The Committee of Direction of Fruit Marketing v. The Delegate of the Australian Postal Commission [1979] FCA 55

QUEENSLAND DISTRICT REGISTRY ) GENERAL DIVISION ' BETWEEN : AND :

IN THE FEDERAL COURT OF AUSTRALTA) QUEENSLAND DISTRICT REGISTRY ) G. No. 3 of 1978 GENERAL DIVISION }

Plaintiff AND : THE DELEGATE OF THE AUSTRALIAN POSTAL COMMISSTON

• Defendant

Coram: Franki, Northrop and Brennan JJ. 14 June 1979

This 18 a proceeding brought by the Committee of Direction of Fruit Marketing ("the C.0.D.") in relation to a decision of Smithers J. sitting as the Administrative Appeals Tribunal. The defendant in these proceedings is the Delegate of the Australian Postal Commission. The C.0.D. produces a publication called "Queensland Fruit and Vegetable News". By-law 118 made by the Australian Postal Commission under the Postal Services Act 1975

"118, <A publication is eligible for registration as a registered publication if -

(a) its proprietor is not the Commonwealth, a State or an authority of the Commonwealth or of a State;

A decision dated 27 October 1977 was made on behalf of the Postal Commission whereby it decided that the

publication called "Queensland Fruit and Vegetable News"

was not eligible for registration as a registered publication

within the provisions of by - law 118(a) on the ground that the C.0.D., the proprietor of the publication, was an

Smithers J. dismissed an application for review holding that the C.0.D. was an authority of a State within the meaning of by-law 118(a).

The proceedings before Smithers J. did not involve the consideration of any oral evidence but only an

examination of the Postal Services Act 1975 and the

regulations made thereunder and certain Queensland Acts

"Subject to sections 35 and 36, the Tribunal shall give reasons in writing for its decision and those reasons shall include its fandings on material questions of fact and a reference to the evidence or other material on which those findings were based."

The only appeal to this Court is under s.44, and s.44(1) provides :

The oral evidence which the C.0.D. sought to call concerned any actual directions which the C.0.D. had issued under

s.7 of the Frurt Marketing Organisation Acts, 1923 to 1964 (Q.) ("the Act") and the way in which funds were collected

and used under s.14B of the Act to "enable the Court more clearly to appreciate the nature of the Committee of

In general a question of law arises after the determination of any necessary facts and the nature of the question of law usually depends upon the facts as determined. The principles which should apply to the reception of further evidence by this Court were not the subject of detailed submissions to us and whilst I do not wish to attempt to formulate any general rule it seems that only in the most unusual circumstances,

if at all, would this Court be justified 1n admitting

~he fresh evidence. I take this view notwithstanding that the application to this Court, although loosely called

an appeal, is an application in the original jurisdiction of the Court. Certainly in these proceedings it was appropriate to reject the application. No question of remitting the case to the Tribunal for the hearing of

further evidence under s.44(5) of the Administrative

Appeals Tribunal Act 1975 arose. (See generally Sullivan v. Department of Transport (1978) 20 A.L.R. 323.)

The only issue before us is whether Smithers J. correctly held that the C.0.D. was "an authority of a

It is first necessary to examine the way the C.0.D. is constituted, its functions and its powers. We were referred generally to the regulations under the Act including regulations under it entitled "The Committee

Under s.6(2) of the Act the C.0.D. is constituted a body corporate but s.6(4) provides that it "...shall not be deemed to represent the Crown for any purpose whatsoever". It is given certain general powers by s.6(5) and in particular by s.6(5)(vii) power "To impose levies on fruit marketed, whether or not such fruit is or is about to be marketed by or under the authority of the Committee of Direction pursuant to a direction or an Order in Council in that behalf duly issued under the

