Cordina Chicken Farms Pty Ltd v Poultry Meat Industry Committee

[2004] NSWSC 197

CITATION:	Cordina Chicken Farms Pty Ltd v Poultry Meat Industry Committee [2004] NSWSC 197
HEARING DATE(S):	24 February, 5 March 2004
JUDGMENT DATE:	24 March 2004
JURISDICTION:	Common Law Division Administrative Law List
JUDGMENT OF:	Young CJ in Eq
DECISION:	Proceedings are dismissed with costs.
CATCHWORDS:	ADMINISTRATIVE LAW [38]- Review of determination to fix price of batch chickens- Approach of court- How purpose of Committee discovered- Whether Committee acted within mandate- On facts no order made. PROCEDURE [750]- Declaration- Administrative decision allegedly invalid- All affected persons need to be parties. WORDS & PHRASES- "Class".
LEGISLATION CITED:	Interpretation Act 1987, s 34 Poultry Meat Industry Act 1986, s 10
CASES CITED:	Arthur Yates & Co Pty Ltd v The Vegetable Seeds Committee (1945) 72 CLR 37 Bates v Hailsham (Lord) [1972] 1 WLR 1373 Bread Manufacturers of NSW v Evans (1981) 180 CLR 404 Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 Dunlop v Woollahra MC [1975] 2 NSWLR 446 FAI Insurances Ltd v Winneke (1982) 151 CLR 342 Harrington v Lowe (1996) 190 CLR 311 Howie v Hollobone (1973) 32 LGRA 371 John J Starr (Real Estate) Pty Ltd v Robert R Andrew (A'asia) Pty Ltd (1991) 6 ACSR 63 King Gee Clothing Co Pty Ltd v The Commonwealth (1945) 71 CLR 184 Kioa v West (1985) 159 CLR 550 Local Government Board v Arlidge [1915] AC 120 London Passenger Transport Board v Moscrop [1942] AC 332 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Opua Ferries Ltd v Fullers Bay of Islands Ltd [2003] 3 NZLR 740 Parramatta City Council v Hale (1982) 47 LGRA 319 Pearks v Moseley (1880) 5 App Cas 714 R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 Re Gosling (1943) 43 SR (NSW) 312 Re Hawthorn CC; Ex parte The Co-operative Brick Company Ltd [1909] VLR 27 Ridge v Baldwin [1964] AC 40 Sovereign Life Assurance Co v Dodd [1892] 2 QB 573 Telstra Corp Ltd v Hurstville CC (2000) 105 FCR 322 The Dingian; Ex parte Wagner (1995) 183 CLR 323 Tickner v Chapman (1995) 57 FCR 451 Zhang v Canterbury CC (2001) 51 NSWLR 589
PARTIES :	Cordina Chicken Farms Pty Limited (P) Poultry Meat Industry Committee (D1) Minister for Agriculture and Fisheries (D2)
FILE NUMBER(S):	SC 30040/03
COUNSEL:	J Griffiths SC and M Allars (P) R Beech-Jones (D)
SOLICITORS:	Truman Hoyle (P) I V Knight (Crown Solicitor) (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

YOUNG CJ in EQ

Wednesday 24 March 2004

30040/03 – CORDINA CHICKEN FARMS PTY LTD v POULTRY MEAT INDUSTRY COMMITTEE & ANOR

JUDGMENT

1 HIS HONOUR: This is an application by a processor of chicken products for certiorari to quash Base Rate Determination No 31 dated 20 February 2003 and notified in the Government Gazette on 28 February 2003, purportedly pursuant to the Poultry Meat Industry Act 1986 insofar as it affects the plaintiff.

2 Alternatively, the plaintiff seeks various declarations of invalidity with respect to that determination so far as it affects the plaintiff.

3 I heard the matter on 24 February and 5 March 2004. Mr J Griffiths SC and Ms M Allars appeared for the plaintiff. Mr R Beech-Jones appeared for the defendants. Each side provided very helpful written and oral submissions. I reserved my decision.

4 Section 10 of the Poultry Meat Industry Act 1986 as substituted by Act 65 of 2002 is as follows. The word "committee" in the section I am about to quote is defined in s 3(1) of the Act as the first defendant, a statutory corporation which is created by s 4 of the Act.

