the Milk Authority of the Australian Capital Territory v Ronald George Jordan and Judith Anne Jordan [1987] ACTSC 16 (13 March 1987)

SUPREME COURT OF THE ACT

THE MILK AUTHORITY OF THE AUSTRALIAN CAPITAL TERRITORY v. RONALD GEORGE JORDAN
and JUDITH ANNE JORDAN
S.C. No. 279 of 1986
Appeal - Courts and Judges

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1)

CATCHWORDS

Appeal - nature of appeal from Magistrates Court to Supreme Court - appeal under Milk Authority Ordinance 1971 s.32(1) - Magistrates Court Ordinance 1930 not applicable - Australian Capital Territory Supreme Court Act 1933 s.11(c) applicable.

Courts and Judges - Jurisdiction of Supreme Court on appeal from Magistrates Court - application of Australian Capital Territory Supreme Court Act 1933 s.11(c).

Grey v. Park (unreported 14 April 1986)

Builders Licensing Board v. Sperway Constructions (Syd.) Pty. Ltd. and Another [1976] HCA 62; (1976) 135 CLR 616 at p 619

HEARING

CANBERRA
13:3:1987

ORDER

The appeal be upheld and the orders of the Magistrate be set aside.

Matter of costs adjourned.

DECISION

This case is about the control of the domestic distribution of milk in the Australian Capital Territory. It also involves a number of somewhat difficult questions of law, not all of which are necessary for me to try to answer.

2. The case comes before this Court as an appeal from a magistrate sitting in the Canberra Magistrates Court, who was himself hearing an appeal from a decision of the Milk Authority of the Australian Capital Territory (referred to in this judgment as "the Authority"). The appeal to the Magistrates Court was brought by the present appellants, Ronald George Jordan and Judith Anne Jordan (referred to in this judgment as "the Jordans") pursuant to s.32(1) of the Milk Authority Ordinance 1971.

3. The factual background of the matter is not in dispute and may be shortly stated as follows. For some time prior to March 1984 the Jordans had been carrying on business as licensed milk vendors in the Melba area. On 26 March 1984 a permit was granted to the Jordans to distribute milk in the McKellar area, which was regarded by the Authority as a "developing area" under the terms of the Ordinance.

4. On 23 July 1985 the Authority purported to declare the area of McKellar to be a "developed area" under the Ordinance. An application for a milk vendor's licence for McKellar was lodged by the Jordans. Similar applications were lodged by a Mr. & Mrs. Worthington ("the Worthingtons") and by a Mr. Stobey. The Worthingtons and Mr. Stobey were already licensed milk vendors in other areas.

5. On 8 October 1985 the Jordans were informed by the Authority that their application for a licence had been refused, and on 18 October 1985 the Chairman of the Authority notified them of his reasons for refusing to grant them a licence.

6. On 29 October 1985 the Jordans filed a notice of appeal from the decision of the Authority in the Canberra Magistrates Court pursuant to s.32(1) of the Ordinance. There were some interlocutory proceedings in the Magistrates Court between the Jordans and the Worthingtons which came to an end on 20 January 1986. On that date the Authority granted a milk vendor's licence for the McKellar area to the Worthingtons. The Worthingtons then commenced milk delivery in the McKellar area.

7. The appeal by the Jordans to the Magistrates Court came on for hearing on 29 January 1986. The learned Magistrate upheld the appeal and made certain orders, the exact terms of which I shall discuss in a moment. In effect, the licence granted to the Worthingtons was set aside.

8. The Worthingtons then brought proceedings in this Court which resulted in Kelly J. making an order on 29 January 1986. The order enabled the Worthingtons to continue to deliver milk in the McKellar area under a special temporary licence granted by the Authority.

9. The appeal to this Court is brought by the Authority by way of a notice of appeal dated 13 February 1986. Before dealing with the particular issues raised by the appeal. I shall say something about the relevant provisions of the Ordinance.

10. The Ordinance is entitled "an Ordinance for the Regulation and Control of the Supply, Sale and Distribution of Milk in the Territory, and for the Establishment of a Milk Authority". The Authority is a body corporate consisting of four members. According to s. 16 its functions are to engage in, regulate and control the supply, sale and distribution of milk in the Territory. According to s. 17 the Authority has power to do all things necessary or convenient to be done for or in connection with the performance of its functions. The powers set out in that section include the power to regulate and control the sale and distribution of processed milk. The Authority has power to conduct enquiries. In particular it has power to grant Vendor's Licences and Vendor's Permits pursuant to sections 23 and 25 respectively.

