Deckana Pty CMB Nol P) Ltd v Cairns "eae ern

Deckana Pty CMB Nol P) Ltd v Cairns "eae ern - [1942] HCA 37 - HCA 1942 case summary — Zoe

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marketing costs of the Board amounting to £751 16s. 7d., leaving a net balance of £1,288 9s. 6d. The plaintiff received from the Board payments amounting to £968 so that, if this sum is deducted from £1,288, the balance of the net proceeds of sale received by the Board and not paid to the plaintiff is £320. During the marketing season, which concluded at the end of December, the plaintiff had received his presentation costs and payments by way of first and second advances ; and, about 12th December, a progress payment on account, of the third advance. About 2lst January 1941 he received from the Board a cheque of that date for £89 16s. This was the last pay- ment made in respect of his 1940 crop, except for a small cheque of £3 12s. adjusting the amount paid to him by way of first and second advances, which arrived about 30th January 1942. The payments by way of advance were made in pursuance of the power given to the Minister by reg. 17 (3). Attached to the cheque of 21st January 1941 was a slip containing details of the advance which had stamped upon it in large words " Final Payment." The plaintiff's account for the season in the Board's loose-leaved ledger, which was called for, produced, and tendered, bears entries showing that this cheque was a final payment of the third advance in respect of which the progress payment had been made in December, so that it is possible that the cheque for this earlier payment may have been accompanied by a slip marked " Progress Payment." All the cheques were marked " Advance Account." In cross-examination the plaintiff, in answer to a question as to whether he had ever applied to the Board for compensation, said that he had discussed the matter with Mr. Lane, the secretary and accountant of the Board, and had asked him if there was any further payment coming to him for the 1940 crop and that the reply was in the negative. It was admitted that the Board has not yet made any recommendation, nor has the Minister yet made any determination in pursuance of reg. 17, as to the amount of compensation to be paid to the plaintiff for his apples and pears. Another admission states that the growers generally of apples and pears for the season 1940 were paid by way of advances in pursuance of this regulation a rate of 2s. and 3s. per bushel for apples and pears respectively which were subject to the operation of the regulations ; that the total amount of such advances to the growers was calculated on that proportion of the crop of such growers which it was estimated would be of suitable quality for sale ; and that, subsequently to the making of the said advances, there was paid to the growers generally by way of further advances in pursuance of the reculation 1s. per bushel for apples and pears of adequate quality delivered by such growers to the Board. No evidence was called on behalf

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Rich that " wpon a proper understanding of the regulations, they sufficiently confer on the grower an absolute right to compensation determined in a fair manner by a specified administrative body " (1) as finally expressing his view that the right to compensation given to the growers by reg. 17 excluded any application to the Court. He was only dealing, I think, with the obligations of the Board. My brother Dizon, with whose judgment on this point my brother McTiernan agreed, after a considerable discussion of reg. 17, said that he did not think the Minister was able to determine what he thought fit (as compensation) " after receiving the recommendation of the Board, without adopting it. He may adopt or refuse to adopt a recommendation of the Board, but if he determines compensation it must be in pursuance of the recommendation which the Board finally makes " (2), so that he left open the question of a claimant's rights where the Minister so refused and thereby debarred himself from determining the compensation. The appellant in Andrews vy. Howell (3) had been prosecuted for moving his fruit without permission contrary to amended reg. 15 (a). The principal question, upon which the fate of the appeal mainly depended, was whether the scheme as a whole was justified by the defence power (sec. 51 (vi.) ); so that it was unnecessary to decide whether regs. 12 and 17 provided for alternative methods of compensation, as my brother Starke suggested, or compensation was exclusively provided for by reg. 17; or, in the latter alternative, supposing the terms were not just because this regulation did not give an absolute right to com- pensation or only provided for its determination by a non-judicial and (in a legal sense) biassed person or body, to decide whether the acquisition could still be valid because, although reg. 17 was ultra vires, reg. 12 was intra vires and the scheme as a whole saved by sec. 46 (b) of the Acts Interpretation Act 1901-1937. It appears to me, therefore, that, while I am bound by the decision of the majority of the Court that the scheme is intra vires the Constitution, it is still open to me to construe the compensatory provisions of the regulations on the basis that they contain just terms which satisfy placitum xxxi. in order to determine their precise meaning and effect, deriving all the assistance which I can from the relevant observations in the judgments of my brethren in that case. Placitum xxxi. is taken from the Fifth Amendment of the American Constitution, which provides that private property shall not be taken for public use without just compensation, and it has been held in America that, except where the assessment is made as a

