HE QUEENSLAND LAW KEPORTER, JANUARY, 1917. The nature of these actions are set out in Colonial Sugar Refining Co. Ltd. v. Attorney-General and Howe which is reported subsequently in this volume. The orders nisi in the first set of proceedings were very similar. That relating to the Victoria Mill called on the Central Board and the Judge and the members thereof and Baldwin, a grower of cane in the area assigned to the mill, to show cause why a writ of prohibition should not issue directed to the Central Board and the above persons, prohibiting them, and each of them, from proceeding or further proceeding on the award purporting to have been made in respect of the Victoria Mill for the season 1916, upon the grounds following:-(i.) That the award was made without and in excess of jurisdiction. (ii.) That the award was without jurisdiction in that-(a) No Local Board was duly constituted for the Victoria Mill for the season of 1916; (b) the award does not prescribe that the mode of ascertaining the amount payable in respect of cane supplied to the Victoria Mill shall be the same with respect to each and every canegrower supplying cane to the mill; (c) the award at the time it was made was impossible of performance; (d) the award has a retrospective effect; (e) the award was not an award made by the members, or a majority of the members, of the Central Board. (iii.) That the award was made under circumstances amounting to a denial of natural justice. (iv.) That the applicant company was refused the hearing to which, under The Regulation of Sugar Cane Prices Act of 1915 and the regulations made under the said Act, it was entitled. And/or why a writ of certiorari should not be issued directed to the Board and the Chairman and members respectively thereof to remove the said award into the Supreme Court of Queensland on the grounds herein before set forth, and/or why a writ of mandamus should not be issued directed to the Board and the Chairman and members respectively thereof, directing it and them respectively to enter an adjournment or adjournments of the proceedings before the said Board in respect of the making an award for the Victoria Mill, and to hear and determine the said proceedings according to law and pursuant to the statutes in that behalf, and why the Board and Baldwin should not pay costs. The awards of the Central Board are published in the Gazette of 23rd June, 1916. In each case the prosecutors objected to the constitution and jurisdiction of the Local Boards for 1916, F.C. R. v. THE REFINING THE QUEENSLAND LAW REPORTER JANUARY, 1917. 4 F.C. R. v. THE CENTRAL CANE AND OTHERS, Ex parte THE ST. R. QD. and they objected before the Central Board to the jurisdiction of that Board on appeal or delegation from each of the Local Boards. The foundation of Grounds iii. and iv. above stated was a refusal COLONIAL SUGAR of the Central Board to receive evidence tendered by the REFINING COMPANY prosecutors on the cost of the production of cane. In the judgments given by the Central Board reference is made to the matter. In the Hambledon Mill award, the Chairman of the Board said: 66 Mr. MacDonnell, agent for the growers, intimated to the Board that he did not propose to call evidence as to the cost of production of cane, as such cost was not ascertainable, and no standard of efficiency for growers could be obtained. suggestion of the Chairman, however, Mr. MacDonnell called four witnesses on this point. Mr. Mitchell, for the millowners, called nine witnesses on the same point. "All the evidence on the cost of production of cane, as in previous hearings by the Board, was unsatisfactory and of no assistance to the Board. Whether the cost of production, if it had been established to the satisfaction of the Board, would have been taken into consideration in making this award is a matter which has not yet been considered by the Board.” And in the Goondi Mill award it was stated: "Up to the time of hearing the Hambledon inquiry in May, 1916, the Central Board had held nine inquiries, at all of which they accepted evidence as to the cost of production of sugar cane, with a view of ascertaining what such cost would be in an average season, and what would be a reasonable standard of cultivation, and a reasonable tonnage of cane to be harvested. Evidence of the cost of production was also called at the Hambledon inquiry and several days spent by the Board in hearing this evidence. Similar evidence was called before the Goondi Local Board, who had examined about fifteen witnesses, and had been engaged on making their award from 6th April to 9th May, 1916. "This Board decided that the information they required as to cost of production was not obtainable, and that, even if it were, it was not a factor which the Board would be compelled to take into consideration to enable them to make an award. "They decided therefore, before hearing the Goondi matter, not to inquire further into the cost of production of cane. "At the opening of the inquiry the Chairman intimated that he would settle the issues to be determined under the powers conferred on him by Regulation 11 of the Regulations as to Proceedings before Central Board,' and handed copies of such issues to the agents representing the parties, intimating that the issues did not include cost of production. "Mr. Mitchell objected to this course, and stated he intended to offer evidence as to the cost of production, and contended that the Chairman's power to settle the issues only arose after hearing the matters in question between the parties, and that the Board were bound to accept evidence as to the cost of production. The Chairman ruled that the regulation gave him power to decide what issues were to be tried, and that it was necessary that the Chairman should have power to settle the issues and control the proceedings of such a Board as this. "Mr. Mitchell made formal application for another issue to be joined as to the average cost of production of a ton of cane in the Goondi district. The Chairman refused this, stating that the scope of an inquiry could not be extended by either side without the consent of the Board. The Chairman held that the Board were not bound to hold an inquiry at all, and if they decided to hold an inquiry they were entitled to