China Ocean Shipping Co v South Australia

3. If s. 503 does not so apply of its own force, does it apply by virtue of s. 64 of the Judiciary Act 1903-1976?

In October 1977 the Wuzhou, a vessel owned by China Ocean Shipping Co., collided with a jetty at Wallaroo in Spencer's Gulf, South Australia, causing damage to the jetty and associated structures owned by the State of South Australia.

The Minister of Marine of the State began three actions in the Supreme Court of South Australia claiming damages. By the first he sued the owner and Patrick Operations Pty. Ltd., said to be the agent of Wuzhou, seeking damages pursuant to s. 124 of the Harbors Act, 1936-1974 S.A.; in the second action the Minister made a similar claim against Li Zhong Yi, the master of Wuzhou. In the third action, an action in rem against the ship, the Minister sought recovery of damages in tort in consequence of the negligent mismanagement of the ship.

The defendants in the first two of these actions have now themselves instituted limitation proceedings against the State of South Australia pursuant to s. 503 and s. 504 of the Merchant Shipping Act, 1894 Imp.. They thereby seek to limit their liability to damages to an aggregate amount of eight pounds sterling per ton of the registered tonnage of Wuzhou and claim appropriate declarations, orders and directions accordingly.

The parties determined that issues of law which they discerned as arising in these limitation proceedings should be disposed of at the outset by way of a special case. It is that special case that has been removed into this Court. It asks three formal questions:

1. Does s. 504 of the Merchant Shipping Act, 1894-1900 entitle the plaintiffs or any of them in any circumstances to make an application under that section relating to liability alleged to have been incurred by them or any of them in respect of the property referred to in par. 3 of the statement of claim (having in mind the nature and description of that property and disregarding for the purpose of this question its ownership)?

2. Does s. 503 of the Merchant Shipping Act, 1894-1900 apply of its own force to the Crown in right of the State of South Australia so as to entitle the plaintiffs or any of them in any circumstances to limit their liability to the defendant for damages?

3. If s. 503 does not so apply of its own force, does it apply by virtue of s. 64 of the Judiciary Act 1903-1976?

Each of these formal questions gives rise to several issues of law. Underlying a number of them is the fact that it is the Crown in right of the State of South Australia whose claims to damages the present limitation proceedings seek to limit. I shall deal first with those arising under question 1.

The first issue concerns the application to Australia of Imperial legislation. Despite much authority to the contrary, including Union Steamship Co. of New Zealand Ltd. v. The Commonwealth [30] , Asiatic Steam Navigation Co. Ltd. v. The Commonwealth [31] and, on appeal [32] , and Bistricic v. Rokov [33] , the defendant denies the application of ss. 503 and 504 of the Merchant Shipping Act, 1894. For some six years after its enactment s. 503 was confined, essentially, to injury to persons or property afloat: it was not until the Merchant Shipping (Liability of Shipowners and Others) Act, 1900 Imp. that the limitation upon the liability of owners of a ship, set by s. 503, was extended so as to apply not only in respect of loss or damage to property aboard a vessel but also to "all cases where any loss or damage is caused to property whether on land or on water " Here the injury was to a jetty and the first issue is, therefore, whether both the original Imperial Act of 1894 and the amending Imperial Act of 1900 apply to the damage done to this Australian jetty.

1. (1925) 36 C.L.R. 130. 2. (1956) 96 C.L.R. 397, at p. 401. 3. (1956) 96 C.L.R., at pp. 418, 423. 4. (1976) 135 C.L.R. 552.

The second issue is whether the amending Act of 1900, expressed as extending the substantive limitation provisions of s. 503 to the case of property such as this jetty, also operates so as to extend in like fashion the procedural provisions of s. 504. A third issue is whether either of these sections applies in aid of parties other than the owner of the vessel sued, that is to say, whether, in the present case, it enables either the ship's agents or the master to seek limitation of liability for the damage done to the jetty.

A fourth issue is whether the sections apply where, as here, the liability relied upon by the Minister, under s. 124 of the Harbors Act, 1936-1974 S.A., is an absolute liability regardless of fault.

That it is the Crown which owns the damaged jetty has played a part in shaping the form of some of these issues but the critical issue, whether or not claims by the Crown may be subject to limitation in a limitation action does not directly arise under question 1: by its terms that question requires that the particular ownership of the jetty be disregarded, leaving this issue to be raised under question 2.

While authorities abound which establish that the Imperial Act of 1894 applies in Australian waters, there is no direct authority as to the like application of the amending Act of 1900. The defendant denies the application of each Act. I have already cited express authority in this Court for the first proposition and now pass, without further or more detailed citation, to examine the defendant's argument to the contrary. It consists, in substance, of reliance, without added explication, upon passages from the judgments of my brother Murphy in two cases, Bistricic v. Rokov [34] and Robinson v. Western Australian Museum [35] . Each of these judgments is, for the purposes for which it is relied upon, a dissenting judgment, all other members of the Court in each case taking, as fundamental to their particular resolution of the issues in the case, a view of the operation of the Act of 1894 contrary to that adopted by his Honour.

1. (1976) 135 C.L.R. 552. 2. (1978) 138 C.L.R. 283.

In Bistricic the judgment of Murphy J. is concerned to deny that the Parliament at Westminster had power, in 1958, to legislate for New South Wales. It acknowledges the supremacy of that Parliament according to the municipal law of the United Kingdom but treats its supremacy in overseas territories as co-extensive with the realities of political control. When that control ends, as it has in relation to Australia, so does that supremacy and with it the legislative competency of that Parliament. Accordingly "The United Kingdom can have no power to make laws for an independent nation which was a former colony" [36] : the attainment of Australia's "independence and freedom from United Kingdom legislative authority should be taken as dating from 1901", whereupon the Parliament at Westminster ceased to be, in relation to Australia, an Imperial Parliament and "statutes directed towards regulating the imperial-colonial relations (for example, those in the Colonial Laws Validity Act, 1865) then ceased to be applicable". There is, thus, denied not only the competency of the Parliament at Westminster, ever since federation, to legislate at all for Australia, but also the continued operation, after federation, of Imperial legislation previously in force in Australia. In Bistricic [37] that denial may be thought to be confined to such legislation as "regulated imperial-colonial relations": in Robinson it is made clear that it at least extends to Imperial Merchant Shipping legislation, his Honour observing, that the Merchant Shipping Act of 1894 is quite inconsistent with the present relationship between the United Kingdom and Australia, being intended to operate "in a unified imperial-colonial system controlled from London", of which Australia is no longer a part [38] .

1. (1976) 135 C.L.R., at p. 567. 2. (1976) 135 C.L.R. 552. 3. (1977) 138 C.L.R. at p. 344.

This submission made on behalf of the defendant State confines itself to an adoption of his Honour's views as expressed in these two judgments only. Nor does it, of course, claim support from other judicial authority: it is, on the contrary, not only opposed to the expressed views of all other members of this Court who participated in those decisions, it also runs counter to all those earlier decisions of the Court over the past twenty-five years in which the application to Australia of Imperial legislation has either been expressly asserted or has provided an essential basis for decision.

In the circumstances it is unnecessary to undertake any demonstration of what is tacitly conceded, namely that all prior authority is to the contrary. It is, instead, on this occasion appropriate to meet the submission upon its own ground, which invokes the realities of the relationship this century between the United Kingdom and Australia. In doing so I have concerned myself principally, although not exclusively, with that aspect of the submission which is of present relevance, namely that Imperial legislation which, by its paramountcy, was law in Australia before and at the time of Federation thereafter ceased to apply as law in this country.

The history of the Constitutional Conventions leading to Federation is, I think, consistent only with a contemplation by those who were, in the last decade of the nineteenth century, concerned to bring about Federation that the establishment of the Commonwealth would not of itself involve either the ending of the application to Australia of existing Imperial laws or the denial to the Parliament at Westminster of continued competence to legislate for Australia. One instance will serve to make the point. When that decade's endeavours culminated in the Australian delegates' negotiations with the Imperial authorities in London in 1900 the form of covering cl. 5 of the delegates' proposed Commonwealth of Australia Constitution Bill was a point of contention, the matter in issue being whether the clause made it sufficiently clear that laws enacted by the Commonwealth Parliament would be "colonial laws" subject to the provisions of the Colonial Laws Validity Act, 1865 Imp. The Imperial Government wished to leave no "room for doubt as to the paramount authority of Imperial legislation", while, as Quick and Garran observe at p. 350 of their Annotated Constitution, the Australian framers of the Commonwealth Bill had not "thought necessary to declare that the Constitution should be read in conjunction with the Colonial Laws Validity Act. It was assumed, as a matter of course, that that would be done". The Australian delegates, determined to avoid any change, even to the covering clauses, of a document so long debated in Australia and which had just been approved by referendum of the Australian people, contended that the Bill in fact left no room for doubt: "The Commonwealth appears to the Delegates to be clearly a "Colony" and the Federal Parliament to be a "Legislature" within the meaning of the Colonial Laws Validity Act " they observed in their memorandum to the Colonial Office and of this they succeeded finally in convincing the Imperial Crown Law Officers. As Quick and Garran observe, at p. 352, "It may be assumed, therefore, that the Crown Law Officers were satisfied that the Colonial Laws Validity Act is applicable to the Constitution as it stands".

Here, then, was the expression of a common understanding. There had been occasional individual doubts, the expression of which may be found in the course of Constitutional Convention debates, and these were reflected in the reposte of the Australian delegates, towards the close of their protracted London negotiations, that it was scarcely appropriate that the Act of 1865 should apply to a great self-governing community. Nevertheless, the outcome was an express recognition, by those most closely concerned with Federation, of the continuing application of Imperial laws to federated Australia. That what was expressly in issue was the Colonial Laws Validity Act is particularly significant, since its continued application ensured the supremacy of Imperial laws expressed to apply to Australia over any legislation enacted by the Parliament of the Commonwealth repugnant to those Imperial laws. As Professor Castles observes in his article, "Reception and Status of English Law in Australia", in Adelaide Law Review, vol. 2 (1963) 1, at p. 27, viewed in the perspective of the nineteenth and of the early part of the twentieth century that Act, and with it the preservation of the residual legislative power of the Imperial Parliament, was still acceptable to the peoples of many British possessions.

This being the state of political realities affecting relations between Australia and the United Kingdom at the inception of the Commonwealth, it long continued to be the basis of the relationship between Imperial and Australian governments, regardless of their respective, and fluctuating, political complexions, as is shown by the course of subsequent events.

