Commonwealth v Zachariassen

[1920] UKPCHCA 2

552 HIGH COURT

[1920.

[PRIVY COUNCIL.]

THE COMMONWEALTH AND ANOTHER

A p p e l l a n t s ;

D e f e n d a n t s ,

ZACHARIASSEN AND ANOTHERR

espo n d en ts .

P l a in t if f s ,

THE COMMONWEALTH

A p p e l l a n t ;

D e f e n d a n t ,

BLOM . .

R espo n d e n t .

P l a in t if f ,

ON APPEAL FROM THE HIGH COURT OF AU.STRALIA.

P kivy Ship—Foreign ship—Clearance— Right of master to receive—Refusal by Comptroller-

Co u n c il .* General to issue—Liability of Commonwealth and Comptroller-General—Liability

1920.

of Collector—Performance of conditions— Conditions precedent—Refusal to enter­ tain application for clearance—Justification— Time of war—Exercise of preroga­ .!/«)/ I 4.tive—Rights of neutrals and allies—Customs Act 1901-1910 (No. 6 of 1901—

No. 36 of 1910), .sec.-!. 4, 7, 9, 117-122, 221, 22.5.

The Comptroller-General of Customs is an “ officer ” within the meaning of secs. 221 and 225 of the Customs Act 1901-1910, and therefore notice must be given of an action to be brought against him, and the action must be com- mi-noed within six months after the cause of action has arisen.

Under the Customs Act 1901-1910 a master of a ship, on performance of the conditions prescribed by the Act, is as against the Cominonwoiilth entitled to

* Present—Viscount Haldane, Viscount Finlay, Lord Sumner, Lord Moulton and Lord Parmoor.

27 C.L.R.] OF AUSTRALIA.

553

a certificate of clearance, and where such a certificate is either arbitrarily or

P riv y

on unjustifiable grounds refused by “ the Collector,” the shipowner may main­

COUNCII.

tain an action for damages against the Commonwealth, but not against “ the 1920.

Collector.”

T h e

Com ­

m o n w e a l t h

To an action by the foreign owner of a foreign ship against the Common­ wealth to recover damages from the Commonwealth for the wrongful refusal

V.

Za c h a r i-

A.S.SEN AND

of a certificate of clearance to the master, it is a good answer that the act

complained of was done on behalf and by authority of the King and in the

B lom .

exercise of his sovereign power as a belligerent in time of war.

The master of a ship, of which the port of registry was in Russia, applied to the Collector of Customs in Sydney for a certificate of clearance and tendered to him all the documents required by law to be tendered for the purpose of obtaining a clearance for the ship. The Comptroller-General of Customs and the Collector refused to grant a certificate of clearance unless a cargo of wheat for the United Kingdom or France was accepted by the ship.

Held, that on these facts the owner of the ship was entitled to maintain an action for damages against the Commonwealth.

Decisions of the High Court : Zacharia-isen v. The Commonwealth, 24 C.L. K., 166, and Blom v. The Commonwealth, 24 C.L. R., 189, affirmed.

-Appeals from the High Court.

These were appeals to the Privy Council, the one by tlie Common­ wealth and Stephen Mills, C’omptroller-General of Customs, and the other by the Commonwealth, from the decisions of the High Court : Zarliariassen v. The Commonwealth (1) and Blom v. The. Common­ wealth (2).

The judgment of their Lordshi])s, which was delivered by Viscount

Finlay, was as follows :—

These aytpeals arise out of actions brought against the Common­ wealth of Australia in respect of refusal to grant clearance outwards to two vessels in Australian ports. The appeals have been brought by the Commonwealth in pursuance of special leave. The two cases were argued together, but, though they have some features in common, they must be dealt with separately for the purposes of the judgment.

/ .—Zarhariassen’’s

Case.

The action was commenced on 18th April 1917, and the amended ■statement of claim alleges that the plaintiffs were Russian subjects

(I) 24 C.L.R., 166.

(2) 24 C.L.R., 189.

554 HIGH COURT

[1920.

Pr iv y

and owners of a vessel called the Samoena, which arrived at Melbourne

CoDNcir..

™ ^ cargo of oil. The statement of claim avers that the captain was notified by the chartering agents for the MONWEA1.TH Govemmont of Australia that it was desired that the Samoena Zachvri take a cargo of wheat on board for the United Kingdom

1920.

ASSENANDand that the Government had issued instructions that no clearance B lom , should be granted for the ship unless she were laden with wheat.

