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High Court of Australia |
H C of A
2 July 1947
Williams J.
Barwick K.C. and Macfarlan, for the plaintiff.
Mason K.C., A. R. Taylor K.C., P. D. Phillips K.C. and R. Else Mitchell, for the defendants.
July 2
Williams J
. delivered the following written judgment:—The plaintiff is a company incorporated according to the laws of New South Wales which owns a farm at Nelungaloo in the county of Ashburnham in the State of New South Wales on which it grows wheat. It was the holder of a grower's licence under the National Security (Wheat Industry Stabilization) Regulations for the crop of wheat to be produced in the year 1945-1946. The defendant, the Australian Wheat Board, is a body which is incorporated by the National Security (Wheat Acquisition) Regulations. The crop grown by the plaintiff pursuant to the licence was delivered to the Australian Wheat Board in accordance with these regulations partly at Nelungaloo and partly at Gunningbland in the months of November and December 1945 and January 1946. It consisted of 3786.20 bushels of f.a.q. wheat delivered to the silos, and 10498.50 bushels of bagged f.a.q. wheat delivered to the sidings at these places.
The plaintiff claims the sum of £6,559 11s. 4d. being the sum of £7,095 5s. 1d. at the rate of nine shillings and nine pence per bushel for bulk wheat, and ten shillings per bushel for bagged wheat less rail and handling charges at nine pence per bushel, amounting to £539 13s. 9d., either as compensation for the acquisition of the wheat by the Commonwealth, or, if the wheat was not validly acquired, as damages for the conversion of the wheat by the Australian Wheat Board as the agents of the Commonwealth. The plaintiff admits the receipt of advances under reg. 28 of the National Security (Wheat Acquisition) Regulations amounting to £3,441 10s. 1d., so that the balance claimed is £3,118 1s. 3d. The statement of claim contains a further count claiming the same sum from the Commonwealth as the fair market value of the wheat sold by the plaintiff to the Commonwealth, but no evidence was offered in support of this count and it was not pressed.
The Commonwealth purported to acquire the wheat pursuant to an order published on 16th November 1939 made by the then Minister of State for Commerce under the authority of reg. 14 of the Wheat Acquisition Regulations. The order, the full text of which appears in the statement of claim, related to wheat which had already been harvested and wheat to be harvested in the future. In this action I am only concerned with par. (b) of the order by which, with certain immaterial exceptions, the Commonwealth purported to acquire all wheat which is harvested in Australia on or after the date of the publication of the order in the Gazette. The plaintiff claims that the taking of its wheat of the 1945-1946 crop was tortious, because this paragraph of the order was not authorized by reg. 14. The plaintiff commenced its action on 24th July 1946. The statement of claim was filed on 9th September 1946. The Wheat Acquisition Regulations were made under the authority of the National Security Act 1939. The National Security Act 1946 provided for the termination of the principal Act on 31st December 1946, so that, apart from further legislation, the Wheat Acquisition Regulations would have expired on that date. But by the Defence (Transitional Provisions) Act 1946, these regulations were continued in force until 31 December 1947. Further, the Wheat Industry Stabilization Act 1946, assented to on 9th August 1946 (as amended by the Wheat Industry Stabilization Act (No. 2) 1946, assented to on 14th December 1946) provides in s. 11 that, subject to this Act, the National Security (Wheat Acquisition) Regulations shall, by force of this Act, insofar as they relate to wheat harvested in any season up to and inclusive of the 1946-1947 season, continue in force until such date as is fixed by proclamation, and shall, during such continuance, have the force of law. But s. 2 of the principal Act provides that the several sections of the Act shall commence on such dates as are respectively fixed by proclamation and I was not referred to any proclamation of this section. Section 2 however, of the amending Act provides that it shall come into operation on the day on which it receives the Royal Assent, and s. 11 of this Act provides that:—"The order made by the Minister of State for Commerce under regulation fourteen of the National Security (Wheat Acquisition) Regulations and published in the Gazette on the sixteenth day of November, One thousand nine hundred and thirty-nine, shall be deemed to be, and at all times to have been, fully authorized by that regulation, and shall have, and be deemed to have had, full force and effect according to its tenor in respect of wheat harvested in any wheat season up to and including the 1946-1947 season."
The plaintiff contends that the relevant portion of the order of 16th November 1939 was not authorized by reg. 14 of the Wheat Acquisition Regulations, and that, if the order was not so authorized, s. 11 of the Wheat Industry Stabilization Act (No. 2) 1946 was not effective to cure the defect. The plaintiff claims the same amount of damages for tort as it claims for compensation, but contends that it is necessary to decide whether the taking of the wheat was tortious or not because, if the acquisition was lawful, the plaintiff is liable to be taxed under the Wheat Tax Act 1946 (if valid), whereas if the taking was unlawful, the plaintiff would escape this tax (at least until such time as an equivalent tax was substituted for it).
I think that it is convenient to dispose of these contentions at this stage. In my opinion, they both fail. Regulation 14 of the Wheat Acquisition Regulations provides that:—"For securing the public safety and the defence of the Commonwealth and the Territories of the Commonwealth, for the efficient prosecution of the war, and for maintaining supplies and services essential to the life of the community, the Minister may, from time to time, by order published in the Gazette, make provision for the acquisition by the Commonwealth of any wheat described in the order, and that wheat shall, by force of and in accordance with the provisions of the order become the absolute property of the Commonwealth, freed from all mortgages, charges, liens, pledges, interests and trusts affecting that wheat, and the rights and interests of every person in that wheat (including any rights or interests arising in respect of any moneys advanced in respect of that wheat) are hereby converted into claims for compensation."
Regulation 15 of these regulations provides that:—"All persons having wheat acquired by the Commonwealth in their possession control or disposal on the date of the publication of an order describing that wheat shall, within fourteen days of that publication, furnish to the Board a return in accordance with Form A in the Schedule to these Regulations."
I agree with the submission that reg. 15 can only apply to wheat in existence at the date of the publication of an order of acquisition made under reg. 14. But I do not agree that, as a consequence, reg. 14 means that the Minister is only authorized to make orders acquiring wheat already in existence. Wheat of any particular season is harvested in different parts of Australia in different months, so that, if this is the true meaning of reg. 14, the Minister in each season would have to make a number of successive orders or wait until the whole of the wheat had been harvested. Regulation 14 authorizes the Minister to make orders for acquisition from time to time so that he is authorized to make a number of orders. It also authorizes the Minister to acquire any wheat described in the order thus enabling him to acquire wheat by a general or specific description (Victorian Chamber of Manufactures v. The Commonwealth[1] ). There is nothing in the regulation to limit the authority of the Minister to making orders acquiring wheat already in existence. In my opinion, the regulation is wide enough to authorize him to make an order acquiring all or any specific wheat already harvested, or all or any specific wheat to be harvested in the future. If the order relates to wheat of a future harvest, reg. 15 would not be applicable. But the quantity of wheat to be harvested in the future is no doubt capable of expert estimation, and the delivery to the Commonwealth of the wheat when actually harvested is amply safeguarded by the provisions of regs. 16, 17 and 18.
Assuming however that this construction of reg. 14 is wrong, I am of opinion that the original invalidity of the order was cured by s. 11 of the Wheat Industry Stabilization Act (No. 2) 1946. It was contended that this section infringes the judicial power because it does not amend the law prospectively but attempts to prescribe the construction to be placed upon an existing law by the court and the determination of the meaning of a statute is of the essence of the judicial power. The result of this contention, if sound, would be that the Commonwealth Parliament has no power to pass a declaratory statute which only has a retrospective operation. I cannot agree with this contention. It was within the ambit of the defence power for the Commonwealth Parliament, subject to complying with s. 51 (xxxi.) of the Constitution, to acquire all wheat harvested in Australia during hostilities or their aftermath as a means of prosecuting and winding up the war. The order of 16th November 1939 was made to give effect to this legislative purpose, and to authorize the Commonwealth lawfully to acquire the wheat of the 1939-1940 harvest and subsequent harvests. Later it was contended that reg. 14 was not wide enough to authorize the order under which the Commonwealth believed that it was authorized to act. It is trite law that the powers conferred upon the Commonwealth Parliament by s. 51 of the Constitution are plenary powers of legislation as large and of the same nature as those of the Imperial Parliament itself (R. v. Burah[2] ).
The plenary nature of these powers includes the power to legislate retrospectively as well as prospectively (Millner v. Raith[3] ). Some limitation is placed upon the power to legislate retrospectively by s. 48 of the Acts Interpretation Act 1901-1941 where the legislation is by regulation. But s. 11 of the Wheat Industry Stabilization Act (No. 2) 1946 is part of a statute of the Commonwealth Parliament and is therefore not subject to s. 48. Possibly it would have been preferable to have amended reg. 14 by inserting the necessary words to make it clear that the Minister was authorized ab initio to make the order of 16th November 1939. But this is in substance the effect of the first limb of the section, and in case this limb fails, the second limb gives the language of the order statutory force and effect and makes this force and effect retrospective to 16th November 1939.
It was also contended that the operation of s. 11 is to divest a wheat grower of a vested right of action in tort against the Commonwealth, and that the section is not a valid exercise of the defence power because legislation passed at the end of the year 1946 for the protection of the Commonwealth against rights of action which had already accrued could have no connection with the defence of the Commonwealth. But it was decided in Werrin v. The Commonwealth[4] that the Commonwealth Parliament can exercise legislative control over such causes of action. The only difference between Werrin's Case[5] and the present case is that the Commonwealth Parliament was there legislating under the taxation power, which is a power with a constant ambit, whereas the ambit of the defence power fluctuates between a very wide ambit during hostilities, and a comparatively narrow ambit in peacetime. Section 11 was enacted on 14th December 1946. In several recent judgments of this Court it has been pointed out that the contraction of the ambit of the defence power after hostilities is a gradual process. One of the most serious consequences of the recent hostilities is an acute shortage of food in many parts of the world. Wheat is the most important ingredient in bread, which is one of the staple foods, so that the ambit of the defence power in relation to the acquisition of wheat was still very wide at the end of 1946. But in any event, I think that the Commonwealth Parliament is authorized under the defence power at any future time to legislate retrospectively with respect to past occurrences where the ambit of the power would have been wide enough at the time of such occurrences to enable similar legislation to have been then passed having a prospective operation. Otherwise the Commonwealth Parliament, after the cessation of hostilities, could not pass an ordinary Indemnity Act indemnifying its subjects against the consequences of bona-fide acts unlawfully done in the prosecution of the war.
