Paul (R & W.) Ltd v Wheat Commission
| Jurisdiction | England & Wales |
| Judge | Lord Atkin,Lord Russell of Killowen,Lord Macmillan |
| Judgment Date | 22 July 1936 |
| Judgment citation (vLex) | [1936] UKHL J0722-1 |
| Date | 22 July 1936 |
| Court | House of Lords |
[1936] UKHL J0722-1
The Lord Chancellor.
Lord Atkin.
Lord Russell of Killowen.
Lord Macmillan.
Lord Wright, M.R.
House of Lords
After hearing Counsel, as well on Tuesday the 16th, as on Thursday the 18th, Friday the 19th and Monday the 22d, days of June last, upon the Petition and Appeal of R. and W. Paul, Limited, whose registered office is situate at Port of London Building, Seething Lane, in the City of London, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesty's Court of Appeal of the 18th of January 1935, except so far as regards the words, "except in so far as such Costs were increased by the issues as to the validity of Bye-law 20 of the Wheat Bye-laws 1932 and the validity of the arbitration procedure adopted in the cases of Resnova Noorstad and Mascotte and the awards made therein dated the 3rd day of July 1933" and also the words "and that the Defendant do pay to the Plaintiffs the increased Costs occasioned by such issues such increased Costs to be taxed as between party and party" might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Order, except so far as aforesaid, might be reversed, varied, or altered, or that the Petitioners might have such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed Case of the Wheat Commission, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of His Majesty the King assembled, That the said Order of His Majesty's Court of Appeal, of the 18th day of January 1935, in part complained of in the said Appeal, be, and the same is hereby, Reversed, and that the Judgment of the Honourable Mr. Justice Roche, of the 9th day of May 1934, thereby set aside, be, and the same is hereby, Restored: and it is further Ordered, That the Respondents do pay, or cause to be paid, to the said Appellants the Costs incurred by them in the Court of Appeal, and also the Costs incurred by them in respect of the said Appeal to this House, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments: And it is also further Ordered, That the Cause be, and the same is hereby, remitted back to the King's Bench Division of the High Court of Justice, to do therein as shall be just and consistent with this Judgment.
My Lords,
I have had an opportunity of reading the opinion which is about to be delivered by my noble and learned friend Lord Macmillan. I entirely agree with it, and have nothing to add.
My Lords,
I, too, have had an opportunity of reading and considering the opinion about to be delivered by my noble and learned friend. It so accurately expresses my own views that I find it quite unnecessary to add anything thereto.
My Lords,
I am authorised by the Lord Chancellor and my noble and learned friend Lord Wright to state that they concur in the opinion which I am about to read.
My Lords,
The controversy in this action relates to 15 consignments of goods imported by the Appellants into this country from Germany in 1933-34. On the merits the sole question for determination is whether these consignments consisted of "flour" or of "wheat offals" within the meaning of the Wheat Act 1932. But there is a preliminary point to be decided as to jurisdiction and also a point as to the applicability of the time limit prescribed by the Public Authorities Protection Act, 1893.
The Respondents, the Wheat Commission, who are the Defendants in the suit, were incorporated by the Wheat Act 1932 for the purpose of carrying the Act into effect. The object of that measure, as the long title sets out, is inter alia "to secure to growers of home-grown millable wheat a standard price and a market therefor" and "to make provision for imposing on millers and importers of flour obligations to make payments calculated by reference to a quota of such wheat, and as to the disposal of the moneys thereby received." It is unnecessary to describe the elaborate machinery provided by the Act for effecting its object. For the present purpose it is enough to state that in order to meet the expenditure to be defrayed by the Wheat Commission under the Act every importer of flour is rendered liable to make to the Wheat Commission a payment (described as a "quota payment" and to be calculated in the prescribed manner) in respect of every hundredweight of imported flour entered by him or on his behalf, in accordance with the enactments relating to customs, for home consumption or home use (Section 3 (1), which I have expanded by incorporating the definitions contained in Section 20 (1) ). The statute thus imposes what is in effect a customs duty on flour imported into this country for home consumption or home use.
