Australian Boot Trade Employes Federation v Whybrow and Co [1910] HCA 8

Australian Boot Trade Employes Federation v Whybrow and Co [1910] HCA 8 - HCA 1910 case summary — Zoe

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limitation except in the method by which it is to have operation. It is a power to settle industrial disputes not by direct legislation, but by means of conciliation and arbitration. The word " arbitra- tion" has reference not to the subject matter of the arbitration, but to the sort of body which is to settle the dispute; it is used, not as suggesting a limitation on the power, but as suggesting a method by which to carry out the power. Nor does the word "arbitration" connote voluntary agreement or that the parties shall appoint the arbitrators. The arbitrator is bound to obey the law under which he is created, but the use of the word "arbi- tration" does not necessarily show that the arbitrator is to observe all legal obligations binding on the parties, or is to respect all existing laws. The Commonwealth Court of Con- ciliation and Arbitration, whose duty it is to settle disputes, must ignore the ordinary law as to agreements, for it must be able to say what agreements already existing must no longer be made and what agreements may for the future be made, The reason for this is that, looking at the nature of the power and its subject matter, it is necessary. It is in the same way also neces- sary that the Federal Court should be able to disregard State laws fixing wages or conditions of employment either directly or through Wages Boards. Once there is a dispute extending beyond one State which is brought before the Federal Court for settlement, then the matter is taken out of the ordinary control of the States, and the Federal Court can settle that dispute without regarding the laws of the States which would otherwise apply. Nothing that can be inferred from the use of the word "arbitration" interferes with this view. The power to settle disputes is an over-riding power, and in order to carry it out the State laws must give way, and whatever the President of the Federal Court thinks is necessary to be done to settle that dis- pute he may order to.be done. If the Commonwealth power is limited to what may lawfully be done under the State laws, the Parliaments of the States may by subsequent legislation nullity the effect of an award of the Federal Court. The power given by the Constitution to the Parliament is to appoint an agent to complete the legislation which the Parliament has begun. The award made by the agent and the Act of the Commonwealth

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But there are other principles which assume cardinal import- ance in the exposition of the relative powers of Commonwealth and State. In the Railway Employés Case (1) we referred to the influence of two salient facts on the construction of the Con- stitution : first, that it is an Act of the Imperial legislature, next, that it embodies a compact entered into between the six Aus- tralian States which formed the Commonwealth. These facts, we thought, rendered especially applicable to the construction of such a Constitution the rules that, in interpreting a Statute, regard must be had to the existing laws which it modifies (which in the case of this charter include the Constitutions of the States), and that in interpreting a contract regard must be had to the facts and circumstances existing at the date of the con- tract. After pointing out that it must at the same time he remembered that the Constitution was intended to regulate the future relations of the Federal and State Governments, not only with regard to the existing circumstances, but also with regard to such changed conditions as the process of events might bring about, we went on to say: - " Another circumstance which, in our opinion, is to be regarded is that the Constitution as framed was to be, and was, submitted to the votes of the electors of the States. It ought, therefore, we think to be held, primd fucie, that, when a particular subject matter relating to the respective powers of the States and the Commonwealth was specifically dealt with, it was intended to invite the attention of the electors specifically to that subject matter and to the proposed manner of dealing with it. It follows, we think, from this consideration that the rules of construction expressed in the maxims expressum facit cessare tacitum and expressio wnius est exclusio alterius are applicable in a greater, rather than in a less degree, than in the construction of ordinary contracts or ordinary Statutes." The very method and form of the constitutional delimitation involves this consequence, that, before a grant of power to the Common- wealth can be held to eut down any power included in the general