For these reasons I am of opinion that the acquisition of the plaintiff's wheat by the Commonwealth was lawful, and its only cause of action is a claim for compensation under the Wheat Acquisition Regulations. Regulation 14 provides that the property of the plaintiff in its wheat is converted into a claim for compensation. Regulation 19 provides a method of determining the amount of compensation. Regulations 14 and 19 give similar rights to compensation to those conferred by regs. 12 and 17 of the National Security (Apple and Pear Acquisition) Regulations which were construed by this Court in Andrews v. Howell[6] and Australian Apple and Pear Marketing Board v. Tonking[7] [8] . The present action is to enforce a right of compensation conferred upon the plaintiff by reg. 14 similar to the right of action conferred upon the plaintiff in Tonking's Case[9] by reg. 12. The Commonwealth is a defendant to the action so that this Court has original jurisdiction under s. 75 (iii.) of the Constitution. Section 51 (xxxi.) of the Constitution provides that the Commonwealth Parliament may make laws with respect to the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws. This placitum does not of itself give a right of action for compensation. But it requires that when a law of the Commonwealth provides for the acquisition of property it must also provide for just compensation, otherwise the acquisition will be unlawful. The provisions of each law must be judged on their merits. The placitum does not mean that these provisions must necessarily comply in every respect with the principles of the common law relating to the assessment of compensation for the compulsory acquisition of property. But reg. 14 of the Wheat Acquisition Regulations simply converts the interest of the grower in the wheat into a claim for compensation. It does not seek to alter the common law principles in any respect. These principles are therefore applicable to the present action.
The right to compensation arises at the moment of acquisition. If the property acquired is an ordinary commodity which is being bought and sold in the market: "The value of any such article at any particular time can readily be ascertained by the prices being obtained for similar articles in the market" (Vyricherla Narayana Gajapatiraju v. Revenue Divisional Officer, Vizagapatam[10] ). Australian wheat is an ordinary commodity of trade and commerce which before the outbreak of war was being bought and sold in the market for local use and for export. The price obtainable was usually the same whether the wheat was bought for local use or for export, except where the export market was firm and rising, in which case the local merchants often had to pay up to a penny a bushel more than the export price. Since the outbreak of war the Commonwealth has acquired all the Australian wheat under the provisions of the Wheat Acquisition Regulations, and disposed of the whole crop through the Australian Wheat Board. The policy of the Board has been to sell locally that portion of each crop (usually about half) required for home consumption and to sell the balance for export through its London agents. In November and December 1945 and January 1946, therefore, when the plaintiff's wheat of the 1945-1946 season was acquired, there was no ordinary Australian market for the sale of wheat either for local use or for export. Certain records were produced on subpoena duces tecum from the New South Wales Department of Agriculture which purported to give the prices quoted on the English market at the selling centre in London for Australian wheat f.o.b. Australian ports for the period commencing on 2nd January 1942 and ending on 31st December 1946. The first and fifth columns of these records were admitted by agreement of the parties, subject to relevance, as evidence of their contents. At first I was under the impression that these were quotations of buyers in London of the prices at which they were prepared to purchase Australian wheat. But the Australian Wheat Board were the only sellers of Australian wheat for export during this period, and it later appeared that these figures were simply quotations of the prices at which the Board from time to time entered into contracts for the sale of Australian wheat. If they had been quotations of ordinary buyers, the question would have arisen whether they were evidence of the market value of Australian wheat.
It has been held in this Court in the case of land that the only admissible evidence of collateral facts affecting value is that of concluded contracts (McDonald v. Deputy Federal Commissioner of Land Tax (N.S.W.)[11] ). But in England, in the case of The Cygnus reported in Roscoe, The Measure of Damages in Actions of Maritime Collisions, 3rd ed. (1929), p. 154, Gorell Barnes J. admitted and acted upon evidence of offers to purchase in a collision case. It would seem that evidence of offers is admitted in England. For instance, in Waters v. Thorn[12] Lord Romilly said:—"The test to which this Court looks with the greatest confidence, viz., the price actually bid at a sale by auction, or the offer of a person bona fide desirous to become a purchaser by private contract is wanting in this case." Further the Imperial Assessment of Compensation Act 1919, s. 2 (3), provides that any bona-fide offer for the purchase of land made before the passing of the Act which may be brought to the notice of the arbitrator shall be taken into consideration. In Percival v. Peterborough Corporation[13] the Earl of Reading C.J., said: "It" (an offer) "is, I suppose, some evidence of what was then thought to be the value of the land." But I need not pursue the point because I think that it is clear that there was not an ordinary market for the sale of Australian wheat, either for local use or for export, at the date of the acquisition of the plaintiff's wheat.
In the absence of a market, the value of the property taken must be ascertained by estimating the sum which a reasonably willing vendor would have been prepared to accept and a reasonably willing purchaser would have been prepared to pay for the property at the date of the acquisition. The value of the property is its value to the seller, so that it has been said that the most practical form in which the matter can be put is that the plaintiff is entitled to receive the sum which a prudent purchaser would have been willing to give for the property sooner than fail to obtain it (Pastoral Finance Association Ltd. v. The Minister[14] ).
The plaintiff admits that the prices at which the Board sold the wheat of the 1945-1946 crop for export were the best prices that could be obtained, so that, in estimating this sum, the prices which the Board was obtaining at the relevant period f.o.b. Australian ports for the wheat which it was selling for export are evidence of what the value of Australian wheat would have been under the ordinary law of supply and demand in a free market at that period. These prices indicate that, if there had been such a market at the date of acquisition, the plaintiff would have been able to sell its wheat at from 9s. 3d. to 9s. 9d. for bulk wheat and from 9s. 6d. to 10s. for bagged wheat. But I think that it is quite impossible to assume that if each harvest had not been acquired by the Commonwealth, the Commonwealth would have allowed the price of wheat for local use to rise to such an extent that the price of bread would have been affected or that the Commonwealth would have allowed any wheat to be sold for export except such wheat as was in excess of local requirements. As I have already said, about half the wheat of each crop was required for this purpose. I agree with Mr. Barwick that the amount of compensation should be the same whether the hypothetical purchaser should be considered to include all the possible purchasers who would have existed if there had been an ordinary market, or whether the circumstances were such that the Australian Wheat Board should be considered to be the only possible purchaser. I think that the proper approach to the problem is to assume that the Board, which was in possession of all the facilities for handling the wheat, was the only possible purchaser, but that the growers as reasonably willing vendors could only be expected voluntarily to sell their wheat to the Board at the same price as they would have obtained if there had been an ordinary market (Vyricherla's Case[15] ; Geita Sebea v. Territory of Papua[16] ). But in estimating the price which the growers could reasonably expect to receive in such a market, all the probable circumstances must be taken into account.
In the first place, it is necessary to consider the legislation of the Parliaments of the Commonwealth and of the States passed to give effect to the conference referred to in the recitals to the Commonwealth Wheat Industry Assistance Act 1938. This legislation was summarized and explained in the judgments of this Court and of the Privy Council in Deputy Federal Commissioner of Taxation (N.S.W.) v. W. R. Moran Pty. Ltd.[17] and it is unnecessary to cover the same ground again. The purpose of this legislation was to ensure to wheat growers a payable price for wheat, and at the same time, to prevent speculation in flour and stabilize the price of bread. It is apparent that a price for wheat f.o.r. Australian ports of 5s. 2d. per bushel for bagged wheat was considered to be a payable price, and to be a figure at which the price of flour and bread for local use could be fixed at a reasonable sum. To ensure to wheat growers a payable price for wheat when the export value of wheat f.o.r. Australian ports was below 5s. 2d., taxes were imposed upon wheat manufactured into flour and on stocks of flour in existence in Australia by the Flour Tax Act 1938; and the Flour Tax (Stocks) Act 1938; and upon flour imported into Australia by the Flour Tax (Imports and Exports) Act 1938. The formula for the tax was as follows: "The rate of tax, not in any case exceeding £7 10s. per ton of flour, shall be at such rate per ton of flour as the Minister, from time to time, and in accordance with a recommendation by the Committee, declares, by notice published in the Gazette, to be the amount by which the price per ton of flour based upon the price of wheat per bushel free on rails at Williamstown, in the State of Victoria at the time of the recommendation by the Committee, is less than what, in the opinion of the Committee, the price of flour would be if the price of wheat per bushel free on rails at Williamstown were 5s. 2d."
