DAIRY CONTROL ACT.

New Zealand Herald, Volume LXIII, Issue 19344, 3 June 1926, Page 12

DAIRY CONTROL ACT.

POWERS OF THE BOARD. COURT DECLINES JUDGMENT. QUESTIONS NOT ANSWERED. OTHER ACTION AVAILABLE. [BY TELEGRAPH.—TRESS ASSOCIATION.] "WELLINGTON, - Wednesday. The reserved decision of the Supreme Court announced- to-day declines to give a declaratory judgment on questions put by the Dairy Proprietary Association Incorporated, and the Waitaki Dairy Company, Limited, in regard to the powers of the New Zealand Dairy Produco Control Board. The Court consisted of Their Honors the Chief Justice, Mr. C. P. Skerrett, and Mr. Justice Reed. The judgment delivered by the Chief Justice stated, inter alia: — " The material placed before/ us is meagre, but it appears to be common ground that after the is"-uo of the originating summons the board about May 27, 1926, passed a resolution that it should assume control over the export of dairy produce as from midnight on August 31, 1926. The policy of the board in taking this abso'ute control has naturally been the subject of considerable controversy. Many (i£ not all) of the owners of proprietary factories, and brokers and merchants, exporters of dairy produce, are opposed to control. The co-opera'tive companies (which are either directly or indirectly 'the largest exporters of produce), although in the main favourable to control, are not unanimous. "It is asked whether the effect of the resolution was that all dairy produce manufactured and owned by the'plaintiffs, then in existence or thereafter to come into existence, passed, without further act of the board, under its absolute control. The question is limited to the produce of the plaintiffs, but it is clear that it was intended to relate to the produce of all proprietary companies. Discretion of the Court. ■ " All other questions relate to produce generally, and it is conceded that if the question was answered in the affirmative it is desired, that the Court should answer other questions stated in the summons. In this event it would be necessary for the Court to determine questions which traverse the whole operative powers of the statute, many of which relate to the detailed machinery by which the board may put into operation such powers of control as it may be held to possess. "It is clear that the? Court has discretion in the giving or making of a declaratory judgment or order and may on any grounds which it deems sufficient refuse to give or make any such judgment or order The present cass is not an action for a declaratory judgment, but is an application under section 3 of the Act for a declaratory judgment determining a question or questions as to the construction of a statute. Even where a declaratory judgment has been sought in an action and not by an originating summons discretion to exercise jurisdiction has been exercised with great caution. Object of the Summons.

" In the present case it is not disguised that the object of the summons is to obtain a judicial opinion as to the general powers of the board. Nothing short of that will suit the purposes of the plaintiffs. No concrete facts have been placed before us to show that a question of right has arisen between either of the plaintiffs and board as to specific ptoduce intended to be exported. The reason, of course, is that the parties seek an abstract opinion, in the nature of advice, as to the interpretation of the whole statute. " We are satisfied that the Court ought not to place itself, as it is invited to do, practically in the position of counsel advising owners of proprietary factories or exporters of dairy produce upon the interpretation of the statute. The 'application has the grave objection that the Court, if it granted it, would be compelled to define statutory powers in the abstract without knowledge of the facts and circumstances under which such powers might be exercised, and without any certitude that many of the powers, about which questions are asked, will ever be exercised.

" Moreover, if the Court were to yield to the application it might be called upon to give an anticipatory interpretation .of many kinds of documents, such as deeds, wills, memoranda /and articles of association, by-laws of local authorities and regulations made by the Governor-in-Council.

Other Bodies Affected. "Furthermore, the plaintiffs are not the only persons, nor even the most numerous body of persons, interested m the questions raised regarding the interpretation of the Act. Co-operative factories and suppliers to co-operative factories are vitally interested in the questions. If proprietary companies can export their produce it affects the efficiency of control and directly affects all co-opera-tive and other factories who are subject to control. It is clear, therefore, that all factories who favour absolute control and their suppliers are interested in the questions asked to be determined.- If they are not made parties to the proceedings they will not be bound by our determination.

" To render an order determining the questions asked of any value all interested parties would require to be joined. In face of the numerous conflicting interests this would be a most inconvenient proceeding. It has been held .that the Court ought not, on an originating summons, to decide a question of construction which, in whichever way it was decided, did not necessarily put an end to litigation.

Course Open -to Plaintiffs. "On the whole, therefore, we think that the (pourt in its discretion should refuse to answer these questions. Our decision places no real difficulty in plaintiffs' way. Upon any action contemplated by the board, which they claim to contravene their lights, they can obtain a decision of the Court on an action claiming a declaration of right or an injunction. They cannot, however, in such an action as' the present obtain the opinion of the Court on the interpretation of substantially all the provisions of the statute. " The application for directions as to service may stand over in order that the parties may, if so advised, take the matter to the Higher Court, . s all the parties desired the Court to determine the questions raised by originating summons we do not allow any costs."