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  • Unreported Judgment

Mahaffey v Thomson

 

[2002] QSC 45

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Mahaffey  Thomson and Queensland Dairy Authority [2002] QSC 045

PARTIES:

TREVOR JOHN MAHAFFEY
(applicant)
v
ROBERT STANLEY THOMSON
(first respondent)
QUEENSLAND DAIRY AUTHORITY
(second respondent)

FILE NO/S:

No. S 1081 of 2002

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

1 March 2002

DELIVERED AT:

Brisbane

HEARING DATE:

25 February 2002

JUDGE:

White J

ORDER:

Dismiss the application for review.

CATCHWORDS:

ADMINISTRATIVE LAW – Judicial Review – Dismissal of application pursuant to ss 13 and 48 Judicial Review Act 1991

Dairy Industry Act 1993, ss 2, 3, 6, 7,13, 48,  49, 54, 96, 102

Judicial Review Act 1991, ss 13,  48

Australian Broadcasting Tribunal v Bond [1990] 170 CLR 321.

Paragon Finance plc v Noveiri [2001] 1 WLR 2357

COUNSEL:

Mr Bell who is not legally qualified assisted the applicant

Mr K Wilson for the respondents

SOLICITORS:

Hunt & Hunt for the respondents

  1. The applicant, Mr Mahaffey, seeks judicial review of alleged decisions and/or conduct by the first respondent, Mr Thomson, who is the general manager of the second respondent, the Queensland Diary Authority (“QDA”), and the second respondent, QDA.
  1. This hearing was appointed as a directions hearing by the registry but the respondents, as a preliminary point, seek to have the application struck out on two bases – pursuant to s 13 and s 48 of the Judicial Review Act 1991 (“ the JR Act”).
  1. Mr Mahaffey was assisted by Mr Bell on the application to the extent that Mr Bell had prepared written submissions and made oral submissions.  Mr K Wilson, who appeared for the respondents, did not object to Mr Bell’s role.  Mr Mahaffey asked the court if he could use Mr Bell’s assistance in this way.  He is a dairy farmer from the Gympie area.  Initially he had retained solicitors to act on his behalf in his disputes with the respondents but he no longer has the financial means to do so.  There is no suggestion that Mr Bell offers his assistance other than freely to persons such as Mr Mahaffey.  He describes himself as a civil libertarian who is undertaking a law degree and indicates, in a written document, that he has given assistance on many occasions to persons unable to afford solicitors. 
  1. He correctly notes that issues of judicial review of administrative discretion and statutory interpretation contain difficult concepts, perhaps not readily grasped by many lay persons. Mr Bell’s conduct in court was appropriate and I have no doubt that Mr Mahaffey considered that he was much assisted by Mr Bell. However, a recent decision by the English Court of Appeal, although based on English statutes for the most part, adverts to many difficulties which can arise when persons not legally qualified are permitted to take the role of advocate for others in the courts, Paragon Finance plc v Noveiri [2001] 1 WLR 2357.  None of the concerns which were ventilated in the Court of Appeal would appear to be present here.