The captain, it is said, was notified that it was useless to apply for a clearance unless his vessel was so laden. The captain had instruc­ tions from his owners to proceed in ballast to Chili to take on board a cargo of nitrates, and it is alleged that he was excused from making any formal application for a clearance by the notification that it would be granted only if he shipped a cargo of wheat. In the result it is said that the vessel was detained for a long period and that the action which led to this result was taken by the authority of the Government of the Commonwealth of Australia. The cir­ cumstances are set out in the statement of claim in considerable detail, and it concludes by claiming from the Commonwealth damages for the detention of the vessel.

The defence traverses the allegations in the statement of claim and denies the authority of the persons alleged to have acted as agents for the Commonwealth Government.

Par. 8 of the statement of defence is pleaded to par. 14 of the statement of claim (which avers that nothing had happened to dis­ entitle the ship to clearance), and is as follows :—“ (8) As to par. 14 of the amended statement of claim the defendants say that the plaintiffs failed to comply with certain requirements of law, a compliance with which was a condition precedent to the granting by the Comptroller-General or Collector of Customs of a certificate of clearance for the said vessel. These requirements were inter alia as follows : (a) the making of an application in the prescribed form for a grant of the said certificate of clearance ; (6) the delivery to the Collector of an outward manifest in duplicate ; (c) the produc­ tion of documents relating to the ship and her cargo ; (d) a state­ ment duly accounting for all her inward cargo and stores to the satisfaction of the Collector ; (e) the furnishing of particulars as to

27 O. L . H. J

565

OF AUSTRALIA.

P r iv y

the name of the ship, the name of the master, the cargo, the destina­

Co u n c il ,

tion and the date a'nd time of the intended sailing of the said ship ; 1920.

(/) proof to the satisfaction of the Collector of the payment of light

T h e Com ­

dues and tonnage and pilotage dues.”

m o n w e a l t h

r.

Par. 12 of the statement of defence is as follows : “ The defen­ dants further say that the alleged refusal to grant a certificate of

Za c h a r i-

ASSEN AND

clearance to the said vessel and the imposition of the alleged restric­

B lom .

tive conditions in regard to the granting of such certificate in so far as the same were acts of the defendants or either of them were acts of a belligerent Power in right of war and are not justiciable ill this Court.”

To the defence the plaintiffs filed the following replication :— “ (1) The plaintiffs join issue on the statement of defence of the defendants. (2) The plaintiffs demur to so much of the defendants’ statement of defence as is contained in the eighth paragraph thereof and say that the same is bad in law on the following grounds : (a) that the re<|uirements of law in the said paragraph referred to are not conditions precedent to the right of the plaintiffs to have an ajiplication for a certificate of clearance dealt with by the Comp­ troller-General or Collector of Customs ; (b) that the alleged failure of the plaintiffs to comply with the said requirements of law affords no defence in this action to the defendants or either of them ; and on other grounds sufficient in law. (5) The plaintiffs demur to so much of the defendants’ statement of defence as is contained in the twelfth paragraph thereof and say that the same is bad in law on the following groiinds : (a) that no act of the defendants or either of them alleged in the statement of claim was an act of a belligerent Power in right of war ; (b) that the statement of defence discloses no facts which show that any act of the defendants or either of them complained of in the statement of claim was an act of a belligerent Power in right of war ; (c) that neither of the defendants is entitled to rely on the defence set out in par. 12 of the statement of defence in regard to any act of the defendants or of either of them which affects the property or interests of the plaintiffs who are sub­ jects of an allied country ; (d) that all of the acts alleged in the statement of claim were acts done within the territorial jurisdiction of the Commonwealth of Australia : and on other grounds sufficient

556 HIGH COURT

[1920

Co'̂ N ' ’ plaintiffs submit the following questions of law

l"he determination of this Honourable C ourt: (a) whether the defendant Commonwealth of Australia is responsible for the acts MONWE.\L,Tii omissions of the defendant Comptroller-General of Customs

1920.

Zac'hari

alleged in the statement of claim ; (b) whether under the circum­

ASSEN

ANDstances alleged in the statement of claim the plaintiffs are entitled

B lom .to maintain this action against the defendants or either of them

although no formal application was made for a certificate of clear­ ance ; (c) whether the defendant Comptroller-General of Customs is an ‘ officer ’ within the meaning of secs. 221 and 225 of the Customs Act 1901 or of either of the said sections.”

