DAIRY REGULATIONS

King Country Chronicle, Volume XXVII, Issue 4460, 21 October 1933, Page 5

DAIRY REGULATIONS

CREAM FOR FACTORIES. APPEAL COURT DECISION. The Court of Appeal yesterday at Wellington decided clause 55 of the dairy regulations to be ultra vires. The clause in question is as follows: No owner or manager of any cheese factory, creamery, or skimming station shall at any time during the period of ten months extending from the Ist day of August in any year till the 31st day of May in the next succeeding year purchase milk or cream produced in any supplying dairy if at any time previously during the same period milk or cream produced in such supplying dairy has been supplied to the owner of any other cheese factory, creamery, or skimming station. “It was admitted by the learned Solicitor-General,” sa*d his Honour the Chief Justice (Sir Michael Myers) —“and indeed it is perfectly plain—that the clause is a serious interference with the liberty of the individual farmer to carry on his lawful business in his own way. Its effect, if valid is to compel him, once he commences supplying his milk, or cream to a particular cheese factory, creamery, or skimming station at the beginning of any season, to continue his supply to that cheese factory, creamery, or skimming station, whether he likes it or not, throughout the whole of the season. But, argues the Solicitor-General, Part I of the Dairy Industry Act is designed to interfere with individual freedom and to subordinate the interest of the individual to that of the industry. To a limited extent —how far I am not concerned to inquire—that may be true. But I am quite satisfied that the Solicitor-General’s implication is much too wide. The whole questio'n is whether the regulation can be justified on a reasonable interpretation of section 23 of the Dairy Industry Act, 1908, which empowers the Gov-ernor-General in Council to make regulations as thereby provided.” Without Authority. At the conclusion of his judgment the Chief Justice said: — “If it could be said here that the provisions of the statute could reasonably be construed as authorising the regulation in question, then these cases would apply, in that this Court would have no jurisdiction to review the Governor-General’s exercise of discretion. In my opinion, however, there is nothing whatsoever upon any reasonable construction of the Act which can be said to authorise the regulation. It was, in my opinion, made without authority, and is therefore ulta vires and void. “I co'nfess that I am not sorry at being forced to the conclusion at which I have arrived, because if it be thought necessary to interfere with either the personal liberty of the subject or his freedom in exercising a lawful trade or business, and particularly in the sale of his own goods in the market of his own choice, it can scarcely be doubted that such, a matter should (except where emergency conditions require otherwise in the interests of the public safety) be the subject of direct legislation by Parliament itself in appropriate, clear, and unequivocal language rather than be left to the discretion of a delegated authority.” Other Judges Concur. Mr. Justice Reed, in concluding his finding, said: “There is nothing, in my opinion, in the Act which either directly or by implication authorises, as a matter of efficient administration, so far-reaching a regulation as that in question. I agree that the regulation is ultra vires.” Mr. Justice MacGregor said he agreed that regulation 55 was unauthorised by the enabling statute, and was therefore invalid and unenforceable.

After dealing at length with the legal points involved, Mr. Justice Ostler said: “It is evident tha/t it is considered a matter of great moment by the companies that their suppliers should be bound to them. They apparently are not satisfied with the right to bind suppliers by contract. But whether this regulation was inspired by the dairy companies or not, and whatever the object of its actual framer may have been, I am clearly of opinion that it is not authorised by the Act under which it purports to have been made, and is therefore void.” Mr. Justice Smith concurred that fore ultra vires and void.

Judgment was given accordingly, and plaintiffs were awarded costs.