Facts

  1. Mr Mahaffey produces and sells a diary product known as “Pet’s Organic Fresh Milk”. The milk is produced from his herd of cows and is neither pasteurised nor homogenised. Mr Mahaffey deposes that the rationale behind this business was threefold:
  • After the deregulation of the diary industry the price per litre which he could get for his market milk dropped significantly from 59 to 30 cents per litre which was not economically viable so that he needed to find alternative markets for some of his product.
  • Mr Mahaffey was aware “of the substantial nutritional deficits of heat treated milk as food for animals” and that pet owners were prepared to pay a premium for better and different types of pet food.
  • He considered that discerning pet owners as a market “might very well coincide to a large extent with discerning health conscious persons who were regular clients of health food stores” and accordingly selected those stores as retail outlets.
  1. Mr Thomson deposes that QDA received a number of complaints from fresh milk producers such as Pauls, Moo-Loo Milk and Dick Schroder that Mr Mahaffey’s “Pet’s Organic Fresh Milk” was being stored alongside milk intended for human consumption and was also being sold for that purpose notwithstanding that it was not pasteurised.  Mr Thomson appointed an officer of  QDA to investigate.  He attended at Mr Mahaffey’s farm noting how the milk was packaged and labelled.  He purchased a litre of Pet’s Organic Fresh Milk from a café in Eumundi and reported to Mr Thomson that the operator told him that it was like “old school milk” and could be drunk by humans.
  1. The sample was sent for testing by the Centre for Food Technology. The results indicated that it did not comply with the standards applicable to milk for human consumption and, accordingly, was not fit for human consumption.
  1. In April 2001 Mr Thomson received copies of fliers and leaflets published by Mr Mahaffey which are exhibited to his affidavit.  The label “Pet’s Organic Fresh Milk” states that it is not pasteurised and not homogenised, neither are herbicides, pesticides or artificial fertilisers used.  The purchaser is advised:

“KEEP REFRIGERATED  This produce is not Pasteurised, therefore Animal Food Only.  Not for human consumption.”

The words “Animal Food Only.  Not for human consumption” are in the smallest font used on the label.  A flyer describes the dangers of pasteurisation, referring to scientific research which has concluded that pasteurisation destroys vitamin A, 38% of vitamin B complex and 50% of vitamin C in milk.  A further flyer is headed “Homogenised Milk Could Kill You!” and sets out in great detail the negative results of homogenisation.  These documents are clearly referable to human consumption.

  1. There is a further flyer which states:

 

WHY IS THIS

        QUALITY FRESH

         MILK PRODUCT

    LABELLED:

 

         ‘NOT FOR HUMAN

CONSUMPTION’

 

Current Queensland legislation forbids

the sale of fresh milk from the diary.

This ensures that only milk which has

been processed, by factories generally

owned by national and international

conglomerates, is the only milk

available to the public for sale.

 

Because of this policy we are required

To label this quality fresh milk “not for

human consumption”.

 

        PET’S

    ORGANIC

  FRESH MILK

  1. Further testing was carried out on samples of Pet’s Organic Fresh Milk, all of which revealed that the milk was not fit for human consumption according to the standards adopted by QDA. Mr Thomson decided to prosecute Mr Mahaffey for breaches of the Act and served on him a complaint and summons for breaches of s 49 of the Dairy Industry Act 1993 (the “Act”). 
  1. On the day of the hearing on 8 September 2001 Mr Mahaffey and his wife and QDA negotiated a settlement. A deed was prepared whereby it was agreed that Mr Mahaffey would write to all existing retailers of the Pet’s Organic Fresh Milk product in settled terms and prepare a sign and use his best endeavours to insert it into each fridge in which the product was sold by the retailers warning consumers that it was un-pasteurised pet food not fit for human consumption and might contain organisms that could be injurious to health.
  1. Earlier, in late August 2001, Mr Thomson had became aware that several people had taken ill in the Sunshine Coast region possibly due to their consumption of Pet’s Organic Fresh Milk or, at least, unpasteurised milk. The Queensland Department of Health became involved in the investigations about Mr Mahaffey’s product.  An officer of QDA informed Mr Thomson that he had visited a number of shops at the Sunshine Coast and was advised by the owners that they had not received letters or notices pursuant to the terms of the deed.  Other persons associated with health food stores have sworn affidavits tendered on behalf of Mr Mahaffey relating to visits by officers of QDA earlier this year.  Some depose that it is not worth the adverse publicity and the difficulties to stock Mr Mahaffey’s product.
  1. QDA has apparently resiled from the deed but has not sought to re-instate to prosecution.
  1. Mr Thomson deposes that he and QDA are concerned that Pet’s Organic Fresh Milk is being placed, presented or packaged in such a way that consumers might purchase it for human consumption in the mistaken belief that it is fit for that purpose. QDA has resolved to take all necessary steps to protect the public including condemning Mr Mahaffey’s product if that is necessary although no decision has been taken to do so.
  1. There are some contested facts apparent on the material but not such that this application cannot be dealt with.
  1. The application raises many complaints some plainly not referable to judicial review. These reasons will not take up every complaint.