limit it to the matters as to which they desired information. The evidence hitherto obtained by the Board as to the cost of production was unsatisfactory and useless, and it would be needless waste of time to prolong taking evidence on this point. One of the reasons for the unsatisfactory nature of the evidence was that the farmers kept no books. The evidence given by them differed amongst themselves, and differed very considerably from their own returns. "Mr. Mitchell then made application to the Board to hear the evidence which he proposed to offer, but the majority of the Board decided not to hear the evidence on the cost of production." The other facts necessary to understand the questions of law decided in this case appear in the judgment. The four cases were taken separately, but the argument in the first case before the Court applied in almost every particular to the other three cases. Stumm K.C. and Walsh (for Henchman, on active service with His Majesty's Forces) moved the orders absolute. No Local Board was constituted for Victoria Mill for the year 1916. A F.C. R. v. THE CENTRAL CANE PRICES BOARD AND OTHERS, Ex parte THE COLONIAL SUGAR REFINING COMPANY LIMITED. F C. R. v. THE CENTRAL CANE Ex parte THE new Local Board must be constituted and appointed in each year, and the Local Board constituted for 1915 could not act in 1916, nor was its existence extended beyond 1915. The Regulation of Sugar Cane Prices Act of 1915, ss. 1, 4, 5, 6,7, 8, 9, 10, 12, subsec. 4; Schedule, Clauses 1, 2, 4, 5, 6, 7, 8, 10; Regulations of 28th January, 1916. The powers of the Central Board, therefore, never came into existence, for they arise only on appeal from, on default of, or on delegation by, a validly appointed Local Board. The scheme of the Act is one Local Board, one award." "Constituted" in ss. 4, 5, 6, and 7, has the same meaning, and application for a Board must be made in each year before 31st January, the Board must be constituted in each year not later than 1st March, and the awards must be made before 21st April. The award was not given by a majority of the members of the Central Board. The. Act does not enable a majority of the Central Board to make a binding award. In other statutes, the power is expressly conferred. Cf. Industrial Peace Act of 1912, s. 26; Wages Boards Act of 1908, s. 12; Acts Shortening Act of 1867, s. 10; Local Authorities Act of 1902, s. 30; Judiciary Act, 1903, s. 23; Judiciary Act, 1912, s. 3; The Land Act of 1910, s. 35, subsec. 10; The Regulation of Cane Sugar Prices Act of 1915, ss. 26, 15, subsec. 2. Russell on Arbitration, 9th Ed., pp. 168, 169; United Kingdom Mutual Steamship Assurance Association v. Houston & Co. (1). There is no power to make an award retrospective in its operation. Schedule 14 indicates the limit of the power to make an award retrospective, and applies only to the season of 1915. Retrospective effect ought not to be given to a statute unless a clear intention is expressed. Midland Railway Co. v. Pye (2), Young v. Adams (3), Harding v. Commissioners of Stamps (4), Wilson v. Moss (5), Colonial Sugar Refining Co. Ltd. v. Irving (6), Bradford Union v. Clerk of the Peace for Wilts (7). The award is wholly invalid for retrospectivity, the portions which may fall within the jurisdiction not being severable from the invalid portions; Warwick Canal Co. v. The Birmingham Canal Co. (8); and at least it is inoperative so far as all cane which was crushed before the date of the award. The award does not operate equally towards every canegrower— s. 12, subsecs. 4 and 7. There is no power to group growers, (1) [1896] 1 Q.B. 567. (2) 1861, 10 C.B.N.S. 179. (3) [1898] A.C. 469. (4) [1898] A.C. 769. (5) 1909, 8 C.L.R. 146. (7) 1868, L.R. 3 Q.B. 604. (8) 1879, 5 Ex.D. 1. THE QUEENSLAND LAW REPORTER, JANUARY, 1917. and the grouping of growers prevents the proper operation of s. 12, subsec. 7. The award is impossible of performance, owing to the war, which has led to scarcity of chemists, and analysis in the manner required by the award is at the present time impossible. The Central Board refused to take evidence on the "cost of production" (vide remarks, p. 4). Under s. 12 and Regulations of 28th January, 1916, inquiry into that matter is imperative, and on that ground mandamus should be granted. The cost of production was a relevant issue, and should have been made an issue under reg. 11. In any event, the Central Board was wrong in refusing to hear prosecutors on the point-s. 18, reg. 12, clause 3-and the right to be heard includes a right to present evidence on any matter mentioned in s. 12. 66 Ryan A.G. and Real (for Hart, on service with His Majesty's Forces) The scheme of the Act provides for the making of an award for each sugar season by the Central Board on delegation, appeal, or default of a Local Board. Local Boards are constituted from time to time on application in the manner prescribed by the Act. When once constituted, a Local Board continues in existence until the Order-in-Council creating it is rescinded. The personnel of the members of the Board may change, but the Board continues to have existence. Schedules 1 to 10. The word constitution is used in different senses in the Act, and the meaning of the word in s. 7 is different to its meaning in ss. 4 and 5. Ex parte Wier (1); Regulations of 28th January, 1916, Nos. 1 to 27. The sections of the Act and the clauses of the Schedule show, however, that reg. 28 refers to either millowners or canegrowers. The award is not impossible of permanence. It directs payment according to commercial sugar contents, which may have to be ascertained by analysis. There may be a difficulty in determining the contents, but there is no impossibility, and the existence of a difficulty is not an objection to the validity. As to the opinion of the majority of the Central Board being the decision of the Board-See Grindley v. Barker (2); Throop on Public Officers, p. 105. The award is not retrospective. The intention of the Legislature shown by the Act is that an award should be applicable for a sugar season which commences about May and ends about December, and that it should, if made by a Local Board, be made before F.C. R. v. THE CENTRAL CANE PRICES BOARD AND OTHERS, Ex parte THE COLONIAL SUGAR REFINING COMPANY |