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[1917] HCA 77
High Court of Australia
1917-07-01
Rich JJ, Gavan Duffy J
Original judgment source is linked above.
General to issue - Liability of Commonwealth and Comptroller-Genera
Held, by the whole Court, that the Comptroller-General of Customs i " officer" within the meaning of secs. 221 and 225 of the Customs Act 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 cau action.
1910a master of a ship, on performance of the conditions preseribed by is as against the Commonwealth entitled to a certificate of clearance, where such a certificate is either arbitrarily or on unjustifiable grounds by "the Collector," the shipowner may maintain an action for d against the Commonwealth, but not against "the Collector."
Per Gavan Duffy J.: Tf the Commonwealth directs that a particu shall not be permitted to leave port unless loaded with a certain cargo a pursuance of that direction the Comptroller-General directs that a cet of clearance shall not be issued so that the ship may not lawfully le port, the shipowner may, in the absence of any justification outside the Act, maintain an action for damages against both the Commonwealth Comptroller-General, although no formal application for a certificate of ance has been made.
Held, further, by the whole Court, that to an action by the foreign owner of a H. C. or 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
Heartne of demurrers and questions of law. Tn 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 : - q 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.
i any time under time charter to any person, firm or company ident or carrying on business in the Commonwealth.
4, Prior to the arrival of the ship at Melbourne the Commonwealth assumed control of the export of wheat from Australia to the United Kingdom and France and of all arrangements, including the chartering of ships, in connection therewith.
: 5, On 29th July 1916 the ship was chartered through the agents _ of the plaintiffs in London by Andrew Weir and Co., a firm not ~ resident: or carrying on business in the Commonwealth, to carry ~ nitrates from Chili to Bilbao.
Commonwealth by their Melbourne representatives sent master of the ship a letter as follows : - " Dear Sir, - We have reeeiy a cable advice this morning from our London Office that the Ambassador in Petrograd has advised the Australian High Co1 1 sioner in London, through the Colonial Office in London, th Russian Admiralty has notified your owners that they consi cargo of wheat from Melbourne to the United Kingdom sho ul accepted for your ship. We understand the Consul-General Melbourne will formally notify you to this effect. Meantim would inform you that as soon as you are ready to receive your cai of wheat, please apply to the Secretary of the Victorian Commission, 39 Queen Street, Melbourne, who will inform y
particulars of the terms of fixture. The charter-party will | signed in London, but we enclose you a blank form of the si an charter-party, which will serve as a guide to you."
On the same day the master replied as follows : - "De
nner mentioned for the requisition of the ship for the said purpose, as hereinbefore stated the ship was never requisitioned. Prior to 8th August 1916 the Melbourne representative of the ering agents for the Commonwealth informed the said master that the Commonwealth had issued instructions to the Department Customs that no clearance for the ship should be granted unless e were loaded with wheat and that the ship would not be allowed to leave port unless so loaded. 10. On 8th August 1916 the ship was ready to proceed to sea to y out the contract for carriage of nitrates, but by reason and in view of the communications and other circumstances hereinbefore ged the master did not then make application for a clearance. IL, On 24th August 1916 the master by his agents notified the ; tment of Customs of his intention to take the necessary steps to obtain a clearance, and was then informed by an officer of the said Department that the taking of such steps would be useless 1s an embargo had been placed on the ship. _ 12. Thereupon the agents of the master wrote to the Collector of ustoms at Melbourne a letter as follows : - "* Dear Sir, - The Russian '8 hip Samoena now lying in Hobson's Bay in ballast is ready to make her departure for Caleta Buena, Chili. On behalf of the master we notified the clearing clerk that it was our intention to take out the ance papers this afternoon, but we are informed that an embargo been placed on the vessel's departure. We will be glad if you kindly advise the reason of the embargo so that we will be in a position to advise the master, who is ready to sail."" Aa On or about 26th August the said agents of the master ived from the Comptroller-Géneral of Customs a letter as
H.C. or A. go as to disentitle the ship to a clearance, and no questions had b 1917.
