Arthur Yates & Co Pty Ltd v The Vegetable Seeds Committee

[1945] HCA 55

72 CLR 37

ARTHUR YATES AND COMPANY PRO-

PRIETARY LIMITED

RESPONDENT,

THE VEGETABLE SEEDS COMMITTEE AND

RESPONDENTS. APPLICANTS, PracticePleading-Action in High Court against Commonwealth tribunal

Vegetable Seeds Committee-Statement of claim-Allegations-Application to strike out-Declarations of right-Bona fides of committee-MotivesOrders of committee--Legistative or administrative-Powers of committee-National Security (Vegetable Seeds) Regulations (S.R. 1943 No. 109-1944 No. 129), April 23, 24; regs. 4, 10, 14A, 17, 23.

The National Security (Vegetable Seeds) Regulations established as a body corporate a Vegetable Seeds Committee consisting of four members including an official Chairman and an Executive Member. The objects of the Regulations were set out and were stated to be to ensure, for the purposes of the defence of the Commonwealth and the effectual prosecution of the war, that an adequate supply of vegetable seeds was available in Australia, that those seeds were true to type and of a satisfactory standard of purity and germination, and were effectively distributed, and it was provided that the Regulations should be administered and construed accordingly.

83 C.L.R.44 The Regulations required seed merchants to register with the Committee and prohibited the sale of seeds except as directed by the Committee and they empowered it by order to control and regulate the processing, treatment, dis- tribution and disposal of vegetable seeds. Such an order might apply to a specified person or persons or might be general. The Committee was also empowered to buy, sell and otherwise deal in vegetable seeds.

Orders were made by the Committee in respect of the plaintiff, a seed merchant, which the plaintiff alleged were not made bona fide for the purposes for which the power was conferred but to conserve the financial interests of the Committee in respect of seeds bought or dealt in by the Committee, and the plaintiff sought a declaration that the orders were void.

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Held, by Latham C.J., Starke and Dixon JJ. that the orders of the Committee were open to attack on the grounds alleged and that the plaintiffs as persons affected by the orders were entitled to maintain a suit for a declaration that the orders were unauthorized by Rich J. that the question should not be decided on an application to strike out pleadings.

Decision of Williams J. reversed.

APPEAL from Williams J.

In an action brought by Arthur Yates &Co. Pty. Ltd. in the High Court against the Vegetable Seeds Committee as defendant for certain declarations in respect of the powers of that committee and of certain orders made by it, the statement of claim was substantially as follows :-

1. The plaintiff Arthur Yates &Co. Pty. Ltd. is a company duly incorporated and entitled to sue in and by its said corporate name and the defendant Vegetable Seeds Committee is a body corporate constituted under the National Security (Vegetable Seeds) Regulations and liable to be sued in and by its said corporate name.

2. The plaintiff is now and for a great number of years has been carrying on the business of seed merchants, seed growers and nur- serymen within the State of New South Wales and importers and exporters of seed from and to other States and to many countries abroad. Seed for the purposes of its business has at all material times been obtained by the plaintiff :-(a) from crops grown by it upon its own land or upon lands leased by it (b) from crops grown by its subsidiary company Arthur Yates Seed Growers Pty. Ltd. (c) from crops grown by independent growers who from time to time contract with the plaintiff company to grow seed for delivery and sale to it; (d) by direct purchase from Australian growers and Australian merchants and (e) by importation from abroad, including Great Britain, the Dominion of New Zealand, the United States of America and European countries.

3. The plaintiff is and at all material times has been a registered vegetable seed merchant, within the meaning of the regulations.

4. The plaintiff now has and at all material times has had in the Commonwealth of Australia large quantities of vegetable seed for sale, inter alia, of the kinds of vegetable seed covered by the orders hereinafter mentioned in pars. 5, 6, 7 and 8 hereof. All of the seed in this paragraph referred to is and at all material times has been true to type and of a satisfactory standard of purity and germination and the said seed is and at all such times has been otherwise unobjection- able as seed.

5. On or about 17th March 1944 the defendant committee caused to be served upon all registered vegetable seed merchants including

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the plaintiff a document, which, SO far as material, was in the words H. C. OF and figures following, namely :-

" Economic Utilization of Seeds. Under Statutory Rules 1943 No. 109 of the National Security Act the Vegetable Seeds Committee hereby orders you until further notice not to sell, exchange, or otherwise dispose of or packet any vegetable seeds of the following types, which were or are harvested between the 1/7/43 and the 30/6/44 :- Beet-Red (All varieties)

Onion-Early Flat White Beet-Silver Broccoli-Green Sprouting

White Bermuda Cabbage (All varieties)

Early Flat White Ber- Carrot Cucumber

Yellow Bermuda Lettuce

Danver's Yellow Globe Marrow Melon-Rock

Parsnip (All varieties) Melon-Water

Squash-Summer Tomato (All varieties) Swede Turnip Table Turnip Packeting in relation to this Order means placing not more than one lb. of seed in separate containers.

This Order is not to apply to the sales of seeds by a producer (other than producer merchant) to a registered vegetable seeds merchant.

You are hereby further ordered by the Vegetable Seeds Committee to forward to the Executive Member of the Vegetable Seeds Com- mittee the following information with respect of seeds grown in the Commonwealth of Australia and harvested during the year 1/7/43 to 30/6/44 and which are purchased by you or which are received by you as a result of production on your own properties :-

Name of the Producer. Address of the Producer. Kind of Seed. Variety of Seed. Quantity purchased. For seed already received you are hereby directed to furnish this information within 7 days. For seed received in the future you are directed to furnish the information within 7 days of its being cleaned to a standard ready for retail sale.

(Sgd.) J. R. A. McMillan, Executive Member Vegetable Seeds Committee."

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6. On 18th October 1944 John Ruston Alfred McMillan, executive member of the defendant committee claiming to act under and by virtue of the said regulations signed and caused to be published in the Commonwealth Government Gazette of 20th October 1944 a docu- ment in the following terms, namely :-

Vegetable Seeds Committee Order to Cover Sale of Australian-Grown Seed ex the 1943-44 Crop.

Pursuant with the National Security (Vegetable Seeds) Regulations 14A of Statutory Rules No. 129 I, John Ruston Alfred McMillan, Executive Member of the Vegetable Seeds Committee, a body incor- porate under the National Security Act 1939-1943, do hereby revoke the Order made on the 17th March 1944, referring to the Economic Utilization of Seed, and I do hereby order as follows :-

1. Except with the approval of the Vegetable Seeds Committee, a registered vegetable seed merchant shall not sell or pack for retail sale any vegetable seeds of the kinds and varieties specified in the Schedule hereunder, which were harvested during the period commencing on the first day of July 1943 and ending on the thirtieth day of June 1944.

2. The last preceding paragraph shall not apply to sales of vege- table seeds by a registered seed grower (not being a registered vegetable seed merchant) to a registered vegetable seed merchant.

SCHEDULE OF VEGETABLE SEEDS. Red Beet-all varieties, Parsnip-all varieties. Turnip, swede-all varieties. Turnip, table-all varieties. 3. Packeting' in relation to this Order means placing not more than 1 lb. of seed in separate containers.