5 Section 10, as currently in force, is as follows:

" 10 Committee to determine base rates
(1) Subject to subsection (2), the Committee may from time to time determine base rates for batch poultry.
(2) The Committee must determine base rates for batch poultry at least once every 6 months.
(3) Different base rates may be determined for different classes of batch poultry.
(4) In determining base rates, the Committee is to have regard to the following:
(a) any suggested base rate agreed to by processors and growers,
(b) growing costs,
(c) the species of poultry involved,
(d) the duration of any relevant rearing period,
(e) the annual throughput of poultry,
(f) poultry housing density,
(g) the needs of the industry,
(h) market forces affecting the industry,
(i) the public interest,
(j) the reasonable minimum returns to growers while encouraging industry efficiency,
(k) such other matters as the Committee thinks relevant.
(5) A determination made under this section must be submitted by the Committee to the Minister for approval.
(6) A determination has no effect unless approved by the Minister.
(7) A determination, if approved by the Minister:
(a) must be published in the Gazette and in such other manner as the Minister considers appropriate, and
(b) takes effect:
(i) on the date on which the determination is published in the Gazette (the publication date ), or
(ii) subject to subsection (8), on any other date or dates (whether before or after the publication date) as may be specified in the determination.
(8) No determination may be made to take effect on a date or dates that is earlier than:
(a) if the determination is made between 1 January and 30 June (inclusive) in a year-1 January of that year, or
(b) if the determination is made between 1 July and 31 December (inclusive) of a year-1 July of that year.
(9) The Committee must keep in the office of its secretary a Register of all determinations approved by the Minister.
(10) The Committee must make the Register available for inspection by processors and growers during business hours."

6 Prior to Act No 65 of 2002 which came into force on 11 October 2002, s 10 of the principal Act was as follows:

" Committee may determine growing prices
10. (1) The Committee may, by order made with the approval of the Minister and published in the Gazette, determine the prices to be paid by processors to growers for designated poultry.
(2) In determining the prices to be paid for designated poultry by processors to growers, the Committee shall endeavour to ensure a reasonable minimum return to growers while encouraging industry efficiency and shall have regard to:
(a) growing costs;
(b) the species of poultry involved;
(c) the duration of any relevant rearing period;
(d) the annual throughput of poultry;
(e) poultry housing density;
(f) the needs of the industry;
(g) market forces affecting the industry;
(h) the public interest; and
(i) such other matters as the Committee thinks relevant.
(3) A price may be determined by an order so as:
(a) to apply generally or be limited in its application by reference to specified exceptions or factors;
(b) to apply differently according to different factors of a specified kind; or
(c) to provide for a maximum or minimum price,
or so as to do any combination of those things.
(4) Except where a later order determines the price of the poultry, an order shall have effect in respect of designated poultry delivered to a processor on or after the day specified in the order as the price adjustment day from which the order operates.
(5) The price adjustment day from which an order operates may be the price adjustment day immediately preceding the day on which the order is published in the Gazette or may be a later price adjustment day.
(6) In this section, a reference to a price adjustment day is:
(a) unless the regulations prescribe a day or days as referred to in paragraph (b), a reference to 1 January and 1 July in each year; or
(b) a reference to such day or days in each year as may be prescribed by the regulations."

7 The determination in question is in nine paragraphs (a) to (i) each applicable only to one company. It is, as far as relevant:

"The following base rates apply from 1 July 2002 for batch poultry, namely chickens of the species Gallus gallus, not more than 18 weeks old when processed:
…
(d) Cordina Chicken Farms Pty Ltd:
53.77 cents per bird,
…
G D SLENNETT,

Chairman

Poultry Meat Industry Committee
20 February 2003"

8 It seems to me appropriate to deal with the problems rising in this matter under the following heads:

A. Background;

B. The nature of the determination made by the Committee;

C. Matters of evidence;

D. General matters of construction of the section;

E. The meaning of "class";

F. The role of the Minister;

G. Whether the Committee made jurisdictional error or errors;

H. Timing problems;

I. Supposed doctrine of administrative economy;

J. Remedies;

K. The result of the case.

I will deal with each of these matters in turn.

9 A. The procedure under the Act before the 2002 amendments was for the Committee to work out the costs involved in the model farm and then set a model fee being the fee which should be paid to the grower of the birds, assuming that the grower was growing the chickens on a model farm. Adjustments were then made to the model fee depending on a number of considerations that would affect the costs of the grower and processor in the various classes determined by the Committee. The classes determined by the Committee were so determined that each processor fell into a separate class, save that two processors were divided into two classes, depending on whether the birds are produced in tunnel shedding or otherwise.

