Seven Fields Property Pty Ltd v Murray Valley Citrus Board [No 2]

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S CI 2012 05348

SEVEN FIELDS PROPERTY PTY LTD and WIFFEN HOLDINGS PTY LTD	Plaintiffs
v
MURRAY VALLEY CITRUS BOARD, MINISTER FOR AGRICULTURE AND FOOD SECURITY and STATE OF VICTORIA	Defendants

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JUDGE:	KYROU J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 September 2013
DATE OF JUDGMENT:	25 September 2013
CASE MAY BE CITED AS:	Seven Fields Property Pty Ltd v Murray Valley Citrus Board [No 2]
MEDIUM NEUTRAL CITATION:	[2013] VSC 513

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CONSTITUTIONAL LAW — Murray Valley Citrus Industry Development Order 2012 (Vic) made under Agricultural Industry Development Act 1990 (Vic) — For the 2012–2013 financial year, cl 19 of the Order imposed on growers in the Murray Valley production area a charge of $5.50 per tonne of citrus fruit sold — Court previously held the charge was an invalid tax rather than a fee for services — Whether other clauses of the Order or the Order as a whole are invalid — Principles for reading down or severing provisions in a legislative instrument — Interpretation of Legislation Act 1984 s 22 — Only cl 19 held to be invalid.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr M Moshinsky SC with Ms F Gordon	McMahon Clarke
No appearance for the First Defendant
For the Second and Third Defendants	Mr S McLeish SC, Solicitor General for Victoria with Ms K Walker	Victorian Government Solicitor

TABLE OF CONTENTS

Introduction and summary............................................................................................................... 1

Factual background........................................................................................................................... 1

Relevant provisions of the Act......................................................................................................... 2

The 2012 Order.................................................................................................................................... 4

Summary of legal principles: reading down................................................................................. 7

Summary of legal principles: severance...................................................................................... 10

Parties’ submissions on the invalidity of provisions of the 2012 Order................................ 12

Submissions of the plaintiffs..................................................................................................... 12
Submissions of the State and the 2012 Board.......................................................................... 13

Decision on validity of cll 13 to 18 of the 2012 Order................................................................ 15

General observations.................................................................................................................. 15
Validity of cl 13(a) of the 2012 Order....................................................................................... 17
Validity of cll 14 to 17 of the 2012 Order................................................................................. 18
Validity of cl 18 of the 2012 Order............................................................................................ 19
Conclusion: Only cl 19 of the 2012 Order is invalid.............................................................. 22

Decision on severance of cl 19 of the 2012 Order....................................................................... 22

Should the Charge be declared to be invalid?........................................................................... 26

Costs.................................................................................................................................................... 27

Order to reflect this judgment........................................................................................................ 28

HIS HONOUR:

Introduction and summary

On 16 August 2013, I published my principal judgment in this proceeding in which I held that cl 19 of the Murray Valley Citrus Industry Development Order 2012 (Vic) (‘2012 Order’) was invalid (‘Principal Judgment’).[1] For the period from 1 July 2012 until 30 June 2013, cl 19 imposed a charge of $5.50 per tonne of citrus fruit sold by producers in the Murray Valley production area (‘Charge’).
[1]Seven Fields Property Pty Ltd v Murray Valley Citrus Board [2013] VSC 423 (16 August 2013).

On 17 September 2013, after hearing further submissions on whether any other provisions of the 2012 Order, or the Order as a whole, were invalid, I informed the parties that I would make declarations of invalidity only in respect of the Charge and cl 19 of the 2012 Order. At that time, I stated that I would publish my reasons at a future date. These are my reasons.

For a proper understanding of these reasons, it is necessary to read them in conjunction with the Principal Judgment for two main reasons. First, although I provide some background information below about the proceeding, that information is necessarily incomplete. Secondly, these reasons refer to words and phrases that are defined in the Principal Judgment without repeating all of those definitions.

Factual background

The 2012 Order was made by the Minister for Agriculture and Food Security (‘Minister’) pursuant to the Agricultural Industry Development Act 1990 (Vic) (‘Act’). Section 16(1)(a) of the Act provides that an order made under the Act may confer on a body such as the 2012 Board power to impose ‘charges for services it provides’.

The 2012 Order commenced operation on 27 July 2012. Clause 6 of the 2012 Order established the Murray Valley Citrus Board (‘2012 Board’).

The plaintiffs are producers of citrus fruit. Pursuant to cl 19 of the 2012 Order, they were required to pay the Charge to the 2012 Board.

In the Principal Judgment, I found that the Charge was a tax rather than a valid ‘charge for services’ within the meaning of s 16(1)(a) of the Act. During the hearing of the proceeding, the parties did not make detailed submissions on the issue of whether, in addition to cl 19, any other provisions of the 2012 Order, or the 2012 Order as a whole, were invalid. For this reason, when I published my Principal Judgment, I invited the parties to make further submissions on this issue.

Relevant provisions of the Act

The provisions of the Act are summarised in the Principal Judgment. For present purposes, it is only necessary to set out ss 1, 15, 16, 35 and 36 of the Act. Those sections provide as follows:

1 Purposes
The purposes of this Act are —
(a)generally, to provide for the establishment by Ministerial Order of Committees with one or more of the following functions —
(i) to promote marketing of agricultural commodities;
(ii)to carry out or fund research into the production, handling, processing, marketing or promotion of agricultural commodities;
(iii)to establish and manage a general fund and project funds for the purposes of this Act;
* * * * *
(vi)to implement or fund pest and disease control measures for the protection of agricultural commodities; and
(vii)to establish and manage funds to compensate producers for costs incurred in controlling or eradicating pests and diseases of agricultural commodities;

(b)to provide for Committees established by or under this Act to perform functions and exercise powers in relation to agricultural commodities grown or produced outside Victoria; …

15 Functions of a Committee
(1)An Order must provide for the functions of the Committee, which may include all or any of the following —
(a)to promote domestic marketing of the relevant commodity;
(b)to promote export marketing of the relevant commodity;
(c)to carry out or fund research into the production, handling, processing, marketing or promotion of the relevant commodity;
(ca)to implement or fund pest and disease control measures for the protection of the relevant commodity;
(cb)to establish and manage funds to compensate producers for costs incurred in controlling or eradicating pests and diseases;
(d)to establish and manage a general fund and project funds for the purposes of this Act;
* * * * *
(g)such other incidental functions as the Minister considers appropriate.

