Zachariassen v The Commonwealth

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.