FEDERAL COURT OF AUSTRALIA

Musgrave v Martin [2003] FCA 920

ADMINISTRATIVE LAW – appeal on question of law – Administrative Appeals Tribunal Act 1975 (Cth), s 44 – whether Tribunal misconstrued definition of “eligible dairy sharefarming arrangement’ in s 4(1) of Structural Adjustment Program Scheme 2000 (Cth) – whether Tribunal misconstrued term ‘false’ in s 35(5) of Scheme (and cl 50 of Schedule 2 to Dairy Produce Act 1986 (Cth)) – whether ‘false’ means purposely untrue, or objectively incorrect – whether statement in application form provided to Dairy Adjustment Authority made to a ‘person’ referred to in cl 50

WORDS AND PHRASES – “false statement”

Dairy Structural Adjustment Program Scheme 2000 (Cth) ss 3, 4, 9, 31, 35, Div 5.2

Dairy Produce Act 1986 (Cth) Schedule 2, cl 5, 6, 7, 50, 55-59, 134 

Dairy Industry Adjustment Act 2000 (Cth)

Dairy Produce Legislation Amendment (Supplementary Assistance) Act 2001 (Cth)

Acts Interpretation Act 1901 (Cth) ss 22, 46

Re Rogers and Dairy Adjustment Authority and the Van Diemen’s Land Company – Dairies Ltd (VDLD) Pinegrove [2001] AATA 937 referred to

Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 referred to

Proudman v Dayman (1941) 67 CLR 536 referred to

R v Bonollo [1981] VR 633 referred to

Collector of Customs v Agfa-Gevaert Limited (1997) 186 CLR 389 at 396 referred to

Brutus v Cozens [1973] AC 854 referred to

Sternberg v The Queen (1953) 88 CLR 646 applied

Cameron v Holt (1980) 142 CLR 342 referred to

Murphy v Farmer (1988) 165 CLR 19 applied

Toy Centre Agencies Pty Ltd v Spencer (1983) 46 ALR 351 referred to

Director of Public Prosecutions v Logon Park Investments Pty Ltd (1995) 37 NSWLR 118 referred to

Dawson v Jack (1902) 28 VLR 634 referred to

Davidson v Watson (1953) 28 ALJ 63 referred to

Ex parte Falstein; Re Maher (1948) 49 SR (NSW) 133 referred to

He Kaw Teh v The Queen (1985) 157 CLR 523 referred to

Secretary, Department of Social Security v Salvona (1989) 18 ALD 289 referred to

Commonwealth v Human Rights and Equal Opportunity Commission (1997) 76 FCR 513 at 519 referred to

Morales v Minister for Immigration and Ethnic Affairs (1995) 60 FCR 550 referred to

PATRICK MUSGRAVE (in his capacity as Chairman of the Dairy Adjustment Authority), JOHN PATRICK DRINAN (in his capacity as Independent Member of the Dairy Adjustment Authority), TERRENCE WILLIAM O’CALLAGHAN (in his capacity as Industry Member of the Dairy Adjustment Authority), JAMES RICHMOND FORSYTH (in his capacity as Industry Member of the Dairy Adjustment Authority) and MERRILYN JANE MCPHERSON (in her capacity as Government Member of the Dairy Adjustment Authority) v GREGORY MARTIN

V622 of 2002

WEINBERG J

2 SEPTEMBER 2003

MELBOURNE

THE COURT ORDERS THAT:

1.             The decision of the Administrative Appeals Tribunal made on 26 August 2002 be set aside.

2.             The matter be remitted to the Administrative Appeals Tribunal for hearing and determination according to law.

3.             The parties file and serve either written submissions, or draft consent orders, relating to the costs of this application within seven days of the publication of these orders.  

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

Introduction

1                     This is an appeal from a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 26 August 2002.  The effect of that decision was to set aside a decision of the Dairy Adjustment Authority (“the Authority”) to cancel 903 units registered in the name of the respondent, Mr Gregory Martin, under the Dairy Structural Adjustment Program Scheme 2000 (Cth) (“the Scheme”). 

2                     On 1 July 2000, the Australian dairy industry was deregulated.  The Dairy Industry Adjustment Package was developed to assist the dairy industry adjust to deregulation.  The Dairy Structural Adjustment Program (“DSAP”) was one of the programs in that package.  In essence, DSAP provides for payments to be made to “eligible entities”, the aim being to alleviate the transitional burden on participants within that industry by creating a scheme for compensation.  Payments would be made to “eligible entities” on condition that they met certain criteria. 

3                     The Authority, which is established under the Dairy Produce Act 1986 (Cth) (as amended) determines whether an entity is an “eligible entity”.  It makes this determination in accordance with Schedule 2 to that Act (“the Schedule”), and in accordance with the Scheme. 

4                     An entity is an “eligible entity” if it is eligible for a “payment right”.  There are various types of payment rights under the Act.  Those relevant to this proceeding are described as “standard payment rights”. 

5                     Section 9 of the Scheme is of particular importance as it sets out the conditions for compensation.  It provides that:

“An entity is eligible to be granted a standard payment right in respect of a dairy farm enterprise if:

(a)          the entity held an eligible interest in the enterprise at 6.30pm on 28 September 1999; and

(b)          the enterprise delivered milk during the base year.”

6                     On 11 July 2000, Mr Martin applied for compensation under the Scheme.  On 29 December 2000, the Authority accepted that Mr Martin was entitled to a standard payment right.  It conferred payment, in the form of 10,997 “units”, with a face value of $351,913, upon him.  However, on 20 April 2001 it cancelled 903 of those units.  It did so because it concluded that when he completed his application form he had made a false statement regarding his status.  In that form, he denied having an “eligible sharefarming arrangement” in place on 28 September 1999.  The Authority found that such an arrangement did exist, and that he was therefore a “sharefarmer”.  This meant that he was not entitled to the number of units which had been allocated to him, and that a number of them should be cancelled. 

7                     The Tribunal concluded that the Authority had erred in cancelling those units, and set aside its decision.  This appeal arises from the Tribunal’s decision.

Legislative Context

8                     As previously indicated, the units allocated to Mr Martin were registered under the Scheme which was formulated under the Dairy Produce Act 1986 (Cth) (“the Act”).  That Act was amended by the Dairy Industry Adjustment Act 2000 (Cth), and also by the Dairy Produce Legislation Amendment (Supplementary Assistance) Act 2001 (Cth).  The Schedule contains a package of measures under the heading “Dairy industry adjustment program”.  The main object of that program is to “… help the dairy industry adjust to deregulation by providing for ... grants …”, including DSAP payments. 

9                     Clause 10 of the Schedule required the Minister, within 14 days of its commencement, to formulate a scheme, in writing, for the grant of payment rights to entities who held an eligible interest in a dairy farm enterprise at 6.30pm on 28 September 1999.  It also required the division of payment rights into units, the registration of such units, and the making of payments by the Australian Dairy Corporation to the registered owner of units. 

10                  On 18 May 2000, the Scheme, was formulated.  Section 9 is set out in par [5] above, and as was noted, sets out the conditions for compensation. 