16 Powers of a Committee
(1)An Order may confer all or any of the following powers on the Committee —
(a)power to impose, in accordance with this Act, charges for services it provides;
* * * * *
(c)power to delegate any of its powers, duties or functions (other than the power of delegation) to an employee of the Committee;
(d)power to exempt, by written notice, a person or class of persons from compliance with some or all of the requirements of the Order, on conditions or not.

(2) An Order conferring power to impose charges must specify —
(a)the amount or rate of the first charge to be imposed by the Committee and the period not exceeding one year in which the charge is to apply; and
(b)the basis on which the first charge is to be calculated; and
(c)the maximum amount or rate of each charge that may be imposed after the first charge during the term of the Order; and

(d) the manner of collection of each charge; and
(e)the circumstances in which each charge becomes due and payable.

35 Objectives of Committees
(1) The objectives of a Committee are —
(a)to promote the best interests of the industry constituted by the producers and other persons to whom the constituting Order applies; and
(b)to improve the competitiveness of that industry; and
(c)to provide the services offered by the Committee efficiently, effectively and economically.
* * * * *

(3)A Committee must perform its functions in accordance with its objectives and the purposes of its constituting Order.

36 Functions and powers generally
(1)A Committee has the functions specified in its constituting Order and any other functions conferred on it by or under this Act.
(2)A Committee has power to do all things necessary or convenient for achieving its objectives and performing its functions, and also has the powers specified in its constituting Order and any other powers conferred on it by or under this Act.

The 2012 Order

The 2012 Order was preceded by the Murray Valley Citrus Industry Development Order 2008 (Vic) (‘2008 Order’). The 2008 Order, which had a term of four years commencing on 1 July 2008, also established a Murray Valley Citrus Board (‘2008 Board’).

On 13 February 2012, the Department of Primary Industries (now the Department of Environment and Primary Industries) (‘Department’) wrote a letter to all producers affected by the 2008 Order. The letter dealt with the proposal to make a new order and enclosed a report on that proposal dated February 2012 (‘Report’) and a draft of the proposed order.

The statutory consultation process culminated in a poll of producers who would be affected by the proposed order. A majority of producers voted in favour of the proposed order.

The 2008 Board was dissolved on 7 March 2013 pursuant to an Order in Council published in the Victoria Government Gazette on that day (‘Dissolution Order’). The moneys held by the 2008 Board — totalling $965,049 — were distributed pursuant to the Dissolution Order. The 2012 Board received 92.5% of the moneys ($892,670), to be used for the purposes of carrying out its functions under the 2012 Order and discharging any outstanding liabilities of the 2008 Board. The Mid-Murray Citrus Growers Association Inc received the remaining 7.5% of the moneys. All other assets of the 2008 Board became the property of the 2012 Board to be used for the purpose of carrying out its functions under the 2012 Order.

The 2012 Board received income from multiple sources, including: the Charge; cash reserves it ‘inherited’ from the 2008 Board; interest on cash reserves; grants; revenue from the sale of orange juice and other products at promotional events; and revenue from the sale of finished goods. The 2012 Board’s total expected income for the 2012–2013 financial year was $999,080, of which $673,200 (or 67%) was expected to come from the Charge; $54,000 (or 5.5%) was from interest; $99,780 (or 10%) was a grant from Horticulture Australia Ltd; $4,000 (or 0.5%) was a grant from the Victorian Government; $5,900 (or 0.5%) was from the sale of products; and $162,200 (or 16.5%) was from the sale of finished goods.

Clause 3 of the 2012 Order provides that the purpose of the 2012 Order is:

to set up a Committee, to be known as the Murray Valley Citrus Board, to collect and administer charges applied to citrus fruit producers in the Murray Valley production area for defined industry functions.

The following functions of the 2012 Board are set out in cl 12(1) of the 2012 Order:

(a)[to] plan, fund and facilitate the conduct of citrus research and development services;
(b)[to] facilitate the adoption and commercialisation of the results of citrus research and development services;
(c)[to] plan, fund and facilitate the conduct of market development services; and
(d)[to] plan, fund and facilitate the conduct of citrus pest and disease management or control measures to increase or maintain access of citrus fruit to domestic and export markets;
(e)to establish and manage funds to compensate producers for costs incurred in controlling or eradicating pests and diseases of citrus fruit; and
(f)to establish and manage a general fund and project funds for the purposes of the Act.

Under cl 13 of the 2012 Order, titled ‘Powers of the Board’, the 2012 Board may ‘impose a charge on all producers for services it provides’.

Clauses 14 to 19 of the 2012 Order appear under the heading ‘Charge imposed by the Board’ and provide as follows:

14.A charge determined in accordance with the Act is payable by producers at the time of delivery of citrus fruit which has been sold to the receiver of the fruit, or by alternative arrangement as agreed to by the Board and a producer.
15.The charge is to be collected by the receiver of the citrus fruit and paid directly to the Board, or collected and paid in accordance with an alternative arrangement agreed to by the Board and a producer.
16.Charges collected by the receiver for payment to the Board are payable on terms determined by the Board.
17.Charges paid by a producer direct to the Board are payable on terms determined by the Board.
18.The charge imposed by the Board must not at any time during the term of the Order exceed the rate of $7.00 per tonne of citrus fruit.
19.The charge in the first year of the Order shall be $5.50 per tonne of citrus fruit or an amount not exceeding $7.00 per tonne which is approved at a general meeting in accordance with Division 3 of Part 3 of the Act.

As a general meeting of Producers did not approve another charge in accordance with cl 19 of the 2012 Order, the Charge remained at $5.50 per tonne for the 2012–2013 financial year.

Summary of legal principles: reading down

As a general rule, delegated legislation should be interpreted so as to preserve its validity. In Widgee Shire Council v Bonney,[2] in the context of an impugned bylaw, Griffith CJ said that:

when a by-law is open to two constructions, on one of which it would be within the powers of the local authority, and on the other outside of these powers, the former construction should be adopted.[3]

[2](1907) 4 CLR 977 (‘Widgee’).

[3]Widgee (1907) 4 CLR 977, 983.

The above statement was quoted with approval by McHugh J in Airservices Australia v Canadian Airlines International Ltd.[4] His Honour went on to say:

The rationale behind this principle rests upon the presumed intent of the body promulgating the impugned instrument. In Birch v Australian Mutual Provident Society, Barton J indicated that a construction of a delegated legislative instrument which is intra vires the enabling statute is to be preferred to one which is ultra vires the enabling statute ‘for the reason that it must not be taken that the [body], in framing the by-laws, intended to exercise anything beyond their statutory powers.’[5]

[4](1999) 202 CLR 133, 216 [229] (‘Airservices’).

