BAINES v Porter.

High Court of Australia|1917-07-01|Before: Isaacs J, Barton J, War P

{Isaacs J. That would be an exercise of original, an appellate, jurisdiction. ] q pretext " does not involve proof of falsity

The word words " for the purpose or on the pretext " should be read as F ing for the real or ostensible purpose. There is no reason fo criminating between the genuineness and falsity of the purp "pretext " means a falsely pretended purpose, there was evid upon which the Magistrate could find that the real purpose o who met was not to make known their grievances, but was to a

Barton J. I wish the remarks I am about to make as to the aj of Adela Constantia Mary Pankhurst to apply to all three They stand on the same footing. By reg. 27 of the War P tions (Supplementary) Regulations 1916, which was made on August 1917, it is provided, so far as is material, that "( shall not be lawful for any number of persons exceeding t meet in the open air in any part of the proclaimed place f unlawful purpose or for the purpose or on the pretext of known their grievances or of discussing public affairs or of ing or of presenting or preparing any petition memorial comp remonstrance declaration or other address to His Majesty or te Governor-General or to both Houses or either House of the ment of the Commonwealth." In the view that I take of this ¢ the amendment which has been allowed in the second ground order nisi does not come into question. The real point whic are about to decide is whether there was evidence which have satisfied the Magistrate, or upon which the Magistrate properly have heen satisfied, that the appellant was one of or more persons who had assembled " on the pretext of ma/sing] their grievances." That depends on the meaning to be attac the word " pretext"; and that again is to be determined upon the context of the regulation. I can imagine a case the word " pretext" would mean the real or ostensible p That might be where the context called for such a meanin here the word is by the context clearly distinguished from | words in the regulation. For we have, first, these words " f

purpose." That clearly means for any unlawful object, the real object. Then follow the words " or for the purpose the pretext" &c. The word " purpose " is there used again, ima facie it is used in the same sense as before, that is to say, ing the real purpose. Then come immediately the words the pretext," and it appears plain to me that as a matter of truction the collocation in which the word " pretext" is used that it is used in contradistinction to the word " purpose." case the words " for the purpose or on the pretext " indicate

se of making known their grievances or on the pretext, teally with the purpose, of making known their grievances. bound, if we can, to find separate meanings for the words " and " pretext," and we cannot say that the word " has the meaning of the word " purpose." Being of pinion, what is the next inference? When persons have

on the "pretext" of making known their grievances, for the real purpose of making them known, there is a sham. re is, in such a use of the two terms, a concealment, or a screen, by the word " pretext" which is not connoted by the ind frank word " purpose." Reading the regulation in that , as I think we must, the question is what evidence there is that the purpose for which the persons were assembled was true purpose ; in other words, that they were assembled on pretext. The evidence is as follows : - The informant, a constable, said that " Shortly after three o'clock the three with several other women, came into the Treasury Gardens "" within the proclaimed place). "' There were between five and six thousand people present, and the defendant onstantia Mary Pankhurst got up on a seat and addressed le assembled, and told them all to follow her to Parliament defiance of the police and to break in if necessary, and see ly Hughes was going to do to get cheaper food for the people. The crowd surged round the seat and the said mstantia Mary Pankhurst was pushed off it, and then uter got up on the seat and commenced to address the people and she in turn was pushed off the seat, and also Jennie

H.C. or A. Baines was pushed off the seat, and then Adela Constantia

Ne Pankhurst and Alice Suter and Jennie Baines went towards

Pankuursr, steps of Parliament House arm-in-arm, and followed by the c1

eee of people." Then the arrests were made. Does that evidence

BAINES v. Porrer. forth a sham as the reason of their meeting when their real pi

Barton J. Wasa different one? I do not think that, whatever may be the the evidence shows that. This Court, it must be remembered, here not for the purpose of expressing its opinion upon the prop: or impropriety of the conduct of the appellants, but to dete the meaning of the regulation, and whether the Magistrate justified in finding that the charge with which the appellants h been confronted had been proved. I do not think that any hearing the evidence which I have just read would say that the is anything in it upon which the ordinary reasonable mind coul conclude that the persons at the meeting were there, not with object of finding out from the authorities what steps were to be to provide cheaper food, but for an ulterior purpose which the ery for cheaper food was merely used to disguise. They are not sh¢ to have been putting forward a sham, and this Court is conce only with the matter of proof. It seems to me that if we were t hold that the object of these persons was falsely stated, that they some ulterior object such as to break the law or gain notoriety, should come to a conclusion unsupported by the evidence. cannot do that. I am, therefore, of opinion that in the regulat " pretext " has a different meaning from " purpose," that the lat word refers to the real object and the former to the professed