4. Consideration will be given to the release of certain varieties, but application for such consideration of release must be made in writing to the Executive Member, Vegetable Seeds Committee, and each application will be treated on its individual merits in relation to the overall stock position

(Sgd.) J. R. A. McMillan, Executive Member." 7. On 4th November 1944 the defendant committee caused to be served upon all registered vegetable seed merchants including the plaintiff a document in the words and figures following :- National Security (Vegetable Seeds) Regulations-Order under Regulation 14A.

In pursuance of reg. 14A of the National Security Vegetable Seeds) Regulations, the vegetable seeds committee hereby makes the follow- ing order :-

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i. Except with the approval of the Vegetable Seeds Committee, a registered vegetable seed merchant shall not sell by retail or other- wise, or pack for retail sale, any vegetable seeds of the kinds specified in the schedule to this Order which were harvested during the period commencing on 1st July 1943, and ending on 30th June 1944.

ii. The last preceding paragraph shall not apply to sales of vege- table seeds by a registered vegetable seed grower (not being registered vegetable seed merchant) to a registered vegetable seed merchant.

iii. For the purposes of par. 1 of this order, 'pack' means to place not more than one pound of seed in a container.

THE SCHEDULE. Red Beet Parsnip; Turnip, swede; Turnip, table. On behalf of the Vegetable Seeds Committee.

(Sgd.) J. R. A. McMillan, Executive Member." 8. On 12th February 1945 the defendant committee caused to be served upon all registered vegetable seed merchants including the plaintiff a document in the words and figures following, namely :-

Commonwealth of Australia, National Security (Vegetable Seeds) Regulations.

Order under Regulation 14A. In pursuance of reg. 14A of the National Security (Vegetable Seeds) Regulations, the vegetable seeds committee hereby makes the follow- ing Order :-

(i) Except with the approval of the Vegetable Seeds Committee, a registered vegetable seed merchant shall not sell by retail or other- wise, or pack for retail sale by himself or any other person, any vegetable seeds of the kinds specified in the schedule to this order which are, or have been, harvested during the period which com- menced on 1st July 1944 and ends on 30th June 1945.

(ii) For the purpose of par. 1 of this order, 'pack' means to place not more than one pound of seed in a container.

THE SCHEDULE. Bean-Broad; Beet-Red Beet-Silver; Broccoli; Brussels Sprouts Cabbage; Carrot; Cauliflower Celery Cucumber; Leek Lettuce Marrow; Melon-Rock; Melon-Water; Onion; Parsnip; Pea-Canning Squash-Summer: Squash-Winter Tomato; Turnip-Swede; Turnip-Table.

On behalf of the Vegetable Seeds Committee.

J. R. A. McMillan, Executive Member." 9. Each and every of the said Orders or purported Orders referred to in pars. 5, 6, 7 and 8 hereof remain unrevoked except in SO far as the purported Order set out in par. 6 hereof may be effective to revoke the purported Order set out in par. 5 hereof.

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10. Prior to 17th March 1944 the defendant committee had set up and established itself in the business of vegetable seed merchants and growers for profit to itself in competition with other seed merchants and growers, including the plaintiff, and was itself growing or causing to be grown on its own behalf and for profit to itself large quantities of seed of many kinds and varieties identical with or capable of being used in substitution for seed held in stock by vegetable seed mer- chants (other than the defendant committee) including the plaintiff or being produced by or for such other merchants including the plaintiff.

11. The defendant committee has now and at all material times before and since 17th March 1944 has had on hand large quantities of vegetable seed portion of which vegetable seed has been imported by the defendant committee from the United States of America and other sources beyond Australia.

12. The defendant committee both prior to and since 17th March 1944 has imported and it still does import large quantities of vegetable seed of various kinds far in excess of any reasonable requirement of the Australian market.

13. Of the stock of vegetable seed held by the defendant committee at all material times both before and since 17th March 1944 a large portion has deteriorated and has become or is in process of becoming useless as seed.

14. The defendant committee at all material times both before and since 17th March 1944 in order to further its own trading activities aforesaid and to prevent financial loss falling upon itself in the course of such trade has desired to compel the disposal by the vegetable seed merchants of large stocks of seed held by the defendant committee as aforesaid.

15. The plaintiff charges it to be and it is the fact that the deter- mination by the defendant committee to make and serve upon the vegetable seed merchants, including the plaintiff, the documents set out in pars. 5, 7 and 8 hereof was made solely to protect and further the trading and financial interests of the defendant committee and to relieve it of competition from seed merchants other than the said committee including the plaintiff in relation to the kinds and varieties of seed covered by the said documents and generally in relation to the business of seed merchants carried on by the said committee.

16. The plaintiff charges it to be and the fact is that the defendant committee did not properly or at all authorize the said John Ruston Alfred McMillan to make or issue any order or direction in the terms of the document mentioned in par. 6 hereof nor to sign the document

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nor to cause the document to be published in the Commonwealth Government Gazette as hereinbefore mentioned but the defendant committee claims that the said purported order is a valid order.

17. Alternatively to par. 16 hereof the plaintiff alleges it to be and the fact is that in SO far as the defendant committee authorized or purported to authorize John Ruston Alfred McMillan to make issue or sign the document set out in par. 6 hereof or to have the same published in the Commonwealth Government Gazette the determination of the defendant committee SO to authorize John Ruston Alfred McMillan was made solely to protect and further the aforesaid trading and financial interests of the defendant committee and to relieve it of competition from other seed merchants including the plaintiff in relation to the kinds and varieties of seeds covered by the said document and generally in relation to the business of seed merchants.

18. The plaintiff in its said business has at all times maintained a high standard and quality in goods sold by it and at all times has sold under its trade name seed of a germinating capacity and otherwise of a quality in excess of and far superior to any statutory require- ments operating in the Commonwealth or in any of the States thereof and by such standard and quality of its seed has built up and main- tained a favourable reputation and goodwill both throughout the Commonwealth of Australia and abroad.

19. The plaintiff has now and at all material times has had on hand for sale large quantities of vegetable seed produced by or on behalf of the plaintiff in Australia such vegetable seed being of high quality and germinating capacity and otherwise of a high standard and by reason of the documents mentioned in pars. 5, 6, 7 and 8 hereof the defendant committee claims to prevent and has pre- vented and attempted to prevent the plaintiff from selling and the plaintiff has been unable and still is unable to sell the said seed whereby the said seed has become and is becoming deteriorated in value and useless as seed and whereby the plaintiff has been com- pelled to purchase seed of a like kind from the defendant committee to supply its own market requirements.

20. By reason of the documents mentioned in pars. 5, 6, 7 and 8 hereof the plaintiff although having on hand available for sale seed conformable to its said established standard of quality and excellence has been and still is being compelled to sell under its trade name seed obtained by it from the defendant committee.

21. The seed SO obtained by the plaintiff from the defendant committee is as to a large part thereof inferior in quality and below

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the said standards of germinating capacity and quality heretofore

maintained by the plaintiff in respect of its own seed as aforesaid.

