BRKUSICH and POTATO MARKETING CORPORATION OF WESTERN AUSTRALIA - [2009] WASAT 161

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: MARKETING OF POTATOES ACT 1946 (WA)

CITATION: BRKUSICH and POTATO MARKETING CORPORATION OF WESTERN AUSTRALIA [2009] WASAT 161

MEMBER: JUSTICE J A CHANEY (PRESIDENT)

HEARD: 7 MAY 2009

DELIVERED : 21 AUGUST 2009

FILE NO/S: CC 143 of 2008

BETWEEN: STEPHEN BRKUSICH
Applicant
AND
POTATO MARKETING CORPORATION OF WESTERN AUSTRALIA
Respondent

Catchwords:

Potato marketing - Refusal to accept delivery of potatoes for domestic market - Whether application required for domestic market entitlement - Grower declining to apply for growing area licence

Legislation:

Marketing of Potatoes Act 1946 (WA), s 7, s 17A, s 19A, s 22, s 23, s 27, s 28, s 32
Marketing of Potatoes Regulations 1987 (WA), reg 35, reg 37

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant: Mr GMG McIntyre SC
Respondent: Mr PD Quinlan and Ms EKF Cheong

Solicitors:

Applicant: Patti Chong Lawyers
Respondent: Deacons

Case(s) referred to in decision(s):

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Mr Stephen Brkusich sought certain declarations concerning a refusal by the Potato Marketing Corporation of Western Australia to accept delivery of 45 tonnes of potatoes for sale within the Western Australian domestic market.
The refusal to accept the potatoes was based upon the Potato Marketing Corporation's contention that Mr Brkusich was not entitled to deliver, and the Potato Marketing Corporation was not obliged to accept, his potatoes because he did not hold a current area licence or a domestic market entitlement in relation to the potatoes. Over a period of some months earlier in 2007, Mr Brkusich had been invited to apply for the necessary area licence and domestic market entitlement, but had refused to do so. His refusal arose from a desire to obtain a better price for his potatoes than the general pool price which the Potato Marketing Corporation was prepared to pay.
Mr Brkusich claimed that the Potato Marketing Corporation had erred by declining delivery of the potatoes either because he was entitled to the domestic market entitlement which had been offered to him, or alternatively entitled to deliver them under area licenses and domestic market entitlements of others which Mr Brkusich had applied to have transferred to himself. Those transfers had not been formally approved by the Potato Marketing Corporation.
The Tribunal examined the circumstances leading up to the attempt to deliver the potatoes on 2 October 2007, and concluded that the Board was not obliged to accept the potatoes for the domestic market, and was justified in refusing to do so. Accordingly, Mr Brkusich's application was dismissed.

Background to the application

This application concerns a refusal on 2 and 3 October 2007 by the Potato Marketing Corporation of Western Australia (Corporation) to accept a delivery of 45 tonnes of potatoes by Mr Brkusich for sale into the domestic market. Mr Brkusich was initially unrepresented when proceedings were commenced. The decision which he sought to have the Tribunal make in his original application does not identify with any clarity the basis of the Tribunal's jurisdiction. In an early directions hearing, the Senior Member with the conduct of the matter formulated, for the assistance of Mr Brkusich, a form of declaration that the Corporation had breached its obligations to him under the Marketing of Potatoes Act 1946 (WA) (MP Act) and under his domestic market entitlement (DME) by refusing to accept delivery of his potatoes on 2 October 2007. The Corporation took the view that Mr Brkusich did not have a DME at the appropriate time, so that there was no factual foundation upon which the declaration could be made. Eventually, Mr Brkusich obtained legal advice, which ultimately led to senior counsel being involved to assist in identifying the source of what was said to be an obligation on the part of the Corporation to accept delivery of the potatoes. The position was somewhat complicated by the fact that, instead of accepting the potatoes for sale on the domestic market, the Corporation had granted the necessary permit to sell the potatoes to a producer for processing. Mr Brkusich had acted on that authority, and the potatoes had been sold. There was, therefore, an issue, as to the utility of any remedy that might be granted.
Senior counsel drew a statement of issues, facts and contentions which sought to remit the matter to the Corporation with directions as to how it was obliged to act in relation to deliveries of potatoes by registered businesses. The matter proceeded to hearing on the basis of an application for that relief.
The essential proposition relied upon by the applicant was that the Corporation was obliged, pursuant to the terms of the MP Act, to accept the potatoes for sale in the domestic market. It is necessary to understand both the actual circumstances leading up to the events of 2 October 2007, and the operation of the provisions of the MP Act, in order to determine that issue.