Zacuarr- therewith, and the only position of which the master was aware y
ASSEN that created by the instructions alleged by the representati the said chartering agents to have been given as set out in par
put or requisitions made by the Collector of Customs in connecti
to the Comptroller-General of Customs for permission to
and at the same time handed to him a written protest against ¢
continued detention of the ship, and thereupon the Comptroller- _ General of Customs directed the master to lodge the written protest at the Department of the Attorney-General of the Commonwealth.
(Pars. 23, 24, 25 and 26 contained allegations of damage.)
The defence was substantially as follows : -
172 HIGH COURT H.C. or A. admit that the plaintifis are citizens of Abo, Finland, and ; 1917. a, Zacr
Russian subjects. 4 2. As to par. 6 of the amended statement of claim the defendant : deny that the said Elder, Smith & Co. Ltd. and Anthony Gibb;
sete tart, CO Were at any time the joint chartering agents or that either f
them had at any time authority on behalf of the Commonwe: to inform the agents of the plaintiffs as therein alleged or at a
6, As to the remaining allegations in the amended statement claim the defendants deny the same and each of them.
c) the production of documents relating to the ship and her cargo; ) a statement duly accounting for all her inward cargo and stores the satisfaction of the Collector ; (e) the furnishing of particulars to the name of the ship, the name of the master, the cargo, the stination and the date and time of the intended sailing of the ship; (/) proof to the satisfaction of the Collector of the pay- i of light dues and tonnage and pilotage dues.
As to par. 15 of the amended statement of claim the defendants say that neither the Comptroller-General of Customs nor the Col- lector nor any officer of Customs nor any person had any power or authority to excuse the master from making formal application for a clearance or from complying with the conditions set forth in ; . 8 hereof.
a As to pars. 17 and 18 of the amended statement of claim e defendants deny that an embargo had been placed on the said ship Samoena or the said ship Lindisfarne or that the said ships or either of them were being detained by the Commonwealth or were not allowed to leave the said ports either for the reason alleged in ir. 17 or at all. '
The defendants further say that the alleged refusal to grant cate of clearance to the said vessel and the imposition of th alleged restrictive conditions in regard to the*granting of such certificate in so far as the same were acts of the defendants or either them were acts of a belligerent power in right of, war and are tt justiciable in this Court.
13, As to pars. 23 and 27 of the amended statement of claim defendants deny that the Comptroller-General of Customs to deal with an application for or to grant a clearance as alleged or at all.
such, acts or omissions in respect of which the Commonwealth is not responsible.
The plaintiffs' replication (as amended at the hearing of demurrers) was substantial'y as follows : -
the said paragraph referred to are not conditions precedent to the right of the plaintiffs to have an application for a certificate of clearance dealt with by the Comptroller-General or Collector of Customs ; (b) that the alleged failure of the plaintiffs to comply with the said requirements of law affords no defence in this action to the defendants or either of them ; and on other grounds sufficient in law.
(a) Whether under the circumstances alleged in the statement of claim the defendant Commonwealth of Australia is responsible for the acts and omissions of the defendant Comptroller-General of Customs alleged in the statement of claim.
(b) Whether under the circumstances alleged in the statement of claim the plaintiffs are entitled to maintain this action against the defendants or either of them although no formal application was made for a certificate of clearance.
(c) Whether the defendant Comptroller-General of Customs
is an " officer" within the meaning of secs. 221 and 225 of the Customs Act 1901 or of either of the said sections.
The demurrers and questions of law now came on for argument.
