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High Court of Australia |
THE QUEEN v. THE MEMBERS OF THE CENTRAL SUGAR CANE PRICES BOARD; Ex parte THE
MARYBOROUGH SUGAR FACTORY LTD. [1959] HCA 35; (1959)
101 CLR 246
Sugar Cane (Q.)
High Court of Australia
Dixon C.J.(1), Kitto(1), Taylor(2), Menzies(2), and Windeyer(1) JJ.
CATCHWORDS
Sugar Cane (Q.) - Central Board - Appeal thereto from local board - Powers of central board - Base prices - Variation of its own award - Finality and conclusiveness of award - Prohibition - The Regulation of Sugar Cane Prices Acts 1915 to 1954 (Q.), ss. 12,* 17 (a) (c),* 20 (6),* 21*.
HEARING
Sydney, 1959, April 23, 24, 29, 30; August 13. 13:8:1959DECISION
April 30.2. We grant special leave to appeal and we order that the appeal be treated as heard instanter. We allow the appeal and discharge the order of the Supreme Court and in lieu of such order we discharge the order nisi for prohibition. We shall deal with the question of costs when delivering our reasons. (at p249)
August 13.
The following written reasons for judgment were delivered:-decision in this case, and it remains only to state our reasons. (at p249)
DIXON C.J., KITTO and WINDEYER JJ. The Court has already announced its
2. The matter came before us as an application for special leave to appeal from an order of the Full Court of the Supreme Court of Queensland, whereby an order nisi was made absolute for the issue of a writ of prohibition directed to the members of the Central Sugar Cane Prices Board restraining them from proceeding further in a certain application pending before the board. (at p249)
3. The application had been initiated by a notice of motion intituled in the matter of an application under s. 21 of The Regulation of Sugar Cane Prices Acts 1915 to 1954, which sought the variation in certain respects of what was described as the Maryborough Central Board Award for season 1958. The Full Court, by a majority consisting of Philp and Stable JJ., Wanstall J. dissenting, held that the board had no power to deal with the application, because the purported award had no legal existence and there was nothing to vary. Before this Court, the decision was supported on that ground, and also on the ground that s. 21, although in terms it gives the central board a power to vary any award made by it, has no application to variations of the kind sought by the notice of motion. (at p249)
4. The purported award, which is dated 24th July 1958, appears at pp. 2386, 2389 of the Queensland Government Gazette of 4th August 1958. Expressed to take effect from 14th July 1958, and to remain in force until 30th April 1959, it purports to have been made by the central board on an appeal and cross-appeal (which will be referred to together as the appeal) against an award of the Maryborough Local Board. There is a local board - the full title is the Local Sugar Cane Prices Board - constituted under s. 5 for each sugar mill and such lands of cane-growers as are assigned to it, and the Maryborough Local Board is such a board. Each such board has the function, under s. 6 (1), of making an award in each year with respect to the lands and the mill for which it is constituted. The award is to determine the price or prices to be paid and accepted, by the owner or owners of the mill and the cane-growers respectively, for sugar-cane sold and taken delivery of by the mill-owners, and, in addition, it is to determine all matters relating to the supply of sugar-cane, the handling and treatment thereof by the mill-owners, and payment therefor. Subject only to appeal to the central board (and to certain adjustments which need not be mentioned here), an award of a local board has the effect and force of law from a date fixed by that board. This is provided by s. 11, which adds that an award shall not be in any manner liable to be challenged or disputed, and shall be binding on the mill-owners and cane-growers, and shall remain in force for such period not exceeding twelve months as the local board may decide, and after the expiration of that period shall continue in force, unless the central board otherwise order, until a new award has been made. (at p250)
5. Appeals to the central board against local board awards are provided for by s. 12, the leading provision of which is that an appeal shall lie to the central board against any award of a local board or any part thereof. An appeal must be brought either by an owner of a mill or by cane-growers bound by the award to a number which, if the total number of cane-growers supplying cane to the mill is less than sixty, is not less than one-third of that total, and in other cases is twenty. It must be commenced within twenty-one days after the publication of the award in the Gazette. The central board is to hear and determine the appeal, and its decision is to have the effect of an award under the Act. (at p250)
