Bradley v Commonwealth

(b) commits in the opinion of the Postmaster-General a breach of any of the said regulations or of any of the terms or conditions upon which the use of such line is granted permitted or continued

the Postmaster-General may without prejudice to the remedies for such refusal or neglect prescribed in section ninety-three resume possession of the said line and prevent the further use thereof by such person and such person shall not be entitled to any compensation for loss arising through the exercise by the Postmaster-General of the powers conferred by this section. On behalf of the defendants it was submitted that this section applies only to private lines. That submission would be supported by the marginal note ("Postmaster-General may resume possession of private lines for default") if it were permissible to regard it, but it is not: s. 13 (3) of Acts Interpretation Act Cth. The next succeeding section, s. 92, deals with the resumption of private lines and is followed by s. 93, which reads: If any person refuses or neglects to pay on demand the rent or charges due from him under the regulations for the use of any line of telegraphic communication the Postmaster-General may recover the same with costs in any court of competent jurisdiction. The words of ss. 91 and 93 are quite general but the question is, what is the meaning of the expression "any line of telegraphic communication"? The words "line of telegraphic communication" in these sections appear to mean the same as "telegraph line" in s. 97 (n) which enables regulations to be made for the purpose of: Prescribing the terms and conditions on which agreements may be made by the Postmaster-General or a Director with any person for the construction and maintenance of a telegraph line for the exclusive use of such person or for granting the exclusive use of any existing telegraph line to any person and prescribing the scale and times and manner of payment in advance or otherwise of the rent and charges to be paid by such person as the consideration for the agreement. It is true that ss. 91 and 93 do not use the adjective "exclusive" before the word "use". However, to speak of "the use of any line of telegraphic communication" is not a natural way of referring to the use of the telephone service, and the words "resume possession of the said line" are not apt to refer to the termination of a service or the disconnexion of a telephone. It therefore seems that ss. 91 and 93 refer to the private use of a telegraph or telephone line rather than to the use of an ordinary telephone service connected to an exchange. On this construction, s. 91 has nothing to say as to the disconnexion of telephones or the withdrawal or telephone services from an individual subscriber, and no other provision of the Act expressly deals with those matters. It then becomes necessary to turn to the Telephone Regulations, which are made under the authority of s. 97 of the Act. That section commences: The Governor-General may make regulations, not inconsistent with this Act, prescribing all matters which are necessary or convenient to be prescribed for carrying out or giving effect to this Act It goes on to provide that the Governor-General may, in particular, make regulations for certain specified purposes, none of which, however, would embrace the regulations about to be considered. The section then concludes: The power to make regulations contained in this section shall extend to the making of regulations binding not only upon officers and persons having business with the Department, but upon all persons whatsoever, and all regulations made in pursuance of this section shall have effect as if they were enacted in this Act.

The regulation upon which the defendants most strongly rely is reg. 8 of the Telephone Regulations, which reads as follows:

(1) The Department may at its discretion refuse to comply with any application for a telephone or other like service or for the transfer of any such existing service or for the construction or use of any telephone line or service, and it also reserves the right to withdraw either totally or partially any telephone or other like service at any time.

(2) Neither the Department nor any of its officers shall be liable to any action, claim, or demand for compensation arising from the refusal to provide or authorize any telephone or other like service or from interruption of service through any cause whatever.

It is submitted that this regulation, read in the context of regs. 5 (which provides that all telephone services are subject to the conditions set forth in the regulations) and 6 (by which a subscriber, on being provided with a telephone service, shall be deemed to have agreed to be bound by the several provisions of the regulations in force from time to time) gave the department, and therefore the Postmaster-General, a clear right totally to withdraw the telephone service provided to the Rhodesia Information Centre. The words "withdraw any telephone or other like service" are not defined but the phrase "withdraw the service" appears in reg. 17 (2), which provides that if a person is convicted of an offence against reg. 17 (1) (which prohibits a subscriber from selling or offering for sale his telephone service or from advertising the service as being for sale), the department may "withdraw the service in respect of which the offence was committed, and remove any telephones and other apparatus belonging to the Department". There are a number of other regulations which use different expressions in relation to the determination of a telephone service. Regulations 41 and 44 respectively empower the department to "order that the telephone service be disconnected from the exchange", cancel the agreement, cause the name of the subscriber to be removed from the telephone directory and order the removal of all instruments, etc. belonging to the department, where a subscriber fails to pay rental or other charges due or becomes bankrupt or makes a composition or scheme of arrangement with his creditors. Regulation 46, which relates to a person who, being a defaulter with respect to one telephone service obtains another, is in similar terms, except that it speaks of disconnecting the telephone rather than the telephone service. Regulation 63 also gives power to disconnect a telephone and remove instruments and fittings where any person while using the telephone has used objectionable language and in similar specified cases. Regulation 62 provides that in certain cases where a person has been convicted of carrying on an illegal business the Director may, without awaiting the result of any appeal, determine the agreement with the subscriber, remove the subscriber's name from the telephone directory and remove all instruments, etc. used in connexion with the service. It appears from reg. 62 (4), (5) and (6) that the action taken under reg. 62 (1) is regarded as having the effect that the telephone service is "discontinued". Finally it is necessary to notice reg. 10 (1) and (2) which provide as follows:

(1) The period certain for which a telephone or other like service may be rented shall be fixed by the Department, and thereafter the renting shall continue unless and until determined by notice in accordance with this regulation.

(2) On or at any time after the expiration of the period fixed by the Department, the renting of the service may be determined by the subscriber or the Department giving notice, in writing, of the intention to discontinue the service.

These regulations are by no means easy to construe. They display little consistency in the use of the various expressions which the draftsman has selected to describe the disconnexion of a telephone. The use of the words "withdraw the service" in reg. 17 (2) does provide some support for the view that the words "withdraw any telephone or other like service" in reg. 8 (1) refer to the disconnexion of an individual telephone. On the other hand, if reg. 8 were intended to confer a perfectly general and unrestricted power to deprive an individual subscriber of his telephone service for no reason, the detailed provisions of regs. 17 (2), 41, 44, 46, 62 and 63, which give a power of disconnexion only in the cases expressly specified in those regulations, would be largely unnecessary. The provisions of the latter regulations carry the strong implication that the telephone service of an individual subscriber cannot be disconnected or discontinued unless the conditions laid down in those regulations are satisfied. Moreover, those regulations (again in language which is not altogether consistent) confer an additional power to remove the telephone instrument itself, and the absence of this power from reg. 8 lends some support to the view that the relevant words of that regulation are not dealing with the disconnexion of an individual subscriber, but with the withdrawal of service generally in a particular area or during particular times. Further, whereas the other regulations mentioned expressly give the department a power to withdraw or disconnect or discontinue the service, reg. 8 merely reserves a right to the department to do so, and this suggests that the relevant part of the regulation is intended to afford the department a defence to an action for breach of contract, rather than to operate as the grant of any statutory power. An attempt must be made to place on the words of reg. 8 a meaning that will render them harmonious with the other provisions of the regulations, and for reasons already given if those words are ambiguous a construction should be preferred which would not confer on the Postmaster-General a completely arbitrary and unfettered power to cut off the telephone of any individual in the community. On the whole, therefore, it should be concluded that reg. 8 (1) upon its proper construction did not authorize the Postmaster-General to give a direction which had the effect that the telephone of the Rhodesia Information Centre was disconnected. In this respect, the Postmaster-General in his direction used words that had the colour of statutory authority, but he had no power to direct his officers to do what they in fact did, i.e. cut off the telephone. It is unnecessary to consider the meaning and effect of reg. 10 (2), because no written notice was given determining the service. It is also unnecessary, on the view that has been taken, to discuss the extent of the power given by the Act to make regulations, or the effect of the provision that regulations made in pursuance of the section should have effect as if enacted in the Act.

Counsel for the defendants referred to Gibson v. Mitchell [1] , where this Court by a majority upheld the validity of reg. 21A (2) of the Telephone Regulations 1913 then in force which provided (inter alia) that a person entering into occupation of premises having a telephone service who used the service before it had been transferred to him should be liable for all amounts owing in respect of the service at the time he entered into occupation. In the course of his judgment Isaacs J. said [2] : "The telephone services are the property of the Postmaster-General and no one has any right to use them without his permission." His Honour was in that case not discussing the power of the Postmaster-General to prevent a person to whom a telephone service had been supplied from continuing to use it and his broad generalization, made in a very different context, does not assist in the decision of the present case.

1. (1928) 41 C.L.R. 275. 2. (1928) 41 C.L.R., at p. 279.