To meet the case when the value of wheat f.o.r. Australian ports rose above 5s. 2d. per bushel, provision was made by the Wheat Tax Act 1938 for a tax upon wheat grown in Australia, and, on and after a date to be fixed by proclamation, sold to a wheat merchant; and by the Flour Tax (Imports and Exports) Act 1938, s. 4 (b) for a tax upon all wheat exported from Australia, on or after a date to be fixed by proclamation, not being wheat upon which tax was imposed by the Wheat Tax Act 1938. The formula for these taxes was as follows:—"The rate of tax, not in any case exceeding one shilling per bushel of wheat shall be at such rate per bushel of wheat as the Minister, from time to time, and in accordance with a recommendation by the Committee, declares, by notice published in the Gazette, to be the amount which bears the same proportion to the excess of the price of a bushel of wheat free on rails at Williamstown in the State of Victoria, at the time of the recommendation by the Committee over five shillings and twopence as the quantity of wheat which, in the opinion of the Committee, will be consumed in Australia (whether as wheat or as products derived from wheat) during the twelve months following the preceding first day of October bears to the total crop which, in the opinion of the Committee, will be harvested during that period." The Act relating to the imposition assessment and collection of all these taxes was the Flour Tax (Wheat Industry Assistance) Assessment Act 1938. Section 12 (2) of this Act provided that the tax upon wheat exported from Australia on and after a date to be fixed by proclamation should be paid by the exporter of the wheat. Section 13 (2) provided that the tax imposed by the Wheat Tax Act 1938 should be paid by the wheat merchant to whom the wheat was sold. The Wheat Industry Assistance Act 1938 provided for the destination of the proceeds of these taxes. Section 5 provided for the opening of a fund to be known as the Wheat Industry Stabilization Fund, into which there should be paid all moneys from time to time collected under the Flour Tax (Wheat Industry Assistance) Assessment Act 1938. Section 6 (1) provided that, subject to this Act, the moneys standing to the credit of the fund should be applied in making payments to the States as grants of financial assistance. Section 6 (3) provided that there should be kept in the fund an account to be known as the Wheat Industry Special Account to which there should be credited out of the receipts of the fund in the first year the sum of £500,000, and in the following four years such amounts not exceeding this sum as the Minister determined. Section 6 (4) provided that there should be kept in the fund an account to be known as the Wheat Tax Account, to which should be credited out of the receipts of the fund all moneys collected under the Flour Tax (Wheat Industry Assistance) Assessment Act 1938 as a tax upon wheat exported from Australia or upon wheat produced and sold in Australia. Section 7 provided for the allocation from the Wheat Industry Special Account between the States of New South Wales, Victoria, South Australia and Western Australia. The amounts paid in the first year were to be applied in the provision of relief to distressed wheat growers and in the subsequent years towards meeting the cost of transferring wheat farmers from land unsuitable for the economic production of wheat, or to arranging for such land to be used for other purposes. Section 8 provided for payments from the Wheat Tax Account to the States by way of financial assistance upon condition that these amounts were distributed to the flour millers in these States in accordance with such methods of distribution as was decided by the Minister after advice from the State Minister. Section 10 provided that where the Governor-General was satisfied, inter alia, that (b) a State had not taken steps adequately to protect consumers of flour and other wheat products against excessive prices in respect of those commodities, the Governor-General might, by notice in the Gazette, suspend payments to that State under the Act during such periods as, in his opinion, (d) those consumers were not protected against such excessive prices. At the same time as this Commonwealth legislation, the States passed legislation for the purpose of fixing the minimum and maximum prices of flour and the prices of bread. This legislation took the form of authorizing the Governors of the States to make proclamations for this purpose. Pursuant to this authority a number of proclamations were made in the various States.
It is clear from this legislation that in 1938 the Governments of the Commonwealth and the States took the broad view that while the export value of wheat was below 5s. 2d. per bushel f.o.r. Australian ports, the Australian public as consumers of bread should be taxed indirectly to provide a subsidy for wheat growers; but that, if and when the export value of wheat exceeded 5s. 2d., the price which the wheat growers would otherwise have received for their wheat should be reduced by the wheat merchant or exporter having to pay a tax not exceeding 1s. per bushel on the wheat which he purchased, and that the proceeds of this tax should be used as a subsidy to keep down the local price of flour.
On 21st October 1940 a declaration was made under the Flour Tax Act 1938 and the Flour Tax (Imports and Exports) Act 1938 by the Minister that the amount by which the price per ton of flour based upon the price of wheat per bushel free on rails at Williamstown in the State of Victoria on that date was less than what, in the opinion of the Committee, the price of flour would be if the price of wheat were five shillings and twopence, was two pounds eight shillings and tenpence. It is common ground that the price per bushel of bulk wheat is threepence less than the price per bushel of bagged wheat. As I understand the evidence, the declaration was made on the basis that the export value of wheat f.o.r. Australian ports was three shillings and elevenpence farthing per bushel for bulk wheat. No subsequent declaration was made under these Acts although there was a gradual rise in the export value of wheat. This was because all wheat was being delivered to and sold by the Australian Wheat Board in accordance with the Wheat Acquisition Regulations, and the Board adopted the policy of keeping the price of wheat sold for flour for local consumption pegged at the arbitrary price of three and elevenpence farthing on a bulk basis so that the flour tax would remain constant at £2 8s. 10d. per ton, despite the fact that during and after the first half of 1944, the export value of Australian wheat rose above 4s. 11d. per bushel f.o.r. Australian ports for bulk wheat. In consequence no proclamations were made bringing the Wheat Tax Act 1938 or the Flour Tax (Imports and Exports) Act, s. 4 (b), into operation. But provision was made by the Wheat Industry (War-time Control) Act 1939, as amended, to divert to the Board the payments of flour tax which would otherwise have been made to the States for distribution among the wheat growers, so that these moneys could be added to the funds available for the payment of compensation to the growers under reg. 19 of the Wheat Acquisition Regulations.
At the date of the acquisition of the plaintiff's wheat of the 1945-1946 crop: (1) The export of flour without a licence had been prohibited by the Export (Flour) Regulations as from 3rd October 1940. (2) The price of bread was fixed in the various States by orders made under the National Security (Prices) Regulations, or proclamations made under the State legislation already mentioned, which would not allow flour millers to pay more than 3s. 11¼d. per bushel whilst the flour tax remained at £2 8s. 10d. per ton, or to pay more than 4s. 11d. per bushel for bulk wheat if there was no tax. (3) There was in force Prices Regulation Order No. 1015, known as the ceiling prices order, which fixed the price of all goods and services as those prevailing on 13th April 1943. (4) The export value of Australian wheat f.o.b. Australian ports was about 9s. 6d. per bushel for bulk wheat (the f.o.b. price is approximately one-third of a penny less than the f.o.r. price); so that if the price of wheat for local use was allowed to rise to this value, it was probable that the Wheat Tax Act and the Flour Tax (Imports and Exports) Act, s. 4 (b) would be proclaimed. The tax under these Acts, if half of the crop was exported, would reach the maximum rate of 1s. per bushel when the export price was 7s. 2d. (5) There was no prohibition of the export of wheat required for local use, but this was because no prohibition was necessary while the whole of the wheat was being disposed of by the Australian Wheat Board.
I agree with Mr. Barwick that the plaintiff should not be prejudiced by the artificial pegging of the price of wheat for manufacture into flour at 3s. 11¼d. so that the flour tax should remain constant at £2 8s. 10d. per ton, because the manifest intention of the Flour Tax Act was that this tax should disappear when the export value of wheat f.o.r. Williamstown reached 5s. 2d. per bushel. But I agree with Mr. Mason that in estimating the price which the plaintiff could reasonably have expected to receive for his wheat upon a voluntary sale, importance must be attached to the fact that the legislation of 1938 proceeded upon the basis that a price of 5s. 2d. per bushel f.o.r. Williamstown would give the wheat grower a fair return and allow flour to be manufactured and sold in Australia at a figure which would allow the price of bread to be fixed at a reasonable sum. I also agree with Mr. Mason that importance must be attached to the fact that at the date of acquisition there was a general system of price control operating under the National Security (Prices) Regulations to prevent the risk of inflation in Australia under war conditions, and that in particular it was essential to control the prices of such necessities of life as food, clothing, and shelter.
I must assess the compensation in as practical a manner as possible on such materials as are available to me. The whole potential value of a commodity like wheat to the owner lies in the price which he can reasonably expect to obtain on a sale soon after the crop has been harvested. The total harvest for 1945-1946 was 123 million bushels, and of that amount about one-half was required for local use. I think that it must be assumed that if this harvest had not been acquired by the Commonwealth, purchasers in an ordinary market could only have reasonably expected to be allowed to export half the wheat they purchased. I also think that it must be assumed that the maximum price fixed for wheat required for local consumption would not have been allowed to exceed 5s. 2d. per bushel for bagged wheat f.o.r. Australian ports. In April 1943, when the ceiling prices order came into force, the export value of bulk wheat f.o.b. Australian ports was about 4s. 3d. so that if there had been an ordinary market, the price of wheat for local use would have been about 4s. 3d. and this order would in the first instance, have pegged the price of wheat at this figure. My own view of the importance of price fixing in relation to the assessment of compensation is stated in Johnston Fear & Kingham & The Offset Printing Co. Pty. Ltd. v. The Commonwealth[18] . Since the price of wheat was kept fixed at 3s. 11¼d. by the Australian Wheat Board for administrative reasons and not to prevent inflation, I think that I should assume for the purpose of compensation that the maximum price for wheat for local use in an ordinary market under war conditions in 1945-1946 would have been that contemplated by the 1938 legislation, that is to say, 5s. 2d. per bushel f.o.r. Australian ports for bagged wheat.
On these assumptions the greatest sum which the plaintiff could reasonably expect a prudent purchaser to pay for its wheat at the date of acquisition sooner than fail to obtain it would be as follows:— 5249 bushels of bagged wheat @ 5s. 2d. per bushell £1,356 0 0 5249 bushels of bagged wheat @ 9s. 9d. per bushell 2,559 0 0 1893 bushels of bulk wheat @ 4s. 11d. per bushell 465 7 0 1893 bushels of bulk wheat @ 9s.6d. per bushell 899 0 0 £5,279 7 0
I think that the estimate made by the plaintiff of 9d. per bushel for rail and handling charges amounting to £539 13s. 9d. may be slightly on the low side but that it can be accepted. Deducting this amount from the sum of £5,279 7s. leaves a balance of £4,740.
But I have not so far deducted any sum for taxation and it is reasonable to assume that if the export value of bagged wheat had been 9s. 9d. per bushel, the Flour Tax (Imports and Exports) Act, s. 4 (b) would have been proclaimed, and that the purchaser of wheat for export would have had to lower his price for the 7,132 bushels of wheat he purchased for export by 1s. per bushel, amounting to £357, and if this sum is deducted, the balance is reduced to £4,383.