Entering the twentieth century as a British colony, albeit a self-governing one, Australia's path to Dominion status may be traced through the successive Colonial and then Imperial Conferences from 1902 onwards. At the Conference of 1907 the term "Dominion" first attained official recognition. In 1926 the Balfour Report on the Conference of that year spoke of the need for clarification of "the operation of legislation passed by the Parliament at Westminster in relation to the Dominions": it called special attention to the Colonial Laws Validity Act and noted that, so far as concerned constitutional practice, "legislation by the Parliament at Westminster applying to a Dominion would only be passed with the consent of the Dominion concerned". A further Imperial Conference in 1930, and the passing of the Statute of Westminster in 1931, enabled Australia henceforth, if it chose to adopt the relevant sections of the Statute, to legislate in disregard of existing Imperial law: Statute of Westminster, s. 2 (1) and (2).

The Statute of Westminster was no creature of the law officers of the United Kingdom, imposed by Imperial force upon colonial dependencies: Professor Kennedy, writing from a Canadian standpoint, describes it as "in essence an enactment of the dominions to which the parliament of the United Kingdom gave the necessary statutory force" - Kennedy, Essays in Constitutional Law (1934), p. 164. As such it affords testimony, attested to by each of the Dominions, of the continuing operation of Imperial legislation in the Dominions. For eleven years, until 1942, the Commonwealth was content, despite the enactment of the Statute, to defer its adoption and to permit the respective standing of its laws and of Imperial laws to remain as they had been ever since federation, still governed by the Colonial Laws Validity Act, 1865 and by notions of repugnancy. Eventually, when it did, by the Statute of Westminster Adoption Act 1942 Cth, adopt the Statute it joined other former Dominions in their new relationship to Imperial laws. That relationship for the first time involved possession by the Commonwealth of the power, within its constitutional limits, to repeal or amend "any existing or future" Imperial statute "in so far as the same is part of the law of the Dominion" - see Statute of Westminster, 1931, s. 2 (2), as scheduled to the Commonwealth Act. Inherent in that power was the acknowledgment that, until so repealed or amended, those Imperial statutes would continue to form "part of the law of the Dominion".

Not only did the Statute not itself affect the application of existing Imperial law, it expressly preserved the power of the Parliament of Westminster to enact future Imperial law for a Dominion, so long as the enactment declared that it had been requested and consented to by the Dominion - s. 4. In his paper on the Statute, published in the Australian Law Journal, vol. 10 (1936) (Supp.) p. 96, Sir Owen Dixon points out, at pp. 98-99, that "The Dominions did not all desire that the power should be extinguished": Canada, for example, had need of Imperial legislation so that the British North America Acts might from time to time be amended. Even now, in 1978, when Canada is once again considering constitutional change, it is by recourse to Imperial legislation that it must perforce be effected. Sir Owen also referred to the occasions upon which various of the Australian States have "found it necessary to appeal to the legislative power of the Parliament at Westminster and may do so again"; details of this appear in Keith, Responsible Government in the Dominions, 2nd ed. (1928), vol. II, pp. 1022-1023.

That the contemplation of such present-day recourse to Westminster's legislative powers is not confined to Canada is shown by the debate of recent years in Australia, in both academic and political spheres, concerning the abolition of appeals from State Supreme Courts to the Judicial Committee, a debate in which abolition by means of Imperial legislation has been a recurring theme. Again, it was recourse to Imperial legislation that, in 1972, the Law Reform Commission of New South Wales proposed, in its Working Paper on Legislative Powers, when considering reform of aspects of the State's legislative powers - see par. 154 et seq. of that Paper. The legislative power of the Parliament at Westminster albeit responsive only to prior Australian initiatives, remains, for Australia, a factor in present-day constitutional law, despite the undoubted changes in relationships which have occurred and which are reflected in the current realities of national political power and in Australia's own nationhood.

It is, then, not the rejection of the legislative power of the Parliament at Westminster to make laws in the future for Australia, still less the abrogation of existing Imperial laws, that has marked, in this century, the progressive development of the constitutional relationship between Australia and the United Kingdom. Instead, the realities of the relationship have involved the continued application of existing Imperial laws, but subject now to the power of repeal or amendment by Commonwealth legislation.

Had it been otherwise and had Imperial law in fact ceased to be law for Australia in 1901 or at some later date, as the defendant's submission would have it, there would have thenceforth been revealed some areas of law, formerly regulated by Imperial statute, in which no law existed. One instance among many is that of copyright. The considerable extent to which, until 1907, copyright protection in Australia depended upon Imperial legislation, and the inadequacy of the protection otherwise afforded by legislation of the various Australian colonies, later States, is succinctly described in Ch. VIII of the fourth edition of Scrutton's Law of Copyright. Only with the proclamation, in 1907, of the commencement of the Copyright Act 1905 did Commonwealth legislation enter the field. Another instance is provided by the Admiralty jurisdiction of Australian courts, a matter discussed in historical detail in the judgments of members of this Court in Reg. v. Bull [39] and earlier referred to in a number of the judgments of this Court, including those in McIlwraith McEacharn Ltd. v. Shell Co. of Australia Ltd. [40] and in the Asiatic Steam Navigation Case [41] , per Taylor J. Rather than multiply instances, it suffices to refer generally to Pt V of Keith's work and to Professor Castles' article cited above, especially at pp. 29-31, on which latter page he remarks that by 1901 "such British Acts as the Merchant Shipping Acts and the Fugitive Offenders Act were generally accepted as part of the legal framework of each of the Australian States, as indeed they are today". Admiralty jurisdiction also provides an instance both of express acknowledgement by Australia's own federal Parliament of the continued operation of Imperial statutes and of express reliance upon their operation: its Judiciary Act 1914 introduced s. 30A into the principal Act of 1903 so that this Court might thereby, in the words of the section, be "declared to be a Colonial Court of Admiralty within the meaning of the Imperial Act known as the Colonial Courts of Admiralty Act, 1890 ". When s. 30A was later repealed by the Judiciary Act 1939 this was not done by way of any repudiation of the continued operation of Imperial legislation but, rather, so as to ensure that by the declaration State courts had not unintentionally been deprived of that same Imperial jurisdiction - see generally Cowen: Federal Jurisdiction in Australia, 1st ed. (1959), pp. 61 et seq.

1. (1974) 131 C.L.R. 203. 2. (1945) 70 C.L.R. 175. 3. (1956) 96 C.L.R., at p. 402.

Three Australian law reform papers may also be mentioned: the New South Wales Law Reform Commission's report of 1967 on the Application of Imperial Acts in New South Wales, the A.C.T. Law Reform Commission's Report on Imperial Acts in force in the Territory and its Supplementary Report, 1973, and a Victorian report of 1975, prepared by Mrs Kewley, reviewing, after a lapse of some fifty years, the Imperial Acts Application Act 1922 Vict., of which Sir Leo Cussen was the author. Although the chief concern of these papers is with the application of English statutes of some antiquity they do, together, present a picture of the areas of Australian statute law occupied, both before and after Federation, by Imperial laws, including those operating by paramount force.

It is for these reasons that I would reject the defendant's submission as to the first issue. Both the Merchant Shipping Act, 1894 and the amending Act of 1900, have, at all material times, been law in Australia. In so concluding I am not unaware of the unsatisfactory situation which has long been recognized as existing in relation to the law governing merchant shipping in Australia, itself a situation largely attributable to the very proposition which the defendant's submission would deny, the continued operation in Australia of Imperial laws. As long ago as 1929 Mr J. G. Latham, then Commonwealth Attorney-General, spoke of the position as "confused, obscure and radically unsatisfactory": Australia and the British Commonwealth, (1929), p. 103. It is a situation which has remained substantially unaltered through the lives of many successive governments, Imperial law continuing to overlay what might be thought to be proper areas for the operation of Australian laws. It no doubt calls for radical reform but it is by legislative initiative, possible ever since the adoption of the Statute of Westminster, that it must be achieved and not, at least in my view, by the adoption of the defendant's present submission.

The defendant submits, in the alternative, that for two reasons the amending Act of 1900 is not applicable to Australia. Section 3 of that Act describes the sources from which may spring those liabilities of which the Act permits limitation, one such source being liability "under any general or private Act of Parliament". It is said that "Act of Parliament" is there intended to refer only to Acts of the United Kingdom legislature and emphasis is laid on the use of capital letters. It might be appropriate enough, in legislation known in advance to be confined in application to a particular locality, to interpret its references, whether to other legislation or to data of any other kind, as restricted to the local context: such a process forfeits its claim to logic when the initial postulate of local application is absent and, instead, the area of application of the legislation is the very enquiry in hand.

The other ground advanced relies upon the fact that the Maritime Conventions Act, 1911, in part amending provisions of the Act of 1894, is expressly stated not to extend to Australia or to the three other then Dominions. This is said to provide an instance, not long after the Act of 1900, of legislation which amends the Act of 1894 but is not intended to apply to Australia. It is put forward as an instance of a new sense of self-restraint which since the turn of the century has guided the Parliament at Westminster in its exercise of Imperial legislative power. It takes no account, however, of the several cases in this Court in which the amending Merchant Shipping Act, 1906 Imp. has unhesitatingly been applied to Australia nor of the significance of the presence in the Act of 1911 of an express application section. That Act may, for a quite different reason, be no safe guide to the application of the Act of 1900. As its long title and recitals show, it was passed to give effect to the Brussels Collision Conventions of 1910. The Imperial government deliberately left it to each Dominion to give effect to that Convention and each Dominion did subsequently enact legislation similar to that of the Act of 1911. Keith devotes attention to this quite special situation at pp. 950-951 of his Responsible Government in the Dominions, 2nd ed. (1928), vol. II. It provides an early instance of Dominion implementation of international obligations.

None of the considerations which led this Court, in Bistricic v. Rokov [42] , to deny to the Merchant Shipping (Liability of Shipowners and Others) Act, 1958 U.K. operation in Australia apply to the Act of 1900; indeed some of the considerations to which, in that case, Mason J. [43] referred supply reasons for regarding the Act of 1900 as equally applicable to Australia as is the principal Act of 1894. I reject the defendant's submissions on the second issue.

1. (1976) 135 C.L.R. 552. 2. (1976) 135 C.L.R., at p. 558.

In Mersey Docks and Harbour Board v. Hay [44] each of their Lordships as dealt with the point, held that, although the express words of s. 1 of the amending Act of 1900 only refer to the operation of s. 503 of the Act of 1894, that section in fact also results in a like extension of the procedural provisions of s. 504 - see especially per Viscount Finlay [45] and per Lord Sumner [46] . The reasons given by their Lordships on this aspect, including those of Lord Sumner, who otherwise dissented, are compelling and I need do no more than express my respectful agreement with all that they have to say on the point. It follows that I reject the defendant's invitation to depart from their Lordships' decision and to express a contrary conclusion. The defendant urged that what was described as a strict interpretation of the legislation should be adopted: to regard only s. 503, and not s. 504, as affected by the Act of 1900, even if their Lordships' compelling reasoning to the contrary were to be put aside, would be, I think, to adopt a pedantic rather than a strict interpretation.