The position regarding telegrams is in no doubt. Section 96 of the Act provides:

Any person employed under the authority of the Postmaster-General may refuse to receive or transmit a telegram containing blasphemous indecent obscene offensive or scandalous matter in its contents address or signature. The clear implication is that there is no authority to refuse to receive or transmit a telegram which does not contain such offensive matter, provided of course that any relevant regulations as to payment or method of lodgment are complied with. The Postmaster-General accordingly had no power to direct his officers to refuse to receive or transmit telegrams simply because they emanated from or were addressed to the Rhodesia Information Centre.

For the reasons given, the direction given by the Postmaster-General exceeded his authority. If acted upon it will cause particular injury to the plaintiff. In these circumstances the plaintiff is entitled to a declaration and an injunction unless some reason exists why the Court in its discretion should refuse that relief.

Two matters were suggested as justifying an exercise of discretion in the defendants' favour. First, reliance was placed upon the resolutions of the Security Council to which reference has already been made. These resolutions are, in their terms, addressed to member states who, by art. 25 of the Charter, have agreed "to accept and carry out the decisions of the Security Council in accordance with the present Charter". However, resolutions of the Security Council neither form part of the law of the Commonwealth nor by their own force confer any power on the Executive Government of the Commonwealth which it would not otherwise possess. The Parliament has passed the Charter of the United Nations Act 1945 Cth, s. 3 of which provides that "The Charter of the United Nations (a copy of which is set out in the Schedule to this Act) is approved". That provision does not make the Charter itself binding on individuals within Australia as part of the law of the Commonwealth. In Chow Hung Ching v. The King [1] , Dixon J. said: "A treaty, at all events one which does not terminate a state of war, has no legal effect upon the rights and duties of the subjects of the Crown and speaking generally no power resides in the Crown to compel them to obey the provisions of a treaty: Walker v. Baird [2] ", and a similar view was expressed by Latham C.J. in R. v. Burgess; Ex parte Henry [3] . Although, in those passages, mention is made of British subjects, it is clear since Johnstone v. Pedlar [4] that an alien, other than an enemy alien, is, while resident in this country, entitled to the protection which the law affords to British subjects. (See also Nissan v. Attorney-General [5] .) Section 3 of the Charter of the United Nations Act 1945 was no doubt an effective provision for the purposes of international law, but it does not reveal any intention to make the Charter binding upon persons within Australia as part of the municipal law of this country, and it does not have that effect. Since the Charter and the resolutions of the Security Council have not been carried into effect within Australia by appropriate legislation, they cannot be relied upon as a justification for executive acts that would otherwise be unjustified, or as grounds for resisting an injunction to restrain an excess of executive power, even if the acts were done with a view to complying with the resolutions of the Security Council. It is therefore unnecessary to consider whether the resolutions of the Security Council, properly construed, would require the Commonwealth as a member nation to take the action that has been taken against the Rhodesia Information Centre.

1. (1948) 77 C.L.R. 449, at p. 478. 2. [1892] A.C. 491. 3. (1936) 55 C.L.R. 608, at p. 644. 4. [1921] 2 A.C. 262. 5. [1970] A.C. 179, esp. at pp. 211-212, 232-233, 235.

The second matter relied upon by the defendants is that the plaintiff is employed by, and acting in aid of, a regime which has usurped power and which it may be assumed has not become the lawful government of Rhodesia, and is not recognized as such by the Commonwealth of Australia, but must be regarded as being in a state of rebellion against the Queen. However the evidence does not reveal, and the defendants did not submit, that the activities of the plaintiff or any other person in connexion with the Rhodesia Information Centre were in any way illegal. It is true that the plaintiff is employed by a regime in Rhodesia whose activities, on the assumptions made, are illegal in that country, but neither that circumstance, nor the fact that he may be assumed to be endeavouring to influence public opinion in Australia in favour of that regime, means that he himself has committed any breach of the law. So long as he abides by the law of this country he is entitled to its protection, however wrong his opinions may be, and however legally and morally blameworthy may be the regime which he serves and supports. We were referred by counsel for the defendants to Litvinoff v. Kent [1] , but in that case M. Litvinoff was refused relief, not because he was representing an illegal regime, but because he had himself broken the law (having contravened the Defence of the Realm Regulations then in force) and committed breaches of covenant. To refuse a plaintiff relief to which he is otherwise entitled it should be shown that his own conduct has been illegal or improper. It is not enough that he is supporting a regime whose activities in another part of Her Majesty's dominions are illegal, provided that his support involves only the use of lawful and proper means, or that he is employed and paid by such a regime, provided that his employment does not involve him in any wrongdoing. There is very little evidence as to what the plaintiff is employed to do, but if it be accepted that the function of the Rhodesia Information Centre is mainly to disseminate propaganda in favour of the regime in power in Rhodesia, that does not mean that the plaintiff's activities are unlawful unless (and this is not suggested) he is guilty of sedition or is in breach of some relevant statutory prohibition. Moreover, if his activities are not unlawful, they cannot be described as improper in a legal sense, for there is no impropriety necessarily involved in endeavouring to persuade others to form favourable opinions of a cause which is considered officially, and perhaps by many members of the community, and perhaps for good reasons, to warrant condemnation. It follows that no justification has been shown for denying the plaintiff the relief to which he is legally entitled.