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or a State court exercising Federal jurisdiction (British Imperial Oil Co. Ltd. v. Federal Commissioner of Taxation (1)); but many administrative matters involving quasi-judicial functions have been assigned to bodies other than courts (Federal Commissioner of Taxation v. Munro (2), on appeal, Shell Co. of Australia Ltd. v. Federal Commissioner of Taxation (3) ). Moreover, the judgments in Andrews v. Howell (4) seem to suggest that it may be just, in the event of a dispute, to provide for the assessment of compensation by a person or body other than a court ; and there are, of course in countries such as England where parliament has an unlimited jurisdiction, many instances of compensation having been left to the determination of some administrative body or person holding some personal office such as a Minister of the Crown even where such a body or the Crown is a judge in its own cause because it has to pay the amount assessed. In such cases the body or person is exercising quasi-judicial functions, and must assess the compensation on a legal basis, so that, in default, the proceedings can be quashed or restrained by a superior court by the use of the prerogative writs of certiorari or prohibition ; or it or he can be ordered to do its or his duty by mandamus. Even in the case of parliaments with unlimited powers, the practice has been to leave such questions to be deter- mined out of court only where the title of the claimant is clear, so that in the case of resumption of land, where questions of law relating to the basis of compensation and to title arise, it has always been the practice to have the matter determined by a court, and there is no distinction in principle between the rights of subjects upon the acquisition of any of their property whether real or personal. Assum- ing, however, that the Commonwealth Parliament, without infringing the judicial power, can provide for compensation for property which it acquires to be assessed otherwise than by a court, it would never- theless be essential in my opinion for it to lay down some basis for the assessment so that the court can see that " 'just' terms are avail- able by law" (per Isaacs J. in The Commonwealth v. New South Wales (5) ). If" the only powers conferred upon a so-called tribunal are in the nature of calculation, or the mere ascertainment of some physical fact or facts, and not the declaration of or giving effect to a controverted matter of legal right, it may be that they do not appertain, except incidentally, to the judicial power " (per Griffith C.J. in Waterside Workers' Federation of Australia v. J. W. Alexander

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The objects of the regulations are contained in reg. 2, which provides that their purpose "is to minimise the disorganization in the marketing of apples and pears likely to result from the imprac- ticability of exporting sufficient quantities of apples and pears because of the effects upon shipping of the present war and these regulations shall be administered accordingly." So it is clear that the apples and pears were being acquired by the Commonwealth, not for its own use, but in order that they might be disposed of in such a way as not to glut the local market, when it was called upon to absorb a surplus which in times of peace would have been disposed of overseas. The Commonwealth therefore only derived the indirect benefit which would accrue from sustaining the economic front, thereby enabling growers to receive the most favourable prices for their crops possible under the unfavourable conditions; so main- taining them in as affluent circumstances as possible; and giving them an incentive to preserve their orchards so that the supply of a staple product would be assured, their incomes could be assessed for income tax, and if they died their properties would retain their value for the purposes of death duties. Often the compulsory acquisition of property gives rise to an immediate claim for compen- sation; but, where a perishable product is being acquired in the mass with a view to its disposal as expeditiously and advantageously as possible for the benefit of a large number of owners, it would be just to postpone the determination of the value until an assess- ment could be made in the light of the amount which it actually realized, and the regulations appear to be framed on this basis. Thus they provide for the acquisition of apples and pears (reg. 12), their preservation by the growers pending instructions as to their disposal (which, as my brother Dixon poimted out in Andrews v. Howell (1) would have to be within a reasonable time) (reg. 14) ; and the making of a claim for compensation, the determination of which can be postponed until in the opinion of the Minister a suffi- cient quantity of apples and pears has been disposed of to enable the Board to make a just recommendation, interim distributions (called advances) being made in the meantime on account of the ultimate amount payable.