11. S. 23, so far as relevant, provides as follows:

"23 (1) The Authority may, from time to time, as

occasion requires, call for applications for
Vendor's Licences.

(2) An application for the grant of a licence -

(a) shall be in writing in accordance with such
form as is approved by the Authority and
shall be signed by the applicant, and

(b) shall be lodged with the Secretary to the
Authority."

12. S. 24 (2) (b) provides as follows:

"Where more than one of the applicants is the
holder of a licence, the Authority shall, subject
to sub-section (3), after having regard to -

(i) the known record of each of those applicants
as a milk vendor; and

(ii) the claim, if any, of each of those applicants
to new business in the area in respect
of which the new licence is to be issued,
grant the licence to an applicant who is the
holder of a licence;"

13. S. 24 (3) provides as follows:

"The Authority shall not grant a licence to a
person unless -

(a) the applicant has sufficient equity in the
business in respect of which the licence is
to be issued and has a reasonable capacity
to repay borrowed money;

(b) the applicant has the ability necessary to
conduct a milk run; and

(c) the applicant is of good fame and character."

14. Appeals are provided for in s.32 which, insofar as it is relevant, provides as follows:

"32(1) Where the Authority refuses to grant, or
revokes, a licence, the applicant, or the person
who was the licensee, as the case may be, may,
within the period of 21 days after the decision
was given or within such further period as the
Magistrates Court, on application made before or
after the expiration of that period, allows,
appeal to the Magistrates Court against the
decision.

. . . . .

(5) Jurisdiction to hear and determine appeals
under this section is vested in the Magistrates
Court.

(6) An appeal under this section shall be in the
nature of a rehearing.

(7) The Authority shall be the respondent on the
appeal.

(8) A court hearing the appeal may -

(a) affirm, set aside or vary the decision of
the Authority;

(b) give such judgment as to the court seems
proper; and

(c) make such other order as justice requires."

15. S.33 empowers the Authority to issue a temporary vendor's permit to the holder of a vendor's licence when the issue is necessary to prevent disruption of milk deliveries or to restore the service of such deliveries.

16. Part IV of the Ordinance is entitled "Zoning of Milk Vendors". The relevant provisions are as follows:

"42. The holder of a Vendor's Licence or Vendor's
Permit shall not carry on the business of the sale
or delivery of milk elsewhere than within the zone
or developing area, as the case may be, for the
time being the subject of his licence or permit,
as the case may be.

Penalty: $1,000.

43(1) The Authority may, from time to time, for
the purpose of the home delivery of milk to
residential premises, declare an area of land in
the Territory to be a developing area or a
developed area.

(2) The Authority shall not declare an area to
be a developed area unless the density of
residential buildings in the area is such that, in
the opinion of the Authority, a vendor's zone of a
viable size can be established.

44(1) The Authority may, at any time, determine an
area of the Territory that is not then included in
a developed area to be a developing area in
respect of a Vendor's Permit.

(2) Subject to sub-section 43(2), the Authority
may, on determining or re-determining a zone,
incorporate in the zone the whole or part of a
developing area.

. . . . .

47(1) The Secretary to the Authority shall cause
notice of details of a determination or
re-determination of zones under this Part to be
published in a daily newspaper published and
circulating in the Territory.

(2) A determination or re-determination of zones
under this Part does not have effect until the
expiration of a period of twenty-eight days after
the publication of the notice of the determination
or re-determination as provided by the last
preceding sub-section, until such later date as is
specified in the notice."

17. I return now to the issues raised by the appeal to this Court. When the appeal came before the learned magistrate it was common ground, and it still is, that the Secretary to the Authority had not caused details to be published in a newspaper of the determination of the Authority that the area of McKellar was a developed area. Hence, there had been no compliance with s.47 of the Ordinance. The learned magistrate took the view that there had been no valid determination on the part of the Authority and that where there has been no valid determination of a zone, the issue of a licence was in turn invalid. His Worship went on to hold that the appropriate order for him to make in the circumstances pursuant to s.32(8) of the Ordinance was to set aside the decision of the Authority granting a licence to the Worthingtons and to uphold the appeal upon the ground that the granting of a licence to the Worthingtons was beyond the power of the Authority.