Regulations of 1973 set out the position with regard

empowered to make in relation to certain fruits and vegetables. As an example, the position with respect to pineapples is very broadly as follows. Regulation 2(1) empowers the C.0.D. to make a levy, for the purposes of the Act, on all fruit growers growing pineapples in Queensland for marketing at any place

in the State. The amount of the levy is fixed in the regulations and an obligation is imposed on the fruit grower to pay the amount of the levy to the C.0.D. in respect of pineapples grown and sold or delivered for sale. Any fruit grower who consigns pineapples other than to the C.0.D., or who sells otherwise than through the C.0.D., is required to make a monthly return of the pineapples sold. Every produce agent holding money

to the credit of any fruit grower liable to pay the levy is required to pay the amount of the levy to the C.O.D. In respect of pineapples consigned by rail the levy may be collected by the Commissioner of Railways on behalf of the C.0.D. Other carriers are obliged t make a monthly return to the C.0.D. on all pineapples carried and an authorised officer of the C.0.D. is empowered to inspect the books of any such carrier. All the moneys raised by the pineapple levy shall be expended and used by the C.0.D. only in the interests of the pineapple section of the fruit growing industry of Queensland as directed from time to time by the Pineapple Sectional Group Committee, Provisions are made for the method of the making of the levy and any person failing to comply

with the requirements of the regulation is liable to a

very wide and, although they are not critical by themselves, they are of importance when added to the other matters to

"Control of fruit marketing. The Committee of Direction shall have power from time to time to issue a direction with respect to all

» (i) That all or any of the things included in the marketing of fruit shall be done only by

the Committee of Direction, its agents and servants, or

only by such person or class of persons as the Committee of Direction may appoint; |

(ii) That all fruit in the possession or coming into the possession of any person whomsoever in the course or for the purpose of marketing fruit and during such time as may be determined shall be handled and dealt with only under the instructions and with the authority of the Committee of Direction, or shall be consigned or delivered only to such persons as the Committee of Direction may appoint."

Section 7(2) of the Act provides, inter alia, that a direction may comprise the' whole of the State, or any part thereof, and may extend to the complete marketing of

the relevant fruit or it may be limited to certain functions of such marketing and shall remain in force for the period

Other provisions of s.7 are that notice of intention to issue a direction must be advertised and that any 30 growers of the fruit to which the proposed direction relates may request a poll and the direction shall not be issued if less than three-fifths of the votes polled at the poll are in favour of the issue of the direction. When the direction becomes effective

it is an offence against the Act to fail to comply with

section 7A of the Act, makes, inter alia, the following provision with regard to compulsory acquisition

"Acquisition of fruit by Committee of Direction, At any time any thirty growers of any particular class of fruit of those classes of fruit specified in paragraph (1) of subsection two of section seven may by petition to the Committee of Direction request that a poll of growers concerned be taken that an Order in Council be issued by the Governor in Council declaring that the whole of that particular class of fruit produced in Queensland or in any part or parts thereof shall be acquired by the Committee of Direction as the owners thereof under the provisions of this section."

If a poll of growers is taken and three-fifths of the votes polled are in favour of the making of the order in council the order in council may be made and it may provide that the relevant class of fruit shall be

acquired by the C.0.D. and in such case the property

is divestcd from the growers and vested in the C.0.D.

Section 8 of the Act vests certain powers in the C.0.D. including the power to establish a system of inspection of fruit and to arrange for the supervision of markets. Section 14 provides for a penalty for obstructing or impeding the C.0.D. Section 17 provides a penalty not exceeding $100 for a breach of the Act. Section 144A provides for the accountsto

. The Act also deals with the way the C.0.D. is constituted and very broadly the position is that fruit and vegetable growers in every district who grow fruit or vegetables for sale from a specified minimum area shall be qualified to become members of a local association (s.10 and reg.50). The various local associations then elect six sectional committees, each section representing growers of a particular type of fruit or growers of vegetables (s.11). Broadly the C.0.D. consists of not more than two representatives from each sectional group committee, elected by the relevant committee and appointed by the Minister (s.9). The Director of Marketing is an ex officio member and a consumers! representative may be appointed by the Governor in Council (s.9(2)). Casual vacancies may be filled by the appointment by the Minister, on the nomination of the C.0.D. on the recommendation of the Sectional Group Committee represented by the

of the relevant Minister and the Governor in Council.

The power of the relevant Minister in respect of disputes within the organimtion. (ss.4(2), 8(1) and 10(2)).