22. From time to time and on numerous occasions since 17th March 1944 the defendant committee has stated to the plaintiff that it will release from the operation of the purported orders referred to in pars. 5, 6, 7 and 8 hereof the whole or portion of certain kinds and varieties of seeds being part of the plaintiff's own stock aforesaid covered by these Orders conditionally on the plaintiff purchasing from the defendant committee at prices appropriate to first-class seed in first-class condition and in quantities nominated by the defendant committee seed in a deteriorated or deteriorating condition held by the committee as hereinbefore set out.

23. For many years prior to and up to 1943 the plaintiff had imported from the Dominion of New Zealand large quantities of pea seed of which a large part had been expressly grown in that Dominion for delivery to the plaintiff and in order to supply the Australian market with such seed the plaintiff depended upon such importation.

24. In the year 1943 the defendant committee decided that it would not permit the importation of vegetable seed into Australia otherwise than by or through itself and thereupon forbade the plaintiff to import any vegetable seed including pea seed from the Dominion of New Zealand unless from time to time permitted by the defendant committee SO to do.

25. Prior to the month of August 1943 the defendant committee gave its permission to the plaintiff to import certain specified pea seed from the Dominion of New Zealand and acting upon and in pursuance of such permission the plaintiff purchased from merchants in the Dominion of New Zealand large quantities of the said pea seed.

26. Subsequently to the purchase by the plaintiff of the said pea seed in New Zealand the defendant committee in carrying on its business as mentioned in par. 10 itself purchased in the Dominion of New Zealand similar pea seed to that there purchased by the plaintiff but at an average price greater than the price at which the plaintiff had purchased its seed as aforesaid.

27. After the defendant committee had purchased in the Dominion of New Zealand the pea seed as mentioned in the next preceding paragraph and before the plaintiff had imported the pea seed pur- chased by it in New Zealand as aforesaid the defendant committee purported to revoke the permission which it had given to the plaintiff to import the said seed and forbade the plaintiff to import the same unless the plaintiff would agree either-(a) to sell to the defendant committee the pea seed SO purchased by the plaintiff at the price at

72 CLR 45

which the plaintiff had purchased the same and thereafter to re-pur- chase the said seed from the defendant committee at a higher price to be based upon the cost to the defendant committee of the seed purchased by it in New Zealand plus its overhead expenses and a margin of profit to itself or (b) to pay to the defendant committee the difference between the price at which the plaintiff would land the seed purchased by it in the Dominion of New Zealand and a higher price being the price at which the defendant committee had deter- mined to sell in Australia seed purchased by it in the Dominion of New Zealand as aforesaid.

28. The plaintiff was unwilling to perform either of the said con- ditions and in consequence was prevented by the defendant com- mittee from importing the said seed.

29. In the month of January 1945 there was and there still is an insufficient quantity of pea seed available in Australia to seed mer- chants including the plaintiff to meet the requirements of the local trade.

30. The plaintiff is and at all material times has been desirous of importing into Australia from the Dominion of New Zealand new season crop of carrot seed known as the St. Valery variety for the purposes of its business aforesaid and at all such times has under offer from a New Zealand merchant a considerable quantity of the said variety for such importation but the defendant committee has at all such times prohibited the plaintiff from importing the said seed and still does so prohibit the plaintiff.

31. The defendant committee has purported to forbid the importa- tion into Australia by the plaintiff or any other vegetable seed mer- chant or any other person of any vegetable seed and has claimed and still claims the exclusive right to import vegetable seed into Australia and in particular has refused and still refuses to permit the plaintiff to import any pea seed or carrot seed, including the St. Valery variety, from the Dominion of New Zealand in order to satisfy the requirements of the local market and the demands of the plaintiff's business or at all.

32. On 22nd September 1944 the plaintiff's secretary duly applied on its behalf to the defendant committee to renew its registration as a vegetable seed merchant. The plaintiff's application, omitting formal parts, was in the words and figures following I hereby apply for re-registration as a Vegetable Seeds Merchant on the same conditions as my last application, in SO far as such conditions are required by the National Security Act and Regulations."

for the words in SO far as such conditions are required by the National Security Act and Regulations" appearing in the said

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application the form thereof is the form that the defendant committee has directed the plaintiff to adhere to but the words " in SO far as such conditions are required by the National Security Act and Regula- tions " were added by the plaintiff.

33. On or about 1st November 1944 in response to the plaintiff's application for registration the defendant committee forwarded to the plaintiff a document in the words and figures following :-

Commonwealth of Australia National Security (Vegetable Seeds) Regulations. Certificate of Registration of Vegetable Seed Merchant. Pursuant to Regulation 17 of the National Security (Vegetable Seeds) Regulations, the Vegetable Seeds Committee hereby certifies that Arthur Yates &Co. Pty. Ltd.,

184-186 Sussex Street, Sydney, N.S.W. is registered as a vegetable seed merchant in respect of the following vegetable seeds - (Here were specified thirty-one varieties of vegetable seeds).

'Pursuant to Regulation 18 (2) of the National Security (Vegetable Seeds) Regulations, the Committee hereby directs that a registered vegetable seed merchant shall not sell or otherwise dispose of for valuable consideration any vegetable seed imported into Australia unless such seed has been imported with the consent of the Vegetable Seeds Committee.

(Sgd.) J. R. A. McMillan (Seal),

Executive Member. Dated-31st October 1944."

34. The determination of the defendant committee to prohibit and impede the importation of vegetable seed into Australia by vegetable seed merchants has been arrived at solely to protect and further the trading and financial interests of the defendant committee and to safeguard it in its trading activities as a vegetable seed mer- chant from competition with other vegetable seed merchants includ- ing the plaintiff and from competition with the superior seed available or which but for such prohibition and impeding by the defendant committee would be available to the plaintiff and other vegetable seed merchants.

35. The plaintiff has suffered and will continue to suffer great loss and damage by reason of the matters alleged in pars. 18 to 34 hereof both inclusive.

The plaintiff's claim was for the following relief :- 1. A declaration that the purported Orders dated respectively 17th March 1944, 18th October 1944, 4th November 1944 and 12th

72 CLR 47

72 C.L.R.]

OF AUSTRALIA. February 1945 are and each of them is beyond the power conferred H. upon the Vegetable Seeds Committee by the National Security (Vege- table Seeds) Regulations and are and is void and of no effect.

2. A declaration that the said Orders are and each of them is void and of no effect as being made mala fide and capriciously in relation to any relevant power given to the committee by and under the said Regulations.

3. A declaration that the Order of 18th October 1944 is void and of no effect as being signed by a person, that is to say, John Ruston Alfred McMillan, having no authority thereunto.

4. A declaration that the Vegetable Seeds Committee has not now and never has had power to prohibit the sale of the aforesaid vege- table seed by the plaintiff.

5. A declaration that the plaintiff is now and at all times has been entitled to sell by retail or otherwise seed of the kinds and varieties referred to in the aforesaid Orders or any of them.

6. A declaration that the Committee has no power to control the importation of seed by the plaintiff.

7. A declaration that the purported prohibition of the importation of carrot seed and pea seed by the plaintiff from New Zealand was as to each of such seeds made mala fide and capriciously in relation to the powers of the Committee under the Regulations.