11                  The term “entity” is defined in cl 5(1) as including an individual and a body corporate.  The expression “dairy farm enterprise” is defined in cl 6(1) as “a business in Australia that delivers market milk and/or manufacturing milk”.  Relevantly, for present purposes, cl 7(1) provides that an entity will have “an eligible interest in a dairy farm enterprise” if: 

“…

(b)       both:

(i)                 under the [Scheme], the enterprise is taken to be subject to an eligible dairy sharefarming arrangement; and

(ii)               under the [Scheme], the entity is taken to be a party to that arrangement …”

12                  The meaning to be accorded to the expression “eligible dairy sharefarming arrangement” is set out in s 4(1) of the Scheme.  That section relevantly provides:

“ (1)      An eligible dairy sharefarming arrangement is an arrangement between 2 or more entities:

(a)          under which each entity is entitled to:

              (i)      a fixed percentage share of the milk revenue of a dairy farm enterprise; or

              (ii)     a fixed percentage share of the milk revenue of a dairy farm enterprise in relation to the sale of each type or amount of milk produced by the enterprise…”  (emphasis added)

13                  Section 4(2) of the Scheme provides that “a dairy farm enterprise is subject to an eligible sharefarming arrangement if the milk revenue of the enterprise is shared under the arrangement”.  Section 4(3) provides that “an entity is a party to an eligible dairy sharefarming arrangement if the entity is entitled to a share of the enterprise’s milk revenue under the arrangement”.  The expression “milk revenue” is defined in s 3 as “the gross proceeds from the sale of milk”.

14                  Section 31 of the Scheme, which is contained within Div 5.1, provides that “each payment right consists of a number of units” calculated in accordance with that section. 

15                  Division 5.2 sets out the circumstances in which the Authority may cancel some, or all, of the units allocated.  Section 35 relevantly provides:

“(3)     Subsection (4) applies if:

(a)          before a payment right is granted, an entity makes a false statement to a person exercising powers, or performing functions under or in connection with Part 2 of [the Schedule] to the Act or the [Scheme]; and

(b)          as a result of action relying on the false statement, the face value of the payment right exceeds the amount that would have been the face value if the false statement had not been made.

(4)       If this section applies, the [Authority] may cancel the number of units in the payment right worked out by:

            (a)     dividing the number of whole dollars in the amount of the excess by 32, and

            (b)     if the result of the division is not a whole number – rounding down to the nearest whole number (treating zero as a whole number).”  (emphasis added)

16                  The expression “false statement” is defined in s 35(5) as having the same meaning as in cl 50 of the Schedule. 

17                  Clause 50(3) provides:

“(3)     In this clause:

false statement means a statement (whether made orally, in a document or in any other way) that:

(a)          is false or misleading in a material particular; or

(b)          omits any matter or thing without which the statement is misleading in a material particular.”  (emphasis added)

Factual background

18                  Mr Martin has been a dairy farmer for approximately 30 years.  Soon after the Scheme was introduced, he applied for compensation.  As previously indicated, on 11 July 2000, he completed a form issued by the Authority headed “The Standard Payment Right application form”.  It will be necessary to set out, in detail, extracts from that completed form.  They are as follows:

“…

Important information, please read this in conjunction with the Information Book.

Fill in the details of this form and return it in the supplied ‘Reply paid’ envelope no later than 17 August 2000.

The Dairy Adjustment Authority will process the claim and determine whether you are eligible to receive a standard payment right. 

…

You must also sign the declaration at Section 13 before you return this form to the Authority.  The declaration is a legally binding statement. 

…

Please be aware that there are severe penalties for knowingly providing false or misleading information.

Section 1 – Status of Applicant(s)

Please indicate (in respect of the dairy farm enterprise nominated in section 3) whether you are filling out this application form as an individual or whether it is a joint application between a combination of interested parties.  You could be a person, company, business or family partner or trustee. 

Please tick the boxes that best describe the applicant(s).

[box marked “individual” ticked]

[box marked “Owner-Operator – but NOT a sharefarmer, lessee of land or lessor” ticked]

Section 2 – Applicant(s) Eligibility Test

Question 2.1  -  Did you have an eligible interest in a Dairy Farm Enterprise at 6.30pm on 28 September 1999?

[box marked “Yes” ticked]

Question 2.2  -  Did the Dairy Farm Enterprise referred to in Question 2.1 deliver market or manufacturing milk in 1998/99?

[box marked “Yes” ticked]

…

Section 3 – Dairy Farm Enterprise Details

Please provide the name, dairy licence number, locality and address of the Dairy Farm Enterprise in which you had an eligible interest at 6.30pm on 28 September 1999. 

[information provided]

Section 4 – Details of Owner – Operators for this Dairy Farm Enterprise

Please fill in the details of all Owner-Operators – these could be single or joint owners, who might be individuals, companies, business or family partners, deceased estate executors, or a trustee, but NOT sharefarmers, lessees of land and lessors – who had an eligible interest in the Dairy Farm Enterprise at 6.30pm on 28 September 1999 that was identified in Section 3.  Also include the percentage milk revenue split between all Owner-Operators at that date.  Exclude any revenue that was paid to sharefarmers from this calculation.  Sharefarmers should fill in their details in Section 7 and Lessors and Lessees in Section 8.  …

…

Percentage of the milk revenue split received by this Owner-Operator –

[Mr G Martin] 100%

…

Section 5 – Dairy Companies and Organisations

…

Section 6 – Milk Production Figures for 1998/99

…

Section 7 – Sharefarmer Details

Question 7.1  -  Did the Dairy Farm Enterprise have an eligible sharefarming arrangement in place at 6.30pm on 28 September 1999?

[box marked “No” ticked]

Question 7.2  -  If Yes what was the percentage of milk revenue split between Owner-Operator(s) collectively and Sharefarmer(s) at 6.30pm on 28 September 1999?

[no information provided]

Question 7.3  -  Fill in the details of all Sharefarmer(s) who received a share of the Dairy Farm Enterprise milk revenue split at 6.30pm on 28 September 1999.  If there is more than one sharefarming agreement, provide details in s 7 … on the Extra Details form.

…

Section 8 – Leasing Arrangements

…

Section 9 – Farm Business Assessment

…

Section 10 – Unresolved Legal Proceedings

…

Section 11 – Anomalous Circumstances

…

Section 12 – Agent’s Declaration

…

Section 13 – Applicant(s) Declaration

…

I declare that I have read the information book and the information provided in this application is true and complete.

[signed G Martin]

…”

19                  As is evident from the extracts set out above, reference is made to an “information book”.  The information book was prepared by the Authority for the purpose of explaining the legislative framework underpinning the compensation scheme.  As is common in such documents, a disclaimer features at the outset:

“Disclaimer – Although information contained in this book is the Dairy Adjustment Authority’s interpretation of the applicable legislation, in all the circumstances the legislation prevails.”