The power of the relevant Minister, with the approval of the Governor in Council, to take land for any purpose relating

The power of the Governor in Council to require the C.0.D. to carry on as principal the business of supplying fruit and vegetables in such local authority areas as are specified in

Bo Zaecmea panmaga tomate eT al Soke ayn an a Eli NEL BO na Pham SRS ake EL ot Gate ha ge ats hte lenses melas pt een a en beet ee DAN LT ht rene

acquired by the C.0.D. (s.7A). . The power of the Governor in Council

The references I have made to the various acts and regulations are not complete but they are sufficiently extensive to indicate clearly the nature of the C.0.D.

(a) The C.0.D. in general conforms to the common understanding of an authority of a State;

(b) A number of matters which clearly point in the direction of the C.0.D. being an authority of a State can be identified;

(c) There are no features which can be identified which are positively inconsistent with the ordinary notion of an authority of a State;

(d) Many powers conferred on the C.0.D. are not possessed by private individuals and are of an exceptional nature;

(e) Broadly speaking, it may be said that the C.0.D. is carrying on under governmental authority some undertaking of a public nature for the benefit of the community

Without discussing each of the relevant sections and regulations which I have cited in any further detail it 1s clear that the C.0.D., subject to the approval of sixty percent of the growers of a particular product who vote at a poll, can bring about a situation where all the growers of that product shall market it only through such persons as the C.0.D. may appoint. (s.7). Again subject to sixty percent of the relevant growers voting being in favour, an Order in Council may be issued divesting the property in the whole of a particular class of fruit produced in Queensland from the growers and vesting it in the C.0.D. (s.7A). The provisions that are also made for

penalties for contravention of the Act, and the powers

vested in the C.0.D. to interfere with the ordinary life and conduct not only of growers but indirectly of consumers in the State of Queensland is of significance. There is considerable control by the Minister and,

in some aspects, by the Governor in Council, and the

Since the decision of Smithers J. the High Court has delivered judgment in Western Australian Turf Club v. Federal Commissioner of Taxation (1978) 19 A.L.R. 167. In that case the Court considered whether the Western Australian Turf Club was "a public authority constituted

income Tax Assessment Act 1936. Stephen J. hcld that the Western Australian Turf Club was not such a public authority. Jacobs J. concurred with the reasons of Stephen J. and Barwick C.J. agreed with the conclusions of Stephen J. Aickin J. reached the same conclusion. Whilst the words "public authority constituted under

any Act or State Act" are not quite the same as "authority of a State" I consider that the principles expressed

by Stephen J. clearly indicate the appropriate approach to the problem which we have under consideration.

Stephen J. referred to the need to weigh all relevant

"To treat the question of the status of a body having a variety of functions as a matter of fact and degree, turning upon ta nice balance of considerations! is to apply to it a process familiar enough in determining whether some entity or situation substantially answers some statutory description."

"In the case of s23(d), the possession of some statutory duties or powers is not, I think, enough to attract the income of a body the exemption from tax which the paragraph confers unless, upon examination of all its characteristics, the body can be seen in general to conform to the common understanding of a public authority. In such an examination, in view of the indefinite nature of the term 'public authority', it will perhaps be profitable, as Lord Haldane suggested in the passage

quoted above, to adopt an 'essentially negative method', looking for features clearly alien to the concept of what 18 a public authority and judging to what degree those features are pervasive and amportant."

His Honour later proceeded to examine features which he

described as being unusual in what are commonly regarded

classified as "positively inconsistent with ordinary

gudgment at p.170 reference was made to Renmark Hotel

Inc. v. Federal Commissioner of Taxation (1949) 79 C.L.R.