Marketing of Potatoes Act 1946 (WA)

The growing and sale of potatoes in Western Australia is regulated by the MP Act. The respondent to these proceedings, the Corporation is established by s 7 of the MP Act.
The MP Act uses the expression 'ware potato' which is defined to mean a potato which is grown in Western Australia, is sold or is reasonably believed to be intended for sale, for human consumption, and is unprocessed except for cleaning and grading.
The functions of the Corporation are established by s 17A of the MP Act. By that section, the Corporation is charged with the regulation and marketing of the potato industry, registration of producers, licensing areas of land to be used for the production of potatoes, and certain other functions associated with the promotion and development of the industry.
The jurisdiction of this Tribunal arises under s 19A of the MP Act, which entitles a person aggrieved by a decision made by the Corporation in the exercise of a power conferred on it, to apply to the Tribunal for a review of the decision.
Section 22 of the MP Act prohibits the sale or delivery of ware potatoes otherwise than to the Corporation or its agent, or in accordance with a permit or exemption granted under the MP Act.
Section 22B prevents a person, as a commercial producer, from growing potatoes for sale unless he is registered with the Corporation in the prescribed manner and the business is carried on in accordance with the MP Act and the terms of any conditions or restrictions which apply to that registration. Furthermore, s 22B(1)(b) prevents a commercial producer from planting potatoes otherwise than on land specified in an area licence issued to that commercial producer by the Corporation, or acquired from another commercial producer by means of a transfer approved by the Corporation under the MP Act. Section 22B(6) provides that the Corporation shall not refuse an application for approval to the transfer of an area licence unless the Corporation has reason to believe that the transfer will or may result in the terms of the licence not being observed.
An area licence has effect from the time specified in the licence and has no effect at any time when its terms, conditions or restrictions are not observed, or if it is suspended under s 22B.
Where an application for registration of a business is granted, the Corporation is required to issue a certificate in the prescribed form identifying the commercial producer who is the holder, the name and location of the business and the size and nature of the activities authorised by the registration - s 22B(8).
A purported transfer from one holder to another of any registration or area licence has no effect unless and until approval has been sought from and given by the Corporation in the prescribed manner: s 22B(9).
Section 22C deals with registration, and area licensing generally. It provides the Regulations to be made in relation to the system of area licensing. It enables area licences to have effect for the time specified in the licence. Section 22C(5) provides:
(5)The grant or renewal, or the approval to the transfer, of an area licence may be made subject to such terms, conditions and restrictions as the Corporation thinks fit, but -
(a)regard shall be had to the estimate made by the Corporation as to the demand anticipated for any particular period or particular purpose and any consequent need to regulate planting; and
(b)regard may be had to the proposed method of growing, taking into account that organic methods may require a larger area than would otherwise be used.
Section 23(1) provides that subject to subsection (3), the Corporation shall not refuse to accept delivery from any grower with any ware potatoes provided they meet certain quality standards and they are delivered at the time and place, if any, stipulated in any public notice, or notice to the growers concerned, that may have been given.
Sections 23(3), (4) and (5) provide:
(3)The Corporation is not required to accept delivery from any grower of potatoes that have been produced, or are tendered for delivery, otherwise than -
(a)      by or on behalf of a business registered under this Act;
(b)within the terms of the domestic market entitlement allocated to that business; and
(c)in accordance with the terms, conditions and restrictions applying to the registration of that business and to the area licence in respect to the land where the potatoes were produced.
(4)The Corporation may accept delivery from any grower of potatoes -
(a)not being within the terms of a domestic market entitlement allocated to the business by or on behalf of which the delivery is made;
(b)      for use by potato product manufacturers; or
(c)      for export,
but is not under any duty to do so.
(5)Acceptance by the Corporation of the delivery of any potatoes does not constitute any representation, express or implied, that the acceptance will require the Corporation to pay any amount, or at all, for those potatoes except such as is required under this Act.
