[Home] [Databases] [WorldLII] [Search] [Feedback] High Court of Australia

River Sand & Gravel Pty Ltd v Milk Board [1972] HCA 2; (1972) 126 CLR 471 (7 January 1972)

CATCHWORDS

HEARING

DECISION

2. In the second place when a fact is said by a statutory provision to be "deemed" to be otherwise than it is in objective fact, the "deeming" in my opinion can only take place in some proceeding where the fact is a relevant circumstance. The statute cannot change the fact as it exists in reality: but it can require someone or somebody to act on the footing that it is what it is not. To "deem" in the sense of to judge is the appropriate connotation. Thus s.28A in my opinion effects no alteration in the relevant fact except in a proceeding by or against the Board. (at p475)

3. Further the "determination" to which s. 28A (2) refers is not in the least in the nature of a judicial determination, something which does determine what the fact is. It is in my opinion no more than the arbitrary "say so" of the Board or of its official. That "say so" in my opinion must be made by the official in evidence or by certificate as provided bys. 28A (3). (at p475)

4. These are reasons why in my opinion evidence as to what had been "determined" or a certificate under s. 28A (3) would be inadmissible in the present proceedings. I would allow the appeal as to all of the paragraphs of the statement of defence presently in dispute. (at p475)

McTIERNAN J. By s. 2(2) of the Milk (Amendment) Act, 1969 (N.S.W.) the legislature expressed a clear intention that s. 28A of the Milk Act, 1931-1969 (N.S.W.) (inserted by s.2 (1) (d) of the first-named Act) is to have a retrospective operation. The Milk Act, 1931(N.S.W.) and the Milk (Amendment) Act, 1969 (N.S.W.) were repealed by s. 3 (1) of the Dairy Industry Authority Act, 1970 (N.S.W.). Section 16 (1) of that Act provides that:

"On and from the commencement of this Act -
. . .
(c) all suits, actions and proceedings pending immediately
before that commencement at the suit of the Milk Board
shall be respectively suits, actions and proceedings
pending at the suit of the Authority and all suits, actions
and proceedings so pending at the suit of any person
against the Milk Board shall be suits, actions and
proceedings
pending at the suit of that person against the
Authority;
. . .
(g) all debts, moneys and claims, liquidated and unliquidated,
that, immediately before that commencement, were due
or payable by, or recoverable against, the Milk Board
shall be debts due, moneys payable by and claims
recoverable against the Authority;
(h) all liquidated or unliquidated claims for which the Milk
Board would, but for the repeals and amendments
effected by this Act, have been liable shall be liquidated
and unliquidated claims for which the Authority shall be
liable;
. . .

MENZIES J. Two actions were commenced in the Supreme Court of New South Wales by a dairyman with the unlikely name River Sand & Gravel Pty. Ltd. against the Milk Board claiming what were alleged to be moneys owing to the plaintiff for milk supplied to the defendant. The first action began in 1965 claiming $56,182.71; the second action began in 1968 claiming $57,231.88. The point for determination is the same in each action and it is convenient, in considering that point, to confine attention to the first action. (at p476)

2. To the claim the defendant pleaded inter alia that it was liable only for milk delivered by the plaintiff to the defendant and accepted by the defendant; that it has been duly determined that the quantity so delivered and accepted from 22nd June 1961 to 3rd December 1964 - the period over which the claim extends - was 5,063,410 lbs. and no more, and further, that certificates to this effect had been given under s.28A of the Milk Act, 1931 (N.S.W.) as amended. (at p476)

3. An application was made by the plaintiff to strike out par. 14 (e), (f) and (g) of the defendant's particulars of defence containing the allegations with regard to the making of the determination and the giving of the certificates. This application was dismissed on 8th March 1971. Subsequently another interlocutory application was made to have it determined whether the certificates referred to could be used in an action which had already been commenced when s.28A of the Milk Act became operative. It was decided that they could and that, as they provided a complete answer to the plaintiff's claim, there should be a verdict for the defendant. It is against the judgement following that verdict that this appeal has been brought asking that it should be set aside and that pars. 14(e), (f) and (g) of the particulars of defence be struck out. (at p476)