I was referred by Mr. Mason to certain matters which occurred in 1946 after the date of acquisition: (1) On 22nd May 1946 regulations were made under the Customs Act 1901-1936 prohibiting the export of flour and wheat until the intending exporter produced to the Collector of Customs a covering approval issued by the Department of Commerce and Agriculture. (2) The Wheat Export Charge Act came into operation on 9th August 1946. This Act was amended by the Wheat Export Charge Act (No. 2) 1946 which was assented to on 14th December 1946 but was deemed by s. 2 to have come into operation on 9th August 1946. Section 4 (1) (aa) provides that a charge should be imposed and levied and paid on all wheat harvested on or after 1st October 1945 and before 1st October 1947 and exported from the Commonwealth by any person other than the Australian Wheat Board on or after 1st December 1945. Section 4 (2) provides that subject to a lower rate being prescribed by the regulations the rate of the charge per bushel of wheat exported by any person other than the Board should be fifty per cent of the amount by which the price per bushel, at the date of export, for export of fair average quality bagged wheat free on rail at the port of export, as declared by the Board, or such lower rate as is prescribed ... exceeds 5s. 2d. (3) The Wheat Tax Act 1946 was assented to on 14th December 1946, but s. 2 provides that the Act should be deemed to have come into operation on 9th August 1946. Section 3 defines wheat to mean wheat harvested on or after 1st October 1945 and before 1st October 1947. Section 4 provides that a tax should be imposed and levied and paid in respect of all wheat which has been acquired or is acquired by the Commonwealth, and that the tax shall be payable by the grower of the wheat. Section 5 (2) provides that the total amount of the tax to be levied in respect of wheat of a season shall be ascertained by multiplying an amount equal to fifty per cent or such lower percentage as is prescribed, of the amount by which the average price per bushel f.o.r. at the ports of export for f.a.q. bagged wheat of all the wheat of that season exported by the Board, or such lower price as is prescribed, exceeds 5s. 2d. by the total of the number of bushels of wheat of that season, and of the wheat equivalent ... of wheat products manufactured from wheat of that season, exported by the Board or sold by the Board for export or for manufacture into wheat products for export. Section 5 (3) provides that the rate of the tax in respect of wheat of a season shall be an amount per bushel of wheat arrived at by dividing the total amount of tax to be levied in respect of wheat of that season ... by the total number of bushels of wheat of that season in respect of which the tax is imposed. Section 5 (5) provides for the Minister notifying in the Gazette a provisional rate of tax. Section 6 (1) provides that the Commonwealth or the Board may deduct any amount of tax payable by any grower from any moneys payable by the Commonwealth or the Board to that grower on any account whatsoever, and any amount so deducted shall be applied in payment, or part payment, of the tax so payable. By notification published in the Commonwealth of Australia Gazette on 17th January 1947, the Minister notified that the provisional rate of tax in respect of wheat of the season commencing on 1st October 1945 was one shilling one and one-eighth pence per bushel. (4) Section 18 of the Wheat Industry Stabilization Act 1946 which contemplates that a price of 5s. 2d. f.o.r. Australian ports for bagged wheat is a fair return to the wheat grower.
The question arises whether these subsequent matters should be taken into consideration in assessing the compensation under reg. 14. I venture to repeat what I said in Minister for the Army v. Parbury Henty & Co. Pty. Ltd.[19] :—"The right to compensation arises at the moment of acquisition ... The amount of compensation, being a matter of assessment, can, like damages, be calculated in the light of any subsequent facts to the extent to which they throw light upon the items of value which can properly be taken into account in the calculation, having regard to the circumstances existing at the date of acquisition." In Willis v. The Commonwealth[20] Dixon J. has collected a number of recent cases showing the growing inclination of the courts to prefer subsequent facts to prophecies where such facts are available at the hearing. It may be that, speaking generally, Acts of Parliament passed subsequently to the date of acquisition would not be relevant, but in the present case the existing legislation so clearly indicated that a tax would be placed on the export of wheat when the price exceeded 5s. 2d. per bushel that in my opinion, it is permissible to take the Wheat Export Charge Act into account. Under this Act a purchaser of the plaintiff's wheat would have had to reduce his price by at least 2s., amounting to £714 on the 7,132 bushels he purchased for export thereby reducing the previous balance of £4,383 to £4,026.
The addition of the sums which the plaintiff has already been paid and will receive under reg. 19, apart from taxation, is £4,925 4s. From this sum the Board proposes to deduct £805 18s. 2d. for tax at the source under the Wheat Tax Act 1946 leaving a balance of £4,119 5s. 11d. Strictly speaking the question whether the Board is lawfully entitled to deduct this tax at the source, or whether, even if the tax cannot lawfully be deducted at the source, the plaintiff is nevertheless liable for the tax, does not affect its quantum (Jordan v. Limmer & Trinidad Lake Asphalt Co. Ltd.[21] ). But I was asked by Mr. Mason to deal with the only contention raised against its validity, that is that the Wheat Tax Act 1946 is invalid because it infringes s. 55 of the Constitution. This section provides, so far as material, that laws imposing taxation shall deal only with the imposition of taxation, and that any provision therein dealing with any other matter shall be of no effect. It also provides that laws imposing taxation shall deal with one subject of taxation only. The Wheat Tax Act is a law imposing taxation, but it is in my opinion an Act which deals only with the imposition of one subject of taxation and with provisions incidental and ancillary to the assessment of the tax. It has recently been held by this Court in Cadbury-Fry-Pascall Pty. Ltd. v. Federal Commissioner of Taxation[22] that such provisions do not infringe s. 55. In my opinion the whole of the Act is valid. Even if the incidental provisions infringe s. 55, this would not invalidate the taxing provisions. But the Wheat Tax Act 1946 and the Wheat Export Charge Act 1946 provide for taxation in the two alternatives of a tax on wheat acquired and on wheat not acquired by the Commonwealth, in each case for export, so that in estimating the amount of compensation to which the plaintiff would be entitled under reg. 14 and comparing this amount with that which it will receive under reg. 19, I think that all questions of tax should perhaps be left out of account, and a comparison made between the two sums of £4,740 and £4,925. This comparison shows that the plaintiff will receive under reg. 19 a slightly larger sum than that to which it would be entitled upon an assessment under reg. 14, so that the action fails.
It is therefore unnecessary to consider the defence that, by accepting the first and second advances, the plaintiff must be taken to have elected to accept compensation under reg. 19 in lieu of exercising his right to sue for compensation under reg. 14.
But I think that I should add that the statement of claim contains a claim for interest. The Wheat Acquisition Regulations do not authorize the Court to award interest. Neither do they contain any provision purporting to prohibit the Court from awarding interest. The present views of the Court as a whole upon the question whether just terms require that the Court should have a discretion to award interest where there is no delay in payment of compensation are summarized by the Chief Justice in Grace Bros. Pty. Ltd. v. The Commonwealth[23] . It is apparent from this summary that the only view for which there is at present a majority is the view that the Court, in the absence of any provision in the regulations, can award interest where the contract would have been specifically enforceable if the property had been acquired not by compulsion but voluntarily, and the Court of Equity could have awarded interest on equitable principles. A voluntary contract for the sale of wheat would not be so enforceable so that I have no power to award interest in this action. However, even if I had the power, I do not think that this would be a proper case in which to award interest. The plaintiff is entitled to slightly less than 6s. per bushel for his wheat after deducting all expenses of realization and taxation, and of this amount it received an immediate advance of 4s. 1d. per bushel and either received or became entitled to but would not accept subsequent advances at reasonable intervals leaving about 1½d. per bushel still unpaid, and I am not satisfied that the plaintiff could have converted its wheat into money on an ordinary market more speedily than the Board has realized the whole crop and distributed the net proceeds.
As this case may go further, I think that I should also add that I accept all the witnesses as honest and reliable witnesses. In particular I was very impressed with the fair and frank manner in which Mr. Perrett, the General Manager of the Board, gave his evidence. But it is not a case in which there is any real conflict on the facts. The difficulty lies in their application.
For these reasons I give judgment for the defendants with costs.
Appeal dismissed with costs.
Solicitors for the appellant, J. W. Maund & Kelynack.
Solicitor for the respondents, George A. Watson, Acting Crown Solicitor for the Commonwealth.
H C of A
2 July 1947
Williams J.
Barwick K.C. and Macfarlan, for the plaintiff.
Mason K.C., A. R. Taylor K.C., P. D. Phillips K.C. and R. Else Mitchell, for the defendants.
July 2
Williams J
. delivered the following written judgment:—The plaintiff is a company incorporated according to the laws of New South Wales which owns a farm at Nelungaloo in the county of Ashburnham in the State of New South Wales on which it grows wheat. It was the holder of a grower's licence under the National Security (Wheat Industry Stabilization) Regulations for the crop of wheat to be produced in the year 1945-1946. The defendant, the Australian Wheat Board, is a body which is incorporated by the National Security (Wheat Acquisition) Regulations. The crop grown by the plaintiff pursuant to the licence was delivered to the Australian Wheat Board in accordance with these regulations partly at Nelungaloo and partly at Gunningbland in the months of November and December 1945 and January 1946. It consisted of 3786.20 bushels of f.a.q. wheat delivered to the silos, and 10498.50 bushels of bagged f.a.q. wheat delivered to the sidings at these places.
The plaintiff claims the sum of £6,559 11s. 4d. being the sum of £7,095 5s. 1d. at the rate of nine shillings and nine pence per bushel for bulk wheat, and ten shillings per bushel for bagged wheat less rail and handling charges at nine pence per bushel, amounting to £539 13s. 9d., either as compensation for the acquisition of the wheat by the Commonwealth, or, if the wheat was not validly acquired, as damages for the conversion of the wheat by the Australian Wheat Board as the agents of the Commonwealth. The plaintiff admits the receipt of advances under reg. 28 of the National Security (Wheat Acquisition) Regulations amounting to £3,441 10s. 1d., so that the balance claimed is £3,118 1s. 3d. The statement of claim contains a further count claiming the same sum from the Commonwealth as the fair market value of the wheat sold by the plaintiff to the Commonwealth, but no evidence was offered in support of this count and it was not pressed.