20                  The information book provided the following guidance regarding s 7 of the application form:

“An eligible dairy sharefarming arrangement is an arrangement between two or more entities:

(a)              under which each entity is entitled to:

·               a fixed percentage share of the milk revenue of a dairy farm enterprise; or

·               a fixed percentage share of the milk revenue of a dairy farm enterprise in relation to the sale of each type or amount of milk from the enterprise; and

(b)              where at least one of those entities has no proprietary interest in the land on which the milking shed was situated, and quota used to deliver market milk.

If your farm had an eligible dairy sharefarming arrangement in place at 6.30pm on 28 September 1999, please tick the Yes box at Question 7.1.

If you had no sharefarmers, please tick the No box and go to Question 8.

Please provide the percentage of milk revenue that was split between the owner-operator(s) collectively, and the sharefarming arrangements at 6.30pm on 28 September 1999.  If you had more than one sharefarmer, please show the proportions of milk revenue split received by each sharefarmer.

…”

21                  On 29 December 2000, upon receipt of the completed form, the Authority decided that Mr Martin was “eligible” for a “standard payment right” with a face value of $351,913, that being the enterprise value of his business.  Mr Martin was then allocated 10,997 units. 

22                  However, on 20 April 2001 the Authority cancelled 903 units of Mr Martin’s payment right.  It did so because it considered that he had made a false statement regarding whether he was party to an “eligible dairy sharefarming arrangement”.  The arrangement was said to have been recorded in an unsigned document headed “Sharefarming Memorandum of Understanding” (“the MOU”).  Mr Martin was said to have entered the arrangement with Mr and Mrs Paul Mundy (through their company, Carinya Dairy Pty Ltd) after they had commenced working on his dairy farm.  The MOU was prepared by Mr Stuart Brown, a farm management consultant, after a meeting with Mr and Mrs Mundy and Mr Martin at the farm on 16 June 1999. 

23                  In cancelling 903 units, the Authority determined that the face value of the payment right awarded or conferred upon Mr Martin exceeded what would have been the face value if the false statement had not been made.  The Authority accordingly reduced the nominal face value payable to Mr Martin from $351,913 to $323,009, and cancelled the units which represented that overpayment.   

24                  On 11 May 2001, Mr Martin’s solicitors wrote to the Authority requesting it to reconsider its decision to cancel the units.  On 13 July 2001, after agreeing to reconsider the matter, the Authority affirmed its earlier decision.  The following day, Mr Martin applied to the Tribunal for review of the Authority’s decision. 

25                  As indicated earlier, on 26 August 2002, the Tribunal determined that the Authority’s decision should be set aside.  On 23 September 2002, the Authority filed a notice of appeal against that decision with this Court.  The “appeal”, brought pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth), is in the original jurisdiction of the Court, and is confined to questions of law. 

26                  It should be noted that the appeal to this Court was originally brought by the Authority itself, and not by its members.  There is some doubt as to whether the Authority, which is constituted by its members, can bring proceedings of this nature.  When this issue was raised during the course of argument, I gave leave to the Authority to file an amended notice of appeal.  By that notice the Authority was removed, and replaced by its five members. 

27                  It should also be noted that the notice of appeal originally named Carinya Dairy Pty Ltd as a respondent to this proceeding.  That company did not file an appearance, and did not appear at the hearing of the appeal.  Accordingly, I ordered that it be removed as a party.

The Tribunal’s reasons

28                  The Tribunal commenced its reasons for decision by observing that it was not in dispute that the “dairy farm enterprise” run by Mr Martin was an “eligible entity”.  It also observed that it was not in dispute that, as at 28 September 1999, Mr and Mrs Mundy were working on Mr Martin’s farm and that the terms on which they were employed were set out in the MOU, referred to earlier in these reasons for judgment. 

29                  The Tribunal then considered whether Mr Martin had made a “false statement” by ticking a box marked “No”, in answer to the question whether he had been in an eligible sharefarming arrangement at the relevant time, on the application form.  In determining whether Mr Martin had, indeed, made a false statement the Tribunal considered the meaning of the expression “eligible dairy sharefarming arrangement”.  It referred to s 4(1) of the Scheme, as set out above in these reasons, and also to the information book. 

30                  The Tribunal said:

“… the crucial feature of an eligible sharefarming arrangement is that each entity is ‘entitled to a fixed percentage share of the milk revenue of a dairy farm enterprise’”. 

31                  The Tribunal then considered whether the MOU constituted an eligible dairy sharefarming arrangement.  It set out the relevant parts of that document:

32                  The MOU also contained the following additional points:

“Special notes:

1.             The s/farmer milk income share is to be 11% after all factory/industry levies, including any stop charges and any cartage rebates associated (ie 11/89 income split after ALL factor & industry levies).

2.             Method of payment to the sharefarmer shall be factory order.

3.             Should the sharefarmer receive less than $66000 in net income after share of feed costs per year, the difference is to be made up by the owner with rising 2 yr olds nominally valued at $1000/hd.  (eg. If after receiving 11% of net milk income, paying 11% share of feed costs, the s/f net income is 60000, the owner is to provide 6 heifers to being figure to $66000).  Cows are then to be leased back by the owner at $140/yr in future years (paid quarterly to S/F).  See Lease Agreement (attached).

4.             At completion of the arrangement, the sharefarmer and owner to agree on a method of selection of animals (eg. pick for pick, drafting race, etc).

5.             Milk to be provided for calf rearing by sharefarmer to owner at no cost.  Maximum use of colostrum by sharefarmers for calf rearing.

6.             Contract to be initially for three years, being renewed annually, then may be renegotiated.  (herd ownership option)”

33                  The Tribunal then considered the evidence given by Mr Martin, and by Mr Mundy, regarding their understanding of the document.  It noted that the MOU had neither been signed nor dated, and that it did not read as if it were intended to be a binding document.  It also noted, however, that both parties, in their evidence, agreed that the document set out the terms of their agreement.  

34                  The Tribunal then continued with its analysis of the expression “eligible dairy sharefarming arrangement”:

“The question here is whether the terms of the arrangement between Mr Martin and Mr and Mrs Mundy are to be characterised, as Mr Pizer submitted, as entitling Mr and Mrs Mundy to a ‘fixed percentage share of the milk revenue’ namely 11%.  That submission, in effect, ignores the fact that if a ‘top up’ was paid the actual percentage would have been more than 11%.  That was the basis of Mr Martin’s submission that the agreed payment to Mr and Mrs Mundy of a minimum of $66,000 meant that the percentage share of the milk income to which they were entitled was not ‘a fixed percentage’, but would have been more than 11% where 11% did not yield an income of $66,000.  There is merit in both submissions.  It is not possible to say whether Mr Martin made a false statement without considering the meaning of the terms ‘a fixed percentage share’ and ‘a false statement’.” 

35                  The Tribunal continued:

“There is an ambiguity about the meaning of the term ‘an eligible sharefarming arrangement’.  It is not easy to decide whether a person is entitled to a fixed percentage share of the milk revenue, if that is one component of the entitlements, but there is ‘a floor’, so that the percentage must be increased if an 11% share does not reach the agreed floor.”