1. [1923] A.C. 345. 2. [1923] A.C., at pp. 362-363. 3. [1923] A.C., at pp. 378-380.

The last issue in question 1 is whether the provisions of s. 504 extend to parties other than the owner of the offending ship. The defendant says that it does not apply to the master or to the agent, whereas the plaintiffs, while acknowledging that the master of the ship cannot rely either upon s. 504, or, for that matter, upon s. 503, contend that it does extend to the case of the agents, Patrick Operations Pty. Ltd. The record before the Court says nothing more about Patrick Operations Pty. Ltd. than that it is the "agent" of the vessel Wuzhou, a description which in itself conveys very little. In Goodes v. James Patrick & Co. Pty. Ltd. [47] Adam J., being required to determine the meaning of "agent" in a statute which spoke of "the owner, the agent and the master of the ship", observed that "the agent of the ship" did not appear to be a term of art: he was obliged to seek its meaning from the statutory context in which it there occurred. Bereft of all context, as it is in question 1, this issue does not readily lend itself to resolution and is better left for decision, if then still material, in the different setting encountered in question 2.

The plaintiffs, in seeking to take advantage of s. 503 of the Act of 1894 so as to limit their liability to the defendant, must necessarily contend that that section applies as against the Crown in right of South Australia. This the defendant denies: hence question 2, which like question 1, involves a number of distinct issues raised by the various submissions, expressed as alternatives, relied upon by the defendant to deny to the present case the application of these limitation provisions.

The plaintiffs rely upon the decision of the five members of the Supreme Court of Canada in Gartland Steamship Co. v. The Queen [48] , in which those who formed the Bench of that Court held that the limitation provisions of the Canada Shipping Act, 1934, indistinguishable for present purposes from those of the Merchant Shipping Acts, might be raised against the Crown. This decision has been followed in later Canadian cases. The defendant acknowledges that that case is authority for the proposition relied on by the plaintiffs but says that it was wrongly decided and that the long established rule, that the Crown is only bound by statutes if express words or necessary implication so requires, should be applied and that if applied the result is that neither s. 503 nor s. 504 bind the Crown. It points to the decision of the Appellate Division of the Supreme Court of South Africa in South African Railways and Harbours v. Smith's Coasters (Prop.) Ltd. [49] , a decision in its favour decided upon these very sections of the Merchant Shipping Act, and relies also upon the general doctrine applied in English and Australian courts regarding occasions when statutes will bind the Crown. No decisions of courts in either of these latter jurisdictions have dealt with the application of these sections of the Merchant Shipping Act to the limitation of claims by the Crown.

1. [1960] S.C.R. 315; [1960] 1 Lloyd's Rep. 388. 2. [1931] A.D. 113.

It is in the judgment of Locke J. that is to be found the reasoning supporting the relevant conclusion in the Gartland case. His Lordship said [50] :

The purpose of s. 16 of the Interpretation Act to which I have referred above is, in my opinion, to prevent the infringement of prerogative rights of the Crown other than by express enactment in which the Sovereign is named. Section 712 of the Canada Shipping Act was held in the case of Nisbet Shipping Co. Ltd. v. The Queen [51] to effectively prevent the exercise of the Royal prerogative. The effect of the sections of the Canada Shipping Act, however, are to declare and limit the extent of the liability of shipowners in accidents occurring without their own fault and privity. It cannot be said, in my opinion, that the Royal prerogative ever extended to imposing liability upon a subject to a greater extent than that declared by law by legislation lawfully enacted. The fact that liability may not be imposed upon the Crown, except by legislation in which the Sovereign is named, or that any of the other prerogative rights are not to be taken as extinguished unless the intention to do so is made manifest by naming the Crown, does not mean that the extent of the liability of a subject may be extended in a case of a claim by the Crown beyond the limit of the liability effectively declared by law. I am accordingly of the opinion that the learned trial Judge was right in permitting the amount of recovery to be restricted in the manner above indicated. 1. [1960] S.C.R., at p. 345; [1960] 1 Lloyd's Rep., at pp. 398-399. 2. [1955] 2 Lloyd's Rep. 173.

There are detailed aspects of this passage that call for particular mention, but this may be deferred; for the moment it is the scheme of reasoning that calls for examination. After its initial references to the effect of the Interpretation Act and to the Nisbet Shipping Co. Case [52] , the passage states two propositions: that the effect of the limitation provisions is to declare and limit shipowners' liability and that the Royal prerogative has never involved the imposition upon a subject of liability additional to that declared by legislation. There then follows the conclusion, first expressed negatively and then positively. Negatively, it is said that the existence of two acknowledged facts, that only by express mention will the Crown be made liable by statute and that its other prerogative rights are not to be extinguished unless it be expressly named, does not mean that the extent of a subject's liability to the Crown may be extended beyond the limit of liability effectively declared by law. Positively, it is said that the trial judge was right in allowing liability to the Crown to be limited by these limitation provisions.

The view expressed is, then, that the limitation provisions create a statutory limit upon shipowners' liability, a limit which is of general application and which the Crown cannot exceed by any reliance upon the prerogative. This discloses, I think, an attitude to the question of the effect of statutes upon the Crown which is foreign both to Australian and to English law. It accepts the effect of a statutory provision, itself silent as to the Crown, as establishing some general situation regarding rights and liabilities and asks whether anything appertaining to the Crown's prerogatives enables the Crown to vary, in its favour and to the subject's disadvantage, that position. In the case in hand a negative answer was then given.

In England and in Australia the long established approach to the problem is quite different: instead of assuming the existence of a general situation regarding rights and liabilities, brought about by the statute, the first enquiry is whether the statute has anything at all to say concerning the rights of the Crown and the liabilities of subjects at the suit of the Crown. If, as I shall for the moment assume, it has not, the enquiry ends: since the statute does not bind the Crown it may be disregarded and no question arises concerning Crown prerogatives.

The difference in outcome is immediately apparent and is attributable to the difference in initial approach. Whereas in Gartland [53] the first step assumes a generally applicable position concerning a shipowner's liability, against which Crown prerogative will not prevail, the orthodox approach in this country reveals no such position: instead the statute is found to limit a shipowner's liability only as against the claims of other subjects and not as against the Crown. Having reached that position all else follows and a result which is the opposite of that arrived at in Gartland is the consequence.

In both Reg. v. Levis Ferry Ltd. [54] and Reg. v. Murray [55] the Exchequer Court of Canada cited and relied upon this judgment of Locke J., as did Sheppard D.J. in Marpole Towing Ltd. v. British Columbia Telephone Co. [56] . The judgment of Sheppard D.J. is notable for its description of the reasoning in Gartland [57] . His Honour said of Gartland that it held that the limitation provisions do not "take away any cause of action from the Crown so as to affect the prerogative but rather such sections merely define the extent of the liability of the shipowner" and, a little later, that "the sections in question do not affect the Crown's prerogative as they do not deprive the Crown of any cause of action but merely fix the liability of the owner of the tug under the circumstances" [58] . In The Chugaway II [59] the majority judgment in the Supreme Court applied the principle of the Gartland Case saying [60] that the relevant limitation sections "did not take away any cause of action from the Crown so as to affect the prerogative but rather such sections merely define the extent of the liability of the shipowner".

1. [1960] Ex. C.R. 243. 2. [1965] 2 Ex. C.R. 663. 3. [1969] 2 Ex. C.R. 429. 4. [1960] S.C.R. 315; [1960] 1 Lloyd's Rep. 388. 5. [1969] 2 Ex. C.R., at p. 439. 6. [1973] 2 Lloyd's Rep. 159. 7. [1973] 2 Lloyd's Rep., at pp. 167-168.

These descriptions of the basis for the decision in Gartland accord, I think, with what I have stated to be my understanding of it. It no doubt reflects what is now the orthodox view in Canada. That this may not always have been so is suggested by a reading of the earlier decision in Canada Steamship Lines Ltd. v. Emile Charland Ltd. [61] in which Demers L.J.A. held that s. 503 of the Merchant Shipping Act did not bind the Crown. That decision was not cited either in the judgments in the Supreme Court in Gartland or, so far as I am aware, in any succeeding case. Charland's Case was, however, discussed and distinguished when Gartland's Case was before Cameron J. at first instance in the Exchequer Court. His Honour's judgment is not reported but some reference to its contents appears in a note by Lalande in the Canadian Bar Review, vol. 38 (1960), p. 615. That note, while generally critical of the reasoning in Gartland's Case, both at first instance and in the Supreme Court, welcomes it as a matter of "policy", describing the Supreme Court's decision affirming Cameron J. as unexpected and as a deliberate policy decision. Mr. Lalande states that Cameron J.'s view that the limitation provisions might be invoked so as to limit a claim by the Crown was expressed to be founded upon a passage from Craies on Statute Law. This passage still appears in the seventh edition (1971), at p. 426, under the heading "Sovereign in private capacity" and however it now stands having regard to modern English and Australian authority (and it may well be that it stands unaffected, since it is confined to "the Sovereign looked upon as a mere individual", a capacity which, at least in Australia, the Sovereign will seldom assume), it appears to have little to do with the capacity in which the Crown was concerned in Gartland's Case. Mr. Lalande traces the passage in Craies to its acknowledged origin in Dr Wooddesson's Vinerian Lectures, where it was expressed to be so confined as to be quite in applicable to circumstances such as those with which Gartland's Case [62] was concerned.

1. [1933] Ex. C.R. 147. 2. [1960] S.C.R. 315; [1960] 1 Lloyd's Rep. 388.

Cameron J. also seems to have found in the Nisbet Shipping Co. Case [63] some support for his views, Mr Lalande, however, regarding it as pointing, if anything, in a contrary direction. For my part I have gained no guidance either way from Nisbet Shipping Co. To the extent that the note discloses the substance of Cameron J.'s reasoning it casts some light upon that of Locke J. in the Supreme Court. Thus the latter's apparent emphasis upon the Royal prerogative may perhaps derive from the view of Cameron J. that s. 16 of the Canadian Interpretation Act, like the common law rule, was applicable to preserve from the effect of statutes only "the Crown's ancient prerogative" and other rights essential to the Queen's regal capacity, a view opposed to present English and Australian law.

