free from the board's restrictions? ' • :■ j In opening his case, Mr. Parry: said, that the'point in the case was 1 more a matter of logic than of authority. The regulations made under tho Order-in-Council purported to require publication of .the board's notice in the Gazette, as well as in the provincial newspapers. The notice had been published in the newspapers, but the board had neglected or omitted to publish it in tho Gazette. Counsel that the Order-in-Couneil prescribing publication in the "Gazette" was within tho Gov^ ernor-General's powers. He contended thai the ' Gazette was a newspaper within tho popular meaning of the word, and quoted ■■ dictionaries in support of his argument. The Gazette, counsel: maintained, was none tho less a newspaper because it contained only official news, and was not of general interest to tho public. He pointed out that several publications, which were

undoubtedly newspapers, boro the naino of ' Gazette, notably, the "Westminster'Gazette'."' "

FAR-REACHING EFFECT.

Mr. A. B. Curric, representing the At-torney-General,- said .that tho decision in the case was bound to have an effect beyond the Fruit Control Act and the regulations in.'question, rlt was bound to affect tho Meat Export Control Act,. 1921-22, the Dairy Produce Export Control Act, 1023, the Honey Export Control Act, 1024, and the Kauri Gum Control Act, 1925. The decision would, therefore, bo a decision on every one of : the other Orders-in-Council, which required notification in the Gazette, as well as publication in the newspapers. Counsel referred to tjie range of conditions which the Order-in-Council made under the Statute imposed on the board's actions.

Mr. Gray said that notice of control affecting fruitgrowers throughout Now Zealand could be given in either of two ways, by personal service, or by publication in any newspajier or newspapers. The board had chosen'to adopt the second of those two methods, since it was practically impossible to serve every fruitgrower. There ..being no regulations in force at the time, the board decided to adopt the. method of publication in the newspapers. Counsel submitted that the Governor-General-in-Council had no power to prescribe, in addition to publication in the newspapers, publication in some entirely different way, namely, in the Gazette.

Mr. Justice Adams reminded counsel that the Court had not decided that the' Gazette was not a newspaper.

' Counsel replied that his argument was that- the Gazette was not a newspaper. The"'Court would, he submitted, adopt the popular meaning of the word ".newspaper" in the present case. '

Mr. Justice 'Adams: "And the Gazette is decidedly unpopular?"

Mr. Gray said that no one would take the Gazette to be popularly known as a newspaper.

Mr. Justice,MacGregor: "If the Gazette is not a newspaper, what is it?"

■Mr. Gray said that it was an official record.' It was certainly not a newspaper, or a magazine. .'. ,

Mr.. Justice Herdman remarked that the Gazette was not only a record. Its object was to givo the people of New Zealand certain' information about matters concerning the Government. It was ' intended partly as a record and partly, as a means of getting information to the people. '

Mr. Gray pointed out that copies of the Gazette were not sold in shops,.nor were posters advertising it ' displayed. The newspapers were the only concerns which dealt with them,regularly. ','.".

Mr. Justice Her.dman said tho fact that extracts were taken from the G'azptto seemed to indicate that it was a newspaper. '-..:• '

Mr. Gray: ."No one would choose it as a newspaper." .-■-.'

In regard to.'the point as to when fruit could be deemed to betaken control' of, counsel said it,was impossible to fix a time from which, control, of the .fruit could be assumed. In conclusion, counsel said that •' even if the Court were against him on tlio major point, he would submit that there had been ample compliance with. the. require-

rnents.

Decision was reserved.