6. It was under this section that the central board was sitting when it purported to make its Maryborough award on 24th July 1958. The Maryborough Local Board had made an award which appears at pp. 810-813 of the Queensland Government Gazette of 13th May 1958, and amongst the topics on which it had thereby made provisions were (1) the prices to be paid by the Maryborough mill to its cane-growers for the sugar cane delivered by them, (2) the manner of dealing with or allowing for badly-topped or trashy cane, and (3) the weighing of cane. It is unnecessary to say anything as to the details of these provisions, except that the first of them laid down a scale of what are called in the Act base prices, from which the commencing figure is obtained in each case in which a price payable by the mill-owner has to be ascertained. The base prices set out in the scale varied according to the percentage of commercial cane sugar (commonly referred to as c.c.s.) in the cane delivered, that being a matter which a board is authorized, by s. 20 (1), to take into consideration in making an award. The document which initiated the Maryborough appeal was not in evidence before the Supreme Court of Queensland and is therefore not before us; but there was in evidence a copy, at pp. 2115-2125 of the Queensland Government Gazette of 24th July 1958, containing what are called the "judgments" delivered by the members of the central board on a number of appeals from local boards, including that from the Maryborough board, and it is apparent from this material that the appeal and cross-appeal from the Maryborough Local Board did not cover the whole award of that board but were confined to the three topics abovementioned. (at p251)
7. The decision of the central board was that the local board award should be amended as to the second and third of these topics, but that as to the first, namely price, there should be no amendment. The reasons given by the members dealt with two matters in relation to price. One was the scale of base prices. As to this it was decided that the figures should be adjusted to relate the scale to a lower price of sugar; but this did not make any difference in the amount which would be payable in a particular case. The other was the method by which the c.c.s. was to be ascertained for the purpose of applying the scale. In earlier years the c.c.s. had been determined by a process described as analysis of front roller juice. Recently, however, a regulation had been made under the Act, permitting the owners of suitably equipped mills to adopt a method known as mixed juice weighing or the juice scales method. This method the owners of the Maryborough mill, having the necessary equipment, desired to employ; and the board held that in view of the regulation it could not, or at least should not, include in its decision a provision forbidding them to do so. Anticipating that this might be the board's opinion, the cane-growers had made a submission which turned back to the scale of base prices. They argued that the scale fixed by the local board was likely to yield results less favourable to the growers when applied to the c.c.s. as determined by the new method than it would have yielded under the old method, and they asked that the scale should be increased to compensate for the loss they feared they would suffer. The board, however, declined to make any immediate alteration of the scale. It proposed nevertheless to retain power to vary the scale at a later stage, in case the growers' fears should be shown by experience to be well-founded. To this end, instead of making a decision containing only the alterations which it had decided to make to the local board award, the board followed a course which, we are told, has been common practice for several years: it announced that the local board award would be declared to be that of the central board; and it carried out the intention so expressed by publishing a completely new award of its own, repeating all the provisions of the local board award, with, of course, the alterations which had been determined upon. "That", the chairman remarked, "will enable any party to apply to this Board in case it should be thought that it can be established that the determination of c.c.s. by the juice scales method justifies some variation in the price of cane in the particular area". (at p252)
8. The mill-owners' representative on the board had his doubts. He said that he did not see that the Acts provided "for an appeal to vary the price of cane in the circumstances referred to by the chairman". Both he and the chairman, it seems clear, had in mind the provision for variation of central board awards which is contained in s. 21. That section is in the following terms: "Subject to this Act, the Central Board may rescind or vary any award, determination under subsection two of section six of this Act, decision, recommendation, direction, order, or other act made or done by it. But no award, determination under subsection two of section six of this Act, decision, or order shall be varied or re-opened except upon the application of any owner or cane-grower bound or affected thereby or claiming to be affected or aggrieved thereby". (Determinations under sub-s. (2) of s. 6 are determinations of "farm peaks", that is to say of the maximum quantity of sugarcane grown upon lands assigned to a mill, which may be sold or taken delivery of, or which should be taken delivery of, by the mill-owner from each cane-grower.) (at p252)
