CONTROL APPLIES TO ALL DAIRY PRODUCE

Manawatu Times, Volume XLIX, Issue 3492, 30 October 1926, Page 7

CONTROL APPLIES TO ALL DAIRY PRODUCE

Judgment Delivered in Dairy Control Case MAY GO TO FULLER COURT OR COURT OF APPEAL WELLINGTON, Friday. The judgement delivered by th 0 Full Court yestrday in the case of the Waitaki Dairy Company seeking exemption from the provisions of the New Zealand Dairy Produce Control Art, establishes the fact that absolute conrol as instituted by the Board on September 1 applies to all dairy companies, whether proprietary or co-operative. The question as to whether the Board can assume control of any dairy produce before such produce is actually in existence Is still undecided. Extracts from tho judgement delivered by Mr. Justice McGregor are as follows: — The substantive ground on which the plaintiff company bases its present claim to relief is that the power of the export control given by the Act to the board does not apply at all to the dairy produce of the company, inasmuch as it purchases outright from dairy farmers milk and cream for manufacture and sale on its own account and not on behalf of the farmers or "producers.” This main contention was subdivided by Sir John Findlay at the hearing into the following propositions which he put forward us tho basis of tho plaintiff’s case for an injunction. The Board's Powers.

On consideration we arc quite unable to see that the extensive power of the export conferred by the Act on the board can be limitd in the way suggested on behalf of the plaintiff here. In other words we are satisfied that the board’s power of control does extend to the export of the “Dairy produce" of this particular company, whether or not it buys outright its milk and cream from the dairy farmers for manufacture into “dairy produce” for sale on its own behalf. The words of the Act, and particularly of section 13 (1), are in our opinion altogether too wide and clear to be cut down in the manner suggested by counsel for the plaintiff company. We find at the outset that section 3 of the Act is quite explicit in its terms of interpretation “In this Act, unless the context otherwise requires, ‘dairy produce’ means butter and cheese; ‘producers' means persons carrying on business as suppliers, of milk or cream to factories manufacturing dairy produce for export.”

By Its resolutions of May 26th, 1920 the hoard can be limited in the way the board has duly determined to exercise control as from September 1, 1926, over the “export of dairy produce (that is, butter and cheese) from New Zealand.” That absolute control in our judgment clearly and broadly applies to the export of all dairy produce from New Zealand on and after the specified date. In those proceedings the plaintiff company suggests that its particular dairy-produce should be exempted from the general body of “dairy-produce from Now Zealand," on the specified grounds already set out herein. “Plainly Untenable” In our opinion this suggestion is plainly untenable. The plaintiff company admits that it manufactures , “dairy-produce” for export from Now Zealand. The dairy produce so manufactured by the plaintiff company prima facie at all events form part of the “dairy-produce from New Zealand” spoken of in the earlier part of section 13 (1) of the Act. It is clearly impossible for the Court to remove it from this category without, adding to the definiton of "producers’ in section 3 some such words as “for and on behalf of the producers,” or "as agents for the producers.” Wo can see no valid reason for thus adding to or qualifying the express words of the Statute, which appear to us In tnis respect quite free from doubt in | their meaning and operation. Where Judges Differed.

This conclusion, however, dons not altogether dispose of iho plaintiff’s claim in the present action. As previously stated, plaintiff’s counsel, in addition to the main points already dealt with, put forward a separate contention based largely on the terms of section 13 (3) of the Act. That subsection is as follows:—"Notice by the board of its intention to assume control of any dairy produce may be given either by service on the owner of tlio dairy produce or any person having possession thereof, or by publication in any newspaper or newspapers. in accordance with such conditions as may be proscribed. .livery such notice shall, subject to the provisions of this Act, have effect according to its tenor.” Plaintiff’s contention on this aspect of the case is briefly that under section ’ 3 the hoard can assume con-

trol only of dairy produce actually in being, i.e., after it has been manufactured. His counsel urged in support. of this view that under section 1 (1) the board has two distinct powers (I) to determine the extent to which il is necessary to exorcise control over the cxpon of dairy produce from New Zealand; and (2) (having so determined) to assume control of ■any such dairy produce accordingly. He argued further that before the board “can assume control" of any dairy produce, such dairy produce must of necessity be actually in existence, and that section 13 (3) evidently contemplated the presence of an “owner” or "person having posscsision” of such dairy produce, to whom | notice of its intention must be given I by the board in terms of section 13 (3) before in fact “assuming control” of the dairy produce in question, under the concluding words of section 18 (1). Wo have carefully considered this question but are unable to decide it, owing to the fact that the members of tin' Court are not agreed on the subject. Two members of the court think that the board is not entitled to "assume control” of any dairy produce not in existence, and the other members think otherwise. In the circumstances the only course is to adjourn Ibe further consideration of the. case so that it may bo arranged to have the question re-argued before the Court of Appeal.