10 It would seem that the principal reason for the amendment of the Act was that the Committee was fixing prices by formula rather than nominating a price and so would run contrary to King Gee Clothing Co Pty Ltd v The Commonwealth (1945) 71 CLR 184. This is the apparent reason for the validation provision in clause 9 in Schedule 3 to the Act. However, as counsel have pointed out in address, the amendments went further and there were major amendments of principle, not the least of which was to remove from the covering clause of s 10 the vital words "the Committee shall endeavour to ensure a reasonable minimum return to growers while encouraging industry efficiency".

11 The amending Act was passed in July 2002 and came into operation on 11 October 2002.

12 At the meeting of the Committee on 13 August 2002, the Chairman, Mr Slennett, said that the 1994 model should be used to calculate the prices for the period 1 July to 31 December 2002 rather than re-enter negotiations on the model review at this stage with the view that the Committee would move quickly ahead on a review of the procedures it uses for price determinations. The minutes disclose that it was moved:

"That the current fee be calculated using the existing Model as well as considering items (a) to (k) as listed in s 10 of the current legislation, with the understanding that this Model Price will be subject to negotiations between processors and growers on the basis of the current procedures for price negotiations."

The minutes then record:

"After considerable discussion for and against the motion, the motion was put on the basis that the mover and seconder agree 'that the price negotiation should only begin after the commencement of the Act'. The motion was carried 9–5 using a secret ballot."

13 The plaintiff complains that the 1994 model could not be an accurate representation of costs in 2002, in part because it reflected outdated technology and average costs against the industry and did not take into account increases in farm sizes. Accordingly, use of the model in 2002 would produce price distortions.

14 Despite the plaintiff's protests, prices were fixed according to the old formula as resolved at the August meeting of the Committee. The plaintiff says that that determination, so far as it is concerned, should be set aside.

15 B. It has been recognised for a long time that administrative decisions are infinitely various and that when this Court in its supervisory jurisdiction is considering relief should be given, it must take into account the circumstances of each particular situation.

16 Prior to about 20 years ago, the cases seemed to segregate situations where the administrative body exercised quasi-legislative power from situations where an administrative adjudication was undertaken. In the former case there was often no need to consult persons affected, in the latter case there were clear obligations to afford natural justice. Examples of the first case are found in Re Gosling (1943) 43 SR (NSW) 312 and in Bates v Hailsham (Lord) [1972] 1 WLR 1373.

17 In Bread Manufacturers of NSW v Evans (1981) 180 CLR 404, a case involving a review of fixing the price of bread, Gibbs CJ made it clear that modern administrative law does not depend on whether the power in question should be classified as executive or legislative. He said at 416 that such a distinction introduced merely a distracting complication into the process of decision.

18 In Kioa v West (1985) 159 CLR 550, 620-621, Brennan J said that the real distinction was whether the administrative decision affects the plaintiff in his or her or its individual rights or interests was the primary consideration and not whether the power being considered was executive, administrative, quasi judicial or quasi legislative. The power, if it singles out individuals by affecting their interests in a manner substantially different from the manner in which the interests of the public at large are affected, must be examined to see whether the legislature requires natural justice, and if so, the content of natural justice.

19 It is not usual in the 21st century to find instances of price fixing or regulation legislation. It last came to prominence during the 2nd World War and as has been pointed out in the authorities, the High Court never actually determined the nature of the power, though it indicated that it was administrative rather than quasi legislative; see eg Dixon J in the King Gee case at 195.

20 The instant price fixing legislation may, in any event, be in a class of its own. In its present form, it has all the indicia of an arbitration between growers and producers of chickens with the so-called independent representatives (who seem to represent the consumers and the Department of Agriculture) acting as mediators and making the decision if the growers and processors cannot agree. Accordingly, even if one classes what is happening as quasi legislative it still has a strong flavour of adjudication about it.

21 The question of whether natural justice needs to be considered is usually dealt with by presuming that the legislature has intended such a process to occur unless it is clearly excluded. In the instant situation the reverse would appear to apply and that is that the Act seems to be structured in such a way that growers and processors will have full opportunity to have their say and to have their views considered before the fixed price is fixed.

22 C. The main evidence was given on behalf of the plaintiff by Mr J J Cordina, the principal of the plaintiff, who swore affidavits and was cross examined. There was also an affidavit by one of his solicitors and a large number of documents tendered for the plaintiff. The first defendant read an affidavit of the Chairman of the Committee, Mr Slennett, who was also extensively cross examined.

23 There was little dispute as to the fact, and I have, with one exception, covered the vital matters of evidence in setting out the background above.

