Cuming Smith and Company Pty Ltd v Melbourne Harbour Trust Commissioners [1905] HCA 27

tors, for appellant, W. B. & O. McCutcheon, Melbourne. citor, for respondent, Guinness, Crown Solicitor for Vie-

Bs hD: [HIGH COURT OF AUSTRALIA.] iG SMITH & COMPANY PROPRIE-| ane eye of: APPELLANT: DEFENDANT, ; AND MELBOURNE HARBOUR iigaa Roane: COMMISSIONERS . oo ers 1905.

ON APPEAL FROM THE SUPREME COURT OF Metnournn, VICTORIA 3

Whary ts - . tie joods - Dctension of Griffith C.J. rfage rates on goods - Exception of named yi of Cabs

ug of name - '* Guano" - Phosphatized Rock - Burden of proof - What o'Connor JJ.

Where by an Act of Parliament a wharfage rate is imposed on all except those described by names, coming from abroad and landed at a and, in an action to recover the rate on certain goods, it is alleged by t fendant that they come within the exception, the burden of proving th allegation is upon the defendant.

If the particular name has a well known original meaning, and thi dant wishes to prove that that meaning has been extended so as to i the goods upon which the rate is sought to be recovered, he must prove t before the Act was passed, goods of that kind had been imported, that per knowing the nature of those goods had called them by that name, and by their so doing, the goods had become commonly known by that name,

Held, therefore, in the absence of such proof, that limestone rock phatized by contact with the droppings of birds, is not " guano" within meaning of sec. 110 of the Melbourne Harbour Trust Act 1890.

The words " goods not otherwise enumerated" in the Seventh Sched that Act mean 'goods not otherwise enumerated in any other of the of articles contained in the Schedule," and are not confined to ejusdem generis with those goods the names of which they follow.

Under sec. 110 of that Act and the Seventh Schedule to it, the rate ch

alteration in the rate on that particular item is made by the Commis

• Sec. 110 of the Melbourne Har- bour Trust Act 1890 is as follows : -

"110, It shall be lawful for the Commissioners to demand collect and receive in respect of all goods mer- chandise and things whatsoever ex- cept goods belonging to Her Majesty's Government passengers' Inggage guano bones bone-dust and live stock and goods arriving coastwise from any place within Victoria landed from any vessel at any wharf dock pier jetty landing stage slip or plat- form within the port the tolls and rates to be from time to time deter- mined by regulation under this Act; 'and until such regulation be made the tolls and rates to be demanded collected and received shall be the wharfage rates contained in the Seventh Schedule co this Act," &c.

"Liquids in bulk - s. a. Tun or butt each 3 0 Pipe or puncheon Reet ii

Hogshead Barrel or quarter-cask Octave keg drum tin jar or other small single pack- age " Other goods - Case crate cask bale box bundle trunk bag keg firkin or package measur-

Steam boilers millstones chains machinery railway pig iron cordage oakum flax or other fibrous mi carriages furniture and goods not otherwise enumerated, &e., &e. per ton

} action was brought in the Supreme Court of Victoria by Melbourne Harbour Trust Commissioners against Cuming & Company Proprietary Limited, claiming £300 for e rates at 3s. per ton on 2,000 tons of rock phosphate din Melbourne in May, 1901, ex "Emma." On a summons irections it was ordered that the parties should proceed to ial of the questions agreed upon between them, viz.: - (1) Are goods referred to in the endorsement on the writ of summons "guano" within the meaning of sec. 110 of the Melbourne wbour Trust Act 1890? (2) Are the plaintiffs entitled to and, if so, to what sum for wharfage rates upon the said

At the hearing of the action before Hood J. it was proved that ations were made by the Melbourne Harbour Trust Com- mers in 1900 providing that : - « The tolls, rates and charges opposite the items undermentioned shall be payable in respect he several matters to which the same refer, and shall not be eu of any wharfage rate or toll if any for the same matters ively prescribed by the Act, viz." Then followed a list of ns and rates thereon varying considerably from those in the th Schedule to the Act, and not containing any rate for is not otherwise enumerated." Evidence was given as to composition and history of the material sought to be charged the rate, and as to the commercial meaning of " guano." nature of that evidence is sufficiently indicated in the judg- nt hereunder.

e learned Judge found that "guano" was originally the ne given only to the accumulated excrement of sea birds found e dry climate of Peru, and rich in phosphoric acid and en; that the meaning of the word had become extended so to include bird excreta from which substantially all the en had been washed, but not so as to include a substance ch had originally been coral but which had been phosphatized by contact with bird excreta; and that the substance in respect if which the rates were claimed was phosphatized coral and not

excreta. He also held that the Seventh Schedule to the Act as operative except as to any particular item specifically altered

by the regulations of 1900. He therefore gave judgment c plaintiffs for £300 with costs.