The MP Act requires the Corporation to establish a marketing system for ware potatoes. The system is required to comprise marketing pools in respect of which an entitlement to participate may be allocated by reference to the tonnage deliverable or the licensed area or both. The pools are established by reference to different growing periods and a desire to ensure continuity of supply throughout the year. The Corporation is required, prior to the commencement of each pool period, to submit to the Minister a statement estimating the quantity of potatoes and growing areas to be licensed in order to satisfy the anticipated domestic demand. The Minister is then required to give directions to establish the quantity of ware potatoes which the Corporation is required to accept under s 23 as the domestic marketing pool. The Corporation may also establish marketing pools related to potatoes other than ware potatoes for export or other purposes.
By s 27, the specification of a marketing pool must establish the quantity of potatoes which the Corporation is willing to accept in respect of that pool, and any market entitlements, and the method by which they are to be allocated.
Section 28 of the MP Act deals with DME, and provides:
(1)For each domestic marketing pool established under section 26(2) the Corporation shall allocate domestic market entitlements specifying the quantity of ware potatoes that the Corporation is required to accept if delivered in accordance with section 23(1) by or on behalf of a registered business during the relevant pool period.
(2)The Corporation -
(a)shall allocate a domestic market entitlement to each business for the time being registered under section 22B; and
(b)may invite applications from growers, or from persons other than growers, for the allocation of such an entitlement, but any such allocation shall not have effect unless or until the business to which the entitlement is, or is to be, allocated is registered under section 22B.
(3)The regulation of the domestic market entitlement allocation required, under section 19(k), to be conducted by the Corporation shall be -
(a)based on principles approved by the Minister on the written recommendation of the Corporation; or
(b)as set out in guidelines for the Corporation given by the Minister by way of direction under section 20A(1),
and if a person is aggrieved by a decision of the Corporation in the exercise of that power that person may apply under section 19A for a review of the decision.
(4)In making recommendations to the Minister, and in allocating domestic market entitlements, the Corporation may have regard to -
(a)the likelihood or otherwise of continuity and certainty of delivery;
(b)      the anticipated market demand;
(c)      any other anticipated requirement of consumers; and
(d)      any other factors regarded as relevant by the Corporation.
(5)A domestic market entitlement allocated to a business registered under section 22B may, if approval is sought from and given by the Corporation in the prescribed manner, be transferred by the respective holders of the certificates of registration concerned from that business to another business so registered.
(6)The Corporation shall not refuse an application for approval to the transfer of a domestic market entitlement unless, had the application been made in respect of the transfer of an area licence, the provisions of section 22B(5) or (6) would have applied.
The price payable for ware potatoes by the Corporation is fixed following a process set out in s 32(1). There is, however, potential for the Corporation to vary the price payable having regard to commercial considerations taking into account seasonal premiums, premiums or discounts applicable to the quality or variety of the potatoes, or applicable to a particular grower, having regard to conditions or circumstances determined by the Corporation - s 32(2).
The Marketing of Potatoes Regulations 1987 (WA) (MP Regulations) are made pursuant to the MP Act. Various forms are prescribed by the MP Regulations in relation to applications for registration of a business, the grant of area licenses and the grant of DMEs. Area licenses are dealt with in reg 35 which provides:
(1)The chief executive officer shall cause a record to be kept by the Corporation of all area licences issued under the Act.
(2)An application for an area licence under the Act shall be made in the form of Form 7 in Schedule 2.
(3)An area licence shall be in the form of Form 8 in Schedule 2.
(4)An application for approval to the transfer of an area licence shall be in the form of Form 9 in Schedule 2.
(5)Approval by the Corporation to the transfer of an area licence shall be signified by the issue of a revised area licence.
Domestic market entitlements are dealt with by reg 37 which provides:
(1)The chief executive officer shall cause a record to be kept by the Corporation of all domestic market entitlements allocated.
(2)The certificate as to the domestic market entitlement allocated to a registered business shall be in the form of Form 10 in Schedule 2.
(3)An application for approval to the transfer of a domestic market entitlement allocated to a business shall be in the form of Form 11 in Schedule 2.
(4)Approval by the Corporation to the transfer of a domestic market entitlement shall be signified by the grant of a revised certificate.