24 The only evidentiary question which divided the parties was to what extent one could use the minutes of the various meetings of the Committee. In particular, the question was raised as to whether it is legitimate to treat the minutes of meetings of the Committee as a statement of the reasons of the Committee or in themselves disclosing the corporate mind of the Committee. There is a further question as to whether Mr Slennett's reasons given in evidence can be said to constitute the reasons or mind of the Committee.

25 The argument does not raise any question of admissibility of evidence, but rather from what evidence the Court should discern the purpose of the Committee.

26 I should note here that there is no allegation in the instant case of any mala fides on behalf of the Committee. What is necessary is to examine whether the determination made was within the scope of its authority.

27 It is always a very difficult matter to discern the purpose of a corporation as the authorities have said over and over again; see Latham CJ in Arthur Yates & Co Pty Ltd v The Vegetable Seeds Committee (1945) 72 CLR 37, 69.

28 I detailed the history of minutes in John J Starr (Real Estate) Pty Ltd v Robert R Andrew (A'asia) Pty Ltd (1991) 6 ACSR 63, 89 and I will not repeat what I said there. Apart from provisions such as s 251A of the Corporations Act, the minutes are not the best evidence of what happened at the meeting. The best evidence is what a person who was present at the meeting swears was actually said or done.

29 However, when the Court needs to consider what happened at a meeting or what was the purpose of a corporation as manifested by what happened at the meeting, then it acts on any admissible evidence as to that matter. In the instant case, the evidence of the minutes, the oral evidence of Mr Slennett and the oral evidence of Mr Cordina is the material from which the purpose must be garnered.

30 The cases are not at idem as to how one does garner the purpose. In Re Hawthorn CC; Ex parte The Co-operative Brick Company Ltd [1909] VLR 27, 51-2, Cussen J thought that it may well be that one has to find purpose merely from the language of the relevant by-law or by applying doctrines similar to those laid down by an equity court with reference to private powers.

31 It is clear that the question as to what is the purpose of the Committee is a question of fact to be decided on the evidentiary material properly before the Court. There have been some cases where the Court has properly decided the matter as to the purpose of the relevant body by looking at the minds of the individual members of the board who acted; see the cases referred to in the Arthur Yates case at 69.

32 Counsel pointed out to me clause 5 of Schedule 2 of the Act which requires the Committee to cause full and accurate minutes to be kept of their proceedings, but it does not seem to me in the absence of the clause specifying the evidentiary value of such minutes, that that takes the matter any further.

33 In Parramatta City Council v Hale (1982) 47 LGRA 319, 345, Moffitt P said:

"Where it is a collegiate body which makes the … determination … s 90 requires that the collegiate mind in granting its approval shall have considered the s 90 matters. Proof of a state of mind whether of a person or a collegiate body may be a matter of difficulty, but the person, who seeks under s 123 to bring down a decision, must discharge that onus however difficult that may be and he must do so in accordance with proper legal requirements and by inference not suspicion … As in any case … the state of mind of an individual (or of a body) can be proved by inference from what the person (or body) does or says or omits to do or say. The question whether a particular inference should be drawn as to a person's or body's state of mind should be resolved by a consideration of the whole of the relevant evidence."

34 The first defendant submitted that although the Committee has a separate legal existence from its members, it is to the mental processes of those members that attention must be directed. I was referred to Dunlop v Woollahra MC [1975] 2 NSWLR 446, 484-5 and Telstra Corp Ltd v Hurstville CC (2000) 105 FCR 322, 381-2. I am not sure, with respect, that that statement gives the complete picture and if it does, it is to the majority of the members that one looks; see Hale's case supra.

35 The first defendant also says that there was not any evidence from Mr Cordina as to reasoning process he adopted or his observations of the deliberations of others.

36 I have set out the principles which govern the way in which courts deal with this sort of matter. In all cases the Court must find the intention of the body as a question of fact and it does that on the best evidence available to it.

37 D. I will deal with particular problems of the meaning of the word "class" and the role of the Minister in sections E and F. This section will deal with the construction of s 10 generally.

38 The starting point is to compare the old section with the new. The old subsection (2) set out as an overriding matter, an endeavour to ensure a reasonable minimum return to growers while encouraging industry efficiency. It then specified that the Committee was to have regard to matters (a) to (i).

39 In the new section, the over-arching basis for the decision has been removed and it now appears as para (j) of the matters that the Committee is to have regard to. The list of such matters has been expanded to include as (a) "any suggested base rate agreed to by processors and growers".

40 The role of the Minister has been spelt out in more detail to ensure that as new subsection (6) says "A determination has no effect unless approved by the Minister". Otherwise the Act now requires the Committee to determine base rates for poultry and gives it power to make different base rates for different classes of poultry instead of determining the prices to be paid for poultry by processors to growers.