An appropriate declaration should be made and an injunction issued.

In my judgment the Acts and Regulations to which we were referred in argument entrust to the Postmaster-General full control of the services and facilities the use of which the Minister has denied to the Rhodesia Information Centre.

I see no evidence that the Minister exceeded the limits of such control in the case of any of these services and facilities in taking any action of which the Rhodesia Information Centre complains in these proceedings.

By Ch. 2 of the Constitution the Executive Government of the Commonwealth was established and provision was made for the transfer to the Commonwealth of certain State departments, including "Posts, telegraphs and telephones".

The Post Office so established is not a commercial undertaking established for the benefit of individuals. It is a Department of Government administered by the Postmaster-General, one of the Queen's Ministers of State for the Commonwealth. See the Constitution, s. 64. The Postmaster-General occupies a like position to that of the ministerial heads of other Commonwealth departments providing services for Australians, e.g., Minister for Transport and Minister for Civil Aviation, Minister for Overseas Trade, Minister for Immigration, Minister for Science, Minister for Primary Industry.

The basic question to be decided here is whether a private person has by statute a right enforceable against the Commonwealth and the Postmaster-General to the services of this Department of State against the formally expressed will of the Postmaster-General. It is not whether the Post and Telegraph Act authorizes the discontinuance of such services, nor is it whether a particular officer of the Post Office has failed to perform a particular statutory duty.

It is my opinion that a person has a right such as the plaintiff asserts only if some law of the Commonwealth gives it positively. The absence of a law authorizing the denial to persons of the use of postal and telephonic facilities is not enough for the plaintiff here. To succeed in these proceedings for a declaration of right and an injunction, the plaintiff must establish a legal duty binding the Commonwealth and the Postmaster-General to provide him with the postal and telephonic facilities of the Post Office. Moreover, we are not here concerned with the breach of any contract to carry mail. If the plaintiff has the rights he claims they must be found in legislation.

It is sufficient for me to say that, after diligent search, I have found no such positive law. I would add that reflection upon the hardship that individuals might suffer, unless the Post and Telegraph Act were to be construed as conferring a general right to use the facilities of the Post Office, affords me no assistance in determining, as a matter of construction, whether or not the Act confers such a right. Moreover, the absence from the Post and Telegraph Act of any provision conferring such a right is not, I think, to be explained by an assumption that it was not required because of the existence of some overriding general obligation to carry and delivery mail. For this there is no warrant.

It is true that there are in the Post and Telegraph Act and the regulations made thereunder special provisions providing for the denial of particular services in specified circumstances. The existence of such facilitating provisions, which sometimes merely authorize particular officers to act - e.g., ss. 29, 43 and 96 - does not, however, lead me to the conclusion that implicit in the Act, although nowhere expressed, there is a grant to every person in Australia of the right, enforceable at law, to use the postal and telephonic services of the Commonwealth subject only to particular exceptions. Perhaps s. 57 is the provision that suggests most plausibly the existence of a duty such as the plaintiff must establish in order to succeed, To my mind, however, from the express provision of a special procedure for denying the postal services to gamblers and those connected with "a fraudulent obscene indecent or immoral business or undertaking", to infer, not merely the absence of a general power to discontinue existing services, but the existence of a positive duty to transmit and deliver mail, is to infer too much. Such a provision dealing with a flagrant abuse of the Post Office provides but a poor foundation upon which to erect the edifice of a binding legal duty to transmit and deliver postal articles to and for all persons in Australia.