8. A declaration that the Committee has no power to prohibit the sale of imported seed.

9. A declaration that the prohibition of the sale of seed imported into Australia from abroad was made mala fide in relation to the powers of the Committee.

10. A declaration that the plaintiff is a registered vegetable seed merchant and is not precluded by virtue of such registration or otherwise from importing seeds from abroad.

11. Damages in respect of the matters set out in pars. 18 to 34 hereof both inclusive.

12. An order that the defendant do pay the plaintiff's costs of this action.

In its statement of defence the defendant (a) admitted the facts and matters alleged in pars. 1, 3, 5, 6, 7, 8 and 33 of the statement of claim; and (b) denied each and every allegation contained in pars. 10, 12, 13, 14, 15, 17, 20, 21, 22, 24, 26, 27, 28, 29, 31, 34 and 35 of the statement of claim. The defendant admitted the facts and matters alleged in par. 2 of the statement of claim save and except that the defendant while admitting that seed for the purpose of the plaintiff's business had been obtained by the plaintiff from the sources mentioned in clauses (a) to (e) of par. 2, did not admit

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that seed had been obtained by the plaintiff from the said sources or any of them at " all material times" or any material time within the meaning of that paragraph. The allegations contained in par. 4 of the statement of claim were not, either in whole or severally, admitted by the defendant. In answer to par. 9 the defendant craved leave to refer to each of the documents set out in pars. 6 and 7 for its effect as revoking wholly or in part either or both of the documents set forth in pars. 5 and 6 thereof and did not admit that such last-mentioned document remained unrevoked. In answer to par. 11 the defendant admitted that it had at the date of the statement of defence, 11th April 1945, and had had before and since 17th March 1944, quantities of vegetable seed and that it had imported vegetable seeds from the United States of America and other sources beyond Australia, but did not admit that it had on 11th April 1945, or at all material times" or any "material time within the meaning of par. 11 had on hand " large quantities within the meaning of par. 11 of vegetable seed or of vegetable seed portion of which vegetable seed had been SQ imported. In answer to par. 16, and in further answer to par. 9, the defendant said that the terms of the said document embodied the effect of a decision of the defendant but admitted that it did not authorize the said John Ruston Alfred McMillan to make or issue any order or direction under the National Security (Vegetable Seeds) Regulations in terms of the said document. In further answer to par. 16 the defendant said that it did not claim and had not at any material time claimed that the said document was a valid order under those Regulations. In answer to par. 18 the defendant, while admitting that the plaintiff had established a favourable reputation and goodwill, did not admit that the plaintiff in its said business had at all times maintained a "high standard and quality" within the meaning of par. 18 in goods sold by it or that it at all times had sold under its trade name seed of a germinating capacity and otherwise of a quality in excess of and far superior to any statutory requirements operating in the Commonwealth or in any of the States thereof or that it by such standard and quality" of its seed within the meaning of par. 18 had built up and maintained a favourable reputation and good will both throughout the Commonwealth of Australia and abroad. In answer to par. 19 the defendant did not admit that the plaintiff had at all or at any material time or times on hand for sale or at all large or any quantities of vegetable seed produced by or on behalf of the plaintiff in Australia or at all, whether or not of high quality or germinating capacity or otherwise of a high standard. In further

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answer to par. 19 the defendant said that it claimed that the docu- ments mentioned in pars. 7 and 8 were orders validly made by it pursuant to the powers conferred by reg. 14A of the National Security (Vegetable Seeds) Regulations made under the National Security Act 1939-1943. Except in SO far (if at all) as what was stated by the defendant might amount to a claim to prevent or a preventing or an attempting to prevent within the meaning of par. 19 the defendant denied the allegations in par. 19 other than the allegations stated above to be not admitted. In answer to par. 23 the defendant, while admitting that prior to and up to 1943 the plaintiff had imported pea seed from the Dominion of New Zealand, did not admit that for many years prior to and up to 1943 or at all the plaintiff had imported from that Dominion or at all large quantities of pea seed within the meaning of par. 23 or large or any quantities of pea seed of which a large or any part had been expressly or at all grown in that Dominion for delivery to the plaintiff or that in order to supply the Australian market with such seed the plaintiff depended upon such importation. In answer to par. 25 the defendant did not admit that acting upon or in pursuance of "such permission" within the meaning of par. 25 or at all the plaintiff purchased from merchants in the Dominion of New Zealand large or any quantities of the "said pea seed " within the meaning of par. 25 or any pea seed. In further answer to par. 25 the defendant said that the plaintiff purported to ask of the defendant permission to arrange contracts in New Zealand for certain quantities of certain varieties of pea seed and the defendant informed the plaintiff that it saw no objection to the import of the said quantities and varieties from New Zealand and that except in SO far as (if at all) the said facts might amount to a giving of 'permission to the plaintiff to import specified pea seed from the Dominion of New Zealand" within the meaning of the statement of claim the defendant denied that prior to August 1943 it gave its permission to the plaintiff to import certain speci- fied or any pea seed from that Dominion. In answer to par. 30 the defendant did not admit that the plaintiff was or at any material time or times had been desirous of importing into Australia either from the Dominion of New Zealand or at all new season or any crop of carrot seed known as the St. Valery variety or any variety for the purposes of its business or that the plaintiff at such time or times had had under offer a considerable quantity of the said or any variety for importation. The defendant denied each of the other allegations in par. 30. The defendant admitted the facts and matters alleged in par. 32 save and except that it denied that it had directed the plaintiff to adhere to the said form except for the words 'in

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A. SO far as such conditions are required by the National Security Act

and Regulations."

The defendant submitted that the statement of claim disclosed no cause of action and that the facts therein alleged did not entitle the plaintiff to damages as claimed or to any of the declarations of right therein claimed. The defendant further submitted that the said declarations of right were such as in the exercise of its discretion to make declarations of right the Court, in the circumstances, would not make.

The plaintiff joined issue and submitted that the statement of defence contained no answer in law to the statement of claim.

The defendant applied by way of summons for one or more of the following orders upon the respective grounds stated -1. That proceedings in the action be stayed on the ground that the plaintiff had no reasonable or probable cause of action. 2. That the state- ment of claim be ordered to be struck out or to be amended on the grounds (i) that it disclosed no cause of action; (ii) that it disclosed no cause of action for the damages claimed (iii) that it disclosed no title to the declaration of right claimed and (iv) that the said declarations of right were not such as the court, in its discretion to make declarations of right, would make. 3. That pars. 10 to 15 inclusive, 17, 18, 22, 25 to 30 inclusive and 34 of the statement of claim be struck out on the grounds that the allegations therein contained were unnecessary and tended to prejudice, embarrass or delay the fair trial of the action. 4. That the plaintiff be ordered to deliver to the defendant a better statement of claim and also further and better particulars of matters stated in pars. 10, 12, 15, 19, 25, 26, 27, 28, 30, 31, 32 and 34 of the statement of claim.

The summons was heard before Williams J. in Chambers. Sugerman K.C. (with him Dignam), for the applicant-defendant. Kitto K.C. (with him McKillop), for the respondent-plaintiff. May 11.