H.C.or A. Maughan (with him Halse Rogers), for the plaintiffs. As to th 1917.
first question raised in par. 4 of the replication, the Commonweal is liable for the action of the Comptroller-General of Customs relation to a clearance. It is liable because it directed the Comp troller-General not to issue a clearance and because he was performii
an application for a clearance and that of granting or refusing the
application are both ministerial. If the conditions prescribed by
the Customs Act have been complied with, a clearance follows as
course. On the facts stated in the statement of claim it is no ans
to say that the Comptroller-General acted in the exercise of his'
discretion or that he acted under the directions of the Cro
[Counsel referred to Randall v. Northcote Corporation (1).] 7
next question arises out of par. 2 of the replication and the sec
question submitted by par. 4 thereof. The plaintiffs are entitled
to maintain the action although the conditions mentioned in
8 of the defence were not complied with and no formal application
was made for a clearance. There is a statutory right to a clear
on performing those conditions (see Clarke v. Union Steamship
Co. of New Zealand Ltd (2) ). Those conditions are not conditions
precedent, and performance of them may be waived either by the
Commonwealth or by its officer (Fulton v. Norton (3)).
Commonwealth could have directed that a clearance should b
issued except so far as the Compiroller-General had to be sat
as to certain matters. Under sec. 6 of the Customs Act the admin
tration of the Act is given to the Minister. The defendants, ha
said that a clearance would be refused even if the conditions sho
be performed, cannot now take advantage of their non-performance.
Under the Customs Act the plaintiffs were entitled to an ord
that a clearance should be issued and that the Comptroller-Gen
should do his duty. As to the third question submitted by p:
of the replication, the Comptroller-General is not an
within the meaning of secs. 221 or 225 of the Customs Act.
means a person employed in the service of the Customs (sec.
The Comptroller-General is not an employee but an employer.
(1) 11 G.LR., 100, at p. 115. (2) 18 CLR, 142, at p. 45. (3) (1908) A.C., 451.
is the permanent head of the Customs (sec. 7). "Officers" are H.C. or A. persons employed by him. Sec. 196 shows a distinction between ee the Comptroller-General and an " officer." As tothe questions raised zscusrr- by par. 3 of the replication, it is not sufficient for the defendants to allege that the acts complained of were done in right of war. The facts should be set out. It should be alleged that the acts were done by reason of a Commonwealth emergency and for the
_ not requisitioned, the emergency could not have been such as to justify the refusal of a clearance. [Counsel also referred to The Zamora (3); Pitt Cobbett's Leading Cases on International Law, 3rd ed., vol. 1, p. 260.]
Knox K.C. (with him H. F. Manning), for the respondents. As to pars. 2 and 4 (6) of the replication, the plaintiffs have no cause of action against either of the defendants because no application was made for a clearance. If it was the duty of the Comptroller-General to entertain an application for, or to issue, a clearance he cannot render the Commonwealth liable by refusing to do his duty (Baume v. The Commonwealth (4) ). There is no distinct statement in the Customs Act that there is a right to a clearance, but by implication there may bé such a right. [Counsel referred to the Customs Act, sees, 118-122, 127-129, 270; Customs Regulations 1913 (Statutory Rules 1913, No. 346), regs. 32, 33, 99, 102, 103, 106-108, Forms 9a, 9B, 37, 39, 40, 41.] The necessity of compliance with the Regulations cannot be waived or got rid of by anyone. Although
in the case of a purely ministerial duty a cause of action may arise from a refusal to do the duty, it is not so where the duty depends
H. C. or A. to some extent on discretion, unless mala fides is proved. [Co 1917.
referred to Young & Co. v. Leamington Corporation (1); Ayr Ha bour Trustees v. Oswald (2); Yabbicom v. King (3).] The Comp troller-General is an " officer" within the meaning of secs. 221 225 of the Customs Act. [Counsel was stopped on this questi "As to the question raised by pars. 3 and 4 (c) of the replication, th effect of par. 12 of the defence is that in time of war the Executiv has power to do whatever is necessary for the defence of the re In and when an act so done is challenged it is an answer that in the
opinion of the Executive the act was a proper one for the defence o
the realm. When evidence is given that that is the opinion of the
Executive, the Court will accept that evidence and will go no further
with the matter. [Counsel referred to In re a Petition of Right (4
The Zamora (5); British Cast Plate Manufacturers v. Meredith (6);
Phillips v. Eyre (7); Ex parte Marais (8).] A subject of an alli
nation or a neutral nation is not on a different footing in this res
from that of a British subject. If a ship comes into a British port
for the purpose of trading, the owner submits to the British
He cannot have the benefit of that law without submitting also
its burdens. (See Pitt Cobbett's Leading Cases on International
Maughan, in reply. The allegations in the statement of claim show a sufficient application for a clearance. Nothing formal is required to be done. There was an application to the Comptroller General, and there was a refusal by him to entertain the application. The right of the Crown in time of war to take property does not apply to a neptral or ally subject temporarily within the Dominions. The necessity which must be shown is a military necessity, a not merely a civil necessity.