The demurrers and submissions in point of law filed by the plain­ tiffs were argued before Barton J., Isaacs J., Gavan Bu§y J. and Rich J. Judgment was entered allowing the demurrer to the eighth paragraph of the statement of defence and overruling the demurrer to the twelfth paragraph. As regards the questions of law submitted in the fourth paragraph of the replication, they were all answered in the affirmative. The Commonwealth of Australia now ask that the findings of the High Court on the demurrers and submissions in point of law should be reversed or varied. In the opinion of their Lordships this appeal fails.

The High Court were right in holding that par. 8 of the defence is insufficient in law. The effect of the allegations in the statement of claim is that the master had been informed by the authority of the Commonwealth Government that instructions had been issued that no clearance would be granted unless the vessel were loaded with wheat and that the ship would not be allowed to leave port unless so loaded. The eighth paragraph of the defence alleges that there was no application for a clearance in the prescribed form and that other formalities were not complied with, but there is no tra­ verse in it of the allegations in the statement of claim which are enough to show a waiver by the Commonwealth of the performance of the conditions relied on. The allegations in par. 8 are obviously insufficient if it be true that the Government had informed the cap­ tain that it was useless to apply unless he had shipped a ( ârgo of wheat. I t is true that the waiver of the performance of these conditions is put in issue in other parts of the defence, but for the

27 C.1..R.) OF AUSTRALIA.

.557

purposes of this demurrer we must look at par. 8, which c o n ta ins

P r iv y

CouNt'ir..

no such traverse.

1920.

There is in truth no substance in this question as to the sufficiency in law of par. 8.

T h e

Com ­

It raises at best a mere point of pleading, and the

m on WE.4LTH

V.

case must go to trial, when, so far as this part of it is concerned, the

Za c h .v r i-

question will be whether it is established that there has been a waiver

ANO

of the doing of any act which otherwise would have been a condition P l o m .

precedent to the right to clearance.

As regards the demurrer to par. 12 of the statement of defence, it appears to their Jjordships that this demurrer was properly over­ ruled. The allegations in the paragraph are very general, but there is no ground for saying that they are insufficient in point of law. It will be for the Court to say whether on the facts proved at the trial the Commonwealth make out the defence that the acts com­ plained of were acts of a belligerent Power in right of war and are not justiciable in the High Court. Gavan Unffy .1. says that Aus­ tralia was not a belligerent Power, but it is clear that the paragraph must be understood as alleging that the acts complained of were done by the King through the Government of Australia, part of his dominions.

.\s regards the (piestions of law submitted in par. ■! of the replica­ tion, the answers of the High Court in the affirmative appear to their Lordships to be right. This, of course, leaves open the question whether the Commonwealth can make good at the trial the defence raised by par. 12 of the statement of defence.

'I’heir Lordships entirely agree with the observations made in the High (’ourt to the effect that it is highly undesirable, even if it were possible, to enter by anticipation into a consideration of what might be the effect in point of law of circumstances the existence of which has not yet been ascertained and of which there is no definite allega­ tion upon the record.

Their Lordships will humbly recommend to His Majesty that this appeal shmdd be dismissed with costs.

I I .—Bhm'’s Case.

In the action brought by Blom against the Commonwealth the facts are stated in the form of a special case for the opinion of the Court.

558 HIGH COURT

[1920.

P r iv y

Co u n c il .It appears upon that case that the vessel Lindisfarne, after

discharging a cargo of oil at Adelaide, proceeded to Sydney in ballast. Application was made for clearance and all formalities MONWEALTH wcro Complied with. The master of the Lindisfarne was informed

1920.

V.

ZACHARI­

by the Collector of Customs at Sydney and by the Comptroller-

ASSEN

ANDGeneral at Melbourne that a clearance would not be granted unless

B lom . a cargo of wheat was shipped, and, owing to the refusal of a cleai ance, the vessel was detained at Sydney for two months. The plaintiff claims damages from the Commonwealth for the refusal to grant a clearance. Two questions were submitted to the Court. The first was : “ Whether the plaintiff is entitled to recover damages in an action against the defendant for the refusal of the Collector or Comptroller of Customs to grant the said clearance.” The second question had reference to an allegation in the statement of claim that the Commonwealth had placed an armed guard on board the vessel to prevent her from sailing without a clearance and had taken the control of the vessel out of the hands of the master ; but it was agreed by counsel before their Lordships that no answer need be given to this question.

The special case was argued in the Supreme Court of New South AVales (1). The Court answered the first question above set out in the negative. The Chief Justice rested his judgment on the ground that the Collector was not a merely ministerial officer but had inde­ pendent duties to discharge with reference to granting clearance of a ship. Gordon J. said that his duties were quasi-judicial. Fer­ guson J. concurred with the others.