9. No similar power exists to vary an award of a local board, and no doubt it is for that reason that the practice has grown up of completely replacing local board awards by central board awards. As has been mentioned, the decision of the central board has, by the express provision of s. 12, the effect of an award under the Act. This means that it is an award within the power of variation conferred by s. 21, for "award" is defined by s. 3 to include, not only an actual award of the central board (as for example, an award which that board may make as a tribunal of first instance under s. 13), but also "any decision of the Central Board having the effect of an award under this Act". But when, in the present case, the central board resolved, in effect, to convert the local board's award with the alterations which had been decided upon into an award of the central board, it was proceeding upon two assumptions. One assumption was that, although the appeal which the board was determining was an appeal against certain parts only of the local board award, the central board had power to make an award of its own covering all the matters dealt with in the local board award whether the subject of appeal or not. The other assumption was that the power under s. 21 to vary central board awards extends, as of course it does prima facie, to varying the provisions relating to the particular subject of base prices. (at p253)
10. In due course the cane-growers sought to avail themselves of the opportunity which the central board had conceived that it was giving them. They applied to the board under s. 21 to vary "the Maryborough Central Board Award for season 1958" by increasing the base price scale, so as to compensate them for "the difference in c.c.s. determined on the one hand by mixed juice weighing and on the other hand by analysis of front roller juice", or alternatively so as to compensate them for diminution in their payments as compared with payment by mills where the method of analysis of front roller juices was still employed. The mill-owners, however, denied the power of the board to entertain the application, challenging the correctness of each of the two assumptions which have been mentioned. The board nevertheless decided to proceed. The mill-owners then applied to the Supreme Court for prohibition, and that Court made the order absolute which is now under appeal. (at p253)
11. The extent of the power possessed by the central board in relation to the appeal from the Maryborough local board's award must be the first subject of consideration. It depends on the terms of s. 12. The fifth paragraph of the section creates the central board's appellate power by providing that the board shall hear and determine "every such appeal". This expression refers back to the provision in the first paragraph, that an appeal shall lie to the central board "against any award of a Local Board or any part thereof". It is clear, from the two paragraphs read together, that the central board's authority to deal with the award of a local board is limited according to the scope of the appeal. If the appeal is against the whole award the central board clearly may, if it sees fit, replace the local board award by its own set of provisions. But if the appeal is against part only of the award, the central board is not authorized to do more than is involved in determining that appeal: it may make whatever provisions it thinks proper in order to give effect to its views upon the matters covered by the appeal, and no doubt that may in some cases involve not only alterations to the provisions of the local board award which are directly challenged by the appeal but also incidental alterations to other provisions; but beyond that the section does not empower the board to go. The appeal which the central board had before it in the Maryborough case was confined, as has been mentioned, to the topics of prices, badly-topped and trashy cane, and the weighing of cane, leaving untouched many other matters as to which the local board award contained provisions. No alteration of these other provisions was incidentally required in order to give effect to the central board's decisions on the three material matters. Accordingly, unless provisions of the Act other than s. 12 operate to give the full award which the central board purported to make a validity which it cannot derive from s. 12 alone, the conclusion must be that the board had no power to make that award, and consequently has no power to vary it. (at p254)
