property for transportation purposes to a mill other than the Kalamia Mill, the APPEAL. This was an appeal from a judgment of Shand J. in an action tried before him, with a jury, in which he entered judgment in accordance with the finding of the jury. The action was brought by the plaintiff company against the defendant as nominal defendant representing the Queensland Government, for £20,000 damages for an alleged wrongful and improper nonuser (which was also referred to as deprivation) and misuser of the Kalamia Mill, the property of the plaintiff company, under a claim to exercise the powers conferred by The Regulation of Sugar Cane Prices Act of 1915-17 upon the Secretary for Agriculture, the Minister for the time being charged with the administration of that Act. Excepting the amount of the damage, the relevant facts were not in dispute, and are set but in the judgment and in the headnote. The principal question raised in the case was the interpretation of s. 12 of The Regulation of Sugar Cane Prices Act, 1915-1917, which is set out on pp. 102-105. E. A. Douglas and Macrossan, for the appellant: The section gives a discretionary power only to the Minister. He may take possession, and he may carry on the business. There are two independent powers given in different paragraphs of the section. The same remedy of the plaintiff company is that given by s. 12. It is confined to that remedy alone. The action is misconceived. The use of "shall" in the same section in an imperative sense indicates the deliberate choice of "may" to indicate a discretionary meaning. The Regulation of Sugar Cane Prices Act, 1915-1917, ss. 5, 9 (c), 12; The Acts Shortening Act of 1867, s. 20. If the F.C. F.C. AUSTRALIAN ESTATES AND COMPANY v. SCRIVEN. power of working the mill is discretionary in the Minister, the amount recoverable by the Company is such a reasonable amount LAND MORTGAGE as compensates the company for any loss or damage suffered, and that amount must be ascertained by the Central Board-s. 12, subsec. 8 (i.). Hence there is no right of action in respect of nonuser. There was no misuser either of the mill or the tramway, and the only remedy is under s. 12, subsec. 8 (i.). Murgon Shire Council v. Maudsley (1), Josephson v. Walker (2), Lamplugh v. Norton (3), Atkinson v. Newcastle and Gateshead Waterworks Co. (4), Cowley v. Newmarket Local Board (5), Hammersmith, Etc., Railway Co. v. Brand (6), The user of the tramways was a partial carrying on of the business, Transport of cane clearly is a necessary part of the business and it was the duty of the Minister to assure the delivery and treatment of this cane. If there is any cause of action the damages are excessive and the case should be sent back for a re-assessment of damages. Generally on the interpretation of the Act which was enacted for the benefit of the community at large,-Lennon v. Gibson & Howes Ltd. (7). Feez K.C. and Real: Section 12 subsec. 8 (i.) gives power to take possession and carry on the business of a mill. It is one power and inseparable. The intention is that the work of the mill must be continued when possession was taken by the Minister. A duty was cast upon him to carry on the milling business. The failure to carry out that duty made his possession wrongful and he became a trespasser ab initio. Therefore the company is not confined to the remedy of obtaining compensation given. by s. 12 subsec. 8 (i.), but has a right of action for damages, both for nonuser and misuser of its property. The word "may" in the phrase, "The Minister may carry on the business," must be read as "shall." The intention of the Act is that the sugar mills should continue operations, whether they were conducted by the owners or by the Minister, on default of the owner. The obligation on the grower to supply cane and on the millowner to receive cane, the assignment of lands to different mills, the provision as to awards, the obligation to keep accounts imposed by s. 12, subsec. 8 (ii.) on the Minister when he takes possession of a mill all show that the Legislature contemplated a continuance of the work of each mill, and give the (1) 1921, St. R. Qd. 1. (2) 1914, 18 C.L.R. 691, at p. 695. (4) 1877, Ex. D. 441, . (5) 1902, A.C. 345. (6) 1868, L. R. 4 H.L. 171. F.C. AUSTRALIAN ESTATES AND best guide to the interpretation of the word " may "in s. 12. That word should be construed as imposing a duty on, and not as giving a discretion to, the Minister. Lennon v. Gibson & Howes Ltd. (1), LAND MORTGAGE Colonial Sugar Refining Co. v. Attorney-General of Queensland and Others (2). Even if s. 12 alone is read, the same meaning is apparent. The phrase "may carry on the business," 6 as absolute owner," carry into execution the award," use and employ" "taken and used," disturbance of business," accounts of receipts and expenditure," all indicate a duty to continue the working of the mill by the Minister when in possession under the section, and support the contention that the section creates an obligatory, and not a discretionary power, and that on a taking of possession by the Minister, a user of the property taken was necessarily contemplated. He referred to ss. 3, 4, 5, 6, 9, 9E, 12, 14, 17, Julius v. Lord Bishop of Oxford, per Lord Selborne (3) and Lord Blackburn (4), The Acts Shortening Act of 1867, s. 24; Smith v. Watson (5), R. v. The Commissioner of Taxes (6), Douglas, in reply: Damages cannot be given for the non-performance of an act under a power. He also referred to Whitfield v. De Lauret & Co. Ltd. (11), The Bodlewell (12). The judgment of the Court was read by : LUKIN J. The action, out of which this appeal arises, was brought