WILLIAMS J. delivered, SO far as material, the following written judgment:

The summons asks, as far as it has been pressed, that pars. 10, 11, 12, 13, 14, 15, 17, 18, 22, 25, 26, 27, 28, 29, 30 and 34 of the statement of claim may be struck out on the grounds that the allegations therein contained are unnecessary and tend to prejudice, embarrass or delay the fair trial of the action, or in the alternative that further and better particulars of certain matters stated in pars. 10, 12, 15, 19, 25, 26, 27, 28, 30, 31 and 34 may be given to the defendant.

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The defendant committee is a body which is incorporated by reg. 10 of the National Security (Vegetable Seeds) Regulations. Regu- lation 4 provides that the objects of the Regulations are to ensure, for the purposes of the defence of the Commonwealth and the effectual prosecution of the war, that an adequate supply of vege- table seed is available in Australia, that those seeds are true to type and of a satisfactory standard of purity and germination and that those seeds are effectively distributed, and that the regulations shall be, administered and construed accordingly.

Regulations 14A, 17 and 18, SO far as material, provide as follows :- 14A. (1) The Committee may, by order, control and regulate the processing, treatment, distribution and disposal of vegetable seeds. (2) An order under this regulation may-(a) be made to apply to any person specified in the order, to the person included in any class of persons or to persons generally; (b) be made to apply either throughout Australia or to any part thereof (c) make different provisions with respect to different vegetable seeds.

17. (1) Upon application made by any person, the Committee may, in its absolute discretion, register that person as a vegetable seed merchant in respect of any vegetable seeds; (3) The Committee may, at any time, for reasons which it thinks fit, cancel any such regis- tration.

18. (1) A person shall not sell any vegetable seeds for valuable consideration unless he is a registered vegetable seed merchant in respect of those seeds (2) A registered vegetable seed merchant shall not sell any vegetable seeds for valuable consideration other- wise than in accordance with such directions, if any, as the Committee gives to him in writing.

Order XVII of the Rules of this Court, which relates to pleadings generally, provides, so far as material (1) Every pleading shall contain a statement, as brief as the nature of the case allows, setting out the material facts on which the party pleading relies to support his claim or defence, as the case may be, but not the evidence by which they are to be proved. (5) If the party pleading relies on (inter alia) fraud and in all other cases in which particulars are necessary, particulars, with dates and items if necessary shall be stated in the pleading. (30) The Court or a Justice may order any pleading to be struck out on the ground that it discloses no reasonable cause of action. (31) The Court or a Justice may at any stage of the proceedings order to be struck out or amended any matter in any pleading which is unnecessary or which tends to prejudice, embarrass or delay the fair trial of the action.

72 CLR 52

Order XVIII 1 of the same Rules provides that the Court or a Justice may in any case order either party to deliver to the other further and better particulars of any matter stated in any pleading.

Rules 30 and 31 of Order XVII are the same as Rule 4 of Order

XXV and Rule 27 of Order XIX of the English Rules and under those rules it has been frequently stated that they should only be VEGETABLE

availed of in cases which are SO plain and clear that they are worse than demurrable, or in other words are SO beyond doubt that no COMMITTEE.

legitimate amendment could save them from being demurrable (Republic of Peru v. Peruvian Guano Co. (1); Mayor &. of City of London v. Horner (2); Maas v. McIntosh 3 Matter should only be struck out as unnecessary where the statement of claim sets out immaterial matter in such a way that the defendant must plead to it and SO raise irrelevant issues which may involve expense, trouble and delay and thereby prejudice the fair trial of the action.

The statement of claim in

the present action contains grave charges concerning the manner in which the defendant has exercised the extremely wide powers conferred upon it by the Regulations. It is the paragraphs containing these charges which the defendant is seeking to have struck out.

The allegations

fall into two portions. Those in the first portion, which are contained in pars. 1 to 22, refer to four docu- ments dated 17th March, 18th October, 4th November 1944 and 15th February 1945 whereby the defendant purported to place restrictions upon the sale of certain vegetable seeds by all registered vegetable seed merchants, the restrictions in the first three documents relating to seeds harvested between 1st July 1943 and 30th June 1944, and those in the fourth document relating to seeds harvested between 1st July 1944 and 30th June 1945.

The first declaration claims that these orders are beyond the powers conferred upon the defendant by the Regulations and are void, whilst the second declaration claims alternatively that they are void as being made in bad faith. Paragraphs 10, 11, 12, 13, 14, 15, 17, 18 and 22 contain the allegations upon which the charges of bad faith are based. The defendant by its statement of defence does not dispute the invalidity of the first two orders, SO that it has become unneces- sary for the plaintiff to prove that they were made in bad faith. It will be entitled to a declaration that they are void and to claim any consequential damages which it can establish.

The ground on which the defendant seeks to have*the allegations of bad faith with respect to the third and fourth orders struck out is

1(1887) 36 Ch. Div. 489, at p. 496. 3(1928) 28 S.R. (N.S.W.) 441 45 2) (1914) 111 L.T. 512. 72 CLR 53

that they are of a legislative nature made under a power to legislate conferred upon the defendant by reg. 14A, and that the Court cannot inquire into the motives which actuate a legislative body, SQ that these allegations relate to a matter which is not justiciable.

It is clear, I think, that such motives are not the concern of the Court (Co-operative Brick Co. v. Mayor &. of City of Hawthorn 1 ). Two recent statements on this point are, one by the Supreme Court of the United States of America in Bowles v. Willingham 2 and the other by the Privy Council in King-Emperor v. Benoari Lal Sarma 3 (a case of delegated legislation).

Assuming, therefore, that the third and fourth orders are of a legislative character these allegations are irrelevant on the question of motive. It is, of course, open to the plaintiff to challenge the val- idity of these orders on the ground that reg. 14A is beyond the power conferred upon the Governor-General by the National Security Act and that the orders are beyond the powers conferred upon the defendant by reg. 14A and, since the Commonwealth Parliament cannot delegate wider powers than it possesses, that reg. 14A and the orders are beyond the ambit of the defence power. But in order to determine these grounds it would only be relevant for the Court to consider the language of the defence power and of the National Security Act and compare the provisions of reg. 14A and the orders.

The only facts that the Court could take into consideration would be any public general knowledge of which the Court would take judicial notice. Regulation 4 states what are the objects of the Regulations. This regulation is entitled to respect but is in no way conclusive in deciding whether legislation under reg. 14A is within power: See the cases cited in Reid v. Sinderberry 4. Its presence in the Regulations does not make evidence of motive admissible. The defence power is defined by the purpose for which it is granted (per Dixon J. in Stenhouse v. Coleman 5 ) but it has never been the practice of this Court to take cognizance of any other facts. The legislation before the Privy Council in Abitibi Power &Paper Co. Ltd. V. Montreal Trust Co. 6 contained a recital of the objects for which it was passed. Lord Atkin delivering the judgment of the Privy Council, said: "This Board must have cogent grounds before it arising from the nature of the impugned legislation before it can impute to a provincial legislation some object other than what is to be seen on the face of the enactment itself" 7. (The italics are mine.)

