Strachan v Commonwealth

[1906] HCA 48

4 C.L.K.] OF AUSTRALIA.

455

[HIGH COURT OF AUSTRALIA.]

ALICE S. H. STRACHAN

P l a i n t i f f ;

THE COMMONWEAUrH .

D e f e n d a n t s .

Action aijaiuHl Commonivtallh—LiahiLily for tortious acts o f officials o f Hrilish Aeiu

H. C. OF A.

Ouinea— Territory placed under administrative control of Oovernor-General— I9')6.

Crown colony—Acceptance of territory by Commonwealth —The Constitution

■—.—'

(63cF64 Fict.), sec. 122—Order in Council o f March 1902.

SvD.NKy,

July, 30, 31 ;

I’riof to 6tU March 1902, Rritish New (5uiiiea was a Crown Colony under an administrator, who was subject to the control of the Coveiaior of Queens­

Ally. 14.

land, acting with tlie advice of his ministers, in the same way as ordinary

(JriftUh C.J.

and

Crown Colonies are to that of the Secretary of State. By Order in Council of

O’Connor J.

tith March 1902 and Letters Patent of the 18th of the same month, the Possession was placed under the authority of the Commonwealth, and the (fovei nor-General was authori/ed, as soon as the Parliament should make laws for the government of the Possession, to issue a proclamation declaring that that had been done, and from that date the Letters Patent dealing with the administration of the Possession and the instructions issued there­ under should be revoked,and until the appointed day the Governor-General was invested with the powers and duties formerly entrusted to the Governor of Queensland.

The plaintiff brought an action in the High Court against the Common­ wealth to recover damages in respect of alleged wrongful acts of officers of the Possession, committed at a date prior to any legislation by the Commonwealth on the subject of New Guinea.

Held, that until such legislation took place, and the proclamation conse- fjuent thereon was made, no such relationship of master and servant existed between tbe Commonwealth Government and the officials of the possession as would rendei^ the Commonwealth liable in an action of tort for wrongful acts of such officers.

Tobin V. Tht Qiitciiy 10 C.B.N.S.* 310, applied.

Case referred for consideration of the Full Court.

456 HIGH COURT.

[1906.

H. C. OF A. Tins was an action brouglit by tlie plaintitt, wlio was the owner of

a British ship called the “ Envy,” against the Connnonwealtli,

St ra ch an seeking to make the defendants liable for certain wrongful acts

T he^Com

^ll^ged to have been committed by officers of the Possession of

MONWEALTH. Bi’itisli Now Guiiiea within the territory of that possession.

The statement of claim—after referring to the Royal Letters Patent of 8th June 1888 erecting British New Guinea into a separate British Possession and providing for the government of the country, Order in Council of 8th February 1896 defining the boundaries of the Possession, and Order in Council of 18th March 1902 placing the Possession under the authority of tlie Commonwealth and revoking the Letters Patent of 8th June 1888 as from the date when the Governor-General of the Com­ monwealth should jiroclaim that the Commonwealth had made laws for British New Guinea and making other provisions—went on to allege that the Governor-General had not made such procla­ mation at the time this action was begun, and then set out the circumstances under which the claim arose, which were shortly as follows :—At the time when the alleged wrongs were committed the positions of Resident Magistrate and sub-collector of Customs at Daru in British New Guinea were filled by persons named Jiear and Fitzgerald re.spectively, who it was alleged wei’e con­ firmed in their offices by the Commonwealth after 18th March

1902. Tlie plaintiff’s .schooner “ Envy” was on 2nd May 1905 on a trading cruise among the islands near New Guinea, and being in distress and leaking fast jiut in at the mouth of the Katau River near Daru and anchored beyond the three mile limit. The master, the husband of the plaintiff, went in a .ship’s boat to the .shore and asked permission to beach the .schooner, but the natives, acting under the alleged instructions of the Commonwealth officers, refused to allow him to land, and directed him to proceed to Daru, which was about 16 miles away. He therefore went to Daru and informed Jiear and Fitzgerald of the condition of the schooner. Fitzgerald demanded to see the ship’s papers, which were handed to him accordingly, and by his orders the schooner was searclied and the papers detained without any lawful excuse, and tlie schooner prevented from putting into Katau. The plaintiff alleged that by reason of these acts she was injured in her busi-