Events leading up to 2 October 2007

Mr Brkusich has been involved in farming since 1982 with members of his family. He has been involved in growing potatoes since 1988. Initially, Mr Brkusich worked on his parent's farm in Baldivis but, in 2000, that farm was sold and Mr Brkusich moved with his brother to a farm in Lancelin, known as Eaglehawk Farm. They developed the Lancelin property with a view to making it a 'state of the art sustainable farm of the future'. Their plan was to grow carrots, potatoes and onions.
In 2000 and 2001, after they moved to Lancelin, Mr Brkusich and his brother did not grow potatoes, but leased their licences to other growers. They commenced growing potatoes on the Lancelin farm in 2002.
In 2004, the requirement for a DME to be attached to area licence was introduced. The DME was based on a 4 year average of a grower's harvest. Because the Brkusich's had not grown potatoes when they initially established their new farm at Lancelin, and because in the 2002 and 2003 seasons their yields were relatively low by reason of establishing the best techniques in the new location, their DME was set at a rate of 31 ton per hectare. Mr Brkusich said that 31 ton per hectare was well below the potential yield of the land once the farm was established.
By 2004, Mr Brkusich had licences to grow 13.5 hectares, being 11.2 hectares under their own licences, and 2.33 hectares leased from others.
In 2005, the Brkusich's grew some 120 tons in excess of their DME. Mr Brkusich explained that that was because the yield achieved on the licensed area far exceeded 31 tons per hectare upon which their DME was set. Mr Brkusich complained to Mr Larry Heggarty, a compliance officer employed by the respondent. He was told that the Board would take the excess tonnages. The potatoes were subsequently delivered, but there were difficulties in obtaining payment in relation to those deliveries. Mr Brkusich attended a number of meetings with representatives of the respondent, and with the Minister for Agriculture, in which he complained that his DME was set too low. Eventually, payment for the potatoes was received.
In the meantime, Mr Brkusich had planted his crop for the 2006 growing season. He had leased an extra licensed area, making his total planting 17.61 hectares. Mr Brkusich made contact with representatives of the respondent to seek to have his DME rectified. He said that he was given various assurances that that would be attended to. The Brkusich's DME was subsequently delivered for the 2006 season.
For the 2007 season, Mr Brkusich leased extra licenses from other growers, which, if transferred, would have resulted in him having a total DME of 800 tons, and a total licensed area of 21.36 hectares. The licenses referred to pool periods two and three. Applications for the relevant growing area licences and applications to transfer those licences to Eaglehawk Farm and for transfer of the relevant DME were signed by each of the other growers and where necessary by Mr Brkusich. Those documents bear various sales between February 2007 and April 2007. The variety of potatoes to be grown under those licences were 'Nadine' and 'Royal Blue'. At some point, which is not clear from the evidence, those documents were submitted to the Corporation. The transfers were not, however, processed by the Corporation, apparently because of its standard procedure that an applicant was required to complete its paperwork in relation to its own DME before any other licences would be transferred across to that applicant.
Mr Brkusich commenced planting in March 2007. The process for completing the Form 7 - Area Licence Application (Form 7) for the domestic market for an established grower is that the form will be sent to the grower for completion, with a proposed delivery schedule prepared by the Corporation. The Corporation requires the grower to complete and sign that form for the issue of the area licence and the DME. Those forms were sent to Mr Brkusich by the Corporation.
In April 2007, Mr Brkusich had a telephone conversation with Mr Heggarty. The purpose of Mr Heggarty's call was to request Mr Brkusich to sign the Form 7. Mr Brkusich's evidence was that Mr Heggarty rang to request that he sign a planting area declaration - Form 15. I think it more likely that it was a Form 7 that Mr Heggarty sought to have signed. That is consistent with subsequent events and with the fact that the Corporation had earlier sent a Form 7 for signature. I prefer Mr Heggarty's evidence on that point. In that conversation, Mr Brkusich told Mr Heggarty that the respondent would have to pay a premium for his crop in light of anticipated shortage of potatoes in the pool two and pool three seasons. According to Mr Brkusich, Mr Heggarty told Mr Brkusich, in effect, that if he signed the planting declaration, the respondent would give him what he chose for the potatoes, although Mr Heggarty denied that he said words to that effect. It is not necessary for me to decide whose version should be accepted. Mr Brkusich told Mr Heggarty that he would not be signing the planting declaration until the Corporation guaranteed a higher price for his crop than the year before.

