The Commonwealth v Australian Commonwealth Shipping Board - [1926] HCA 39

39 CLR 1

[ ]

THE COMMONWEALTH AND THE

ATTORNEY-GENERAL FOR THE

COMMONWEALTH (ON THE RELA-

TION OF EDWARDS)

THE AUSTRALIAN COMMONWEALTH

SHIPPING BOARD AND ANOTHER

DEFENDANTS. Constitutional Law-Parliament of Commonwealth-Legislative powers-Defence-

Public body constituted under Commonwealth law-Australian Commonwealth Shipping Board-Power to carry on business of manufacturing engineer, &.- - Contract to supply and erect machinery-The Constitution (63 &64 Vict. c. 12), sec. 51 (VI.), (xxxIX.)-Commonwealth Shipping Act 1923 (No. 3 of 1923), Aug. 23, 24, secs. 10, 14. PracticeParties-Right of Attorney-General of Commonwealth to sue-Public body MELBOURNE,

created by Commonwealth law--Transgression of statutory powers.

Held, that the Australian Commonwealth Shipping Board, constituted by Isaacs, Higgins, the Commonwealth Shipping Act 1923, had no power to enter into an agreement with a municipal council to supply, deliver and erect on municipal land steam turbo-alternators

39 CLR 2

By Knox C.J., Gavan Duffy, Rich and Starke JJ., on the ground either that the Commonwealth Shipping Act 1923 conferred no power to enter into such an agreement, or that, if it did, the Act was beyond the power conferred upon the Parliament of the Commonwealth by the Constitution:

By Isaacs J., on the grounds that there was no authority in the Commonwealth Shipping Act 1923 to enter into the agreement, and that there was no con- stitutional power to authorize the agreement merely because it would or could be assistant to the Board's works

By Higgins J., on the ground that such a power was not conferred on the Board by the Commonwealth Shipping Act 1923.

Held, also, by Knox C.J., Gavan Duffy, Rich and Starke JJ., that if a public body constituted under the laws of the Commonwealth transgresses its statutory power, the Attorney-General for the Commonwealth on behalf of the public, whether private injury has or has not been alleged, has a right to complain and to obtain a declaration of transgression and, if necessary, an injunction. DEMURRER.

In an action in the High Court brought by the Commonwealth and the Attorney-General for the Commonwealth, on the relation of Frank L. Edwards, Secretary to the Chamber of Manufactures in New South Wales, against the Australian Commonwealth Shipping Board and the Municipal Council of Sydney, the statement of claim was substantially as follows

1. The defendant the Australian Commonwealth Shipping Board (hereinafter called the Shipping Board) was incorporated by the Commonwealth Shipping Act 1923 under the name aforesaid, with perpetual succession and a common seal and with power to hold property, and capable of suing and being sued in such corporate name and otherwise for the purposes and with the powers in such Act mentioned.

2. The defendant the Municipal Council of Sydney (hereinafter called the Council) was incorporated by the Sydney Corporation Act 1902 of the State of New South Wales under its aforesaid name for the purposes and with the powers mentioned in such Act and the Acts amending the same, and with power also under the provisions of the Municipal Council of Sydney Electric Lighting Act and the…

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: [1926] HCA 39
Decision Date: 1 November 1926

CaseChat Overview and Summary

The Commonwealth and the Attorney-General for the Commonwealth, on the relation of the Secretary to the Chamber of Manufactures in New South Wales, brought an action against the Australian Commonwealth Shipping Board and the Municipal Council of Sydney. The dispute concerned an agreement entered into by the Shipping Board to supply, deliver, and erect steam turbo-alternators for the Municipal Council of Sydney's power-house. The plaintiffs sought a declaration that the Shipping Board had acted *ultra vires* in entering into this agreement and an injunction to restrain further action. The matter came before the High Court of Australia on demurrers filed by both the Shipping Board and the Municipal Council of Sydney.

The legal issues before the court were twofold. Firstly, whether the Australian Commonwealth Shipping Board possessed the statutory power under the *Commonwealth Shipping Act 1923* to enter into the agreement for the supply and erection of turbo-alternators for a municipal power-house. Secondly, if the Act did confer such power, whether the *Commonwealth Shipping Act 1923* was within the constitutional legislative powers of the Parliament of the Commonwealth, particularly in relation to the defence power. Additionally, the court considered whether the Attorney-General for the Commonwealth had the right to bring such an action on behalf of the public when a public body allegedly transgressed its statutory powers.

A majority of the High Court, comprising Knox C.J., Gavan Duffy, Rich, and Starke JJ., held that the Shipping Board had no power to enter into the agreement. Their Honours reasoned that either the *Commonwealth Shipping Act 1923* did not confer the necessary power, or, if it did, the Act itself was beyond the constitutional authority of the Commonwealth Parliament. They found no constitutional power to authorise such a general commercial business activity, even if it could be argued as incidental to defence. Isaacs J. concurred, finding no authority in the Act for the agreement and no constitutional power to authorise it merely because it might be assistant to the Board's works. Higgins J. also agreed, concluding that the power was not conferred by the Act. The majority further held that if a public body constituted under Commonwealth law transgresses its statutory powers, the Attorney-General for the Commonwealth has the right to complain and seek a declaration and, if necessary, an injunction, irrespective of whether private injury has been alleged.

Consequently, the demurrers filed by both the Australian Commonwealth Shipping Board and the Municipal Council of Sydney were overruled, with costs awarded to the plaintiffs.

Orders