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for further consideration, the carrying out of the obligations of the Minister and Board in a proper manner would be enforceable by mandamus, which could be granted by this Court upon an applica- tion by a claimant who was interested in a crop which had been disposed of in accordance with the instructions of the Board, and who had made a claim for compensation. But a claimant is not required to make a claim, the right to do so being discretionary. It is unnecessary to make a claim to become entitled to share in the advances, which are really instalments of compensation, and the provision enabling the Commonwealth to recover overpayments means that the Minister would have to determine the compensation, whether any claims had been made or not, in order to decide whether such overpayments had been made. When a claim is made, sub-reg. 2 would at first sight seem to imply that there is an obligation upon the Minister to make a determination and upon the Board to make the necessary recommendation to enable him to do so; because, otherwise, it is difficult to see why express power should be required to enable him to postpone the determination until a sufficient quantity of apples and pears had been disposed of to enable the Board to make a just recommendation, but the contrary view of my brother Dizon, that the Minister can reject the recommendation of the Board, is supported by the potent consideration that other- wise the Board, consisting of growers' representatives, could bind the Minister by a recommendation which might seriously affect the consolidated revenue. Once the Minister has made a determina- tion the grower would be entitled to be paid the amount assessed, but there is no express provision binding him to accept this sum. The regulation, therefore, fails to make it mandatory upon the Minister to assess the compensation, or obligatory upon the claimant to accept the amount assessed, or to enunciate the principles upon which the Minister and Board are bound to act in assessing just compensation. It does, however, contemplate that claimants will accept the amount of compensation fixed by the Minister ; because, obviously, it was never intended that the effect of the mass acquisition would be to replace the famine of buyers in the market by a feast of litigation in the courts. Where the Board spread the marketing of the crops fairly over the season, allowing all growers to participate in the varying price levels of the different months; where the compensation was fixed by the Minister having regard to the proceeds of sale received by the Board in respect of each separate crop ; and where there was no dispute as to the title of the claimants, the assess- ment of compensation would turn on questions of fact and could be.

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requirement in sec. 51 (xxxi.) of the Constitution of "just terms " was satisfied by reg. 17 of the Apple and Pear Regulations. In addition to sec. 51 (xxxi.) the regulations can be supported as an exercise of the defence power conferred by sec. 51 (vi.). Legislation of the Commonwealth Parliament has deviated from the precedent of the legislation of the United States of America. The Fifth Amend- ment of the Constitution of the United States of America provides that property shall not be taken from a person without due process of law and without just compensation; therefore the situation thereunder may not be the same as under sec. 51 (xxxi.), which provides that the terms shall be just. Reg. 17 operates in this case. Reg. 12 only applies to cases to which reg. 17 could never apply. If reg. 17 were applied in due time it is the money which is paid pursuant to that regulation and the procedure of that regulation which is alone available. If reg. 17 does operate as it was anticipated that it would then there should be a residual right under reg. 12. Reg. 12 does not state it has to be in force in a particular type of case or in all cases under reg. 17. In the absence of any express cross-reference it is not impossible to construe reg. 12 as limited by reg. 17. There is no evidence and no provision in the regulations that it shall be mandatory upon the Government to subsidize the pool. Having regard to Andrews v. Howell (1) the Justice in the Court below sitting as a single judge was not at liberty to find that Just terms were not provided for in reg. 17. Reg. 17 is the only relevant regulation in assessing compensation. Although there is not any evidence to show that compensation has been assessed or the method of assessing it, the onus is upon the respondent to show that he has received less than he otherwise would have received. The assessing of compensation is not a judicial function and is not part of the judicial power of the Commonwealth. The statements in United States v. Jones (2), Bauman v. Ross (3), Monongahela Naviga- tion Co. v. United States (4), and Seaboard Air Line Railway Co. v. United States (5) do not support the proposition that the matter of determining the quantum of compensation must be remitted to the