It is upon the absence of any positive law granting the plaintiff the rights which he asserts by his writ that I base my conclusion that his action should fail. Subsidiary questions such as the rights of a person renting a post office box or registering a newspaper are insignificant unless the plaintiff can establish a general right to the services of the Post Office. This, in my opinion, has not been established.

It may be observed that this same view of the real matter in contest here was expressed forcibly as long ago as in 1906 when in R. v. Arndel [1] , O'Connor J. said:

There is no section of the Act which directly or indirectly imposes upon the Postmaster-General or upon any of his officers the duty to deliver or transmit letters under any circumstances.

It is merely necessary to say that, taking the whole purview of the Act, it appears to be one of those Acts which, for the benefit of the public, empowers the Government by its officers to perform certain duties, but with no obligation on the part of the officers towards any member of the public. In these circumstances it is impossible to say that there is any duty owing by the Postmaster-General or by any officer of the Post Office to the applicants to receive transmit or deliver their correspondence which the Court could enforce by mandamus.

On 19th April 1973, the postmaster at Crows Nest, a Sydney suburb, was, by direction of the Postmaster General, instructed to deny all postal and telecommunication facilities to the plaintiff, described by his registered business name of "Rhodesia Information Centre". The instruction was not confined to the plaintiff, it was expressed to apply also "to any other person, Business name, Corporation or Organisation which is acting on behalf of or in any way assisting the Rhodesian Regime".

As a consequence mail deliveries to the plaintiff ceased immediately, correspondence addressed to him being marked "undeliverable" and either returned to the sender or sent to the dead letter office; his tenancy of a post office box was cancelled and the lock changed; a publication which he distributed, "Rhodesian Commentary", was de-registered as B class mail; postal officers were instructed not to accept mail which the plaintiff or anyone on his behalf might seek to post; his telephone service, both inwards and outwards, was discontinued.

Following application to this Court for interlocutory relief and the grant of an interin injunction, the matter now comes before the Full Court and argument has been heard in full from both parties.

The plaintiff asserts that the Postmaster-General had no power to take this action against him and relies upon the alleged absence of specific power in the relevant Act and regulations. The defendants both deny any absence of such power and also contend that in any event the plaintiff can show no enforceable right to postal and telephone services and has no remedy in law arising out of the denial to him of the use of those services.

I turn first to consider whether the plaintiff has any right, enforceable by the courts, to the use of postal facilities; if so, the second question will be whether, in the particular circumstances of this case, the Postmaster-General was entitled to deprive him of those services.

The Post and Telegraph Act does not in express terms confer upon individuals any general right to postal facilities; in this respect it is no different from legislation found elsewhere in common law countries and which owes its origin, immediate or remote, to the English postal legislation of previous centuries. The Act vests in the Postmaster-General control of his Department, which in turn is to control the postal and telegraphic (including telephonic) services of the Commonwealth and is given a substantial monopoly in the carriage of letters and in the transmission of messages by telegraph and telephone; the Act also contains much detailed legislation, some relevant to the present issue.

But first it is convenient to notice how the courts in common law jurisdictions have viewed the individual's use of post office facilities.

In Stock v. Harris [1] , the Court of King's Bench entertained an action by the plaintiff against the defendant, Deputy-Postmaster of Gloucester, founded upon the failure of the latter to deliver a letter sent through the post and addressed to the plaintiff. The defendant, having been informed, so he said, by the Postmaster-General that he need not deliver to the houses of addressees in Gloucester letters which he received addressed to them, by public notice announced that thenceforth house delivery would be charged as an extra, failing payment of which letters would await collection at his post office. The plaintiff wrote to the defendant demanding the customary house delivery without extra charge and when, soon afterwards, the defendant failed so to deliver a letter addressed to him he sued. Following a special verdict the opinion of the Court was sought whether the defendant was obliged to deliver to the plaintiff's place of abode without extra charge, if so verdict was to be for the plaintiff in damages, with costs.