Dee, 20, The following judgments were read : - Barron, Isaacs anp Ricu JJ. There are really three ques
(1) 8 App. Cas., 517. (6) 4 T.R., 794, at p. 797. (2) 8 App. Cas., 623. (7) LR. 6 Q.B., 1, at p. 31. (3) (1899) 1 Q.B., 444. (8) (1902) A.C., 109.
(4) (1915) 3 K.B., 649. (9) (1916) 2 A.C, at p. 100. (5) 1916) 2 A.C., at pp. 99, 106.
to be decided in this case, viz., (1) whether the Comptroller-General is primé facie liable ; (2) whether the Commonwealth is primd facie liable ; (3) whether the plea as to the war power is a justification.
The ground may be cleared by a general view as to the Customs Act 1901, on which the two first questions turn. It should be observed in passing that the first question, as it falls to be decided now, was expressly left undetermined in Baume v. The Commonwealth (1) (see particularly at pp. 113, 122). Full consideration of that Statute has led us to the conclusion that, in the main, the plaintiffs' view of it is right.
The first and fundamental circumstance to be remembered is that by the Constitution itself (sec. 69) it is enacted that "the Departments of Customs and of Excise in each State shall become transferred to the Commonwealth on its establishment." Sec. 64 refers to the Departments of State of the Commonwealth. The Department of Trade and Customs was accordingly established. The Customs Act 1901 was for the purpose of regulating that Department so far as Parliament thought necessary. Having in view the Constitutional provisions as to Customs, and the reference to Departments, it is difficult to see how the Commonwealth can 80 far dissociate itself from the administration of the Department as to say any of its functions are not functions of the Commonwealth, but of some person in his own individual capacity, entirely inde- pendent of the Commonwealth. No doubt superior officers may be, and in most cases are, independent of the acts of their subordinates, unless those acts are expressly or impliedly authorized or directed or participated in by them. Further, Parliament could lay a per- sonal duty on an officer towards the public. But it is quite another matter to say that the Commonwealth is or can be, in its corporate capacity, a stranger to any part of the administration of the Depart- ment of Trade and Customs.
Reading the Statute by the light of the Constitution, we think that "the Customs " - a short term for the Department - is organized as a Government Department, with a Minister to supervise its administration, but bound by the provisions of the Act in relation to that administration. One provision is that there shall be a
The functions so limited by the Act to the " Collector" limited with respect to the duty and authority of officers as betw the Crown and the officers, and as between the Crown and individual, They are not intended to create rights and duties o the part of the "Collector" personally and the individual. Th
(R. v. Lords Commissioners of the Treasury (1) and R. v. Commi sioners of Inland Revenue; In re Nathan (2)). We may add tl as he is undoubtedly an officer within the meaning of sec. 221, is not liable in this action, unless he has been given the neet notice (secs. 221 and 225 - see Arnold v. Hamel (3) ).
Now, to test the matter as between the Commonwealth and plaintiff: Is there a statutory right to receive a clearance suppos all the statutory conditions are fulfilled? The Act nowhere s sa} in affirmative words that if all the requirements of the law are s fied, the Collector "shall" grant a clearance. It does not e
(1) LR. 7 Q.B., 387. (2) 12 Q.B.D., 461. (3) 9 Ex., 404.
