Duncan v Theodore [1917] HCA 38

High Court of Australia|1917-07-01|Before: Barton J, Isaacs J, Gavan Durry J

it is not sufficient that there should be an invitation to othe oppose recruiting as a means of obtaining soldiers. A person ¥ seconds a resolution does not necessarily adopt it as his own. 1 defendant Pearce did not, by putting the resolution, make the s ment contained in it. He thereby expressed no opinion of his o [Counsel was stopped on this point.]

J. R. Macfarlan (Mann with him), for the respondent. resolution or statement which formally invites a body of perso set forth their opinion that others should be called upon to reff from assisting, or to cease to assist, recruiting, is likely to prej recruiting within the regulation. A person who seconds a resoluti expresses his own opinion as much as does the mover. The m of the statement in the resolution was an illegal act, and Pearce | putting the resolution to the meeting invited them to say one way o1 the other whether they approved of the statement. Without | action the statement as coming from the meeting could not been made. He aided and abetted in the making of the statem: and was therefore guilty of the offence of making it.

e resolution. He invited the meeting, as he was bound to do, their affirmance or negation of that view. It was no concern as chairman, whether they affirmed or denied it, and he does ; to have voted. They happened to affirm it, and it is d now that because the affirmance was illegal he in putting olution to the meeting did an illegal act. Even if the affirm- of the resolution was an illegal act, I do not think that the chair- an was in the relevant sense a party to making it. I do not think labour this point. Beyond what I have stated, no evidence , and there was no suggestion, that Pearce gave his assent

a statement is absolutely repeated in words or whether it with it is merely expressed by word of mouth is in common and, I think, in law, absolutely the same thing. To have by seconding, a resolution that the Political Labour should call upon all Labour Members of Parliament to refuse st in recruiting, is to become a party to it in the sense of g verbally his approval of it. He makes the statement his 'The question then is whether that is a statement likely to ive recruiting. I think it is, and on the ground that, this a meeting of delegates of the Labour Party, before whom nably the question came within some rule which made it in

he expression of the opinion that the Political Labour Council 1 call upon all Labour Members of Parliament to refuse to assist @ was intended to influence someone. It was intended e the Political Labour Council, and through them Members liament. If they or some of them were not assisting or were to assist in recruiting, the resolution would be entirely . We cannot consider the resolution as being anything else ent whose meaning was that if there were persons who g or were disposed to assist recruiting they must abandon

H.C. or A. that attitude, and must refuse to assist or to further assist re

ue ing. That being the purport of the resolution, it seems to be un

Prarce arguable that the statement was not likely to prejudice recruit

swmra That is the short ground upon which I decide. I think, theret

ae that Pearce is not shown to have made this statement, and Smith has been shown to have done so.

The remaining question is as to the reception of evidence. what has been brought before us I do not think that the Magistrate relied upon the evidence objected to in coming to conclusion, and, therefore, that evidence does not affect the as they come before us, so as to invalidate a conviction found the evidence, which evidence was sufficient.

I am of opinion that the appeal of Pearce succeeds, and Smith fails.

Isaacs J. 1 agree. Gavan Durry J. I agree. Smith's appeal dismissed with costs.

Pearce's appeal allowed. Order appealed discharged with costs, £4 4s. Respo pay costs of appeal.

Solicitors for the appellants, Loughrey & Douglas. Solicitor for the respondent, Gordon H. Castie, Crown Solicitor f the Commonwealth.

; SPIN AND ANOTHER +0 y0+.»| » . RESPONDENTS. DEFENDANTS,

_ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

-Formation - Written memorandum - Evidence of omitted .term - Con- H. C. or A.

tion - Sale of f.a.q. wheat - W heat grown in particular State - Performance - 1917.

Yy ility - Acquisition of wheat by State - Wheat Acquisition Act 1914 = - - W.) (No. 27 of 1914), secs, 3, 7, 8. SypNEy,

Aug. 27, 28, Where a document is prepared and executed with the intention that it 29 ; Sept. 6.

be the record of a contract, prior negotiations are inadmissible for the Barton,

e of qualifying the contract expressed in the document. 'Geena Rich JJ.