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and an agreement by both to be bound by the decision, which is commonly called the award. 'The submission may include ques- tions of pure law, of mixed law and fact, or of fact alone, according to the terms in which the dispute is submitted or referred to arbi- tration ; and beyond all question the award is a judicial deter- mination, That at least has never been the subject of doubt, whether in a Court or elsewhere. The tribunal, then, being judicial, its office is to decide questions of fact, and in respect of such conclusions to declare or apply existing laws, save so far as either party may voluntarily and lawfully renounce the benefit of them. It is resorted to simply and solely because the parties cannot come to an agreement on the questions submitted, and therefore desire that the tribunal should make an agreement for them, by which they mutually consent beforehand to be bound. The range, then, of an arbitrator's authority, if the submission is wide enough, is co-extensive with the powers of the parties to settle their dispute without him. Whatever they can lawfully agree to, he may lawfully award. If, however, they desire him to make for them an agreement in breach of the mandate of posi- tive law, he is powerless to do so. As they can each surrender strict legal rights by agreement, so hé can bind them to such surrenders by award, if they give him power to do so. But it is one thing for a party to waive a legal right, and another thing for the tribunal to impair the obligation of a law or to attempt to make a new one. That is out of the question, because it is not a conceivable function of a judicial tribunal in a civilized country. There may be legislatures which prefer to set up tribunals with despotic powers to wave aside legislation which does not please them, but the Imperial Parliament is not such a legislature, nor is the Parliament of the Commonwealth. The office of an arbi- trator is like that of a Judge to the extent that it is for him to declare the law and not to make it.

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The second question is whether the proposed award, annexed to the case stated by my learned brother the President, would in any of its parts be inconsistent with the determinations of the State Wages Boards. I have already stated the sense in which I understand the word "inconsistent." It may be of advantage to elucidate it further by a passage in the judgment of Lord Black- burn in the case of Garnett v. Bradley (1): - * There is one rule, a rule of common sense, which is found constantly laid down in these authorities to which I have referred, namely, that when the new enactment is couched in general affirmative language and the previous law, whether a law of custom or not, can well stand with it, for the language used is all in the affirmative, there is nothing to say that the previous law shall be repealed, and there- fore the old and the new laws may stand together. There the general affirmative words of the new law would not of them- selves repeal the old. But when the new affirmative words are, as was said in Stradling v. Morgan (2), such as by their neces- sity to import a contradiction, that is to say, where one can see that it must have been intended that the two should be in con- flict, the two could not stand together; the second repeals the first." The determinations of the Wages Boards and the pro- posed award are couched in the affirmative in respect of the material part of each, the provision as to the minimum wage. None of them prescribe an inflexible rate. The determinations name a minimum, and it is in each case lower than the minimum named by the proposed award. By paying the latter minimum an employer will be obeying both laws. The affirmative words of the award, therefore, do not " import a contradiction" between it and the determinations. It is impossible to say that the employer cannot obey the one without disobeying the other. Therefore, the former and the latter may stand together. There- fore, according to the proper test, they are not inconsistent.

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jurisdiction are to be found in the agreement of the disputants. Very many years ago arbitration as a means of deciding differences between individuals was recognized and aided by British legislation and used for the determination of issues arising under Statutory provisions. A familiar illustration of the latter use is the ascertainment of compensation to owners of land taken under Statutory powers for public undertakings. Another is to be found in the Act 40 Geo. III. c. 90, referred to by Mr. Duffy, in which the method was applied to the settlement of disputes between masters and workmen. Most of these Statutes fix the issues and lay down the principles on which they must be deter- mined.. They also embody compulsion in this sense, that the party failing to appoint his share of the tribunal is liable to have it appointed for him by the processes of the Statute and, whether he consents or not, the hearing thereafter goes on and the determination binds him. It has never been questioned that the jurisdiction of all such tribunals is bounded by the limits of an ordinary arbitration except in so far as those limits may have been extended by Statute. The most obvious of these limitations is that arbitration tribunals equally with other tribunals are subject to the law, and they have no greater authority than the ordinary judicial tribunals have to relieve parties to controversies before them from obedience to the law. There is thus embedded in the word " arbitration " itself a meaning which fixes the limit of the jurisdiction that can be conferred by the Commonwealth Parliament on a tribunal created under the power to prevent and settle industrial disputes by arbitration. No form of words used in constituting the tribunal can put it above the law, or make it a law unto itself, or clothe it with wider powers than are necessary for the effective application of the arbitral method to the prevention and settlement of industrial disputes. But the application of the arbitral method to the prevention and settlement: of industrial disputes in itself necessarily involves an extension of jurisdiction beyond that of an ordinary arbitration tribunal - an extension which as it seems to me has well defined limits. I have pointed out in the Saw Mills Employés Case (1) that sub-sec, 35 necessarily implies in a tribunal created in pursuance