-say he " may" grant it. If it did, the principle of Julius v. Bishop _ of Oxford (1) would in the circumstances apply, and give such a ; provision compulsory force. The affirmative duty is found, we think, in other considerations. Magna Charta (9 Hen. III.), c. 30, relating to foreign merchants said: " All merchants unless they were openly prohibited before, shall have safe and sure conduct to depart out of England, and to come into England, and to tarry in and go through England, as well by land as by water to buy or sell _ except in time of war." This provision, as is observed in Chitty on the Prerogative (p. 163), " strongly proves that the English had this liberty before." International commercial intercourse by sea (subject to any specially indicated municipal requirement) is always understood to imply a right to depart with the vessel. Foreign commerce and intercourse would otherwise be impossible, and one main object of the Customs Acts, including Tariff Acts, would be frustrated. The Customs Act must be read with reference to mari- time practice, applicable to all oversea commerce, inwards and outwards. It is trite law that Statutes should be construed, so far as their language permits, so as not to clash with international comity (Hx parte Blain; In re Sawers (2); Winans v. Attorney- freneral (3) ; Colquhoun v. Brooks (4); Macleod v. Attorney-General for New South Wales (5)). So reading it, there is a duty on the Com- monwealth (by the hand of the Collector) to grant the clearance if satisfied that the law has been complied with. An arbitrary refusal or one based on unjustifiable grounds is the denial of a right implicitly recognized, incorporated into and limited by the Act. By unjustifi- able grounds, we must not be understood as excluding in all cases an honest and not unreasonable belief on the part of the Collector acting for the Commonwealth, that the law has not been complied with. In times of peace, the refusal alleged in this case, if its possibility then be assumed, would be a clear primd facie breach of the Statutes. 'The justification of the Commonwealth, if any, must rest on par. Sand par. 12 of the defence. Par. 8 raises considerations applicable
(1) 5 App. Cas., 214. (4) 21 Q.B.D., 52, at p. 57. (2) 12 Ch. D., 522. (5) (1891) A.C., 455. (3) (1910) A.C., 22, at p. 31.
H. C. or A. 1917. Zacuart- ASSEN v. Tue Com- MONWEALTH.
the refusal was arbitrary and was not based on failure to compl with those conditions. Par. 12 is different. It is not a mere co
Tux CoM- tention in law. It contains allegations of fact, and is so treated j MONWEALTH.
par. 3 of the replication, by which it is demurred to. It is cer Barton J. p ' Isaacs J. couched in very broad and somewhat vague terms, and possibly th
ian plaintiffs, if they so desire it, are entitled to obtain some particularity either in the pleading itself or by way of particu But from the standpoint of general demurrer we have to con whether its allegations however broad and vague are, if true, n sarily insufficient in law to justify the matters complained of. - It alleges that the acts complained of " were acts of a belli power in right of war and are not justiciable in this Court." does that mean when alleged of acts with respect to analien? | means that inasmuch as the basis of the plaintiffs' claim is foreigners, and not British subjects, the Crown acting not simy upon its powers considered municipally, towards a subject permanet or temporary, but on the wider ground of international po'
exercise of sovereign power" (see per Lord Moulton (then Justice) in Salaman v. Secretary of State in Councii for India
Zamora (2) is invoked in argument in support of this allegation.
If, however, the plaintifis abandon the basis of " alien" and tal up the position of " British subject" on account of being - thou temporarily - within the Dominions (which is not the position t assumed on the argument), then other considerations may apply at are dealt with later. It is said that there is no allegation in par.
(1) (1906) 1 K.B., 613, at p. 639. (2) (1916) 2.A.C., at pp. 106-107. -
of the Crown's belief that the acts were necessary for the public H- ©. or A. ety. That, at most, is matter of evidence to support the allegation aides which is sufficiently comprehensive, however vague, that the acts Zacu
were belligerent rights. Par. 12, if conceded to be true, as the i
demurrer must concede it, though raising questions of novelty as 50" Sw"
to which there is no direct authority, is in our opinion on principle
. Bi J. a good answer to the matter complained of, and the demurrer to Teaace J.