[5]Airservices (1999) 202 CLR 133, 216 [230] (citations omitted).

In General Practitioners Society v Commonwealth,[6] the High Court considered the validity of s 16C(2) of the Health Insurance Act 1973 (Cth) (‘1973 Act’). That section provided that, where a doctor who wished to become an approved pathology practitioner gave to the relevant Commonwealth Minister a written undertaking ‘together with a fee of $10 or of such other amount as is prescribed’, the Minister could either accept the undertaking or refer to a committee the question of whether the undertaking should be accepted. Gibbs J, with whom Barwick CJ, Stephen, Mason, Murphy and Wilson JJ agreed on this point, held that the absence of a maximum fee in s 16C(2) of the 1973 Act did not mean that the section imposed an invalid tax. His Honour read down s 16C(2) so as to preserve its validity for the following reasons:

If s 16C(2) were construed as meaning that there was no limit to the amount of the fee that might be prescribed, it might well follow that the Health Insurance Amendment Act 1977 would be an Act imposing taxation and that the remaining provisions of that Act would be invalid. What is to be prescribed under s 16C(2) is clearly the amount of a fee — the section expressly so indicates — and unless the words of the section were unambiguous the Court would not ascribe to them a meaning which enabled so large an amount to be prescribed that the exaction could properly be described as a tax with the consequence that the other provisions of the amending statute became invalid. The Parliament cannot possibly have intended such a result, and the maxim ut res magis valeat quam pereat should be applied. In my opinion the intention that can be gleaned from the provisions of s 16C(2) is that the amount to be prescribed shall be such that the amount payable remains a fee.[7]

[6](1980) 145 CLR 532 (‘General Practitioners’).

[7]General Practitioners (1980) 145 CLR 532, 562.

In the more recent case of Comcare v Broadhurst,[8] the Full Federal Court identified a difference between reading down legislation and reading down a legislative instrument. Tracey and Flick JJ stated:

One difference between reading down legislation such that it is within (for example) the constitutional competence of the Commonwealth legislature, as opposed to reading down a ‘legislative instrument’, is the very fact that the latter involves an exercise of confining both the draftsman of the [instrument] (and the Minister) to the authority conferred by the enabling legislation. It is respectfully considered that the Court should strive to uphold the validity of a ‘legislative instrument’, and to construe such a ‘legislative instrument’, as within power if at all possible.[9]

[8](2011) 192 FCR 497 (‘Comcare’).

[9]Comcare (2011) 192 FCR 497, 512 [72].

Section 22(1) of the Interpretation of Legislation Act 1984 (Vic) (‘IL Act’) provides as follows:

22Subordinate instruments to be construed subject to legislative power of the State and to empowering Act
(1)Every subordinate instrument shall be construed as operating to the full extent of, but so as not to exceed —
(a) the legislative power of the State of Victoria; or
(b)the power to make the subordinate instrument conferred by the Act under or pursuant to which it is made —

to the intent that where a provision of a subordinate instrument, or the application of any such provision to any person, subject-matter or circumstance, would, but for this section, have been construed as being in excess of that power, it shall nevertheless be a valid provision to the extent to which it is not in excess of that power and the remainder of the subordinate instrument and the application of that provision to other persons, subject-matters or circumstances shall not be affected.

In Pidoto v Victoria,[10] the High Court was required to apply s 46(b) of the Acts Interpretation Act1901 (Cth) (‘1901 Act’), which was in substantially the same terms as s 22 of the IL Act. Latham CJ stated that where an impugned provision or series of provisions consists of separable words and expressions, it may more readily permit a reading down, and gave the following example:

If a law is stated to apply to cases A, B and C in express terms and the application of the law to B and C is beyond power, then the law may validly apply to A unless the striking out of the provisions with respect to B and C results in the law having a different policy or operation in relation to A.[11]

[10](1943) 68 CLR 87 (‘Pidoto’).

[11]Pidoto (1943) 68 CLR 87, 110.

This example was distinguished from cases in which there are not separate words, but rather general words or expressions which apply both to cases within power and to cases beyond power. In such a case, if an intention of Parliament that there should be a partial operation of the law based on some particular standard, criterion or test can be discovered from the terms of the law itself or the nature of the subject matter with which the law deals, it can be read down so as to give valid operation of a ‘partial character’.[12]
[12]Pidoto (1943) 68 CLR 87, 111.

Latham CJ stipulated that it would also be necessary to consider whether the proposed reading down would alter the policy or operation of the statute with respect to those cases which would still fall within its terms. Further, if multiple reading down options are available, and the statute does not provide any basis for selecting any particular interpretation, the law should be held to be invalid.[13]
[13]Pidoto (1943) 68 CLR 87, 111.

Starke J stressed that the Court was not empowered to rewrite a regulation and give it a different effect from that sought by the regulation viewed as a whole.[14]
[14]Pidoto (1943) 68 CLR 87, 118.

Summary of legal principles: severance

In Bank of New South Wales v Commonwealth,[15] Dixon J considered the effect of ss 15A and 46(b) of the 1901 Act. His Honour stated:

The effect of such clauses is to reverse the presumption that a statute is to operate as a whole, so that the intention of the legislature is to be taken prima facie to be that the enactment should be divisible and that any parts found constitutionally unobjectionable should be carried into effect independently of those which fail. To displace the application of this new presumption to any given situation arising under the statute by reason of the invalidation of part, it must sufficiently appear that the invalid provision forms part of an inseparable context. …
But in applying s 15A and s 46(b) the courts have insisted that a provision, though in itself unobjectionable constitutionally, must share the fate of so much of the statute, regulation or order as is found to be invalid, once it appears that the rejection of the invalid part would mean that the otherwise unobjectionable provision would operate differently upon the persons, matters or things falling under it or in some other way would produce a different result. This consideration supplies a strong logical ground for holding provisions to be inseverable, whether the prima facie presumption be in favour or against severability. … For the inference in such a case is strong that provisions so associated form an entire law and that no legislative intention existed that anything less should operate as a law.[16]

[15](1948) 76 CLR 1 (‘Bank NSW’).

[16]Bank NSW (1948) 76 CLR 1, 371.