The Dairy Industry Act 1993

  1. Mr Mahaffey contends that the Act does not apply to his product because it does not empower QDA to act with respect to “pet food” and the standards applied to his product were not the appropriate tests, being those for human consumption.
  1. The objects of the Act, set out in s 2, are to make provision for licences for producers and processors and

“standards for the diary industry, quality and safety of diary produce and incidental matters”.

  1. Section 3 of the Act is the definition section. Relevantly for this application
  • dairy produce” means

(a) milk; or

(b) a product consisting substantially of milk or milk solids and classified by regulation as a form of dairy produce.

  • milk” means the milk of a bovine animal or of any other animal prescribed by regulation for the purposes of this definition.
  • market milk” means dairy produce intended for sale for human consumption as milk, and includes any kind of diary produce classified by regulation as market milk.
  • sell” includes

(a)offer or exposed for sale; and

(b)give away as a way of promotion or advertisement.

  1. The functions of QDA established by s 6 of the Act are set out in s 7. They are, inter alia,

“(b)to establish, and ensure compliance with, appropriate standards for the diary industry and for diary produce … “

  1. Part 4 Division 3 of the Act authorises QDA to make standards with respect, inter alia to the quality and classification of dairy produce; the testing and analysis of dairy produce; the prevention of disease; and safety of dairy produce.  QDA has made standards under this power.  The standards relate to diary produce for human consumption. 
  1. By s 49

“(1)Dairy produce intended for sale for human consumption must comply with the authority’s standards.

(2)A person must not, without the authority’s consent and without reasonable excuse, sell dairy produce that does not comply with the standards applicable to the diary produce.”

A penalty is imposed for contravention.

  1. By s 54

“(1)If an authorised person believes on reasonable grounds that diary produce examined by the authorised person is unfit for human consumption, or does not comply with the authority’s standards, the authorised person may, by order, condemn the diary produce.

(3)If, in the authorised person’s opinion, an analysis should be carried out in order to determine whether an order should be made under subsection (1) in relation to dairy produce, the authorised person may direct that the diary produce be detained at a specified place until the analysis is carried out.”

  1. By Part 6 Division 1 of the Act the Dairy Industry Tribunal is established. The tribunal consists of three members appointed by the governor in council of whom the chairperson is to be a judge, magistrate, barrister or solicitor and at least one is to be a person with wide knowledge and experience of the diary industry. The jurisdiction of the tribunal is to be found in s 96. A person aggrieved by an order, determination, direction or decision of the authority or an authorised person may appeal against the order, determination, direction or decision to the tribunal. Certain matters are excluded from appeal, not here relevant. By ss(3) an appeal may be based on one or more of the following grounds:

(a)That the order, determination, direction or decision is not in accordance with this Act;

(b)That the order, determination, direction or decision is manifestly unfair to the appellant;

(c)That the order, determination, direction or decision will cause severe and unjustified financial hardship to the appellant.

(4)In this section, a reference to an order, determination, direction or decision includes a reference to a failure to make an order, determination or a decision or give a direction.”

  1. Section 54(1) of the Act is of wider ambit than s 49. Mr Mahaffey contends that it should be read down to apply only to diary produce intended for human consumption. There is no basis for doing so. Each provision serves a distinct and separate purpose. On its face s 54(1) permits the condemnation of dairy produce – defined in s 3 relevantly as “milk” – if either
  • It is believed on reasonable grounds to be unfit for human consumption or
  • It does not comply with the authority’s standards.
  1. QDA has not condemned Mr Mahaffey’s product.
  1. Section 49, however, is a penal provision. It prohibits the sale of dairy produce intended for sale for human consumption if it does not comply with the relevant standard. The way in which Mr Mahaffey’s product is packaged and distributed in health food shops together with the content of the leaflets distributed by him could lead QDA reasonably to conclude that it is intended (or was intended), inter alia, for human consumption.  See also s 102(3) of the Act concerning proof of state of mind.