18. In the notice of appeal filed in this Court on 10 February 1986 a number of grounds were set out. Only some of these were relied upon at the hearing of the appeal and I think that it is necessary to refer only to the following:

"2. The learned Magistrate erred in holding that
there existed a right of appeal from a
decision of The Milk Authority pursuant to
s.24(2) of The Milk Authority Ordinance
1971.

. . . . .

4. The learned Magistrate erred in finding that
the Magistrates Court had jurisdiction to
entertain the appeal brought by Ronald
George Jordan and Judith Anne Jordan
purportedly pursuant to s.32 of The Milk
Authority Ordinance.

. . . . .

7. The learned Magistrate erred in finding that
it was a prerequisite to the validity of a
licence granted under the said Ordinance
that The Authority should determine or
redetermine a zone to which the licence
referred pursuant to part IV of the said
Ordinance and/or that the Secretary of The
Authority should cause such determination or
re-determination to be duly published
pursuant to s.47 of the said Ordinance
and/or that 28 days should elapse prior to
the granting of a licence after such due
publication by the Secretary to The
Authority."

19. Before proceeding further it is necessary to say something about the nature of the appeal to this Court, although I do not think that in the end there is any dispute between the parties on this particular matter. Grounds 3 and 4 in the Notice of Appeal in this Court were not pursued except insofar as they raise issues which I shall discuss later. Jurisdiction to hear the appeal by the Jordans against the refusal to grant them a licence was conferred upon the Magistrates Court by virtue of s.32(1) and s.32(5) of the Ordinance. In contrast with perhaps most of the appeals which come to this Court from the Magistrates Court, the jurisdiction in that Court was not conferred by the Magistrates Court Ordinance 1930. The provisions of the Magistrates Court Ordinance relating to the nature of an appeal to this Court from a decision made in the exercise of jurisdiction under that Ordinance, do not apply to the present appeal before the Supreme Court. The Supreme Court acquires jurisdiction in this appeal pursuant to s.11(c) of the Australian Capital Territory Supreme Court Act 1933 which provides as follows:

"11 The Supreme Court -

(a) . . . . .

(b) . . . . .

(c) has jurisdiction, with such exceptions and
subject to such conditions as are provided by Act
or by Ordinance, to hear and determine the
appeals from all judgments, convictions, orders
and sentences of inferior courts having
jurisdictions in the Territory."

20. In my view, the position in the present appeal is similar to that which was the subject of the decision of a Full Court of the Federal Court of Australia in Grey v. Park (unreported 14 April 1986). There is no provision in s.11(c) or elsewhere in the Australian Capital Territory Supreme Court Act as to the nature of an appeal under s.11(c) and, accordingly, an appeal under that section is to be treated as a strict appeal. A strict appeal is to be decided upon the evidentiary material before the court below and on the law as it was then in force: see Builders Licensing Board v. Sperway Constructions (Syd.) Pty. Ltd. and Another [1976] HCA 62; (1976) 135 CLR 616 at p 619 per Mason J., as he then was. As the appeal is an appeal in the strict sense, the only decision that may be made by this Court is either that the appeal be upheld or that the appeal be dismissed. This Court has no power to substitute orders of its own for those of the Magistrate on such an appeal.

21. I deal now with the nature of the proceeding before the magistrate and the nature of his decision. It is to be borne in mind that the Jordans exercised their rights under s.32(1) of the Ordinance to appeal against the decision of the Authority in refusing to grant them a licence. There is no provision in the Ordinance conferring upon them a right to appeal against the grant by the Authority of a licence to the Worthingtons. It seems to have been submitted on behalf of the Jordans that the magistrate had the power upon the hearing of the appeal against the refusal to grant the Jordans a licence to make an order to set aside the decision of the Authority granting a licence to the Worthingtons; indeed the order that the learned magistrate purported to make was, in part, in such terms. It may well be that the magistrate had the power to make an order in the terms stated, because s.32(8) gave him the power to affirm, set aside or vary the decision of the Authority, to give such judgment as seemed proper and to make such other order as justice required. However, the Worthingtons were not made parties to the appeal before the magistrate, nor were they heard on the question as to whether they should be deprived of the licence which the Authority had purported to grant to them. There was nothing on the material before me to indicate that the Worthingtons had been given any notice of the hearing of the appeal before the magistrate. It would, therefore, be at least arguable that as far as the rights of the Worthingtons were concerned, the appeal involved a denial of natural justice. However, for reasons which I shall shortly state, it is not necessary for me to arrive at a positive decision on that aspect.