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Court. If for one reason or another reg. 17 does not operate in a particular case then reg. 12 can be read as giving a right to com- pensation and the Court will find a way of determining the matter. Even though reg. 17 is not applicable to this case, the scheme is valid, and the only question that arises is: What is just compensa- tion in the opinion of the Court ? This is not an action by the respon- dent in the nature of an application for a mandamus to have his legal right, that is, his claim, considered. The right which is being asserted is a right to money, and the onus is upon the respondent to prove that the amount he has received is deficient. It was, or should have been, realized by all concerned that in the circumstances the pool might result in a loss. A loss was actually incurred. The measure of the respondent's right is reg. 17 (1) or reg. 17 (3). The opinion was not indicated in The Commonwealth v. New South Wales (1) that the just terms must appear in the statute of acquisition. Attorney-General v. De Keyser's Royal Hotel Ltd. (2) establishes that the taking of personal property under a statute per se imports a common-law obligation to pay. In Newcastle Breweries (Ltd.) v. The King (3) there was a statutory obligation to pay. Yearsley vy. W. A. Ross Construction Co. (4), Richmond Screw Anchor Co. v. United States (5) and Jacobs v. United States (6) do not support the proposition that the regulations contain or should contain a code of recompense, but, on the contrary, they show that in the United States of America there is no necessity or obligation to deal with the basis of compensation or to provide in general terms for full compensation. Reg. 17 is a sufficient specification for just compensation (Andrews vy. Howell (7) ). Tt also implies that there is a right to be heard. The obligation to give just terms for property acquired does not necessarily apply to an exercise of the defence power under sec. Bl (vi.) of the Constitution. The action should be dismissed. If, however, the judgment stands it should go against the Common- wealth and not against the appellant Board.

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The legislative powers of the Parliament are not plenary, but are restricted to those conferred upon it by the Constitution and are subject to any limitations or conditions imposed by the Constitution. It cannot free itself from such limitations or conditions ; only the process provided for by sec. 128 of the Constitution (or, in theory, the Imperial Legislature) can do that; nor can it decide for itself whether a purported exercise of a power is valid ; and if an exercise of a power involves any legal consequences prescribed by the Con- stitution it cannot exempt itself from any of those consequences. The questions whether an Act of the Federal Parliament is valid, and if so whether it involves any and what legal consequences, can be determined only by an exercise of the judicial power, either by this Court, by some other Federal court which the Federal Parlia- ment has created, or by some other court which it has invested with Federal jurisdiction in that behalf, or by some court when the question arises in proceedings before it and is not removed into this Court under secs. 40 and 40a of the Judiciary Act 1903-1940. But no body but a court can be invested with such jurisdiction. The power now in question provides that: "The" (Federal) " Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: - . . . The acquisition of property on just terms " - not, it is to be observed, on such terms as to it seem just - * from any State or person for any purpose in respect of which the Parliament has power to make laws " (sec. 51, placitum xxxi. of the Constitution). But "any ' property' specified in the statute may be taken provided 'just térms' are available by law" (per Isaacs J. in The Common- wealth v. New South Wales (1) ). This limitation or restriction is an " affirmance of a great doctrine established by the common law for the protection of private property " (Story on the Constitution, 3rd ed. (1858), vol. 1., p. 596, par. 1790) and is in accordance with Magna Carta, which 'protected every individual of the nation in the free enjoyment of his life, his liberty, and his property, unless declared to be forfeited by the judgment of his peers or the law of the land" (Blackstone, 4th ed., vol. tv.,p. 417). Sec. 5 (1) of the National Security Act 1939-1940 provides that the Governor-General may make regula- tions (b) for authorizing (ii) the acquisition on behalf of the Common- wealth of any property other than land. In purported exercise of this Act the National Security (Apple and Pear Acquisition) Regula- tions were made. These provide by reg. 12 that the Minister for Commerce may make provision by an order published in the Gazette for the acquisition by the Commonwealth of any apples and pears (1) (1928) 38 C.L.R., at p. 47.