Rich J. that paragraph cannot be sustained. We pass from the demurrer, to the questions of law, separately submitted in par. 4 of the replication. (a) The first is whether under the circumstances alleged in the statement of claim the Commonwealth is responsible for the conduct of the Comptroller complained of. This has been already answered by saying the Com- monwealth is responsible. (b) The second is whether, notwithstanding no formal application was made for a certificate of clearance, a cause of action is disclosed by the statement of claim. Assuming the allegations in the statement of claim to be true, the absence of a formal application is immaterial. The question, however, involves further considerations of law. This question excludes par. 12 of the defence, so that we have now to consider the position apart from the special character of the plaintiffs as friendly foreigners in entirely external relations to the Empire regarded as a belligerent power. In this regard, they are of foreign nationality, but owing temporary allegiance to the British Crown, enjoying its protection, and to be regarded in large measure as British subjects. In this aspect, the problem raised by the question is whether the Common- wealth has the right in time of war, and as an expedient to send food to the United Kingdom and France - which, as a matter of common knowledge, are not only at war, but are in need of supplies by reason of German submarines, - to refuse a clearance under the municipal statutory law of the Customs Act to a foreign ship voluntarily arriving in time of war, unless the master agrees to carry a cargo of wheat for the Government from Australia to the United Kingdom. This is not the question of an embargo for considerations of security of which the Executive must be the sole judge (see Chitty on the Prerogative, pp. 48 and 172). It is a definite question whether in law the one specific ground of the refusal is justifiable.
A good deal of argument has taken place based on the case
the one side was that though " requisition" of the vessel wit compensation would have been intra vires, nothing short of t would be - for instance, an embargo considered by the Crown to necessary for the public safety. On the other side it was urged ti property of a foreigner may be taken equally with that of a subj without any right on the part of the owner to compensation, subject to a diplomatic liability to his Sovereign to comp the owner. From this it was deduced that anything short of to acquisition - such as temporary user - of a foreign ship is equi permissible and equally free of compensation. In our opinion, the question as it arises in this case is not co to property. The requirement of the Commonwealth was tl aliens should themselves engage in the service of the Commony as well as permit their property to be used: To some extent appears to be recognized as permissible. In Hall's Foreign diction, at p. 171, it is said that an alien " in return for the pro which he receives, and the opportunities of profit and which he enjoys, is liable to a certain extent at any rate, in mome of emergency, to contribute by his personal service to the mai tenance of order in the State from which he is deriving adv: and under some circumstances it may even be permissible to re him to help in protecting it against external dangers." At p. | it appears that during the American Civil War Lord Lyons instructed accordingly. But, in the authorities which we hi been referred to or have seen, there is not any statement she that the mere fact of war supports an attempt to compel alie personally enter into the King's service outside the territory, ant on the open sea, and while there to risk capture or death at hands of the enemy. Any such act, if justifiable at law, mus justified by emergency under the war power specially pleaded. It would be most unwise, even if possible, to endeav anticipation to state the circumstances which alone would j the acts complained of. In view of the fact that par. pleaded and remains to be proved, if it can be proved, we ab (1) (1915) 3 K.B., 649. (2) (1916) 2. A.C, Th
from entering further into the position of the parties, apart from paragraph. We must not be understood as saying that the power does not on The Zamora principle enable the Crown - juite independently of the direct international aspect - to refuse clearance if it considers the public safety demands such a refusal. in view of the actual state of the pleadings, that is largely a othetical question and further answer might embarrass or judice the just result of the case. _ We therefore answer the various questions as follows : - _ (1) As to the demurrer in par. 2 (a) of the replication : - The law essarily requires the making of an actual application as a condition cedent to the Collector determining whether a clearance should granted or not. Once an application is made, the other require- s of law mentioned are not conditions precedent to the applica- being "dealt with," but are conditions precedent to its being _ (2) As to par. 2 (b) of the replication : - The failure to comply with those requirements affords no defence to this action in view of the to consider any application whatever. (3) As to par. 3 of the replication : - (a) The answer depends on hat is proved under par. 12 of the defence; (b) the ultimate fact us alleged includes all necessary constituent facts: demurrer erefore does not lie, though further particularity may be required. ¢) We have had no argument addressed as to the special position of foreigner who is also the subject of an allied power. (d) This, ently directed to show the impossibility of "act of State," s been already sufficiently dealt with. (4) As to the questions of law raised by par. 4 of the replication we answer as follows: - (a) Yes. (b) Yes, against the Com- no iwealth, unless the facts admissible and proved under par. 12 of the defence establish a justification under the war power. ») Yes.
