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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Commonwealth v Zachariassen

Details

AGLC: Commonwealth v Zachariassen [1920] UKPCHCA 2
Case: [1920] UKPCHCA 2
Decision Date: 14 May 1920

CaseChat Overview and Summary

The case of Commonwealth v Zachariassen was heard by the Privy Council on appeal from the High Court of Australia. The dispute involved the refusal of clearance to two foreign vessels, the Samoena and the Lindisfarne, by the Commonwealth Government during the First World War. The plaintiffs, the owners of the vessels, sought damages for the detention of their ships. The central legal issues were whether the Commonwealth was liable for the actions of its officers in refusing clearance and whether the refusal was justified as an exercise of belligerent rights. The Privy Council found that the Comptroller-General of Customs was an "officer" within the Customs Act, and therefore, notice of any action against him must be given and the action must be commenced within six months of the cause of action arising. The Court held that under the Customs Act, a master of a ship is entitled to a certificate of clearance upon meeting the conditions prescribed by the Act. If such a certificate is refused arbitrarily or on unjustifiable grounds by the Collector, the shipowner may maintain an action for damages against the Commonwealth, but not against the Collector. The Privy Council affirmed that the owner of the ship was entitled to maintain an action for damages against the Commonwealth for the wrongful refusal of a clearance certificate. The appeals by the Commonwealth and the Comptroller-General of Customs were dismissed with costs, and the case was remitted to the Supreme Court of New South Wales for further proceedings.

Orders