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Zachariassen v The Commonwealth

Zachariassen v The Commonwealth

Case [1917] HCA 77 20 December 1917

Judicial Review

Statutory Construction

Statutory Interpretation

Negligence & Tort

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24 CLR 166

ZACHARIASSEN AND ANOTHER

THE COMMONWEALTH AND ANOTHER Ship-Foreign ship-Clearance-Right of master to receive-Refusal by Comptroller-

General to issue - Liability of Commonwealth and Comptroller-General -Liability of Collector-Performance of conditions-Conditions precedent SYDNEY,

Arbitrary refusal to entertain application for clearanceJustification-Time of Dec. 5, 6, 7,

war-Exercise of prerogative-Rights of neutrals and allies The Constitution (63 &64 Vict. c. 12), secs. 64, 69-Customs Act 1901-1910 (No. 6 of 1901-No. 36 of 1910), secs. 4, 7, 9, 117-122, 221, 225-Magna Charta (9 Hen. III.), c. 30

Held, by the whole Court, that the Comptroller-General of Customs is an "officer" within the meaning of secs. 221 and 225 of the Customs Act 1901 1910, and therefore notice must be given of an action to be brought against him, and the action must be begun within six months from the cause of

Held, also, by Barton, Isaacs and Rich JJ., that under the Customs Act 1901 1910 a master of a ship, on performance of the conditions prescribed by the Act, is as against the Commonwealth entitled to a certificate of clearance, and that where such a certificate is either arbitrarily or on unjustifiable grounds refused by "the Collector," the shipowner may maintain an action for damages against the Commonwealth, but not against " the Collector."

Per Gavan Duffy J.: If the Commonwealth directs that a particular ship shall not be permitted to leave port unless loaded with a certain cargo and in pursuance of that direction the Comptroller-General directs that a certificate of clearance shall not be issued SO that the ship may not lawfully leave the port, the shipowner may, in the absence of any justification outside the Custom Act, maintain an action for damages against both the Commonwealth and the Comptroller-General, although no formal application for a certificate of clear

24 CLR 167

24 C.L.R.]

OF AUSTRALIA. Held, further, by the whole Court, that to an action by the foreign owner of a foreign ship against the Commonwealth to recover damages from the Common- wealth for the wrongful refusal of a certificate of clearance to the master, it is a good answer that the act complained of was done on behalf and by authority of the King and in the exercise of his sovereign power as a belligerent in time

HEARING of demurrers and questions of law.

In an action brought in the High Court by Alexander Gabriel Zachariassen and Jens Julius Zachariassen against the Common- wealth and Stephen Mills, Comptroller-General of Customs, the statement of claim as amended was substantially as follows :-

1. The plaintiffs, citizens of Abo, Finland, are Russian subjects, and are the owners of a certain ship called the Samoena whose port of registry is Nystad, Finland.

2. The ship arrived at Melbourne early in the month of July 1916 with a cargo of oils from New York, which cargo was duly discharged.

3. The ship was not at the time of her arrival in Melbourne or at any time under time charter to…

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.

Continue reading Zachariassen v The Commonwealth

Details

AGLC: Zachariassen v The Commonwealth [1917] HCA 77
Case: [1917] HCA 77
Decision Date: 20 December 1917

CaseChat Overview and Summary

This case involved an action brought by Alexander Gabriel Zachariassen and Jens Julius Zachariassen, owners of the foreign ship *Samoena*, against the Commonwealth and the Comptroller-General of Customs. The plaintiffs alleged that the Comptroller-General, acting under the directions of the Commonwealth, wrongfully refused to issue a certificate of clearance for their ship, preventing it from departing Melbourne to carry a cargo of nitrates from Chile. The shipowners claimed damages for the losses incurred due to this refusal.

The High Court was required to determine several legal issues. Firstly, whether the Comptroller-General of Customs was an "officer" within the meaning of sections 221 and 225 of the *Customs Act 1901-1910*, which relate to notice requirements and time limits for actions against such officers. Secondly, the Court had to consider whether, under the *Customs Act*, the shipowner had a right to a certificate of clearance upon performance of the prescribed conditions, and if so, whether an action for damages lay against the Commonwealth or the Comptroller-General for an arbitrary or unjustifiable refusal. Finally, the Court had to decide whether the Commonwealth could justify its actions, or the actions of its officers, as an exercise of sovereign power as a belligerent in time of war, and if such a defence was available against the owners of a foreign ship from an allied nation.

The Court held that the Comptroller-General of Customs was indeed an "officer" for the purposes of sections 221 and 225 of the *Customs Act*, meaning that notice of any action against him was required, and such actions must be commenced within six months of the cause of action. Furthermore, a majority of the Court found that, under the *Customs Act*, a shipmaster is entitled to a certificate of clearance upon fulfilling the statutory conditions. Where such a certificate is refused arbitrarily or on unjustifiable grounds by "the Collector," the shipowner may sue the Commonwealth for damages, but not the Collector personally. However, one judge dissented on this point, suggesting that if the Commonwealth directed a ship not to leave port without a specific cargo, and the Comptroller-General acted on this direction, the shipowner could sue both the Commonwealth and the Comptroller-General in the absence of justification outside the *Customs Act*, even without a formal application for clearance.

Crucially, the Court unanimously held that if the refusal to grant a certificate of clearance was done on behalf of and by the authority of the King, in the exercise of his sovereign power as a belligerent in time of war, this constituted a valid defence to an action for damages brought by the foreign owner of the ship against the Commonwealth.

Orders