Milk quota — Applicant for secondary quota under the Dairy Produce Quota Regulations 1991 — Whether Dairy Produce Quota Tribunal misunderstood evidence before it and whether tribunal should have given applicants an opportunity to deal with evidence of which it had any doubt
The applicants
are a family partnership consisting of Mr and Mrs David Cooper and their two
sons engaged in the business of dairy farming at Matts Hill Farm,
Sittingbourne, Kent. In 1989 the applicants purchased plant for the production
and sale of ice cream outside the new milk quota system. By reason of the death
of Mr David Cooper in November 1989, and problems with his estate, the proposed
ice cream business had not got off the ground by February 1991 when the UK
Government had to extend the quota system to additional milk products, such as
ice cream, with effect from October 29 1991. The Dairy Produce Regulations 1991
provide for the award of quota to producers making sales of produce such as ice
cream by giving a primary quota to established producers and a secondary quota
to be awarded to producers who could show that by March 1 1991 they were
committed to developing their production. The applicants’ application to the
Dairy Produce Quota Tribunal was heard on November 4 1991. In accordance with
para 6 of Schedule 9 to the Dairy Produce Quota Regulations 1991 the tribunal
had to determine: (1) the quantity of ice cream made from milk produced on the
applicants’ farm that might reasonably be expected to be produced annually
using the facilities acquired by the applicants as a result of their
investment; and (2) the quantity of ice cream that might reasonably be expected
to be sold annually by direct sale by the applicants, in that regard the
tribunal had to have regard to the applicants’ established pattern of sales of
ice cream and to the applicants’ commitment to supply that product. The
hearing, which lasted about one and a half hours, was attended by Mr Mark
Cooper, one of the partners in the applicant firm, with his solicitor. The determination
of the tribunal noted that the applicants’ statement of case merely contained
estimated figures for the quantities of milk applied in the manufacture of ice
cream for 1989, 1990 and 1991. The estimate being 4,050
that the applicants estimated in the quota year 1991-1992 that it would
manufacture 150,000 ltrs of ice cream from 330,000 ltrs of milk and that it
claimed a direct sales primary quota of 6,237 ltrs and a secondary quota of
425,000 ltrs. The tribunal concluded that in the light of estimates for each
year of 4,050 ltrs of ice cream from 6,263 ltrs of milk, it was totally unable
to reach an estimation of the production annually of 150,000 ltrs of ice cream
from 330,000 ltrs of milk, which it considered could be described as reasonable
as no production or sales anywhere approaching such quantities had been
achieved. The evidence, it was said, was wholly insufficient to reach any
reasonable determination in excess of the estimated figure of 6,237 ltrs for
1991. It was submitted on behalf of the applicants that the tribunal made a
fundamental error of law in that it so misconstrued para 6 of Schedule 9 to the
1991 regulations as to regard itself as limited to historically achieved sales
of ice-cream as distinct from evidence of reasonably anticipated sales.
Further, that if the tribunal correctly understood its function, it must have
misunderstood the evidence, because the evidence was all one way.
aside for the matter to be remitted to make a fresh determination. It is clear
from reading the determination as a whole that the tribunal was well aware that
it was dealing with an application for secondary quota and, therefore in the
end, with forecasts rather that past performance, but it could not ignore past
or present performance, not only because forecasts are usually based upon such
performance but also because para 6(2) of Schedule 9 positively required the
tribunal to have regard to it and to any commitment to supply. Where a tribunal
gives reasons justice requires that the reasons should have explained, however
briefly, why it was that all or part of the evidence which was all one way, as
it was here, was found to be unacceptable, especially if that was something
which did not emerge during the course of the hearing. By the end of this
hearing more was required of the tribunal than a simple assertion that the
applicants had failed to discharge the onus of proof. There were doubts whether
the tribunal had arrived at its decision by a proper route and without regard
to irrelevant considerations or considerations which should not have been
regarded as relevant unless the applicants or their solicitors were given an
opportunity to deal with them. The question posed by para 6(1)(a) of the
Schedule ought to be answered without regard to sales potential with the focus,
at this stage, being simply on productive capacity. The determination had to be
set aside because it failed to tell the applicants in broad outline and in
simple terms by what process of reasoning the tribunal arrived at the
conclusion that 6,237 ltrs was the appropriate figure to adopt.
The following
case is referred to in this report.