Gavan Durry J. The plaintiffs in twenty-six paragraphs of their ement of claim set out a vast quantity of evidence, and continue : - (27) " The plaintiffs submit that the action of the defendant
"refusal." (28) "The plaintiffs further submit that the action of
Comptroller-General of Customs in refusing to grant a cleara as aforesaid or to deal with an application for the same was wrongh and the plaintiffs claim to recover from the said defendant and the defendant Commonwealth of Australia the damages s by them as herein set out in respect of and consequent on the s¢
defendant Commonwealth of Australia in directing the said Com troller-General of Customs to refuse to grant a clearance for the sai ship unless a cargo of wheat was shipped was wrongful and th plaintiffs claim to recover from the defendant Commonwealt Australia the damages suffered by them as herein set out consequel on the compliance of the said Comptroller-General of Custom with such directions as aforesaid." ; In order to support their claim with respect to the alleged refus to grant a clearance, they state in par. 14 that " Nothing has be done or omitted up to the said twenty-sixth day of August by t said master in connection with the said ship or the discha ' loading of the same or in any matter in connection therewit contravention of the Customs Act 1901-1910 or the regulations 1 under or in contravention of the provisions of any other Statu regulations so as to disentitle the said ship to a clearance." To this the defendants plead in par. 8 of the defence : - " A par. 14 of the amended statement of claim the defendants say the plaintiffs failed to comply with certain requirements of lam a compliance with which was a condition precedent to the granting by the Comptroller-General or Collector of Customs of a certificate of clearance for the said vessel. These requirements were inter ali as follows." (The requirements are then set out.) : The plaintifis in their replication say : - (2) " The plaintifis d to so much of the defendants' statement of defence as is cont in the 8th paragraph thereof and say that the same is bad in kt on the following grounds : - (a) That the requirements of law the said paragraph referred to are not conditions precedent to t right of the plaintiffs to have an application for a certifical clearance dealt with by the Comptroller-General or Collecto Customs. (b) That the alleged failure of the plaintiffs to comp!
with the said requirements of law affords no defence in this action to the defendants or either of them. And on other grounds sufficient in law."
Par. 8 of the defence relies on the non-performance of the alleged requirements only as an answer to the allegation in par. 14 of the statement of claim that there have been no acts or omissions by the ship master, &c., which would disentitle the ship to a clearance, and has no reference to the alleged refusal to deal with the applica- tion. Par. 2 of the replication treats it as if it purported to be an answer to the plaintiffs' cause of action founded on the refusal to deal with the application. The demurrer is bad. Par. 8 of the defence, if proved, would sufficiently answer the allegations contained in par. 14 of the statement of claim and the claim based upon such allegations. Par. 15 of the statement of claim alleges that the plaintiffs were excused by the defendants from a compliance with the requirements of the Act and regulations, but that question is not touched by par. 8 of the defence or by the demurrer.
Par, 12 of the defence runs thus: " The defendants further say that the alleged refusal to grant a certificate of clearance to the said vessel and the imposition of the alleged restrictive conditions in regard to the granting of such certificate in so far as the same were acts of the defendants or either of them were acts of a belligerent power in right of war and are not justiciable in this Court."