On 17 May 2007, the Corporation issued a circular to growers in pool two and pool three. That circular indicated that the Corporation was seeking to issue an additional 500 ton to 1,000 ton DME during pool two and pool three, for the 2007 season only. The circular sought expressions of interest from growers who anticipated excess DME in pools two and three from crops that were already planted, or from growers who were able to plant additional crops by no later than 30 May. According to Mr Brkusich, plantings after 17 May 2007 were not possible for delivery within the time required for pools two and three. He therefore saw that the Corporation was facing a shortage, which because of his excess plantings, he would be able to fulfil.
On 11 July 2007, Mr Heggarty sent a facsimile to Mr Brkusich confirming a telephone conversation on 10 July 2007, suggesting a meeting on 17 July 2007 to complete the necessary paperwork prior to planting and delivery of Mr Brkusich's potatoes. Mr Heggarty noted Mr Brkusich's offer to sell excess DME potatoes at $1,000 per tonne but advised that the Corporation did not require those potatoes and it would be necessary for them to be sold as processing or export potatoes.
It would appear that the meeting of 17 July 2007 did not take place, but on 30 July, 31 July, 2 August, 7 August and 8 August 2007, Mr Heggarty attempted to contact Mr Brkusich by telephone to arrange an appointment to attend his property to measure his crop and get him to complete the necessary documents under the MP Act. Mr Heggarty's telephone calls were not returned.
On 9 August 2007, Mr Heggarty again wrote to Mr Brkusich by facsimile. He advised that he intended to go to Mr Brkusich's property on 22 August 2007 to measure the potato crop and complete the required paperwork. Mr Heggarty pointed out the obligation under the MP Act for completion of the necessary paperwork prior to planting or delivery of potatoes.
On 31 August 2007, Mr Heggarty again wrote to Mr Brkusich concerning information which had apparently been reported to the Corporation that Mr Brkusich was informing merchants that the Corporation would not purchase excess DME potatoes. Mr Heggarty advised that the Corporation would purchase excess DME potatoes at the current pool price, and that the Corporation was willing to purchase Mr Brkusich's excess subject to completion of the appropriate documentation.
On 22 August 2007, Mr Heggarty attended Mr Brkusich's property, and sought to have him complete the necessary documents to enable him to deliver his potatoes. Mr Brkusich thought that meeting was in July. Whenever, it was (and I think, having regard to the facsimile of 9 August 2007, it was more likely to have been 22 August 2007), Mr Brkusich declined to sign the necessary papers because Mr Heggarty declined to negotiate on price.
On 2 September 2007, the Corporation received a facsimile from Mr Brkusich attaching the first page of a Form 12 - Application by Grower for Permit to Purchase, Sell or Use Potatoes. The application sought a permit to sell potatoes interstate.
On 3 September 2007, Mr Heggarty wrote to Mr Brkusich. He again called upon Mr Brkusich to complete the necessary documents, including a Form 7, a completed Form 12, and, upon delivery of potatoes to the eastern states, copies of potato consignment advices. The letter continued:
The Corporation is disappointed in your decision to export potatoes to the eastern states rather than fulfil your allocated domestic market entitlement, as these potatoes are required by West Australian consumers and this will put pressure on the local WA market during the September to November period.
...
I would reiterate, that as per the current domestic market entitlement policy dated 7 December 2006, your decision not to supply the WA market this season means you will not be allocated DME next season.
If you wish to reconsider your decision to export potatoes to the eastern states, please contact the Corporation ASAP as the Corporation is still willing to purchase your allocated DME and any excess DME at full prices.
Around 3 September 2007, Mr Brkusich also had a meeting with Mr John Dawson, the CEO of the Corporation, and Mr Jim Thurly, a spokesman for the Potato Growing Association. Mr Brkusich said that he told Mr Dawson at that meeting the he would 'be going on strike and not delivering' until a price was negotiated. Mr Brkusich confirmed in his evidence before the Tribunal that he considered himself to be 'on strike' up until he decided to deliver his potatoes on 2 October 2007.
On 18 September 2007, the Corporation received a Form 7 from Mr Brkusich. The application specified that the activity in respect of which the licence was sought was to grow potatoes for sale to a manufacturer of a potato product, and in particular a company named Supa Chips Pty Ltd.
The following day, the Corporation received a Form 12 - Application by Grower for Permit to Purchase, Sell or Use Potatoes from Mr Brkusich. The permit sought related to sales to Supa Chips Pty Ltd. The variety specified was Royal Blue.
Having received those documents, the Corporation issued a potato growing area licence and a permit in the terms sought in the applications. Each of the area licence and the permit contained a condition which read 'processing use only. Not to be used to supply domestic market'.
On 20 September 2007, the Corporation received a further Form 7 application and a Form 12 application from Mr Brkusich. The area licence application identified the activity of sale of potatoes for export, and the Form 12 application sought a permit to sell potatoes to the Melbourne Markets and the Sydney Markets. The varieties identified were Royal Blue (20 tonnes) and Mondial (80 tonnes).
On 21 September 2007, the Corporation approved the two applications received on 20 September 2007, and issued an area licence and a permit for sale, again on condition that the licences were for export use only and not to be used for the domestic market.
No other area licences or permits were applied for by Mr Brkusich or issued to him in relation to the 2007 growing periods prior to 2 October 2007.