36                  The Tribunal then purported to adopt a “purposive” approach to the task of interpreting the expression “eligible dairy sharefarming arrangement”: Re Rogers and Dairy Adjustment Authority and the Van Diemen’s Land Company – Dairies Ltd (VDLD) Pinegrove [2001] AATA 937.  It noted that Mr and Mrs Mundy had an entitlement, under the terms of the MOU, to a fluctuating percentage of the milk revenue as it could have been more than 11%, if 11% did not yield an income of $66,000.  It also noted that Mr and Mrs Mundy’s economic return was protected “from the vagaries of milk prices in a deregulated industry as a result of increased competition”, as it could not be less than $66,000.  It concluded that the term of the agreement which guaranteed Mr and Mrs Mundy a base income was designed to protect them from falls in the price of milk, and to provide them with the security of a base level payment sufficient to permit them to remain in the industry.

37                  The Tribunal continued:

“If s4(1)(a)(ii) [of the Scheme] is ‘intended to embrace those entities whose milk revenue is affected by falling milk prices because they have vested entitlement under a sharefarming arrangement to a fixed percentage of that revenue’, then it would not apply to Mr and Mrs Mundy. … As they were renumerated by an agreed minimum income, the amount of their income would not vary depending on the price actually paid for milk, except that they could earn more than the agreed figure, if the price of milk rose beyond the prices beyond the prices as at June 1999.

Those considerations show there is a real difficulty in interpreting and applying the definition of “eligible sharefarming arrangement” in s 4 of the [Scheme].  The definition does not explain whether an arrangement providing for an entitlement to a percentage of milk revenue which may fluctuate upwards, but not downwards is to be regarded as a fixed percentage share of the milk revenue of a dairy farm with a top up clause, or to a fluctuating percentage share of the milk revenue.”

38                  The Tribunal then considered whether Mr Martin’s answer to the question asked in s 7 of the application form constituted a “false statement” within the meaning of s 35 of the Scheme, and cl 50(3) of the Schedule.  The Tribunal said in this regard:

“Mr Pizer submitted that although the [Authority] accepted that Mr Martin believed that his answer was true, it was, in fact, false.  I find that Mr Martin’s statement, in s 7 of his application, that the enterprise did not have an “eligible sharefarming arrangement” in place at the relevant time and date, expressed his honest and reasonably held opinion.  It cannot be characterised as “false or misleading in a relevant particular” as required for the operation of s 35(3) of the Scheme.  Section 35(3) does not apply where one needs a determination of law to know whether a statement is true or false.  The difficulty is caused by the incorporation of a complex artificial concept into the application form.  The concept of an “eligible sharefarming arrangement” requires legal construction.  That makes it inappropriate to characterise Mr Martin’s statement as either true or false.  It is no more than the statement of a judgment or opinion.  Accordingly I find that s 35(3) has no application and the decision under review will be set aside.

39                  The Tribunal then went on to say that there was a second reason why the decision under review would be set aside.  It said:

“Even if I had found that a false statement was made by Mr Martin, the third requirement of s 35(3), is that the false statement was made ‘to a person exercising powers, or performing functions under or in connection with Part 2 of Schedule 2 to the Act or the scheme’.  I cannot be satisfied of that issue.”

40                  The Tribunal’s reasoning on this aspect requires some elaboration.  It noted that the statement relied upon by the Authority as false was made by Mr Martin on the application form.  The instructions at the top of that form required it to be returned in a reply paid envelope.  The instructions then continued that the Authority would process the claim and determine whether the applicant was eligible to receive a standard payment right.  They also indicated that the declaration at s 13 had to be signed, and that applications would be randomly audited.  They instructed that the form was to be returned to the Authority, that the declaration was a legally binding statement, and that there were severe penalties for knowingly providing false or misleading information. 

41                  The Tribunal expressed doubts as to whether the completion of an application form which was duly sent to the Authority could be characterised, as required by the legislation, as “making a false statement to a person …”. 

42                  The Tribunal concluded that there was no evidence that the statement relied upon had been made “to a person …” as required.  Rather it seemed to have been made to the Authority.  Thus the third requirement of s 35(3) of the Scheme was not satisfied, and the Authority did not have power to cancel any of Mr Martin’s units.

The submissions before this Court

43                  The submissions of the parties can be divided into three broad categories. 

(a)        Eligible dairy sharefarming arrangement

44                  The applicants commenced their submissions by noting that it was unclear whether the Tribunal had determined whether the MOU created an eligible sharefarming arrangement.  The applicants postulated two possibilities.  

45                  If the Tribunal had not determined whether the MOU created an eligible dairy sharefarming arrangement, it thereby committed an error of law.  The question whether Mr Martin’s answer to the question posed in s 7 amounted to a false statement should not have been answered without first determining the existence, or otherwise, of such an arrangement. 

46                  If, on the other hand, the Tribunal did determine that the MOU created an eligible dairy sharefarming arrangement, it also committed an error of law.  That was because there was no evidence whatsoever to support such a finding. 

47                  The applicants submitted that the definition of eligible sharefarming arrangement in s 4(1) of the Scheme did not provide that the arrangement must be one under which each entity is only entitled to a fixed percentage share of the milk revenue of the enterprise.  Put another way, the definition could be satisfied even if an entity were entitled under the arrangement to an additional form of payment or benefit that was not a percentage share of the enterprise’s milk revenue. 

48                  The applicants contended that the Tribunal clearly considered that the transfer of heifers under the “top up clause” (cl 3 of the MOU) would affect the parties’ percentage share of the enterprise’s milk revenue.  They submitted that this approach was flawed.  They argued that the entitlement was fixed at 11%.  The existence of a “top up clause” did not alter that fact.  The clause, if it applied, simply meant that if the 11% share of milk revenue resulted in an income of less than $66,000, Mr and Mrs Mundy, through their company, would be entitled to additional compensation in the form of heifers.  The provision of such heifers could have no effect on the parties’ fixed milk revenue shares.  That was because the transfer of an asset of the enterprise (namely, heifers) could not be regarded as a sharing of the enterprise’s proceeds from the milk revenue.

49                  The applicants also submitted that, in any event, the Tribunal was wrong to conclude that, as at 28 September 1999, it could not be determined whether Mr and Mrs Mundy were entitled to a fixed 11% share of the enterprise’s milk revenue, or to more than that fixed share.  They contended that, as at the relevant date, the “top up clause” had no work to do to.  That was because Mr and Mrs Mundy had already given notice of their intention to terminate the MOU.  As such, they, or more accurately their company, had no existing entitlement to any heifers as at that date.  This argument was ultimately not pressed.

50                  The respondent submitted that the Tribunal had correctly concluded that there was no “eligible sharefarming arrangement” in existence, at the relevant time.  In his written submissions, he contended that even if the Tribunal had erred in arriving at that conclusion, its error could only be characterised as an erroneous finding of fact, and not as raising a question of law.  It followed that no appeal under s 44 was available.