12. The Act contains provisions which have been relied upon in argument as producing this result. One such provision is in s. 32 (2), a sub-section which, after providing that a copy of the Gazette containing an award shall be received as evidence of the award without further proof, adds that it shall not be necessary to prove (scil. compliance with) any conditions precedent entitling the board to make the award. This, however, does not go far enough for the cane-growers here, because, although the award of 24th July 1958 is proved by the production of the Gazette of that date, the evidence shows affirmatively that the necessary condition precedent, the bringing of an appeal against the whole of the local board award, was not in fact fulfilled. A section which gives much wider protection, however, is s. 17 containing, in three paragraphs, provisions protecting awards and proceedings from challenge except as provided elsewhere in the Acts. It will be sufficient to refer to so much of the section as relates to awards of a central board. Paragraph (a) makes every such award final and conclusive, and provides that it shall not be impeachable for any informality or want of form, or be appealed against, reviewed, quashed, or in any way called in question in any court on any account whatsoever. Paragraph (b) may be put aside, for it precludes only the removal of proceedings by certiorari, the issue of prohibition, and the grant of injunction or mandamus "in respect of or to restrain proceedings under an award", and we are not here concerned with proceedings under an award. Paragraph (c) provides in quite general terms that the validity of (inter alia) any award or proceedings of the central board shall not be challenged. It may be that pars. (a) and (c) should not be construed as excluding the remedy of prohibition. Such provisions are construed with a strictness demanded by their nature, and perhaps significance should be attached to the fact that prohibition, though mentioned in par. (b), is not mentioned in par. (a) or par. (c). As will appear, there is no need in this case to resolve the question. It will be enough to point out that if par. (a) or par. (c) is held to extend to prohibition proceedings there will arise a problem of statutory construction of a not unfamiliar kind, the problem being that of reconciling the intention disclosed in these paragraphs with the intention, clearly appearing from the rest of the provisions relating to the functions of the central board, that that body shall be a tribunal of limited powers. The principle to be applied has been explained in such cases as R. v. Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598, at pp 614-617 ; R. v. Murray; Ex parte Proctor [1949] HCA 10; (1949) 77 CLR 387, at pp 398, 399 ; and R. v. Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union, Australian Section [1951] HCA 3; (1951) 82 CLR 208, at pp 248, 249 . Its application here, on the supposition which has been stated, would be that, since the purported award of 24th July 1958 is reasonably capable of reference to a power belonging to the central board, and relates wholly to a subject-matter of that power, and was made in a bona fide attempt by the central board to exercise the authority given by the Act, its validity is not open to challenge in the present proceedings. (at p255)
13. But suppose that the purported award of the central board as it appears in the Gazette of 4th August 1958 should be held, if considered as a whole, to be in excess of the board's powers. It does not follow that the provisions which the board had power to make in order to determine the appeal which was before it may not be regarded separately from the other provisions which in fact it made, and be held to constitute by themselves an "award" capable of variation under s. 21. It has not been and could hardly be suggested that the topics with which they dealt were not properly made the subject of appeal as matters admitting of consideration and determination apart from the other matters covered by the local board award. And the central board found no difficulty in dealing with each of them separately and announcing separate conclusions upon each. There is no reason, therefore, why the board's decisions on these topics should not be considered as by themselves forming "decisions" capable of variation under s. 21, whether they be found expressed in the purported award in the Gazette of 4th August 1958, or in the oral announcements recorded in the Gazette of 24th July 1958. In particular, the decision as to base prices was clearly within power, and none the less so because in substance (though not in form) it simply repeated the scale which had been laid down in the local board's award. On any view of the matter, therefore, there is in existence a Maryborough Central Board award for the 1958 season, containing the provision of which the notice of motion under s. 21 seeks a variation. (at p256)
14. The position, then, is that unless the power of variation conferred by s. 21 is subject to some unexpressed qualification which excludes variations of base prices, the application for prohibition should have been refused. It is contended, however, that such a qualification exists by implication from the provisions of sub-s. (6) of s. 20. That sub-section provides that every award (scil. whether of a local board or of the central board) shall be deemed to contain the following provision: "The base price fixed by this award may from time to time be changed, while this award remains in force, whether by increase or decrease, by a decision of the Central Board, if they are satisfied upon an application made to them by any mill-owner or by any twenty cane-growers (or one-third if the whole number does not exceed sixty) bound by the award who supplied sugar cane to such mill during the year then last past or by the mill suppliers' committee constituted for the mill in respect of which the award is made that the circumstances or conditions existing when the award was made have so changed that a change in price is fair and just. And the base price fixed by this award shall thereupon be changed in accordance with such decision: Provided that such application shall be made not later than twenty-one days after the close of the crushing season in respect of which this award is made . . . ". (at p256)