Lord Mansfield presided and said that he saw no great difficulty in resolving the matter "though the Acts of Parliament are not professedly explicit about it" - [1] . The relevant legislation referred to "the limits of the delivery of letters and packets"; those limits were fixed by usage, in the present case within the city of Gloucester; very great inconvenience would be involved if all must call at the post office on post days to see if there were letters for them; the Acts did not justify any additional charge for house delivery, Accordingly the defendant had done wrong and the action was well brought by the plaintiff. Aston, Willes and Ashhurst JJ. concurred, each delivering a short judgment.

1. (1771) 5 Burr., at p. 2713 [98 E.R., at p. 424].

A similar point arose two years later, concerning the Ipswich deputy postmaster and in Rowning v. Goodchild [2] , an action on the case brought in the Common Pleas, de Grey C.J. delivered the reserved judgment of the Court in favour of the plaintiff against the defendant, deputy postmaster of that city. The Lord Chief Justice, having traced the history of English, and later British, postal services, referred to the duty of the postmaster of receiving, carrying and delivering letters, as provided in 9 Anne c. 10 and, after considering a number of sections of that statute and the terms of later Acts, concluded that this involved delivery at the addressee's house in post towns and that an action for damages lay against the deputy postmaster for failure to so deliver and this notwithstanding that the legislation itself provided for penalties which the plaintiff might instead have sought to recover. As reported in William Blackstone's Reports [3] his Lordship said "But if the action lies at common law, as we think it does, the penalty is only an accumulative sanction". There was accordingly judgment for the plaintiff for one shilling damages and his costs. In the course of his judgment his Lordship referred to the matter as "not a question of private contract, or of a common carrier; but arises from a great public employment for establishing correspondence" - [4] ; the report in William Blackstone's Reports [5] states it thus " the duty arises out of a great public trust, since the legislative establishment of the post-office by the Statutes of Charles the Second and Queen Anne The present question is now merely a question of construction on the statute 9 Anne c. 10, to explain the meaning of the word "delivery"." Reference may also be made to Smith v. Dennison [1] , and to Smith v. Powdich [2] . In both cases Lord Mansfield presided and Rowning v. Goodchild [3] was followed.

1. (1773) 5 Burr. 2716 n. [98 E.R. 425]. 2. (1773) 2 Wm. Bl. 906, at p. 910 [96 E.R. 536, at p. 538]. 3. (1773) 5 Burr., at 2718 [98 E.R., at p. 426]. 4. (1773) 2 Wm. Bl., at p. 908; [ 96 E.R., at p. 537]. 5. (1774) Lofft 753 [ 98 E.R. 901]. 6. (1774) 1 Cowp. 182 [98 E.R. 1033]. 7. (1773) 5 Burr. 2716 n. [98 E.R. 425].

These, then, were English cases, never since departed from, in which a member of the public was held entitled to recover damages against a deputy postmaster, not for breach of contract or as a common carrier but for his default in compliance with what was held to be a duty imposed upon him by statute to deliver letters addressed to the plaintiff.

In the joint judgment of the Chief Justice and of Gibbs J., which I have had the advantage of reading, reference is made to the modern English case of Triefus & Co. Ltd. v. Post Office [4] , the only other case in the English courts in which this point appears to be adverted to. In that case the question was whether any contract existed concerning the carriage of packages of diamonds by the defendant and it was held that it did not. However it is noteworthy that in that case Hodson L.J. said in argument [5] , speaking of s. 34 (2) of the Post Office Act of 1908, which confers upon the Postmaster-General "the exclusive privilege" of conveying letters and of performing the incidental services of receiving and delivering all letters:

I think that the Postmaster-General is under a duty; the Act imposes the duty in a very dignified way by calling it a privilege. This observation appears, with respect, to accord with the views of Lord Mansfield and of the Lord Chief Justice earlier referred to; with it may be contrasted the opposing view of Parker L.J., also expressed in argument [6] . 1. [1957] 2 Q.B. 352. 2. [1957] 2 Q.B., at p. 358. 3. [1957] 2 Q.B., at p. 357.

A similar view has been taken both in Canada and in the United States and this is not without significance since the postal services of those countries, like our own, are successors to the British colonial postal services which, in the case of the North American continent, were established by the British government "at great charges on the main land in North America, through most of her Majesty's plantations and colonies in those parts" - recital to 9 Anne c. 10, the Act which established a general post office for all Her Majesty's dominions.