The Commonwealth purported to acquire the wheat pursuant to an order published on 16th November 1939 made by the then Minister of State for Commerce under the authority of reg. 14 of the Wheat Acquisition Regulations. The order, the full text of which appears in the statement of claim, related to wheat which had already been harvested and wheat to be harvested in the future. In this action I am only concerned with par. (b) of the order by which, with certain immaterial exceptions, the Commonwealth purported to acquire all wheat which is harvested in Australia on or after the date of the publication of the order in the Gazette. The plaintiff claims that the taking of its wheat of the 1945-1946 crop was tortious, because this paragraph of the order was not authorized by reg. 14. The plaintiff commenced its action on 24th July 1946. The statement of claim was filed on 9th September 1946. The Wheat Acquisition Regulations were made under the authority of the National Security Act 1939. The National Security Act 1946 provided for the termination of the principal Act on 31st December 1946, so that, apart from further legislation, the Wheat Acquisition Regulations would have expired on that date. But by the Defence (Transitional Provisions) Act 1946, these regulations were continued in force until 31 December 1947. Further, the Wheat Industry Stabilization Act 1946, assented to on 9th August 1946 (as amended by the Wheat Industry Stabilization Act (No. 2) 1946, assented to on 14th December 1946) provides in s. 11 that, subject to this Act, the National Security (Wheat Acquisition) Regulations shall, by force of this Act, insofar as they relate to wheat harvested in any season up to and inclusive of the 1946-1947 season, continue in force until such date as is fixed by proclamation, and shall, during such continuance, have the force of law. But s. 2 of the principal Act provides that the several sections of the Act shall commence on such dates as are respectively fixed by proclamation and I was not referred to any proclamation of this section. Section 2 however, of the amending Act provides that it shall come into operation on the day on which it receives the Royal Assent, and s. 11 of this Act provides that:—"The order made by the Minister of State for Commerce under regulation fourteen of the National Security (Wheat Acquisition) Regulations and published in the Gazette on the sixteenth day of November, One thousand nine hundred and thirty-nine, shall be deemed to be, and at all times to have been, fully authorized by that regulation, and shall have, and be deemed to have had, full force and effect according to its tenor in respect of wheat harvested in any wheat season up to and including the 1946-1947 season."
The plaintiff contends that the relevant portion of the order of 16th November 1939 was not authorized by reg. 14 of the Wheat Acquisition Regulations, and that, if the order was not so authorized, s. 11 of the Wheat Industry Stabilization Act (No. 2) 1946 was not effective to cure the defect. The plaintiff claims the same amount of damages for tort as it claims for compensation, but contends that it is necessary to decide whether the taking of the wheat was tortious or not because, if the acquisition was lawful, the plaintiff is liable to be taxed under the Wheat Tax Act 1946 (if valid), whereas if the taking was unlawful, the plaintiff would escape this tax (at least until such time as an equivalent tax was substituted for it).
I think that it is convenient to dispose of these contentions at this stage. In my opinion, they both fail. Regulation 14 of the Wheat Acquisition Regulations provides that:—"For securing the public safety and the defence of the Commonwealth and the Territories of the Commonwealth, for the efficient prosecution of the war, and for maintaining supplies and services essential to the life of the community, the Minister may, from time to time, by order published in the Gazette, make provision for the acquisition by the Commonwealth of any wheat described in the order, and that wheat shall, by force of and in accordance with the provisions of the order become the absolute property of the Commonwealth, freed from all mortgages, charges, liens, pledges, interests and trusts affecting that wheat, and the rights and interests of every person in that wheat (including any rights or interests arising in respect of any moneys advanced in respect of that wheat) are hereby converted into claims for compensation."
Regulation 15 of these regulations provides that:—"All persons having wheat acquired by the Commonwealth in their possession control or disposal on the date of the publication of an order describing that wheat shall, within fourteen days of that publication, furnish to the Board a return in accordance with Form A in the Schedule to these Regulations."
I agree with the submission that reg. 15 can only apply to wheat in existence at the date of the publication of an order of acquisition made under reg. 14. But I do not agree that, as a consequence, reg. 14 means that the Minister is only authorized to make orders acquiring wheat already in existence. Wheat of any particular season is harvested in different parts of Australia in different months, so that, if this is the true meaning of reg. 14, the Minister in each season would have to make a number of successive orders or wait until the whole of the wheat had been harvested. Regulation 14 authorizes the Minister to make orders for acquisition from time to time so that he is authorized to make a number of orders. It also authorizes the Minister to acquire any wheat described in the order thus enabling him to acquire wheat by a general or specific description (Victorian Chamber of Manufactures v. The Commonwealth[24] ). There is nothing in the regulation to limit the authority of the Minister to making orders acquiring wheat already in existence. In my opinion, the regulation is wide enough to authorize him to make an order acquiring all or any specific wheat already harvested, or all or any specific wheat to be harvested in the future. If the order relates to wheat of a future harvest, reg. 15 would not be applicable. But the quantity of wheat to be harvested in the future is no doubt capable of expert estimation, and the delivery to the Commonwealth of the wheat when actually harvested is amply safeguarded by the provisions of regs. 16, 17 and 18.
Assuming however that this construction of reg. 14 is wrong, I am of opinion that the original invalidity of the order was cured by s. 11 of the Wheat Industry Stabilization Act (No. 2) 1946. It was contended that this section infringes the judicial power because it does not amend the law prospectively but attempts to prescribe the construction to be placed upon an existing law by the court and the determination of the meaning of a statute is of the essence of the judicial power. The result of this contention, if sound, would be that the Commonwealth Parliament has no power to pass a declaratory statute which only has a retrospective operation. I cannot agree with this contention. It was within the ambit of the defence power for the Commonwealth Parliament, subject to complying with s. 51 (xxxi.) of the Constitution, to acquire all wheat harvested in Australia during hostilities or their aftermath as a means of prosecuting and winding up the war. The order of 16th November 1939 was made to give effect to this legislative purpose, and to authorize the Commonwealth lawfully to acquire the wheat of the 1939-1940 harvest and subsequent harvests. Later it was contended that reg. 14 was not wide enough to authorize the order under which the Commonwealth believed that it was authorized to act. It is trite law that the powers conferred upon the Commonwealth Parliament by s. 51 of the Constitution are plenary powers of legislation as large and of the same nature as those of the Imperial Parliament itself (R. v. Burah[25] ).
The plenary nature of these powers includes the power to legislate retrospectively as well as prospectively (Millner v. Raith[26] ). Some limitation is placed upon the power to legislate retrospectively by s. 48 of the Acts Interpretation Act 1901-1941 where the legislation is by regulation. But s. 11 of the Wheat Industry Stabilization Act (No. 2) 1946 is part of a statute of the Commonwealth Parliament and is therefore not subject to s. 48. Possibly it would have been preferable to have amended reg. 14 by inserting the necessary words to make it clear that the Minister was authorized ab initio to make the order of 16th November 1939. But this is in substance the effect of the first limb of the section, and in case this limb fails, the second limb gives the language of the order statutory force and effect and makes this force and effect retrospective to 16th November 1939.
It was also contended that the operation of s. 11 is to divest a wheat grower of a vested right of action in tort against the Commonwealth, and that the section is not a valid exercise of the defence power because legislation passed at the end of the year 1946 for the protection of the Commonwealth against rights of action which had already accrued could have no connection with the defence of the Commonwealth. But it was decided in Werrin v. The Commonwealth[27] that the Commonwealth Parliament can exercise legislative control over such causes of action. The only difference between Werrin's Case[28] and the present case is that the Commonwealth Parliament was there legislating under the taxation power, which is a power with a constant ambit, whereas the ambit of the defence power fluctuates between a very wide ambit during hostilities, and a comparatively narrow ambit in peacetime. Section 11 was enacted on 14th December 1946. In several recent judgments of this Court it has been pointed out that the contraction of the ambit of the defence power after hostilities is a gradual process. One of the most serious consequences of the recent hostilities is an acute shortage of food in many parts of the world. Wheat is the most important ingredient in bread, which is one of the staple foods, so that the ambit of the defence power in relation to the acquisition of wheat was still very wide at the end of 1946. But in any event, I think that the Commonwealth Parliament is authorized under the defence power at any future time to legislate retrospectively with respect to past occurrences where the ambit of the power would have been wide enough at the time of such occurrences to enable similar legislation to have been then passed having a prospective operation. Otherwise the Commonwealth Parliament, after the cessation of hostilities, could not pass an ordinary Indemnity Act indemnifying its subjects against the consequences of bona-fide acts unlawfully done in the prosecution of the war.
For these reasons I am of opinion that the acquisition of the plaintiff's wheat by the Commonwealth was lawful, and its only cause of action is a claim for compensation under the Wheat Acquisition Regulations. Regulation 14 provides that the property of the plaintiff in its wheat is converted into a claim for compensation. Regulation 19 provides a method of determining the amount of compensation. Regulations 14 and 19 give similar rights to compensation to those conferred by regs. 12 and 17 of the National Security (Apple and Pear Acquisition) Regulations which were construed by this Court in Andrews v. Howell[29] and Australian Apple and Pear Marketing Board v. Tonking[30] [31] . The present action is to enforce a right of compensation conferred upon the plaintiff by reg. 14 similar to the right of action conferred upon the plaintiff in Tonking's Case[32] by reg. 12. The Commonwealth is a defendant to the action so that this Court has original jurisdiction under s. 75 (iii.) of the Constitution. Section 51 (xxxi.) of the Constitution provides that the Commonwealth Parliament may make laws with respect to the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws. This placitum does not of itself give a right of action for compensation. But it requires that when a law of the Commonwealth provides for the acquisition of property it must also provide for just compensation, otherwise the acquisition will be unlawful. The provisions of each law must be judged on their merits. The placitum does not mean that these provisions must necessarily comply in every respect with the principles of the common law relating to the assessment of compensation for the compulsory acquisition of property. But reg. 14 of the Wheat Acquisition Regulations simply converts the interest of the grower in the wheat into a claim for compensation. It does not seek to alter the common law principles in any respect. These principles are therefore applicable to the present action.