had been alleged in the information that these persons were assemb! "for the purpose " of making known their grievances, it is possible that upon this evidence they might have been properly convi That, however, does not concern the present case. For these reasons the convictions must be quashed. 3 This Court, in the case of Acts of the Federal Parliament or 0 subordinate legislation passed by the authority of that Parli does not inquire into their validity unless it becomes nece:

, and as this case, on its very threshold, is decided upon the H C. or A.

ce we leave the ordinary presumption of validity to remain. _

ws J. Lagree, but I should like it to be clearly understood Ponzzn.

Appeals 'allowed. - Conviction in each case quashed.

s for the appellants, Loughrey & Douglas. for the respondent, Gordon H. Castle, Crown Solicitor

Finny, SE & sansge: 4 Epironment m (1919536 . ile! earn emer? Eee 510 HIGH COURT [HIGH COURT OF AUSTRALIA.] DUNCAN AND ANOTHER PLAINTIFFS, AND THEODORE AND OTHERS é : . Responp DEFENDANTS, ON APPEAL FROM THE SUPREME COURT OF QUEENSLAND. .C. oF A. a ae Trespass - Sugar Acquisition Act - Compulsory acquisition of cattle by Governme ee Seizure under invalid Proclamations - Proclamation of extension of Act- clamation of acquisition - Coextensiveness of Proclamations - Execution Brispane, Aug.6-10, 15, 24 Proclamations - Statutory protection - Liability for damages - Bowa Proclamations - Sugar Acquisition Act 1915 (Qd.) (6 Geo. V. No. 2), secs. Barton, Issacs, 10, 13 Meat Supply for Imperial Uses Act 1914 (Qi) (5 Geo. V. No. 2) Powers and aa 'Rich 33. A Proclamation dated 30th June 1915, not issued under the authority

any antecedent law, but a copy of which was set forth in the Schedule to Sugar Acquisition Act of 1915 (Qd.), assented to on the 4th of the succeed August, was ratified by that Act. The Proclamation declared that all sugar, the product of the 1915 crop of sugar-cane, whether then in exis in any mill, &c., or thereafter in that year to be manufactured, in Q

(in this Act referred to as commodities) in such Proclamation n 'Thereupon any such commodity may be acquired by a Proclamation

similar to those of the Proclamation set forth in the Schedule to With such modifications as may be deemed necessary, and this Act

ame extent and in the same manner as if such commodity were expressly in this Act."

by Barton, Gavan Duffy and Rich JJ. (Isaacs and Powers JJ. dissenting), where the Proclamation extending the operation of the Act under sec. 10 e Proclamation of extension) authorizes the acquisition of the whole of the c om modity mentioned in such Proclamation, the further Proclamation required 'the aie (the cle of mequation) must not restrict the acquisi-

sec. 13 it is provided that " (1) The Governor in Council may from time make and publish in the Gazette all such Proclamations as he thinks or giving full effect to this Act," &c. ; and " (2) Every Proclamation made

r this Act shall be read as one with this Act and construed as being of validity," &.

leld, by Barton, Gavan Duffy and Rich JJ., that sec. 13 does not apply s to validate an acquisition where the Proclamation of acquisition pur- to be made under sec. 10 is invalid by reason of non-compliance with

sec. Tit is provided that "Noaction . . . shalllie . . . against jesty or the Treasurer, or any officer or person acting in the execution e Proclamation hereby ratified . . . , or any other Proclamation under this Act, or of this Act, for or in respect of any damage

ged to be sustained by reason of the making of tthe said or any such Pro-

Act of 1915 was extended by the Governor in Council of the State nd "so as to authorize the acquisition by His Majesty of cattle now to come within the said State," and by a further Proclamation, Ast June 1916, it was declared that "all the cattle now on or about berrie Station" belonging to the appellants were the property of and in the Government of Queensland. In pursuance of these Proclamations 'of Queensland instructed a police constable to take, and he took, of the appellants' cattle on the station. Thereupon the appellants

gs against the respondents (the Crown, the Treasurer and the »),in which they claimed damages for trespass.