In Canada it has been held that the Postmaster-General may not, without express statutory authorization, deny to any the use of the postal services and, that, should he do so, he will be liable at the suit of the member of the public thus injured. The question arose in Literary Recreations Ltd. v. Sauve [1] . Section 7 of the Canadian Post Office Act conferred upon the Postmaster-General power to make regulations declaring what should and should not be deemed to be "mailable matter"; pursuant to that power he determined that the plaintiff's circular letters were not "mailable matter" and while the British Columbia Court of Appeal held him to be justified in so acting the judgments emphasize that, but for the express statutory power conferred by s. 7 to deny the use of the Canadian mail to specific types of matter, there would have been an enforceable duty owed by the Postmaster-General to accept and deliver the plaintiff's mail. Martin J.A. referred to the history and origin of the Canadian Post Office and to its English sources and said of it [2] :

it is now long too late to deny the right of all members of the public in Canada to make use of the public postal service in accordance with said Post Office Act. The Chief Justice also concluded that the contention that no general duty was owed to the public was ill-founded, although none was expressly imposed by the legislation, and said that, unless the rejection of the circular letters was expressly authorized pursuant to s. 7 of the Act, the Postmaster-General would be liable to the plaintiff for the wrong involved in prohibiting its use of postal services [3] . He went on to describe the Post Office as: in reality a public utility erected for the convenience of the public at their expense, thereby giving those who use it the right to demand immunity from torts such as the one which was alleged to have been committed here. The tort to which he referred was an exclusion from use of postal services unauthorized by legislation. The tenor of the judgment of McPhillips J.A. is to the same effect and Macdonald J.A. disposed of the Postmaster-General's contention that while the post office afforded public facilities the plaintiff had no legal right in respect of those facilities, the use of the post office being a concession or privilege which might be withdrawn, when he said [4] : If the right to use a commercial agency maintained by the public for many years is denied to a citizen a legal right is invaded. 1. [1932] 4 D.L.R. 553. 2. [1932] 4 D.L.R., at pp. 556-557. 3. [1932] 4 D.L.R., at p. 556. 4. [1932] 4 D.L.R., at pp. 562-563.

Literary Recreations Ltd. v. Sauve [1] did not depend upon any special feature of the Canadian legislation; it has been followed in various Canadian jurisdictions and in Reg. v. Randolph [2] , the approach of the Supreme Court of Canada to the same legislation, when read in the light of the decision under appeal, that of the President of the Exchequer Court [3] , is along similar lines.

1. [1932] 4 D.L.R. 553. 2. (1966) 56 D.L.R. (2d) 283. 3. [1966] Ex. C.R. 157.

In the United States a like view has prevailed and this is not I think, to be attributed to the influence of any doctrine of fundamental rights guaranteed by the Constitution - Public Clearing House v. Coyne [4] . The Postmaster-General has conferred upon him a statutory power to deny the use of the mails to individuals upon various grounds and while the Courts do not assert any right to inquire into the correctness of the determination by the Postmaster-General of the question whether correspondence is or is not "mailable" they will intervene at the suit of the individual should he act without statutory authority in denying the use of postal services. Thus in American School of Magnetic Healing v. McAnnulty [5] , where, on the instructions of the Postmaster-General, letters addressed to the plaintiff were not delivered to it because it was alleged that its business involved obtaining money through the mails by false pretences, the Court granted an injunction against the Postmaster-General who, it held, had assumed jurisdiction in a case not covered by the Statute and had thus ordered the detention of mail without statutory authority. In its judgment the Supreme Court said that the Postmaster-General's right [6] "to exclude letters or to refuse to permit their delivery to persons addressed must depend upon some law of Congress, and if no such law exists, then he cannot exclude or refuse to deliver them".

1. (1903) 194 U.S. 497 [48 Law. Ed. 1092]. 2. (1902) 187 U.S. 94 [47 Law. Ed. 90]. 3. (1902) 187 U.S., at p. 109 [47 Law. Ed., at p. 96].

Otherwise, it was said, the individual would be "left to the absolutely uncontrolled and arbitrary action of a public and administrative officer whose action is unauthorized by any law [7] ". The Court stated that there was a legal right in the individual to have letters addressed to him delivered and that that right had been violated.

1. (1902) 187 U.S., at p. 110 [47 Law. Ed., at p. 96].