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described in the order, and thereupon they are to become the absolute property of the Commonwealth, and the rights and interests of every person therein are converted into claims for compensation. On receipt of a notice from a Board set up by the regulations, a person having in his possession any apples or pears which have been so acquired must deliver or consign them to an agent (reg. 14). Reg. 17 provides that upon any such delivery, or upon any apples or pears being disposed of in accordance with instructions from the Board, every person having any right or interest in them may forward to the Board a claim for compensation and shall be entitled to be paid such amount of compensation as the Minister, on the recommenda- tion of the Board, determines. This regulation provides a simple non-litigious way in which persons who have been deprived of their property may obtain compensation for the loss of its value if they are willing to accept what the Minister on the recommendation of the Board is willing to give, and it provides the Minister with authority to pay them what they are willing to take if he thinks it reasonable to do so; but it does no more, and I see no reason for supposing that it was intended to do more. By virtue of placitum xxxi. their property cannot be taken from them except upon just terms. Reg. 12 expressly provides that upon the acquisition of the property in question the rights of all persons interested " shall thereupon be converted into claims for compensation." The acquisition is in the nature of a compulsory statutory sale and the expropriated party is in the position of a vendor making an agreement for sale on the terms of receiving the value of the article appropriated. This excludes the possibility that the appropriation was not intended to be operative unless the property could be had for nothing ; and there is nothing in reg. 12, whether it be read alone or in conjunction with reg. 17, to suggest that the appropriation was intended to be operative only if the persons expropriated were content to take such compensation as might be offered to them by the Minister. The terms of reg. 12 are absolute. The Commonwealth acquires the property and the former owners acquire a right to compensation. These are just terms. If, however, the persons who have been expropriated are not prepared to accept in full satisfaction what the Minister may think fit to offer them pursuant to reg. 17 there is nothing to compel them to do so. By accepting the invitation to make a claim which is put forward by reg. 17 they do not bind themselves by agreement or estoppel to restrict themselves to what- ever the Minister may be prepared to give. He has no authority to determine the matter in invitos; and the Federal Parliament has no power to invest him with such authority. No doubt it could

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constitute a special court for the purpose; but this would have to be a Federal court, the appointment, tenure and remuneration of whose judges would be subject to sec. 72 of the Constitution, not a person who was or might be subject to the control or influence of the legislature (New South Wales v. The Commonwealth (1)). The fact that the Federal Parliament in taxation statutes may lawfully set up administrative persons or tribunals to determine the amount of tax payable supplies no analogy, because (apart from the pro- hibition of discrimination) its powers in respect of taxation are absolute, and it may select any criterion it pleases to determine quantum and determine it conclusively. But its power to expro- priate is limited by a qualification or inhibition which it has no power to alter. It is by the Constitution itself that the acquisition is required to be on just terms, and, since Parliament is bound by the Constitution, by no artifice or device can it withdraw from the determination by a court of justice the question whether any terms which it has provided are just, that is, terms which secure adequate compensation to those who have been expropriated. In interpreting the words in the Fifth Amendment to the United States Constitution "just compensation", from which the words "just terms " in the Australian Constitution are derived, the Supreme Court of the United States has decided in a number of cases that compensation must be a full and perfect equivalent for the property taken. In Jacobs v. United States (2) it was said : - " The amount recoverable was just compensation, not inadequate compensation. The concept of just compensation is comprehensive and includes all elements, 'and no specific command to include interest is necessary when interest or its equivalent is a part of such compensation.' The owner is not limited to the value of the property at the time of the taking ; 'he is entitled to such addition as will produce the full equivalent of that value.' Interest at a ' proper rate' is a good measure by which to ascertain the amount so to be added" (Seaboard Air Line Railway Co. v. United States (3)). And in Monongahela Navigation Co. v. United States (4) it was stated that the ascertainment of "just compensation " is a judicial inquiry; the determination of what property is to be taken is a question of political and legislative character. Similarly I consider that the ascertainment of what are "just terms" does "' produce a lis" between the parties (Errington v. Minister of Health (5); Estate and Trust Agencies (1927) Ltd. v.