I earlier foreshadowed further reference to particular aspects of the passage I have quoted from the judgment of Locke J. His Lordship there refers, as did Cameron J., to s. 16 of the Interpretation Act Can.. It reads:

No provision or enactment in any Act affects in any manner whatsoever, the rights of Her Majesty, her heirs or successors unless it is expressly stated therein that Her Majesty is bound thereby. This section would have been irrelevant to the decision in Charland's Case [64] since there it was the Imperial limitation provisions which were in question, to which no such interpretation statute would apply, Cameron J. indeed relied upon this fact in distinguishing Charland's Case and may therefore have treated s. 16 as having the effect of changing the common law rule, although it is not clear to me why it should be treated as having this effect. Section 16 was clearly applicable in Gartland's Case and if Locke J. shared the views of Cameron J. this may go far towards explaining the decision in Gartland . The other brief comment which should be made relates to Locke J.'s citation of the Nisbet Shipping Co. Case, which, it will be recalled, Cameron J. had also relied upon. It is cited for the proposition that a provision of the Canada Shipping Act operated to prevent "the exercise of the Royal prerogative". As I would understand that decision, which concerned the question whether the Crown might limit its liability by recourse to the limitation provisions of the Canadian Act, Viscount Simonds dealt with no question of the exercise of the prerogative: what the relevant section of the Canadian Act was held to do was to prevent the Crown from exercising, as could other shipowners, the statutory right to limit liability which the Act conferred. No prerogative right was in question but, rather, the right of the Crown to exercise a statutory right conferred upon all but from recourse to which the Crown was held to be excluded by a later section of the Act which said that the Act should not "except where specially provided, apply to ships belonging to His Majesty". The particular view taken by Locke J. of this decision may also have played some part in his decision in Gartland's Case. 1. [1933] Ex. C.R. 147.

What I have described as the long-established doctrine both in England and in Australia is exemplified in Province of Bombay v. Municipal Corporation of Bombay [65] in Premchand Nathu & Co. Ltd. v. Land Officer [66] , in The Commonwealth v. Rhind [67] and in Downs v. Williams [68] . As Barwick C.J. said in The Commonwealth v. Rhind [69] "the rule to be applied universally as of this time in the construction of statutes, is that the Crown is not included in the operation of a statute unless by express words or by necessary implication", the latter being found, if at all, from a consideration of the subject matter and terms of the particular statute.

1. [1947] A.C. 58, at p. 61. 2. [1963] A.C. 177, at pp. 188-189. 3. (1966) 119 C.L.R. 584, at pp. 598, 606. 4. (1971) 126 C.L.R. 61, at pp. 93-94. 5. (1966) 119 C.L.R., at p. 598.

In the South African Railways Case de Villiers C.J. applied just such a rule to s. 503 of the Merchant Shipping Act, saying [70] :

Upon a consideration of the authorities we have come to the conclusion that the Crown is not bound by s. 503 of the Merchant Shipping Act, 1894. In the first place there is no general language capable of embracing the Crown. As was pointed out above, the Act is silent as to the person or persons to whom the shipowner is liable. That, if not conclusive, is strong reason for holding that the section contemplates an ordinary suit between one party and another. What was said by Alderson B. in Attorney-General v. Donaldson [71] citing Willion v. Berkley [72] that prima facie the law made by the Crown, with the assent of the Lords and Commons, is made for subjects and not for the Crown is applicable with particular force here. The implication is that the section relates to actions between private parties. There is therefore no necessity to extend this implication to embrace the Crown. 1. [1931] A.D., at p. 129. 2. (1842) 10 M. & W. 117, at p. 124 [152 E.R. 406, at p. 409]. 3. (1561) 1 Plowden 223, at p. 239 [75 E.R. 339, at pp. 365-366].

I would, with respect, adopt what is there said, as I do the conclusion to which it leads, namely, that "In the absence of general words capable of being applied to the Crown there is no justification for extending the section further as to embrace the Crown" [73] . As the Chief Justice observes [1] :

The policy which limited the liability to what must be considered to be an arbitrary figure, no doubt was the encouragement of shipping and of trade, in themselves laudable objects; but that is not sufficient to include the Crown in the provision. If the Crown is to be included it should be done by Act of Parliament and not by the Court. 1. [1931] A.D., at p. 129. 2. [1931] A.D., at p. 130.

Since I have concluded that neither express words nor necessary implication requires s. 503 to be applied so as to limit claims by the Crown, I would answer question 2, "No": the section does not, of its own force, apply to the Crown in right of South Australia and no reliance can be placed upon it as a means of limiting liability to the Crown for damages. This conclusion makes it unnecessary to determine the other issues argued under question 2 as it does the position of the agent, raised in question 1. I have also found it unnecessary to touch upon any aspect of the general question of whether or not the legislation of one member nation of the Commonwealth applies to the Crown in right of some other member nation: the present Imperial legislation was clearly intended to apply throughout the Empire and if, as I have concluded, certain of its provisions are inapplicable to the Crown that inapplicability extends both to the Imperial Crown and to the Crown in right of any colony.

It remains to consider whether s. 503 may nevertheless apply by virtue of s. 64 of the Judiciary Act, 1903 Cth, which reads as follows:

In any suit to which the Commonwealth or a State is a party, the rights of parties shall as nearly as possible be the same, and judgment may be given and costs awarded on either side, as in a suit between subject and subject.

I would answer this question, "No". My reasons for doing so can best be stated by setting out and briefly considering the successive propositions which have led me to my conclusion, a conclusion which, in essence, turns upon my identification of the South Australian Supreme Court's jurisdiction in these limitation proceedings as not being a federal jurisdiction.

Section 64 of the Judiciary Act, 1903 is only applicable in proceedings in which a court is exercising federal jurisdiction.

Although not accepted as common ground during argument, it is, I think, clear that the operation of s. 64 is confined to suits in federal jurisdiction. In Griffin v. South Australia [2] Isaacs A.C.J. appears to have so regarded it and the joint judgment of Gavan Duffy and Starke JJ. is consistent with such a view, as is the judgment of Dixon C.J. in The Commonwealth v. Anderson [3] with whose judgment McTiernan J. agreed, and see per Fullagar J. [4] , Kitto J. [5] , Menzies J. [6] and Windeyer J. [7] : see also Maguire v. Simpson [8] , per Barwick C.J. and per Jacobs J.

1. (1924) 35 C.L.R. 200, at pp. 204-206. 2. (1960) 105 C.L.R. 303, at p. 310. 3. (1960) 105 C.L.R., at p. 313. 4. (1960) 105 C.L.R., at p. 314. 5. (1960) 105 C.L.R., at p. 317. 6. (1960) 105 C.L.R., at p. 318. 7. (1977) 139 C.L.R., at pp. 368-370.

The context in which s. 64 occurs, provided by the eleven other sections of Pt IX of the Judiciary Act, supports this conclusion. Sections 56 and 57 are concerned with the bringing of suits against the Commonwealth and ss. 58 and 59 with the bringing of suits against a State, whether by a subject in respect of a matter within federal jurisdiction (s. 58) or by another State and for that reason within federal jurisdiction (s. 59). There then follow provisions concerned with the course of proceedings, once instituted: the grant of injunctive relief against a State in the High Court (s. 60), the names in which suits by the Commonwealth or a State are to be brought and how service may be effected in suits to which they are parties (s. 61 to s. 63). Sections 65 to 67 are concerned with the way in which judgments awarded in such suits against the Commonwealth or a State may be satisfied. Section 64, located in the midst of these provisions and concerned with the rights of parties in a suit to which the Commonwealth or a State is a party, should as a matter of statutory interpretation, and quite apart from considerations of constitutional validity, be understood as concerned exclusively with such suits as the Part itself is generally concerned with, suits in federal jurisdiction.

Before 1903 the Supreme Court of South Australia had jurisdiction to hear and determine limitation suits, such jurisdiction being conferred upon it both by s. 504 of the Merchant Shipping Act, 1894 and by virtue of its constitution as a court of Admiralty under s. 2 (1) of the Colonial Courts of Admiralty Act, 1890.

The Supreme Court of South Australia, being a "competent court" in a British possession, was a Court in which a shipowner might, under s. 504 of the Merchant Shipping Act 1894, institute limitation suits. It was also a "court of law in a British possession which has therein original unlimited civil jurisdiction" and was, accordingly, constituted as a colonial court of Admiralty by s. 2 (1) of the Colonial Courts of Admiralty Act 1890: as such it had conferred upon it the jurisdiction "in this Act mentioned"; that is "the Admiralty jurisdiction of the High Court in England, whether existing by virtue of any statute or otherwise" (s. 2 (2)). This jurisdiction included the entertaining of limitation suits, albeit in somewhat restricted circumstances, as explained by Dixon J. in McIlwraith McEacharn Ltd. v. Shell Co. of Australia Ltd. [9] and enlarged upon by Windeyer J., at first instance, in Union Steamship Co. of New Zealand Ltd. v. Ferguson [10] .

1. (1945) 70 C.L.R., at p. 208. 2. (1969) 119 C.L.R. 191, at pp. 197-198.

The latter of these two jurisdictions, that conferred by the Colonial Courts of Admiralty Act, was narrowly confined, by s. 2 (2) of that Act, to the Admiralty jurisdiction of the High Court in England as at 1890.

In The Yuri Maru and The Woron [11] the jurisdiction of colonial courts of Admiralty was held to be confined to the Admiralty jurisdiction of the High Court in England as at 1890. As Lord Merrivale observed [12] , their jurisdiction was not that which from time to time might be exercised by the High Court in England, but always remained that of the High Court in Admiralty "as it existed at the time when the Act was passed". The earlier decision in Bow, McLachlan & Co. v. The Ship "Camosun" [13] is to the same effect although there Lord Gorell was especially concerned to confine colonial courts of Admiralty to the exercise of Admiralty jurisdiction, denying to them that general jurisdiction which judges of the post-Judicature Admiralty Division of the High Court in England had become able to exercise.

1. [1927] A.C. 906. 2. [1927] A.C., at p. 915. 3. [1909] A.C. 597.

The jurisdiction of such colonial courts of Admiralty is thus static: its content remains fixed as at 1890. In the McIlwraith McEacharn Case Dixon J. states the matter thus: "The decision of The Yuri Maru and The Woron [14] requires that the jurisdiction shall be treated as fixed as at the date of the Colonial Courts of Admiralty Act ", namely 1890. His Honour had earlier, in Nagrint v. The "Regis" [15] considered in some detail the nature of the jurisdiction as at that date. Menzies J., in The Ship "Terukawa Maru" v. Co-operated Dried Fruit Sales Pty. Ltd. [16] spoke of the extent of jurisdiction of a colonial court of Admiralty as being measured by the extent of "the Admiralty jurisdiction of the High Court in England in 1890; i.e., (1) the jurisdiction which could have been exercised by the High Court of Admiralty before its incorporation into the High Court, and (2) any further Admiralty jurisdiction conferred upon the High Court by statute prior to 1890". That jurisdiction was, in relation to limitation suits, confined to that conferred by the legislation in force immediately prior to the passing of the Merchant Shipping Act of 1894. The matter is also discussed by Taylor J. in F. Kanematsu & Co. Ltd. v. The Ship "Shahzada" [17] and in Union Steamship Co. of New Zealand Ltd. v. Ferguson by Barwick C.J. [18] , Menzies J. [19] and Owen J. [20] .