41 I was referred to the Minister's Second Reading Speech when introducing the Act and I was also asked to view the Act in the light of what all parties knew was the way in which the Committee had customarily fixed prices for chickens. The former is, of course, allowable subject to the terms of s 34 of the Interpretation Act 1987, but I have considerable doubt as to whether I can consider the latter. A public instrument is to be construed in accordance with its language, not in accordance with its factual matrix: Opua Ferries Ltd v Fullers Bay of Islands Ltd [2003] 3 NZLR 740.

42 It is clear that when statute directs a committee to "have regard to" certain matters, the statute requires the Committee to take those matters into account and to give weight to them as a fundamental element in making its determination: R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322, 329. That formulation has been followed in many cases since including Zhang v Canterbury CC (2001) 51 NSWLR 589, 602, where Spigelman CJ, with whom Meagher and Beazley JJA agreed, said that the phrase prescribes the focal points for the determination.

43 It is not enough that the minutes of the relevant meetings state that the Committee has taken into consideration if on the whole of the evidence it appears that there be an actual intellectual process directed at that particular factor: Tickner v Chapman (1995) 57 FCR 451, 462. However, it is a matter for the Committee, not the Court, to determine the appropriate weight to be given to each of the matters required to be taken into account in exercising the statutory power: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 41.

44 The plaintiff says that the task before the Committee under the new Act was very different to that under the old Act. Under the old Act, the over-arching requirement was to ensure a reasonable minimum return to growers while encouraging industry efficiency. Under the new Act, that is merely one of the factors to which the Committee shall have regard. Under the old Act it had to determine the price or provide a maximum or minimum price which might apply differently according to different factors of a specified kind; under the new Act it is to determine base rates but may determine different base rates for different classes of poultry. Under the old Act minimum and maximum prices were to be determined, under the new Act there is a base rate to be determined for each class. That means that with respect to each class, the Committee must consider the growing costs and species of poultry involved with each class. There are some of the matters which need to be considered which involve industry considerations such as (g), (h) and (i), but otherwise the Committee directs its considerations to the class.

45 It is because of this that the plaintiff says that the Committee could not have merely built on the material it had gathered in producing the concept of a model farm and a model fee for the industry as a whole.

46 E. As I have said, the Committee determined that each processor was in a separate class, save that two of the producers' birds generated by tunnel shedding and birds generated by conventional shedding were put into two separate classes with respect to those two processes. The plaintiff's complaint here is that it was not also given the benefit of a lower cost group of birds which it was contracted to buy.

47 If I were able to look at the previous practice as to class which I do not consider I can in view of the Opua case, it could be seen that before the new Act the Committee had split up the production of chickens into groups coinciding with the processor that processed the chickens with the two exceptions I have mentioned.

48 One must take the word "class" in its normal everyday meaning unless there is something in the statute to show that some other meaning was meant by the legislature. The word "class" according to the Oxford English Dictionary, has six primary meanings which I will set out in summary. The six meanings are:

(1) each of six divisions of Roman people under the constitution of Servius Tullus;

(2) a division or order of society according to status; the system of such division;

(3) a division of scholars receiving the same instruction or ranked together as of same standing (students who enter college together (US));

(4) a division of competitors according to merit;

(5) a division of things according to grade or quality;

(6) a number of individuals possessing common attributes.

49 The conception that a class involves a group of people or things having an identifiable common factor is also apparent from the cases where judges have had to define the word.

50 Thus, in corporations law, where one is looking to see what is a class of creditors, one looks to see a group of persons whose rights are not so dissimilar as to make it impossible for them to consult together with a view to their common interest: Sovereign Life Assurance Co v Dodd [1892] 2 QB 573, 583.

51 For the purpose of the law of succession, "a gift is said to be to a 'class' of persons, when it is to all those who shall come within a certain category or description defined by a general or collective formula" per Lord Selborne LC, Pearks v Moseley (1880) 5 App Cas 714, 723.

52 The same thinking applies in local government law. So in Howie v Hollobone (1973) 32 LGRA 371, 380, Wells J in the Supreme Court of South Australia said:

"The word class is a term for the objects, different yet agreeing, to each of which a general name may be applied. The limits of a class are fixed by the common attributes of its members; what are called the common attributes are the points of resemblances among the individual members (or objects) of the class."

