Joseph v Colonial Treasurer (NSW)

Henry Joseph brought an action against the Colonial Treasurer of New South Wales, as the nominal defendant for the State Government, seeking damages for alleged malicious acts that interfered with his business as a broker, shipping agent, and merchant. The State Government sought to justify these actions, which included procuring parties to breach contracts and compelling railway and shipping companies to refuse carriage of wheat, as having been done in the exercise of the royal prerogative concerning war. The case was heard in the Supreme Court of New South Wales, which overturned a jury verdict in favour of the plaintiff, and subsequently appealed to the High Court of Australia.

The High Court was required to determine whether the acts complained of were lawfully justified as an exercise of the royal prerogative concerning war. Specifically, the court had to consider whether the prerogative power, in the context of the Commonwealth of Australia, could be exercised by a State Government, and if so, under what conditions. The legal issues also encompassed whether the necessity for exercising such a prerogative power was a matter for the State or Commonwealth Government to determine, and whether the evidence presented supported the claim that the acts were undertaken for the benefit of the nation in time of war, as required for the prerogative to apply.

A majority of the High Court, comprising Isaacs, Powers, and Rich JJ., held that the royal prerogative concerning war, when applicable to the Commonwealth or any of its States, could only be exercised by the Governor-General acting through ordinary constitutional methods. They reasoned that the necessity for exercising this power must be judged by the Commonwealth Government, and neither the power itself nor the discretion to assess its necessity could be delegated to a State Government. Furthermore, evidence of a national emergency justifying the exercise of the prerogative had to be provided by an authorised Commonwealth officer. Higgins J. concurred that if the prerogative was exercisable by Australian authority, it must be through the Governor-General. The court found that the evidence did not establish that the acts were justified as an exercise of the royal prerogative concerning war, and that there was evidence to support the jury's finding that the scheme was not carried out for the benefit of the nation as a whole.

Consequently, the High Court reversed the decision of the Supreme Court of New South Wales, ordering that the verdict entered for the plaintiff should stand. This meant that the plaintiff was entitled to recover damages from the Colonial Treasurer of New South Wales.