22. It was submitted on behalf of the appellant Authority that the magistrate fell into error in holding that it was necessary for the Secretary to the Authority, pursuant to s.47 of the Ordinance to cause notice of details of a determination of zones on the part of the Authority to be published before the Authority could validly grant a vendor's licence in respect of that zone. The submission relied, I gather, on the doctrine that things are presumed to be done properly and that at least in the absence of evidence to the contrary, it should not be assumed that the Secretary to the Authority had failed to publish the determination of the zone to which the Worthington's licence related. No authority was cited to support this submission and in the end it did not seem to be pressed. Counsel for the appellant relied more heavily upon a submission that the determination of a zone was not essential to the granting of a licence, that a licence need not be restricted to a zone, it could be issued so as to confer a right to deliver milk throughout the Territory. With respect to the industry of counsel, it seems to me that upon a consideration of the whole of the Ordinance, zoning is essential to the system of regulation and control of the distribution of milk in the Territory which is established by the Ordinance and for which the Authority has responsibility. True it is that the system established in the terms of the Ordinance is not a model of perfect logical coherence. The Ordinance is not easy to follow in many respects. The term "zone" is defined in s.4 of the Ordinance to mean, in relation to a vendor's licence, an area within the City Area determined or re-determined by the Authority under Part IV to be a zone for the time being in respect of the vendor's licence. (The term "City Area" itself is defined by s.14 of the Interpretation Ordinance 1967 to mean the City Area within the meaning of the City Area Leases Ordinance 1936-67. The term is further defined by s.4 of the latter Ordinance as the land, the property of the Commonwealth within the area specified by the Minister for the purpose by notice in the gazette, as varied from time to time. No point was taken in the present proceedings that the suburb of McKellar lies outside the City Area.) The licence which was in fact issued by the Authority to the Worthingtons on 20 January 1986 (exhibit 1) is expressed to authorise the holder to carry on the business of milk delivery to residential premises within the zone specified in the schedule to the licence. The schedule refers to "McKellar: all residential blocks". The "suburb of McKellar" was declared by the Authority to be a developed area at the time when it called for applications for vendor's licences on 23 August 1985 (exhibit 2). The Authority was presumably of the opinion, in accordance with s.43(2) of the Ordinance that a vendor's zone of a viable size could be established in that suburb of McKellar. The Ordinance contemplates, in my view, that one and only one vendor's licence may be issued by the Authority for any particular zone and further that before any licence issues that the Secretary to the Authority cause notice of details of the determination or re-determination of any zone to which the licence applies to be published pursuant to s.47(1). The Ordinance further contemplates, in my view, although there is no express provision to that effect, that the Authority will from time to time determine or re-determine the zone or zones in respect of which it is intended that a vendor's licence or vendor's licences be called for and, where it is appropriate, issued. It is consistent with the overall objectives of the Ordinance and the scheme established under it, that the publication of details of a determination or a re-determination of a zone and the postponing of the effect of such determination or re-determination by a period of twenty-eight days in accordance with s.47(2) will give an opportunity to a person adversely affected to make representation to the Authority to exercise its power to re-determine or further re-determine the zone pursuant to its powers under s.46(2).

23. In the light of all the foregoing, I think that the essential question raised on the appeal may be disposed of quite simply. The learned magistrate was, in my view, incorrect in upholding the appeal before him, because that appeal was an appeal by the Jordans against the refusal of the Authority to grant them a licence. In truth, the Authority had no power to grant them a licence until it had made a determination of the zone to which the licence was intended to relate and until the Secretary had caused notice of details of the determination to be published. Although the refusal of the Authority to grant the Jordans a licence appears to have been based upon a wrong reason, namely, that the Worthingtons should be preferred to the Jordans, the Authority was correct in refusing to grant a licence to the Jordans, for it simply had no power to grant a licence to them, or to the Worthingtons, or to anyone else until details of its determination of the zone had been published in accordance with s.47(2). However, the appeal from the Authority to the Magistrates Court was not an appeal against the grant of the licence to the Worthingtons; it was an appeal against the refusal to grant a licence to the Jordans, and that appeal was bound to fail. Accordingly, the appeal to this Court must succeed. Because this Court is exercising jurisdiction under s.11(c) of the Australian Capital Territory Supreme Court Act 1930, the appeal to this Court is an appeal in the strict sense and the only orders that may be made (except perhaps as to costs) are: appeal upheld, orders of the Magistrate set aside. I will hear the parties on the question of costs.