Fox v (PG) Wellfair Ltd [1981] 2 Lloyd’s Rep 514; (1982) 263 EG
589, CA
This was an
application by way of judicial review of a decision of the Dairy Produce Quota
Tribunal which, on December 21 1991 determined the applicants’ application for
secondary quota under Schedule 9 to the Dairy Produce Quota Regulations 1991.
The respondents to the application being the Dairy Produce Quota Tribunal and
the Ministry for Agriculture, Fisheries and Food.
Joanne Moss
(instructed by Brachers, of Maidstone) appeared for the applicants; Nicholas
Paines (instructed by the solicitor to the Ministry of Agriculture, Fisheries
and Food) represented the respondents.
Giving
judgment, KENNEDY LJ said: This is an application for judicial review of
a determination of the Dairy Produce Quota Tribunal for England and Wales dated
December 20 1991 relating to an application by the applicants for a secondary
quota under Schedule 9 to the Dairy Produce Quota Regulations 1991.
The applicant
firm is a family partnership which, at various times, consisted of Mr and Mrs
David Cooper and their two sons. It has been engaged in the business of dairy
farming at Matts Hill Farm near Sittingbourne, Kent, for many years.
In 1988, in
response to the advent of milk quotas, Mr David Cooper decided to diversify
into the production and sale of ice cream outside the new quota system.
In 1989 plant
was purchased for the new enterprise, the purchase being financed in part by a
farm diversification grant and in part by the sale of part of the milking herd
and the wholesale quota.
In November
1989 Mr David Cooper died. Soon afterwards Mrs Cooper was seriously ill. Retail
greengrocer shops, run by David Cooper, had to be sold and there were problems
with his estate so that the proposed ice cream business had not got off the
ground by February 1991 when the UK Government had to bow to European pressure
and extend the quota system to additional milk products, such as ice cream,
with effect from October 29 1991.
The 1991
regulations were made to provide for the award of quota to producers making
sales of produce such as ice cream. Those regulations provided for primary
quota to be awarded to established producers and for secondary quota to be
awarded to producers who could show that by March 1 1991 they were committed to
developing their production. Those seeking a secondary quota award had to apply
to the Dairy Produce Quota Tribunal, which then had to make an award in
accordance with para 6 of Schedule 9 to the 1991 regulations, which provides:
(1) For the purposes of an award of secondary
quota under paragraph 5, the Tribunal shall determine in respect of each
producer
(a) The quantity of additional milk products
made from milk produced on his holding that might reasonably be expected to be
produced annually using
(i) the facilities available to the producer on
28th February 1991, and
(ii) the additional facilities expected to be
available to the producer on 31st March 1992 by virtue of money expended or a
contract entered into as mentioned in paragraph 5(a) and (b) before 1st March
1991;
(b) the quantity of the additional milk products
referred to in subparagraph (a) that might reasonably be expected to be sold by
direct sale by the producer annually.
(2) In making the determination referred to in
subparagraph 1(b) the Tribunal shall have regard to the producer’s established
pattern of sales of additional milk products and to the producer’s commitment
to supply such products.
(3) For the purposes of an award of secondary
quota, the Tribunal may also determine in respect of each producer —
the quantity,
or a part of the quantity, by which the sum of the producer’s wholesale and
direct sales quota (other than any primary quota awarded under paragraph 2),
taking account of any wholesale and direct sales quota permanently or
temporarily transferred by or to him since 28th February 1991, exceeds the quantity
of the dairy produce other than additional milk products which that producer
may be expected to sell by direct sale or deliver to a purchaser in the quota
year ending on 31st March 1992,
if in the
Tribunal’s opinion it is fair and reasonable that such a quantity or a part of
a quantity should be taken into account in making the award.
These
applicants made their application to the Dairy Produce Quota Tribunal in the
prescribed form and the matter came before the tribunal for consideration on
November 4 1991. In accordance with para 6 of the Schedule, the tribunal then
had to determine:
(a) The quantity of ice cream made from milk
produced on the applicants’ farm that might reasonably be expected to be
produced annually using, in this case, the facilities acquired by the
applicants as a result of their investment: see para 6(1)(a).
(b) The quantity of ice cream that might
reasonably be expected to be sold annually by direct sale by the applicants:
see para 6(1)(b).
In dealing
with question (b) the tribunal had to have regard to the applicants’
established pattern of sales of ice cream and to the applicants’ commitment to
supply that product: see para 6(2).