4 C.L.U.J

OF AUSTRALIA.

ues.s of trading with the scliooner, and put to great expense in H- U. of a .

sailing away elseAvhere to have the schooner repaired, and injured

in her credit and reputation. It was also alleged that afterwards the

Strachas

servants of the Cominonwealtli wrongfully detained the schooner

at Saniarai, and refused to allow her to be cleared at the Customs m onw ealth.

because of the absence of the ship’s papers, wliich were detained

by the defendants’ servants. There was also a claim for remunera­

tion for carrying the Royal mails and for loss of time in connection

therewith.

The plaintiff claimed £7,900.

Tlie statement of defence denied that Jiear and Fitzgerald were appointed or acting under the authority of the Commonwealth as alleged, and either denied, or did not admit, all the material allega­ tions of fact in the statement of claim, and, as to the claim for carrying the mails, said that British New Guinea was not at that time a State or part of the Commonwealth, and therefore the Commonwealth was not liable to pay any remuneration to the plaintiff in respect of it. It was also alleged that anything done by Jiear or Fitzgerald with reference to the .schooner was done in the execution of their duty and in pursuance of powers vested in them by the Laws and Ordinances of British New Guinea and the Mpvchanf Shipping Act 1894.

Issue having been joined, a summons was taken out by the defendants for directions for the trial of the preliminary issue whether Jiear and Fitzgerald and other persons, who did the alleged acts in respect of which the action was brought, were at the times in (juestion servants of the Commonwealth so as to make the Commonwealth liable for their acts, and GriJfUh C.J., before whom the matter came, ordered that that issue be deter­ mined before the trial of any issues of fact, and referred the ([uestion to the Full Court.

The material portions of the Letters Patent, Orders in Council, and other documents referred to are sufficiently stated in the judgments.

L. Armstrong, for the plaintiff. The Commonwealth are responsible for the wrongful acts of the officers of British New Guinea hy virtue of the acceptance by the Commonwealth Parlia­ ment of the territory of the possession from His Majesty. By

458 HIGH COURT

[1906,

H.C. OF A. Order in Council of 6th Marcli 1902 it Wiis provided that, on a

1906.proclamation by the Governor-General of the Conunomvealth

S t k a c h a nthat the Parliament had made laws for the hearing of appeals

V.

T he Coim-from the Courts of British New Guinea, the Orders in Council of

,MoN W E A L T H .

I7th May 1888 and 24th November 1891, which provided for such appeals, should be revoked. The Letters Patent of 18th March 1902 placed the Possession under the authority of the Commonwealth, and provided that the Governor-General should, so soon as Parliament had made laws for tlie Government of the Possession, issue a proclamation to that effect, and thereupon the Letters Patent of 8th June 1888 and instruction.s issued under it to the Administrator should be revoked, and in tlie meantime the Governor-General should exercise the powers in regard to the Possession that were formerly vested in the Governor of Queens­ land. Previou.sly, in November 1901, the Commonwealth Parlia­ ment had passed resolutions through both houses signifying their willingness to accept the Possession as territory of the Common­ wealth. Therefore when the Letters Patent of 18th March wei'e issued the Possession became part of the Cominonwealtli. The Pa])ua Act 1905 has ratified that acceptance. The officers of British New Guinea were therefore officers of the Commonwealth when the wrongful acts were committed. For their torts the Commonwealth may be sued (sec. 56 of t\\e Judiciary Act 1903), unless as a matter of fact the officers were not acting as servants of the Commonwealth. The question of law now to be decided is whether there was such a binding offer and acceptance as to make the administrative officers of the Possession servants of the Commonwealth. The questions as to the particular terms of the employment, and the official nature of the acts complained of will arise on the trial. Until then the case cannot be brought within the principle laid down in Enever v. The Kimj (1), and Tohin v. The Queen (2). [He referred also to Eelacauiu v. Fosbery (3).] These officers were under the control of the Commonwealth. As a matter of fact Strachan received the ship’s papers back from the Commonwealth. Instead of being servants of the King as they were under the old administration they became servants of the

(1) 3 C.L.R., 969.

