McClintock v Commonwealth [1947] HCA 39

McClintock v Commonwealth [1947] HCA 39 - HCA 1947 case summary — Zoe

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for the acquisition of his pineapples based upon Order No. 1 therefore 4-. oF A fails. But the appellant claims that if the Commonwealth did not - 1°47 aequire or purport to acquire any of his pineapples pursuant to ania scat Order No. 1 still it was guilty of trover or conversion thereof. It was said that the National Security Act, under which reg. 59, Order (gy ee.. No. 1 and the directions already mentioned were made or given, weavrn. operated as a law for the acquisition of property within the meaning - s.,.,.5. of the Constitution s. 51 (xxxi.) but did not provide just terms as required by the Constitution inasmuch as neither the appellant nor any other grower was heard or had any opportunity of being heard by the Fruit Industry Sugar Concession Committee before the _ price of pineapples was fixed. Consequently it was contended that the provisions of Order No. 1 and also the Control Order No. 14 were invalid. And it was claimed that the Commonwealth through its officers and administrative bodies took possession of the appellant's pineapples and transferred that possession without any lawful

authority to the camners. The argument involves several matters of law.
1, That the constitutional power to make laws for the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws is not confined to laws for the acquisition of property by the Commonwealth _ alone as it contended: The only limitations upon the const power are "just terms" and a " purpose in respect of which the Parliament has power to make laws." And there is no reason for further limiting the power. Authorities, independent of the Common- wealth, may be set up for various purposes under the constitutional powers of the Commonwealth and endowed with authority to acquire _ property. There is no constitutional provision denying this power to the Commonwealth.

That the National Security Act, under which reg. 59, Order No. 1 and Order No, 14 operate, is a law with respect to the aequi- sition of property. The appellant suggests that the Control Order No. 14 is part of the scheme of acquisition. But this order does not affect any property or right of the appellant and only those whose rights are infringed and not strangers are entitled to challenge the validity of legislation, regulations or orders made pursuant thereto. _So far as it is claimed that this order is invalid the appellant is an incompetent party (cf. Victorian Chamber of Manufactures v. The Commonwealth (Prices Regulations) (1) and Victorian Chamber of Manufactures v. The Commonwealth (Women's Employment Regu- ~ Tations) 2)).*

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Committee. And it was expressly stated in the directions to growers that their pineapples were received on behalf of the growers for ' forwarding to the factories which would be the place of delivery. att The Committee also acted because of the existence of Order No. Gongs 1, the validity of which it assumed, and of what may be regarded as wears. the mandate of the appellant. 'Any asportation of a chattel for stark J. the use of the defendant, or a third person, amounts to a conversion ; for this simple reason, that it is an act inconsistent with the general 'tight of dominion which the owner of the chattel has in it, who is entitled to the use of it at all times and in all places" (Fouldes v. Willoughby (1); Hollins v. Fowler (2); Hiort v. Bott (3) ). But the Committee and its loaders never for a moment interfered with the appellant's dominion over his pineapples but on the contrary recog- nized his title throughout. It delivered the appellant's pineapples to factories as the order and the direction thereunder provided and as the appellant contemplated. But I express no concluded opinion upon the question, whether the acts of the Committee of Fruit Direction and its loaders, in the circumstances of this case, would constitute a conversion on the part of the Commonwealth of the pineapples of the appellant, if the Order No. | were invalid. Order No. 2, dated 21st January 1943, next falls for consideration. It revoked Order No. 1. Tt provided that, except with the consent of the Controller of Defence Foodstuffs or his deputy or any person authorized in writing by him to act on his behalf for the purposes of the order, a grower should not distribute, sell, supply, deliver, remove, use, consume or otherwise dispose of pineapples. And also that the Controller might give directions in writing to any grower that all or such proportion as the Controller specified of pineapples of that _ grower should be picked and/or packed by such grower in such manner and within such period as was specified in the direction and/ or sold and/or delivered by such grower to such person and within such period as was specified in the direction. A grower, it was ' provided, should comply with any direction given to him by the Controller and should not pick or pack, sell or deliver pineapples contrary to any direction given to him by the Controller. It was also provided that the person to whom a grower delivered pineapples pursuant to any direction should not reject any pineapples delivered to him without the consent of the Controller and should pay the -grower therefor such price or prices as should be determined from time to time by the Fruit Industry Sugar Concession Committee.