by the plaintiff company against the defendant as nominal defendant representing the Queensland Government, for £20,000 damages for an alleged wrongful and improper nonuser— sometimes referred to as deprivation-and misuser of the Kalamia Mill, the property of the plaintiff company, under a claim to exercise the powers conferred by The Regulation of Sugar Cane Prices Act of 1915-17 upon the Secretary for Agriculture, the Minister for the time being charged with the administration. of that Act. (1) 1919, A.C. 715. (2) 1916, St. R. Qd. 296. (3) 1880, 5 A.C. 214, at p. 235. (7) 1875, 1 Q.B.D. 31. (9) 1890, 15 A. C. 400, at p. 411. COMPANY v. SCRIVEN. Lukin J. Supplement to The Queensland Law Reporter, May 12, 1922. F.C. AUSTRALIAN It becomes necessary to consider the purpose and intention of that Act and certain of its provisions before narrating the facts in LAND MORTGAGE regard to which the law under the Act is to be applied. ESTATES AND COMPANY v. SCRIVEN. Lukin J. The Privy Council, in Lennon v. Gibson & Howes Ltd. (1), referring to this particular statute, said, "In the opinion of their Lordships, the institution of Sugar Boards, with their powers, is, as said, for the benefit of the sugar-growing community and public generally." In dealing with the interpretation of this Act, this Court, on a previous occasion, gave full expression to its view of the purposes and intention of the Act, and the Court, in coming to its present conclusion, relies upon the view just referred to as held by the Privy Council and upon the view so expressed by this Court. It is unnecessary to repeat the words used by the Court; it is sufficient to refer to the occasion. Vide Colonial Sugar Refining Co. v. Attorney-General of Queensland and Others (2). By sec. 3 of the Act, canegrower is defined as Any person selling and supplying sugar cane to a sugar mill for the purpose of its being treated and manufactured into sugar." Central Board, as "The Central Sugar Cane Prices Board constituted by this Act." Section 4 provides for the constitution by the Governor-in-Council of the Central Sugar Cane Prices Board, and, in conjunction with s. 9A, for the performance of prescribed duties. Section 5 provides for the constitution by the Governor-inCouncil of Local Boards for each mill and for the lands assigned to such mill, and that the Order-in-Council "shall declare the mill and the lands of the canegrowers in respect of which the Local Board in question is constituted," and that "In cases where it appears just and proper so to do, and upon application made in that behalf to the Central Board, the Central Board shall have power, notwithstanding the provisions of any Order-inCouncil, from time to time to assign any particular land or lands or any defined area or locality to any mill or to alter the assignment thereof from one mill to another mill (whether or not each such mill is under the jurisdiction of the same Local Board), so that the sugar cane grown on such land or lands or within such area or locality shall be supplied to the newly-assigned mill.” See par. 4, subsec. 2. Section 6 provides for the Local Board in each year making Supplement to The Queensland Law Reporter, May 12, 1922. an award determining the price to be paid and accepted by the owners of the mill and canegrowers for sugar cane sold and taken delivery of by such millowners. Section 8 provides for the award to take effect and have the force of law, subject to an appeal to the Central Board. Section 9 provides for an appeal to the Central Board, but that the pending of such an appeal should not, unless the Central Board otherwise orders, suspend or delay the operation of the award, and that the Central Board's decision shall have the effect of an award under the Act. Section 9E provides that, except as is provided in the Act, every award, decision, direction, and order of the Central Board shall be final and conclusive, and shall not be impeachable or called in question in any Court on any account whatsoever. Section 12, subsec. 8, provides that every award shall fix a date after which the owner of the mill concerned shall take delivery of and crush sugar cane offered by the canegrower to the owner, and further, "If the Central Board are satisfied, upon an application in that behalf by any canegrower or canegrowers, that the owner of the mill has failed, without reasonable excuse (the proof of which shall lie upon such owner), to take delivery of sugar cane, or to crush the same, or to carry on crushing operations in a reasonable and proper manner, then the Central Board shall so award and declare, and shall publish such award and declaration in the Gazette, the Gazette, whereupon the following consequences may ensue :— "(i.) The Minister, by his officers, servants, agents, and workmen may enter upon and take possession of such mill and all works, lands, buildings, plant, tramways, machinery, equipment, goods, and chattels whatsoever used, occupied, or held by the owner or on behalf of the owner for the purposes of or in connection with the business of such mill; and the owner and all his agents, managers, attorneys, servants, and workmen shall, without any delay, hindrance, obstruction, claim, demand, or objection whatsoever, give and deliver peaceful possession of such property to the Minister : "The Minister by his officers, servants, agents and workmen may carry on the business of the mill to the same extent and with the same powers and authorities as if the mill and all such property aforesaid were vested in him as the absolute owner thereof, and may conform to and carry into execution the said award, and F.C. Lukin J. |