1. [1927] A.C. 906. 2. (1939) 61 C.L.R. 688, at pp. 692 et seq. 3. (1972) 126 C.L.R. 170, at p. 173. 4. (1956) 96 C.L.R. 477, at p. 484. 5. (1969) 119 C.L.R., at p. 207. 6. (1969) 119 C.L.R., at p. 210. 7. (1969) 119 C.L.R., at p. 211.

This static jurisdiction of colonial courts of Admiralty has, in the case of limitation suits, never extended beyond the liability of shipowners for damage done to property afloat: it does not extend to claims for damages to a jetty.

As earlier noticed in connexion with question 1, until 1900 the class of cases in which limitation suits might be brought was confined to those in which the ship had caused damage to persons or property afloat: neither the Merchant Shipping Act, 1894 nor the corresponding provisions of earlier legislation extended further. Because the jurisdiction of colonial courts of Admiralty was fixed by reference to that of the English Admiralty jurisdiction in 1890, regardless of subsequent changes made to that jurisdiction, it was, and still is, concerned only with the limitation of liability where damage has been caused to persons or property afloat. Indeed, to the extent that the Merchant Shipping Act of 1894, while not extending to damage ashore, did somewhat enlarge the scope of English limitation suits, even that enlargement was not reflected in any extension of the jurisdiction of colonial courts of Admiralty, which remain as it had been in 1890.

However the Court's other source of jurisdiction in limitation suits, conferred upon it directly by s. 504 of the Merchant Shipping Act, was effectively extended in 1900 so as to include cases of injury to a jetty: it is still possessed by the Supreme Court. It is not federal jurisdiction but is jurisdiction directly conferred upon the Supreme Court by Imperial legislation.

With the static jurisdiction of colonial courts of Admiralty may be contrasted the quite distinct jurisdiction in limitation suits which is conferred directly upon the Supreme Court, as a "competent court" in a British possession, by s. 504 of the Merchant Shipping Act, 1894. In answering question 1 I have already stated why I regard the amending Act of 1900 as affecting not only s. 503 but also s. 504 of the 1894 Act: in doing so it thereby enlarged this "competent court" jurisdiction of the Supreme Court so as to extend that jurisdiction to include limitation suits where the shipowner's liability was for damage to property whether afloat or ashore. This extended jurisdiction the Supreme Court still exercises, but in its capacity as a "competent court" under the Merchant Shipping Acts and not as a colonial court of Admiralty: it is that jurisdiction which the present proceedings invoke. A number of the authorities in this Court to which I have already referred reflect this position. It was specifically noticed in the McIlwraith McEacharn Case by Starke J. He first described the jurisdiction of courts in relation to shipowners' liability as dependent wholly upon statute [21] :

The jurisdiction to entertain suits for the limitation of the liability of shipowners depends, therefore, in British possessions, upon the express grant of that authority in the Merchant Shipping Act to courts of competent jurisdiction. Having earlier referred to the legislation which preceded the Merchant Shipping Act of 1894, he then noted the special nature of the jurisdiction of colonial courts of Admiralty [22] , fixed as at 1890, four years before the enactment of the present Merchant Shipping Act, 1894, and described the outcome of all this as being that "the Supreme Court of New South Wales has jurisdiction in suits for the limitation of owner's liability both in virtue of the Merchant Shipping Act, 1894, s. 504, and its amendments so far as applicable (see for example, Act of 1898 (61 & 62 Vict. c. 14); Act of 1906 (6 Edw. VII, c. 48) and Act of 1900 (63 & 64 Vict. c. 32)), and the Colonial Courts of Admiralty Act 1890 [23] ." In his judgment in McIlwraith McEacharn [24] Dixon J. makes similar reference to these two distinct jurisdictions, conferred by Imperial law, to entertain limitation actions. For the purposes of the appeal in McIlwraith McEacharn [25] the distinction between these two jurisdictions did not possess the particular relevance it has in the present case, where only that conferred by the Merchant Shipping Acts can extend to damage to property which is not afloat. 1. (1945) 70 C.L.R., at p. 196. 2. (1945) 70 C.L.R., at p. 197. 3. (1945) 70 C.L.R., at p. 198. 4. (1945) 70 C.L.R., at pp. 207-209. 5. (1945) 70 C.L.R. 175.

When, in consequence of s. 39 (2) of the Judiciary Act 1903, the Supreme Court of South Australia was invested with extensive federal jurisdiction, including jurisdiction in any matter of "Admiralty and maritime jurisdiction" this did not, of itself, deprive it of its other existing jurisdictions in limitation suits.

By s. 39 (2) of the Judiciary Act 1903 "the several Courts of the States", were invested with federal jurisdiction in all matters in which original jurisdiction could be conferred upon the High Court, and this included "Admiralty and maritime jurisdiction" - Constitution, s. 76 (iii.). In the case of this particular jurisdiction there was no simultaneous divesting of State courts' previous jurisdiction on that subject matter. The divesting effect of the Judiciary Act was, by the terms of s. 39 (1), confined to "the jurisdiction of the High Court" and since, save for the period 1914-1939, federal "Admiralty and maritime jurisdiction" has not been part of that jurisdiction no corresponding divesting of State courts' jurisdiction has occurred. There was thus in 1903 an investing of State courts with new federal jurisdiction unaccompanied by any divesting of their old jurisdiction.

Whatever the precise content of the "Admiralty and maritime jurisdiction" conferred by s. 39 (2), it has left undisturbed the Supreme Court's pre-existing Imperial jurisdiction in limitation suits.

It is unnecessary for my purposes to determine the precise nature and extent of this federal "Admiralty and maritime" jurisdiction. It is a curious jurisdiction: conferred upon the High Court from 1914 until 1939, it is no longer available to it. Instead the High Court exercises Admiralty jurisdiction as a colonial court of Admiralty and it is now only State courts in which, despite its description as "federal", this jurisdiction resides. Its content has not been the subject of much authority. Discussed by Barton and Isaacs JJ. in Owners of S.S. Kaliba v. Wilson [26] and again by Isaacs J. in John Sharp & Sons Ltd. v. The "Katherine Mackall" [1] (cf. The King v. Turner; Ex parte Marine Board of Hobart [2] , per Higgins J.), its interaction with the pre-existing jurisdictions of State Supreme Courts as colonial courts of Admiralty and as "competent courts" under the Merchant Shipping Acts was considered for the first time in this Court by Dixon J. in the McIlwraith McEacharn Case [3] .

1. (1910) 11 C.L.R. 689, at pp. 703-704, 715. 2. (1924) 34 C.L.R. 420, at pp. 427-429. 3. (1927) 39 C.L.R. 411, at p. 448. 4. (1945) 70 C.L.R. 175.

His Honour's judgment in that case is the only one which considers the particular problems to which the possession by State Supreme Courts of this federal jurisdiction in matters of "Admiralty and maritime jurisdiction" gives rise. The question in that case was the competency of the appeal. It was said that if the Supreme Court's decree had been pronounced in its capacity as a colonial court of Admiralty no appeal lay to this Court. His Honour recognized as possible sources of the Supreme Court's jurisdiction to entertain the respondent's limitation suit the three alternatives already referred to, the Colonial Courts of Admiralty Act 1890, the Merchant Shipping Act 1894, as amended, and federal jurisdiction in matters of "Admiralty and maritime jurisdiction", conferred by s. 39 of the Judiciary Act. Doubting whether, despite the assumptions appearing in the record, the Supreme Court had been exercising jurisdiction as a colonial court of Admiralty [4] his Honour said that, even if it had been, the matter would also have been within its ordinary, as distinct from such Admiralty, jurisdiction, the latter being conferred upon it as a "competent court" for the purposes of the Merchant Shipping Act, 1894. No obstacle to the competency of the appeal would exist under this latter jurisdiction [6] but if, as the Victorian Supreme Court had recently held, the form which s. 39 (2) of the Judiciary Act then took precluded any intermediate appeal in federal jurisdiction, and if it was federal jurisdiction which was here in question, the intermediate appeal to the Full Court of the New South Wales Supreme Court, from whose decision the present appeal was brought, might have been incompetent. His Honour therefore turned [7] to examine this federal jurisdiction.

1. (1945) 70 C.L.R., at p. 210. 2. (1945) 70 C.L.R., at p. 209. 3. (1945) 70 C.L.R., at p. 210.

He concluded that s. 39 of the Judiciary Act could have no application to the Supreme Court's jurisdiction as a colonial court of Admiralty. He said [7] :

When s. 39 was passed, the Statute of Westminster 1931 Imp. had not been enacted, and, having regard, not only to the many inconveniences that would result, but also to the conflicts with the provisions of the Colonial Courts of Admiralty Act which would ensue from an attempt to make the jurisdiction thereunder of this Court exclusive of that of the Supreme Courts and then to invest them with Federal jurisdiction of the same character as would otherwise belong to them as Colonial Courts of Admiralty, I do not think that the general words of s. 39 should be interpreted as applying to the special case of the jurisdiction of Colonial Courts of Admiralty. Having disposed of this difficulty by this recourse to interpretation, his Honour also proffered another solution [7] : In any case, from the decision already cited, viz. Richelieu and Ontario Navigation Co. v. Owners of S.S. Cape Breton [8] , it follows that par. (a) of sub-s. (2) of s. 39 could not operate against s. 6 of the Colonial Courts of Admiralty Act. If, therefore, the cause falls within the jurisdiction conferred by the Colonial Courts of Admiralty Act, which in effect means if it is one which would have been brought within the jurisdiction of the High Court of Admiralty by s. 13 of the Admiralty Court Act 1861, then, in my opinion, it is not affected by s. 39 and the appeal to the Full Court was competent. 1. (1945) 70 C.L.R., at p. 210. 2. (1945) 70 C.L.R., at p. 210. 3. [1907] A.C. 112.