The events of 2 October 2007

Mr Brkusich told the Tribunal that on 2 October 2007, he 'broke his strike' and travelled to the Corporation's premises with 42 tonnes of Mondial variety potatoes. According to Mr Heggarty, there was an adequate supply of potatoes on the domestic market as of that date.
Mr Heggarty said that, at approximately 9.30 am on 2 October 2007, a Mr Breglia, an employee of Beta Spuds asked Mr Heggarty if Beta Spuds could purchase potatoes form Eaglehawk Farms (being Mr Brkusich's trading name) for export. Mr Heggarty said he informed Mr Breglia that Beta Spuds could purchase potatoes from Eaglehawk Farm for export provide the required Form 7 and Form 12 were completed and submitted to the Corporation.
Later that day, Mr Brkusich arrived at the Corporation's premises with his truck and trailer carrying 42 tonnes of potatoes. Mr Heggarty said that he presumed that those were the potatoes which Beta Spuds were to purchase for export. He invited Mr Brkusich to complete the necessary paperwork to deliver the potatoes to Beta Spuds. Beta Spuds is an exporter which exports potatoes both interstate and overseas.
Mr Brkusich went in to the Corporation's offices and Mr Heggarty sought to assist him to complete the necessary papers. In that process, Mr Brkusich apparently commented that the potatoes in his truck were not for export, but he intended to sell them to the Corporation as DME potatoes. Mr Heggarty said to Mr Brkusich that as he had not completed the necessary form and had the applications approved, the potatoes could not be used in the domestic market and the Corporation would not accept them. Mr Heggarty checked with Mr Dawson, the CEO of the Corporation, and confirmed that position.
It was apparent that Mr Brkusich then moved his trailers to obstruct the entry to the Corporation's premises, and when asked to move, moved to a position which blocked in the Corporation's staff members' cars. Mr Brkusich said that he had exceeded his driving hours for that day, and accordingly chose to sleep in his truck overnight at the Corporation's premises.
It is apparent that the following morning, Mr Brkusich acted somewhat disruptively. According to another employee of the Corporation, Mr Graham, he arrived at work on 3 October 2007 to find Mr Brkusich standing in the back of his truck 'picking up potatoes and throwing them all about'. He said that when Mr Brkusich noticed him, Mr Brkusich started throwing potatoes at him.
According to Mr Brkusich, he 'proceeded to dump 1 x 500 kg bin [of] potatoes by hand onto the steps of the [Corporation] to show what 84 x 500 kg bins would look like if fed to the cows'.
Mr Heggarty's evidence supports Mr Graham's account of those events, and I accept that account. The police were called.
Eventually, Mr Brkusich was persuaded to complete the necessary forms to sell his potatoes to Beta Spuds, having been told that the Corporation would not accept them for the domestic market.
It is the refusal of the Corporation to accept Mr Brkusich's potatoes on 2 October 2007 which Mr Brkusich claims to have been contrary to the Corporation's statutory obligations.

Did the Corporation have a duty to accept the potatoes?