15. The argument is that this provision, implying as it does that the central board shall have the power described, displays an intention to provide exhaustively for the alteration of awards in respect of base prices, so that the general provision in s. 21 for variation of awards must be read as having no application in respect of that subject. Accordingly, it is said, the variation now being sought by the cane-growers is beyond the central board's power, if for no other reason, because the application is not based upon any suggested change in the circumstances or conditions existing at the time the award was made. (at p257)
16. The question thus raised is one of no little difficulty. A general consideration tending to support the argument for the implied exclusion of base prices from s. 21 is that an intention to give fixity to determinations of price may be discerned in the sections regulating the making of awards, and perhaps particularly in s. 11. But the argument derives its main strength from the fact that s. 20 (6) places considerable limitations upon the power which it gives, limitations as to the persons who may apply, as to the time within which an application may be made, and as to the grounds upon which it may be granted; while s. 21 makes any mill-owner or cane-grower a competent applicant, fixes no time limit for applications, and leaves completely at large the grounds on which a variation may be made. Is it likely, the respondent asks, that in view of these differences between the two provisions the matter which is the subject of the special power under s. 20 (6) should be intended to be also within the general power under s. 21? Is it not a case for applying the presumption that a general provision is not intended to have an operation which would trench upon the ground covered by a special provision? (at p257)
17. The argument is by no means negligible, but there are strong reasons against it. In the first place, it assumes that s. 20 (6) is directed to the broad subject of the alteration of base prices, and not to the narrower subject of the alteration of base prices in order to allow for changes of circumstances or conditions arising from time to time during the currency of an award. The assumption is at least of doubtful validity. It is to be noticed that the sub-section takes the course, not of making a direct grant of power to the central board, but of notionally putting into every award a provision qualifying its provisions as to base prices by exposing them to change by the central board as circumstances and conditions alter from time to time. There is thus given, not a power for the central board to vacate or correct decisions of its own which it comes to regard as erroneous, but a power for that board to alter any award, whether made by itself or by a local board, in exercise of a power existing under the very terms of the award, in order to accommodate its base prices fixations to changed circumstances and conditions. The better view of the relation of s. 20 (6) and s. 21 may therefore be that, even if s. 20 (6) is to be considered a special provision exhaustively providing for the matter to which it is directed, the general operation which s. 21 has according to its terms should be understood as qualified, by reason of s. 20 (6), only by the exclusion of alterations of base prices in order to allow for changes in circumstances or conditions during the currency of awards. (at p258)
18. A probability that this accords with the intention of the legislature may be seen by considering the analagous situation which exists in regard to ss. 21 and 21A. By the one amending Act, the Act of 1939, s. 21 was amended and s. 21A was inserted. The amendment of s. 21 extended the central board's general power of variation to include determinations under s. 6 (2) of "farm peaks", and it subjected such determinations to the prohibition contained in the second paragraph of s. 21 of variation otherwise than upon the application of an owner or a cane-grower. Yet the enactment of s. 21A brought simultaneously into the Act a special provision for the variation by the central board of determinations as to "farm peaks", and without anything to prevent the board from making such variations of its own motion. The only condition of the power is expressed in the words: ". . . if the Board is satisfied that the circumstances and conditions existing when the determination . . . was made have so changed that a variation in such determination . . . is fair and just". Curiously, and as if echoing