Mr Mark
Cooper, one of the partners in the applicant firm, attended at the hearing with
his solicitor. The tribunal was presided over by Lord Grantchester, QC and the
hearing, according to Mr Cooper, lasted about one and a half hours. It is clear
from the affidavit of Mrs Sayer, who was secretary to the tribunal — though not
sitting with the tribunal on that day — that the length of the hearing was
average. Para 5 of her affidavit reads:
The hearings
were conducted in a fairly informal way and applicants could bring with them
their own agents to advise them or speak on their behalf. During the course of
a hearing the Tribunal would ask the applicant to describe his general dairy
farm circumstances, would go on to examine his production investments and
theoretical capacity, the production actually
giving the applicant every opportunity to present written or oral evidence on
these points. His quota position, which might affect the award, was also
discussed. The Tribunal applicant had been briefed on the substance and purpose
of the Tribunal by the paper he had already received. In particular the Notes
for Guidance go through the questions set down in Schedule 9 for the Tribunal’s
determination, and point out that the onus is on the applicant to satisfy the
Tribunal on these matters.
As is clear
from that explanation, the proceedings were not, in any sense, adversarial. Mrs
Sayer, having interviewed the acting secretary to the tribunal, Mr Crowther,
who was at the relevant hearing and, having read the material which was before
the tribunal, asserts, in para 6 of her affidavit, that in dealing with the
Cooper application the tribunal took its normal course. Part of her affidavit
reads:
The applicant
and his adviser were given opportunities to explain, and did so explain, why
production and sales had not been developing. They were questioned on his sales
prospects specifically, and were given the opportunity to explain, and did so
explain, the basis for his expectations. After the hearing (which lasted
approximately one and a half to two hours) the Tribunal discussed the case
prior to the chairman drafting the decision. Lord Grantchester has confirmed
that the evidence submitted by the applicant was carefully looked at again
before he finally circulated the draft decision to the other two members for
their consideration. The decision was agreed by all three members.
Mr Cooper, for
his part, says, in para 10 of his affidavit, that he was ‘not very happy’ with
the hearing. He says that:
Part of the
time was occupied with investigating matters related to milk production and ice
cream manufacturing capacity. The assessment of sales potential of the product
was not ignored but was dealt with in a low key way with no indication at all
that the Tribunal would be unable to make a determination without further
evidence. However, the most unusual feature of the hearing was that a large
part of the time was spent disputing the chairman’s incorrect interpretation of
para 6(3) of Schedule 9 to the 1991 regulations.
I turn now to
the determination itself, the first three paragraphs of which give the
background to the application. In para 4 the tribunal accepts that the plant
and machinery for making ice cream, which was purchased in 1989, cost £54,179
and that its capacity was 425,000 ltrs of milk producing 276,500 ltrs of ice
cream per annum.
Para 5 of the
determination states:
No figures
are contained in the Application Form for the quantity of milk applied in the
manufacture of ice cream in 1990 or in any previous year, or for the quantities
of ice cream produced. The Statement of Case merely contains estimated figures
for 1989, 1990 and 1991, (being unable to estimate at all for 1988). In each
year the estimate is 4,050 litres of ice cream made from 6,236 litres of milk.
These figures are most unsatisfactory.
Para 6 then
begins:
According to
the Application Form the Applicant Firm estimates that, in the quota year
1991/92, it will manufacture 150,000 litres of ice cream from 330,000 litres of
milk produced on its holding and that it will sell 50,000 litres of such ice
cream from a farm shop and the balance of 100,000 litres to other local shops.
According to the Statement of Case the Applicant Firm claims a Direct Sales
primary quota of 6,237 litres and a secondary quota of 425,000 litres.
Para 6 then
goes on to state that in para 2.38 of the statement of case the applicant firm
seeks to justify its claim for secondary quota and it accurately quotes part of
para 2.39. In fact, as I understand it, para 2.39 is not seeking to justify the
claim for secondary quota, but simply setting out the projected sales growth on
which the business plan is based and explaining why the applicants seek a quota
equivalent to full production from the outset.
In para 7 of
the determination the tribunal turns to what it describes as ‘The first
question for our determination’ as set out in para 6(1)(a) of Schedule 9 to the
1991 regulations; that is the quantity of ice cream that might reasonably be
expected to be produced annually with the facilities available.