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But assuming that growers who have delivered or consigned their fruit to the Board or otherwise dealt with their fruit as provided in reg. 17 can only recover compensation under that regulation, then it would follow that growers enmeshed by reg. 17 have no right to have their claims determined by an impartial tribunal; no right of being heard by written statement or orally by the Board or by the Minister; no right to discovery, particulars or interrogatories for the purpose of-ascertaining what their fruit or comparable fruit had brought on the market ; and if they could obtain this informa- tion from any other source, no right to have their claim to compensa- tion determined in the light of this information ; no right to have what the Board considered a just recommendation adopted by the Minister ; no right to compensation at all under the regulation on the basis of what the Board considered a just recommendation unless the Minister was prepared to adopt the recommendation ; no right to any information as to the basis upon which the Board based its recommendation ; no right to challenge the basis however unjust it might be in fact; no right, if the Minister purported to assess compensation, to know whether it was in fact based on the recommendation of the Board. Thus the regulation, if exclusive, provides for all those things which have always been considered to be a violation of natural justice. i.e., (1) the determination of the compensation by (in a legal sense) a biassed tribunal; (2) no right of audience of the claimant before the tribunal; (3) no knowledge of the basis or the evidence upon which the tribunal has acted. So far as the decision in Andrews v. Howell (1) is concerned the complete application of placitum xxxi. was not considered in all its aspects. The decision centred on the question whether the regulations taken as a whole and including the absolute right to compensation given by reg. 12 were warranted by the defence power. The real meaning of the words used in a judgment must be studied having regard to the subject matter and all the circumstances. No " court should

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to apply under this sub-regulation for a determination may bring an action for the assessment and recovery of compensation. The question turns on the construction of the regulations. Reg. 12 con- verts the rights and interests of every person in all the apples and pears which by force of the Minister's order became the absolute property of the Commonwealth into claims for compensation. Reg. 17 (1) is expressed to apply upon the delivery or consignment of acquired fruit in accordance with reg. 14, or when it has been dealt with or disposed of, in accordance with the Board's instructions. In the case of Andrews vy. Howell (1) I agreed with my brother Dixon's construction that reg. 17 (1) contains a specific provision as to the occasion when compensation should be paid and the authority by whom the measure shall be determined. Further consideration has not caused me to depart from that opinion, and I think it is clearly right, at any rate, so far as it defines the right of any person who like the plaintiff is eligible according to the express provisions of reg. 17 (1) to forward a claim for compensation to the Board. In Andrews v. Howell (2), Dixon J. said : - * Reg. 12 converts all interests in the fruit acquired into claims for compensa- tion. If it stopped there, 'compensation' would doubtless be construed as meaning a full recompense to be recovered in and assessed by a court of law, and there could be no doubt of the justice of such a provision. But the regulations do not stop there. Reg. 17 contains a specific provision as to the occasion when compensation should be paid, and the authority by whom the measure shall be determined." His Honour further said: " Where reg. 12 converts all interests into claims for compensation it necessarily implies that the claim for compensation shall be paid by the Commonwealth, although no doubt in the manner afterwards stated" (3). The manner is stated in reg. 17. His Honour further said : - ' The regulations are defective in the expression of a measure of compensa- tion, but that measure is indicated, although somewhat indistinctly, by reg. 17 (2) construed in combination with the general purpose stated in reg. 2. Reg. 17 (2) says that it shall not be necessary for the Minister to make a determination until in his opinion a sufli- cient quantity of any apples or pears acquired by the Commonwealth had been disposed of to enable the Board to make a just recommenda- tion. This is an indication that the compensation is to be the result of the marketing of the apples and pears and the receipt of the proceeds for distribution, after proper deductions, among the