Section 13

Section 13 of the JR Act relevantly provides that where provision is made by a law other than the JR Act under which the applicant is entitled to seek a review of the matter by another court or tribunal, authority or person the court must dismiss the application if it is satisfied, having regard to the interests of justice, that it should do so.  That really disposes of Mr Mahaffey’s application.  The Dairy Industry Tribunal is the very body designated by Parliament to consider complaints and concerns about decisions etc. made by QDA or a person authorised by QDA.  Mr Bell could advance no explanation as to why Mr Mahaffey had not proceeded in that tribunal save to make some oblique suggestion of bias, but it was clear that the matter had not been given much, if any, consideration.  There are no interests of justice which would dictate that the application should not be dismissed.  It would seem to be less expensive (no lawyers, only by lay agent), less formal and generally more amenable to the ventilation of Mr Mahaffey’s complaints.  Needless to say, he must satisfy the jurisdictional requirements of s 96 but that is less difficult than pursuant to the JR Act.

Section 48

The court may dismiss an application under s 20 – 22 or s 43 if the court considers, inter alia, that no reasonable basis for the application is disclosed, s 48(1)(b).  The decisions which are identified in the material and the application appear to be

  • To continue testing Mr Mahaffey’s Pet’s Organic Fresh Milk when considered appropriate, and
  • To refuse to undertake not to do so.

These are not decisions to which the JR Act applies, Australian Broadcasting Tribunal v Bond [1990] 170 CLR 321.  The first is merely “a step along the way” to a decision to condemn or to charge.  The second likewise is not a decision of the kind governed by the JR Act.

  1. The decisions set out at paras 1-6 of pp 1 and 2 of the application could not be characterised as relevant decisions:
  • conspiracy to entrap and prosecute Mr Mahaffey for promoting his product;
  • applying human consumption tests to an animal food product;
  • threatening to condemn the product if not withdrawn from sale;
  • not complying with requests for reasons for declining to undertake not to harm Mr Mahaffey’s business in so far as it relates to the Pet’s Organic Fresh Milk;
  • engaging in visits to Mr Mahaffey’s retailers knowing that his business was likely to be damaged when it was improper to do so.
  1. Mr Mahaffey does not depose that the testing was carried out incorrectly. There was no requirement to give reasons since the decision for which they were requested was not one to which the JR Act applies.  The first seven concern allegations of negligent or false representations about Pet’s Organic Fresh Milk made by the respondents.
  1. The conduct in para 8 was the use of insulting language in a licence issued to Mr Mahaffey’s family.  The material shows that an apology was issued in the Parliament.  Para 9 complains of continued “ultra vires” dealings with Mr Mahaffey’s retailers for improper purposes.  Although it may seem so to Mr Mahaffey, the material goes no further than to show that QDA is carrying out its proper functions under the Act.
  1. The grounds in the application are those set out in ss 20 and 21 of the JR Act.  The order sought for certiorari is incomprehensible.  It seeks an order that QDA is not lawfully entitled to condemn Mr Mahaffey’s product pursuant to s 54 or otherwise.  There is, in any event, no decision to condemn.
  1. Any activity of QDA identified in the material is within the parameters of the Act. Mr Mahaffey may not like or approve of the policy of the Act but that is not justiciable. It is a matter for the Parliament.
  1. Mr Mahaffey seeks an order for the immediate payment of a sum of money to cover his costs in light of the conduct of the respondents. That must fail.
  1. The order is that the application for review filed 4 February 2002 be dismissed.
Close

Editorial Notes

  • Published Case Name:

    Mahaffey v Thomson & Queensland Dairy Authority

  • Shortened Case Name:

    Mahaffey v Thomson

  • MNC:

    [2002] QSC 45

  • Court:

    QSC

  • Judge(s):

    White J

  • Date:

    01 Mar 2002

Litigation History

No Litigation History

Appeal Status

No Status