1(1909) 9 C.L.R. 301, at p. 309. 2(1944) 321 U.S. 503, at p. 515. 3(1945) A.C. 14, at p. 28. 4(1944) 68 C.L.R. 504, at p. 523. 5(1944) 69 C.L.R. 457, at p. 471. 6(1943) A.C. 536. 7(1943) A.C., at p. 548. 72 CLR 54

If the effect of the orders was not clear, evidence to show their operation might be admissible (Attorney-General for Alberta V Attorney-General for Canada 1 ), but that is a different question. Here the effect of the orders is quite clear.

The crucial question is, therefore, whether the orders are of a legislative nature. In order to determine this question the test laid down by the Supreme Court of the United States of America in J. W. Hampton Jnr. &Co. v. United States 2 has frequently been adopted: The true distinction, therefore, is between the dele- gation of power to make the law, which necessarily involves a dis- cretion as to what it shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law."

Regulation 14A confers upon the defendant an absolute discretion to determine the extent to which and the manner in which the processing, treatment, distribution and disposal of vegetable seeds shall be controlled and regulated. Until an order is made no direc- tions exist prescribing these matters or the persons to be affected. It is of the same nature as an order made under reg. 59 of the National Security (General) Regulations. Two of these orders came before this Court, the Bread Industry (N.S.W.) Order in Stenhouse v. Coleman 3 and the Fly and Insect Sprays Order in Wertheim v. The Common- wealth 4. In both these cases I considered that the orders were of a legislative nature and the other members of the Court presumably took the same view since in order to determine their validity they applied tests which were only relevant to legislation. The documents in question are, I think, clearly legislative, SO that the paragraphs under discussion are unnecessary and should be struck out.

The summons also asks that pars. 25, 26, 27, 28, 29, 30 and 34 should be struck out. These paragraphs are contained in the second portion of the allegations in the statement of claim. They relate to the importation by the plaintiff into Australia of pea and carrot seeds from New Zealand between 1943 and January 1945. They allege that the defendant first gave permission to the plaintiff to import the pea seeds but subsequently withdrew its permission, and refused to give the plaintiff permission to import the carrot seeds.

When the plaintiff was re-registered as a vegetable seed merchant on 31st October 1944 the form contained directions that such a merchant should not sell or otherwise dispose of for valuable con- sideration any vegetable seed imported into Australia unless such seed had been imported with the consent of the defendant. The

1(1939) A.C. 117, at pp. 130, 131. 2(1928) 276 U.S. 394, at p. 407. 3(1944) 69 C.L.R. 457. 4(1945) 69 C.L.R. 601. 72 CLR 55

plaintiff claims that the defendant is not entitled to refuse permission H. to import seeds or to sell imported seeds, or alternatively that the refusal of permission was in bad faith.

The defendant seeks to have the paragraphs alleging bad faith struck out on the grounds that the plaintiff's proper and only remedy is a mandamus to compel the defendant to register the plaintiff without the restrictive conditions. But I cannot accept this con- tention. The plaintiff is entitled to sue for the declaration that the defendant is not entitled to refuse this permission or to impose this restrictive condition on the registration. If the defendant has this power under reg. 18 (2) but has exercised it mala fide it is an executive power so that the plaintiff is entitled to a declaration to this effect, and an injunction against the defendant enforcing such a condition,

SO that if the restriction is bad on either ground there is no binding restriction imposed within the reg. 18 (2). The application to strike out the paragraphs under discussion therefore fails.

There remains the question whether the defendant is entitled to further and better particulars of these paragraphs. They are not, in my opinion, as clear and precise as they should be and I think that it is difficult for the defendant to know the case which it has to meet when the action comes on for trial. I think that I should order the particulars asked for of pars. 25, 26, 27, 30, 31 and 32. I do not think it necessary to order further particulars of par. 28. During the hearing Mr. Kitto said that the determination referred to in par. 34 is the decision mentioned in par. 24 and Mr. Sugerman expressed himself as satisfied with this statement, SQ that I need not order further particulars of par. 34.

I give the plaintiff and defendant general leave to amend. I order the plaintiff to deliver the particulars to the defendant within 14 days and I give leave to the plaintiff to amend within 28 days. I also give leave to the defendant to amend within 14 days after the plaintiff's amendments have been delivered to it or if the plaintiff does not amend within 14 days after the plaintiff's solicitor has notified the defendant's solicitor to this effect or

after the delivery of the particulars, whichever is the later date.

The costs of the summons to be the defendant's costs in the action.

From that decision, SO far as it related to the striking out of pars. 10 to 15 inclusive, 17, 18 and 22 of the statement of claim, the plaintiff appealed to the Full Court of the High Court.

During the argument the statement of claim was, by consent, amended by adding thereto as defendants the Commonwealth and the Attorney-General for the Commonwealth.

72 CLR 56

Barwick K.C. (with him McKillop), for the appellant. The orders now under consideration purporting to have been made under the National Security (Vegetable Seeds) Regulations are invalid. They are not legislative orders but are administrative orders and are not bona fide. The power under reg. 14A is clearly an executive power. The Regulations, particularly reg. 4, contain a sufficient indication of the policy or scheme which is to be broadly followed. Whether or not the power is legislative must depend upon the particular regulations or regulations viewed in substance. Regula- tion 14A must be fitted into the scheme. It is a scheme for stated purposes, to achieve stated objects, a scheme of registration and an administrative body to carry out what the legislature, or the executive in this case, has considered to be a policy sufficiently defined by the Regulations. The powers conferred by the Regulations must be exercised bona fide (Municipal Council of Sydney v. Campbell 1; Sharp v. Wakefield 2 Stenhouse v. Coleman 3 ) The power is a power to regulate the method by which vegetable seeds are to be controlled. Executive and administrative powers as exercised and applied in the United States of America were con- sidered in J. W. Hampton Jnr. &Co. v. United States 4; Bowles V. Willingham 5; Yakus v. United States 6 and United States V. Rock Royal Co-operative Inc. 7. In applying the American definition regard must be had to the way in which it is viewed in America, namely, that where the Act sufficiently indicates the policy and the limits within which the administrator is to prescribe the rules of conduct although he prescribes them in a very real sense none the less what he does is executive. The Regulations define the purpose. All action in pursuance of the Regulations, including the making of orders under reg. 14A, must, in order to be valid, relate to that purpose. If action is related to some other purpose it is not authorized by the Regulations. Where there has been a sufficient indication of policy by the legislature, the acts are executive acts and they are control- lable for, amongst other grounds, want of bona fides (Victorian Chamber of Manufactures v. The Commonwealth (Women's Employ- ment Regulations) 8; The Commonwealth v. Grunseit 9; Reid V. Sinderberry 10; Adelaide Company of Jehovah's Witnesses Inc. V.