As I have said, his Honour had no need to concern himself with the Supreme Court's jurisdiction under the Merchant Shipping Act, which posed no problem to the competency of the appeal. But his Honour's mode of resolution of the particular problem with which he was concerned is precisely applicable, mutatis mutandis, to the present case and for the reasons which his Honour has stated, s. 39 is just as inapplicable to a State court's Merchant Shipping Act jurisdiction in limitation suits, as it is to its colonial court of Admiralty jurisdiction. Neither is affected by s. 39 of the Judiciary Act. The general words of s. 39 (1) did not render either of those jurisdictions, possessed as they were by the High Court in consequence of Imperial grant, exclusive of the State court's like jurisdiction, derived from the like Imperial source (even, I would interpolate, were s. 39 (1) understood as extending to jurisdiction of the High Court conferred not by the Constitution and the Judiciary Act but by Imperial Act); nor did the general words of s. 39 (2) invest State courts with those jurisdictions under the guise of federal jurisdiction. Likewise, even if the content of the truly federal jurisdiction in "Admiralty and maritime jurisdiction" (Constitution, s. 76 (iii.)) includes jurisdiction in respect of that creature of exclusively Imperial statutory origin, the limitation suit, a matter upon which I need express no view, s. 39 (2) did not invest that jurisdiction in State courts. I have had the advantage of reading the reasons for judgment prepared by my brother Aickin. I would adopt all that his Honour has said in the course of his detailed analysis of what lies behind the proposition appearing in the first of the two passages which I have quoted from the judgment of Dixon J. in the McIlwraith McEacharn Case [9] .

Accordingly, in the present limitation proceedings, the South Australian Supreme Court is exercising jurisdiction conferred by Imperial Statute and in that jurisdiction s. 64 plays no part. Hence question 3 is to be answered "No".

I should, before concluding, say something further concerning two cases already referred to. Asiatic Steam Navigation Co. Ltd. v. The Commonwealth [10] was a case to which jurisdictional issues quite different from those here in question applied. It concerned proceedings instituted in this Court and in which the Commonwealth was defendant. It clearly involved federal jurisdiction; as was said by the Chief Justice, McTiernan and Williams JJ. in their joint judgment [11] , the Commonwealth was there, as a result of ss. 76 (iii.) and 78 of the Constitution and ss. 56 and 64 of the Judiciary Act, "under a liability unlimited in amount as for tort" unless s. 503 of the Merchant Shipping Act or the principles it embodied were applicable, as was in fact held to be the case. In Bistricic v. Rokov [12] the defendant to the limitation proceedings, having been sued in the Common Law Division of the Supreme Court for damages - see report at first instance [13] - sought to have his liability limited by proceedings instituted in the Admiralty Division which, as I would understand it, relied exclusively upon the jurisdiction conferred by the Merchant Shipping Act 1894, as amended. Neither case is, I think, one which throws any light upon the issues raised by the present question 3.

1. (1956) 96 C.L.R. 397. 2. (1956) 96 C.L.R., at p. 416. 3. (1976) 135 C.L.R. 552. 4. [1974] 2 N.S.W.L.R. 143, at p. 144.

There remain only two observations to be made. First, because it is exclusively with jurisdiction under the Merchant Shipping Act that the Supreme Court is in these proceedings concerned it is unnecessary to say anything concerning the possible application to the present case of the reference to "the body of a county or other like part of a British possession" in s. 2 (4) of the Colonial Courts of Admiralty Act, as to which see in particular Union Steamship Co. of New Zealand Ltd. v. Ferguson [14] , per Windeyer J., at first instance and, in appeal, per Barwick C.J. [15] . Secondly, any consideration of limitation suits necessarily draws attention to the absence of any change in the limits, of £15 and of £8 per ton, specified as fixing limits to the liability of shipowners. Over eighty years have passed since these amounts were selected as appropriate and the policy to which they were then designed to give effect must have been distorted out of all recognition by intervening changes in the value of money.

1. (1969) 119 C.L.R., at pp. 200-201. 2. (1969) 119 C.L.R., at p. 208.

1. So far as concerns China Ocean Shipping Co., owner of the Wuzhou, "Yes"; in the case of its master, Li Zhong Yi, "No". No answer is given in relation to the agent, Patrick Operations Pty. Ltd.

The ship Wuzhou, its owner, the China Ocean Shipping Co., its master, and its agent are defendants to actions by the South Australian Minister of Marine for damages caused by the ship's collision with a wharf owned by the South Australian Government at Wallaroo in South Australia. The ship was engaged in Australia's commerce with overseas countries. The company, the master, and the agent instituted proceedings in the Supreme Court to limit their liability for damages, and questions in these proceedings have been removed to this Court.

All the proceedings in the South Australian Supreme Court are in its federal jurisdiction invested by s. 39 of the Judiciary Act 1903 Cth, as amended, read with ss. 76 and 77 of the Constitution. Section 76 (iii.) of the Constitution authorizes Parliament to confer original jurisdiction on the High Court in admiralty and maritime matters. Section 77 empowers Parliament to invest any State court with federal jurisdiction with respect to any matter mentioned in s. 76. Pursuant to this power, Parliament has invested State courts with federal jurisdiction in all matters in which the High Court could have original jurisdiction conferred upon it (with exceptions not material to this case; see s. 39 (2) of the Judiciary Act). Thus, the State courts have federal jurisdiction in admiralty and maritime matters. The facts disclose that both proceedings are admiralty or maritime matters (see Mersey Docks and Harbour Board v. Turner; S.S. "Zeta" [16] ; The "Veritas" [17] ).

1. [1893] A.C. 468. 2. [1901] P. 304, at 310-311.

The argument was advanced that s. 39 of the Judiciary Act was ultra vires to the extent that it purported to invest Supreme Courts with admiralty or maritime jurisdiction, because the constitutional power in ss. 76 (iii.) and 77 was subject to an implication that such investing could not be inconsistent with or repugnant to the Colonial Courts of Admiralty Act, 1890 Imp.; that, until the Statute of Westminster Adoption Act, 1942, Parliament could not confer admiralty or maritime jurisdiction on the High Court and, therefore, could not invest State courts with that jurisdiction; and that although it could have done so since the Statute of Westminster Adoption Act, it has not. A variant of this argument is that, even if the words in s. 39 (2) as presently enacted would invest jurisdiction in admiralty and maritime matters, they could not do so until the Statute of Westminster Adoption Act, and the same words should not now be construed differently. These arguments were supported by decisions on the Colonial Courts of Admiralty Act.

The Colonial Courts of Admiralty Act provides that "Every court of law in a British possession which has original unlimited civil jurisdiction shall be a court of Admiralty " and empowered local legislatures to confer upon inferior or subordinate courts in their possession part or limited admiralty jurisdiction. Section 4 of the Act required reservation of bills for the Queen. Section 6 gave a right of appeal to the Privy Council "after a decision on local appeal". The High Court has held that it was a colonial court of Admiralty (see John Sharp & Sons Ltd. v. The "Katherine Mackall" [18] ) and that there was a local appeal to it under the Act (see McIlwraith McEacharn Ltd. v. Shell Co. of Australia Ltd. [19] ). If this is correct, s. 6 (1) would give an appeal as of right from the High Court to the Privy Council. Such a right of appeal is inconsistent with the provision in Ch. V for appeals to the Privy Council only by special leave (see s. 74 of the Constitution). These decisions were in effect that the powers of the Australian Parliament were subject not merely to the Constitution but also to certain previous Acts of the United Kingdom extending to Australia, the Colonial Laws Validity Act, 1865 and, in particular, the Colonial Courts of Admiralty Act.

1. (1924) 34 C.L.R. 420. 2. (1945) 70 C.L.R. 175.

In this case, the Commonwealth, intervening, submitted that the Colonial Courts of Admiralty Act is obviously inconsistent with Ch. V of the Constitution and became inapplicable to Australia when the Constitution came into operation, or the plenary power in Ch. V (ss. 76 (iii.) and 77) would not be susceptible of exercise; and that the argument that the Colonial Laws Validity Act prevailed after the Commonwealth's inauguration so that the Colonial Courts of Admiralty Act made the High Court a colonial court of Admiralty and overrode the powers in ss. 76 and 77 of the Constitution made nonsense of the Constitution. I agree. The 1890 Act regulated an Imperial-colonial system, of which the Commonwealth of Australia ceased to be part on the enactment of the Commonwealth of Australia Constitution Act, whose provisions for admiralty and maritime jurisdiction are inconsistent with the provisions of the 1890 Act (see Ch. V of the Constitution). Even if the more general constitutional considerations were set aside, the decisions depended on the extraordinary proposition (opposed to generally accepted rules of interpretation) that an earlier Act, general in its terms (in that it applied throughout the Empire), prevailed over a later specific Act. In my opinion, the Colonial Laws Validity Act and the Colonial Courts of Admiralty Act ceased to operate in Australia on 1st January 1901 and the decisions to the contrary were errors.

The High Court's jurisdiction derives from the Constitution which invests it with judicial power of the Commonwealth (see s. 71). It has no judicial power derived from any other source; in particular, it is not invested with judicial power of the former British Empire by Acts such as the Colonial Courts of Admiralty Act. Even if the view were taken that the Colonial Courts of Admiralty Act did continue to operate in relation to State courts, it ceased to do so when those courts were invested with federal jurisdiction in admiralty and maritime matters. There is no room for parallel jurisdiction in the same courts (see Felton v. Mulligan [20] ).

The plaintiffs contend that they are entitled to limit their liability either directly, in terms of the Merchant Shipping Act 1894 Imp., or indirectly through s. 64 of the Judiciary Act which provides:

In any suit to which the Commonwealth or a State is a party, the rights of parties shall as nearly as possible be the same, as in a suit between subject and subject. They contend that the Merchant Shipping Act applies notwithstanding that the party claiming damages is "the Crown", either because the Act does not exempt the Crown from the limitation of damages provisions or because s. 64 operates to take away any such exemption. Section 64, although expressed generally, applies only to suits in federal jurisdiction, and this claim for damages and the limitation suit each invoke federal jurisdiction.

Assuming s. 64 applies to substantive rights (see Maguire v. Simpson [21] ), the question is whether the Merchant Shipping Act operates to define such rights. The Act contained detailed provisions regulating navigation and shipping generally throughout the British Empire and conferred legislative power to alter its provisions. In Robinson v. The Western Australian Museum [22] , I said:

Many provisions of the Merchant Shipping Act, 1894 if applicable would treat Australians and Australian Governments as subordinate to the United Kingdom Government. This Act was Imperial legislation regulating merchant shipping of the United Kingdom and its possessions in a unified Imperial-colonial system controlled from London. Australia is no longer part of that system The later Commonwealth of Australia Constitution Act provides that the Parliament shall have power, subject to the Constitution, to make laws with respect to various enumerated subjects (s. 51). The first is "trade and commerce with other countries, and among the States", and s. 98 provides: The power of the Parliament to make laws with respect to trade and commerce extends to navigation and shipping, and to railways the property of any State. 1. (1977) 139 C.L.R. 362. 2. (1977) 138 C.L.R., at pp. 343-344.

