Moss and Phillips v Donohoe

Moss and Phillips appealed to the High Court against their summary conviction for attempting to trade with the enemy. The appellants had been charged with attempting to trade with the enemy by sending a cablegram to the Udolpho Wolfe Company in New York on 7th December 1914. The Udolpho Wolfe Company, a US-incorporated entity, had branch houses in Rotterdam and Hamburg, and its business involved the export of gin manufactured in Holland. Prior to the war, the company's practice was to send gin in bulk to its Hamburg warehouse for bottling and export. The appellants, who were long-standing agents for the company in Australasia, believed that the cablegram was an acceptance of an offer to purchase 20,000 cases of gin from the company's Hamburg warehouse, which they expected to be shipped to Australia.

The central legal issues before the High Court were whether the sending of the cablegram constituted an attempt to trade with the enemy, and if so, whether this attempt was punishable summarily. Specifically, the court had to determine if the appellants' actions fell within the scope of the Imperial Proclamation of 9th September 1914, which prohibited obtaining goods from an enemy country, and the Trading with the Enemy Acts 1914. The interpretation of "obtaining" in the context of goods located in an enemy country, and the extent to which a transaction with a neutral entity could constitute trading with the enemy, were key considerations.

A majority of the High Court (Isaacs, Gavan Duffy, Powers, and Rich JJ.) held that the magistrate could reasonably infer from the evidence that the cablegram was an acceptance of an offer to purchase goods from the Udolpho Wolfe Company, which were then located in Hamburg, and which the appellants expected to be brought to Australia. The Court reasoned that on these facts, the sending of the cablegram constituted an attempt by the appellants to obtain goods from an enemy country, as defined by the Imperial Proclamation. This attempt was deemed to be an attempt to trade with the enemy under section 3 of the Trading with the Enemy Acts 1914, and was punishable summarily by virtue of section 8 of the Acts Interpretation Act 1904 and section 7 of the Crimes Act 1914. Griffith C.J. dissented, finding that the evidence did not establish that the appellants intended to obtain goods from the enemy country, but rather from a neutral entity.