John Sharp and Sons Ltd v Ship Katherine Mackall - [1924] HCA 37

JOHN SHARP &SONS LTD.

THE SHIP KATHERINE MACKALL High Court-Jurisdiction" Admiralty and maritime jurisdiction ``--Commonwealth

a British possession-Action in rem on contract of aftreightment-Bill reserred for royal assent-Colonial Courts of Admiralty Act 1890 (53 &54 Vict. c. 27), secs. 2, 3, 4, 15-Interpretation Act 1889 (52 &53 Vict. c. 63), sec. 18-Admirally May 27, 28.

Court Act 1861 (24 Vict. C. 10), sec. 6-The Constitution (63 &64 Vict. c. 12), secs. 51, 58, 60, 76 (III.), 98-Judiciary Act 1903-1920 (No. 6 of 1903-No. 38 of 1920), secs. 30, 30A. Aug. 20.

Held, that the Commonwealth of Australia is, by virtue of sec. 18 (2) of the Interpretation Act 1889, a "British possession within the meaning of sec. 2 of the Colonial Courts of Admiralty Act 1890, and, therefore, that the High Court, having within the Commonwealth unlimited civil jurisdiction, is a Colonial Court of Admiralty and has jurisdiction in an action by consignees against a ship, the owner of which is not domiciled in Australia, for delivery in a damaged condition of goods for which the consignees hold a bill of lading issued by the master of the ship.

Quare, whether jurisdiction in such an action is not also validly conferred upon the High Court by secs. 30 and 30A of the Judiciary Act 1903-1920.

Per Isaacs J.: Sec. 30A of the Judiciary Act 1903-1920 has no force because, having been reserved for the King's assent, sec. 60 of the Constitution was not complied with. DEMURRER.

An action was brought in the High Court by John Sharp &Sons Ltd., a company incorporated in Victoria, against the Ship Katherine Mackall, of which no owner or part owner was domiciled in Australia. By the statement of claim it was alleged that about 5th July 1923 certain timber was shipped on board the Katherine Mackall at the port of Portland, Oregon, in the United States of America. by

34 CLR 421

Balfour Guthrie &Co.; that the master of the ship received such timber to be carried to the port of Melbourne upon the terms stated in bills of lading signed by him, and that the bills of lading contained clauses stating that the timber was shipped in good order and condition and was to be delivered in the like good order and condition to the plaintiff or its assigns that the plaintiff at the time the timber was delivered was the owner and consignee thereof under the bills of lading; and that the timber (with a certain exception) was delivered in a damaged condition whereby the plaintiff suffered damage. The plaintiff claimed £1,583 17s.

In the defence the defendant (inter alia) objected, by par. 8, that the High Court had no jurisdiction over the alleged cause of action for the following reasons:- The Commonwealth Judiciary Act in

SO far as it purports to declare the High Court a Colonial Court of Admiralty within the meaning of the Imperial Act known as the Colonial Courts of Admiralty Act 1890 is…

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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Details

Case: [1924] HCA 37
Decision Date: 20 August 1924

CaseChat Overview and Summary

John Sharp & Sons Ltd. brought an action in the High Court of Australia against the ship *Katherine Mackall* for damage to timber delivered under a bill of lading. The owner of the ship was not domiciled in Australia. The plaintiff claimed the timber was delivered in a damaged condition, contrary to the terms of the bill of lading. The defendant objected to the jurisdiction of the High Court, arguing that the relevant provisions of the Judiciary Act 1903-1920, which purported to grant admiralty and maritime jurisdiction, were void.

The central legal issue before the Full Court was whether the High Court possessed jurisdiction to hear this action in rem. This involved determining whether the Commonwealth of Australia qualified as a "British possession" under the Imperial Colonial Courts of Admiralty Act 1890, and consequently, whether the High Court was a Colonial Court of Admiralty. Additionally, the Court considered the validity of sections 30 and 30A of the Judiciary Act 1903-1920, particularly in light of the constitutional requirements for reserving legislation for royal assent and the specific provisions of the Colonial Courts of Admiralty Act 1890.

The Court held that the Commonwealth of Australia is a "British possession" within the meaning of the Colonial Courts of Admiralty Act 1890, by virtue of section 18(2) of the Imperial Interpretation Act 1889. As the High Court possesses unlimited civil jurisdiction within the Commonwealth, it is therefore a Colonial Court of Admiralty and has jurisdiction to entertain the action. The Court found that the objection in law raised by the defendant was without merit. While there was some divergence of opinion regarding the precise validity and application of sections 30 and 30A of the Judiciary Act, the majority concluded that the jurisdiction was established under the Colonial Courts of Admiralty Act 1890.

The defendant's objection in law to the statement of claim was overruled, and the defendant was ordered to pay the costs of the objection and the argument.

Orders