In Strickland v RoclaConcrete Pipes Ltd,[17] Barwick CJ discussed the operation of s 15A of the 1901 Act, and stated that if a substantive enactment is ‘single and indivisible’ there can be no other legislative intention than to make the law so expressed.[18] Where the enacted words are capable of division or distribution, a reduced form or operation of an Act must operate upon the persons and things affected by it in the same manner as the enacted words would have operated if they had been valid, and must result in a ‘consistent workable and effective body of provisions’.[19] However, within those limits, the parliamentary expression that it intends to enact any law within any of its powers which emerges by construction from the enacted words, notwithstanding any invalidity in parts of that enactment, is imperative.[20]
[17](1971) 124 CLR 468 (‘Strickland’).
[18]Strickland (1971) 124 CLR 468, 493.
[19]Strickland (1971) 124 CLR 468, 493.
[20]Strickland (1971) 124 CLR 468, 493.

In Andrews v Howell,[21] Dixon J stated that a provision such as s 22 of the IL Act throws a burden on a person attacking an entire regulation, part of which is invalid, of establishing that:

if the regulation were confined within the limits of the power the result would be, not a partial application of the law, but a different plan or provision, or of establishing that an intention is to be found in the regulation that unless it receives its full intended operation it shall not operate at all.[22]

[21](1941) 65 CLR 255.

[22]Andrews v Howell (1941) 65 CLR 255, 281.

The general principles relating to the interpretation of Acts of Parliament are equally applicable to the interpretation of delegated legislation.[23]
[23]Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389, 398.

Non-compliance with statutory provisions of itself will not necessarily result in the invalidity of a legislative instrument. In Clayton v Heffron,[24] Dixon CJ, McTiernan, Taylor and Windeyer JJ said:

The principles of the common law distinguished sharply between invalid attempts to exercise a legislative power and departures from the prescribed course for its exercise which may not or do not bring invalidity as a necessary consequence. In the end the distinction must be governed by the intention expressed by the legislature conferring the power and prescribing the steps to be taken in the course of its exercise. But commonly no express declaration is to be found in a statutory power as to the effect on validity of departures from the procedure laid down. The question is then determined by reference to the nature of the power conferred, the consequences which flow from its exercise, the character and purpose of the procedure prescribed.
…
[T]he performance of a public duty or the fulfilment of a public function by a body of persons to whom the task is confided is regarded as something to be contrasted with the acquisition or exercise of private rights or privileges and the fact that to treat a deviation in the former case from the conditions or directions laid down as meaning complete invalidity would work inconvenience or worse on a section of the public is treated as a powerful consideration against doing so.[25]

[24](1960) 105 CLR 214.

[25]Clayton v Heffron (1960) 105 CLR 214, 246–7.

In Project Blue Sky Inc v Australian Broadcasting Authority,[26] McHugh, Gummow, Kirby and Hayne JJ stated:

Courts have always accepted that it is unlikely that it was a purpose of the legislation that an act done in breach of a statutory provision should be invalid if public inconvenience would be a result of the invalidity of the act.[27]
[26](1998) 194 CLR 355 (‘Project Blue Sky’).
[27]Project Blue Sky (1998) 194 CLR 355, 392 [97] (citations omitted).

Parties’ submissions on the invalidity of provisions of the 2012 Order
Submissions of the plaintiffs

The plaintiffs submitted that cll 13(a) and 14 to 18 of the 2012 Order are invalid. The plaintiffs contended that, as those and other provisions refer to ‘a charge’ or ‘the charge’, and as cl 13(a) refers to ‘all producers’, the effect is to impose a single global charge on all producers, irrespective of their use of the 2012 Board’s services. The nature of the charge specified in cll 14 to 18, as a per tonne rate payable ‘at the time of delivery of citrus fruit which has been sold to the receiver of the fruit’, was said to be incompatible with the charge being in exchange for services provided to, or requested by, individual producers. This is because the charge is payable whether or not any service is provided to or requested by an individual producer; and there is no discernible relationship between the charge and the value of any discrete services provided.

The plaintiffs also submitted that the reference to ‘services’ in cl 13(a) should be read in the context of the 2012 Board’s functions as set out in cl 12 of the 2012 Order. The 2012 Order draws no clear distinction between industry functions and services the 2012 Board provides. Those functions that are described as services are on their face functions that may benefit the industry generally, but are not readily seen as particular services rendered individually. Further, those ‘services’ are not confined to things done for, or at the request of, the producers who pay the charge.

The plaintiffs contended that cll 13(a) and 14 to 18 of the 2012 Order cannot be read down pursuant to s 22 of the IL Act. First, the 2012 Order was said not to include any standard or test which could be applied for the purpose of limiting, and thereby preserving, cll 13 to 18. Rather, the scheme of the 2012 Order is inconsistent with any reading down that would preserve its validity. Secondly, none of those clauses consists of general words or expressions which apply both to cases within power and cases beyond power. They authorise the imposition of a charge which is not a fee for services.

The plaintiffs further submitted that severance of cll 13(a) and 14 to 18 of the 2012 Order would be impossible, on the basis that those charging provisions form part of an inseparable context. First, the very purpose of the 2012 Order as set out in cl 3, is to ‘collect and administer charges applied to citrus fruit producers in the Murray Valley production area’. If the provision permitting the imposition of the charge were to be severed, the whole purpose of the 2012 Order would be removed. Secondly, other provisions of the 2012 Order assume the existence of the power to impose the charge. Thirdly, the 2012 Order was approved by citrus producers in accordance with the provisions of the Act. To excise the invalid provisions would leave in operation an order substantially different from the proposed order approved by a majority of producers. Finally, excision of cll 14 to 18 was said to be inconsistent with the Act, since s 16(2) of the Act requires an order to specify matters addressed in those clauses. Their removal would render the 2012 Order inconsistent with the Act.

Submissions of the State and the 2012 Board

The Minister and the State were represented collectively and made joint submissions. For convenience, the term ‘the State’ will be used to indicate both the Minister and the State.

The State put its submissions on three alternative bases. First, the State submitted that only cl 19 of the 2012 Order is invalid as a result of the Principal Judgment. Secondly, that only cll 18 and 19 are invalid. Thirdly, that only cll 13 to 19 are invalid. The State contended that the invalid clauses can be severed from the remainder of the 2012 Order in each of the three alternatives.