The right to compensation arises at the moment of acquisition. If the property acquired is an ordinary commodity which is being bought and sold in the market: "The value of any such article at any particular time can readily be ascertained by the prices being obtained for similar articles in the market" (Vyricherla Narayana Gajapatiraju v. Revenue Divisional Officer, Vizagapatam[33] ). Australian wheat is an ordinary commodity of trade and commerce which before the outbreak of war was being bought and sold in the market for local use and for export. The price obtainable was usually the same whether the wheat was bought for local use or for export, except where the export market was firm and rising, in which case the local merchants often had to pay up to a penny a bushel more than the export price. Since the outbreak of war the Commonwealth has acquired all the Australian wheat under the provisions of the Wheat Acquisition Regulations, and disposed of the whole crop through the Australian Wheat Board. The policy of the Board has been to sell locally that portion of each crop (usually about half) required for home consumption and to sell the balance for export through its London agents. In November and December 1945 and January 1946, therefore, when the plaintiff's wheat of the 1945-1946 season was acquired, there was no ordinary Australian market for the sale of wheat either for local use or for export. Certain records were produced on subpoena duces tecum from the New South Wales Department of Agriculture which purported to give the prices quoted on the English market at the selling centre in London for Australian wheat f.o.b. Australian ports for the period commencing on 2nd January 1942 and ending on 31st December 1946. The first and fifth columns of these records were admitted by agreement of the parties, subject to relevance, as evidence of their contents. At first I was under the impression that these were quotations of buyers in London of the prices at which they were prepared to purchase Australian wheat. But the Australian Wheat Board were the only sellers of Australian wheat for export during this period, and it later appeared that these figures were simply quotations of the prices at which the Board from time to time entered into contracts for the sale of Australian wheat. If they had been quotations of ordinary buyers, the question would have arisen whether they were evidence of the market value of Australian wheat.
It has been held in this Court in the case of land that the only admissible evidence of collateral facts affecting value is that of concluded contracts (McDonald v. Deputy Federal Commissioner of Land Tax (N.S.W.)[34] ). But in England, in the case of The Cygnus reported in Roscoe, The Measure of Damages in Actions of Maritime Collisions, 3rd ed. (1929), p. 154, Gorell Barnes J. admitted and acted upon evidence of offers to purchase in a collision case. It would seem that evidence of offers is admitted in England. For instance, in Waters v. Thorn[35] Lord Romilly said:—"The test to which this Court looks with the greatest confidence, viz., the price actually bid at a sale by auction, or the offer of a person bona fide desirous to become a purchaser by private contract is wanting in this case." Further the Imperial Assessment of Compensation Act 1919, s. 2 (3), provides that any bona-fide offer for the purchase of land made before the passing of the Act which may be brought to the notice of the arbitrator shall be taken into consideration. In Percival v. Peterborough Corporation[36] the Earl of Reading C.J., said: "It" (an offer) "is, I suppose, some evidence of what was then thought to be the value of the land." But I need not pursue the point because I think that it is clear that there was not an ordinary market for the sale of Australian wheat, either for local use or for export, at the date of the acquisition of the plaintiff's wheat.
In the absence of a market, the value of the property taken must be ascertained by estimating the sum which a reasonably willing vendor would have been prepared to accept and a reasonably willing purchaser would have been prepared to pay for the property at the date of the acquisition. The value of the property is its value to the seller, so that it has been said that the most practical form in which the matter can be put is that the plaintiff is entitled to receive the sum which a prudent purchaser would have been willing to give for the property sooner than fail to obtain it (Pastoral Finance Association Ltd. v. The Minister[37] ).
The plaintiff admits that the prices at which the Board sold the wheat of the 1945-1946 crop for export were the best prices that could be obtained, so that, in estimating this sum, the prices which the Board was obtaining at the relevant period f.o.b. Australian ports for the wheat which it was selling for export are evidence of what the value of Australian wheat would have been under the ordinary law of supply and demand in a free market at that period. These prices indicate that, if there had been such a market at the date of acquisition, the plaintiff would have been able to sell its wheat at from 9s. 3d. to 9s. 9d. for bulk wheat and from 9s. 6d. to 10s. for bagged wheat. But I think that it is quite impossible to assume that if each harvest had not been acquired by the Commonwealth, the Commonwealth would have allowed the price of wheat for local use to rise to such an extent that the price of bread would have been affected or that the Commonwealth would have allowed any wheat to be sold for export except such wheat as was in excess of local requirements. As I have already said, about half the wheat of each crop was required for this purpose. I agree with Mr. Barwick that the amount of compensation should be the same whether the hypothetical purchaser should be considered to include all the possible purchasers who would have existed if there had been an ordinary market, or whether the circumstances were such that the Australian Wheat Board should be considered to be the only possible purchaser. I think that the proper approach to the problem is to assume that the Board, which was in possession of all the facilities for handling the wheat, was the only possible purchaser, but that the growers as reasonably willing vendors could only be expected voluntarily to sell their wheat to the Board at the same price as they would have obtained if there had been an ordinary market (Vyricherla's Case[38] ; Geita Sebea v. Territory of Papua[39] ). But in estimating the price which the growers could reasonably expect to receive in such a market, all the probable circumstances must be taken into account.
In the first place, it is necessary to consider the legislation of the Parliaments of the Commonwealth and of the States passed to give effect to the conference referred to in the recitals to the Commonwealth Wheat Industry Assistance Act 1938. This legislation was summarized and explained in the judgments of this Court and of the Privy Council in Deputy Federal Commissioner of Taxation (N.S.W.) v. W. R. Moran Pty. Ltd.[40] and it is unnecessary to cover the same ground again. The purpose of this legislation was to ensure to wheat growers a payable price for wheat, and at the same time, to prevent speculation in flour and stabilize the price of bread. It is apparent that a price for wheat f.o.r. Australian ports of 5s. 2d. per bushel for bagged wheat was considered to be a payable price, and to be a figure at which the price of flour and bread for local use could be fixed at a reasonable sum. To ensure to wheat growers a payable price for wheat when the export value of wheat f.o.r. Australian ports was below 5s. 2d., taxes were imposed upon wheat manufactured into flour and on stocks of flour in existence in Australia by the Flour Tax Act 1938; and the Flour Tax (Stocks) Act 1938; and upon flour imported into Australia by the Flour Tax (Imports and Exports) Act 1938. The formula for the tax was as follows: "The rate of tax, not in any case exceeding £7 10s. per ton of flour, shall be at such rate per ton of flour as the Minister, from time to time, and in accordance with a recommendation by the Committee, declares, by notice published in the Gazette, to be the amount by which the price per ton of flour based upon the price of wheat per bushel free on rails at Williamstown, in the State of Victoria at the time of the recommendation by the Committee, is less than what, in the opinion of the Committee, the price of flour would be if the price of wheat per bushel free on rails at Williamstown were 5s. 2d."
To meet the case when the value of wheat f.o.r. Australian ports rose above 5s. 2d. per bushel, provision was made by the Wheat Tax Act 1938 for a tax upon wheat grown in Australia, and, on and after a date to be fixed by proclamation, sold to a wheat merchant; and by the Flour Tax (Imports and Exports) Act 1938, s. 4 (b) for a tax upon all wheat exported from Australia, on or after a date to be fixed by proclamation, not being wheat upon which tax was imposed by the Wheat Tax Act 1938. The formula for these taxes was as follows:—"The rate of tax, not in any case exceeding one shilling per bushel of wheat shall be at such rate per bushel of wheat as the Minister, from time to time, and in accordance with a recommendation by the Committee, declares, by notice published in the Gazette, to be the amount which bears the same proportion to the excess of the price of a bushel of wheat free on rails at Williamstown in the State of Victoria, at the time of the recommendation by the Committee over five shillings and twopence as the quantity of wheat which, in the opinion of the Committee, will be consumed in Australia (whether as wheat or as products derived from wheat) during the twelve months following the preceding first day of October bears to the total crop which, in the opinion of the Committee, will be harvested during that period." The Act relating to the imposition assessment and collection of all these taxes was the Flour Tax (Wheat Industry Assistance) Assessment Act 1938. Section 12 (2) of this Act provided that the tax upon wheat exported from Australia on and after a date to be fixed by proclamation should be paid by the exporter of the wheat. Section 13 (2) provided that the tax imposed by the Wheat Tax Act 1938 should be paid by the wheat merchant to whom the wheat was sold. The Wheat Industry Assistance Act 1938 provided for the destination of the proceeds of these taxes. Section 5 provided for the opening of a fund to be known as the Wheat Industry Stabilization Fund, into which there should be paid all moneys from time to time collected under the Flour Tax (Wheat Industry Assistance) Assessment Act 1938. Section 6 (1) provided that, subject to this Act, the moneys standing to the credit of the fund should be applied in making payments to the States as grants of financial assistance. Section 6 (3) provided that there should be kept in the fund an account to be known as the Wheat Industry Special Account to which there should be credited out of the receipts of the fund in the first year the sum of £500,000, and in the following four years such amounts not exceeding this sum as the Minister determined. Section 6 (4) provided that there should be kept in the fund an account to be known as the Wheat Tax Account, to which should be credited out of the receipts of the fund all moneys collected under the Flour Tax (Wheat Industry Assistance) Assessment Act 1938 as a tax upon wheat exported from Australia or upon wheat produced and sold in Australia. Section 7 provided for the allocation from the Wheat Industry Special Account between the States of New South Wales, Victoria, South Australia and Western Australia. The amounts paid in the first year were to be applied in the provision of relief to distressed wheat growers and in the subsequent years towards meeting the cost of transferring wheat farmers from land unsuitable for the economic production of wheat, or to arranging for such land to be used for other purposes. Section 8 provided for payments from the Wheat Tax Account to the States by way of financial assistance upon condition that these amounts were distributed to the flour millers in these States in accordance with such methods of distribution as was decided by the Minister after advice from the State Minister. Section 10 provided that where the Governor-General was satisfied, inter alia, that (b) a State had not taken steps adequately to protect consumers of flour and other wheat products against excessive prices in respect of those commodities, the Governor-General might, by notice in the Gazette, suspend payments to that State under the Act during such periods as, in his opinion, (d) those consumers were not protected against such excessive prices. At the same time as this Commonwealth legislation, the States passed legislation for the purpose of fixing the minimum and maximum prices of flour and the prices of bread. This legislation took the form of authorizing the Governors of the States to make proclamations for this purpose. Pursuant to this authority a number of proclamations were made in the various States.