Held, by Barton, Gavan Duffy and Rich JJ. (Isaacs and Powers JJ. dis (1) that the Proclamations gave no authority for the seizure of the cattl the subject matter of the two Proclamations was not coextensive ; (2) that acts of the respondents were not within the protection afforded by sec. 7 of Sugar Acquisition Act, as the respondents were not acting in the executi of any Proclamation made under the Act (i.e., authorized by the Act), nor they acting under the Act, which of itself did not authorize such acts ; (3) th the respondents were jointly liable in damages for trespass.

Per Isaacs and Powers JJ.: Mala fides is not imputable with respect to the

his representatives. The provisions of the Meat Supply for Imperial Uses Act of 1914 (Qd.)

Decision of the Supreme Court of Queensland : Duncan v. Theodore ; v. Beal, (1917) S.R. (Qd.), 250, reversed.

The appellants, Laura Duncan and Fitzroy Clarence Trotman, we the owners of a cattle run called '' Mooraberrie," situated in Sout h- West Queensland, on which they had 1,700 cattle, including 60 fat bullocks. The usual and best market for their cattle was

Government of Queensland, acting under the Meat Supply for Imperi Uses Act of 1914 (Qd.), prohibited the removal of fat cattle over the

was invalid. Notice of motion for an injunction in the terms of the indorsement of the writ in that action, which was to be made - to the High Court on 2nd June 1916, was served on the defendants therein on Ist June, on which date the Governor in Council, having - previously, by Proclamation of 12th November 1915, extended the - Sugar Acquisition Act of 1915 "so as to authorize the acquisition - by His Majesty of cattle now or hereafter to come within the State : of Queensland," issued a further Proclamation, dated Ist June 1916. The second Proclamation recited that "by reason of th

continued existence of the present war, and the expected shoi

to be most conducive towards safe-guarding the interests h . public," and that by the Proclamation of 12th November j the operation of the Sugar Acquisition Act had been extended e mentioned ; and then proceeded to declare that "all the on or about Mooraberrie Station to the number of about 1,700, g 600 fat bullocks " (describing the 600 fat cattle already to), "'are and have become and shall remain and be held e purposes of and shall be kept for the disposal of His Majesty's ment of the State of Queensland . . . and all the title property of the existing owners thereof . . . are and shall from such owners, and are and shall be vested in His

lien, or other encumbrance thereon whatsoever, and all the d property of such owners are and shall be changed into a

tent to be hereafter determined and declared by a further nation or Proclamations, and all such owners . . . shall give immediate and peaceable possession to the Treasurer of land, or to any person authorized by him to demand and take very and possession of the same," &c. On 3rd June 1916 the ent Edward Granville Theodore, as Treasurer of Queensland, g under the assumed authority of these Proclamations, sent: m to N. Balfour, a police constable of that State, authoriz~ im to demand and take delivery and possession of the cattle. u and another constable, in pursuance of these instructions, at Mooraberrie on 13th June and remained there in charge ittle, as the property of the Queensland Government, until uly. It was alleged by the appellants that owing to the ondents' conduct in not looking after the cattle during this period of them were lost, and the value of others was depreciated mixed with a mob of another breed. (Respondents after- d the appellants under a separate agreement for the 600 of fat cattle.)

ese facts the appellants issued two writs in the Supreme Queensland - one against the above-named Edward Gran- eand N. Balfour, and the other against George Lansley

pply of live-stock, it has become necessary to take such action H- ©. oF A.

y's said Government absolutely freed from any mortgage, .