"Therefore, where a contract was evidenced by the bought and sold notes ed by the broker who brought about the sale, which note described y the quantity and quality of certain wheat together with the season

15,000 bags wheat f.a.q. of season 1914-15 ."? Delivery was to be made on trucks at e, Melbourne or Sydney, " at seller's option," and 5,000 bags were to be in each of the first three months of 1915. The defendants elected to t Sydney. On 24th December 1914 the Government of New South pursuant to the Wheat Acquisition Act 1914 (N.S.W.), which had come ration on 11th December 1914, acquired all wheat in New South Wales

excluding wheat then actually in transit to other States of the Commony and thereafter the authority controlling the wheat so acquired would to grain merchants.

Held, that on the defendants' election to deliver at Sydney they were b to deliver wheat grown in New South Wales in the season 1914-1915 wl was of fair average quality of that season according to the standard in South Wales for that season.

Held, also, that in the absence of evidence that it was impossible for defendants to obtain wheat of the specified kind then in, or in course of trans to, other States sufficient in quantity to satisfy the contract, the defer were not excused from performing the contract, even if the aequisition by Government would have afforded an excuse upon such evidence. &

Decision of the Supreme Court of New South Wales: Gelling v. C1 16 S.R. (N.S.W.), 558, reversed.

An action was brought in the Supreme Court by Christop James Gelling against Godwin George Crespin and George Henry Claude Crespin, trading as grain merchants under the firm nam G. G. Crespin & Sons, for non-delivery of certain wheat pursi to a contract of sale and purchase made between the defendant and Gelling & Sons Ltd., a company registered in New South Wales

who, with the consent of the parties, discharged the jury and hearing evidence formally entered judgment for the plaintiff | £3,328 2s. 6d., reserving all questions of law and fact for the Cor The defendants thereupon moved for a rule setting aside the verdict and ordering a nonsuit or entering a verdict for the defendant reducing the amount of the verdict. The Full Court made an or setting aside the verdict and ordering a verdict to be entered the defendants : Gelling v. Crespin (1).

From that decision the plaintiff now appealed to the High Cor

Knox K.C. (with him Delohery), for the appellant. No standing the election of the respondents to deliver in New So

Wales the contract does not require the respondents to sup

'wheat of a certain quality (see Azémar vy. Casella (1) ), and if it of that quality it does not matter where it is grown. If the et requires delivery of wheat grown in New South Wales,

it all the wheat in New South Wales on 24th December 1914 then in transit to other States became the property of the nment. The burden was on the respondents to show that could not have obtained sufficient New South Wales wheat nin, or in course of transit to, another State to satisfy the con- Apart from that, the acquisition by the Government did not der the contract impossible so as to excuse the respondents, for the Wheat Acquisition Act 1914 (N.S.W.) the Board appointed er the Act had power to sell wheat which had been acquired 7), and the fact that they would not sell to grain merchants t s no excuse to the respondents. The position is the same as wheat market had been cornered. [He referred to Wilson Ltd. v. Tennants (Lancashire) Ltd. (2); Bolckow, Vaughan ). Ltd. v. Compania Minera de Sierra Minera (3).) Even if spondents established that it was impossible for them to per- the contract they are not excused, because the contract was n the sale of specific goods (Brown v. Royal Insurance Co. (4) ; hipton, Anderson & Co. and Harrison Brothers & Co.'s Arbitra- ps Acs J. referred to Horlock v. Beal (6); EB. Hulton & Co. Ltd. ick & Taylor Ltd. (7). ibility is also not an excuse, because it arose from an act tate other than the State where the contract was made - that 'ia. In a contract of 'this kind it cannot be implied as a that if all the wheat gets into the hands of persons who sell it, the vendors are to be excused. The only condition will be implied is that if the contract becomes physically ossible, for example, if the whole wheat crop fails, the vendors CP., 431. (5) (1915) 3 K.B., 676.

grown in New South Wales. The contract requires delivery H. ©. oF A.

H.C. or A. are to be excused. Where the performance is rendered impo:

by the act of another State not directed to rendering contra that kind illegal but having the incidental effect of rendering formance of the contract impossible, the vendor is not excu: (Jacobs, Marcus & Co. v. Crédit Lyonnais (1) ; Barker v. Hod 4 (2); Spence v. Chodwick (3) ). [Counsel also referred to Zine Oc poration Ltd. v. Hirsch (4); Maine v. Lyons (5).]