It is clear from this legislation that in 1938 the Governments of the Commonwealth and the States took the broad view that while the export value of wheat was below 5s. 2d. per bushel f.o.r. Australian ports, the Australian public as consumers of bread should be taxed indirectly to provide a subsidy for wheat growers; but that, if and when the export value of wheat exceeded 5s. 2d., the price which the wheat growers would otherwise have received for their wheat should be reduced by the wheat merchant or exporter having to pay a tax not exceeding 1s. per bushel on the wheat which he purchased, and that the proceeds of this tax should be used as a subsidy to keep down the local price of flour.
On 21st October 1940 a declaration was made under the Flour Tax Act 1938 and the Flour Tax (Imports and Exports) Act 1938 by the Minister that the amount by which the price per ton of flour based upon the price of wheat per bushel free on rails at Williamstown in the State of Victoria on that date was less than what, in the opinion of the Committee, the price of flour would be if the price of wheat were five shillings and twopence, was two pounds eight shillings and tenpence. It is common ground that the price per bushel of bulk wheat is threepence less than the price per bushel of bagged wheat. As I understand the evidence, the declaration was made on the basis that the export value of wheat f.o.r. Australian ports was three shillings and elevenpence farthing per bushel for bulk wheat. No subsequent declaration was made under these Acts although there was a gradual rise in the export value of wheat. This was because all wheat was being delivered to and sold by the Australian Wheat Board in accordance with the Wheat Acquisition Regulations, and the Board adopted the policy of keeping the price of wheat sold for flour for local consumption pegged at the arbitrary price of three and elevenpence farthing on a bulk basis so that the flour tax would remain constant at £2 8s. 10d. per ton, despite the fact that during and after the first half of 1944, the export value of Australian wheat rose above 4s. 11d. per bushel f.o.r. Australian ports for bulk wheat. In consequence no proclamations were made bringing the Wheat Tax Act 1938 or the Flour Tax (Imports and Exports) Act, s. 4 (b), into operation. But provision was made by the Wheat Industry (War-time Control) Act 1939, as amended, to divert to the Board the payments of flour tax which would otherwise have been made to the States for distribution among the wheat growers, so that these moneys could be added to the funds available for the payment of compensation to the growers under reg. 19 of the Wheat Acquisition Regulations.
At the date of the acquisition of the plaintiff's wheat of the 1945-1946 crop: (1) The export of flour without a licence had been prohibited by the Export (Flour) Regulations as from 3rd October 1940. (2) The price of bread was fixed in the various States by orders made under the National Security (Prices) Regulations, or proclamations made under the State legislation already mentioned, which would not allow flour millers to pay more than 3s. 11¼d. per bushel whilst the flour tax remained at £2 8s. 10d. per ton, or to pay more than 4s. 11d. per bushel for bulk wheat if there was no tax. (3) There was in force Prices Regulation Order No. 1015, known as the ceiling prices order, which fixed the price of all goods and services as those prevailing on 13th April 1943. (4) The export value of Australian wheat f.o.b. Australian ports was about 9s. 6d. per bushel for bulk wheat (the f.o.b. price is approximately one-third of a penny less than the f.o.r. price); so that if the price of wheat for local use was allowed to rise to this value, it was probable that the Wheat Tax Act and the Flour Tax (Imports and Exports) Act, s. 4 (b) would be proclaimed. The tax under these Acts, if half of the crop was exported, would reach the maximum rate of 1s. per bushel when the export price was 7s. 2d. (5) There was no prohibition of the export of wheat required for local use, but this was because no prohibition was necessary while the whole of the wheat was being disposed of by the Australian Wheat Board.
I agree with Mr. Barwick that the plaintiff should not be prejudiced by the artificial pegging of the price of wheat for manufacture into flour at 3s. 11¼d. so that the flour tax should remain constant at £2 8s. 10d. per ton, because the manifest intention of the Flour Tax Act was that this tax should disappear when the export value of wheat f.o.r. Williamstown reached 5s. 2d. per bushel. But I agree with Mr. Mason that in estimating the price which the plaintiff could reasonably have expected to receive for his wheat upon a voluntary sale, importance must be attached to the fact that the legislation of 1938 proceeded upon the basis that a price of 5s. 2d. per bushel f.o.r. Williamstown would give the wheat grower a fair return and allow flour to be manufactured and sold in Australia at a figure which would allow the price of bread to be fixed at a reasonable sum. I also agree with Mr. Mason that importance must be attached to the fact that at the date of acquisition there was a general system of price control operating under the National Security (Prices) Regulations to prevent the risk of inflation in Australia under war conditions, and that in particular it was essential to control the prices of such necessities of life as food, clothing, and shelter.
I must assess the compensation in as practical a manner as possible on such materials as are available to me. The whole potential value of a commodity like wheat to the owner lies in the price which he can reasonably expect to obtain on a sale soon after the crop has been harvested. The total harvest for 1945-1946 was 123 million bushels, and of that amount about one-half was required for local use. I think that it must be assumed that if this harvest had not been acquired by the Commonwealth, purchasers in an ordinary market could only have reasonably expected to be allowed to export half the wheat they purchased. I also think that it must be assumed that the maximum price fixed for wheat required for local consumption would not have been allowed to exceed 5s. 2d. per bushel for bagged wheat f.o.r. Australian ports. In April 1943, when the ceiling prices order came into force, the export value of bulk wheat f.o.b. Australian ports was about 4s. 3d. so that if there had been an ordinary market, the price of wheat for local use would have been about 4s. 3d. and this order would in the first instance, have pegged the price of wheat at this figure. My own view of the importance of price fixing in relation to the assessment of compensation is stated in Johnston Fear & Kingham & The Offset Printing Co. Pty. Ltd. v. The Commonwealth[41] . Since the price of wheat was kept fixed at 3s. 11¼d. by the Australian Wheat Board for administrative reasons and not to prevent inflation, I think that I should assume for the purpose of compensation that the maximum price for wheat for local use in an ordinary market under war conditions in 1945-1946 would have been that contemplated by the 1938 legislation, that is to say, 5s. 2d. per bushel f.o.r. Australian ports for bagged wheat.
On these assumptions the greatest sum which the plaintiff could reasonably expect a prudent purchaser to pay for its wheat at the date of acquisition sooner than fail to obtain it would be as follows:— 5249 bushels of bagged wheat @ 5s. 2d. per bushell £1,356 0 0 5249 bushels of bagged wheat @ 9s. 9d. per bushell 2,559 0 0 1893 bushels of bulk wheat @ 4s. 11d. per bushell 465 7 0 1893 bushels of bulk wheat @ 9s.6d. per bushell 899 0 0 £5,279 7 0
I think that the estimate made by the plaintiff of 9d. per bushel for rail and handling charges amounting to £539 13s. 9d. may be slightly on the low side but that it can be accepted. Deducting this amount from the sum of £5,279 7s. leaves a balance of £4,740.
But I have not so far deducted any sum for taxation and it is reasonable to assume that if the export value of bagged wheat had been 9s. 9d. per bushel, the Flour Tax (Imports and Exports) Act, s. 4 (b) would have been proclaimed, and that the purchaser of wheat for export would have had to lower his price for the 7,132 bushels of wheat he purchased for export by 1s. per bushel, amounting to £357, and if this sum is deducted, the balance is reduced to £4,383.
I was referred by Mr. Mason to certain matters which occurred in 1946 after the date of acquisition: (1) On 22nd May 1946 regulations were made under the Customs Act 1901-1936 prohibiting the export of flour and wheat until the intending exporter produced to the Collector of Customs a covering approval issued by the Department of Commerce and Agriculture. (2) The Wheat Export Charge Act came into operation on 9th August 1946. This Act was amended by the Wheat Export Charge Act (No. 2) 1946 which was assented to on 14th December 1946 but was deemed by s. 2 to have come into operation on 9th August 1946. Section 4 (1) (aa) provides that a charge should be imposed and levied and paid on all wheat harvested on or after 1st October 1945 and before 1st October 1947 and exported from the Commonwealth by any person other than the Australian Wheat Board on or after 1st December 1945. Section 4 (2) provides that subject to a lower rate being prescribed by the regulations the rate of the charge per bushel of wheat exported by any person other than the Board should be fifty per cent of the amount by which the price per bushel, at the date of export, for export of fair average quality bagged wheat free on rail at the port of export, as declared by the Board, or such lower rate as is prescribed ... exceeds 5s. 2d. (3) The Wheat Tax Act 1946 was assented to on 14th December 1946, but s. 2 provides that the Act should be deemed to have come into operation on 9th August 1946. Section 3 defines wheat to mean wheat harvested on or after 1st October 1945 and before 1st October 1947. Section 4 provides that a tax should be imposed and levied and paid in respect of all wheat which has been acquired or is acquired by the Commonwealth, and that the tax shall be payable by the grower of the wheat. Section 5 (2) provides that the total amount of the tax to be levied in respect of wheat of a season shall be ascertained by multiplying an amount equal to fifty per cent or such lower percentage as is prescribed, of the amount by which the average price per bushel f.o.r. at the ports of export for f.a.q. bagged wheat of all the wheat of that season exported by the Board, or such lower price as is prescribed, exceeds 5s. 2d. by the total of the number of bushels of wheat of that season, and of the wheat equivalent ... of wheat products manufactured from wheat of that season, exported by the Board or sold by the Board for export or for manufacture into wheat products for export. Section 5 (3) provides that the rate of the tax in respect of wheat of a season shall be an amount per bushel of wheat arrived at by dividing the total amount of tax to be levied in respect of wheat of that season ... by the total number of bushels of wheat of that season in respect of which the tax is imposed. Section 5 (5) provides for the Minister notifying in the Gazette a provisional rate of tax. Section 6 (1) provides that the Commonwealth or the Board may deduct any amount of tax payable by any grower from any moneys payable by the Commonwealth or the Board to that grower on any account whatsoever, and any amount so deducted shall be applied in payment, or part payment, of the tax so payable. By notification published in the Commonwealth of Australia Gazette on 17th January 1947, the Minister notified that the provisional rate of tax in respect of wheat of the season commencing on 1st October 1945 was one shilling one and one-eighth pence per bushel. (4) Section 18 of the Wheat Industry Stabilization Act 1946 which contemplates that a price of 5s. 2d. f.o.r. Australian ports for bagged wheat is a fair return to the wheat grower.