s. 20 (6), the section adds a proviso that any such determination may also provide for variation as aforesaid. Clearly enough, the legislature in 1939 saw neither inconsistency nor redundancy in giving a general power to vary "farm peak" determinations while at the same time giving, and allowing the determinations themselves to reserve, a special power to vary such determinations by reason of altered circumstances or conditions, either upon or without the application of any person. Section 21, it is true, is enacted "subject to this Act"; but that expression, familiar as a formula for giving overriding effect to other provisions of an enactment, gives no assistance when the question is whether a particular provision, such as s. 20 (6), does or does not contain an overriding implication. It seems very unlikely that if the intention had been that the power given to the central board by s. 21 to vary its own awards should never be exercisable with respect to base prices, and the draftsman had got to the point of reflecting that intention in s. 21 itself, he would have relied for the purpose on so cryptic an expression as "subject to this Act". (at p258)
19. It is not unimportant to note that the one Act (the amending Act of 1917) inserted ss. 21 and 22 (then numbered 12A and 12B) and an amendment of s. 20 (6) (then numbered s. 12 (5)). The latter sub-section had theretofore conferred a power to change base prices, by reason of change of circumstances or conditions, on the application of the local board or any party; and the amendment made by the 1917 Act substituted as the persons who might make the application any mill-owner or any twenty cane-growers (or one-third if the whole number should not exceed sixty) bound by the award who supplied sugar-cane to such mills during the year then last past. The very next provisions of the amending Act enacted ss. 12A and 12B. It is almost inconceivable that, if the intention had been to exclude the whole subject of base prices from the wide and important power thus introduced, and to leave the power under s. 12 (5) which was being simultaneously even more strictly confined than it had formerly been as the only power to alter base prices, the intention would not have been clearly shown. (at p259)
20. On behalf of the mill-owners, some reliance was placed upon the fact that the amending Act of 1954 inserted a new s. 6B, and also a new sub-s. (6A) of s. 20, both giving the central board a special power to vary base prices in particular situations. Each power is carefully hedged about by requirements as to the persons who are to be competent applicants, the time for applying, and the facts of which the board is to be satisfied before it may exercise the power. Why, it is asked, should this have been done, if s. 21 already gave a quite general power to vary awards? The correct answer may be that the general power under s. 21 was considered to need limitation in the class of cases now specially provided for. But speculation as to the reasons for this or that provision in such a patchwork document as the Act has come to be is hardly profitable. Speaking generally, the only safe course seems to be to give full effect to every provision according to its terms, unless a convincing reason be found for departing from a literal construction. (at p259)
21. At least the considerations that have been stated provide strong grounds for rejecting the idea that s. 21 gives no power to vary base prices. But even the view above suggested, that s. 20 (6) impliedly removes from the power under s. 21 the variation of base prices by reason of change of circumstances, may rest on too insecure a foundation; for we are dealing with a body of legislation to which it is difficult to feel sure how far ordinary canons of construction are appropriate, and there are signs that even a presumption against overlapping and redundancy might well lead one away from the real intention of individual provisions. A comparison of s. 17 and the first paragraph of s. 42 may be thought to illustrate the point. There is much therefore to be said for giving full effect to the clear words of s. 21, and treating that section as conferring a completely general power of variation, unqualified by any implication from s. 20 (6). (at p260)
22. However, it is sufficient for the purposes of the present case to hold as the considerations above stated lead us to hold, that such a variation in base prices as the cane-growers are seeking in the pending application is within the authority of the central board under s. 21, and the application to the Supreme Court for prohibition should have been refused. (at p260)