From this judgment an appeal was brought to the High Court of Australia. The High Court reversed the finding of the Supreme Court of New South Wales, referring to the reasons given for their judgment in Zachariassen’s Case (2). The judgment of Barton, Isaacs and Rich JJ. put their decision on the first question in the following terms : “ For the reasons given by us in the case of Zachariassen we are of opinion that a good cause of action is dis­ closed as to the refusal to grant a clearance.” Gavan Duffy J. said that he was unable upon the materials before the Court to answer the questions, and added that, even if he had been at liberty to draw

(1) 17 S.R. (N.S.W.), 469.

(2) 24 C.L.R., 166.

27 C.L.R.] OF AUSTRALIA.

559

P rivy

inferences of fact, he should not feel disposed to pronounce on the

COTJXCIL.

legality of the acts complained of on the materials contained in the 1920.

special case.

The Com-

Their Lordships are of opinion that the answer given in the affirmative by the majority of the High Court to the first question

MONWE.VLTH

r.

Za ch .v r i-

.V.SSEN ,\ND

was correct. Whether there was any justification for the course

taken is a question not raised upon the special case. If the action'

Blom.

taken was wrongful and damage resulted, the Government of Australia are primd facie responsible on the facts alleged. The special case does not raise the question of justification. No authority was cited for the proposition put forward by the appellants that the plaintiff’s only remedy would be by mandamus, and their Lord­ ships are of opinion that, subject to all questions of justification, he has a remedy by damages if his rights have been infringed by the action of the officers of the Government in this matter.

Their Lordships are not in the possession of sufficient materials for deciding what may be the effect upon any subsequent proceed­ ings of the answer to the first question in the special case. The order under which the special case was stated is not before them, and the special case itself is silent on the subject. Gavan Duffij J. says in his judgment (1) : “ In this action the parties have stated a case containing admissions made for the purpose of the case, but each party has reserved the right to go to trial and then rely on any facts which he may be able to prove and which he may be advised will have the effect of relieving him from the consequences of the opinions we are now asked to pronounce.” On the other hand their Lordships have been referred to an order said to have been made on -tth June 1918 by Shj J., which appears to put a com­ pletely different aspect on the case, and which goes to show that in effect the Commonwealth were to submit to judgment if the answers to the questions in the special case should be unfavourable to the Commonwealth. The admissibility of this order was, however, contested by the appellants.

It is, of course, impossible for their Lordships to decide what the agreement of the parties was as to the effect of the decision upon the questions put in the special case. This must be left to the Court

(l)24 C.L.R., at p. 195.

560 HIGH COURT

[1920.

P r iv v

below.

All that their Lordships can do is to answer the question put. Under these circumstances their Lordships will humhly advise His Majesty that the appeal from the decision of the High Court

Co u n c il . , .

.

1990

MON WEALTH

1 HI'. Com- ^0 dismissed with costs, and that the action should be remitted

Za c h a k i-to the Su])reme Court of New South Wales to direct such furtherr.

ASSEN

proceedings and make such further orders as may be necessary for

AND

B lom .disposing of the action. Assuming that the respondent is at lihertv under the arrangements arrived at in Australia to raise a defence to this action upon its merits, this must be dealt with in regular course. I t would obviously be most undesirable to express any view upon mere hypotheses as to what the facts may turn out to he.

[HIGH COURT OF AUSTRALIA.]

THE MERCHANT SERVICE GUILD OF

Claim ant

A U S T R A L A S I A ....................................

THE COMMONWEALTH

STEAMSHIP

R e sp o n d e n t s .

OWNERS’ ASSOCIATION AND

OTHERS

H. C. OF A indusirial Arbitration— Industrial dispute—Claim—Interpretation— Fixed rate or

1920. minimum rate of wages—Commonwealth Conciliation and Arbitration Act 1904­

'— .— '

1918 {No. 13 of 1904—A’o. .39 of 1918), secs. 21aa, 40 (1) (6).

Me l b o u r n e ,

June 11, 14. A claim made by an organization on employers was that the wages of

members of the organization “ shall be paid in accordance w ith’’ certain specified rates. Another claim was that each employer should enter into a

1. ) .

Isaacs, Hiyigins.

Gavan Duffy

written contract embodying the terms of the above claim with each member

and Starke JJ.

of the organization.

Held, by Isaacs, Gam?i Duffy and Starke JJ . {Higgins J. dissenting), that

the claim was for minimum rates of wages.