wealth-Wheat Board-Wheat pool-Compensation to grower- Just terms " -Assessment of compensation-MethodSole or alternative remedies - Election by value-Export parity-InterestEntillement of grower-DeductionsSpecial tax imposed by ute-Validity-Acquisition by Commonwealth of all wheat grown-Absence of independent demand-Exercise of governmental authorityEffectConversio of wheat-Damager-Sale of wheat to BoardPrice-RegulationsOrdet made thereunder--Validity- Severability of clauser-Retrospective operation of statute-The Constitution (63 &64 Vict. c. 12), 88. 51 (x.xxi.), 55-Flour Tax (Imports and Exports) Act 1938 (No. 51 of 1938)-Wheat Industry Assistance Act 1938 (No. 53 of 1938)- Wheat Industry (War-time Control) Act 1939-1944 (No. 84 of 1939-No. 19 of 1944), s.6 Defence (Transitional Provisions) Act 1946 (No. 77 of 1946)- Wheat Tax Act 1946 (No. 78 of 1946), 88. 4, 5, 6-Wheat Export Charge Acts 1946 (No. 25 of 1946-No 79 of 1946)-Wheat Industry Stabilization Act (No. 2) 1946 (No. 80 of 1946), 8. 11-National Security (Wheat Acquisition) Regulations (S.R. 1939 No. 96-1945 No. 9), regs. 14, 19.

Regulation 14 of the National Security (Wheat Acquisition) Regulations provides, inter alia, that " the Minister may from time to time, by order published in the Gazette, make provision for the acquisition by the Common- wealth of any wheat described in the order

and the rights and interests of every person in that wheat

are hereby converted into claims for compensation." Regulation 19 provides, inter alia, that every such person may forward to the Board a claim in the prescribed form and shall be entitled to be paid such amount of compensation as the Minister, on the recommendation of the Board, determines" the basis of compensation to be recommended by the Board was to be ' the rates per bushel arrived at by reference to the surplus proceeds from the disposal of wheat" subject to the power of the Minister to deduct inter alia (a) the price of corn sacks

75 CLR 496

(b) transport charges to the terminal port (sub-reg. (2A) ) and (c) other dockages or deductions.

Held by Latham C.J., McTiernan and Webb JJ. (Rich and Dixon JJ. dissent- ing), that, whether reg. 19 provides the sole method of obtaining compensation or is merely an alternative to a right of action implied by reg. 14, a wheat grower who voluntarily delivers his wheat to the Board and accepts advances from the proceeds of sale received by the Board elects to adopt the method provided by reg. 19 and is bound by that election.

Held by Starke J. A pool constituted and administered in the manner provided by the National Security (Wheat Acquisition) Regulations contravenes the provisions of S. 51 (xxxi.) of the Constitution.

Section 11 of the Wheat Industry Stabilization Act (No. 2) 1946 provides that a certain order made under reg. 14 of the National Security (Wheat Acquisition) Regulations on 16th November 1939 " " shall be deemed to be, and at all times to have been, fully authorized by that regulation, and shall have,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Nelungaloo Pty Ltd v The Commonwealth

Details

AGLC: Nelungaloo Pty Ltd v The Commonwealth [1947] HCA 58
Case: [1947] HCA 58
Decision Date: 2 July 1947

CaseChat Overview and Summary

Nelungaloo Pty Ltd brought an action against the Commonwealth of Australia and others, seeking compensation for wheat acquired by the Commonwealth. The plaintiff alleged that the acquisition was unlawful and sought damages for conversion, or alternatively, the fair market value of the wheat. The defendants contended that the acquisition was lawful under the National Security (Wheat Acquisition) Regulations and that the plaintiff had elected to accept compensation determined according to those regulations.

The central legal issues before the High Court were the validity of the National Security (Wheat Acquisition) Regulations, particularly an order made on 16 November 1939, and the method of assessing compensation for acquired wheat. The Court was required to determine whether the order, which purported to acquire all wheat harvested in Australia from a specified date onwards, was within the scope of the Minister's powers under the regulations. Furthermore, the Court had to consider the effect of subsequent legislation, specifically section 11 of the Wheat Industry Stabilization Act (No. 2) 1946, which sought to retrospectively validate the order. The validity of a tax imposed by the Wheat Tax Act 1946 on acquired wheat was also in question, as it was argued to diminish the "just terms" of compensation required by the Constitution.

A majority of the High Court (Latham C.J., McTiernan and Webb JJ.) held that if a wheat grower voluntarily delivered their wheat to the Australian Wheat Board and accepted advances from the proceeds of sale, they elected to pursue compensation under regulation 19 of the National Security (Wheat Acquisition) Regulations and were bound by that election. Starke J. dissented on this point, finding that a pool constituted and administered in the manner provided by the regulations contravened section 51(xxxi) of the Constitution. The Court, with Rich, Starke, and Dixon JJ. dissenting on this specific point, found that section 11 of the Wheat Industry Stabilization Act (No. 2) 1946 validly retrospectively authorised the order of 16 November 1939, and that this section did not usurp judicial power but was within the defence power. However, Rich, Starke, and Dixon JJ. held that the tax imposed by section 6(1) of the Wheat Tax Act 1946 was invalid as it diminished the just terms of compensation.

The Court was evenly divided on the question of allowing the appeal. Consequently, pursuant to section 23(2)(a) of the Judiciary Act 1903-1947, the appeal was dismissed.

Orders