COURT OF APPEAL

Hokitika Guardian, 12 October 1933, Page 4

COURT OF APPEAL

DAIRY SUPPLY CASE CONTINUES.

(Per t'rexa As6ociu,iwn — Lupyrtpbt.)

WELLINGTON, October 11

Mr G. P. Findlay, continuing liis argument for plain tilt in the case Carrol and Wiiney v. Attoniuy-General at tlie Court ox Appeal, this morning Suhin.uect there was iiotniiig In any of tlie dairy industry Acts to justify tlie regulation of such devastating naF.ro as tlie dairy regulations 11133. The Go; eminent by regulations -attempted to achieve m unreasonably improper manner a purpose which it- was very doubt,ul tiie legislature ever intended. Even if tlie Dairy 1 ndustrey Acts authorised the making of regulations for compulsory grading of milk and cream, they certainly did not authorise tlie invasion of private contractual rights to achieve easier grading. Even it tlie aim of the legislature wa s to improve the quality o- : supply, it was neither necessary nor reasonable to abolish the right of free disposal of • > milk and cream to bring this about. The regulations, counsel submitted, purported to bind only factory managers. They were not sufficiently courageous to state openly that dairy farmers should not he allowed to change their factories of supply, the result which they achieved. Mr Justice Ostler: A farmer supplying another factory could be charged wtih aiding and abetting the offence under the regulation. Counsel contended that the regulations virtually created a new criminal act.

The Chief Justice asked the Solicitor,, General, Mr Pair, what was the precise implication of the statement made by him that, since the commencement of these proceedings, the Government had considered this matter, and bad decided to legislate independently of wliat tlie decision of tlie court might be in this case.

Air Fair, K.C., said that there were two reasons. The first reason, he was not at liberty to state; but it was open to the Court to have it considered, under the circumstances, whether argument should be addressed to it, or whether the matter should be \ deferred until the Government had taken action. Had he not informed tlie Court of the Government’s intention, lie might have been told, when the legislation wa s passed, that it was his duty to do so.

The Chief Justice: “The plaintiffs have taken their action before the Court, and they are entitled to their hearing.” Air Justice Ostler: “What was the other reason?”

Air Fair: “In a case of tin's kind, questions of policy might arise during discussion, and, naturally enough, they bear, to some extent, on the considerations to which the Court has to pay attention. I thought that the Court should know wliat was the Government’s intention.” The Chief Justice: “This Court is nop concerned with the intentions of the Government; and it can cnly consider the matters which come, before it for hearing in the (ordinary "way. Speaking for myself, I think that it would have been better if the statement had not been made.’ ’ In opening the case for the respondent, Air Fair protested at an attack which, lie said, the plaintiffs appeared to be aiming lat- the Department of Agriculture. There was some suggestion throughout the argument lor thq plaintiffs that, for some obscure reason, the Department was endeavouring to extend its powers and to infringe upon private rights. The sole purpose of the Department wag to servp the farmers of the Dominion. The Chief Justice: “Are fe concerned with anything more than the questions of whether, or not, the section in the regulations is ultra, vires ?”

Mr Fair submitted that the Court should have regard to the purpose of the regulations and to assistance given to the farming community generally by the Government. The regulations had been passed because it was considered necessary, in the interests of the greatest industry ui the country.

The plaintiffs’ argument entirely ifnored the fact that the ciairy industry which was employing j 80,003 people,

and wais responsible for nearly half of the total exports in 1932, was ojtV an exceptional basis with regard jo its methods of trading. Farmers supplied co-operative companies which did not attempt to make profits for themselves, and were simply agents ’ for fanners. The regulation prevented any individual farmer from “rocking the boat”—that is, he could not withdraw his supplies if the company got into difficulties. 1

The Chief Justice; “Do you admit that Section 55 does, in fact, seriously interfere with l;aniieij.s’ rights to. dispose of their produce?” Mr Fair submitted that it did, ant? that there was justification in the. statute. Further, lie contended that * the issues to be decided by the court were:— (1) Could the GoVernor-General-in-Couneil have honestly arrived at the. 'Jocbpcn tihat the regulation was necessary to the efficient adjministration of the powers given by the DairyIndustry Acts; and (2) whether jp the' regulations were infra vires of 'those; acts. The statute empowered \ the; Governor-General to make regulations; that he considered necessary. The Chief Justice: “Even the Got-ernor-General-in-Council may he wrong* ly advised.” / Mr Fair submitted that discretion li-.d been p’-cpcrly exercised, and that the recnlatv i: s wp’-o within the powers given by the acts. The Court adjourned.