1(1925) A.C. 338. 2(1891) A.C. 173, at p. 179. 576 [83 Law. Ed. 1470]. 3(1944) 69 C.L.R., at p. 467. 4(1928) 276 U.S., at pp. 406, 407 378, 398. [72 Law. Ed. 624, at p. 629]. 5(1944) 321 U.S., at p. 515 [88 Law. Ed. 892, at p. 902]. 6(1944) 321 U.S. 414, at pp. 425, 426 [88 Law. Ed. 834, at p. 849]. 7(1939) 307 U.S. 533, at pp. 574- 8(1943) 67 C.L.R. 347, at pp. 377, 9(1943) 67 C.L.R. 58, at pp. 66, 67, 10(1944) 68 C.L.R., at pp. 514, 515. 72 CLR 57

The Commonwealth 1 Stenhouse v. Coleman 2; Crowe V. The Commonwealth 3 ). Those cases show that the Court has always regarded orders made under the regulations as being rather of an executive than a legislative character. When considering whether the act of a subordinate rule maker, to whom a power has been given for a purpose, is valid, it is irrelevant to consider whether the act is in its nature legislative or executive. In the case of subordinate legislation, that is, orders made by such delegates as the vegetable seeds committee, the distinction between the legislative and the executive character of their function, where their power is conditioned by a purpose, is unimportant on the question of whether or not the validity of their orders can be attacked on the ground of want of bona fides. The principle in Salomon v. Salomon 4 that the intention of the legislature can only be legitimately ascertained from that which it has chosen to enact is not involved here. Nor has the principle in Co-operative Brick Co. Pty. Ltd. v. Mayor &. of the City of Hawthorn 5 any bearing on the principle now being debated because it presupposes the very inquiry now raised as having been answered favourably to the legislation. The question of whether or not inquiry may be made into a piece of legislation, where the power to enact is conditioned by a purpose, is closely related to the question of whether evidence is admissible in order to establish what the real purpose was. It has never yet been held that where a power is conditioned by a purpose evidence cannot be received to determine what was the actual purpose of the legislation (Stenhouse V. Coleman 6; W. R. Moran Pty. Ltd. v. Deputy Commissioner of Taxation (N.S.W.) 7; Attorney-General for Alberta v. Attorney- General for Canada 8 ). The reference in Abitibi Power &Paper Co. Ltd. v. Montreal Trust Co. 9 to the real substance of the legis- lation is to the possibility of there being before the Privy Council other than what appeared on the face of the legislation. The possi- bility of the admissibility of evidence on the question of want of bona fides on the part of the legislature was referred to in South Australia V. The Commonwealth 10 and Joseph v. Colonial Treasurer (N.S.W.) 11. The English doctrine on this point, which differs somewhat from the doctrine which prevails in the United States of America, is shown in South Australia v. The Commonwealth 12 and the cases there

1(1943) 67 C.L.R. 116, at pp. 151, 2(1944) 69 C.L.R., at pp. 467, 472. 61 C.L.R. 735, at pp. 793 et seq. 3(1935) 54 C.L.R. 69, at pp. 84, 86, 4(1897) A.C. 22, at p. 38. 5(1909) 9 C.L.R., at p. 309. 6(1944) 69 C.L.R., at p. 469. 7(1940) A.C. 838, at p. 849; 63 C.L.R. 338, at p. 341 ; (1939) 8(1939) A.C., at pp. 130, 131. 89, 94. 9(1943) A.C., at p. 548. 10(1942) 65 C.L.R. 373, at p. 410. 11(1918) 25 C.L.R. 32, at p. 43. 12(1942) 65 C.L.R., at p. 439. 72 CLR 58

A. cited. This is not a matter involving public policy as in King

Emperor v. Benoari Lal Sarma 1, therefore that decision is not applicable to the principle that where a power is limited to a purpose regard may be had to whether the purpose has been followed. The subject orders are administrative and should be declared invalid. They are only a colourable exercise of the power. The object of those orders was to save the respondent committee from financial loss.

Sugerman K.C. (with him Dignam), for the respondents. The real distinction which is relevant in relation to the problem before the Court is not, perhaps, a distinction between that which is legislative and that which is executive, as much as a distinction between the general rule of law enforceable by penal sanctions and some act of a government instrumentality which affects only an individual and is self-executive and operative directly against a person or his property. The respondents are not concerned with the prohibition against the importing and selling referred to in the second part of the statement of claim, but they are concerned with the orders set forth in pars. 5 to 8 inclusive of the statement of claim, and, in particular, with those set forth in pars. 7 and 8, because no serious dispute arises concerning the orders set forth in pars. 5 and 6. A power may be exercised even with intention of injuring another person. In law the intent is irrelevant. Everything which has been done by the respondent committee is within one or other of the very wide powers conferred upon it by reg. 23 of the National Security (Vegetable Seeds) Regulations. The policy of the committee was that of endeavouring to prevent loss to itself and loss to the Commonwealth in dealing with seeds. The question of whether the order or orders was or were arrived at mala fide is one of fact upon which different tribunals might come to different conclusions. Considerable con- fusion is caused by the use of terms "legislative" and "executive," but, where an order operates generally and is only operative by proceedings in the Court, the Court, in determining the validity of the order, must restrict itself to matters appearing on the face of the instrument itself and to matters of which the Court may take judicial notice. It has been said it is a question of fact whether the lawful purpose was being pursued, but the cases where the principle has been actually applied, where there has been more than a general reference to it, are all cases of resumption or acquisition of land and are all cases where the matter has been capable of determination by objective standards. Also, they are all cases

1(1945) A.C., at pp. 22, 23. 72 CLR 59

where the important matter was something quite objective, that is, the use to which the resuming authority was going to put the land. The more important cases of this type are Galloway v. Mayor and Commonalty of London 1, Stockton and Darlington Railway Co. V. Brown 2, Marquess of Clanricarde v. Congested Districts Board for Ireland 3, Vatcher v. Paull 4, Narma v. Bombay Municipal Com- missioner 5, Municipal Council of Sydney v. Campbell 6, Criterion Theatres Ltd v. Sydney Municipal Council 7 and Werribee Council V. Kerr 8. All those cases are cases of a power given for a particular purpose, namely, the power to resume land. Another case of that type is James v. Cowan 9. There is a very important distinction in principle between that type of case and the case now before this Court, because in that type of case there merely arises an issue between two individuals which the court can determine as it would determine any other issue between two individuals, while in the type of case now before the Court in the absence of ordinary objective standards different results might be arrived at by different tribunals (Kruse V. Johnson 10 ). The orders now under consideration are general rules of law laying down rules of conduct in a general sense and enforceable by penal sanctions which depend upon S. 10 of the National Security Act. On their face they are directed to a limited class of persons, that is, persons registered under the Regulations as vegetable seed merchants. The prohibitions contained in the orders are laid upon that class of persons, but the prohibitions and orders are capable of affecting anyone in the community. Under S. 5 of the Commonwealth Crimes Act 1914 any person who aids or abets is directly or indirectly concerned in the commission of an offence against the orders and is himself guilty of the like offence. If there are trading interests and orders are made for some ulterior purpose beyond the Regulations, they are bad but the question is: How far can a court of law inquire into that matter ? In testing par. 15 of the statement of claim, the assumption has to be made that on its face the order was perfectly good and directed to a purpose allowed by the Regulations. No court has ever upset a piece of delegated legislation on the ground of ulterior purpose or mala fides: See Co-operative Brick Co. Pty. Ltd. v. Mayor &. of the City of Hawthorn 11. The subject orders are legislative acts. The orders themselves for the first time lay down the rule of conduct.