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of its provisions authority to disregard State laws in two respects. An industrial dispute in its nature involves a complaint against the operation of existing rights under existing conditions. The aim of the tribunal charged with its settlement is the establish- ment of a modus vivendi for the future, which in many cases can be achieved only by the modification of existing contracts and the creation of new rights and obligations between the parties. It would be a contradiction in terms to confer the power to settle industrial disputes upon a tribunal powerless to do more than give effect to existing contracts and enforce existing rights. There must therefore be implied from the very nature of the subject matter power in the Parliament to confer on the Federal Arbitration Court authority to enter upon the settlement of an industrial dis- pute unfettered by any obligation to preserve rights under existing contracts of employment between the parties or to give effect to the laws of the State, statutory or otherwise, by which those rights are recognized and enforced. For a similar reason it must be taken that power is implied to clothe the arbitral tribunal with authority to disregard the award of a State Industrial Arbitration Court which stands in the way of the effective settlement of an indus- trial dispute within the purview of the federal power. Rights conferred by contract entered into between the parties and rights created by award of a State industrial tribunal in settlement of an industrial dispute between them must stand in this respect on the same footing. The reasons which throw open to the Federal Court for reconsideration the rights of the parties arising out of their contracts must throw open for reconsideration the rights conferred upon them by the State award. It follows, in my opinion, that in respect of the rights of disputants under existing contracts of employment or under the awards of State Industrial Arbitration Courts the language of sub-sec. xxxv. empowers the Commonwealth legislature to clothe the Federal Arbitration Court with authority to disregard any State laws which may stand in the way of what the Court may determine to be the effective settlement of the dispute. Save in that respect Parlia- ment is not empowered to vest in the federal tribunal any more authority to disregard State laws than an ordinary arbitral tribunal would have. As I have already pointed out, the source

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The question still remains whether it has been used in the Con- stitution with that more extended meaning. In that aspect of the ease it becomes necessary to consider other portions of the Constitution. But before doing that I shall deal with the conten- tion on the language of the sub-section. The claimants' argument may, I think, be fairly summed up in this way. It must be taken that the framers of the Constitution intended the power to prevent and settle industrial disputes by the conciliation and arbitration of a federal arbitral tribunal to be effective, effective in accordance with the Commonwealth view, that is to say, in the view of the arbitral tribunal appointed to exercise the power. Unless, how- ever, that tribunal is free to put into force its own view of what amounts to an effective settlement irrespective of the obligations or prohibitions of State Statutes, the power intended to be con- ferred cannot be effectively exercised. There arises, therefore, from the language of the sub-section a necessary implication of power to clothe the federal tribunal with authority to override all State laws which may stand in the way of such settlement of the dispute as the tribunal may in its discretion consider most effective. 'That construction is, in my opinion, untenable for many reasons. In the first place, it gives no effect to the limitations which I have pointed out are necessarily involved in the ordinary meaning of the word "arbitration." Secondly, there is no meaning of the word as used in English which could justify its being applied to a tribunal determining rights judicially, yet emancipated from every Jaw which could stand in the way of imposing its absolute will upon the disputants. But assuming that the word is capable of the wider meaning, it is clear that the construction put for- ward by the claimants could not be adopted consistently with the partition of powers between State and Commonwealth which the Constitution, in plain terms, has marked out, inasmuch as it would be directly inconsistent with the exclusive right of each State to the control of the conditions of industry and labour within its boundaries. If the Constitution permits the Industrial Arbitration Court, created under sub-sec. xxxv., to be clothed with power to disregard all State Statutes regulating labour, in so far as they may stand in the way of any settlement of an industrial dis- pute which the Court may think fit to award, there cannot be with-

