THE COMMONWEALTH Constitutional Law (Cth.)-Tort-Liability of the Commonwealth under void Common-
wealth legislation-Seizure of goods under invalid legislation-Interference with inter-State trade-Intentional harm-Procuring breach of duty by third persons- Just cause and excuseConversion-The Constitution (63 &64 Vict. c. 12), MELBOURNE, sec. 92-Judiciary Act 1903-1937 (No. 6 of 1903-No. 5 of 1937), sec. 56. Sale of Goods-Property, Passing of-F.o.b. sale.
The plaintiff sued the Commonwealth for damages for the loss which he suffered in his trade in dried fruit in consequence of the administration and enforcement of the Dried Fruits Act 1928-1935 and the Dried Fruits (Inter- State Trade) Regulations, legislation which was held invalid by the Privy Council in James v. The Commonwealth, (1936) A.C. 578; 55 C.L.R. 1. The plaintiff's claim fell into two main parts. The first and chief part was concerned with the general loss to his trade or business caused by the continual effect of the administration of the Dried Fruits Act and the regulations. The second part related to five specific seizures of parcels of dried fruit which the plaintiff had put in the course of inter-State transportation.
Held, as to the first part of the claim ***********
which an action lies: to determine whether a governmental act be wrongful the general law must be applied sec. 92 does no more than nullify an alleged justification.
(b) without combination acts injurious to a man in his trade, even though impelled by a desire to injure him, do not of themselves confer a cause of action, if accomplished by means otherwise lawful; unless there be combina- tion or conspiracy, the purpose of doing harm is not a sufficient or a material element in the cause of action; the mere fact, therefore, that the Common- wealth in the course of administering invalid regulations, without committing or threatening an illegality, procured shipowners and other carriers to refuse to carry the plaintiff's goods and thereby injured his trade did not suffice to give him a cause of action.
(c) an exercise by the Governor in Council of a supposed power to make regulations which the Parliament has purported to confer on the Executive cannot amount to the commission of a tort on the part of the Crown.
(d) though the principle of Lumley v. Gye, (1853) 2 E. &B. 216, applies equally to inducement to commit in respect of a particular person a breach of a general duty owed to the public as a whole, as to a specific contractual obligation owed to that person, and accordingly inducement or procurement without lawful justification of a common carrier to refuse in breach of his duty goods tendered to him for carriage would amount to an actionable wrong, to resort to the courts cannot be considered a wrongful inducement or procure- ment simply because the legal position maintained was in fact ill founded; the Commonwealth incurs no liability in tort merely because A is induced to refuse performance of what turns out in fact to…
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.
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AGLC
James v The Commonwealth [1939] HCA 9
Case
[1939] HCA 9
Decision Date
CaseChat Overview and Summary
The plaintiff, James, sued the Commonwealth for damages arising from the administration and enforcement of the Dried Fruits Act 1928-1935 and associated regulations, which had previously been declared invalid by the Privy Council. The plaintiff's claim comprised two main parts: general loss to his dried fruit trade due to the ongoing effect of the invalid legislation, and losses stemming from five specific seizures of his dried fruit during inter-State transportation. The case was heard in the High Court of Australia.
The court was required to determine several legal issues. Firstly, it needed to ascertain whether the Commonwealth incurred liability in tort for the general loss to the plaintiff's trade, particularly concerning the procurement of carriers to refuse transporting the plaintiff's goods. Secondly, the court had to consider whether the exercise of a supposed power to make regulations, purportedly conferred by Parliament on the Executive, could constitute a tortious act by the Crown. Thirdly, the court was tasked with determining the passing of property in the dried fruit for the purpose of the five counts of trover, specifically whether the plaintiff retained ownership at the time of seizure.
Regarding the general loss to the plaintiff's trade, the court held that the Commonwealth was not liable. It reasoned that applying the general law to governmental acts, Section 92 of the Constitution merely nullifies an alleged justification, it does not create a cause of action. The court found that acts injurious to trade, even if motivated by a desire to injure, do not give rise to a cause of action if accomplished by lawful means, unless there is a combination or conspiracy. Therefore, the mere procurement of shipowners to refuse carriage, without committing or threatening illegality, did not suffice. Furthermore, the exercise of a supposed regulatory power by the Governor-in-Council does not amount to a tort by the Crown. While the principle of inducing breach of duty applies, resorting to the courts or intimating a prohibition under law, even if later found to be invalid, does not constitute wrongful inducement if done honestly in the purported execution of duty.
Concerning the five counts of trover based on the seizure of dried fruit, the court considered the passing of property. It applied the principle that shipping a definite parcel of goods in performance of a contract for unascertained goods constitutes an appropriation, and property passes unless the seller reserves the right of disposal. The court found that where goods are shipped under bills of lading deliverable to the seller's order, the seller is prima facie deemed to have reserved the right of disposal. In this case, the plaintiff had forwarded bills of lading to his bank or agent for delivery to the buyer only upon payment or presentation of a bill of exchange, thereby reserving the right of disposal. Consequently, the property in the goods had not passed to the buyers before seizure in four of the five instances. The court ordered that the plaintiff succeed on four of the five counts of trover, with the Commonwealth succeeding on the fifth.