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It would not be consistent with this construction to hold that reg. 12 gives by implication a right to sue in a court of law for the assess- ment and recovery of compensation. The claim for compensation given by this regulation arises upon acquisition. It is a claim for compensation which at the time of acquisition is of an indeterminate amount, as Rich J. has pointed out in Andrews v. Howell (1), where he said: "I think that upon a proper understanding of the regula- tions, they sufficiently confer upon the grower an absolute right to @ compensation determined in a fair manner by a specified adminis- trative body. I am therefore of opinion that there is a sufficient compliance with the terms of sec. 51 (xxxi.) of the Constitution". The italics are mine. The Minister may not make a determination except on the recommendation of the Board and he may decline to make any determination until in his opinion a sufficient quantity of apples and pears has been sold to enable the Board to make a just recommendation. As the regulations are valid, it must be presumed that when the Minister is of that opinion a recommendation made by the Board and a determination made by the Minister on that recommendation are just. Reg. 17 (1) intends that the determina- tion of the Minister should be based on a just recommendation. If the supposition be correct that reg. 12 gives a claim for just com- pensation, the supposition does not make it necessary to imply that the regulation gives a right to enforce the claim by action where the remedy provided by reg. 17 (1) is available to the claimant. Whatever reg. 12 may imply, it does not imply the conditions which reg. 17 (2) shows to be necessary to the making of a just recom- mendation. Compensation which is just according to the regula- tions can have one measure only. The measure is indicated by reg. 17 (2) and reg. 2: See Andrews v. Howell (2), per Dixon J. An assessment of compensation made independently of the consider- ation which reg. 17 shows to be preliminary to a just determination of compensation would necessarily be defective. This is, in my opinion, a reason for denying that reg. 12 necessarily implies a right to receive such an amount of compensation as a court would hold to be just.

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which at the time of acquisition formed part of a total production exceeding the demand, It was acquired by the Commonwealth to minimize the disorganization in the market and for this purpose the Commonwealth is made the sole vendor. The question may be asked by what criterion would the Court assess the value of any quantity of such fruit immediately on acquisition. At that point of time the value of the fruit was that which it had as a commodity that was to be sold within a limited period of time in a market which throughout that period was likely to be disorganized by the causes mentioned in reg. 2. These causes would produce an uneconomic disproportion between the supply, the inflated factor, and the demand. The presumption is that the Executive complied with the directions in reg. 2 and the acquisition was made for the purpose of minimizing the disorganization. If the fruit in respect of which it is supposed that the Court is trying the claim for compensation had in fact been sold by the Board, the sale was made under conditions of order and a better balance between the quantities of fruit being fed to the market, and its digestive capacity. The amount realized by the fruit under better economic conditions which were brought about by the acquisition of the season's crop and the control of its sale by the Commonwealth is not, in my opinion, a true criterion of the value of the fruit at the time of acquisition when the grower was confronted with the likelihood of a disorganized market. If the question is triable by a court, what is the criterion for assessing the compensa- tion payable to a claimant if the fruit acquired from him was not sold by the Board, or if it was destroyed before it was consigned to the Board? The supposition requires that it should be just compensa- tion. It would not be just compensation unless it were based on the value realized by fruit comparable with that of such claimant. The adoption of that measure of compensation would imply that the price obtained by the Board under the conditions brought about by acquisi- tion and control by the Commonwealth could have been obtained by the grower whose fruit was sold or the grower whose fruit was not sold if there had been neither acquisition nor control. This conclusion would involve a denial of the conditions which reg. 2 declares it was the purpose of the regulations to meet.

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