TAYLOR AND MENZIES JJ. The Full Court of the Supreme Court of Queensland (Philp and Stable JJ., Wanstall J. dissenting) made absolute an order nisi for prohibition against the members of the Central Sugar Cane Prices Board of Queensland and one Kinbacher, a sugar grower in the Maryborough district, prohibiting the board from proceeding with the hearing and determination of an application made by Kinbacher and other cane growers in the district for variation of what may conveniently enough be called the Maryborough Central Board Award for season 1958 and for such other order as to the board may seem meet. Prohibition was granted upon the application of the Maryborough Sugar Factory Mill, which is the mill bound by the award. The object of the application by the growers was to obtain by variation of the award a higher price for the sugar supplied by them to the mill during the 1958 season because, so it is claimed, the determination of commercial cane sugar (c.c.s.) by way of mixed juice weighing, which was the method adopted by the mill, had proved less advantageous to the growers than analysis of front roller juice, which was the method commonly adopted in Queensland. (at p260)
2. The Full Court granted prohibition because it found that the purported award was no award at all and that, therefore, no application could be made for its variation; but, before the court came to this point, it rejected unanimously the appellant's submission that prohibition did not apply to the members of the board because of the effect of s. 17 of The Regulation of Sugar Cane Prices Acts 1915 to 1954 (Q.). We agree with this part of the Full Court's decision because we regard pars. (a) and (c) of s. 17 as inapplicable to the prohibition proceedings that were instituted and, although par. (b) of the section is clearly applicable to some prohibition proceedings, its protective effect is restricted to prohibition to restrain proceedings under an award: Attorney-General of Queensland v. Wilkinson [1958] HCA 21; (1958) 100 CLR 422 . The proceedings here restrained were not under an award but were under s. 21 of the Act to vary an award. (at p260)
3. Furthermore, although we fully accept the proposition that when the central board does hear and determine an appeal pursuant to s. 12 of the Act, its decision has the effect of an award under the Act, we are disposed to agree with the majority of the Full Court that it was not within the power of the Central Sugar Board, upon an appeal made to it against part of the award of the local board for Maryborough, to replace that award as a whole with an award of its own, as it did in making the Central Board Award for season 1958. We do not find it necessary to pursue this aspect of the case further and to determine whether that part of the award which took the place of so much of the award of the local board as was appealed against should be regarded as an award of the central board, or whether the proper course is to attempt to go behind the award to the decision that preceded it. We say this because we think the Central Board Award for season 1958, appearing as it does in the Government Gazette as an award of the central board, is prima facie such an award, by virtue of s. 32 (2) of the Act; and, by reason of s. 17, sub-pars. (a) and (c), that award cannot, in these proceedings, be called into question on any account whatever and its validity is put beyond challenge. The appeal must, therefore, in our opinion, be determined on the footing that the Central Board Award for 1958 is a valid award of the central board. The result is that although prohibition proceedings lie, in such proceedings the validity of the award has to be accepted. (at p261)
4. The proceedings that were stopped by prohibition must, therefore, be treated as proceedings to vary an award of the central board. They were brought under s. 21 of the Act, which is as follows: - "Subject to this Act, the Central Board may rescind or vary any award, determination under subsection two of section six of this Act, decision, recommendation, direction, order, or other act made or done by it. But no award, determination under subsection two of section six of this Act, decision, or order shall be varied or re-opened except upon the application of any owner or cane-grower bound or affected thereby or claiming to be affected or aggrieved thereby." (at p261)
5. If that provision stood alone, we could see no reason why it would not cover the application that was made. The variation sought, however, was primarily a variation of the base price fixed by the award and, for the mill, it was said this could not be done under s. 21 because the only provisions for altering the base price were to be found in ss. 20 and 6B of the Act, and attention was drawn particularly to sub-ss. (6) and (6A) of s. 20. Of these, s. 20 (6) is the leading provision and, in a slightly different form, it appeared in the original section of the Act enacted in 1915. Section 21 was introduced into the Act in 1917 with retrospective effect, and the amending Act which introduced s. 21 also amended s. 20 (6). It is not necessary to set out s. 20 (6) but its effect is to deem every award, be it an award of a local board or the central board, to contain a provision enabling the central board to vary the base price fixed by the award if: - (1) an application is made by the person specified within twenty-one days of the close of the crushing season; and (2) the board is satisfied "that the circumstances and conditions existing when the award was made have so changed that a change in price is fair and just." If, but only if, these conditions are satisfied, the base price fixed by the award shall be thereupon changed in accordance with the decision of the central board. (at p262)