What then is "flour" within the meaning of the Act? Section 20 (1) provides the following definitions which are of critical importance in the interpretation and application of the Act:—
"'Flour' means the products produced by the milling of wheat, and includes all such products except substances separated in the milling as wheat offals …
'Wheat offals' means the residual products which, in the process of milling wheat, are extracted therefrom as germ or for animal or poultry food."
Before proceeding to consider whether the 15 consignments in question were or were not consignments of flour as so defined I must first give a brief history of them. It appears that in 1933 and 1934 the Appellants, who are merchants and importers on a large scale of animal and poultry feeding stuffs, placed orders with various millers in Germany for goods described as "wheat middlings" or "German wheat middlings." It was common ground that in the trade and in the art of milling the term "middlings" designates certain grades of wheat offals—I am not professing to employ the expression here in its statutory sense—used for consumption by animals or poultry. On the arrival of the consignments in this country the Wheat Commission claimed in each case that they consisted of flour and demanded the appropriate quota payment from the Appellants. The Appellants maintained that the goods were wheat offals and not flour and contested the right of the Commission to exact any payment in respect of them. In order, however, to obtain entry of the goods the Appellants, under protest, paid to the Commission in the case of 13 out of the 15 consignments quota payments amounting in all to ?2,554 2s. 3d. As regards the two remaining consignments, ex "Maartje" and ex "Deneb," in the case of the former the Collector of Customs by an oversight signed the entry without any quota payment being made, and in the case of the latter for some reason no quota payment has yet been made.
From among the 13 consignments, on which payment was made under protest, it is necessary to discriminate the three consignments ex "Resnova," ex "Noordstad" and ex "Mascotte." The quota payments on these three consignments amounting to £641 17s. 1d. were demanded and paid under protest in April and May, 1933, being more than six months before the issue on 5th March, 1934, of the writ of summons in the present suit. Hence the point as to the application of the Public Authorities Protection Act. Moreover, with regard to these three consignments arbitration proceedings, purporting to be under the Wheat Act and the relative byelaw 20, were initiated between the Appellants and the Respondents to determine whether they were consignments of flour or consignments of wheat offals. By three awards dated 3rd July, 1933, the referee to whom the matter was submitted found that all three consignments were flour for the purposes of the Act.
In their points of claim in the present proceedings the Appellants claim repayment of the sum of £2,554 2s. 3d. as having been exacted from them in respect of 13 of the consignments colore officii and without lawful authority, a declaration that byelaw 20 of the Wheat Byelaws 1932 is illegal and ultra vires, a declaration that the three awards above mentioned are null and void, and a declaration that none of the 15 consignments in question was or is liable to quota payments.
As regards the three awards dated 3rd July, 1933, Mr. Justice Roche (as he then was), before whom the case came in the first instance, found that the referee had acted in the arbitrations in a manner so "wrongheaded … as to be contrary to natural "justice" and the learned Judge had no doubt that a Court of Equity would entirely refuse to allow such awards to receive effect. In the Court of Appeal counsel for the Respondents did not attempt to defend the validity of the awards and they may consequently be treated as null and void. But this does not absolve your Lordships from the task of determining whether byelaw 20 was intra vires of the Wheat Commission under the Act, for it was maintained at your Lordships' bar that the byelaw was valid and that, as the byelaw requires any dispute as to whether any substance is flour to be submitted to arbitration, no Court of Law has jurisdiction to determine whether the consignments in question were flour or not.
The point of jurisdiction arises in this way. By Section 5 (1) of the Act of 1932 the Wheat Commission is empowered "to make byelaws for giving effect to the provisions of this Act," and by Section 5 (2) it is provided that without prejudice to the generality of this power, "byelaws under this section shall in particular provide … ( m) for the final determination by arbitration of disputes arising as to such matters as may be specified in the byelaws."
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