Loading...
Queensland Judgments

beta

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

The Queen v Alfred Paget Beatty

 

[1979] FC 13

O.S.C. No. 47 of 1978

THE QUEEN

-v-

ALFRED PAGET BEATTY, VINCENT RUSSELL SMYTHE, PERCIVAL ALEXANDER BUCHANAN, PATRICK DESMOND ROWLEY and ALAN DOUGLAS HOLLINDALE being the Chairman and Members for the time being of the Milk Entitlements Committee

Ex Parte: THE DOWNS CO-OPERATIVE DAIRY ASSOCIATION LIMITED

(Prosecutor)

- and -

O.S.C. No. 48 of 1978

THE QUEEN

-v-

ALFRED PAGET BEATTY, VINCENT RUSSELL SMYTHE, ALAN DOUGLAS HOLLINDALE, PERCIVAL ALEXANDER BUCHANAN and PATRICK DESMOND ROWLEY being the Chairman and Members for the time being of the Milk Entitlements Committee

Ex parte: THE WARWICK CO-OPERATIVE DAIRY ASSOCIATION LIMITED

(Prosecutor)

___________________________________

HOARE J.

W.B. CAMPBELL J.

ANDREWS J.

___________________________________

Revised Full Court Judgment delivered on 27th February, 1979.

___________________________________

“ORDERED THAT NO ORDER AS TO COSTS BE MADE.”

___________________________________

IN THE SUPREME COURT OF QUEENSLAND

FULL COURT

BEFORE:

Mr. Justice Hoare

Mr. Justice W.B. Campbell

Mr. Justice Andrews

BRISBANE, 27 FEBRUARY 1979

(Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter, Court Reporting Bureau)

-----

O.S.C. No. 47 of 1978

THE QUEEN

v.

ALFRED PAGET BEATTY, VINCENT RUSSELL SMYTHE, PERCIVAL ALEXANDER BUCHANAN, PATRICK DESMOND ROWLEY and ALAN DOUGLAS HOLLINDALE being the Chairman and Members for the time being of the Milk Entitlements Committee

Ex parte: THE DOWNS CO-OPERATIVE DAIRY ASSOCIATION LIMITED

(Prosecutor)

-and-

O.S.C. No. 48 of 1978

THE QUEEN

v.

ALFRED PAGET BEATTY, VINCENT RUSSELL SMYTHE, ALAN DOUGLAS HOLLINDALE, PERCIVAL ALEXANDER BUCHANAN and PATRICK DESMOND ROWLEY being the Chairman and Members for the time being of the Milk Entitlements Committee

Ex parte: THE WARWICK CO-OPERATIVE DAIRY ASSOCIATION LIMITED

(Prosecutor)

JUDGMENT

MR. JUSTICE HOARE: We shall deal both with the order to show cause No. 47 and No. 48, that is the Downs Co-operative and the Warwick Co-operative.

The prosecutor in each case obtained an order nisi on 8 November 1978 against the respondents, being the chairman and members for the time being of the Milk Entitlements Committee then set up under the Milk Supply Act of 1977. It is unnecessary in the circumstances to deal with the grounds on which the respective orders nisi were granted.

On 8 December 1978 the amending Act, the Milk Supply Act Amendment Act 1978 was assented to and came into operation on 16 December 1978. The amending Act was retrospective in operation in that sections 27 and 28 of the amending Act were deemed to have been retrospective to 20 May 1978. 20May 1978 was the date on which the 1977 Act came into operation. It is conceded by counsel for the respondents that, at the least, there was an arguable case in support of each of the orders nisi. However, as a result of the amending legislation it is common ground that the orders nisi could not be made absolute. Under these circumstances the prosecutor in each case seeks an order for costs under the provisions of the Rules of the Supreme Court order 90 rule 16 which provides, “When for any reason.....or judge may make such order as may be adjudged.”

Counsel for the prosecutor submits that in the circumstances it is appropriate that an order for costs be made allowing the prosecutor costs up to the date of the amending legislation, namely 16 December 1978. He relies, inter alia, upon the Queen v. the Gold Coast City Council, ex parte Raysun Pty. Ltd. 1971 Queensland Weekly Notes 13.

Counsel for the respondents submits that no order for costs should be made and he refutes submissions that, in effect, the respondents are a committee set up by statutory powers and really implement Government policy. It seems to me that this matter should be determined in principle.

Now, should the circumstances be that the Crown is engaged in litigation and in the course of that litigation the legislation is amended having the result that the further action against the Crown cannot be sustained, then broadly speaking it would seem to me that it would be appropriate that the costs up to that stage should be borne by the Crown.

Taking the case at the opposite extreme, as it were, namely litigation between two citizens or two corporate bodies unconnected with the Crown, then if legislation supervenes on litigation between those persons or bodies with the result that the litigation must cease, then the loss must be borne where it falls; there would be no question of any order for costs.

In a general sense the present case falls somewhere between those extremes. However, it is significant that section 5 of the Milk Supply Act 1977 makes it clear that the Board or any other body constituted under this Act does not represent the Crown. It is true that the respondent committee are appointed pursuant to provisions contained in the Act, but they clearly do not represent the Crown; they are not a Crown instrumentality in the sense in which it is often used as broadly representing the Crown.

Accordingly, it seems to me that on principle this Court would not be exercising a sound discretion in ordering the payment of costs by the respondent in these present circumstances.

MR. JUSTICE CAMPBELL: I agree. A reading of the relevant legislation shows that the Milk Entitlements Committee is a committee constituted under the Milk Supply Act 1977 but that it is not the Crown; it is an unincorporated body which appears to be representative of the industry (see section 57 of the Act where the composition of the committee is set out). Although I have some sympathy in this case for the Prosecutor, I agree with the learned presiding Judge we would not be justified in principle in ordering the members of the committee to pay the Prosecutors' costs.

MR. JUSTICE ANDREWS: I agree with what has been said by my brothers. The only thing that I would care to add is by way of clarification as to the nature of the submissions made by Mr. Carter as to the standing of the respondent. His submission, as I understood it, in a very broad sense simply was that the respondent was not the Crown and under the legislation could not be seen to stand in right of the Crown and could not be seen to represent the Crown. Beyond that, I have nothing to add. I agree with the orders that follow from what has been said by my brothers.

MR. JUSTICE HOARE: The order of the court will be that there will be no order as to costs.

Close

Editorial Notes

  • Published Case Name:

    The Queen v Alfred Paget Beatty

  • Shortened Case Name:

    The Queen v Alfred Paget Beatty

  • MNC:

    [1979] FC 13

  • Court:

    QSC

  • Judge(s):

    Hoare J., Campbell J., Andrews J.

  • Date:

    27 Feb 1979

Litigation History

No Litigation History

Appeal Status

No Status