4. It is necessary, in the first place, to say something about the legislation that is in point here. (at p477)

5. The Milk Act, 1931 as amended - which I shall call "the Milk Acts" - was amended, with retrospective effect to 1st January 1932, by the Milk (Amendment) Act, 1969 (N.S.W.) after the decision of this Court in Andaloro v. Wyong Co-operative Dairy Society Ltd. [1966] HCA 61; (1966) 119 CLR 278 . The amending Act amended s.28 (2A) to read as follows:

"(2A) (a) The Board shall pay to each dairyman, at such
times as the Board shall think fit, an amount calculated at the
rate of the minimum price or prices applicable to or in respect
of the milk delivered to the Board by and accepted by the
Board from that dairyman.
(b) Where, in respect of any period which the Board may
think fit to adopt, the Board has, out of the proceeds of milk
delivered by dairymen at any particular place at which milk
is accepted by the Board -
(i) made the payments referred to in paragraph (a) of this
subsection; and
(ii) made such provision for the matters referred to in
subsection
two of this section (other than expenses of
administration) as the Board deems reasonably
appropriate
to and in respect of the milk so delivered, the Board
shall distribute, among such dairymen in proportion to
the quantity of milk delivered by each of them at such
place during such period, so much of the balance, if any,
of such proceeds as the Board may determine to be
available for the purpose."

" . . .
(2) Where, during any period, a person delivers, or from
time to time delivers, milk at a place where the Board will
accept milk -
(a) the quantity of milk, or the quantity of milk of any grade,
class or description, that is delivered to the Board by that
person during that period at that place, and the quantity
of milk, or the quantity of milk of any grade, class or
description, that is accepted by the Board from that
person during that period at that place shall be deemed
to have been such quantity as may, in respect of that
person, period, place and, if the case so requires, grade,
class or description, be at any time thereafter determined
by the Board or an officer of the Board authorised by it
for the purpose;
. . .
(3) In any legal proceedings by or against the Board, a
certificate by the Board to the effect that -
(a) no milk;
(b) no milk of a specified grade, class or description;
(c) a quantity of milk; or
(d) a quantity of milk of a specified grade, class or description,
was, during a specified period, delivered to the Board by, and
accepted by the Board from, a specified person at a specified
place shall be conclusive evidence of the matters specified
therein and the fact that the place so specified was a place at
which the Board would, during that period, accept milk. (at p478)

6. On 1st July 1970 the Dairy Industry Authority Act, 1970 (N.S.W.) came into operation. This Act repealed the Milk Acts. By virtue of this Act the Milk Board ceased to exist and a new authority, the Dairy Industry Authority, came into being. By s.16 of this Act provision was made for a number of consequences of the substitution of the Authority for the Board. It was provided inter alia that actions pending against the Board should be actions against the Authority. It was also provided as follows:

"16. (1) On and from the commencement of this Act -
. . .
(g) all debts, moneys and claims, liquidated and unliquidated,
that, immediately before that commencement, were due
or payable by, or recoverable against, the Milk Board
shall be debts due, moneys payable by and claims
recoverable against, the Authority;
(h) all liquidated or unliquidated claims for which the Milk
Board would, but for the repeals and amendments
effected by this Act, have been liable shall be liquidated
and unliquidated claims for which the Authority shall
be liable." (at p478)

7. Section 26 of the Act superseded s.28A of the Milk Acts with the substitution of the word "Authority" for the word "Board" wherever appearing. (at p478)

8. In the Dairy Industry Authority Act, however, there is no express provision about the use, in actions against the Authority, of determinations made and certificates given under s.28A of the Milk Acts. (at p478)

9. On 19th December 1969, i.e. after the commencement of the actions with which we are concerned and while the Milk Board was still in existence, one Rex Thomas Coombes, an officer of the Board "determined" that the quantity of milk delivered by the plaintiff to the defendant and accepted by the defendant from the plaintiff at the premises of Nepean Milk Co-operative Ltd. during the relevant period was 5,063,410 lbs. On the same day he signed a "certificate under s. 28A of the Milk Act, 1931 as amended" to the effect of the foregoing determination. On the same day, to pile Pelion upon Ossa, the Board itself sealed a certificate to the same effect. It is the making of these determinations and the giving of these certificates that pars. 14(e),(f) and (g) of the defendant's particulars of defence alleges. (at p478)