51                  The respondent relied upon the well known principles stated by the Full Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280.  There the Court said at 287:

“The principles according to which the jurisdiction conferred by s 44 is limited are not always easy of application.  Distinctions between a question of fact and a question of law can be elusive.  The proper interpretation, construction and application of a statute to a given case raises issues which may be or involve questions of fact or law or mixed fact and law.  Nevertheless there are five general propositions which emerge from the cases:

1.         The question whether a word or phrase in a statute is to be given its ordinary meaning or some technical or other meaning is a question of law:  Jedko Game Co Pty Ltd v Collector of Customs (NSW) (1987) 12 ALD 491; Brutus v Cozens [1973] AC 854.

2.         The ordinary meaning of a word or its non-legal technical meaning is a question of fact:  Jedko Game Co Pty Ltd v Collector of Customs (NSW) (supra); New South Wales Associated Blue-Metal Quarries Ltd v Commissioner of Taxation (Cth) (1956) 94 CLR 509 at 512; Life Insurance Co of Australia Ltd v Phillips (1925) 36 CLR 60 at 78; Neal v Department of Transport (1980) 3 ALD 97 at 107-108.

3.         The meaning of a technical legal term is a question of law:  Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 at 137-138; Lombardo v Commissioner of Taxation (Cth) (1979) 40 FLR 208 at 215.

4.         The effect or construction of a term whose meaning or interpretation is established is a question of law: Life Insurance Co of Australia Ltd v Phillips (supra) at 79.

5.         The question whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law:  Hope v Bathurst City Council (1980) 144 CLR 1 at 7 per Mason J with whom Gibbs, Stephen, Murphy and Aickin JJ agreed; Australian National Railways Commission v Collector of Customs (SA) at 379 (Sheppard and Burchett JJ).”

52                  The respondent submitted that none of the words used in the expression “eligible sharefarming arrangement” were intended to have a legal or technical meaning.  They were all used in their ordinary sense.  It followed, in accordance with Pozzolanic, that the question whether the established facts amounted to an arrangement of that type was nothing more than a question of fact.  Accordingly, no appeal against that finding lay to this Court. 

53                  In relation to the separate submission that the “top up clause” had no work to do because the MOU had been terminated by 28 September 1999, the respondent submitted that if correct, that submission assisted his case.  That was because, had the MOU been validly terminated as at the relevant date, Mr Martin’s answer to the question posed in s 7 would have been correct.  In those circumstances it could hardly be a false statement.  As noted earlier, the applicants did not press this argument.

(b)        False statement

54                  The applicants contended that the Tribunal erred in law when it construed the expression “false statement”, in cl 50 of the Schedule, as requiring some form of moral obloquy, or equivalent state of mind.  They submitted that the word “false”, when read in context, required nothing more than that the statement be objectively incorrect. 

55                  It will be recalled that cl 50 provides that a false statement means a statement that is false in one of two ways. The first, contained in cl 50(3)(a), is that it is “false or misleading in a material particular”.  The second, contained in cl 50(3)(b), is that it “omits any matter or thing without which the statement is misleading in a material particular”.  It should be noted that the applicants did not rely upon the second of these sub-clauses before the Tribunal, and expressly abandoned any reliance upon it during the course of the hearing before me.  

56                  The applicants submitted that the Tribunal had only considered cl 50(3)(a), and that it had, in any event, construed that sub-clause erroneously.  They paraphrased the Tribunal’s reasons for finding that the statement was not false in the following manner:

(a)        that s 35(3) of the Scheme did not apply in circumstances when one needed a determination of law to know whether a statement was true or false; and

(b)       that the concept of an “eligible sharefarming arrangement” was a complex and artificial concept that required legal construction.

57                  The applicants contended that the concept of an “eligible sharefarming arrangement”, as defined in s 4(1) of the Scheme, was not at all complex.  The requirement of an entitlement to “a fixed percentage share of the milk revenue of a dairy farm enterprise”, as set out in the definition, was perfectly clear and comprehensible.  If a person was entitled to such a share (regardless of whether that person was also entitled to any additional non-milk revenue, or other benefits), the criterion was satisfied.  No “legal construction” was necessary in order to determine whether that entitlement existed. 

58                  As noted earlier, the Tribunal’s reasons included a finding that the statement was no “more than a statement of Mr Martin’s judgment or opinion” (which was both honest and reasonably held).  The applicants submitted that the Tribunal erred in characterising the statement in that way.  There was nothing in either the form of the question, or the answer, to suggest that what was being sought, or given, was merely a statement of opinion.  Rather, the question sought a statement of fact as to whether or not an arrangement of the particular kind existed at the relevant time.  The only question which the Tribunal had to determine was whether that statement of fact was false or misleading in a material particular. 

59                  The applicants further contended that not only did the definition of “false statement” involve no mental element of any kind, but also that it left no room for a defence of “honest and reasonable mistake of fact”:  see generally Proudman v Dayman (1941) 67 CLR 536.

60                  The respondent began by submitting that the word “false”, in cl 50 of the Schedule, was not used in any legal or technical sense, but rather bore its ordinary meaning.  It followed that any finding by the Tribunal as to whether any given facts amounted to the making of a false statement was a finding of fact, and did not involve a question of law. The respondent relied upon Pozzolanic in support of this submission.

61                  In the alternative, the respondent submitted that the Tribunal had correctly found that he had not made a false statement.  The Tribunal based its decision upon the fact the subject matter of the statement related to a complex and artificial legal construct, regarding which reasonable minds might differ.  It had been correct to do so.  It would have been wholly inappropriate, in those circumstances, to regard the statement as either true or false.  The question was simply whether Mr Martin genuinely held the opinion expressed in s 7 of the form.  If he did, as the Tribunal found, the statement was not relevantly false.  The respondent further submitted, in the alternative, that there was nothing to suggest that the common law defence of honest and reasonable mistake of fact, as stated in Proudman v Dayman, was not available. 

(c)        Statement made to a person

62                  The applicants contended that the statement regarding the sharefarming arrangement was made to a person exercising powers, or performing functions under or in connection with Part 2 of the Schedule, or the Scheme.  They submitted that once the Tribunal found that the statement had been made to the Authority (a fact which was not in dispute), it necessarily followed that it had been made to persons exercising powers or performing functions under or in connection with the relevant Part of the Schedule, or the Scheme.  That was because the Authority, established by cl 55, itself exercised such powers and performed such functions under cl 57 and cl 56, respectively.  Plainly, the Authority was not a legal person.  It was not a body corporate, and had no existence separate from its members.  It could only exercise its powers and perform its functions through its members, or those persons to whom the powers and functions were delegated. 

63                  The applicants referred to cl 59(1).  That clause provides that the Authority “consists” of a Chair, two industry members, a government member, and one other member.  The members are appointed by the Minister, pursuant to cl 61. 

64                  The applicants submitted that the Authority had no power, function or legal personality separate or independent from its members.  It followed that a false statement made to the Authority had to be a false statement made to one or more of those persons. 

