KRIX & KRIX v THE CITRUS BOARD OF SOUTH AUSTRALIA No. SCCIV-02-1863 [2003] SASC 387

KRIX & KRIX v THE CITRUS BOARD OF SOUTH AUSTRALIA No. SCCIV-02-1863 [2003] SASC 387 - SASC 2003 case summary — Zoe

[52]

34 I mention some aspects of the correspondence between the parties. On 28th February 1997 the male plaintiff wrote to Mr Cain, the Chief Executive Officer of the defendant. He explained his reason for not returning a completed census form sent to him pursuant to s 19 of the Act requiring information relevant to the defendant in the discharge of its functions. Refusal to do so, without reasonable excuse, constitutes an offence: s 19(3). The reasons for his refusal are irrelevant for present purposes. He completed his letter by writing, "Therefore I must continue to protest, and this appears to be the only way I can". Mr Cain responded on 4 March 1997. He regarded the male plaintiff's letter as a response to a letter from him requesting renewal of registration. In his letter, Mr Cain informed the male plaintiff that he was exposing himself to the possibility of legal action for carrying on business as a grower when not registered to do so and of the defendant instructing packers and processors that they could not take delivery of his fruit. He was also informed that he could not be treated differently from any other person. It may be seen that the male plaintiff, and presumably the female plaintiff, were put on notice at this time about what action was later taken. Mr Cain wrote to him again on 26th March 1997 and informed him that the letters had been discussed at a meeting of the Board on 18th March 1997. He was again informed that it is illegal to carry on business as a citrus grower if not registered. The male plaintiff wrote to Mr Cain on 4th April 1997 indicating that his original letter of 28th February 1997 "still stands". Mr Cain wrote to both plaintiffs on 16th April 1997 informing them that as he had received no response to the request for details of the plaintiffs' citrus plantings, it had been concluded by the Board that they "were never a grower and are no longer a grower". They were informed that if nothing was heard from them before 30th April 1997 their names would be removed from the active grower list and packers and processors would be advised that they are not registered and therefore could not take delivery of fruit from them. The letter also contains the following:

[87]

"1 I discuss this frankly.

2 I think the Citrus Board has some problems in that it mixed in its mind the process of renewal and the process under s.19 for non-compliance with information. I do not think a court would have any real trouble with the fact that they required s.19 information as part of the renewal process, coincident in time with it. However, the linking of the giving of that information and suggesting the failure to give it has a consequence that you cannot renew I think is mixing up what the Act says. So, there is in that correspondence some problems for the Board.

3 Also there is a real issue as to whether the correspondence subsequent to the Board decision accurately reflects the minuted Board decision. The minuted Board decision would seem to suggest an authority to take action under s.19 for non-compliance rather than the letter which followed which said, in effect, 'If you don't supply the information within 14 days we won't renew'.

4 So, if that were where the matter rested then I think the Board has some problems. However, the plaintiff has the problem he did not renew. I think the estoppel argument is very weak because I do not think that the plaintiff moved to his disadvantage in relation to any misrepresentation, as his advisor would like to put it, that was given. I think that at the end of the day the plaintiff was determined to go there anyway and make a stand and part of that stand was not renewing. I think the plaintiff will win the battle of proving that the Board, putting it in the vernacular, mucked up the legal procedure to bring his membership to an end, but is likely to lose the war because I think a court will find that he just did not renew and the estoppel argument won't get up. So, the plaintiff will lose because he was not a member because he did not renew, so I think that is where it will end.

5 Having given that and recorded that intimation, I shall have it typed, put in an envelope and have it sealed and it should remain a matter of privacy between the parties. If they proceed and the magistrate who hears it is called upon to make a decision, after making that decision the magistrate could then look at my intimation and that may affect an order as to costs."

[102]

"36 While she does not during the course of her reasons state in as many words that she considered that the appellants had an arguable case, in my view, a fair assessment of the reasons, which extend over some seven pages, is that there clearly was an arguable case over the currency of the registration of the appellants as growers.

37 While no doubt it was proper for some weight to be given to the intimation made by Dr Cannon SM, it seems to me that the more important factor in considering the appropriate order as to costs was the trial magistrate's own assessment of the case, her assessment of the genuineness of the claim, her assessment of the evidence of the appellant Mr Krix and the other matters which she sets out at length in her reasons for judgment.

38 In my opinion, the award of solicitor and client costs or an award on a more beneficial basis than party and party costs should not be lightly made in the Magistrates Court. It is a court in which litigants are entitled to bring their genuine claims, however misguided they might be in pursuing them, and to have them litigated.

39 If a claim is completely without merit, or is an abuse of the process of the court, or is vexatious or quite unsustainable, there is ample procedure available for an application to be brought for summary dismissal of it.

40 It is perhaps surprising that if Dr Cannon SM gave such a dogmatic preview of the plaintiffs' prospects of success, the defendant did not avail itself of those procedures and seek to have the claim struck out. Instead, it went to trial on the issue of the currency of the registration of the appellants at the relevant time, a matter which was obviously by no means straightforward and the subject of some significant arguments which were, in part, generated by the conduct of the Board itself, which might well have given rise to an estoppel.

41 In those circumstances, in my view, a proper basis was not made out for the award of other than party and party costs."

At a glance

Court

Decision date

Before

Source

Judgment (113 paragraphs)

KRIX & KRIX v THE CITRUS BOARD OF SOUTH AUSTRALIA No. SCCIV-02-1863 [2003] SASC 387 (11 December 2003)

Parties

Cases Cited (3)