53 Under s 10(3), the classes are classes of batch poultry. They are not classes of growers or of processors. Accordingly, in order for there to be a class one must find poultry which has together similar attributes and which attributes can differentiate them from some other group of poultry. It may be that poultry which is grown in tunnel shedding may be a different class to poultry grown in conventional shedding. However, despite the fact that neither set of counsel wished to argue the point because it was not in the interests of either to do so, I cannot see how each processor can constitute a class within the meaning of s 10(3) of the Act.

54 This meaning of "class" also leads to subsection (4) making far more sense than if one allowed a class consisting of a processor. First of all, in (4)(a) the word "processors" and "growers" are each plural. Next, the species of poultry and the relevant rearing period make good sense with a particular class of poultry. Likewise industry considerations are relevant.

55 F. Section 10(6) provides that the determination has no effect unless approved by the Minister.

56 It should be noted that the Minister has no power to make the determination by himself or herself. The Minister's power is limited to either approving the provisional determination made by the Committee or not approving it. However, doubtless this also carries the implication that the Minister may take the view that the Committee should reconsider its provisional determination and resubmit to the Minister.

57 The approval of the Minister is not exclusively conferred on the Minister personally, but the Act expects that the ordinary processes of government will take place and departmental officers will provide the Minister with the appropriate material in order that he or she can sign off on the determination: Local Government Board v Arlidge [1915] AC 120, 133; Ridge v Baldwin [1964] AC 40, 72; FAI Insurances Ltd v Winneke (1982) 151 CLR 342, 416-7 and Tickner v Chapman (supra) at 462.

58 Of course, the Minister only has a veto over a valid decision of the Committee. If the Committee's decision is void, then the Minister's approval does not give it any greater efficacy.

59 G. At long last I come to the key submissions of the parties. However, because of what has gone before I need not spend quite so much time as I otherwise would in discussing each.

60 The plaintiff's submissions say that they seek review of the determination on five grounds, viz:

1A. Jurisdictional error: failure to determine classes of poultry;

1B. Jurisdictional error: application of s 10 of the unamended Act, instead of s 10 of the amended Act.

2. Procedural ultra vires and failure to have regard to relevant considerations.

3. Relevant considerations not considered.

4. Inflexible application of policy.

I will deal with each of these in turn.

61 1A. The plaintiff says that the old Act made no express reference to classes though it provided for variations so as to accommodate exceptions and factors of a specified kind. By contrast, the amended Act expressly empowers the Committee to determine different base rates for different classes of batch poultry.

62 Assuming there are different classes of batch poultry, then it is necessary to determine what those classes are before the Committee can fix the base rates for the different classes. If there are not different classes of batch poultry then only one rate can be determined for the lot.

63 Thus, the plaintiff submits it is only when the class of the poultry has been determined is it possible to proceed to the tasks set out in s 10(4) of determining the base rate for each class.

64 The first defendant says that at its meeting on 6 November 2002, the Committee determined classes by reference to the various categories that had been applied under the old Act. The first defendant then submits in italics in para 29 of their submissions, "The plaintiff does not assert that those categories were, as a matter of construction, incapable of constituting a class for the purposes of the amended Act". My problem with that is that as I have said earlier, although neither set of counsel wish to challenge the proposition, it seems to me to be clearly wrong.

65 However, if, as all counsel did, I put aside that thought, on the evidence there was a determination of classes on 6 November and Ground 1A must fail.

66 1B. The plaintiff says that the Committee constructively failed to exercise its jurisdiction in that it applied s 10 of the old Act instead of s 10 of the amended Act. In particular, the plaintiff complains that the Committee had used the 1994 model of a growing fee per bird based on a model farm concept. The plaintiff says this may have complied with the requirement under the old Act to endeavour to ensure a reasonable minimum return to growers while encouraging industry efficiency, but when there have to be classes of poultry and a base rate for each, it is of no assistance.

67 On the other hand, the first defendant says that, whilst it might be correct that the model cannot be equated to growers' costs within s 10(4)(b), and it might be based on industry figures as a whole, this did not disqualify it from being a relevant piece of information when addressing the factors that had to be considered under s 10(4). Indeed, it must have qualified as a relevant factor under subsection (4)(j).

68 In my view, the approach of the first defendant is the correct one. It may well have been that the general approach of the Committee was to deal with the exercise in much the same way as it had previously dealt with price determination under the old Act. However, this fact alone does not disqualify the procedure that it went through. It was obliged to take into account and focus on the factors referred to in subsection (4) and although these are differently stated to the way they were put under the old Act, there is considerable overlap.

69 The matters stated in the plaintiff's submission 6.12 that there are considerable difficulties in "adjusting" the data collected under the old scheme and applying it under the new scheme have some validity, but it seems to me that it is going too far to say that there was a jurisdictional error in considering this material if the Committee paid attention to the factors under s 10(4) of the new Act.