65                  The applicants submitted, in the alternative, that if the Authority was an entity separate from its members, it nevertheless constituted a “person” for the purposes of the Scheme.  That was because, unless the contrary intention appears, an expression used to denote a person includes a body politic or corporate as well as an individual:  see ss 22(1)(a) and 46(1)(a) of the Acts Interpretation Act 1901 (Cth).  It was therefore submitted that if it could be demonstrated that the Authority was a “body corporate or politic” then, unless the contrary intention appeared, it would be a “person” for the purposes of s 35(3) of the Scheme.  It was submitted that nothing in the Act, or the Scheme, indicated a contrary intention.

66                  The respondent contended that the Authority did have an existence separate from its members.  Clause 55 “established” the Authority, and thereby gave it that existence.  Accordingly, an application form which was made available to the Authority was not necessarily to be regarded as having been provided to its members, or indeed to any other person exercising powers or performing functions on its behalf. 

67                  At the same time, the respondent submitted, the Authority was not a body corporate.  It followed that it could not be a “person” within the meaning of cl 50, by virtue of the operation of the provisions of the Acts Interpretation Act. 

Conclusions

(a)        Eligible dairy sharefarming arrangement

68                  As noted above, elaborate submissions were made by the parties regarding what they considered to be the proper meaning of the expression “eligible sharefarming arrangement” in s 4(1) of the Scheme. 

69                  Although the Tribunal set out, in some detail, its analysis of the meaning of the expression, and went some way towards accepting the construction favoured by the respondent in this proceeding, it is by no means clear that it finally determined that issue.  On more than one occasion the Tribunal observed that there was ambiguity or uncertainty about the meaning of the term.  It said that it would adopt a “purposive” approach to the construction of the section, consistent with the decision in Re Rogers, and remarked that if the definition of eligible sharefarming arrangement was intended to embrace those entities whose milk revenue was affected by falling milk prices, then the MOU could not be characterised as such an arrangement.  That is as close as the Tribunal came to resolving this issue.

70                  In reality, however, the Tribunal seems to have left the issue unresolved, and turned instead to consider whether the statement made by Mr Martin was false.  It determined that the statement was not relevantly false because it amounted to an expression of opinion in relation to a complex legal question, and because the opinion was genuinely held, on reasonable grounds. 

71                  The applicants urged me to resolve the question of construction which was not, in my view, determined below.  They submitted that it would be convenient if I did so, having regard to the fact that the matter has been fully argued before me.  I consider that it is inappropriate that I do so.  The power of this Court, under s 44, is limited to correcting errors of law which were operative upon the decision below, and does not extend to answering hypothetical questions. 

72                  I am not persuaded that the Tribunal came to a final conclusion as to whether the MOU created an eligible dairy sharefarming arrangement.  It follows that I need not decide that question.  Whatever views the Tribunal may provisionally have expressed regarding that question, those views did not play any operative role in its ultimate decision.  In those circumstances, it is inappropriate to say anything further regarding the meaning of this expression. 

73                  It also follows that it is unnecessary to determine whether, as the respondent contends, the correct interpretation of the expression raises nothing more than a question of fact, and is not amenable to the jurisdiction of this Court under s 44. 

(b)        False statement

74                  At the outset, it is important to note that the applicants did not challenge the Tribunal’s finding that Mr Martin acted honestly and reasonably when he stated, in his answer to the question posed in s 7 of the form, that he was not party to any eligible sharefarming arrangement. 

75                  It is necessary, first, to deal with the respondent’s submission that even if the Tribunal erred in its interpretation of the word “false”, that error, by reason of Pozzolanic, did not give rise to a “question of law”.  I reject that submission.  The word “false” is, as will shortly be seen, a word which has several different shades of meaning.  It is capable of meaning purposely untrue or, alternatively, objectively incorrect.  A great deal turns upon the context in which the word is used. 

76                  I do not accept the proposition that whether a statement is “false” is purely a question of fact.  The answer to that question may depend upon what meaning is accorded to that word.   That in turn may depend upon whether the word is regarded as having been used in its ordinary sense (whatever that might be), or whether it is thought to have been used in some special sense.  

77                  The word “false” seems to me not to have been used in any “ordinary” sense in the context of the provision in which it appears.  The dictionary definition of that word is of no assistance in resolving the question whether it is intended to mean “purposely untrue” or “objectively incorrect”.  Both meanings are included within that definition.   It is only by considering the context in which the word appears, and applying accepted principles of construction, that one can deduce its meaning.  This suggests that the meaning of the word raises a question of law and not a mere question of fact. 

78                  I note that in R v Bonollo [1981] VR 633, the Full Court of the Supreme Court of Victoria held that the word “dishonestly” was used in a special sense.  Plainly, the meaning of that word involved a question of law.  The meaning of the word “false” is, in my view, no less a question of law.

79                  I also note that in Collector of Customs v Agfa-Gevaert Limited (1997) 186 CLR 389 at 396, the High Court expressed reservations regarding the general rules summarised in Pozzolanic.  In particular, the Court observed that the distinction between the second and fourth of the five propositions formulated in that case created difficulty.  The distinction between meaning (a question of fact) and construction (a question of law) was described as “artificial, if not illusory”.  That observation is apposite to the respondent’s submission.

80                  Finally, on this point, I note that in Brutus v Cozens [1973] AC 854, the House of Lords held that the initial question of whether statutory words conform to their ordinary linguistic usage, or are to be understood in some technical or artificial sense is “always a question of law for the courts”.  The question whether the word “false” conforms to its ordinary linguistic usage, or is to be understood in some special sense is squarely raised in this proceeding.  It follows that it gives rise to a question of law.  Accordingly, this Court has jurisdiction, under s 44, to consider whether the Tribunal erred in the meaning it accorded that word.

81                  That brings me to the central issue in this proceeding.  As noted earlier, the expression “false statement” is defined, albeit unhelpfully, in cl 50.  There is no dispute regarding Mr Martin’s state of mind.  Can a person who acts honestly and reasonably when making a statement properly be described as having made a “false statement”?  In other words, is moral obloquy an element of “falsity”?  Does the word “false” in cl 50 mean “deliberately untrue”, or “wrong in fact”? 

82                  In Sternberg v The Queen (1953) 88 CLR 646, the High Court considered the meaning of the word “false”.  In that case, a person was convicted of an offence under s 234(d) of the Customs Act 1901 (Cth), as it then was, for having falsely declared the value of goods, for the calculation of duty, upon entering Australia.  Mr Sternberg was charged under s 236 with having been concerned in the commission of that offence. 

83                  The declaration arose out of the completion of a form of entry which was prescribed by the Customs Regulations.  The form contained columns and blanks in which all the particulars relating to an import were to be stated.  On the back of the form was a declaration to be made by the owner of the goods, or that person’s agent.  The form said:

“As to the goods mentioned in this entry and herein entered, I declare: 1. That I am the owner of the goods or the agent authorised by the owner.  2. That to be best of my knowledge and belief the description and particulars of the goods as stated in this entry are true and correct in every respect.  3. That to the best of my knowledge and belief no goods are contained in any package specified in this entry other than as appears in the entry.  4. That nothing on my part or to my knowledge on the part of any person has been done, concealed or suppressed whereby His Majesty the King may be defrauded of any duty due.”