Having
expressed sympathy with the applicants, the tribunal continues:
But they are
not going to manufacture ice cream without outlets for the sale thereof, and
the only figure which we have for sales in 1990 and 1991 are an estimate for
each year of the sale of 4,050 litres of ice cream from 6,263 litres of milk
from their herd. In the light thereof we are totally unable to reach an
estimation of the production annually of 150,000 litres of ice cream from
330,000 litres of milk which we consider could be described as reasonable. Even
less could we reasonably determine the higher figures for ice cream and milk
contained in the Statement of Claim. No production or sales anywhere
approaching such quantities has been achieved. In our opinion, the evidence
before us is wholly insufficient to reach any reasonable determination in this
case in excess of the estimated figure of 6,237 litres for 1991.
Para 8 of the
determination I can omit because, as the tribunal says, it deals with a
situation which does not arise in this case. There is no para 9 but in para 10
the tribunal states:
In the light
of our determination under subparagraph 6(1)(a) of the Ninth Schedule as set
out above, our determination under subparagraph 6(1)(b) should also, in our
view, be 6,237 litres. The evidence before us is wholly insufficient to enable
us to make any greater determination of sales for ice cream annually which can
reasonably be expected to be achieved by the Applicant Firm.
In para 11 the
tribunal expresses its conclusion as to excess of quota. There is no challenge
to that aspect of the determination and I say no more about it.
At the start
of the hearing before me Miss Moss, for the applicants, asked me to exclude the
affidavits filed on behalf of the respondents many months ago on the basis that
they contained hearsay, were tendentious and raised issues not raised by her
notice of motion. Miss Moss indicated that if I refused to exclude the evidence
— which I did — she would apply to amend the grounds on which she sought
relief. Eventually, at the end of the hearing she did so. That application to
amend was opposed by Mr Paines and I deal with it later in this judgment.
There are a
number of grounds set out in the notice of motion on which relief is sought, but
having regard to the submissions made by Miss Moss, it seems to me that they
can be summarised thus.
(1) Either the tribunal misunderstood its
function in law or it misunderstood the evidence before it because there was
unchallenged evidence of projected production and sales which the tribunal, for
no apparent reason, did not accept: grounds 1 and 2.
(2) If the tribunal had any serious doubt about
any aspect of the evidence it should, before giving weight to the doubt, have
given the applicants an opportunity to deal with it: ground 5.
(3) The way in which the tribunal expressed its
decision was such as to indicate that it must have erred in one or other of the
ways alleged: ground 6.
The amendment
which Miss Moss sought leave to make was to add a ground which would allege
that the tribunal
failed to
intimate to the applicants for their comments any specific evidence or
materials or reasons relied on by the Tribunal to justify rejection of the
applicants’ sales projections, and also gave no, or no sufficient reasons for
rejecting them.
It will be
clear from the way in which I have summarised the original grounds on which
relief is sought that the proposed amendment adds nothing to them. I therefore
refuse leave to make that amendment.
Miss Moss’
first submission was that the tribunal made a fundamental error of law in that
it so misconstrued para 6 of Schedule 9 to the 1991 regulations as to regard
itself as limited to historically achieved sales of ice cream as distinct from
evidence of reasonably anticipated sales. That I cannot accept because, as is
clear from Schedule 9 itself, the concept of a secondary quota came into
existence in order to do justice to those who had already financially committed
themselves to enter or to expand into the market for additional milk products,
such as ice cream, at the moment when the quota system was introduced. It is
clear from reading the determination as a whole that the tribunal was well
aware that it was dealing with an application for secondary quota and, therefore
in the end, with forecasts rather than past performance, but it could not
ignore past or present performance, not only because forecasts are usually
based upon such performance but also because para 6(2) of Schedule 9 positively
required the tribunal to have regard to it and to any commitment to supply.
Miss Moss then
goes on to submit that if the tribunal correctly understood its function it
must have misunderstood the evidence because the evidence was all one way. The
short answer to that submission seems to me to be, as Mr Paines submitted, that
the evidence was bound to be all one way because of the nature of the
proceedings and that no adjudicating body is bound to accept all of the
evidence placed before it — otherwise there can be no need for the adjudication.