Leverrier K.C. (with him Coghlan), for the respondents. [Coun was not called on to argue as to the construction of the conti It is not necessary that the respondents should show that p formance by them of the contract was absolutely impossible. is commercial impossibility which the respondents must (Horlock v. Beal (6) ), and it was sufficient to prove generally they were prevented from delivering by the action of the Go ment. It was in the contemplation of the parties that the whe should be procured in New South Wales ; that is shown by the pr vision that delivery is to be on trucks at Sydney, which impl that the wheat had come on the trucks from some part of New Sou Wales. Where the state of things which the parties contemp! at the time the contract was made is entirely altered by some evel which they did not contemplate, the contract is discharged (Ki y. Henry (7) ). The state of things contemplated by the parti was completely altered by the acquisition by the Government; it was a cutting off of the New South Wales supply. The burden w upon the appellant to show that the respondents could have sufficient wheat outside New South Wales to fulfil the contract. On the evidence, the subject matter of this contract was the whea bought by the respondents from Aitken, and the contract wa therefore for specific goods. The broker's note is not the contract but is only a memorandum of it. There was a concluded con' when the broker informed the respondents that Gelling & Sons had accepted their offer, and if one term of it is not set out in the note

(5) 15 C.LR., 671. 67. (6) (1916) 1 A.C., 486, at p. 499. ; 16LJ.QB., 313. (7) (1903) 2 K.B., 740.

8 (2) of the Wheat Acquisition Act 1914, it is not necessary wheat which is the subject of it should be absolutely limited eat which is the subject of another contract which is avoided sec. 8 (1), but it is sufficient if the parties look to wheat which

oN J. At the trial the plaintiff recovered a formal verdict £3,328 2s. Gd., all questions of law and fact being reserved for ipreme Court of this State, who set aside the verdict and da verdict for the defendants. The present appeal is against dgment.

following summary is from the judgment delivered by Street the Full Court, which consisted of the learned Chief Justice tate, and Street and Gordon JJ.: - '' On 30th July 1914 Walker & Co., a firm of grain brokers carrying on business is State and in Victoria, negotiated a sale, in Sydney, of 15,000 s of wheat from a firm named Aitken Brothers to the defendants. subject matter of the contract, and the price to be paid, were in the bought and sold notes in the following terms : - 0 bags wheat f.a.q. of season 1914-15 of State where delivery Three shillings and ten pence farthing per bushel on Adelaide, Melbourne, or Sydney, at sellers' option.' The yption as to the place of delivery was to be declared by Ist r 1914, and 5,000 bags were to be delivered in each of the ths of January, February and March 1915. On 17th 1914 Lindley Walker & Co., again acting as brokers, ed, in Victoria, a sale of a similar quantity of wheat from fendants to Gelling & Sons Ltd. The bought and sold notes 1 identical terms, except as to price, with those employed

CLR., 316, at p. 322. (2) 20 C.LR., 54, at pp. 96-97.

H.C. or A. on the purchase by the defendants from Aitken Brothers.

30th November 1914 Aitken Brothers notified the def that they proposed to deliver at Sydney under their contr:

notifying them of a similar election under their contract. Ni turns upon the circumstance that the latter notice was a two late." The price of the wheat sold by Gelling & Sons Ltd. to spondents was 4s. O}d. a bushel. On 11th December in the same year there came into ope the Wheat Acquisition Act 1914, which empowered the Goy to declare by notification published in the Gazette that any therein described or referred to was acquired by His Majesty, enacted that upon such publication the wheat should becom absolute and unencumbered property of His Majesty, and the rights and interests of every person in the wheat at the of the publication should be taken to be converted into a | for compensation. Pursuant to that authority on 24th De 1914 a notification was published acquiring all wheat then in South Wales other than wheat actually in transit to other of the Commonwealth. No wheat was delivered either by Brothers to the defendants, or by the defendants to Gelling & Ltd. Gelling & Sons Ltd. are now in liquidation, and the pl: is the assignee of their rights under their contract. The actio by the appellant is for non-delivery of the wheat sold to Gelli Sons Ltd. by the respondents, whereby the purchasers were dep: of the profit which would otherwise have accrued to them. The first plea was withdrawn during the argument before 'TMe second plea had already been abandoned. The pleas rem to be considered are the third and fourth. The third was t] contract was one with respect to wheat which was the subject of a certain other contract made in the State of New South W prior to the passing of the Wheat Acquisition Act for the sal New South Wales 1914-15 wheat to be delivered in that that the last-mentioned contract had not at the date of the