84                  Dixon CJ, who delivered the leading judgment, observed that the second, third and fourth statements were made to the knowledge and belief of the declarant.  However, the next statement was “that I enter the goods as of the value and of the description and quantities stated in this entry, and for home consumption.”  That paragraph was not qualified by reference to knowledge and belief. 

85                  His Honour went on to say that the qualification had not been thought to be desirable in the case of the last statement made by the declarant because “the whole customs duty depends upon the correctness of the entry” in that particular.  He went on to say that in a matter of this description, where the importer had knowledge, and the authorities had none, it had been traditional to require a positive statement upon which the assessment of duty could proceed. 

86                  Dixon CJ concluded that the entry consisted of two parts, the first containing the particulars, and the second the declaration which verified the entry.  The requirement that an entry be “false” in any particular could be satisfied by an entry which, in any particular, was contrary to fact.  It did not need proof that the person responsible for that entry knew it to be false. 

87                  As is evident from his Honour’s remarks, the form of the document governed the nature of the obligation.  It was apparent that the form sought a statement of value as an objective fact, and this meant that the primary offence had been committed.  It followed that Mr Sternberg, who was aware that the value for duty had been incorrectly stated, could be convicted of being “concerned” in the commission of that offence. 

88                  The next occasion upon which the High Court considered the meaning of the word “false”, in any detail, was in Cameron v Holt (1980) 142 CLR 342.  In that case, the Court held that s 138(1)(d) of the Social Security Act 1947 (Cth) which made it an offence for a person to present to an officer of the Department a statement, or document, which was false in any particular, did not create an absolute offence, and required the prosecution to establish that the person knew that the statement he was presenting was false.  The only authorities considered by the Court were those dealing with strict liability in the criminal law.  Sternberg was not considered.

89                  The High Court returned to the Customs Act and the meaning of the word “false” in Murphy v Farmer (1988) 165 CLR 19.  The context was s 229(1)(i).  That section provided for the forfeiture, to the Crown, of “all goods in respect of which any entry, invoice, declaration, answer, statement or representation which is false or wilfully misleading in any particular has been delivered …”.  It was common ground that the defendant had made the statement believing it to be true, but that it was, nonetheless, objectively incorrect. 

90                  In a joint judgment, the majority of the Court (Deane, Dawson and Gaudron JJ) considered that the word “false” in s 229 was ambiguous.  It could be read as “purposely untrue”, or simply as “incorrect”.  Having regard to the fact that the section was properly to be seen as “penal” or “quasi-penal” in character, it should be construed as requiring mens rea. 

91                  It should be noted that in a powerful dissenting judgment, Brennan and Toohey JJ said at 21:

“It may be accepted that ‘false’ is not a precise adjective.  Nevertheless, it is significant that the Shorter Oxford English Dictionary, 3^rd ed (1974), vol 1, p 722 gives as the word’s primary meaning: ‘1. Erroneous. 2. Not according to rule, principle, or law; wrong … 3. Incorrect …’  The notion of purposely untrue or deceitful appears as a secondary meaning.”

92                  It should also be noted that, prior to Murphy v Farmer, s 229 was considered by Lockhart J in Toy Centre Agencies Pty Ltd v Spencer (1983) 46 ALR 351.  His Honour concluded that the word “false”, in the phrase “false or wilfully misleading” meant untrue in fact, and not wilfully false.  It is clear that his Honour’s reasoning can no longer stand as a result of the judgment of the High Court in Murphy v Farmer. 

93                  As a result of Murphy v Farmer, it is now clear that the High Court is unwilling to accept that a statutory provision which has “penal” consequences should be construed as permitting liability to be established without some form of mens rea, at least in the absence of express statutory provision to the contrary.  See also Director of Public Prosecutions v Logon Park Investments Pty Ltd (1995) 37 NSWLR 118. 

94                  It should be noted that there have been various decisions over many years regarding the construction of s 234(d) of the Customs Act.  They include: Dawson v Jack (1902) 28 VLR 634, Davidson v Watson (1953) 28 ALJR 63, and Ex parte Falstein; Re Maher (1948) 49 SR (NSW) 133.  All have held that the word “false”, in the context of that section, meant false in fact, and did not involve any element of wilfulness, or mens rea.  As a result of Murphy v Farmer, the correctness of those judgements must be in doubt. 

95                  Turning now to the issue whether “false” in cl 50 means “deliberately untrue”, or merely “objectively incorrect”, it is important to note that the Act itself contains a number of criminal offences.  These are quite separate from the power conferred upon the Authority, by cl 50 of the Schedule, to cancel units where a false statement has been made. 

96                  Each of the criminal provisions contains a mental element which must be satisfied before a person can be convicted. 

97                  Clause 134 relevantly provides:

“ 134 False or misleading statements in claims

Knowledge

(1)       A person is guilty of an offence if:

(a)          the person makes a statement (whether orally, in a document or in any other way); and

(b)          the person does so knowing that the statement:

(i)                 is false or misleading; or

(ii)               omits any matter or thing without which the statement is misleading; and

(c)          the statement is made in, or in connection with, a claim for a payment right.

Penalty: Imprisonment for 12 months.” (emphasis added)

98                  It is clear that in order to establish the guilt of a person charged with an offence under cl 134 the prosecution must prove actual knowledge on the part of the defendant that the statement was false or misleading. 

99                  It is noteworthy that s 134(4) makes it an offence for a person recklessly to make a statement that is false or misleading.  The offence carries a maximum penalty of six months imprisonment.  The section relevantly provides:

“Recklessness

(4)       A person is guilty of an offence if:

(a)     the person makes a statement (whether orally, in a document or in any other way); and

(b)     the person does so reckless as to whether the statement:

(i)            is false or misleading; or

(ii)          omits any matter or thing without which the statement is misleading; and

(iii)        the statement is made in, or in connection with a claim for a payment right.

Penalty: Imprisonment for 6 months.”

100               The term “reckless” is not defined.  However, it is tolerably clear, at least since He Kaw Teh v The Queen (1985) 157 CLR 523 that it is used in a subjective, and not objective, sense. 

101               The express inclusion of terms such as “knowing”, and “reckless”, in the provisions creating the offence of making a false statement, makes their absence from cl 50 particularly noteworthy.  The same piece of legislation, dealing with the same subject matter, namely the making of false statements, expressly includes the requirement of knowledge or recklessness when dealing with offences, and yet excludes that requirement when it makes provision for the cancellation of units wrongly granted because of false statements that were made.

102               Plainly cl 50 is not, in any relevant sense, a “penal” provision.  Nor can it properly be described as “quasi-penal”.  Under that clause, the only consequence that flows from a finding that a false statement has been made is that a payment right (which should never have been granted in the first place) can be cancelled, and any monies wrongly paid possibly recovered. 