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or other, can control the extent to which it may be exercised. Not only was that admitted by the claimants' counsel, but they urged that it would be a legitimate exercise of the power to substitute federal awards for State laws in the regulation of conditions of employment in every trade which became the subject of an inter- State dispute. The exclusive right to regulate its own industrial conditions, except in so far as the Constitution has otherwise pro- vided, is as clearly vested in each State under the Constitution as if it had been expressly conferred. That is a proposition so well established by the decisions of this Court that it may now be taken as beyond controversy. Yet, if the claimants' interpretation of sub-sec. xxxv. is to be adopted, the Constitution has empowered Parliament to create a tribunal which can, whenever the con- ditions of a trade become a subject of inter-State dispute, disregard all State law regulating its conditions of employment and impose on all engaged in it whatever conditions of employ- ment the tribunal may think fit to lay down in settlement of an inter-State industrial dispute. An interpretation which would lead in time to the complete emasculation of the State power to control its own industrial conditions could not be adopted except under the compulsion of language in the Constitution clearly indicating that such was the intention of its framers. But, as I have pointed out, not only does the Constitution contain no indications of such an intention, but the words relied on are not capable of bearing the meaning which the claimants would put upon them. On the other hand, if the construction is adopted which follows the plain meaning of the language used in its ordinary signification, full meaning is given to the words of the sub-section which confer on the Commonwealth jurisdiction over industrial disputes, yet the States are left in substantial possession of the power to regulate their own industrial affairs. Where the choice is between two such interpretations, it is in accordance with all sound principles of construction to adopt that which best preserves the intention and effect of the instrument as @ whole.

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In answering the second question of the learned President, I would observe that the form of the proposed award makes it unnecessary to enter into much detail in comparing its provisions with those of the determinations of the several States Wages Boards. Its fundamental direction is the fixing of a minimum rate of wage tobe paid to all male employés. 'Then follow con- ditions for the exception of apprentices, lads under twenty-one not apprenticed, and aged, slow and infirm workers from the general class of male employés. The minimum wage must be paid to all male employés, but certain persons may, by the fulfil- ment of special conditions, be brought within one of the excepted classes whose minimum wage is fixed at a lower rate than the general minimum wage. If a male worker cannot, by fulfil- ment of the special conditions, be brought within one of the excepted classes, he cannot be employed except at the general minimum wage. Two questions have been raised as to the validity of the proposed provisions, first, as to the general pro- visions for the minimam wage; secondly, as to the conditions under which employés may be excepted from the general pro- vision. Turning to the relevant provisions of the Wages Boards determinations in the various States, they all fix a minimum wage below that of the proposed award. It is clear that the award could not fix a minimum less than that expressly directed to be paid by the State Wages Board. It would not be within the power of the parties within the State to so agree, but there is no reason why they should not agree that the minimum should be higher than that determined by any State Wages Boards. As the learned President may award what the disputants could law- fully agree to, his direction to pay a minimum wage higher than that provided by the State Wages Boards would therefore be valid. By reason of the form of the award it becomes unneces- sary to enter into comparison between the special conditions enabling workers to come within the excepted classes under the proposed award and the portions of the Wages Boards determin- ations which relate to those classes. Where the Wages Board