that this plea, which relies on sec. 8 (2) of the Wheat Acquisi- Act, is sustained. Both the contracts were probably made in ia, and therefore escape the provisions of sec. 8. However w be, I think the respondents have failed, as J shall presently

eady mentioned, which acquired all wheat in the State of jouth Wales other than wheat actually in transit on its io Australian States outside New South Wales; that the the subject matter of the contract, being wheat then in ith Wales and not at the date of the notification actually it, was compulsorily acquired under the Act and notifica- hereby the defendants were unable to deliver any of the

ll be seen that the respondents rely for this main part of their on two branches: first, that on their electing Sydney as e of delivery, the contract became one for the delivery of own in New South Wales, and next, that the compulsory ition of the wheat described in the Governor's notification ed it impossible for them to perform that contract.

e first branch I agree with the Full Court in thinking the contract must be read as if the wheat stipulated for were of season 1914-15, of the State of New South Wales," in that State. The reasons given by their Honors of Court for their opinion on this point are quite satis- o me, and I see no necessity for adding to them. With on of their Honors on the second branch, namely, the

tract been delivered at the said date or at all. I do not H.C. or A.

H. C. or A. question of impossibility, I find myself, with great respect, una

them to Gelling & Sons Ltd. was the specific wheat purchased Aitken Brothers has, I think, failed. It is true that the two cont

of wheat, to any specific parcel of such wheat. It must be estab in the first instance, if it is sought to prove that the two were ident that the grain sold by Aitken Brothers was some specific Aitken's sale, like that of the respondents, was in general and would be satisfied, as theirs would be, by the delivery of wheat grown in New South Wales which answered the deseri of f.a.q. wheat of the season 1914-15. It is fruitless, therefor to attempt to identify as something specific wheat sold by Aitken Brothers or the respondents in those general terms attempt was made to identify them by means of the letter brokers' manager to the respondents of 2nd February 1915, months after the contract now sued upon. This, if adm does not seem to me to carry the case any further. If it is sible, so also is the telegram sent by the brokers to Gelling & So1 Ltd. on 15th August, which the manager of Gelling & Sons Ltd admitted that he had seen. That was simply that " Crespin five thousand sacks each month January February and Sydney Melbourne or Adelaide, sellers' option declared De four shillings one farthing per bushel, advise you to accept the

tract hundred cash" (the letter clearly referred to Golding' tract because there was no such letter as to Crespin's offer) Crespin's line three States four shillings one farthing per bush better if possible." From these telegrams it is plain that & Sons Ltd. at the time of their acceptance had no knowle the Aitken transaction, and therefore could have no knowlec any assumed identity of Aitkens' parcel with Crespins'. point of law the contract created by the bought and sold notes

Pitts v. Beckett (1) was relied on. That went entirely

y. Macgregor (2) is in favour of the appellant rather than espondents.

must take the case, then, as resting on the bought and sold of 17th August, and upon these it is impossible to contend success that the contract sued on was for the sale of specific

e respondents, nevertheless, maintain that they have estab- the defence that they were exeused from their contract by sibility of delivery. It is not necessary to inquire whether ch a defence is maintainable where the article sold is not specific, it were maintainable it has not been proved. As has been

oviso which prevented it from operating on all wheat then in 'tate of New South Wales, because the proviso expressed that ration of acquisition should not extend to wheat then actually

have been sold by the Government after acquisition, had so chosen, and the fact that they refused to sell could not sh impossibility asa defence, any more than it would have

in the case of any other possessor of wheat not compulsorily d, who declined to sell. The respondents admitted that the ering" of the market by any private speculator would not given them a defence. The acquisition by the Government 'not appear to me to be of greater avail to them by reason of having been a compulsory purchase. But even supposing that ment's retention of its wheat had established any aod