The State submitted that the references to ‘the charge’ or ‘a charge’ in cll 13(a), 14, 15 and 18 of the 2012 Order are apt to describe charges imposed for particular services provided to or at the request of a particular producer. They do not on their terms require that the 2012 Board impose a single global charge on all producers of the type imposed by cl 19. As such, cl 13(a) can be construed as authorising the 2012 Board to impose only a fee for services as permitted by s 16(1)(a) of the Act. The Court is empowered to adopt a construction of cl 13(a) which preserves its validity. Contrary to the plaintiffs’ submission, the State contended that cl 13(a) ought not be read with reference to cl 12, but rather should be understood as referring to ‘services’ with their constitutional or statutory meaning.

According to the State, cll 14 to 17 of the 2012 Order neither require nor purport to authorise a charge that is not a valid fee for services. Similarly, cl 18 was said not to require a charge to be levied at a particular rate per tonne of citrus fruit. As such, cl 18 is to be read as specifying the maximum charge to be levied on any producer for services it receives in any financial year.

The State contended that severance of any or all of cll 13(a) and 14 to 17 would not radically or substantially alter the 2012 Order so as to warrant a belief that the Minister intended it as a whole only. Rather, severance would alter the source of the 2012 Board’s funding, but not its general operations.

The State relied on Clayton v Heffron and Project Blue Sky for the proposition that while severance of cll 18 and 19 from the 2012 Order would render it non-compliant with the Act, that non-compliance would not result in the invalidity of the 2012 Order in its entirety. The invalidity of the 2012 Order as a whole would have dramatic consequences and would not be merely inconvenient. Actions purportedly taken by the 2012 Board, including entering into contracts, would never have been taken. The State submitted that the Minister would have intended the Board to have always existed and to continue to exist.

According to the State, if all of cll 13 to 19 are invalid, there would be no failure to comply with s 16(2) of the Act since that provision only applies if the 2012 Order authorises the imposition of a charge. Severance of all of those clauses would allow the 2012 Board to perform its functions but would require it to obtain its funding from sources other than a charge for services.

The 2012 Board did not appear at the hearing on 17 September 2013. It filed written submissions which essentially adopted the State’s submissions. In addition, the 2012 Board emphasised the adverse consequences of the making of a declaration that the 2012 Order was invalid as a whole, and the desirability of an orderly winding up of the 2012 Board in accordance with ss 11 and 54 of the Act.

Decision on validity of cll 13 to 18 of the 2012 Order
General observations

The starting point for determining the validity of cll 13 to 18 of the 2012 Order is s 22 of the IL Act and the principles of reading down discussed in Widgee, Airservices, General Practitioners, Comcare and Pidoto. The guiding principle to be applied in respect of those clauses is that if they are open to two interpretations, the first of which would result in invalidity and the second of which would result in validity, the second interpretation is to be preferred.

The above principle must be applied in the following context. First, as there has been no finding that any provision of the Act is invalid, the Act as a whole must be treated as valid and each of its provisions must be treated as having meanings that are consistent with constitutional principles. Accordingly, even though s 16(1)(a) uses the generic and unqualified phrase ‘power to impose ... charges for services it provides’ rather than specifying that a charge can only be imposed on a person for services provided to that person, the phrase must be understood as incorporating that limitation. It would be inappropriate to interpret s 16(1)(a) literally as meaning that a charge can be imposed on a person whenever a body such as the 2012 Board provides services to any other person whatsoever.

Secondly, in making the 2012 Order, the Minister must be assumed to have intended that the 2012 Order would not exceed the powers conferred on him by the Act. Likewise, the Minister must be assumed to have intended that, unless the wording of the 2012 Order otherwise requires, the provisions of the 2012 Order should be read consistently with the provisions of the Act and coextensively with the scope of those provisions. That is the standard, criterion or test to be applied, in accordance with s 22 of the IL Act, for the purpose of limiting and thereby preserving, if possible, the provisions of the 2012 Order.[28] As the High Court stated in Victoria v Commonwealth,[29] ‘[w]here a law is intended to operate in an area where Parliament’s legislative power is subject to a clear limitation, it can be read as subject to that limitation.’[30]
[28]See [25] above.
[29](1996) 187 CLR 416.
[30]Victoria v Commonwealth (1996) 187 CLR 416, 502–3.

To state the obvious, the proper construction of the impugned provisions of the 2012 Order is not affected by the manner in which the 2012 Board has interpreted and applied those provisions. It is for this Court to authoritatively interpret those provisions.

Before considering each of the impugned clauses of the 2012 Order, I will discuss two general submissions that the plaintiffs made about all of those clauses.

The first general submission was that, as cll 13 to 19 and other provisions of the 2012 Order refer either to ‘a charge’ or to ‘the charge’, they evince an intention that the 2012 Board must impose a single global charge on each producer whether or not there is a nexus between that charge and the services, if any, provided to any particular producer.[31]
[31]See [34] above.

In my opinion, there is no substance to this submission. Section 37 of the IL Act provides that, in a subordinate instrument, unless the contrary intention appears, the singular includes the plural and vice versa. No contrary intention appears in the 2012 Order because the expression ‘charges’ (see cll 3, 16, 17 and 25), ‘a charge’ (see cll 13(a), 14 and 27) and ‘the charge’ (cll 15 and 18) are used interchangeably to describe any charge or charges imposed by the 2012 Board.[32] As I will explain, when the 2012 Order is read as a whole, it is clear that only cl 19 requires the imposition of a charge in the form of a single global rate. The wording of the other provisions is such as to authorise the 2012 Board to impose separate charges for separate services.
[32]Clause 19, on the other hand, uses the expression ‘the charge’ in the sense of a single global rate.

The second general submission was that the 2012 Order evinces an intention that the 2012 Board must impose a single global charge on each producer whether or not any services are provided to that producer because the 2012 Order is concerned with the performance by the 2012 Board of functions that benefit the citrus fruit industry rather than the provision of services to individual producers.[33]
[33]See [35] above.

In my opinion, this submission also lacks substance. The references to ‘functions’ in the 2012 Order simply reflect the terminology in the Act, including, in particular, ss 1, 15 and 36. The Act authorises bodies such as the 2012 Board to perform various functions, including the provision of services,[34] and empowers them to impose charges on the recipients of services. Understandably, the 2012 Order adopts the same approach. Accordingly, the services for which the 2012 Board may impose a charge upon a producer under the 2012 Order are confined to services provided to that producer and do not include generic functions that have no nexus with that producer.
[34]See s 35(1)(c) of the Act which is set out at [8] above.