Par. 3 of the replication is as follows: " The plaintiffs demur to so much of the defendants' statement of defence as is contained in the 12th paragraph thereof and say that the same js bad in Jaw on the following grounds." (The grounds follow.)
In my opinion par. 12 of the statement of claim alleges that the acts there referred to were done by the Commonwealth of Australia as a belligerent power or by the Comptroller-General of Customs as
its officer. If this be its meaning, it is enough to say that the
Commonwealth is not a belligerent power. But my learned brothers agree in thinking that it may be read as setting up and relying on the power and prerogative of the King and on the fact that whatever was done by the defendants was done on his behalf and by his
"in effect proceed to demur to their own. They submit Gavan Duffy J.
authority. If this wide Solero be given to the Janguage par. 12, it is impossible to say that the defendants might not unde it prove some facts which would afford justification for their conduct, In that view the demurrer must fail.
In addition to demurring to the defendants' pleadings, the plain
questions of law for our consideration, which as amended at the instance of my brother Jsaacs run thus : - (a) " Whether under circumstances alleged in the statement of claim the defendant Commonwealth of Australia is responsible for the acts and omissions of the defendant Comptroller-General of Customs alleged in statement of claim." In par. 22 of the statement of claim the plaintifis state that, in the matters therein set out, the Comp troller-General of Customs was acting under the directions of th Commonwealth of Australia. If so, the Commonwealth of Australi is clearly responsible for his acts and omissions alleged in statement of claim. (b) "* Whether under the circumstances alleges in the statement of claim the plaintiffs are entitled to mainta this action against the defendants or either of them although no formal application was made for a certificate of clearance." The statement of claim alleges facts from which it might properly be inferred that the Commonwealth of Australia directed that the sh should not be permitted to leave port unless loaded with wheat a that the master should be so informed, and that in pursuance of the purpose and by the direction of the Commonwealth of Australia the Comptroller-General of Customs directed that a clearance sho not be granted so that the ship might not be able lawfully to lea port. If these facts are proved at the trial and such an inference is
drawn, the plaintiffs will be entitled to maintain their action aga both defendants although no formal application was made for certificate of clearance. The ship master was in my opinion liberty to accept the intimation that his ship would not be permitted to leave port and consider it detained by force majeure unless and until he consented to carry a cargo of wheat. (c) " Whether t! defendant Comptroller-General of Customs is an ' officer' within the meaning of secs. 221 and 225 of the Customs Act 1901-1910 or of either of the said sections." I agree with the other members of the
Court in thinking that the Comptroller-General of Customs is an H. ©. or A.
peticet within the meaning of these sections. pe F Plaintiffs' first demurrer allowed, and their fone "s second demurrer overruled. Questions Pym" Com- ' raised as points of law in par. 4 of the MONWEALTH. 3 plaintiffs' replication answered as follows : - : (a) Yes. (b) Yes, against the Common- . wealth, unless the facts proved under par. 12 ' of the defence establish a justification under the war power. (c) Yes. Costs to be costs in the action.
Solicitors for the plaintiffs, Dalrymple & Blain. Solicitor for the defendants, Gordon H. Castle, Crown Solicitor for
Bede {HIGH COURT OF AUSTRALIA.} 3 BLOM ' i ' ' : . ' APPELLANT ; : Prarntirr, AND
THE COMMONWEALTH oe 2. ~ 2) ResponpEnr. : Drrenpant, : ON APPEAL FROM THE SUPREME COURT OF : NEW SOUTH WALES. zi _ Ship - Foreign ship - Clearance - Refusal by Comptroller-General and Collector to 2 ei =
issue - Liability of Commonwealth - Placing of armed guard on ship to prevent sailing without clearance - Customs Act 1901-1910 (No. 6 of 1901 - . 1910), secs. 117-122.
The master of a ship, of which the port of registry was in Russia, applied - - -
to the Collector of Customs at Sydney for a certificate of clearance and tendered Isaacs,
to him all the documents required by law to be tendered for the purpose of "Rien yy."
a wealth
H.C. or A.