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This increase was granted and the plaintiff received the increased Price for the pineapples he delivered under the Control of Pineapples Order No. 2. _ The Control of Pineapples Order No. 2 was revoked by an order _ made under reg. 59 of the National Security (General) Regulations on 5th October 1943. On the same day the Distribution of Food ~ Order No. 2 was made under reg. 9 of the National Security (Food _ Control) Regulations and posted to the growers. This order provided inter alia, that - (clause 3) a grower should not, except with the _ approval of an authorized officer and in accordance with the terms and conditions of the approval, move, transport, distribute, dispose of, use or consume (otherwise than for his own domestic _ purposes), any preseribed food in his possession or custody or under his control whether on. his own account or on account of any other person; (clause 6) that subject to any direction given under the _ Food Control Regulations, every person who was, immediately before the commencement of this paragraph, under an obligation to comply with a direction given under the Control of Pineapples Order No. 2 _ should continue to comply with the direction according to its tenor. Clause 6 therefore had the effect: of resuscitating the direction which had expired with the revocation of the Control of Pineapples Order No. 2 that growers were to load for factories one half of their crop. On 10th February 1944, directions were given under the Distri- fe bution of Food Order No, 2 to operate from 12th February 1944 to 12th February 1945, and posted to growers accompanied by a circular "f and specification. The circular stated, that taking into consideration the very large service demands, the Department of Commerce and Agriculture had decided to proceed with a diversion scheme to factories under Food Control Order No. 2 on the basis that the C.0.D. had again been appointed the agent of the department for carrying _ out its instructions and the diversion would be on the basis of fifty per cent of the crop. This specification, like the previous specifi- _ cations, provided that the C.0.D. would forward the pineapples to the factory as agents of the growers, but that the place of delivery and acceptance was at the factory and that fruit arriving at the _ factory, not conforming to the standards laid down would, at the discretion of the C.0.D. after inspection by the C.0.D. inspectors, be either (a) dumped or (6) given to the social services. SS vor, Exxve eS 3

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In The Meandros (1) the President, after pointing out that requisi tion is not a term of art, said that it is " a process by which the S takes the use or the possession of, or the property in, chattels, and sometimes in land. But it is infinitely various. If, for instance, a stack of hay is requisitioned, it is requisitioned to be consumed." The first two orders and the directions given pursuant thereto did not purport to requisition the pineapples on behalf of the Common- wealth but to compel the growers to deliver a certain proportion of their pineapples to the canneries and to compel the canneries to pay the growers certain prices for these pineapples. The Commonwealth then purported to control the output of the canneries so that the Commonwealth would have the prior right to acquire so much of the output as was required for the armed forces and to determine to whom the balance of the output should be sold. The evidence does not disclose the prices which the Commonwealth paid to the canne for the output which they acquired, but it is obvious that these pr must have been sufficient to enable the canneries to pay the ( its handling charges, to pay the growers the prices fixed first by the Fruit Industry Sugar Concession Committee and subsequently by the Prices Commissioner, and presumably to make a profit. Nor did the Commonwealth purport to requisition the pineapples under the third order. But it was contended that at least it had requisitioned the pineapples under this order because reg. 12 of the Food Control Regulations provided that where any goods were requisitioned in

pursuance of an order under these regulations the goods should, by foree of, and in accordance with, the provisions of the order, become the absolute property of the Commonwealth. But the words "in accordance with the provisions of the order" indicate to my mind that to become the absolute property of the Common- wealth within the meaning of reg. 12, the order would have to provide that the goods were to be requisitioned by or on behalf of the Commonwealth.

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40 HIGH COURT (1947. ; H.C. or A. by the control which it was able to exercise over the C.0.D., the ue; canneries, the railways, and the selling agents in the markets. The MeCuiwrock Whole purpose of the orders was to compel the growers to deliver the 1 b. proper proportion of their pineapples to the canneries, They were not Com®,,. requested to deliver them voluntarily. It is therefore difficult for i weatrx. the Commonwealth to assert that what it intended should be an act Witlans 3. Of compulsion was complied with voluntarily. As Abbott C.J. said in Morgan v. Palmer (1) in a passage cited with approval by Serutton - LJ. in Brocklebank Ltd. v. The King (2): "Té one party has a - power of saying to the other, 'That which you require shall not be 2 done except upon the conditions which I choose to im pose,' no person F : can contend that they stand upon anything like an equal foot? In such circumstances, as Avory J. said in the court below in Brockle- 4 bank Ltd. v. The King (3), " compulsion is apparent from the' circumstances of the case." F I agree with his Honour that if the plaintiff had delivered his 4 pineapples to the C.0.D. under protest he would have been ines stronger position, but there is no magic in a protest for, as Buckley - L.J. pointed out in Maskell v. Horner (4), a protest simply means that " a further factor is added which goes to show that the payment (in this case delivery) was not voluntary." In Furphy v. Nixon (5) this Court held that a payment by a purchaser in excess of the - money legally due and payable under a contract for the Purchase of land under an unjustifiable threat by the vendor that he would rescind the contract was an involuntary payment, although the vendor had previously refused to accept a payment made under protest. In Brocklebank's Case (6) on appeal Bankes LJ. said "The payment" (here delivery) "is best described, I think, as_ one of those which are made grudgingly and of necessity, but with- out open protest, because protest is felt to be useless." 1 think _ that the evidence establishes that the plaintiff delivered his pine- apples to the C.0.D. under the pressure of an illegal demand made under the colour of a valid law, and that Mr. Barwick is entitled to rely on principles analogous to those stated in Maskell v. Horner (7). Lord Reading C.J. said (8) that - - "If a person with knowledge of the facts pays money, which he is not in law bound to pay, and in circumstances implying that he is paying it voluntarily to close the transaction, he cannot recover it, If a person pays money, which he is not bound to pay, under the compulsion of urgent and pressing necessity or of seizure, actual or threatened, of -

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