Validity of cl 13(a) of the 2012 Order

The phrase ‘[t]he Board may … impose a charge on all producers for services it provides’ in cl 13(a) of the 2012 Order is ambiguous. It could be interpreted as empowering the 2012 Board to impose a charge on all producers whenever it provides services to any person. However, it could also be interpreted as empowering the 2012 Board to impose a charge for services on all producers to whom those services are provided. If the first interpretation is adopted, cl 13(a) would be invalid because it would be inconsistent with s 16(1)(a) of the Act whereas if the second interpretation is adopted, cl 13(a) would be consistent with s 16(1)(a) and would be valid.

In my opinion, the ambiguity in cl 13(a) of the 2012 Order must be resolved in the same manner as the ambiguity in s 16(1)(a) of the Act.[35] In both cases, the interpretation that results in validity should be adopted. Accordingly, on its proper construction, cl 13(a) empowers the 2012 Board to impose a charge on a producer only in respect of services the 2012 Board provides to that producer. Such an interpretation gives effect to, rather than alters, the policy and operation of the 2012 Order.[36]
[35]See [47] above.
[36]See [26] above.

Validity of cll 14 to 17 of the 2012 Order

The plaintiffs’ challenge to the validity of cll 14 to 17 of the 2012 Order was based on the proposition that, by requiring that a charge be paid ‘at the time of delivery of citrus fruit which has been sold to the receiver of the fruit’, those clauses necessarily contemplate that the charge is payable by a producer at that time irrespective of any nexus between the charge and the provision of services, if any, to that producer by the 2012 Board.[37]
[37]See [34] above.

In my opinion, the interpretation that the plaintiffs sought to assign to cll 14 to 17 of the 2012 Order is inconsistent with the wording and obvious intent of those clauses. The clauses merely specify the timing of payment of a charge and the mechanisms for its collection and say nothing about the basis upon which the charge has been imposed and whether or not it is for services provided to the relevant producer.

Furthermore, cll 14 to 17 of the 2012 Order by their very terms do not prescribe any mandatory timing or other payment mechanism. On the contrary, those clauses expressly provide that the 2012 Board and a producer may agree on alternative arrangements and that the 2012 Board may determine the terms that are to apply.

As I am not satisfied that cll 14 to 17 of the 2012 Order are open to any interpretation that would result in their invalidity, no reading down of those provisions is required.

Validity of cl 18 of the 2012 Order

The obvious purpose of cl 18 of the 2012 Order is to give effect to s 16(2)(c) of the Act, which requires that an order specify ‘the maximum amount or rate of each charge that may be imposed after the first charge during the term of the Order’. Section 16(2)(c) contains an exception in relation to the first charge because the first charge is dealt with in s 16(2)(a). Section 16 (2)(a) is, in turn, reflected in cl 19 of the 2012 Order.

Section 16(2)(c) of the Act enables the maximum to be specified either as an amount or as a rate. Given the diversity of the proposed services that were set out in the Report and the varying scale of operations of producers, it would not have made sense for the Minister to include in the 2012 Order a maximum amount for the charges to be imposed by the 2012 Board for its services. Accordingly, the Minister specified a maximum by reference to the rate of $7.00 per tonne of citrus fruit.

I reject the plaintiffs’ submission that cl 18 of the 2012 Order requires the 2012 Board to charge for its services by way of a single global rate based on the weight of citrus fruit sold by a producer irrespective of any nexus between the charge and the services, if any, provided by the 2012 Board to that producer. In my opinion, properly construed, cl 18 fixes a maximum in respect of the total charge that may be imposed on a producer each financial year, calculated by multiplying the total number of tonnes of citrus fruit sold by the producer in that year by the rate of $7.00 per tonne.

Even though cl 18 of the 2012 Order does not expressly state that the maximum charge applies to the weight of citrus fruit sold in each financial year, that is the logical interpretation having regard to ss 19(1)(c), 47 and 48 of the Act and cll 23 and 24 of the 2012 Order.

Section 19(1)(c) of the Act provides that an order must specify the financial year of a body such as the 2012 Board. Sections 47 and 48 make it clear that a charge to be imposed on producers in a particular year must be included in a recommended action plan or a recommended project plan which is approved by a general meeting of the producers. Clauses 23 and 24 of the 2012 Order provide that the 2012 Board must hold at least one general meeting of producers in each financial year and that the 2012 Board’s financial years commence on 1 July and end on 30 June.

Contrary to the plaintiffs’ submission, cl 18 of the 2012 Order is distinguishable from s 30(1) of the Milk Board Act 1933 (Vic) (‘1933 Act’) which a majority of the High Court in Parton v Milk Board[38] found imposed an invalid excise because it required a levy to be charged at a per gallon rate.
[38](1949) 80 CLR 229 (‘Parton’).

Section 30(1) of the 1933 Act provided as follows:

(a)Towards the expenditure so estimated there shall be contributed by —
(i)every dairyman (other than the owner of a milk shop) who sells or distributes milk in the metropolis; and
(ii)every owner of a milk depot who sells or distributes milk to any person in the metropolis —

such sum as is determined by the Board in accordance with the regulations but such sum shall not in the case of any such dairyman or owner exceed a sum equal to one-quarter of a penny per gallon for every gallon of milk so sold or distributed.
(b)Notwithstanding anything in the last preceding paragraph no contribution shall be payable by —
(i)any dairyman (other than the owner of a milk shop) in respect of milk sold or distributed to another dairyman;
(ii)any owner of a milk depot in respect of milk sold or distributed to a dairyman (other than the owner of a milk shop); or to any person for use in the manufacture of any prescribed article or commodity to be sold by such person by wholesale; or
(iii)any person in respect of milk sold or distributed to such charitable institutions as are prescribed by the regulations.

Dixon J held that the levy authorised by s 30(1) of the 1933 Act was invalid for the following reasons:

The limitation suggests that the contribution is to be at a rate per gallon or is to be measured by the quantity sold. All three exclusions made by par (b) of sub-s (1) are based on this assumption and they would not be workable unless the levy was calculated upon the amount of milk sold or distributed. For the exclusions are ‘in respect of milk sold or distributed’ to the particular class of customer specified by the sub-paragraphs. But the actual words ‘such sum as is determined by the Board’ occurring in par (a) of sub-s (1) do not expressly relate the sum to the quantity sold or restrict it to a rate per gallon. It is significant however that neither these words nor the limitation which follows limiting the levy to a farthing per gallon refer to a period of time. It is true that the budget under s 29 is of course for a year and the rate of contribution must be determined every year. But the provision reads as if it contemplated only a contribution according to quantity, such as a rate per gallon, so that there was no need to calculate the amount per month or per annum. It would be impossible to discover whether a contribution of a sum fixed in any other manner exceeded the farthing a gallon unless the contribution was fixed according to an interval of time and over the same time the quantity of milk sold was taken and the amount at a farthing per gallon was reckoned in order to ascertain whether the limit had been exceeded. I do not think that the section authorizes the levying of a contribution otherwise than according to the quantity of milk sold or distributed.[39]

[39]Parton (1949) 80 CLR 229, 256.

