DAIRY PRODUCE CONTROL

New Zealand Times, Volume LIII, Issue 12590, 29 October 1926, Page 6

DAIRY PRODUCE CONTROL

JUDGMENT OF THE FULL COURT DELIVERED ALL POINTS NOT DECIDED QUESTION MIGHT GO TO FULLE R COURT OR COURT OF APPEAL The Full Court which considered the question of whether the Dairy Control'Board is entitled to assume “control” has been unable to come to a decision oh all the points raised. There is an even division of opinion amongst the judges on one aspect, and the next move might be to have the case argued before a fuller court or before the Court of Appeal. Plaintiff in the case was the Waitaki Dairy Company and the defendant was the New Zealand Dairy Control Board. The judges were Mr Justice Sim, Mr Justice Reed, Mr Justice MacGregor, and Mr Justice Ostler.

The judgment of the court was delivered by Mr Justice McGregor a? follows:

"The defendant board, by its statement of defence claims that it is entitled on and after September Ist, 1926, to sell and dispose pursuant to the. Act of all dairy produce of the plaintiff of which it assumes control pursuant to the above resolutions, and it admits that it intends as from flu, point where control becomes operative to exercise all or any of the powers conferred on It bv the Act. The plaintiff company on the other hand claims that the defendant board is not entitled under the Act in question to sell add dispose of the plaintiff’s dairy produce exported from New Zealand 1 on or after September Ist, 1926, but, on the contrary, that the plaintiff itsglf is entitled to sell dod dispose of sfich dairy produce as it pleases and to' make contracts for the carriage by sea of the said dairy produce and to ship the same free from the control of the defendant board. The plaintiff coiiipany now sues the defendant board for an injunction and a declaration in the following terms: “J( a) An injunction restraining the defendant hoard, - its servants and agents, from -assuming or' purporting to assume control on or after September Ist. 1926, of the plaintiff’s dairy produce manufactured*for export from milk or cream purchased outright from the producers thereof, and restraining the defendant board, its servants and agents, from selling or disposing of tne said dairy produce exported from New. Zealand by the plaintiff, and restraining the defendant board fropi making arrangements and from giving directions as to the handling, pooling, storage, shipment and sale and disposal of the said ditiry produce. "(b) A declaration that the tiff may on or after September Ist. 1926, export from New Zealand and may ship and sell and dispose of, and mav make contracts, for the carriage by sea of the said dairy'produce manufactured for export from ihilk or cream purchased outright by, (he plaintiff from the producers titeUKjL* id each case free from the control of the defendant hoard, its servants or ’agents, or anyone acting by its direction.” plaintiff’s Case

The.substantive ground on which the plaintiff company bases its present claim to relief iq-thatuthe power of expoit cpntfol given by tins' Set to'the board does not apply at all to tbedairy produce of the company, inasmuch as it purchases Outright from dairy fanners milk and. cream for manufacture arid sale on . its own account and not oii behalf of the farmers or “producers.” This main contention was subdivided by Sjir John Flndia v at the hearing into the following propositions which he put forward as the basis of .the plaihtifrscase for an injunction. ■Vo < 1, That the .classes intended to be directly,benefifcted by the Act are the “prMuqprSi” as defined by the Act. (Section 3,1 '

2. That-thei-board is in fact, a milk and cream “suppliers” board. 3. Tfipt the "dairy prodliee” referred to, throughout thb Act is dairy produce belonging to these milk and cfeam “producers.” 4. That the Act contemplates the milk and cream '“producers” supply, ing their milk and oream . to a factory, which as. agents of the "producers” converts it ifito dairy produce. 5. That these "producers” are the “owners” of, that dairy producer and so referred to throughout the 6. That it is only the dairv produce of such "producers” that the board can assume control of, and 7. That if the ‘‘producers’’ prefer to sell their milk and cream outright to a proprietary dairv factory the . hoard' hfs fto control over ’he "dairy 0.-piluce” «• tnanuf"stored. An additional But subsidiary contention based on section 13 (3) was alsb urged h.v plaintiff’s counsel at a later stage of his argument, which we shall deal with separately after disposing of his main grounds of action, as above detailed. .. t : ■- ■■ v' THE BOARD’S ROWERS On consideration v we .are quite unable to see that the extensive power of export control conferred by the Act on the board con, bp .limited fn 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 oh its own behalf. The words of the Act, and particularly of section 13 (1), are in our opinion alto-

tether too wide and clear to he cut own 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:—“ln 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.” Then under section 13 (1) the board has power to determine from time to time the extent to which it is necessary that the board should exercise control over the export of “dariy-pro-duce” from New Zealand. This power of determination is apparently unqualified and unlimited in its operation, subject to the exceptions provided by section 13 (7) and 13 (8) which obviously do not apply to the present case. By its resolutions of May 26th, 1926, the board has duly determined to exercise control as from September Ist, 1926, over the “export of dairy-produoe, 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 these proceedings the plaintiff company suggests that its particular dairy-produce should be exempted from the general body of “dairy-produce from New Zealand,” on the specific grounds already set out herein. "PLAINLY UNTENABLE” In our opinion this suggestion is plainly untenable. The plaintiff company admits that it manufactures “dairy-produce” tor export from New Zealand. The dairy produce so manufactured by the plaintiff company prima facie at all events forms part of the “dairy-produce from New Zealand” spoken of in the earlier part of section 13 (1) of the Act. It is clearfy impossible for the court to remove it from that category without adding to the definition of “producers” in section 3 some such words as “for and on behalf of the producers,” or “as agents for the producers.” We can see no valid reason for thus adding to or qualifying the express words of the Statute, which .appear to us in this respect quite free from doubt in their meaning , and operation! - - - , . . -. WHERE THE JUDGES DIFFERED This conclusion, however, does not altogether dispose of the plaintiff’s claim in the present action.' As previously stated, plaintiff’s counsel, in addition to the ma?h points already dealt with, pat forward a separate coo* tention 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 any dairy produce or on any person having possession thereof, or by publication in any newspaper or newspapers, in accordance with such conditions Vs may be prescribed. Every 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 13 the board can assume, control only of daily produce- actually in being, i.e., after it has been manufactured. His counsel urged in support of this view that under section 13 (1) the bpard has two distinct powers (1) to determine the ■ extent to which it is necessary to exercise con- | trol over the export of dairy prodnen 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 dssume 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 possession” of such dairy produce, to whom notice of its intention must be given by the board in terms of section 13 (3) before in fact “assnming control” of the dairy produce in question, under the concluding words of section 13 (1). We have carefully considered this question but are unable to decide it, owing to the fact tEat the members of the 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 conrse is to adjonrn the further consideration of the case so that it may he arranged to have the question re-argued before a fuller court or before the Court of Appeal.