On appeal to the Full Court [Holroyd, a Beckett and 1 JJ.] this judgment was affirmed. As to the meaning of s¢ of the Melbourne Harbour Trust Act 1890, and of the Se Schedule thereto, Holroyd J. said : - " In order to make any s¢ of the Seventh Schedule to the Melbourne Harbour Trust 1890, I am driven to construe the words 'not otherwise enm ated' as meaning not enumerated in any other of the grou articles contained in the said Schedule, there being a diff amount of rate assigned to each of such groups; and I therefore with the other members of the Court that the ra the items in the Seventh Schedule are to be charged Commissioners deal with those rates respectively, and t alteration in the amount to be charged upon any one or n items would not affect the rate upon any other item unalte the regulations."

Coldham and Cussen, for the appellant. For the purpos ; this appeal, it is admitted that the material in question here h been brought into existence by the phosphatization of coralli rock brought about by the chemical action of bird droppin upon that rock. The first question is, was this material eo mercially known as guano when the Melbourne Harbour Tr Act was passed? That depends on the proper inferences to drawn from the evidence, and as the truthfulness of the wi is not impeached, this Court is in as good a position to draw inferences as the Judge of first instance, and should draw ther Montgomerie & Co. v. Wallace-James (1). This first que i turns on the history of the cargoes of material which imported into Victoria prior to the present importation, and admitted to be "guano." No finding was made by Hood J.

meaning of " guano" is contrary to the evidence. Them or trade meaning is that which should be adopted: (1) (1904) A.C., 73, at p. 74.

e (1); Lord Provost and Magistrates of Glasgow v. Farie 'The extent to which the trade meaning departs from the ar or ordinary meaning affects merely the difficulty of proof othing else. The question whether any particular cargo of which is different from that which has come in before, red by the trade meaning, depends upon the amount of ce and what the trade is. Here the difference alleged by spondents is immaterial, and the theory on which it is unintelligible to merchants. The difference, if it exists, nly be proved by a microscopic examination by an expert and by reference to a theory of geologists. Such an ent cannot enter into the trade meaning of a word. If, asa sr of construction, the trade meaning is to be adopted, it will e qualitied by the popular or scientific meaning. Hood J. not found what is the trade meaning of "guano." That e meaning does not involve the fact, or the knowledge the fact, that the material was composed either wholly or ly of the residue of bird excreta, or the result of the deposit bird excreta, but it only involves the belief in that fact. evidence shows that in 1890 the trade meaning of " guano" erial arriving in bulk from overseas containing a certain ntage of phosphates, whether with or without nitrogen, her in blocks or in powder, at all events if such material from the guano islands of the Pacific. Hood J. adds to t meaning the words "and not being the result of the ituents of bird excreta permeating the subjacent rock." snot destructive of this argument that merchants believe the il to be the residue or the result of bird exereta. That i involves a chemical test, but not a geological test to h no certain answer could be given. Assuming that there dence to support that trade meaning of "guano," there 10 evidence which displaces that meaning. There is no sub- jal reason for differentiating between the residue and the ult of bird excreta. Hood J. bases his finding as to the exten- of the meaning on the fact that there was no conscious ion of that meaning to include the result of bird excreta. is immaterial because the knowledge that the material was

the result and not the residue of bird exereta is not in the trade meaning. The use of the words " bones and bone «

view that material which can be used for manure, whether g 0 or unground, is included in the word " guano." Words of exe tion in a taxing Act should be given a liberal construe

Armytage v. Wilkinson (1); Commissioner of Rwilwa 7 Hyland (2). The Seventh Schedule is not clear or ummamb The words "goods not otherwise enumerated" should be it preted ejusdem generis with "steam boilers, millstones" That might leave a large number of goods free from wharf rates, but the Commissioners have power to make other reg tions. [They also referred to Casher v. Holmes (3).

Duffy K.C., Mitchell K.C. and Bevan, for the respondents, not called on.

GrirrirH C.J. This case has been very fully argued, and |

at which we ought to arrive. The question is whether material in question which formed the cargo of the ship " is "guano" within the meaning of see. 110 of the Melbown Harbor Trust Act 1890. It is conceded that the question for t Court is, whether at the time when that Act was passed, material had acquired the name of " guano" in such a sense ge raat must be understood to have included it in oo "guano" in the exception to sec. 110. ' There was a great deal of evidence which was very fully d cussed before us. For my own part I should be contente rest upon the conclusions of fact at which Hood J., the J of first instance, arrived, and the reasons he gave for arri at those conclusions, and also upon the reasons given by Holi ; J. on the appeal to the Full Court. But, as the matter wasa so fully, it is perhaps more satisfactory to the parties to conclusions which appear to follow from the evidence taken whole. .