Turning now to Australia, the Australian colonies, when they were authorized by 12 and 13 Vict. c. 66 to establish inland posts in their respective territories, took as their model the English legislation of 1837, 7 Wm. 4; 1; Vict. c. 32-36, and the "penny postage" scheme of 3 & 4 Vict. c. 96; the various colonial Acts in turn constituted the basis for the present Commonwealth legislation. In the joint judgment of the Chief Justice and of Gibbs J. the case of Hartle v. Campbell [1] is discussed and the assumption underlying the judgments of the members of the Full Court are referred to; to that colonial decision may be added a reference to Blakeney v. Pegus [2] , in which a country telegraph mistress was sued for the consequences to the plaintiff of his mistakenly being given a telegram intended for another. The Full Court held that the action would not lie for mere negligence, absent intent to mislead. The plaintiff relied upon Rowning v. Goodchild [3] and in distinguishing it Martin C.J., having earlier referred to cases involving private telegraph companies, said [4] :

But we are dealing with a public officer, having duties to discharge to the whole of the community. As regards the Post Office, there are cases to show that the delivery of letters must be at the house of the person to whom they are addressed, and that non-delivery is actionable. That is what the decision in W. Blackstone amounts to. That is the law as it then stood. But that is not a case like this. That case may establish the right of an individual to bring an action for a breach of duty on the part of a public officer; but it does not establish that when a person to whom a telegram is not addressed, but to whom such a telegram had been sent, has suffered damage from such wrong delivery, such a person can bring an action against the officer who made the mistake.

I am of the opinion that if the telegraph mistress, in this case, intentionally misdirected this telegram and sent it to the wrong person, an action would be maintainable.

Having acknowledged the distinction between a private telegraph company and the case of a public officer and referring to the unintentional nature of the error in this case his Honour continued [4] : The erroneous statement in this case is that the telegram sent to Black was intended for Blakeney. Unless that statement was intentionally false, I am of opinion that the action will not lie. No doubt, if a person gets a telegram from a public officer, he has a right to suppose that the telegram was received as it purports to be. But, although that be not so, yet an action will not lie unless the thing was done deliberately. Windeyer J. agreed with the reasons of the Chief Justice and Faucett J. also agreed that the action would not lie. 1. (1886) 12 V.L.R. 604. 2. (1885) 6 N.S.W.L.R. 223. 3. (1773) 5 Burr. 2716 n. [98 E.R. 425]. 4. (1885) 6 N.S.W.L.R., at p. 232. 5. (1885) 6 N.S.W.L.R., at p. 232.

These two cases, on legislation not in its general character very different from the present Commonwealth Act, lend some support to the view that for breach of a statutory duty imposed by postal legislation, such as a failure to deliver, an action will lie at the suit of the individual affected by the breach. They are in that respect consistent with the decisions in other jurisdictions to which I have referred.

Since Federation the only Australian case on the point appears to be that of R. v. Arndel [1] . This case is considered in detail in the joint judgment of the Chief Justice and Gibbs J. and calls for no further comment by me.

That being the state of such authorities as exist on the matter, if there is to be found in the Post and Telegraph Act indications that there is a duty imposed upon the Postmaster-General to receive and deliver mail, subject always to compliance with the requirements of the Act and regulations, there is, I think, good ground for holding that the plaintiff may, by proceedings such as these, seek to have performance of that duty enforced.

In the joint judgment of the Chief Justice and Gibbs J. a close scrutiny is made of the legislation and it is unnecessary for me to do more than express my agreement with what is there said and with the conclusion expressed that there are clear indications in the legislation that properly addressed and stamped letters received for transmission and delivery must be duly transmitted and delivered except in those cases for which express provision to the contrary is made, that no unfettered and general power reposes in the Postmaster-General to direct that postal facilities may be denied to an individual and that, in the circumstances of this case, no power existed whereby either delivery of mail addressed to the plaintiff or the receipt from him and transmission of mail which he desired to be transmitted through the post could be denied to him. In their joint judgment their Honours have also dealt with the purported cancellation of the tenancy of the plaintiff's post office box, the de-registration of "The Rhodesian Commentary", the suspension of telephonic and telegraphic services and the general question of the exercise by the Court of its discretion in favour of the defendant in respect of the relief sought by the plaintiff and in all these respects I am in agreement and have nothing to add. Accordingly in my opinion appropriate orders by way of declaration and injunction should be made.