or in transit to other States. The De takes say that as a limitation of the quantity of wheat available caused by

e question of the broker's authority to sign the contract sued Grria

is not at all applicable to the present case. The case of oxrcpr,

the notification the onus was shifted to Gelling & Sons Ltd., they would have to show that there was sufficient wheat in ¢ transit to other States to enable the sellers to satisfy their con Tam by no means of that opinion. Even supposing that the ment's acquisition could be held to establish a partial impossibili it was still for the respondents to show that their contract y impossible of performance because sufficient other wheat could be obtained, and this they have not shown. But they would hay to show it for the purpose of establishing what they call prac impossibility in relation to a mercantile contract, and the autho cited do not help them in the absence of evidence to bring this within them. I think it unnecessary either to canvass the num¢ cases cited or to discuss the evidence any further. I think that plaintiff should hold his verdict and that the appeal should be allo with costs.

Isaacs J. The first question to be determined is: What i: contract? The respondents say the contract includes a stipulation made, it is said, between the brokers' Melbourne mai and Wiseman, the respondents' Melbourne manager, in the co of negotiations. This is put intwo ways. First, that the bo and sold notes countersigned by the parties are no more than n randa of the verbal contract, and the verbal stipulation refe is omitted. Then it is urged that even if the countersigned di ments were intended as the reduction of the contract itself to writ it is open to the defendants to rely on the verbal stipulation rn to. There is no doubt of the materiality of the stipulation in q tion. It is directed to make the contract between the present dependent on a contract between Aitken and the respondents.

But the answers to the respondents' contention are these. countersigned documents, according to their own internal con and the evidence relating to them, were written and signed for purpose of reducing the agreement to writing. The bargain is written agreement. There is not, and, according to the New Wales procedure in such a case, there could not be, any cla rectification. The document being the agreed record of the cont

ire inadmissible for the purpose of qualifying it. Some of st important authorities are collected in Gordon v. Macgregor "The latest, and for us perhaps the most authoritative on the , is Yorkshire Insurance Co. v. Campbell (2).

next step is to construe the written contract. The first tant passage is the description of the wheat sold, namely thousand (15,000) bags wheat f.a.q. of season 1914-15 of te where delivery is made." The view taken by the Supreme as to this is clearly right. It means, when coupled with the iared option, that the wheat was to be wheat grown in New South n the-season 1914-15 and to be fair average quality according standard for New South Wales of that season. The appellant's jention that any wheat would do, so long as it was equal to fair quality of that season's New South Wales wheat, is an missible interpretation.

it the respondents went further, and contended that it must only wheat grown in New South Wales, but also wheat which ler was to procure in New South Wales. It was said this was wn by the fact that it was to be placed "on trucks Sydney," ence being that it was to reach Sydney from the country ofthe State. But certainly it could be procured in Sydney

as the contract was concerned ; and the strict answer is that

ase, so long as it complies with the description and they where prescribed. This eliminates the New South Wales n as a sufficient justification for failure to deliver, even

e proportionately to the opportunities of getting 15,000 of New South Wales wheat elsewhere, the deprivation of the unity within the State so altered the contemplated situation go to the root of the contract and relieve the sellers from

CLR, 316, at pp. 322-323. (2) (1917) A.C., 218, at p. 2

yuthorities are clear that it is conclusive and that prior nego- H- . or A.

liability to deliver. There was considerable discussion as to would constitute an impossibility sufficient to exonerate a from performance The case of Horlock v. Beale (1) contains se authoritative passages on this point. See per Lord df at pp. 496 et segqg; per Lord Shaw at pp. 512-513; and per Wrenbury at pp. 525 et seqg. The result of what is there may, I think, be stated in the following formula, which reco most if not all the cases of authority: Exoneration of a charged with a breach of contract all depends, not upon p external causes preventing the operation of the contract, upon the construction of the contract itself, The q always is this: Was the obligation which is said to have broken absolute, or was it conditional upon an event which failed? If upon its true construction - regard being had circumstances which legitimately enter into construction - contract is found by the appropriate tribunal to include a co dition express or implied that the parties must be taken to regarded as essential to performance by one or both of them, obligation is not absolute and the non-fulfilment of the conditi relieves any party for whose benefit it exists of his obligation o performance. 2