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provision expressly prohibits or directs the doing of something, the proposed award, in so far as it disobeys the provision or direction, cannot be valid. The disputants affected by the directions of a Wages Board determination would be bound to obey that determination. In such a case the exception could have no operation, and the employés could not be employed under the proposed award except on payment of the general minimum wage fixed by the award. As to the conditions relating to lads under twenty-one not apprenticed, generally described in the Wages Boards' determinations as improvers, I can see nothing in the conditions of the proposed award which the parties could not lawfully agree to, nothing which contra- yenes any express direction or prohibition of the Wages Boards' determinations, The same may be said of the conditions as to aged, infirm and slow workers. The position as to apprentices, however, is somewhat different. In all the States except South Australia the adoption of a particular form of apprentice deed is not obligatory. In most of the States certain benefits and advan- tages may be gained by the adoption of the form prescribed by the Statute, but the relation of master and apprentice may be validly created in any form known to the common law. In South Australia, however, that is not the case. Sec. 97 of the Factories Act 1907 prohibits an employer from taking an appren- tice except under indentures in the form prescribed by the Act, and it is declared that indentures not in accord with that pro- vision shall be void. The Federal Arbitration Court cannot relieve any South Australian master or apprentice from the obligation to obey that statutory direction which, although not in any Wages Board determination of that State, applies to every apprenticeship in South Australia. It is true that the proposed award recognizes all existing apprenticeships under State laws, but as to the future it proposes to recognize no apprenticeship unless in accordance with the form it has provided. Under these circumstances it is quite clear that under the proposed award, if it remained in its present form, no apprenticeship in the boot trade could for the future be created in South Australia. For- tunately, we are dealing only with the proposition for an award. It is not to be supposed that it was intended to inflict any such

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Can it make any difference, can it render the Commonwealth Act less potent, because the Imperial Parliament has not granted a general power, but has itself selected the one particular method

namely, arbitration - which the Commonwealth Parliament has faithfully followed? Is the Commonwealth Act less a law of the Commonwealth and is the arbitration which takes place by its authority and conformably to its direction less the execution of a Commonwealth law and the Constitution than in the first case supposed ? If it is not, by what authority does such an award bind the parties in any case? There is no State law to support it; there is not and never can be any Commonwealth law regu- lating industrial conditions to support it, the Constitution makes no specific provisions on the subject, and there is therefore no direction or enactment of any Parliament whatever on which the rules prescribed by the arbitrator are founded, in other words, there is no Statute law which he is interpreting and applying, as an ordinary judicial tribunal would have to do; and the common law admittedly does not bind him. If then his deter- mination is not in the nature of a law, just as is the determination of a Wages Board, by what authority is anyone bound by it? There is not in any other aspect a single syllable in the Con- stitution to give it the least force. The judicial power cannot prescribe rules of conduct, it merely interprets and enforces the specific will of Parliament or the rules of the common law, and has no power to abrogate the one or the other. There is nothing in the Constitution, therefore, which bestows any binding quality on the deeree of the federal arbitrator, unless it be the fifth covering section already quoted. If, however, its provisions are for one single instant operative - if under any circumstances, such as the absence of an inconsistent State regulation, they are of commanding authority upon the people of the Commonwealth
it must be because of the fifth section, and solely because they are backed by, and regarded as the pronouncement of the rule

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authorizes federal intervention, not simply to determine private differences between an employer and his employés and make a scale of rights and liabilities to operate merely for their exclusive benefit, but in the interest of the whole general population to avert or end disastrous industrial disorganization. From the standpoint of the Constitution the immediate combatants, numerous as they may be, are not necessarily even the chief objects of regard. Except to protect the general public dependent upon the peaceful and orderly continuance of industries which have an Australian operation and an effect upon that inter-State commerce placed directly under federal control, there could haye been no moral, and there would have been no legal, warrant for federal control of any industrial quarrel. A coal strike in one State, for instance, entails severe loss to employers and employés while it lasts; yet each side sees or thinks it sees for itself eventual and compensating advantages. It is the non-combatants, the rest of the community, who after all suffer most. Nevertheless, so, long as the dispute is in its existence or imminence confined to one State, that State alone has jurisdiction to deal with it, and the law of that State is the only law applicable to the disputants, the Commonwealth having no jurisdiction to interpose. But when the quarrel attains national proportions, when the laws of that State and other States - probably discordant - prove powerless either to still the strife or restrain its extension, when the other States are directly involved in the actual dispute itself, and the whole industrial and domestic system of the Continent is de- ranged, when internal trade is everywhere obstructed, and inter- State and foreign commerce impeded and imperilled, is it con- ceivable in such a crisis that the Commonwealth power, admittedly operative in those conditions, and conferred in such broad com- prehensive and unrestricted terms, is, at the caprice of the States, possibly of one State against the will of all the rest, to stand in danger of paralysis and defeat? And is it to be liable to this capricious paralysis and defeat by the application of a doctrine which is unstated in the Constitution, unless silently included in