103               Clause 50 stands in stark contrast with the forfeiture provisions considered by the High Court in Murphy v Farmer.  There a finding that a “false statement” had been made could have led to the imposition of higher duty, possible pecuniary penalty, and of course forfeiture of the goods. 

104               To insist that a person have “knowledge” in relation to cl 50, as the Tribunal appeared to do, is effectively to elevate the recovery mechanism contained in that clause to the requirements contained in the offence provisions of the Act.  

105               In my opinion, the structure and text of the Act when read as a whole suggest that the only requirement for a statement to be “false” within the meaning of that term in cl 50 is that it be objectively incorrect.  To the extent that the Tribunal introduced an additional requirement of mens rea (or even raised the concept of a “defence” of honest and reasonable mistake of fact) it did so erroneously.   

106               I am fortified in that opinion by the judgment of Dixon CJ in Sternberg where his Honour emphasised that the form of the statement governed the nature of the obligation.  Mr Martin declared that his answer to the question posed in s 7 was “true and complete”.  His statement was unqualified by any reference to it being true and complete “to the best of his knowledge and belief”:  cf Secretary, Department of Social Security v Salvona (1989) 18 ALD 289. 

107               I emphasise that nothing I have said should be taken as amounting to a finding on my part that Mr Martin indeed made a false statement.  That issue cannot be resolved until the anterior question, whether he was a party to an eligible dairy sharefarming arrangement, has been determined.  As I have said earlier, the Tribunal does not seem to me to have finally determined that question.  I certainly have not done so.

(c)        Statement made to a person

108               It will be recalled, that the Tribunal set aside the decision upon a second, and quite independent basis.  It found that Mr Martin’s statement had not been made to a “person” exercising powers, or performing functions set out in Part 2 of the Schedule, but rather to the Authority. 

109               The Tribunal accepted that Mr Martin had completed and returned the form to the Authority.  He did so in accordance with the instructions contained within that form.  Division 6 of the Schedule sets out the powers and functions of the Authority.  Although the Act does not say so in terms, it seems that the Authority is what is commonly described as a “statutory authority”. 

110               It will be recalled that cl 59, in particular, sets out the Authority’s membership.  That clause provides that the Authority “consists” of five members, namely a Chair, two industry members, a government member and one other member. 

111               It seems clear from the use of the word “consists”, in cl 59, that the Authority has no separate legal personality.  It is not treated in the Act as though it were a body corporate.  There are no provisions which allow it to sue, or be sued, in its own name.  The powers and functions which are conferred upon it are plainly intended to be exercised by its members.  

112               There was little direct evidence before the Tribunal regarding the path which the form followed from the time it was completed, until the time it reached the Authority.  The inference that it did reach the Authority is inescapable because the units were allocated upon the basis of the statements contained within it.  The statement could not physically have been made to the Authority, as distinct from its members, or persons delegated to receive such statements, because the Authority, consisting of its members, could only act through those persons. 

113               The only inference which could properly be drawn was that the statement was made to a person, acting on behalf of the Authority, who processed the application.  It may also be inferred that that person had been delegated with powers to receive the statement, because the Authority ultimately allocated the units sought to Mr Martin.  There was, therefore, evidence that the statement was made to a person exercising the powers or performing the functions set out in Part 2 of the Schedule. 

114               Another way of looking at the matter would be to rely upon the presumption of regularity.  The person to whom the form was provided was likely to have been a person authorised to receive it.  It is inherently unlikely that the form was provided to someone who had no such powers or functions, but still passed it on to someone else who acted upon it in accordance with its terms.  Alternatively, the person to whom the statement was made acted as agent for the members of the Authority, all of whom are persons exercising power or performing functions of the kind set out in Part 2 of the Schedule. 

115               When the Tribunal concluded that there was no evidence to support this conclusion, it must have done so upon a basis which was erroneous in law.  It either failed to apply the principles governing the drawing of inferences correctly, or it misunderstood the nature of the Authority, and the manner in which it functioned. 

116               The alternative conclusion, reached by the Tribunal, leads to the peculiar result that a statement, though false, could be made with impunity simply because it was addressed to the Authority, and not to a “person”.  It is a principle of statutory construction that a court will strain against an interpretation which produces such a result.

117               It follows that the Tribunal erred in concluding that there was “no evidence that the statement relied on in this matter was made ‘to a person … as required’”, and that it seemed “to have been made to the Dairy Adjustment Authority”. 

Should the proceeding be remitted to the Tribunal?

118               The applicants submitted that if I concluded that the Tribunal had erred, I should finally determine the proceeding, rather than remit it.  They submitted that, if they were successful on all three grounds, there could be only one outcome, namely that the Authority’s decision to cancel the units should be affirmed.  This would also lead to a considerable saving of costs to the parties. 

119               The respondent submitted that even if the Tribunal was found to have erred in one or more of the ways for which the applicants contended, the Court should not set aside the Tribunal’s decision.  It was submitted that the applicants had not shown that any error made by the Tribunal “could have affected the outcome of the case”:  see Commonwealth v Human Rights and Equal Opportunity Commission (1997) 76 FCR 513 at 519, and the cases cited therein.  In the event that this submission was rejected, the respondent submitted that the matter should be remitted to the Tribunal, rather than being finally determined by this Court. 

120              In my opinion, it would be inappropriate for me finally to determine the issues in dispute between the parties.  As I have already indicated, the Tribunal did not resolve the question whether there was an eligible sharefarming arrangement in existence at the relevant time.  I have not done so, and unless that question is answered, it is impossible to say whether, in fact, a false statement was made. 

121              The question whether such an arrangement existed may well involve mixed questions of fact and law, and the need to consider a significant body of evidence.  I do not have before me all of the relevant material upon which an answer to that question could properly be given.  Normally, in an appeal under s 44, on a question of law, the Court will do no more than remit the matter to the Tribunal for rehearing if satisfied that an error was made.  There may be cases where it would be futile to remit the matter because it admits of only one possible outcome: see Morales v Minister for Immigration and Ethnic Affairs (1995) 60 FCR 550.  This is not such a case.

122               I am unable to accept the respondent’s submission that any error of law made by the Tribunal did not affect the outcome of the case.  The Tribunal’s erroneous construction of the word “false” led it to conclude that the Authority’s decision should be set aside, irrespective of whether Mr Martin had in fact been party to an eligible sharefarming arrangement.  Had the Tribunal correctly interpreted that word, it would unquestionably have had to resolve the latter issue.  In these circumstances, it is plain that the error made “could have affected the outcome of the case”. 

123               The same is true of the second limb upon which the Tribunal set aside the Authority’s decision, namely that the statement was not made “to a person”. 

124               It follows that the Tribunal’s decision must be set aside.  The matter will be remitted to the Tribunal to be reheard, and dealt with according to law. 

125               It should be noted that the parties indicated that they had an arrangement regarding costs.  In those circumstances, I shall direct that they file and serve either, short written submissions, or draft consent orders, regarding the costs of this application within seven days of the delivery of these reasons for judgement. 

Associate:

Dated:              2 September 2003