10. It is now possible to formulate what has to be decided upon these appeals. It is:
1. (a) Whether the determination can be used at the trial of the action ; and

(b) if so, with what effect.
2. (a) Whether the certificates can be used at the trial of the action ;

(b) if so, whether they are conclusive evidence in the action

11. It follows, from the repeal of the Milk Acts and the constitution of the Authority by and under the Dairy Industry Authority Act, 1970 and the provisions of s. 16 thereof, that the plaintiff can recover from the Authority such claims, and such claims only, that were recoverable against the Board immediately before 1st July 1970. Furthermore, the plaintiff's actions against the Board became, on 1st July 1970, actions against the Authority. (at p479)

12. By the pleading of the determination made by Coombes, the Authority is now asserting that, since the Board, on 30th June 1970, was only liable to pay the plaintiff for the quantity of milk specified therein, viz. 5,063,410 lbs., notwithstanding that the plaintiff may have delivered more milk to the Board's agent, Nepean Milk Co-operative Ltd., the Authority is not liable for any amount beyond the price of that quantity. How that amount is to be calculated is left to conjecture, for the determination is merely as to the total quantity delivered from time to time over three and a half years during which period the price, no doubt, varied. Furthermore, the determination is silent about the grade, class or description of the milk to which it relates. These omissions may make the determination worthless as a basis for the calculation of what amount the plaintiff is entitled to receive, but that is hardly the point here. The Authority wants to use the determination to establish that, in the action, the plaintiff is not entitled to payment in respect of any more milk than 5,063,410 lbs. (at p479)

13. As I read s. 28A (2) it makes provision for determinations of two sorts : (1) the determination of quantities of various grades delivered, and (2) the determination of quantities of various grades accepted. It is obviously contemplated that (2) may be less than (1). The determination made by Coombes on 19th December 1969 was one conglomerate determination, i.e. of the quantity of milk delivered and accepted over a period of three and a half years. It seems to me that such a determination could not establish - for the purpose of the deeming provision contained in the section - the amount of milk delivered, but it could, for that purpose, establish the amount of milk accepted. Obviously all milk that was accepted had been delivered. Here then there is a determination of the amount of milk accepted by the Board at a place, during a period, from the plaintiff. Accordingly, by the authority of this section, the quantity of milk accepted by the Board from the plaintiff, at that place, during that period, "shall be deemed" to have been the quantity so determined. The problem then is what is the effect of the words "shall be deemed" in the context? Counsel for the plaintiff would limit the effect of those words to the establishment of the quantity in legal proceedings by or against the Board. Counsel for the Authority would give them effect for any purpose at all after the making of the determination, so that, for all purposes, the quantity determined to have been accepted is the quantity accepted. I find myself obliged to accept the submission of counsel for the Authority on this point. At one time I thought that the provisions of s. 28A (3) might support the contention of counsel for the plaintiff, but I have come to the conclusion that they do not and that the making of a determination cannot be regarded as simply a preliminary to the giving of a certificate. I am satisfied that a determination operates quite independently of any certificate given with regard to it. It seems to me that a determination of a quantity accepted does have the effect of establishing, for all purposes whatever, the quantity accepted, and of denying that any more, or any less, was accepted. When, therefore, reference is had to s. 28 to find out what the Board has to pay to a dairyman, it is the amount calculated at the minimum price or prices applicable to the quantity of milk so determined. I have already referred to the difficulty in making such a calculation here, but that is beside the point. What is critical here is whether the liability of the Board was, upon the making of the determination, limited to payment for the quantity determined as accepted, so that it would be irrelevant for any purpose at all to show that more or less had in fact been accepted. I have come to the conclusion, therefore, that the pleading by the Milk Board of the determination in par. 14 (e) of the particulars of defence was proper, and, by virtue of s. 16 (g) and (h), the Authority is only liable to pay for the quantity of milk accepted by the Milk Board. The Board's pleading that it did not accept any milk beyond the quantity so determined is still relevant. Accordingly, par. 14 (e) of the particulars of defence should not be struck out. (at p480)