If the present contract itself on its true construction would | satisfied - as it would be - by delivery of wheat to be wholly pr cured entirely outside New South Wales so long as it complied 1 the stated description, it is.impossible to imply the suggested dition as one which the parties are to be taken to have regard essential to its performance by the sellers. The expectation by sellers that any particular source or sources would be availabl them may have operated as a material inducement to them to e

the Court construing the written contract must assume was as to by both parties. Another condition suggested was that the whe should be "commercially procurable" either inside. or 0 New South Wales. It is unnecessary to pronounce upon thi condition, because, taking it at its best for the respondents,

resolves itself into a pure question of fact upon the evidence his particular case.

clear from the evidence that what is termed " a fair quantity " ew South Wales wheat was at the time of the Proclamation in it beyond the State, and went out up to the beginning of 1915, that is, for about a week. The evidence says it went "small quantities" making up in all "a fair quantity," \but quite comparative, and when millions of bushels are in question fair quantity " may easily far,exceed 15,000 bags. The actual ity and quality of that wheat are left practically undetermined. The return which the Chairman of the Wheat Acquisition Board said he could easily give was not in evidence or accounted for. The answer Wiseman referred to in the judgment appealed from, which was ows: " The action of the Government in acquiring the whole he wheat in New South Wales prevented us from supplying wheat

dence, is manifestly confined to the wheat within New South actually taken by the Government. From his answers to ee preceding questions it is plain he based the answer relied on his view of the contract, that the wheat he had sold to

Tn that view his answer could be read as strictly accurate, but not. The question and answer following strengthen ion stated as to his meaning.

[ the result, the respondents have failed to adduce evidence to ntiate the " commercial impossibility" of procuring outside ith Wales wheat to satisfy the contract, that is assuming, but

'ppeal should, therefore, be allowed, and the judgment of J. restored.

onus of establishing its non-fulfilment. And so the whole - ©. or A.

H.C.or A. My learned brother Rich has authorized me to state that h

Gruumc - _ [Note. - Since delivering this judgment I have seen the Crveerx, Lennants (Lancashire) Ltd. v. C.8. Wilson & Co. Ltd. (1), deci

the House of Lords, to which case I refer on the questi

' Appeal allowed. Judgment appealed charged with costs. Judgment ent

Cowper. Solicitors for the respondents, C. A. Coghlan & Co.

: ats Gould v E ATTORNEY-GENERAL OF QUEENS- emf MPNOROTHERS |)... _f DeraNnanms. | HiGern

Law (Qd.)\ - Amendment of Constitution - Validity of Act - Act of H.C. or A. ament - Royal assent - Assent by Governor - Powers of Queensland Parlia- 1917. ill passed by Legislative Assembly and rejected by Legislative Council - sw on Bill - Validity of Referendum Act - Power to abolish Legislative BRIsBANE, Australian States Constitution Act 1907 (Imperial) (7 Edw. VII, Aug. 10, 13, ), sec. 1 - Colonial Laws Validity Act 1865 (Imperial) (28 «& 29 Vict. c. 63), 14 15- _ 5 - Order in Council (Imperial), 6th June 1859, cl. 22 - Constitution Act gown

i Sypyey, 307 (Qi.) (31 Vict. No. 38) - Constitution Act Amendment Act 1908 (Qd.) Sept. 6. Bdw. VII. No. 2) - Parliamentary Bills Referendum Act 1908 (Qd.) (8 Edw. . No. 16). Barton, Isaacs, F Gavan Duffy,

: " Powers and e Australian States Constitution Act 1907 (Imperial), by sec. 1 (1), provides Rich JJ.

alia) that it shall not be necessary to reserve, for the signification of His sty's pleasure thereon, any Bill passed by the legislature of any of the es if the Governor has previously received instructions from His Majesty and does assent accordingly to the Bill.

that the Constitution Act Amendment Act of 1908 (Qd.) is a valid and etive Act of Parliament, as the Governor of Queensland had, before assent-