Sugar Acquisition Act of 1915 can give the protection claimed by

Beal, a nominal defendant under the Claims against Gove Act of 1866 (Qd.). These actions were subsequently consolidat In their statement of claim the plaintiffs claimed against each of defendants damages for trespass, and a declaration that the clamations of 12th November 1915 and Ist June 1916 purp to be made under the Sugar Acquisition Act are ultra vires, unlay and invalid, and that the said Proclamations were not lawfully m or issued under or in pursuance of any power or authority coi by that Act or for the purpose of giving effect to its provisions. their defence the defendants mainly relied on the validity of two Proclamations, and on the provisions of sec. 7 of the Acquisition Act. ;

At the trial before Cooper C.J. and a jury, the latter found i favour of the plaintiffs, and awarded them £2,900 damages. - the question of bona fides the jury found that the Proclamat of Ist June was not issued and the acts complained of were not don: by the defendants or any of them in good faith with the object of safe-guarding the interest of the public and /or in order that the cattle mentioned in the claim should be and become and r and be held for the purposes and kept for disposal as set out in 1 of the Schedule to the Sugar Acquisition Act, and that the s Proclamation was issued and the said acts were done by the d ants with an indirect object and/or for some ulterior purp Judgment was entered for the plaintifis against the defendants for £2,900 and costs. a

On appeal by the defendants therefrom this judgment was reve by the Full Court of the Supreme Court of Queensland (Real, Chul and Shand JJ., Lukin J. dissenting) : Duncan v. Theodore; Dui v. Beal (1).

From the decision of the Full Court the plaintiffs now app to the High Court.

Feez K.C. and Douglas, for the appellants. Before sec. 7 of respondents, the Proclamations under which the cattle were

must be valid. The Proclamations were invalid, and so there was (1) (1917) S.R. (Qd.), 250.

not come within the protection of sec. 7. In construing whole of the contents of the Act must be regarded. If, not- ding that it ignores sec. 10, the Crown can apply sec. 7, . 10 is nullified (Hazelton v. Potter (1) ). [Isaacs J., as to the words "' purporting to be done " dragging in al matters, referred to Meyers v. Casey (2); Hughes v. Buckland er v. Juddow (4).] egal thing purporting to be done under a Proclamation ed by the section if the Proclamation is itself invalid ; under the Proclamations the respondents purported to he Proclamation of Ist June 1916 is invalid. The Sugar Act was primarily passed to validate the Proclamation June 1915 acquiring the whole of the 1915 sugar crop,

imation to other commodities mentioned therein. Under see. s not competent to acquire by Proclamation only a portion ommodity mentioned in the Act. The scheduled Proclama- st be followed, and the whole of a commodity must be

J. referred to the Acts Shortening Act of 1867, sec. 18.] w J. There may be an alternative view: that sec. 10 the extension of the Act by means of two Proclamations, matter of each of which must be identical, but need not » the whole of a given commodity. |

"thereupon " in sec. 10 suggests that the second Pro- is to be issued immediately after the first. The words 13 cannot be construed as giving Proclamations validity they may contain, and whether they clash with the pro- of sec. 10 or not. Sec. 13 is merely a machinery section Tockassie (5); The Commonwealth v. Progress Adver- Co. Proprietary Ltd. (6); Sprigg v. Sigeau (7)).

idity of the Proclamation of 12th November 1915 depends truction of the Meat Supply for Imperial Uses Act of (5) 2 CLR, 470.

authority for the acts of the respondents, which, there- H- C. or A.

1914 and the Sugar Acquisition Act of 1915 read together, as botl Acts refer, in part, to the same subject matter. The former was in force when the latter was passed and at the time the of action arose. Portion of the cattle (7.e., the 600 fat bullocks), being already dedicated to the Imperial Government under sec. 6 of the Meat Act, could not be the subject of a Proclamation under the Sugar Act, and the Sugar Act can and ought to be read so as to interfere with sec. 6 of the Meat Act. The two Acts can be together and a reasonable construction given to both. (See Duncan vy. State of Queensland (1).) The cattle were by the Meat Act p i extra commercium, and could not, therefore, be a commodity.

The appellants are entitled to damages against the respond (Broom's Constitutional Law, 2nd ed., pp. 525, 552-554 (note) ; Own of the Mediana v. Owners &c. of the Comet (2); Mayne on Damag 8th ed., p. 693; R. v. Governor of Brixton Prison; Ex parte Si (3); BR. v. Halliday (4) ).

{Isaacs J. referred to Willoughby Municipal Council vy. Hals (5); Pendlebury v. Colonial Mutual Life Assurance Co. Ltd. (6).]