(•2) 16C.B.N..S.,310.

(3) 13 N.S.W. W.N., 49.

4 C.L.R.l OF AUSTRALIA.

459

Commonwealth.

Otherwise they were re.sponsible to nobody R- C. o f a .

in tlie world.

It must be presumed that the Royal gift of terri­

tory was accepted, in the absence of a definite refusal: Mallott .stkachan

V. WiL'iOit (1); The King y. Hughes (2). [He referred also to

Fourteen Diamond Rings v.

United States

(3); De Lima v. m o n w e a l t h .

Bklwell (4).]

Shand K.C. and Bavin, for the defendants. The resolutions of the Commonwealth Parliament of November 1901 merely stated that the Commonwealth were prepared to join in measures for the acceptance of the territory, but no such measures were taken until the Papna Act 1905, which was subsecpient to the alleged wrongful acts. After the Letters Patent and Order in Council of March 1902 the Possession remained under the Imperial control until tile proclamation should be issued. In April 1902 the com­ mission of the Lieutenant-Governor, dated August 1898, was revoked by His Majesty, and in April 1904 an Administrator was appointed by the same authority, sliowing that the Imperial Government still retained control of the administration. Even if acceptance of the territory must be presumed, that is not sufficient to cstabli.sh the liability of the Commonwealth in this case. There

must also be a controlling power in the Commonwealth.

There

was no acceptance in fact until the Papua Act 1905.

Even if

tliere was in one sense an acceptance, there was not such an

•

acceptance as to justify the inference that the Commonwealth took over responsibility for the acts of the officers of the Posses­ sion. The control was originally in the Administrator, with superintendence by the Governor of Queensland, and after the change the Governor-General was substituted for the Governor of Queensland. The Governor-General therefore was the persona designata in whom the control formerly exercised bj'̂ the Governor of Queensland became ve.sted, but in this capacity he was not re})resenting the Commonwealth; the latter is therefore not responsible for tlie acts of officers who are really officers of His Majesty under the control of the Governor-General. [They referred to Enever v. The King (5).] The acceptance contein-

(1) (1903) 2 Ch., 494.(4) 182 U.S., 1.

(2) 7 B. & C., 708.(o) 3 C.L.K., 969.

(3) 1S3 U.S., 176.

460 HIGH COURT

[1906.

H. C. OF A. plated in sec. 122 of the Constitution i.s either a legislative act, or a formal executive act; and at the date of the alleged griev- Strachas ances there had been neither. Even if there had been such an

V.

acceptance the Commonwealth would not have been liable under

T h e

Com­

monw ealth . the circum,stancesThe officers were exercising an official dis­ cretion,'with which the aiithority which appointed them could

not interfere.

The officers alone were liable.

L. Armstrong, in reply, referred to Commission of Imjuiry of 26th Julj" 1904 issued b}' the Executive of the Commonwealth. That was an executive act showing that the Commonwealth had actually taken over the control of the officials of the Po.ssession.

Cvr. adv. vulf.

Aug. u. Griffith C.J. This is an action brought by the plaintiff, who is the owner of a British ship called the “ Envy,” against the Commonwealth, seeking to make the defendants responsible for certain wrongful acts alleged to have been committed by officer.s of the Possession of British New Guinea within the territory of that Po.sse,ssion. These acts relate to the seizure of the ship and to wrongful dealings with the ship’s papers, which have resulted in a loss to the plaintiff.