14. The particulars of defence, pars. 14 (f) and (g), allege the giving of the certificates by Coombes and the Board respectively. These certificates would, I think, have been admissible and conclusive as to their contents in legal proceedings against the Board, but I have come to the conclusion that there is no authority in any statute for their use in an action against the Authority, as these actions now are. Section 28A (3) of the Milk Acts provides for the use of what I may call Board's certificates in legal proceedings by or against the Board ; s. 26 (3) of the Dairy Industry Authority Act provides for the use of what I may call Authority certificates in legal proceedings by or against the Authority ; neither section provides for the use of Board certificates in proceedings by or against the Authority, nor have I found any other provision having that effect. To escape from the logical consequence of this omission, counsel for the Authority sought to call in aid s. 16 (g) and (h) of the Dairy Industry Authority Act but, as I think, in vain. These provisions relate to the liabilities of the Board that pass to the Authority but they do not relate to how matters may be proved in proceedings to enforce such liabilities. Any liability of the Board to pay for milk accepted was independent of the making of a certificate. Such a certificate need not have been given ; if given it could be destroyed ; if given and retained it could be used in legal proceedings, but not otherwise. Let it be supposed that a certificate was given in error and the error was discovered and a new, corrected certificate was given. Can it be thought that the liability of the Board to pay for milk accepted would have been different before the giving of the second certificate to its liability after the giving of that certificate? It seems clear to me that certificates do not go to the creation or limitation of liability at all ; they are merely a means of proof in legal proceedings. (at p481)

15. Accordingly, as there is no statutory authority for the Authority to prove anything by a Board certificate, I consider that pars. (f) and (g) of the particulars of defence are irrelevant in the action as it now stands against the Authority and that they should be struck out. (at p481)

16. It will have been observed that, in discussing this matter, I have not referred to the judgment appealed from. The reason for this is that counsel for the Authority intimated that their argument before this Court was different from the argument which they had presented successfully in the Supreme Court. (at p481)

17. I would therefore, in each case, allow the appeal. set aside the judgment for the Authority, and strike out pars. 14 (f) and (g) of the defendant's particulars of defence. (at p481)

WINDEYER J. The way in which this case arose and the questions raised by the appeal are explained in the judgments of my brothers Menzies and Owen. I agree with their Honours' conclusion that par. 14 (e) of the particulars of defence should stand, but that pars. 14 (f) and (g) should be struck out. The case was carefully and fully argued on both sides. This involved some discussion of general principles concerning the effect of statutory amendments upon existing rights and pending proceedings. But I do not find it necessary to traverse all the ground that the argument covered or to refer to the numerous authorities cited. I merely state the conclusion that, after consideration, I have reached. (at p482)

2. The certificates as to due determinations of the quantities of milk delivered to and accepted by the Milk Board would have been conclusive evidence in proceedings against the Board. But the Board no longer exists, notwithstanding that its name is still on the record in these proceedings. The Dairy Industry Authority has taken its place. It, the Authority, has by statute succeeded to the liabilities of the Board. But that does not mean that the statutory provision, in s.28A (3) in the 1969 Act, by which a certificate was made a means of proving determinations measuring the liabilities of the Board in proceedings against it has become imported into proceedings against the Authority. It was a special procedural provision making the certificate proof "in any legal proceedings against the Board" of the specified facts. The Dairy Industry Authority Act does not provide for this. (at p482)

3. In the result I consider that the defendant in the action must prove the fact that it asserts in par. 14(e) of its defence by admissible evidence; presumably by oral testimony if the fact be not admitted. I express no opinion as to what must be proved to support the statement in par. 14 (e) that an officer of the defendant "duly determined" the quantity of milk delivered by the plaintiff and accepted by the defendant over a period of three and a half years. If one man is alleged to have done this, it seems probable that he merely added up from records the amounts of the determinations that in par. 14 (c) are alleged to have been made from time to time by other persons. Recording hearsay is not, I would think, determining a fact. However, what amounts to a determination and what is a "due" determination are not questions that arise at this stage. (at p482)