The question arises whether these subsequent matters should be taken into consideration in assessing the compensation under reg. 14. I venture to repeat what I said in Minister for the Army v. Parbury Henty & Co. Pty. Ltd.[42] :—"The right to compensation arises at the moment of acquisition ... The amount of compensation, being a matter of assessment, can, like damages, be calculated in the light of any subsequent facts to the extent to which they throw light upon the items of value which can properly be taken into account in the calculation, having regard to the circumstances existing at the date of acquisition." In Willis v. The Commonwealth[43] Dixon J. has collected a number of recent cases showing the growing inclination of the courts to prefer subsequent facts to prophecies where such facts are available at the hearing. It may be that, speaking generally, Acts of Parliament passed subsequently to the date of acquisition would not be relevant, but in the present case the existing legislation so clearly indicated that a tax would be placed on the export of wheat when the price exceeded 5s. 2d. per bushel that in my opinion, it is permissible to take the Wheat Export Charge Act into account. Under this Act a purchaser of the plaintiff's wheat would have had to reduce his price by at least 2s., amounting to £714 on the 7,132 bushels he purchased for export thereby reducing the previous balance of £4,383 to £4,026.
The addition of the sums which the plaintiff has already been paid and will receive under reg. 19, apart from taxation, is £4,925 4s. From this sum the Board proposes to deduct £805 18s. 2d. for tax at the source under the Wheat Tax Act 1946 leaving a balance of £4,119 5s. 11d. Strictly speaking the question whether the Board is lawfully entitled to deduct this tax at the source, or whether, even if the tax cannot lawfully be deducted at the source, the plaintiff is nevertheless liable for the tax, does not affect its quantum (Jordan v. Limmer & Trinidad Lake Asphalt Co. Ltd.[44] ). But I was asked by Mr. Mason to deal with the only contention raised against its validity, that is that the Wheat Tax Act 1946 is invalid because it infringes s. 55 of the Constitution. This section provides, so far as material, that laws imposing taxation shall deal only with the imposition of taxation, and that any provision therein dealing with any other matter shall be of no effect. It also provides that laws imposing taxation shall deal with one subject of taxation only. The Wheat Tax Act is a law imposing taxation, but it is in my opinion an Act which deals only with the imposition of one subject of taxation and with provisions incidental and ancillary to the assessment of the tax. It has recently been held by this Court in Cadbury-Fry-Pascall Pty. Ltd. v. Federal Commissioner of Taxation[45] that such provisions do not infringe s. 55. In my opinion the whole of the Act is valid. Even if the incidental provisions infringe s. 55, this would not invalidate the taxing provisions. But the Wheat Tax Act 1946 and the Wheat Export Charge Act 1946 provide for taxation in the two alternatives of a tax on wheat acquired and on wheat not acquired by the Commonwealth, in each case for export, so that in estimating the amount of compensation to which the plaintiff would be entitled under reg. 14 and comparing this amount with that which it will receive under reg. 19, I think that all questions of tax should perhaps be left out of account, and a comparison made between the two sums of £4,740 and £4,925. This comparison shows that the plaintiff will receive under reg. 19 a slightly larger sum than that to which it would be entitled upon an assessment under reg. 14, so that the action fails.
It is therefore unnecessary to consider the defence that, by accepting the first and second advances, the plaintiff must be taken to have elected to accept compensation under reg. 19 in lieu of exercising his right to sue for compensation under reg. 14.
But I think that I should add that the statement of claim contains a claim for interest. The Wheat Acquisition Regulations do not authorize the Court to award interest. Neither do they contain any provision purporting to prohibit the Court from awarding interest. The present views of the Court as a whole upon the question whether just terms require that the Court should have a discretion to award interest where there is no delay in payment of compensation are summarized by the Chief Justice in Grace Bros. Pty. Ltd. v. The Commonwealth[46] . It is apparent from this summary that the only view for which there is at present a majority is the view that the Court, in the absence of any provision in the regulations, can award interest where the contract would have been specifically enforceable if the property had been acquired not by compulsion but voluntarily, and the Court of Equity could have awarded interest on equitable principles. A voluntary contract for the sale of wheat would not be so enforceable so that I have no power to award interest in this action. However, even if I had the power, I do not think that this would be a proper case in which to award interest. The plaintiff is entitled to slightly less than 6s. per bushel for his wheat after deducting all expenses of realization and taxation, and of this amount it received an immediate advance of 4s. 1d. per bushel and either received or became entitled to but would not accept subsequent advances at reasonable intervals leaving about 1½d. per bushel still unpaid, and I am not satisfied that the plaintiff could have converted its wheat into money on an ordinary market more speedily than the Board has realized the whole crop and distributed the net proceeds.
As this case may go further, I think that I should also add that I accept all the witnesses as honest and reliable witnesses. In particular I was very impressed with the fair and frank manner in which Mr. Perrett, the General Manager of the Board, gave his evidence. But it is not a case in which there is any real conflict on the facts. The difficulty lies in their application.
For these reasons I give judgment for the defendants with costs.
Appeal dismissed with costs.
Solicitors for the appellant, J. W. Maund & Kelynack.
Solicitor for the respondents, George A. Watson, Acting Crown Solicitor for the Commonwealth.
1. [1943] HCA 19; (1943) 67 C.L.R. 335.
2. (1878) 3 App. Cas. 889, at p. 904.
3. [1942] HCA 21; (1942) 66 C.L.R. 1.
4. [1938] HCA 3; (1938) 59 C.L.R. 150.
5. [1938] HCA 3; (1938) 59 C.L.R. 150.
6. [1941] HCA 20; (1941) 65 C.L.R. 255.
7. [1942] HCA 37; (1942) 66 C.L.R. 77.
8. (1942) 66 C.L.R., at p. 89.
9. [1942] HCA 37; (1942) 66 C.L.R. 77.
10. (1939) A.C. 302, at p. 312.
11. [1915] HCA 54; (1915) 20 C.L.R. 231.
12. [1856] EngR 800; (1856) 22 Beav. 547, at p. 557 [52 E.R. 1219, at p. 1223].
13. (1921) 1 K.B. 414, at p. 421.
14. [1914] UKPC 77; (1914) A.C. 1083, at p. 1088.
15. (1939) A.C., at pp. 316, 317.
16. [1941] HCA 37; (1941) 67 C.L.R. 544.
17. [1939] HCA 27; (1939) 61 C.L.R. 735; (1940) A.C. 838; 63 C.L.R. 338.
18. [1943] HCA 18; (1943) 67 C.L.R. 314, at p. 334.
19. [1945] HCA 52; (1945) 70 C.L.R. 459, at p. 514.
20. [1946] HCA 22; (1946) 73 C.L.R. 105, at p. 116.
22. [1944] HCA 31; (1944) 70 C.L.R. 362.
23. [1946] HCA 11; (1946) 72 C.L.R. 269, at pp. 281, 282.
24. [1943] HCA 19; (1943) 67 C.L.R. 335.
25. (1878) 3 App. Cas. 889, at p. 904.
26. [1942] HCA 21; (1942) 66 C.L.R. 1.
27. [1938] HCA 3; (1938) 59 C.L.R. 150.
28. [1938] HCA 3; (1938) 59 C.L.R. 150.
29. [1941] HCA 20; (1941) 65 C.L.R. 255.
30. [1942] HCA 37; (1942) 66 C.L.R. 77.
31. (1942) 66 C.L.R., at p. 89.
32. [1942] HCA 37; (1942) 66 C.L.R. 77.
33. (1939) A.C. 302, at p. 312.
34. [1915] HCA 54; (1915) 20 C.L.R. 231.
35. [1856] EngR 800; (1856) 22 Beav. 547, at p. 557 [52 E.R. 1219, at p. 1223].
36. (1921) 1 K.B. 414, at p. 421.
37. [1914] UKPC 77; (1914) A.C. 1083, at p. 1088.
38. (1939) A.C., at pp. 316, 317.
39. [1941] HCA 37; (1941) 67 C.L.R. 544.
40. [1939] HCA 27; (1939) 61 C.L.R. 735; (1940) A.C. 838; 63 C.L.R. 338.
41. [1943] HCA 18; (1943) 67 C.L.R. 314, at p. 334.
42. [1945] HCA 52; (1945) 70 C.L.R. 459, at p. 514.
43. [1946] HCA 22; (1946) 73 C.L.R. 105, at p. 116.
45. [1944] HCA 31; (1944) 70 C.L.R. 362.
46. [1946] HCA 11; (1946) 72 C.L.R. 269, at pp. 281, 282.
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