On a summons for directions it was ordered that the question whether the per.sons who did the alleged acts were at the time in que.stion servants of the defendants in a way that would make the defendants liable should be referred to the Full Court. The alleged wrongful acts were committed in March 190.5. Now the juinciple upon which the Gov'ernment is re.sponsible for the acts of its servants is the same as that which arises from the relations which exist between a master and his servant, and is stated by Erie C.J. in the well-known ca.se of Tohin v. The Queen (\), in which, after referring to some arguments used to show that the Queen should be held responsible, he says <2) :—“ But the argument for the suppliant fails, because in our judgment there i.s no analogy between the relation of the captain of a Queen’s ship to the Queen, and the relation

(1) 16 C.B.N.S., 310.

(2) 16 C.B.N.S., 310, at p. 350.

1 C.L.R.] OF AUSTRALIA.

461

of servanf to master or bailiff to sheriff, so as to create the R- C- of A.

liability here in question. The liability of a master for the

act of his servant attaches in the case where the will of the Stbachan'

master directs both the act to be done and the agent who is to do

it.

The act of the servant is then held to be the act of the m o n w e a l t h .

master ; and the servant acting in the course of his employment,

Griffith c .j .

is a general agent in that employment, and makes his principal liable for all that he does within the scope of his authority as such general agent; and, further, in re.spect of all his acts within the scope of that authority, they are the acts of the princijjal notwithstanding any private arrangement to the contrary between the principal and such agent.”

The territory of British New Guinea was constituted by Letters Patent, dated 8th June 1888, into a separate Posse.ssion and government under the name of British New Guinea, the administration of which was entrusted to an officer called the Administrator, who was to act in accordance with instructions given him under the Sign Manual and Signet, or by Order in Council, or through one of the principal Secretaries of State. Provision was also made for the appointment of an Executive Council to advise and assist the Administrator, and also for a Legislative Council, wliich was'empowered to make laws, establish Courts, and provide for the administration of justice generally, subject to any conditions and limitations prescribed from time to time by Order in Council, &c. The riglit of disallowing any law and of signifying such disallowance through one of the principal Secretaries of State was expressly reserved. The Administrator was also emjiowered to make grants of land and to appoint Judges and other officer's.

The result of the.se letters patent was that British New Guinea became a Crown Colony whicli, however, differed from other Crown Colonies in resjrect of certain matters to which I will pre­ sently refer'. By instructions of the same date the Admiiristrator was directed to corre.spond with the Governor of Queensland on all subjects connected with his office, to transmit to him all official reports touching the .same, and to apply to him for such instruc­ tions as he might require for guidance in the discharge of the duties of his office. The result was that tire Governor of Queens-

462 HIGH COURT

[1906.

H . C . OF A .

land became the persona designata to exerci.se a control analogous

1906. |.̂ gxerciseJ by the Secretary of State in the government of

S t r a c h a n Crown Colonies properly .so called. I .should mention that under Thê Coji contemporaneous arrangement (recorded in the Statutes of MON WEALTH. Queeuslaiid) the Govei'iior was instructed to consult his Ministers Griffith C.J. with respcct to directions given to the Administrator. The net result was that British New Guinea became a Crown Colony, subject to such control by the Governor of Queensland as persona designata as Crown Colonies were subject to by the Secretary of State. It was not suggested that under such circumstances officers of Britisli New Guinea or of the King would be officers of the Government of Queensland, or that the relation of master and servant existed between the Governor of Queensland and the Administrator of British New Guinea. Matters stood thus until 5th March 1902, when another Order in Council was made, and on 18th March further Letters Patent were issued reciting that the Senate and the House of Representatives had passed resolu­ tions authorizing the acceptance of Britisli New Guinea as territory of the Commonwealth. In the Papua Act 1905 these resolutions are more fully stated. The Letters Patent then went on to recite as follows :—“ We do hereby place our Possession of British New Guinea under the authority of the Commonwealth of Australia. The Governor-General of our Commonwealth of Australia shall, so soon as the Parliament of the Commonwealth has made laws for the government of our Possession of British New Guinea, i.ssue a proclamation signifying and declaring that the Parliament of the Commonwealth of Australia has made laws for the government of that Po.ssession, and from and after the date of such proclamation (hereinafter referred to as the appointed dajQ the afore.said Letters Patent of 8th June 1888 and any instructions which may from time to time have been given to any officer administering the government of British New Guinea, either under the Royal Sign Manual and Signet of Her late Majestj* Queen Victoria or by the order of Her late Majesty Queen Victoria in her Privy Council or by her through one of her principal Secretaries of State with respect to the execution of any tilings that belong to the said office of Adminis­ trator of British New Guinea shall cease to have effect and shall