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varying State determinations within the several States 7 The position under the Constitution seems to be simple enough, The Federal Parliament has had power conferred on it by the Imperial Parliament to make laws for the peace, order and good government of Australia with respect to arbitration for the pre- vention and settlement of industrial disputes extending beyond the limits of any one State. It is admitted that under this power the Federal Parliament can, if it think fit, create an Arbitration Court; and I do not understand it to be denied that the system of arbitration chosen may be the compulsory system - the system which was so keenly discussed at and before the enactment of the Constitution (see eg. Bliss's Encyclopedia of Social Reform, 1897). Now, the Court has been created; and the Federal Parlia- _ ment has given to it power to hear the dispute and to make an award, and has provided for the enforcement of obedience to the award by penalties. By covering clause V. of the Commonwealth of Australia Constitution Act, all laws made by the Federal Parliament under the Constitution are binding on the Courts and people of every State " notwithstanding anything in the laws of © any State"; and by sec. 109 of the Constitution "when a law of a State is inconsistent with a law of the Commonwealth, the - latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid." The conclusion appears to be irresist- _ ible that the federal award must prevail over any State law. But, it was urged, the award of the Arbitration Court is not a law of the Commonwealth. It is true that it is not an Act of - the Federal Parliament; but it is a rule of conduct imposed on the parties to the dispute by virtue of a Federal Act. The Federal _ Act, plus the award made under it, together constitute a law (Powell v. Apollo Candle Co. (1)). As Holt C.J. said of the by-laws of the London Corporation : - " Every by-law is a law, and as obligatory to all persons bound by it, that is, within its jurisdiction, as any Act of Parliament " (City of London v. Wood (2) ). The word law, in a conerete sense, means "any particular - rule, having the nature of law in the abstract sense, which is

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from which they derive their powers. They cannot use that part of the law which enables them to act and ignore the directions of the rest of the law. But arbitrators are not bound by any other Jaw than their own - the law which creates them. A British arbi- trator is not controlled by French laws. A federal arbitrator is not controlled by State laws - he is bound by the Australian law only, the law which creates his office, appoints him, and defines his powers. his subjection to his appropriate law, however, is not owing to any connotation of the word "arbitration." So far as connotation is concerned, I find rather the opposite idea, of freedom from restraint of law, as in the word " arbitrary " from the same root, and as in the use of "arbitrator" in the civil law. The duty of an arbitrator to obey the law which creates him is to be attributed rather to the fact that in any scheme of law one part of the scheme is as binding as the other. Instances could easily be found of arbitrations where subjection to State laws is an impossible connotation. In the Alabama arbitration, the arbitrators overruled Lord Chief Justice Cockburn's plea that under British law the British Government had no power to take those steps which the United States urged ought to have been taken. Again, if there were a dispute between Greece and Turkey as to a boundary, and if the laws of each country differed as to the lines of boundary, and titles to land had been issued in accordance with these differing lines; the arbitrators would not be bound by the laws of either State. The ordinary officials of each State would have to obey the laws of their respective States, but the arbitrators would not be under any such obliga- tion. Nor is it any answer to say that such arbitrations as these depend upon agreement, for the question is what the word "arbitration " necessarily implies or connotes. My view is that the Federal Arbitration Court, acting in its federal functions, must obey the federal law, and not any State law. In the Commonwealth Conciliation and Arbitration Act 1904 the powers of the Court are defined and limited, not only as to the mode of procedure, but as to the nature of the award that may be pronounced, and as to the penalties that may be imposed. The powers of the President are certainly great, and his responsibilities are even greater; but he is restrained in his action by the direc-