But that may
not be a complete answer because, at least where a tribunal does give reasons,
as this tribunal does, it seems to me that justice requires that the reasons
should have explained, however briefly, why it was that all or part of the evidence
which was all one way was found to be unacceptable, especially if that was
something
accept Miss Moss’ proposition that it is a breach of natural justice for a
tribunal to receive evidence without challenge and then to take an applicant by
surprise by rejecting it. She invited me to consider the decision of the Court
of Appeal in Fox v (PG) Wellfair Ltd [1981] 2 Lloyd’s Rep 514,
but the problem there was that the arbitrator introduced his own expertise to
contradict the evidence of the applicants’ expert witnesses without giving
those witnesses any opportunity to deal with his proposals.
I do not find
anything in that decision to support Miss Moss’ wide general proposition that a
tribunal such as that with which I am concerned must, even in general terms,
indicate what difficulty it finds with evidence so that the applicant or the
applicants’ legal adviser can deal with it.
As Mr Paines
pointed out, the tribunal may simply find the evidence inadequate or
insufficient to establish that which the applicant seeks to prove, whether it
be an anticipated level of production or a projected level of sales, in which
case the tribunal can say just that when it comes to make its determination. It
seems from para 16 of the affidavit of Mr Thomas, a senior executive officer at
the Ministry of Agriculture, Fisheries and Food, that there was a danger of
such an outcome in the present case because, contrary to the submission of Miss
Moss that the Cooper application was well presented, he says:
Part of my
responsibility was preliminary scrutiny of all applications for quota. In
contrast with the vast majority of applications received, Mr Cooper’s
application seemed to me imprecise and poorly supported: no records were
provided, no evidence was supplied concerning contracts or agreements to supply
existing or new outlets and only some of the documents relating to a claim
under the Farm Diversification Grant Scheme were included. Question 20 of the
application form MSQ 61 asked the applicant to indicate if a business plan had
been prepared, and, if so, to supply a copy of the plan. Mr Cooper did not
indicate that such a plan existed, nor was a copy provided. This would suggest
that no business plan had been prepared at the time the application for quota
was made.
However, as I
shall explain in a moment, it seems to me that by the end of the hearing more
was required of the tribunal than a simple assertion that the applicants had
failed to discharge the onus of proof. Parts of the contents of the two
affidavits now put in evidence by the respondents do cause me to wonder whether
the tribunal did arrive at its decision by a proper route and without regard to
irrelevant considerations or considerations which should not have been regarded
as relevant unless the applicants or their solicitors were given an opportunity
to deal with them. For example, in para 17 of the affidavit of Mr Thomas there
is a reference to documents which came into existence when the applicants
sought a farm diversification grant (ie the grant which provided part of the
finance for the plant obtained in 1989). Mr Thomas detects some inconsistency
between a letter dated December 18 1989 and the letter dated April 20 1991
which was submitted with the quota application. I was told during the hearing
before me that the 1989 documents were not before the tribunal and were only
referred to by Mr Thomas so that I should ‘have the full picture’. If they were
not before the tribunal I do not see why they have been brought to my
attention. If they were before the tribunal and the tribunal detected the
inconsistency to which Mr Thomas refers, that was just the sort of matter
which, to my mind, should have been drawn to the attention of the applicants or
to the applicants’ solicitor before the tribunal acted upon it to the
applicants’ detriment.
Similarly, in
para 8 of her affidavit, Mrs Sayer questions the capacity of the applicants’
plant. She says:
The
Tribunal’s decision records that they accepted ‘the capacity of the plant and
machinery as set out in the Statement of Case at 425,000 litres of milk
producing 276,500 litres of ice cream per annum’. The Tribunal thereby accepted
the theoretical capacity of the plant and machinery for processing, but this by
no means necessarily equates to reasonably expected production. This capacity
assumes 8 hours a day 5 days a week, 52 weeks a year running of the plant with
no seasonal fluctuation, no technical problems or slowing for any reason. Even
if no doubts existed on the producer’s business prospects, therefore, this
quantity would be unlikely to have been the Tribunal’s final determination of
production (let alone of sales).
In fact, that
extract highlights my principal criticism of this determination, namely that it
is not possible to know from it what the tribunal did decide, but if the
tribunal doubted whether the actual capacity of the plant would have been the
same as its theoretical capacity (a capacity which, as Mrs Sayer points out,
was not based upon a 24-hour day or a seven-day week) then, as it seems to me,
those are the sort of doubts which the tribunal should have given the
applicants an opportunity to dispel.
At the end of
her affidavit Mrs Sayer says that ‘the Chairman, Lord Grantchester, has seen
this affidavit and is in agreement with it’. What exactly that observation is
meant to convey, I am not sure. It tends to suggest that what might otherwise
be regarded as personal speculation on the part of Mrs Sayer was in fact the
approach adopted by the tribunal and if that is the position it does not
surprise me that the applicants are concerned.