"In Renmark Hotel Inc. v. FC of T (1949) 79 CIR 10, Rich J, at first instance, having concluded

at p 16 that the British decisions on the Public Authorities Protection Act 1895 (Imp) were no 'guide in

the determination of the present case', said, at p 18, that the characteristics of a public authority seemed to be that it should carry

some undertaking of a public nature for the benefit of the community or a part of 1t. Under s 23(d) it had to be constituted under a State Act. The possession of coercive powers were not essential but the possession of exceptional powers, not possessed by an ordinary private individual, might be. His Honour would have excluded public utilities carried

on for profit by private enterprise from the scope of the phrase. His Honour concluded that the fact that the community hotel in question was not conducted for private profit, any profits being instead diverted to local public or charitable

State Treasury and that its committee was elected by the local public did not make it a 'public authority'. It did not conform

at p 23, likewise discounted these factors; the hotel had not, he

said, been given any power or authority by State law to do acts otherwise unauthorized. His Honour drew from British authority, Griffiths v Smith 11947] AC 170; [TOT] 7 All ER 66, what he regarded as the necessary attributes of a 'public authority'within s 23(d), the performance of statutory duties and the exercise of public functions. McTiernan J, also at 79 CLR p 23, gescribed those attributes as the possession, as a result of statute, of powers or duties to be exercised for public objects. Webb J, at p 24, was content to adopt the test of Isaacs J in the earlier Incorporated

and the exercise of public functions is noted. Aickin J.

at pp.184 to 186 discussed the same case and summed the

"In agreement with the views expressed in the cases referred to above, I regard the basic requirement as being that the relevant Act under which the relevant body is said to be 'constituted' should confer powers of an exceptional nature not possessed by private individuals

or by companies formed by private individuals under the provisions of the Companies Acts."

State" was discussed by Barwick C.J. in General Steel

Industries Inc. v. Commissioner for Railways (N.S.W.) (1964) 112 C.L.R. 125. There it was held that the Commissioner for Railways (N.S.W.) was an authority

of the State for the purposes of ss. 125 and 132 of the Patents Act 1952. His Honour adverted to the difference between the words in issue and other phrases such as "instrumentality of the Crown" whilst indicating, however,

that the two concepts may have some common elements and

be closely allied. His Honour considered the precise terms of the relevant Act and noted that there was a Ministry of Transport divided into departments including the Department of Railways, that the Commissioner was a body corporate deemed to be a statutory body representing the Crown not to be removed from office except on a resolution of each House of the State Parliament,and that the property of the Railways was vested in the Commissioner who collected the revenues and paid them into a fund in the State Treasury which was subject

to the Audit Act and shared certain financial benefits and burdens as if it had continued to form part of the Consolidated Revenue Fund. His Honour came to the conclusion that the Commissioner was in charge of a sub-department of government under the direct control

of the Minister of the Crown and so was an authority

the Patents Act. The meaning of the word "authority" was considered by the High Court in Federal Commissioner

of Taxation v. Silverton Tramway Company Limited (1953) 88 C.L.R. 559 in connection with the phrase "Goods for

-16- use ... by public transport authorities ..." At

"The word tauthority' has long been used to describe a body or person exercising power or

come about by a transfer of Meaning from the abstract conception of power or command

to the body or person possessing it. But in relation to such a public affair as public transport the use of the word 'authority'

as a description of a person or body implies he or it is an

agency or instrument set up to exercise control or execute a function in the public interest whether as an emanation of the general government or as an adjunct of bcal government or as

a specially constituted officer or body. The word tauthority' would not readily be applied in ordinary speech to a company carrying on an undertaking for private profit, even if the undertaking were a public utility and the company had secured a grant of statutory powers to enable it to do so. The natural reading of the expression would be against such an application of it."

At p.570 Taylor J. cites the observations of Rich J. in Renmark Hotel Inc. v. Federal Commissioner of Taxation, supra, including the passage that "The characteristics of a public authority seem to be that 1t should carry on some undertaking of a public nature for the benefit of the community or of some section or geographical division of the community and that it should have

In all the circumstances I am satisfied that the conclusion to which Smithers J. came that "...the essential and arresting feature of the C.0.D. is the nature and extent of its duties, functions and powers in the matter of issuing commands inconsistent with the ordinary rights of citizens and in property and

commerce to impliment the intention of Parliament that

marketing of fruit be organised marketing" was appropriate.

IT am satisfied that the C.0.D. falls within the description in by-law 118(a) of the by-laws made under the Postal Services Act 1975 and I propose that the application be dismissed and that the decision of the Tribunal be affirmed and that the plaintiff should

I certify that this and the siateitn preceding pages are a true cory of the Feasons for Judgment herein of his Honour Mr. Justice Faawn