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Congress. The grant in effect forbids other persons to make, use or vend the thing patented. This is, in effect, a law imposed by the United States on other persons; and, by virtue of the supremacy of the federal law, the patent is not subject to the anti-trust laws of the State of Illinois. The officer who grants the patent has not to consider the State laws at all: Columbia Wire Co. v. Freeman Wire Co. (1). Finally, an order of the Inter- State Commerce Commission, made under the Inter-State Com- merce Acts, is treated as paramount to a law or regulation made by any State: Gulf, Colorado and Santa Fé Railway Co. v. Hefley (2); and the regulations made by this Commission are, whether rightly or wrongly, regarded as executive acts: Prentice and Egan, Commerce Clause, 289. A regulation made by our Federal Arbitration Court, under its power to settle inter-State disputes, must be treated similarly. As for the Canadian authorities, they are practically summed up in the recent case of Compagnie (La) Hydraulique de St. Francois v. Continental Heat and Light Co. (3). There, the appellant had, under an Act of Quebec, the exclusive right of selling electricity within thirty miles from a certain village. The respondent had under an Act of the Dominion a general right of selling electricity. The appellant contended that the legality of the respondent's action in any Province must be dependent on the law of that Province - just what is contended for here. But it was held by the Judicial Committee of the Privy Council that where, as here, a given field of legislation is within the competence both of the Parlia- ment of Canada and of the Provincial legislature, and both have legislated, the enactment of the Dominion Parliament must pre- vail over that of the Province, if the two are in conflict. This case, it is true, is not a case of a law operating through an official's order, but it cannot be doubted that the decision would be the same if the respondent's rights did not arise except on a proclamation by the Governor-General or on a Gazette notice published by a Minister.

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In America the decisions on this point are conflicting. Even if it had been held that the medius filus 'ule applies to fresh water lakes in England, there is good reason for holding that it does not extend to a salt water lagoon on the coast of Australia. There is no real analogy between the two cases. Primarily a salt water fishery would be a public fishery, and the salt water would be of nouse to the adjoining owner. The rule is a purely arbitrary and artificial one, and there is no valid reason for extending it to the particular circumstances of this edse. There is no judicial statement of the limits of the rule which compels the Court to so apply it. The fact that there is ample land to satisfy the terms of the grant without including the lagoon is also a material con- sideration which supports the appellant's view. Further, there is a practical difficulty in applying the medius filus rule to u lake or lagoon, and apportioning the bed of the lake upon any reasonable basis between the adjoining owners. Take, for instance, the case of a lake of irregular shape with a large promontory abutting into it. In the cases on which Street J. based his decision the Court was dealing with the rights of the Crown, and these cases have no application to the question to be decided in this case. The ques- tion is what was the intention of the parties to the grant. The grant refers to a salt water lagoon, and the rights of the parties must be determined on the assumption of the truth of this descrip- tion. Its truth or falsity, in fact, is immaterial. The intention can only be gathered from the description which the parties them- selves have chosen to apply. As to the suggested claim to the land by accretion, there is no evidence upon which this Court can decide in favour of the respondent upon this ground. If the Court is of opinion that this is a proper matter for inquiry, the appellant does not object to the pleadings being amended to allow this question to be decided on further evidence, for the purpose of saving expense to the parties.

At a glance

Court

Decision date

Source

Judgment (420 paragraphs)

H. C. or A. 1910.

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