70 Ground 2. The plaintiff says that in making the determination the Committee failed to observe the statutory procedure required to be observed in making the decision. In other words, it did not focus on the matters in (a) to (k) of s 10(4). The plaintiff says that the evidence clearly shows that the Committee focused on factors (a) to (k), at least before the luncheon adjournment as they related to the industry as a whole and not to particular groups.

71 The submission notes that there is to be some significance given to the fact that the new paragraph (a) is inserted at the head of the list, that is, any suggested base rate agreed to by processors and growers. It is clear that that matter could not have been taken into account where there was no agreement reached between processors and growers.

72 I cannot, with respect, see the logic in this submission. If there is no agreement between processors and growers, then there is nothing to which factor (a) can apply, so that not taking it into consideration can be no error.

73 So far as (b) to (k) are concerned, the complaint is that they were considered on an industry wide basis, and scant, if any, attention was given to classes of poultry. The minutes record nothing more than that the paragraphs were considered and there were no findings relevant to each paragraph put in the minutes. Thus, the case is made out that there is no proper focus consideration on these matters.

74 The first defendant points to the evidence of Mr Slennett which was not challenged, nor contradicted, that although he cannot recall the specific words spoken, he did recall other members of the Committee in debate on the various motions making reference to factors (b) to (k) and he personally considered all of these factors.

75 There were, naturally enough, separate motions to determine a rate for each class.

76 I agree with the first defendant's submissions that there is just not the evidence to show that the factors were not considered.

77 Ground 3 is the converse of ground 2 and the same considerations apply.

78 Ground 4. The plaintiff says that whilst it admits that there is nothing inherently wrong with a statutory authority pursuing a policy consistent with the empowering act, it must not apply that policy inflexibly shutting its ears to an applicant who wishes to make representations about the particular circumstances of its case. These statements are clearly correct; see eg Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577. The first defendant's counsel does not cavil with them.

79 However, the first defendant's counsel says that this submission again fails for want of evidence. It is not forensically possible to hold on the evidence that the Committee refused to consider whether the plaintiff's operation fell into a different class. The Committee certainly did on 6 November 2002 determine that it would adopt the classes corresponding with pre-existing categories, but the only evidence as to why this was was that from Mr Slennett who said he considered it was unfair to change the basis seeing that chickens had already been supplied between July and November in the expectation of growers that they would be remunerated at the existing rates or according to the existing formulas.

80 Again, at the meeting of 18 December the plaintiff's proposal was put to the meeting, voted on and rejected.

81 I accordingly agree with the first defendant's submissions.

82 To sum up, the plaintiff's submissions are replete with accurate statements as to what is the applicable law as to the duty of a committee such as the present. However, bearing in mind what I have said about evidence in section C, particularly the words of Moffitt P in the Hale case, the plaintiff has not demonstrated that there is in fact an error which should be reviewed by this Court.

83 H. I can now turn to various ancillary matters, one of which is timing. It will be remembered that a determination cannot have effected unless approved by the Minister and takes effect on the date on which it is published in the Gazette. In the instant case, the determination was made by the Committee on 18 December 2002. The gazettal was 20 February 2003.

84 Mr Slennett sent to the Department the recommendations on about 17 January 2003, though it would appear from the minutes of the meeting of the Committee of 23 January 2003, that something more had to go to the Minister after that document. Accordingly, there was no determination with the approval of the Minister before the end of 2002.

85 Subsection (8) provides that no determination may be made to take effect on a date that is earlier than 1 January of the year in which a determination is made if it is made between 1 January and 30 June or 1 July of that year if the determination is made between 1 July and 31 December.

86 Subsection (5) speaks in terms of a determination made being required to be submitted to the Minister for approval. This tends to suggest that in subsection (8) it is the date of the resolution rather than the date of the Minister's approval or gazettal which is the date when the determination is made for the purpose of subsection (8). On this basis, it was appropriate for the gazettal to backdate the determination to 1 July 2002. The Act is not completely clear on this point and it may be that if other amendments are being made, this matter could be clarified at the same time.

87 I should note that an argument was raised that clause 9 of Schedule 3 of the Act could save any invalidity as a matter of timing and attention was focused on the word "subsequently". However, that clause clearly refers only to invalidities before 11 October 2002.

88 I. In view of what I have said above, it is not necessary to make any findings on the question as to whether there is in administrative law a doctrine close to that known as the doctrine of economy in ecclesiastical law, that is, that where a body cannot comply with the requirements of the rules it suffices that it does the best it can.