6. It will be observed that s. 20 (6) does not give a power to vary the base price directly; what it does is to insert in every award a term for the variation of the base price within limits which we have described but no further. (at p262)
7. Section 20 (6A) is a provision introduced in 1951 for the increase of the base price by the central board upon application by specified persons within twenty-one days of a mill ceasing to crush, where the board is satisfied that the crushing season was unduly long; that this operated to the prejudice of the growers; that it was the responsibility of the mill; and that the mill should justly bear the loss. Section 6B of the Act is a provision introduced in 1954 for other purposes and which, as a consequential measure, provides for the variation of the base price by the central board again if application is made by specified persons within twenty-one days after the end of the crushing season. (at p262)
8. The difficult question which arises is whether, having regard to these special provisions, particularly s. 20 (6), s. 21 should be regarded as having no application to the variation of the determination of base prices by the award. (at p262)
9. We have come to the conclusion that the special provisions to which we have referred are the only provisions authorizing the variation of base prices and that s. 21 should not be regarded as authorizing any such variation. (at p262)
10. The scheme of the Act seems to us to be that once a local board makes an award, that award is to stand subject only to appeal to the central board (s.11) and to variation pursuant to a particular power, e.g., ss. 20 (6) and 21A. When there is an appeal to the central board, the decision of the central board on the appeal, has the effect of an award and replaces that part of the award of the local board against which the appeal is brought (s. 12). Special provision is made for the variation by the central board of a determination of base price where the base price is fixed by an award of a local board or the central board (s. 20, sub-ss. (6) and (6A), and s. 6B). Furthermore, awards of "farm peaks" pursuant to sub-s. (2) of s. 6 may be varied by the central board where made by that board or a local board. Such variations may be made pursuant to s. 21A either upon application or upon the board's own motion in any case where the board is satisfied that circumstances or conditions existing when the award was made have so changed that a variation is fair and just. This power extends also to the variation of an agreement relating to "farm peaks" made under s. 25A of the Act. The powers to vary conferred upon the central board, to which we have just referred, are in our judgment special provisions, whereas s. 21 is a more general provision, so that the maxim specialia generalibus derogant is properly applicable, although the Act as a whole is so much a thing of shreds and patches and there is in it such repetition and overlapping that it is not possible to apply strict legal reasoning with any certainty that the real meaning of Parliament is achieved thereby. There is, for instance, room for an application in relation to "farm peaks" under s. 21, notwithstanding that the matter is dealt with particularly by s. 21A which was introduced later, but this is because determinations under s. 6 (2) are particularly mentioned in s. 21. (at p263)
11. Upon the whole, however, we read s. 20 (6) as providing exhaustively for the variation of base prices except for some further special provisions such as ss. 20 (6A) and 6B. Indeed, we regard these last-mentioned provisions as constituting in some measure legislative acceptance of the position that the variation of base prices is a particular matter requiring a special provision. The introductory words of s. 21, "Subject to this Act", may well have been due to a determination to protect the base price from variations otherwise than in accordance with s. 20 (6). We cannot find any other substantial reason for them. In Cooper & Crane v. Wright (1902) AC 302 Lord Davey said: - "It is difficult to come to any conclusion on the subject of this appeal which is not open to criticism, and I can only say that I think the conclusion to which I have come is less open to criticism than the opposite one" (1902) AC, at p 315 . That represents exactly our state of mind on this question. (at p263)
12. For these reasons, we think it is beyond the power of the central board to hear and determine the application for the variation of the base price fixed by the Maryborough Central Board Award for season 1958, and we think it should be prohibited from doing so. (at p264)
ORDER
Special leave to appeal granted. Appeal to be treated as instituted and heard instanter. Allow appeal against the respondent prosecutor the Maryborough Sugar Factory Ltd. Discharge order of the Supreme Court. In lieu thereof order that the order nisi for prohibition be discharged.Costs of the appeal and of the order nisi to be paid by the said prosecutor.
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