By the Navigation Act 1912, the Parliament asserted its power under ss. 51 (i.) and 98 of the Constitution to legislate in terms quite inconsistent with the terms of the Merchant Shipping Act. In 1923, The Union Steamship Co. of New Zealand Limited challenged that power (Union Steamship Co. of New Zealand Ltd. v. The Commonwealth [23] ). Higgins J. said of the Navigation Act: " Parliament meant to occupy the whole field of agreements made in Australia, intended that its Act and Regulations should form a complete scheme " The only ground advanced for invalidity of the Navigation Act was its inconsistency with the Merchant Shipping Act. The Commonwealth asserted that the Commonwealth of Australia Constitution Act gave power to the Commonwealth Parliament to enact legislation contrary to the provisions of the Merchant Shipping Act in respect of matters within ss. 51 (i.) and 98 of the Constitution; that the Commonwealth of Australia Constitution Act, as a later Act, operated "as a repeal pro tanto of the earlier Act"; and that the Colonial Laws Validity Act did not operate on legislation passed under the Constitution. The High Court rejected the Commonwealth Government's argument and declared the Navigation Act invalid. The Parliament and the Government asserted that the Commonwealth's legislative power was in the Parliament, subject only to the Constitution, and not subject to earlier United Kingdom legislation (the Colonial Laws Validity Act and the Merchant Shipping Act). Although s. 51 of the Constitution provides that "the Parliament shall, subject to this Constitution, have power to make laws" with respect to enumerated subjects, the High Court has in effect implied into s. 51 a further limitation that the power was "also subject to the Merchant Shipping Act 1894 "; Dixon C.J. later stated in Asiatic Steam Navigation Co. Ltd. v. The Commonwealth [25] : " Before the adoption of the Statute of Westminster by Act No. 56 of 1942 the Merchant Shipping Act, 1894 was not a law which in its application to Australia the Parliament of the Commonwealth could affect. Nor could that Parliament make a law inconsistent with it "

1. (1925) 36 C.L.R. 130. 2. (1956) 96 C.L.R., at p. 418.

In my opinion, the power over navigation and shipping is neither expressly nor impliedly qualified by being subject to some other United Kingdom Act. The rule that prior inconsistent legislation gives way applies here also. The correct approach was taken in The Commonwealth v. Limerick Steamship Co. Ltd. [26] where the Judiciary Act provisions were held to override the inconsistent provisions of two earlier Imperial Acts, the Australian Courts Act, 1828 and the Privy Council Appeal Act, 1844. A similar course was taken in The Commonwealth v. Kreglinger & Fernau Ltd. [27] .

1. (1924) 35 C.L.R. 69. 2. (1926) 37 C.L.R. 393.

In the Union Steamship Case [28] , the High Court undercut the assertions of national independence by the Parliament and Government. The constitutional relationship between the United Kingdom and Australia was, until 1901, one in which the United Kingdom exercised paramount force over the colonies in Australia and successfully asserted a right to legislate for them. The inauguration of the Commonwealth on 1st January 1901 profoundly changed this relationship. The former colonies ceased to be colonies and became States of the Commonwealth (see s. 5 and Ch. V of the Commonwealth of Australia Constitution Act; McIlwraith McEacharn [29] , per Dixon J.). The Commonwealth emerged as a new political entity with the status of a nation. It is incorrect to regard the "indissoluble Federal Commonwealth" as merely another colony formed by aggregation of the former colonies. I adhere to what I said in Bistricic v. Rokov [30] and Robinson v. Western Australian Museum [31] . In Baxter v. Commissioners of Taxation (N.S.W.) [32] , Griffith C.J. said:

The purpose of the Constitution was the creation of a new State, the Commonwealth, intended to take its place amongst the free nations, with all such attributes of sovereignty as were consistent with its being still "under the Crown". It is essential to the attribute of sovereignty of any Government that it shall not be interfered with by any external power. a grant of sovereign powers includes a grant of a right to disregard and treat as inoperative any attempt by any other authority to control their exercise. and [33] The King is the common head of the United Kingdom and of all the self-governing dominions, and the legislature of each of these dominions has, subject to its own Constitution, full autonomy. It seems strange that in this year 1907, when the world is resounding with praises of the system of the British Empire, which allows its different members to enjoy this freedom and independence, we should be asked to decide solemnly that the idea is an entire delusion. 1. (1925) 36 C.L.R. 130. 2. (1945) 70 C.L.R., at p. 202. 3. (1976) 135 C.L.R. 552. 4. (1977) 138 C.L.R. 283. 5. (1907) 4 C.L.R. 1087, at p. 1121. 6. (1907) 4 C.L.R., at p. 1126.

Although the Constitution was brought into being by the Commonwealth of Australia Constitution Act, it is not of the same order as United Kingdom Acts generally. It provides for the legislative, executive and judicial powers of the Commonwealth and of the States. It is capable of amendment by the procedure in s. 128 which involves the Australian people, without reference to the United Kingdom. Since 1901, it could have been amended expressly to exclude (or enable Parliament to exclude) the operation of any United Kingdom Act. This feature has been ignored in the conclusion that until 1942, or even later, the Commonwealth of Australia was a colony subject to the legislative supremacy of the United Kingdom Parliament. The fact that constitutional alteration enabled Australia (without reference to the United Kingdom) to exclude any doctrine of supremacy of United Kingdom law (as incorporated in the Colonial Laws Validity Act, 1865 Imp. or otherwise) shows that the Commonwealth had no colonial status and that the legislative supremacy of the United Kingdom Parliament over Australia had ended. In my opinion, since 1901 no Act of the Australian Parliament has been or could be invalid except for inconsistency with the Constitution. The view that the Colonial Laws Validity Act and various other Imperial Acts applied notwithstanding the Constitution logically requires reading into s. 128 a limitation that the section does not permit any constitutional alteration inconsistent with those Imperial Acts. This would make even more nonsense of the Constitution than decisions such as those on the Colonial Courts of Admiralty Act. The result of this thinking is that if there were no Statute of Westminster and Statute of Westminster Adoption Act, Australia would be doomed indefinitely to live in a constitutional strait-jacket in which Australians could not use their representative legislatures to make laws contrary to nineteenth century laws for the regulation of colonies, and that the High Court would forever be a colonial court of Admiralty and the Parliament would be unable to confer on it the jurisdiction in admiralty and maritime matters which the Constitution plainly authorizes it to do.

The idea that Australia's constitutional position is detached from the political realities is constitutional error (see Kreglinger & Fernau, per Isaacs J. [34] ). A fundamental change of a political nature may bring about a fundamental change in legal doctrine (see de Smith, Constitutional and Administrative Law, 3rd ed. (1977), p. 68). This Court, however, has almost consistently failed to give effect to the fundamental change which occurred in 1901. The divergence between the High Court's view (in cases like the Union Steamship Case [35] and Gramophone Co. Ltd. v. Leo Feist Inc. [36] ) and constitutional realities is highlighted by the Report of the Imperial Conference 1926 at which Australia was represented, which stated:

There is, however, one most important element in it which, from a strictly constitutional point of view, has now, as regards all vital matters, reached its full development - we refer to the group of self-governing communities composed of Great Britain and the Dominions. Their position and mutual relation may be readily defined. They are autonomous communities within the British Empire, equal in status, in no way subordinate one to another in any aspect of their domestic or external affairs, though united by a common allegiance to the Crown, and freely associated as members of the British Commonwealth of Nations. As former Prime Minister Hughes later insisted, the 1926 Conference did not raise the status of the Dominions because "equality with Britain had been for years firmly established". He cited the statements at the Imperial Conference of 1921 and the opening of the War Cabinet in 1919 showing that it was accepted then that the United Kingdom had no legislative supremacy over the Dominions (see Commonwealth Parliamentary Debates, vol. 172, pp. 1424-1430, on the Statute of Westminster Adoption Bill). Neither the Statute of Westminster nor the Adoption Act added to the status of Australia. The object of the Adoption Act was to deal with form, not substance, "to remove doubts as to the validity of certain Commonwealth legislation to obviate delays occurring during its passage and to effect certain stated purposes". The Adoption Act was regarded as "a practical necessity" in wartime because of decisions such as the Union Steamship Case [37] . These decisions make a mockery of the constitutional provisions vesting legislative power in the Commonwealth Parliament with respect to specific subjects, such as copyright, navigation and shipping, admiralty and maritime jurisdiction. The decisions that the Parliament could not legislate inconsistently with certain pre-1901 and, in some cases, post-1901 United Kingdom Acts meant that Parliament's legislative power was either non-existent or so restricted that it was useless on those subjects. These decisions contradict s. 1 of the Constitution which states that "the legislative power of the Commonwealth shall be vested in" the Parliament of the Commonwealth. The Court instead found the legislative power of the Commonwealth in the United Kingdom Parliament and, subject to that, in the Parliament of the Commonwealth. The role of the courts in taking such an approach to the Constitution is not consistent with the exercise of only the judicial power of the Commonwealth. It is rather an exercise of some purported additional imperial judicial power which enabled them to choose between laws of the Commonwealth made by Parliament under the Constitution and laws made by the United Kingdom Parliament, in such a way as to override the laws of the Commonwealth. In doing so, they treated Australia as inferior in status to the United Kingdom and subordinate to it. It is not easy to see how this was a duty or a right of those courts exercising only the judicial power of the Commonwealth under the Constitution. In another century, some English courts readily accepted the pretensions of the Stuart Kings; in this century, some Australian courts have just as readily accepted the United Kingdom Parliament's "divine right" to legislate for the Australian nation. 1. (1926) 37 C.L.R., at p. 412. 2. (1925) 36 C.L.R. 130. 3. (1929) 41 C.L.R. 1. 4. (1925) 36 C.L.R. 130.

Any inconvenience resulting from the cessation of operation in Australia of the Merchant Shipping Act on 1st January 1901 would have been transitional and minimal; it could have been overcome by legislation (even retrospectively); the States and the Commonwealth being free, in my opinion, to legislate in this area. Much more inconvenience has been caused by the acceptance of the idea that the Commonwealth Parliament was, until 1942, and the States even now are, incapable of legislating contrary to the Merchant Shipping Act. However, even if the view were taken that the Merchant Shipping Act continued to have effect in Australia after 1901, the Navigation Act put an end to its operation (at least in the field of navigation and shipping in overseas trade and commerce, with which we are concerned here). For these reasons, the Merchant Shipping Act is not applicable either directly or through s. 64 to enable limitation of damages.

1. Does s. 504 of the Merchant Shipping Act, 1894-1900 entitle the plaintiffs or any of them in any circumstances to make an application under that section relating to liability alleged to have been incurred by them or any of them in respect of the property referred to in par. 3 of the statement of claim (having in mind the nature and description of that property and disregarding for the purpose of this question its ownership)?