4. I agree in the order that Menzies J. proposes. (at p482)

OWEN J. In 1965 the appellant company (the company), which carried on a dairying business, issued a writ against the Milk Board (the Board) claiming payment for quantities of milk alleged to have been sold and delivered by it over a period to the Board, a body constituted under the Milk Act, 1931 (N.S.W.) (the Principal Act). In 1968 the company issued another writ making a further claim against the Board for payment for a quantity of milk alleged to have been sold and delivered by it to the Board over a period later than that covered by the claim in the earlier writ. The actions were later transferred to the commercial causes list and, in November and December 1969, particulars of claim and defence were filed. In each case the particulars of claim alleged that the company had sold and delivered the milk to the Board; that the Board had accepted delivery thereof and that it had become liable to pay the price therefor. In each action par. 14 (e) of the particulars of defence contained allegations to the effect that one of the Board's officers, authorized for the purpose, had duly "determined" that a specified quantity of milk had been delivered by the company to the Board and accepted by the latter during the period covered by the company's claim. In each case the quantity specified was less that the quantity alleged by the company to have been delivered to and accepted by the Board. In par. 14 (f) of the particulars of defence the Board alleged that one of its officers, duly appointed as its delegate, had signed a certificate under s. 28A of the Principal Act certifying that the quantity of milk specified in the "determinations", which I have just mentioned, and no more had been delivered by the company and accepted by the Board during the period covered by the company's claim. In par. 14 (g) it was alleged that a similar certificate had been given under the seal of the Board. The matters alleged in these sub-paragraphs were, as I understand it, raised in December 1969 as the result of amendments made to the Principal Act by the Milk (Amendment) Act which came into force in April 1969 and, in order to have a better understanding of the matters argued on these appeals, it is convenient to refer now to some of the provisions of those Acts and of the Dairy Industry Authority Act, 1970 which last-mentioned Act came into operation on 1st July 1970 while the company's actions were still pending. (at p483)

2. The Milk (Amendment) Act, 1969, by s. 2 (1), made a number of amendments to the Principal Act and added a new section (s. 28A) to it. The relevant part of s. 28A is as follows:

"28A (2) Where, during any period, a person delivers, or
from time to time delivers, milk at a place where the Board will
accept milk -
(a) the quantity of milk . . . that is delivered to the Board
by that person during that period at that place, and the
quantity of milk . . . that is accepted by the Board from
that person during that period at that place shall be
deemed to have been such quantity as may, in respect
of that person, period, place . . . be at any time thereafter
determined by the Board or an officer of the Board
authorised by it for the purpose . . .
(3) In any legal proceedings by or against the Board, a
certificate by the Board to the effect that -
(a) . . .
(b) . . .
(c) a quantity of milk ;
(d) . . .
was, during a specified period, delivered to the Board by, and
accepted by the Board from, a specified person at a specified
place shall be conclusive evidence of the matters specified
therein . . . "

"The amendments made by subsection one of this section
shall be deemed to have taken effect as on and from the first
day of January, one thousand nine hundred and thirty-two
and . . . the provisions of the Principal Act, as amended by that
subsection shall be deemed always to have applied to and in
respect of any act or thing done, suffered or commenced, or
omitted to be done or suffered, before the enactment of this
Act and to have so applied in the manner and to the extent
that they would apply if the act or thing were done, suffered
or commenced or omitted to be done or suffered, after the
enactment of this Act."