[After consultation the parties agreed that the damages (if an' should be reduced from £2,900 to £2,000.]

Ryan A.-G. for Qd., Stumm K.C. and Macrossan, for the respon: dents. Sec. 7 of the Sugar Acquisition Act was obviously meant to - give protection for illegal acts (Spooner v. Juddow (7); Haze vy. Potter (8) ). If the Proclamation of Ist June 1916 is valid, th any act done under it is protected by sec. 7 as being done " unt this Act"; if it is invalid, then any act done under its assum authority is protected also as "purporting to be done under Act " (Selmes v. Judge (9) ).

The first Proclamation gives the authority to acquire, and is a declaration of intention to acquire. The words "with such modi- fications " in sec. 10 and alsé the other sections of the Act support and compel the conclusion that the second Proclamation may

(3) (1916) 2 K.B., 742, at pp. 749, (7) 6 Moo. P.C.C., 257. 782. (8) 5 O.LR., 445.

(4) (1917) A.C., 260, at p. 307. (9) LR. 6 Q.B., 724.

at any time after the first, and that no obligation is imposed e the whole of the commodity mentioned in the first.

aos J. referred to Powell v. Apollo Candle Co. (1): Institute Agents v. Lockwood (2); Queensland Acts Shortening Act r, secs. 18, 20; In re Andrew (3).]

n may be issued after, and at any time after, power has been the first Proclamation to acquire a given commodity, and "any such commodity" do not require the second tion to be coextensive with the first.

epend on the reading of the Sugar Acquisition Act alone, as of that Act provided that it should override all previous Acts, fore, the Meat Act. Nothing has been done under the t to create a title in the Crown; consequently, the cattle ome lawfully under the provisions of the Sugar Acquisition ven if this were not so, the definition of " stock " in the Meat only to "cattle,". &c., "the meat whereof is intended or may be made available for export." This definition, h it might include the 600 fat bullocks, certainly does not the remainder of the cattle.

J. The plaintiffs are trustees of the will of William deceased, and the plaintiff Laura Duncan is a beneficiary will. They are the owners of a station called "* Moora- certain cattle thereon. The defendant Beal is the inted nominal defendant by the Governor in Council er of a petition of the plaintiffs under the Claims against Act of 1866. The defendant the Honorable E. G. is Treasurer of Queensland, and the defendant Balfour is a table of this State. The three are joined as defendants consolidation of two separate actions by the same

a4 (1) 10 Cas., 282. (2) (1894) A.C., 347. e (3) 1 Ch. D., 358.

The defendant Theodore, on 3rd June 1916, sent to the de Balfour, who was stationed at a place a considerable distan: Mooraberrie, a telegram informing him that a Proclamation had issued acquiring all cattle on or about Mooraberrie Station property of the plaintiffs or of either of them, to the nun about 1,700 cattle, including 600 fat bullocks. In this telegram defendant Theodore, who signed himself Treasurer of Qu

authorized Balfour to demand and take delivery and possessio1 1,700 cattle on his, Theodore's, behalf, concluding his telegra the words " act with promptitude accordingly." Constable together with another constable named Blandford, in obedience: telegram and to police instructions, entered on the plaintifis' on 13th June, seized the cattle in question, stayed there a con: able time, and caused the plaintiffs certain damage, which, event of the entry and of the seizure and possession proving in opinion of this Court to have been unauthorized by law, and in event of the action of the defendants or of any of them being w protection under a provision to be mentioned presently, has now assessed by the parties at £2,000.

The action is not only against the Crown but against the dants Theodore and Balfour as officers of the Government personally. Y

The constables wanted in Iyeeaescian from 13th June to

to Aa 1,100 head of the 'atte retaining possession of about head, for which the defendants afterwards paid the plain pursuance of a separate agreement. 3

In addition to their claim for damages the plaintiffs cl declaration that two Proclamations, purporting to have been under the Sugar Acquisition Act of 1915 on 12th November 1915 ist June 1916, were and are invalid, and gave no authority for a acts complained of. If the plaintiffs are right, there was a causing damage, unless the defendants are protected in their c by sec. 7 of the Sugar Acquisition Act. The defendants, if liable all, are jointly liable ; as Shand J. put it in the Supreme Court, t

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Judgment (78 paragraphs)

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