(1) 3 App. Cas., 355. (2) 56 L.J.P.C., 76. (3) 2B. & Ad., 592. :

admitted, and is common ground to both parties, that ano" is a term which was originally applied to deposits of rd droppings generally found on islands, sometimes in caves. roppings in the course of many years, centuries, or perhaps ands or millions of years, have in many instances become con- d, and on casual observation would appear to be a mineral. said that in some cases it is necessary to adopt blasting in er to get the material out. But the original sense in which the "guano" was used was bird droppings either in an uncon- ited form or in a consolidated form as the result of rain falling on them for a long period of time. The way in which Hood J.

birds whether leached or not." The question then is primd ie whether the material in question comes within that definition. e defendants allege that in Victoria before 1890 the word

le to the substance consisting of bird droppings lying upon face of the ground, but had been extended to everything

were generally made upon coral islands in the Pacific. yone who has seen coral reefs knows that the surface is usually y uneven, and that there are often great depressions. In the se of time these vast deposits of bird droppings appear to covered the coral and filled the depressions until the whole e was level, much as the desert sandstone often covered tracts of country filling up the inequalities to one level. material has been then acted upon by rain which has idated portion of it and washed the rest away. That 8 to be the ordinary way in which these deposits have been It appears that there are several islands in the Pacific ean and the neighbouring seas from which this guano has been ed into Victoria for many years. Particular evidence was as to two of them, Maldon Island and Ocean Island, and graphs were produced of the latter island. On that island deposit is some feet in thickness, and in the course of working

• Maldon Island we have the evidence of two witnesses who hi been there. One of them says that the depth of the depo from 2 to 6 feet, and that there are pockets which are very di some going below the level of the sea. The other witness gi similar evidence. :

Hood J. was of opinion that the commercial use of the "guano" had been extended to cover these deposits, altho they had been consolidated so as to be hardly distinguishable fi rock, and a good deal of evidence was given to show that it known as rock phosphate. In the present case the defe endeavoured first to prove that the material in question of deposits of this sort, or, that if it did not, the term "g had been extended so as to cover other material of the chemical constitution. The first point is not in question b this Court, nor was it before the Full Court, because it is fo admitted that the material in question was phosphatic rock, v was explained by Mr. Coldham to mean coralline rock ph tized by overlying bird deposits. It appears that in stances when guano properly so called has been lying for a lon, time upon coralline rock, the element of phosphorus in the has in some way passed down to and come into chemical nation with the element of lime in the coralline rock fo phosphate of lime. The question is whether the coral so ch in consequence of contact with the guano lying above it

the phosphate of lime in the guano, is guano. Tt appears to me upon that question the onus is upon i parties alleging it. We start with the proposition that "guano" means the di of bird droppings. It is said that in Melbourne guano

contact with bird droppings, or, as Mr. Cussen put it, " arriving in bulk from overseas, containing a certain of phosphates whether with or without nitrogen or whe

guano islands of the Pacitic." The onus is upon the de How is it discharged? In order to discharge it, it appears the defendant must establish three things: first, that before I

rsons knowing the nature of that material called it guano ; irdly, that by their so doing the material had become nmonly known as guano. Iam bound to say that taking the of the evidence for the defendant, I do not find any

which this material came, has only been used for a short as a place from which phosphates have been obtained. e cargoes have arrived in Melbourne within the last two That island is said to be of a singular character in that posits of guano have gone, and that nothing is left but the lying coralline rock upon which the deposit had rested. On n and Ocean Islands the deposit still remains. But if any of this sort had been introduced into Victoria before 0, and had been mistaken by some persons for guano - as it have been - that would only prove that these persons it something was guano which was not guano, and, without ending to mislead others, had called it guano. That seems to very different thing from saying that guano, instead of aning the residue of bird droppings, had come to inelude rock sphatized by bird droppings. Shortly, the evidence on this point was that of two persons in the importation of this material, who used the word out reference to origin, because for their purposes it made no erence where the material came from. All they were concerned h was the chemical constituents of the material. So long as it tained 80 per cent. of phosphates they were satisfied. So that point also it appears that the defendant failed. There was ence from which the Court could come to the conclusion

that term'is generally accepted, or in the wider sense to ch it had become extended, cannot be brought into Melbourne

al of that kind had been imported into Victoria; secondly, H. ©. or A.

H.C. oF A. tion of the language of the Schedule itself, that is by hol

1905. it is not within the words " goods not otherwise enume

Cuma because it is not ejusdem generis with the things

Sure Co. immediatel ly before. Upon that point I agree with the

MELBOURNE pee 4 Harpour For these reasons I am of opinion that the appeal fails. ae Even if the evidence had not been so clear as I th

Grimith C.J. ponderance of evidence in the appellant's favour to indue reverse a judgment of the Full Court in which they supported the judgment of the Judge of first instance question of fact. For these reasons the appeal will be dismis

Barton J. Iam entirely of the same opinion. O'Coxnor J. Tam also of the same opinion. Appeal dismissed with costs.

Solicitors, for appellant, Braham & Pirani. Solicitors, for respondents, Mulleson, England & Stewart. -

CROWLEY . 7 ; ; ' . APPELLANT; DEFENDANT, AND GLISSAN.. , ' 5 4 . Respondent (No PLAINTIFF, ; H.C. or A. ON APPEAL FROM THE SUPREME COURT OF 1905. NEW SOUTH WALES.

Sypyey, 4¢tion for malicious prosecution - Onus on plaintiff - Absence of

Sept. 4, 5, 6, probable cause - Lvidence of plaintiff not inconsistent with reasonable

Tab guilt - Nonsuit. Libel - Criminal offence - Defence of truth and publication for public be Gritmeh OJ. and manner of publication to be considered - Motive of libeller it

O'Connor JJ. Defamation Act (N.S.W.) (No, 22 of 1902), secs. 12 and 13.