3. The effect of these provisions in the amending Act on each of the actions brought by the company against the Board was that if the matters alleged in pars. 14 (e), (f) and (g) were true the "determination" set out in par. 14 (e) would determine what quantity of milk had been delivered by the Company to and accepted by the Board during the relevant period and the certificates pleaded in pars. 14 (f) and (g) would provide conclusive evidence of the matters specified in the "determination". (at p484)

4. On 1st July 1970 the Dairy Industry Authority Act, No. 29 of 1970, came into operation and I go now to some of its provisions. It repealed the Principal Act and the Acts amending it with the result that the Board constituted under the Principal Act ceased to exist. It set up instead a body named the Dairy Industry Authority and persons who were, prior to its commencement, officers and employees of the Board became officers and employees of the Authority (s. 12). By s. 16 (1) (a) the assets of the Board were vested in the Authority and by s. 16 (1) (c) all actions pending against the Board became actions against the Authority. The company's actions thus became actions against the Authority although the proceedings were not amended by substituting the name of the Authority for that of the Board. By s. 16 (1) (g) all debts, moneys and claims, liquidated and unliquidated, which, immediately before the repeal of the Principal Act, were due from or payable by or recoverable against the Board were declared to be debts due from, moneys payable by and claims recoverable against the Authority, and by s. 16 (1) (h) all liquidated or unliquidated claims for which the Board would have been liable had it continued to exist were declared to be claims for which the Authority was liable. Section 26 (2) contained provisions relating to "determinations" by the Authority or its authorized officer similar to those which had appeared in s. 28A (2) of the Principal Act, and s. 26 (3) made provision relating to certificates by the Authority and their conclusive effect as evidence on the lines of s. 28A (3) of the Principal Act. (at p485)

5. In March 1971 the Authority applied to a judge sitting in the commercial causes jurisdiction to strike out pars. 14 (e), (f) and (g) of each set of particulars of defence on the ground that they had no relevance in an action against the Authority which, in July 1970, had taken the place of the Board as the defendant in the actions. The learned judge dismissed the applications, holding that the Authority was entitled to rely upon the particulars in question (1971) NSWLR 58 . Later the parties asked his Honour to decide a further question. I gather that this was whether the provision of s. 28A (3) of the Principal Act relating to the use of certificates of the Board in legal proceedings was applicable in actions which were pending when the Milk (Amendment) Act came into operation. His Honour answered that question in favour of the Authority and thereupon, with the agreement of the parties, found a verdict for the defendant in each case and judgments were entered accordingly. (at p485)

6. The first question for our determination is whether the Authority is entitled to rely upon the "determination" pleaded in par. 14 (e) of the particulars of defence, a "determination" alleged to have been made by the Board or by its delegate. In my opinion it is so entitled. Under the Dairy Industry Authority Act, the Authority is liable to pay all debts due or payable and all claims liquidated or unliquidated which were due from or payable by or recoverable from the Board immediately before the Principal Act and its amending Acts were repealed and all liquidated or unliquidated claims for which the Board would have been liable but for the repeal of those Acts. To ascertain what amount (if any) the Board was liable to pay to the Company for milk delivered by it to and accepted by the Board would necessarily involve, amongst other considerations, the ascertainment of the quantity of milk so delivered and accepted, and the fact that a "determination" of that quantity was made by the Board or its authorized officer would be a relevant step in determining what was the liability, if any, of the Board immediately before it ceased to exist. Accordingly I am of opinion that par. 14 (e) of the particulars of defence should stand. In my opinion, however, pars. 14 (f) and (g) of the particulars are not relevant in an action in which the Authority is now the defendant and they should therefore have been struck out. Section 28A (3) of the Principal Act did no more than provide the Board with a means of proving - and proving conclusively - facts relevant to be considered in proceedings against it. But I cannot discover in any of the provisions of the Dairy Industry Authority Act anything which would enable the Authority, in an action which has become an action against it, to rely upon a certificate given by the Board before it went out of existence. It was contended that ss. 16 (g) and (h) of the Dairy Industry Authority Act enable it to do so. But I am unable to agree that this is so. Neither of these paragraphs deals with the method by which relevant facts in proceedings against it may be proved. (at p486)

7. For these reasons I would allow both these appeals. In each case I think the verdict and judgment should be set aside as should the order dismissing the application to strike out pars. 14 (e), (f) and (g) of the particulars of defence. Instead it should be ordered that pars. 14 (f) and (g) of those particulars be struck out. (at p486)

ORDER