2. Does s. 503 of the Merchant Shipping Act, 1894-1900 apply of its own force to the Crown in right of the State of South Australia so as to entitle the plaintiffs or any of them in any circumstances to limit their liability to the defendant for damages?

3. If s. 503 does not so apply of its own force, does it apply by virtue of s. 64 of the Judiciary Act 1903-1976?

The material facts and the questions asked in this special case and the legal issues requiring consideration under each question are set out in the judgment of my brother Stephen and I need not repeat them.

The first issue under question 1 was raised by the proposition advanced by the Solicitor-General of South Australia that the Merchant Shipping Act, 1894 Imp. ("the 1894 Act") and the Merchant Shipping Act, 1900 Imp. ("the 1900 Act") have no application in South Australia, or indeed in Australia at all. He did not expressly state when it had ceased so to apply, but it was nonetheless clear that the contention was that they ceased to apply in Australia as from 1st January 1901, the date of the proclamation of the Commonwealth. This proposition is in my opinion in direct contradiction of both principle and authority. Both those aspects are fully examined in the reasons for judgment of my brother Stephen, which I have had the advantage of reading. I find myself in complete agreement with what he has said on this question.

My brother Stephen's reasons for judgment deal also with the 1900 Act and I agree with his reasons for concluding that it too is applicable in Australia.

The next issue is whether s. 1 of the 1900 Act applies to s. 503 as well as s. 504 of the 1894 Act, notwithstanding that it refers expressly only to s. 503. The reasons given by each of their Lordships in Mersey Docks and Harbour Board v. Hay [38] demonstrate that s. 1 must be taken to apply to both those sections of the 1894 Act. No sound reason was advanced for reaching a different conclusion from that of their Lordships. I also agree with the reasons given by my brother Stephen for rejecting other arguments advanced on this point.

The next question is whether the 1894 and 1900 Acts bind the Crown in right of the State of South Australia. The accepted test for determining whether an Act of Parliament binds the Crown, or operates so as to affect the Crown, is stated by the House of Lords in Province of Bombay v. Municipal Corporation of Bombay [39] and in the judgments in this Court in The Commonwealth v. Rhind [40] the material passages from which are quoted in other judgments. I am unable to discern from the general scheme of the 1894 Act an intention that the Act should operate so as to apply to the Crown. In the first place, the 1894 Act provides in s. 741:

This Act shall not, except where specially provided, apply to ships belonging to Her Majesty. The 1900 Act provides in s. 2 (3) that "s. 504 shall apply as if the words "owner of a British or foreign ship" included a harbour authority and conservancy authority, and the owner of a canal or of a dock". In s. 741 the expression "owner of a British or foreign ship" does not occur but nonetheless when Her Majesty is the owner of a ship the Act does not apply to it. It seems unlikely that the intention of the amendments made by s. 2 of the 1900 Act was to produce the result that the extended limitation should apply to the Crown and that the amendment of the procedural provisions of s. 504 should produce the result that the Crown, as the owner of a dock, could be made a defendant to a limitation action. 1. [1947] A.C. 58, at p. 61. 2. (1966) 119 C.L.R. 584.

No doubt it is correct to say that the provisions of s. 741 and the amendments made by s. 2 of the 1900 Act do not say in express terms that the Act does not apply to wharves and like installations which belong to Her Majesty. However the intention appears to me to be plain that the property of Her Majesty, whether floating or on-shore, stands outside the operation of both these Acts, not only because of the general principle that in the absence of express provision or necessary implication Acts of Parliament do not apply to the Crown, but also because of the express provisions to which I have referred, which certainly deny a necessary implication to the contrary.

I turn now to the question of the nature of the jurisdiction which the Supreme Court of South Australia would be exercising in the hearing of these limitation proceedings, as a preliminary to considering s. 64 of the Judiciary Act.

In McIlwraith McEacharn Ltd. v. Shell Co. of Australia Ltd. [41] Dixon J. said:

When s. 39 was passed, the Statute of Westminster 1931 Imp. had not been enacted, and, having regard not only to the many inconveniences that would result, but also to the conflicts with the provisions of the Colonial Courts of Admiralty Act which would ensue from an attempt to make the jurisdiction thereunder of this Court exclusive of that of the Supreme Courts and then to invest them with Federal jurisdiction of the same character as would otherwise belong to them as Colonial Courts of Admiralty, I do not think that the general words of s. 39 should be interpreted as applying to the special case of the jurisdiction of Colonial Courts of Admiralty. He did not however specify "the conflicts with the provisions of the Colonial Courts of Admiralty Act " to which he referred. I do not doubt that one of these conflicts arose out of the curious nature of the jurisdiction of the colonial courts of Admiralty. I say "curious" because it possessed two features which, whether by design or not, were incorporated in the nature of federal jurisdiction. Section 2 (4) of the Colonial Courts of Admiralty Act, 1890 is as follows: Where a Court in a British possession exercises in respect of matters arising outside the body of a county or other like part of a British possession any jurisdiction exerciseable under this Act, that jurisdiction shall be deemed to be exercised under this Act and not otherwise. 1. (1945) 70 C.L.R. 175, at p. 210.

That provision involves the notion of jurisdiction defined not merely be reference to the nature of the matters to be decided but also by reference to the legislative source of the power to decide and the words "and not otherwise" should make the jurisdiction "exclusive" of jurisdiction derived from any other source.

A situation in which each of two competing legislatures provide that jurisdiction conferred by it shall be "exclusive" in the same area would provide an unusually acute conflict. When s. 39 (2) of the Judiciary Act was introduced in 1903 it would have been natural and reasonable to treat its general words as not intended to displace, or duplicate so specialised and "exclusive" a jurisdiction as that conferred by the Colonial Courts of Admiralty Act.

In the Union Steamship Co. of New Zealand v. The Commonwealth [42] the Court held that the provisions of the Navigation Act 1912-1920 Cth with respect to engagement and discharge of seamen in relation to British shipping were inconsistent with the 1894 Act and therefore void to the extent of such "repugnancy" pursuant to s. 2 of the Colonial Laws Validity Act, 1865. That view was regarded as consistent with the decisions in The Commonwealth v. Limerick Steamship Co. Ltd. and The Commonwealth v. Kidman [43] and The Commonwealth v. Kreglinger & Fernau Ltd. and The Commonwealth v. Bardsley [44] because they were based upon the provisions of s. 74 of the Constitution and its pre-eminent place in the judiciary chapter of the Constitution. In the Union Steamship Co. Case [42] however the 1894 Act was regarded as establishing a system for the regulation of British shipping so as to operate in a uniform manner throughout what was then the Empire - see in particular the judgment of Isaacs J. [46] .

1. (1925) 36 C.L.R. 130. 2. (1924) 35 C.L.R. 69. 3. (1926) 37 C.L.R. 393. 4. (1925) 36 C.L.R. 130. 5. (1925) 36 C.L.R., at pp. 147-152.

Dixon J. did not so express his decision but he had already said in Ffrost v. Stevenson [47] :

It has always appeared to me that, once the conclusion was reached that Federal jurisdiction was validly conferred, then under s. 109 it was impossible to hold valid a State law conferring jurisdiction to do the same thing, whether subject to no appeal or subject to appeal in a different manner or to a different tribunal or tribunals, or otherwise producing different consequences. The other members of the Court in that case did not deal with that aspect of the matter. However the view then expressed by Dixon J. was approved by the majority of the Court in Felton v. Mulligan [48] as being the only acceptable manner for the determination of which jurisdiction a State court is exercising or has exercised in any particular case. 1. (1937) 58 C.L.R. 528, at p. 573. 2. (1971) 124 C.L.R. 367.

By treating the federal law as paramount and thus in effect conferring exclusive federal jurisdiction the problem raised but not satisfactorily solved in Lorenzo v. Carey [49] is avoided. On this view concurrent Imperial jurisdiction under the Colonial Courts of Admiralty Act and federal jurisdiction conferred by s. 39 would produce a situation of two purported exclusive jurisdictions having some different incidents conferred by the respective Acts. At the date of the observations of Dixon J. quoted above (1945) the Commonwealth Act would have been regarded as invalid under the Colonial Laws Validity Act the Judiciary Act having been enacted prior to the adoption of the Statute of Westminster in 1942. The course prescribed by s. 15A of the Acts Interpretation Act 1903, as amended, would have been to read the Judiciary Act as not extending into that invalid area, but remaining otherwise valid and in force.

The observations of Dixon J. are expressed in a cryptic manner but what I have just said seems to me to underlie the proposition which he enunciates and to demonstrate the constitutional foundation which he must have had in mind.

As appears from the reasons of my brother Stephen we are not here dealing with jurisdiction conferred by the Colonial Courts of Admiralty Act, but with jurisdiction conferred by the 1894 Act on "competent courts" of British possessions, not expressed to be "exclusive". There are however features of the 1894 and 1900 Acts which have themselves a "special character". They have the character which enabled Isaacs J. to resolve the apparent inconsistency between the decisions in the Limerick Steamship Co. Case [50] on the one hand and the Union Steamship Co. Case [51] on the other hand as I have indicated above.

1. (1924) 35 C.L.R. 69. 2. (1925) 36 C.L.R. 130.

The jurisdiction conferred by ss. 503 and 504 of the 1894 Act, as amended by the 1900 Act, is not expressed to be exclusive so that the acute form of repugnancy arising under the Colonial Courts of Admiralty Act does not arise. However that jurisdiction is conferred by an Act which was held in the Union Steamship Co. Case [51] to prevail over the provisions of the Navigation Act. I am unable to see any satisfactory basis for distinguishing the present provisions of the Merchant Shipping Act from those in question in that case. It is true that a different system of appeal would be available under the Merchant Shipping Act from that which would be available in the case of jurisdiction conferred upon the State courts by s. 39 (2) of the Judiciary Act. That factor has been regarded as one of great importance but it did not operate to lead Dixon J. to a different conclusion from that which is expressed in the passage which I have quoted above. The distinctions which have been drawn in these cases are fine and are a continuing, but not frequent, cause of difficulty. Since the passing of the Statute of Westminster Adoption Act 1942 Cth they are of course readily solved by legislation. On the whole I have arrived at the conclusion that the view expressed by Dixon J. is equally applicable to the provisions of ss. 503 and 504 of the 1894 Act and that s. 39 (2) should not be construed as conferring federal jurisdiction on the State courts which extends to proceedings which depend upon those sections.

On that view no question arises as to the operation of s. 64 of the Judiciary Act.

For those reasons I would answer the questions in the same manner as that proposed by my brother Stephen.