1(1866) L.R. H.L. 34. 2(1860) 9 H.L.C. 246 [11 E.R. 724]. 3(1914) 31 T.L.R. 120. (1930) 43 C.L.R. 386. 4(1915) A.C. 372. 5(1918) L.R. 45 Ind. App. 125. 6(1925) A.C. 338. V.L.R. 27, at p. 51. 7(1925) 35 C.L.R. 555. 8(1928) 42 C.L.R. 1. 9(1932) A.C. 542 ; 47 C.L.R. 386; 10(1898) 2 2.B. 91, at pp. 99, 100. 11(1909) 9 C.L.R. 301 ; (1909) 72 CLR 60

There was not any relevant rule of conduct laid down in the Regula- tions which merely, for the present purpose, by reg. 14A, empower the committee to make orders, and the orders lay down a rule of con- duct. The Vegetable Seeds Committee is a body of a mixed nature, it has both administrative and legislative functions. The principle of non-investigation of motives is not confined to Parliament but extends to all legislative bodies (Co-operative Brick Co. Pty. Ltd. V. Mayor &. of the City of Hawthorn 1 Shrimpton v. The Common- wealth 2). The general question of the admissibility of evidence in relation to purpose in the case of a legislative body was dealt with in Stenhouse v. Coleman 3, and a somewhat analogous question was dealt with in Bendixen v. Coleman 4. There is a want of par- ticularity in the allegations made in the statement of claim. The pleader has not directed his attention to public general knowledge but to inferences which he suggested should be drawn from particular facts.

4(1914) 79 J.P. 481; 31 T.L.R. 120. 5(1925) A.C. 338. 6(1925) 37 C.L.R., at p. 262. 7(1928) 42 C.L.R. 1. (1919) 26 C.L.R., at p. 282 ; 8(1914) 31 T.L.R. 120 79 J.P. (1919) A.C., at p. 706, 9(1909) V.L.R., at pp. 51, 52. 72 CLR 83

by-law would be placed in a false position if the by-law could, perhaps after a long time, be upset on such a ground. These con- siderations make one think that the furthest the Court can go is to look at the object and effect of the by-law, to be gathered from its language, and possibly by applying it in a general way to the existing state of legislation, and to the conditions of things existing in the locality." On this point the judgments in the Supreme Court were approved in this Court 1.

The extent of the materials which may be considered in such a case even where it is a legislature may be seen from Attorney-General for Alberta v. Attorney-General for Canada 2. But bad faith may take the form of falsely avowing a legitimate purpose to cover the actual pursuit of an object outside the scope of the power (see per Isaacs J. in Jones v. Metropolitan Meat Industry Board 3 and Werribee Council v. Kerr 4 ).

In the Canadian courts bad faith in this sense has been regarded as an admissible ground of invalidity in the case of by-laws of local governing bodies. The effect of the decisions appears to be that the powers of the council must be exercised bona fide, and the action of its members must not be founded upon fraud, oppression, or improper motives and a by-law may be quashed if the council in passing it was not using its power in good faith in the interest of the public, but simply to subserve the interests of private persons (per Maston J. in Re Howard and City of Toronto 5 ). See further Hurst V. 6 and, in the Supreme Court of Canada, see Jones v. Township of Tuckersmith 7 and Upper Canada College v. City of Toronto 8.

In United Buildings Corporation Ltd. v. City of Vancouver 9, reliance was placed on the Canadian doctrine in an attack upon a by-law of Vancouver and 10 Lord Sumner for the Privy Council appears to accept it as a ground of invalidity, though denying its application to the facts of that case. During the argument, counsel cited from the speech of Lord Davey in Scott v. Glasgow Corporation 11 a passage in which he also appears to accept the doctrine. It is to the effect that it is a perfectly sound and important principle " that the power of making by-laws entrusted to a municipal or other public authority is SO given for the purpose of better enabling them

1(1909) 9 C.L.R., at pp. 309, 314, 2(1939) A.C., at pp. 130, 131. 3(1925) 37 C.L.R., at pp. 264, 265. 4(1928) 42 C.L.R., at pp. 8-10. 5(1928) 1 D.L.R. 952, at p. 964. 6(1931) 3 D.L.R. 355, at p. 357. 7(1917) 47 D.L.R. 684, at p. 696. 8(1917) 38 D.L.R. 523. 9(1915) A.C. 345. 10(1915) A.C., at p. 350. 11(1899) A.C. 470, at p. 492. 72 CLR 84

A. to perform their general duties, and ought not to be used for any

collateral or outside purpose." See, too, Bailey v. Conole 1.

The present case falls, I think, well within the principles upon which a purported exercise of power is invalidated because of an PTY. LTD.

inadmissible purpose. It is well to notice the special features which it possesses. Without suggesting that they are all essential to the conclusion, it is at least desirable to state some of them with a view of confining our decision to the actual circumstances of the case. We are concerned solely with an allegation of fact and not with any question of the materials upon which it is to be established. The gist of the allegation is that the determination by the Vegetable Seeds Committee to make and serve on vegetable seed merchants the orders impugned was made solely for the protection and furtherance of the Committee's financial and trading interest and to exclude competition. It is a purpose ascribed to a corporate body consisting of four persons, It is not a deliberative assembly. The complaint that the orders are the product of an improper or inadmissible purpose does not depend upon an imputation of motives bearing on their private and personal interests actuating individual members to give their concurrence in the orders. It relates to the effect upon the affairs of the body itself, the effect which it was sought to achieve by means of the orders. The power to make the orders forms part of the total authority given to an administrative organization of a subordinate character. The organization was set up for a defined purpose, one to which its policy and administration must be directed. The object ascribed to it in making the orders is outside the purpose for which it was set up and is at variance with it. That purpose forms a condition to which the exercise of the power must conform. In these circumstances I think the allegations, if made out, would invalidate the orders.

It is to be observed that the present proceeding is not a collateral attack upon the validity of the orders. It is a direct attempt to impeach them by a proceeding against the body by which they were promulgated as well as the Commonwealth and the Attorney-General of the Commonwealth whose responsibility it would be to enforce the orders. The application to strike out the paragraph of the pleading does not raise any question concerning the competence of the suit or the propriety of making the declaration of right claimed.

In my opinion the appeal should be allowed and the order striking out pars. 10, 11, 12, 13, 14, 15, 17, 18 and 22 of the statement of claim should be set aside. I should add, however, that I have some

1(1931) 34 W.A.L.R. 18, particularly at pp. 23, 24, per Dwyer J. 72 CLR 85

doubt about par. 22 on the ground that it seems to plead evidence and, at that, evidence of dubious admissibility.

Appeal allowed. Order discharged in so far as

it directs that paragraphs of the statement of claim be struck out. Defendants to pay costs of appeal. Costs of summons to be costs in the action. Solicitors for the appellant, Parish, Patience &McIntyre. Solicitor for the respondents, H. F. E. Whitlam, Crown Solicitor for the Commonwealth.