89 Mr Griffiths SC submitted there was no such doctrine in administrative law, but if there was, it was inapplicable in the instant case. The second half of this submission was put on the basis that it was not demonstrated by evidence that in the circumstances the Committee had done all that it possibly could to comply with the new Act.

90 There is a strong suggestion in the evidence of Mr Slennett that he was aware that the new Act had been passed in July 2002 but did not know when it was going to be proclaimed and did not know what period of time was going to be needed in order to be able to analyse the problem in terms of the new Act. In particular, he took the view that securing agreements between growers and processors was a key point of the new Act, but that such agreements would take time to negotiate out fairly and should not be forced upon the parties. The majority of the Committee seemed to have agreed with those suggestions.

91 It seems to me that if it were impossible to comply with paragraph (a) because of shortness of time, and the Committee did the best it could to comply with its spirit, then the determination would not be the subject of a successful challenge on the ground of non-compliance.

92 However, (a) properly construed means that if there are no agreements nothing needs to be considered in any event, it is not necessary to look at the proposition further. As counsel did not come prepared to address this proposition, again the factual material might be a little deficient as to whether the Committee did in fact do the best it could in all the circumstances.

93 I do not know of any direct authority for the supposed doctrine. However, it seems to me to be supportable by being consistent with the notion that one does not deal with questions of invalidity of administrative decisions in some mechanical way. Even if it can be seen that an administrator has not considered a factor, the Court may still allow the decision to stand if it considers that the factor was of minor importance; see the Peko-Wallsend case at p 40.

94 This doctrine fits in well with principles such as if an Act says that claims are to be on the prescribed form and no form is prescribed, the claimant is able to take advantage of the Act by using any reasonable form of claim.

95 J. In my view the present case was not one for certiorari to quash. Had it been a case for certiorari then there would have needed to be a complementary mandamus to require the Committee to fix a rate which it could not do because of the time restraints in subsection (8).

96 If there had been some relief available, it seems to me that the appropriate relief would have been a declaration. However, even here I have qualms.

97 The first is that the gazettal is one whole determination. It is headed "Base Rate Determination No 31" and then says "The following base rates apply …" before dealing with the nine separate categories.

98 Mr Griffiths says that it is subject to severance, but I very much doubt that this is so in the form in which it is drawn. Despite the lettered paragraphs the instrument is couched as one determination. However, it is certainly true that there is no problem with putting a blue pencil through the line which commences with "(d)".

99 The alternative submission is that s 32 of the Interpretation Act 1987 requires me to consider the determination to be valid except in so far as I have held it to be invalid.

100 This submission may well be correct. It is not necessary to go into the problems that the section raises. Suffice it to say that the present case would seem to come on the right side of the line of the test as set out by Dawson J in The Dingian; Ex parte Wagner (1995) 183 CLR 323, 347-8 and see Harrington v Lowe (1996) 190 CLR 311, 326-329.

101 However, my second and major qualm is the question of parties. It is clear from London Passenger Transport Board v Moscrop [1942] AC 332 onwards that declarations are not granted unless all really interested parties have been joined. The rule is one that comes under the head that declarations are a discretionary remedy.

102 In the instant case, the plaintiff informed me that all interested parties had knowledge that these proceedings were before the Court. I am not sure whether that is good enough. In the instant case, there are persons vitally affected by the declaration of invalidity that is being sought, not the least of whom are the growers who produce chickens for the plaintiff to process. What are the consequences if the determination in respect of the plaintiff is declared to be invalid? It may well that there is no rate declared and that because of subsection (8) none can ever be declared for the relevant period, yet these growers have been producing chickens on certain reasonable expectations.

103 In my view, despite what is said about no-one being interested in appearing despite knowledge of the proceedings, I would not have made a declaration of invalidity, at least without first giving the growers and others formal notification.

104 K. The result of the case is that the proceedings must be dismissed and I cannot see why the normal order should not apply, that is, they be dismissed with costs.

105 I should add that had it been argued that there had not been a proper determination of classes for the reasons I have noted earlier, I may have reached a different result. However, despite the principles of administrative law relied on and the technicalities raised, the plaintiff's real aim was to get the Committee to split its growers into two groups, those who produce chickens in tunnel shedding, and those who do not. The point that I have mentioned was not relied on because it would be completely contrary to the plaintiff's commercial purpose. It follows then, that the ordinary rule of costs must apply.

106 The proceedings are dismissed with costs.

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Last Modified: 03/26/2004