4 C.L.U.] OF AUSTRALIA.

463

be revoked witliout prejudice to anything lawfully done there­

H. C. OF A.

1906.

under. The powers and authorities conferred by the said Letters Patent of 8tli June 1888 and any instructions as aforesaid

S t r a c h ,\.n'

V.

shall, until the appointed day, be read and construed as though T h e

Com-

any powers, authorities and duties thereby conferred or imposed m o n w e a i .t h .

upon tlie Governor of Queensland were confei-red and imposed

Griffith C.J.

upon the Governor-General of our Commonwealth of Australia, and the said Letters Patent and in.structions shall be construed and take effect with the substitution of the Governor-General of our Commonwealth of Australia for the Governor of Queensland.” The proclamation referred to ha.s not yet been i.ssued, and the Letters Patent of 8th June 1888 remain in full force, with the substitution, in the instructions, of the Governor-General of the Commonwealth for the Governor of Queensland.

That, tlien, is the constitution of British New Guinea, and its relations to the Commonwealth are tlie same as those which it formerly bore to the Colony of Queensland. The relation is to the Governor-General, and not to the CommQjiwealth, strictly speaking. And the Governor-General consults his Ministers before giving any directions. Under these circumstances it is quite impossible to say that the officers of the Government of British New Guinea are in any way officers of the Common­ wealth, or that the relation of master and servant exists between them. It was suggested by counsel for the plaintiff that the words in the Letters Patent of 18th March 1902, “ We do hereby jilace our Possession of British New Guinea under the authority of the Commonwealth of Australia,” do bring about such a relation. But these words can only be construed as enabling the Parliament of the Commonwealth to make laws for the government of that Possession. Up to the present, however, they have not done so. It has never been suggested that the relation of master and servant or princijial and agent existed between the officers of the Govmi’n- ment of a Crown Colony and the Sovereign in his capacity of Sovereign of the Empire, except perhaps in one case where a petition of right was brought in England against the Sovereign in respect of something done bĵ officers of the Government of Upper Canada, and it was held that the petition did not lie:

464 HIGH COURT

[1906.

H. C. OF A. Holmes V. The Queen (1). I think it i.s (^uite clear that a petition

of right would not lie against the Sovereign in respect of an act Strachan done by a servant of a Crown Colony. Nor could the Governor-

T h e C om l^eneral of the Commonwealth be sued in tlie pre.sent form of

MON WEALTH, action for an act done by officers of the Government of a Britisli

Griffith C.J. Possession, notwithstanding that the Possession is governed under

the authority of a constitution made by the Parliament of the Commonwealth. In my opinion, this case is hojieless from every point of view. The defendants are not in aii}̂ way responsible, in the sense in which that word is used in Courts of law, for the acts of the Government of Britisli New Guinea. It is like tlie case of a dispute between nation and nation. If the subjects of one nation wrong the subjects of another, the matter is purely one for adjustment by diplomacy. Therefore the cpiestion sub­ mitted to us must be answered adversely to the plaintiffi, and the action must be disnii.ssed with costs.

O ’C o n n o r J. It is sought to make the Commonwealth liable for certain acts of two officials of the Government of British New Guinea, committed in 190.5. i\lr. Arm.strong has properly ad­ mitted that the liability of the Connnonwealth for the acts of these officials rests upon the obligations, if any, which are imposed upon the Connnonwealth by Letters Patent of 18th iMarch 1902. The liability of the Commonwealth in such a case must be deter­ mined by the application of precisely the same principles as are applied in determining the liability of a master for the acts of his servant in any of the ordinary relations of life. These principles are laid down clearly in the case of Tobin v. The Queen (2), which has been cited by the Chief Justice, and it is only by the application of them that we can determine whether or not the Commonwealth is liable for the acts of tliese officials.