Rich and Williams JJ also held that the levy was invalid because s 30(1) of the 1933 Act provided ‘for a contribution not exceeding a fraction of a penny per gallon for every gallon of milk sold or distributed from time to time’.[40]
[40]Parton (1949) 80 CLR 229, 253 (emphasis in original).

I agree with the State’s submission that Parton is distinguishable because cl 18 of the 2012 Order is sufficiently different from s 30(1) of the 1933 Act. The specification of a maximum liability determined by reference to a rate of $7.00 per tonne does not mean that the 2012 Board is required to impose a charge on a per tonne basis. The 2012 Order contains no equivalent to the exclusions in s 30(1)(b) of the 1933 Act which Dixon J considered unworkable unless the levy was calculated on a per gallon basis. A fee for services received over a given financial year can be validly capped at a certain amount calculated by reference to the amount of citrus fruit sold in that year, without the fee thereby losing its character as a fee for services. The term of the 2012 Order is four years[41] and cl 18 only applies to the second, third and fourth years of that term. As discussed at [64] above, unlike s 30(1) of the 1933 Act, cl 18 of the 2012 Order operates separately for each year after the first year. On the basis of the above analysis, cl 18 is workable even where a charge is not set as a single global rate per tonne of citrus fruit sold.
[41]See 2012 Order cl 5.

Conclusion: Only cl 19 of the 2012 Order is invalid

It follows from the above discussion that cll 13 to 18 of the 2012 Order do not, either individually or collectively, require the 2012 Board to impose on a producer a charge per tonne of citrus fruit sold or a charge calculated on any other basis that is inconsistent with its character as a fee for services provided to that producer. On the other hand, for the 2012–2013 financial year, cl 19 required the 2012 Board to impose on a producer a charge calculated by reference to the rate of $5.50 per tonne of citrus fruit sold by that producer whether or not the 2012 Board provided any services to the producer. Accordingly, cl 19 is invalid but cll 13 to 18 are valid.

Decision on severance of cl 19 of the 2012 Order

The invalidity of cl 19 of the 2012 Order requires consideration of whether that clause can be severed in order to preserve the remainder of the 2012 Order or whether the entire Order is invalidated.

As cl 19 imposes a default charge that is to apply for the first of the four years of operation of the 2012 Order in the absence of any other charge being adopted, the question is whether severance of that clause would leave the remainder of the 2012 Order to operate differently on the persons, matters or things falling under it or in some way produce a different result.[42]
[42]See [28] above.

The above question must be considered in the context of the Act and the 2012 Order, both read as a whole, and the circumstances prevailing at the time that the 2012 Order was made.

Section 1 of the Act, read together with s 35(1)(c), provides that the purpose of the Act is to establish committees such as the 2012 Board to perform designated functions, including the provision of services. The functions are set out non-exhaustively in s 15 of the Act. Section 16 sets out non-exhaustively[43] the powers of committees such as the 2012 Board, including the power to impose charges.
[43]See also s 36 of the Act which is set out at [8]above.

It is clear from the interrelationship of ss 1, 15, 16, 35 and 36 of the Act that the fundamental purpose of the 2012 Order and the establishment of the 2012 Board was to enable the 2012 Board to perform the functions and provide the services set out in the 2012 Order. The powers listed in s 16 of the Act, including the power to impose charges, are ancillary to the 2012 Board’s functions in the sense that they facilitate the performance of those functions. The conferral on committees such as the 2012 Board of the power to impose charges is not a fundamental or central purpose of the Act.

The above conclusion is reinforced by the fact that the Act does not prescribe the sources of funds which a committee such as the 2012 Board may use to finance the performance of its functions. Accordingly, the charges paid by producers are only one source of funding.[44] As discussed at [13] above, other sources of funding for the 2012 Board’s functions included grants and revenue from the sale of orange juice and finished goods. An important source of funding, which quantitatively exceeded the amount expected to be raised from the Charge in 2012–2013, was the amount of $892,670 which the 2012 Board inherited from the 2008 Board. In addition, the 2012 Board earned interest on that amount.
[44]Section 47 of the Act contemplates that a body such as the 2012 Board may have other sources of funding. Section 40 confers borrowing powers.

It is true that the 2012 Board did not receive the reserves from the 2008 Board until the latter Board was dissolved on 7 March 2013. However, it is clear from the Report and the draft budget that was circulated to the producers on 19 June 2012, that it was always envisaged by the Minister and the producers that the 2012 Board would receive nearly $1 million upon the dissolution of the 2008 Board.

The statement in cl 3 of the 2012 Order that its purpose is to set up the 2012 Board to collect and administer charges for defined industry functions must be read in the light of ss 1, 15, 16, 35 and 36 of the Act and cl 13(a) of the 2012 Order and in the context of the discussion at [53] to [54] and [75] to [78] above. When cl 3 is read in that light and in that context, it is readily apparent that the purpose for which the 2012 Board was established was to perform the functions and provide the services set out in the 2012 Order and, insofar as it provided services to a producer, to impose a charge on that producer for those services.

Severance of cl 19 of the 2012 Order does not denude the 2012 Order of its purpose or character. Without cl 19, the 2012 Board would have been able to impose a charge for the 2012–2013 financial year under cl 13(a). Even if the 2012 Board had not done so, it would still be empowered to perform its functions, including the provision of its services, for the benefit of producers. All that excision of cl 19 effects — in the absence of another charge being adopted — is the removal of one source of the 2012 Board’s funding for the first of its four years of operation. The 2012 Order, with cl 19 omitted, would not be ‘so radically or substantially different at law as to the subject matter from the original enactment as to warrant a belief that the [Minister] intended it as a whole only’.[45]
[45]Department of Premier and Cabinet v Birrell [No 2] [1990] VR 51, 66.