The essential proposition on which the applicant bases his case is that s 28(2)(a) of the MP Act requires that the Corporation allocate a DME to each business registered under s 22B of the MP Act. Mr Brkusich's business, Eaglehawk Farm, is a business registered under s 22B. The application contends that the Corporation did not allocate a DME to him contrary to the obligation under s 28(2)(a), but was obliged to do so when he presented his potatoes for delivery on 2 October 2007. He contends that the requirement by the Corporation for an application for an area licence (Form 7) to be completed before a DME is allocated is contrary to any obligation which the MP Act or reg 37 of the MP Regulations authorise the Corporation to impose.
It is not correct to say that the Corporation failed in its duty to allocate a DME to Eaglehawk Farm. Early in 2007, the Corporation sent Mr Brkusich a Form 7. That document stipulated the area to be planted and the total quantity to be produced or, in other words, the quantity of ware potatoes that the Corporation was required to accept if delivered in accordance with s 23(1): see s 28(1) of the MP Act. In doing so, the Corporation was meeting its obligation pursuant to s 28(2)(a) of the MP Act.
Mr Brkusich did not complete the application for the growing area licence. That was not by oversight, but was intentional. In his discussions and meetings with Mr Heggarty, Mr Brkusich made it clear that he did not intend to participate in the domestic market unless the Corporation paid him an amount in excess of the pool price. At no time did the Corporation give any indication that it was prepared to pay more than the pool price, being the price paid to all growers delivering in a particular pool period. Mr Brkusich acted consistently with his intention not to participate in the domestic market, thus not to take up his DME, until his change of mind first communicated to the Corporation when he attended its offices on 2 October 2007. By that time, the Corporation had no requirement for additional ware potatoes.
The obligation of the Corporation to accept delivery of potatoes arises under s 23 of the MP Act. Section 23(3) stipulates that the Corporation is not required to accept delivery except where certain preconditions are met. One of those is that the potatoes have been produced in accordance with the terms, conditions and restrictions applying to the area licence in respect to the land where the potatoes were produced. Mr Brkusich had no area licence in 2007 which permitted the growing of potatoes for sale to consumers in the State. The only area licences he held at that time related to the growing of potatoes for sale to processes or for export. The Corporation, through Mr Heggarty, had, for some months previously, been endeavouring to persuade Mr Brkusich to apply for an area licence for growing potatoes for the domestic market. Mr Brkusich had declined. Having done so, and having made his intentions abundantly clear that he did not wish to participate in the domestic market at the prices being offered, he forewent his entitlement to deliver potatoes for the domestic market. That was a choice he made.
Mr Brkusich cannot rely on the DME in relation to the licences in respect of which transfers were lodged earlier in 2007. There are two reasons for that - the first is that the transfers had not been approved by the Corporation under s 22C(3) of the MP Act. No doubt the reason for that was Mr Brkusich's stated intention not to participate in the domestic market in 2007, and the Corporation's practice of not approving transfer's until the transferee's own papers had been submitted.
The second reason is that the relevant area licences allowed the growing of different varieties of potato from those which Mr Brkusich attempted to deliver. Mr Brkusich also argued that the Corporation could not rely on the condition on the permits executed in September 2007 to the effect that potatoes grown pursuant to those permits could not be sold on the domestic market. That is because, he contended, that that condition was beyond the power of the Corporation to impose conditions and restrictions under s 22C(5) of the MP Act.
The first problem with that argument is that the Corporation granted Mr Brkusich a permit precisely for what he asked. Having been given what he asked for, it is not open to Mr Brkusich to assume that his permit gave him any greater rights than he sought. But in any event, I do not accept that the condition was beyond power, unreasonable or based on irrelevant considerations. The functions of the Corporation under s 17A of the MP Act include the negotiation of ware potatoes and the marketing of potatoes in the State and elsewhere. The conditions limiting sales to places outside the State falls with those functions. There is no basis to suggest that the Corporation acted outside the scope of its functions under the Act.
While s 23(4) gives the Corporation a discretion to accept delivery of potatoes outside a DME entitlement, it makes clear that the Corporation is not under any duty to do so. The Corporation was entitled to decline a delivery of Mr Brkusich's potatoes on 2 October 2007.

Disposition of the application

The utility of these proceedings has always been questionable. The potatoes the subject of the decision on 2 October 2007, were either sold to Beta Spuds or otherwise disposed of. By the time the proceedings were commenced, nothing could be gained by setting aside the decision of the Corporation to refuse delivery. The subject matter of the decision no longer being in existence, the Tribunal could obviously not order that the Corporation accept delivery.
Faced with that situation, the applicant sought to 'remit the matter to the Corporation with directions as to the obligations of the Corporation under the Act and as to a lack of any entitlement to require an application by a registered business for allocation of a DME and certain other matters.
Having concluded that the Corporation was acting in accordance with its powers and obligations under the MP Act, the subject matter of the dispute having ceased to exist, there was no basis upon which anything might be remitted to the Corporation. I have grave reservations that directions would have been appropriate even if the contentions underlying them were correct, but it is not necessary for me to consider that matter further.
The application should be dismissed.

Orders

The application is dismissed.

I certify that this and the preceding [71] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUSTICE J A CHANEY, PRESIDENT