The effect of the Letters Patent of 18th March 1902 may be stated in a very few words. After some recitals, to whicli it is not necessary to refer, the first clause reads:—“ We do hereby place our Possession of British New Guinea under the authority of the Commonwealth of Australia.” That in itself creates no relation between the officials of the Government of British New

(1) 31 L.J. Ch., 58.

(-2) 16 C.B.N.S., 3)0, at p. .3.50.

4 C.L.R.] OF AUSTRALIA.

465

H. C. OF A.

(iuinea and tlie Cominonwealtli.

It i.s, apparently, a step taken

by the British Government as preparatory to action by the Com­

1906.

monwealth under sec. 122 of the Constitution, which empowers

■St k a c h a n

V.

the Parliament of the Commonwealth to make laws for the govern­T he Co.m-

ment of any territory placed by the Queen under the authority MONWEALTH.

of, and accepted by, the Commonwealth. These Letters Patent

O’Connor J.

thus placed the Po.sse.ssion of British New Guinea under the authority of the Commonwealth of Australia. But before the power arises to make laws for the territory, it must be accepted by the Commonwealth. The acceptance, of cour.se, mii.st follow the terms of the offer, and consequently it becomes neces.sary to see the terms on wdiich the Possession of British New Guinea is jilaced under the authority of the Commonwealth. The second paragraph of the Letters Patent directs that the Governor-General of the Commonwealth shall, as soon as Parliament has made laws for the government of British New Guinea, issue a proclamation signifying and declaring that the Parliament of the Common­ wealth has made laws for the government of that Possession, it being assumed that the laŵ s made by the Parliament will be substituted for the laws of the Crown Colony constituted by Letters Patent of 8th June 1888. The third paragraph provides that the powers and authorities conferred by the Letters Patent of 8th June 1888, and any instructions thereunder, shall be read as if the powers therein conferred upon the Governor of Queensland were conferred upon the Governor-General. In other w'ords, it substitutes the Governor-General of the Commonwealth for the Governor of Queensland in the Letters Patent and instructions. The fourth paragraph states that, whereas it is expedient that the provisions relating to this substitution should come into operation without delay, it is ordained and declared that these Letters Patent shall come into force forthwith.

The whole meaning of this doenment is that the Possession of British New Guinea is placed under the authority of the Com­ monwealth, but is nevertheless to maintain its own Constitution as created by the Letters Patent of 8th June 1888 until the Parlia­ ment makes laws conferring a Constitution upon i t ; and in the meantime the Governor-General is to be the persona deslgmda on behalf of the British Government to corre.spond with and

466 HIGH COURT

[1906.

H. C. OF A. in.struct the Administrator of British New Guinea. But tlie only

power given to the Governor-General is that previously given to

Strachan the Governor of Queensland. It becomes necessary, therefore, to T he^Com t o the po.sition of the latter in the Constitution of British

MONWEAi.TH. Nbw Guinca under the Letters Patent of 8th June 1888. These

O'Connor J. Letters Patent embody no reference to anj' power or authority

conferred upon the Governor of Queensland. They simply con­ stitute Briti.sh New Guinea a Crown Colony of the ordinary type presided over by a Governor or Administrator. An Administrator is appointed, and provision is also made for the appointment of a Governor or Lieutenant-Governor at an}' time the Crown may think proper. The Admini.strator is to act under instructions given him under the Sign Manual and Signet, or Order in Council, or by one of tlie principal Secretaries of State. The Letters Patent further provide for an Executive Council to advise the Adminis­ trator and for a Legislative Council. Within the terms of the Letters Patent the Colony is self-contained and has sufficient powers for its own needs, with the proviso that it has to com­ municate with the Secretary of State. Accompanying that Con­ stitution, however, are the instructions to the Administrator, which provide for a reference to the Governor of Queen.sland; and the whole of the latter’s authority under the in.structions is defined by the second paragraph in the following terms;— The Administrator shall correspond with the Governor on all subjects connected with his office, and shall transmit to him all official reports and information touching the .same, and shall apply to the Governor for all such instructions as he ma}' require for his guidance in the discharge of his office.” The ninth paragraph further provides that minutes shall be regularly kept of all the proceedings of the Executive Council, and that a copy of such minutes shall be forwarded half yearly to the Governor for trans­ mission to the Secretary of State.