That brings me
to the way in which the tribunal expressed its decision. The evidence, to my
mind, does not support the submission that the hearing was perfunctory and Mr
Cooper accepts that production capacity and sales potential were both
canvassed, although he asserts that the latter was dealt with in a low key way.
It was then incumbent on the tribunal to address itself to the problem posed by
para 6(1)(a) of Schedule 9 to the regulations; in other words, to ask itself
what quantity of ice cream made from milk produced on the applicants’ farm
might reasonably be expected to be produced annually using the available plant.
Because the
next subparagraph in the Schedule deals with sales, it seems to me that the
question posed by para 6(1)(a) ought to be answered without regard to sales
potential with the focus, at this stage, being simply on productive capacity.
This segregation of productive capacity and sales potential seems to me to be
of some importance, not only because it accords with the Schedule, but also
because it enables an unsuccessful or only partially successful applicant to
know why he has failed.
In the present
case the tribunal did not adopt that two-stage approach, but instead moved
straight from what Mrs Sayer described as the theoretical capacity of the plant
to the question of sales. Actual capacity was therefore never properly
addressed, but, having regard to the next paragraph of the Schedule, that
should not have undermined the determination if there was a proper approach to
the question of potential sales. However, in my judgment, that approach also
was flawed. For the purposes of para 6(1)(b), what the tribunal had to decide
was the quantity of ice cream that might reasonably be expected to be sold by
direct sale annually. Inevitably, therefore, the focus had to be on the future
even though, by virtue of para 6(2), the tribunal had to have regard to any
established pattern of sales and to any commitment to supply. No doubt that
provision would be of great assistance to producers who could show a steadily
rising production rate year by year over several years and contractual
commitments based on the assumption that the rise would continue. But that was
not this case. In order to justify their assertion that over a relatively short
period they could build up sales to match the capacity of their plant, these
applicants relied on six factors, namely:
(1) Their investment, the argument being that
people do not spend money buying plant to make something unless they really
believe they can sell it.
(2) Their retail business experience in the
greengrocery trade.
(3) The evidence of a nationwide potential market
for ice cream: see, for example, the Cream Report 1990 and so forth.
(4) Their pilot scheme: see especially para 2.42
of their statement of case.
(5) The letter which they had obtained from Billy
Boy Frozen Foods confirming that less than a week before the tribunal hearing
primary negotiations were continuing with a view to that company distributing
the applicants’ product nationwide.
(6) The accountants’ business plan, which showed
the ice cream project to be viable in business terms.
Yet when the
tribunal came to address itself to potential sales it says nothing about any of
those factors and mentions only past production before going on to make a
determination in line with past production. Even if the evidence was not very
persuasive that, on the face of it, is a surprising conclusion, namely that the
applicants cannot reasonably be expected to sell more than they had been
selling thus far. But it is not simply because it is a surprising conclusion
that I have come to the conclusion that it cannot stand. In my judgment, the
determination must be set aside because it fails to tell the applicants in
broad outline and in simple terms by what process of reasoning the tribunal
arrived at the conclusion that 6,237 ltrs was the appropriate figure to adopt.
In the
circumstances of this case that determination could not properly be justified
by the tribunal saying simply, as it does in para 10, that:
The evidence
before us is wholly insufficient to enable us to make any greater
to be achieved by the Applicant Firm.
In para 9 of
her affidavit Mrs Sayer puts forward some reasons why the tribunal might not
have regarded the applicants’ evidence as adequate to support their claim. She
points to what she considers to be shortcomings of the pilot scheme and says
that the letter from Billy Boy Frozen Foods might have been viewed with caution
as evidence of sales prospects. Maybe, but as the tribunal said nothing about
either the pilot scheme or the letter, her comments cannot be said actually to
represent the reasoning processes of the tribunal, even though the chairman of
the tribunal saw and approved her affidavit.
Accordingly,
in my judgment, the determination of the tribunal and the award of milk quota
made by the ministry upon the basis of the tribunal’s determination must both
be set aside and the matter must be remitted to the tribunal so that it can
make a fresh determination. It is not for this court to pre-empt the
jurisdiction of the tribunal by making the declarations sought and it is for
the minister to decide what quota should be awarded when he receives a valid
and effective tribunal determination.