It simply cannot be said that if the Minister were aware when he made the 2012 Order that cl 19 would be held to be invalid and therefore the default charge for the first year of the 2012 Board’s four year term could not be imposed, that he would not have made the Order. At the time that he made the Order, the Minister was aware that the 2012 Board would be able to impose a charge under cl 13(a). He was also aware that the 2008 Board had substantial reserves which, in accordance with s 54(8) of the Act, the Minister could allocate to the 2012 Board to use for the purpose of the 2012 Board carrying out its functions. That was precisely what the Minister did when he made the Dissolution Order.

Similarly, the fact that a majority of producers approved the 2012 Order before it was made by the Minister does not prevent severance. As discussed above, the primary purpose of the 2012 Order is the performance of functions and the provision of services for the benefit of producers rather than the imposition of a charge. It follows that producers would be concerned about the inability of the 2012 Board to impose a charge for the first of the 2012 Board’s four year term only to the extent that this adversely affected the 2012 Board’s capacity to provide the services for which the producers voted. It must also be borne in mind that s 8(1) of the Act empowered the Minister to depart from the terms of the proposed order which the producers adopted provided that the order, as made, remained ‘substantially the same’ as the proposed order. For the reasons discussed at [80] above, this requirement is satisfied.

It is significant that cl 19 of the 2012 Order contains a mechanism pursuant to which the producers at a general meeting could adopt a charge other than $5.50 per tonne of citrus fruit for the first year, provided that the new charge did not exceed $7.00 per tonne. It would have been open to the producers to decide at a general meeting that there should be no charge (or a zero rate) for the first year in view of the substantial reserves that the 2012 Board would inherit from the 2008 Board. Such a decision would have been in accordance with the terms of the 2012 Order and would not have changed the purpose, character or essential operation of the 2012 Order.

On one view, severance of cl 19 of the 2012 Order would result in the 2012 Order not complying with s 16(2)(a) of the Act because, without it, the 2012 Order would not specify the amount or rate of the first charge to be imposed by the 2012 Board. The alternative view is that the absence of cl 19 would necessarily mean that the amount or rate of the first charge would be zero.

Even if it is accepted that severance of cl 19 of the 2012 Order would result in the 2012 Order not complying with s 16(2)(a) of the Act, that does not necessarily mean that severance would be impermissible. I agree with the State’s submission that, in determining the effect of non-compliance with enabling legislation on the application of the principles of severance, assistance can be obtained from cases such as Clayton v Heffron and Project Blue Sky. Although those cases concern the effect on the validity of a legislative instrument of a failure to comply with a statutory requirement, rather than whether an invalid provision can be severed, the underlying principles are capable of providing some guidance.

A finding that cl 19 of the 2012 Order cannot be severed would result in the 2012 Order as a whole being invalid, with potentially drastic consequences for the 2012 Board and its members and any contracts and other measures that they have undertaken in good faith on the assumption that the 2012 Order was valid. On the other hand, for the reasons discussed above, severance of cl 19 would not alter the purpose, character or essential operation of the 2012 Order. The 2012 Board could continue to operate for its four year term. It could perform its functions and fund them from validly imposed charges and other sources of income. If, at any stage, the 2012 Order could not continue to operate in an efficacious manner, the Minister could revoke the 2012 Order under s 11 of the Act and the affairs of the 2012 Board would be wound up under s 54 of the Act.

For the above reasons, I am satisfied that cl 19 of the 2012 Order is capable of being severed. Accordingly, the 2012 Order, without cl 19, continues to operate according to its terms.

Should the Charge be declared to be invalid?

In addition to a declaration that cl 19 of the 2012 Order is invalid, the plaintiffs sought a declaration that the Charge, insofar as it was imposed on them, is invalid. According to the plaintiffs, although this relief was not expressly sought in the originating motion, the validity of the Charge was central to the issues in the proceeding and, therefore, a declaration that it was invalid would give effect to the Court’s decision.

The State submitted that the Court should not make a declaration that the Charge is invalid for three reasons. First, the plaintiffs did not include such a declaration in the originating motion. Secondly, such a declaration would be unnecessary and not serve any useful purpose. Thirdly, such a declaration might give the impression to producers that they are entitled to a refund of any amount they have paid in respect of the Charge, which would be erroneous because of s 20B of the Limitation of Actions Act 1958 (‘LA Act’). That section limits the circumstances in which an amount paid in respect of a tax can be recovered.

In my opinion, a declaration that the Charge is invalid is appropriate for the reasons submitted by the plaintiffs. The declaration, according to its terms, is limited to the Charge insofar as it has been imposed on the plaintiffs. The plaintiffs, through their counsel, have acknowledged their awareness of the effect of s 20B of the LA Act. There is no basis for any concern that the declaration would mislead anyone.

Costs

The parties agreed that the defendants should pay the plaintiffs’ costs up to and including the publication of the Principal Judgment. In respect of costs incurred after that date, the plaintiffs submitted that the defendants should pay the plaintiffs’ costs whereas the State submitted that the plaintiffs should pay the defendants’ costs. The State contended that, if its submissions in relation to the validity of provisions of the 2012 Order other than cl 19 were upheld, the plaintiffs should pay the costs that the defendants incurred in relation to those submissions.

In my opinion, the parties’ submissions in relation to the validity of provisions of the 2012 Order other than cl 19 were incidental to the issues in the proceeding and were directly related to the form of order to be made by this Court to give effect to the Principal Judgment. As I am not persuaded that there is any basis for departing from the general rule that costs follow the event, I will order that the defendants pay the plaintiffs’ costs of the proceeding.

Order to reflect this judgment

For the reasons set out above, I will make the following order.

1. It is declared that clause 19 of the MVCID Order[46] is invalid.
[46]The order will define ‘the MVCID Order’ to mean the Murray Valley Citrus Industry Development Order 2012 (Vic).
2.It is declared that the charge of $5.50 per tonne of citrus fruit[47] imposed by the First Defendant on the Plaintiffs pursuant to the MVCID Order is invalid.
[47]The order will state that ‘citrus fruit’ has the meaning given to that term in the MVCID Order.

3. The Defendants pay the Plaintiffs’ costs of the proceeding.
4. The originating motion is otherwise dismissed.

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Seven Fields Property Pty Ltd v Murray Valley Citrus Board [No 2] [2013] VSC 513

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Seven Fields Property Pty Ltd v Murray Valley Citrus Board [2013] VSC 423

Pidoto v Victoria [1943] HCA 37

New South Wales v Commonwealth [2006] HCA 52

[2013] VSC 513

25 September 2013