The only object, apparently, for such a departure from the asual Constitution of a Crown Colony i.s that Australia, particu­ larly that portion of it adjoining British New Guinea, is so vitally interested in the development of this Posse.ssion that, for the purpo.se of advising and instructing the Administrator on behalf of the Briti.sh Government, it was felt to be desirable that

4 C.Lll.] OF AUSTHALIA.

467

tliere slioiilcl always be at hand some person having that know- H. C. of A.

ledge of local conditions, which it would be impossible for the

(Government in Downing Street to have always available. Save

S irachan

to the extent thus provided for, the Governor of Queensland has

xhe\ ; om-

no authority over the Administrator or over the acts of officials mosweaeth.

of British New Guinea.

o ’connor .f.

The Letters Patent of 18th March 1902 substitute the Governor- General for the Governor of Queensland in respect of tlie author­ ity exercised by the latter; and there is no connection whatsoever hetween the Governor-General of the Commonwealth and the officials of this Crown Colony other than that defined by the paragraph refeiTed to—that is to say, a directing or super­ vising authority, or an authority which makes the Governor- General the medium of communication between the Government of New Guinea and the Secretary of State for the British Govern­ ment. But it is impossible from a relation of that kind to infer anything approaching that relation of a master and servant on which alone can rest any liability of the Commonwealth for the acts of these officials. 1 therefore agree with the Chief Justice that in this case it is clear that from the documents before us no liability on the part of the Commonwealth for the acts of these officials can be inferred. The two documents referred to by Mr. Shand bear out very strongly the position for which he contends. It appears that there are two commissions relating to the office of Administrator which show that, even after the proclamation, the British Government were treating officials of British New Guinea as being still under their control. By a commission dated 12th August 1898, Sir G. Le Hunte had been appointed Lieutenant-Governor in accordance with the Constitu­ tion created by the Letters Patent of 8th June 1888. Then bj- a revocation under the Rojuil Sign Manual and Signet, dated 9th April 1902, which recites the commission appointing Sir G. Le Hunte and the Letters Patent of 18th March 1902, it is provided that from and after the date of the issue by the Governor General of a proclamation signifying and declaring tliat the Parliament had made laws for the government of British New Guinea, the commission of 12th August 1898 should be revoked and deter­ mined. The revocation is not to take effect immediately, but oiilj-

468 HIGH COURT

[1906.

H. C. OK A. wlxen the proclamation has been issued by tlie Governor-Oeneral.

Then, and not till then, does the Constitution, created by the S t r a c h a n Letters Patent of 8th June 1888, come to an end. Further, by a Thk̂ Ĉom commission dated Gth April 1904, Captain Barton was appointed

m onvvkahth . to administer the government, and it is expressly declared that

O’Connor J. bls appointment is to have effect only until the issue of the

proclamation already referred to. Both these documents seem to indicate in the plainest way that, not only was it the intention of the Letters Patent of 18th March 1902 to preserve tlie Constitu­ tion of British New Guinea as it was under the Letters Patent of 8th June 1888 until that Constitution was displaced by one created under the laws of the Commonwealth, but also indicate that the British Government acted upon that view by authorizing Sir G. Le Hunte’s appointment only up to the date of the procla­ mation and by confirming the term of Captain Barton’s appoint­ ment to the same date. It follows that no liability for the acts of these ofiicials was imposed on the Commonwealth under the Letters Patent of March 1902, and, as no other liability is con­ tended for, the cjuestion before us must be answered adversely to the plaintiff.

Action (UfiViisscd witlt costa.

Solicitor, for plaintiff', A. J. McDonald.

Solicitors, for defendants, Macnamara & Smith for Croicn

Solicitor of Commomvealth.

C. A. W.