Colonial Laws Validity Act 1865 (Imperial), in sec. 5, contains a pro-

sion that "every representative legislature shall, in respect to the colony der its jurisdiction, have, and be deemed at all times to have had, full

rm as may from time to time be required by any Act of Parliament, $ patent, Order in Council, or colonial law for the time being in force in

same two sessions been rejected by the Legislative Council, it mitted by referendum to the electors, and, if affirmed by them, sented to the Governor for His Majesty's assent, and upon receiving the Bill shall become an Act of Parliament in the same manner as if p

Held, that the Parliamentary Bills Referendum Act of 1908 was a effective Act of Parliament by virtue of the power conferred |

By an Imperial Order in Council dated 6th June 1859, empowering the nor of Queensland to make laws and to provide for the administratic tice in that colony, it was provided, by clause 22, that "the

the Colony of Queensland shall have full power and authority

Order in Council in the same manner as any other laws for the good gor ment of the Colony," &c. 4

Per Isaacs J.: Authority to pass the Parliamentary Bills Refere 1908 was also conferred upon the Parliament of Queensland by clause 22 the Order in Council.

SpecraL Case stated for the opinion of the Full Court of the Court. sl

By a writ issued on 12th April 1917 in the Supreme C Queensland by William Frederick Taylor, Bartley Fahey and Stephens against the Attorney-General of Queensland an James Gall, Richard Joseph Cole, William Bradshaw Henry Taylor Macfarlane and Frederick Bennett, the claimed declarations (inter alia) that the Constitution Act Ame Act of 1908 and the Parliamentary Bills Referendum Act were invalid, that the provisions of the Parliamentary Bills 1 dum Act of 1908 were not applicable to the provisions of Bill called A Bill to Amend the Constitution of Queensland by ing the Legislative Council, and that the provisions of that in contravention of the Constitution of the Commonwi

and of the Constitution of the State of Queensland, and ue of the provisions of the Commonwealth Electoral (War- ct 1917 any referendum or vote of the electors of the State nd on 5th May 1917 was prohibited and unlawful. They an injunction with respect to proceedirig or further g with the taking of a poll directed to be taken on 5th May er the Referendum Act of 1908 on the Bill above referred

ar writ was issued on 19th April 1917 by the above-named on behalf of themselves and all other members of the

ho, as well as the defendants named in the first-mentioned made defendants. _

by the plaintiffs for an injunction as prayed in the writs been referred, on 19th April 1917, to the Full Court of the ae Court of Queensland by Cooper ©.J., that Court granted an tory injunction in each case, on 28th April 1917, restraining ndants (other than the Attorney-General), their and each presiding officers, assistant presiding officers, servants and s and everyone of them from proceeding or further proceeding taking of the poll and from doing any act or thing for the of conducting, holding or taking the poll until after the trial n or until further order ; and the Court ordered the ques- costs to be reserved : Taylor v. Attorney-General (1).

m the orders of the Full Court of the Supreme Court the its, by special leave, appealed to the High Court, and on y the High Court ordered that "on the Attorney-General nd consenting that the question under sec. 14 of the alth Electoral (War-time) Act be raised in the case here- ntioned by the necessary amendments and that the ques- secs. 38a and 40a of the Judiciary Act (that is the

the action as originally indorsed on the said writ shall y the parties for the determination of the Full Court Court and the Attorney-General for Queensland

Ss TayLor v. ATTORNEY- GENERAL oF QUEENS- LAND.

undertaking that no steps be taken on the referendum until determination by the High Court of the said points and the Atto

plained of and all parties undertaking to take such steps as the may direct for the purpose of enabling all matters raised determined this appeal be allowed and the interlocutory injune be dissolved and the costs of the motion before the Supreme Cour of Queensland and of this appeal be costs of the action."

The special case, dated 21st July 1917, which was stated by parties for the opinion of the Full Court of the High Court und: in accordance with the above-mentioned order of 4th May, substantially as follows : -

The plaintiffs are and were at all material times Members 0 Legislative Council of Queensland, and are electors of and prope holders in the State of Queensland and electors of the Comm wealth of Australia.

The plaintiff William Frederick Taylor is Chairman of

such office is entitled under the Constitution Act Amendment 1896 to and is in receipt of a salary of £500 per annum.

The defendant William James Gall is the Under Secreti to the Home Secretary's Department of Queensland, and is returning officer appointed as hereinafter stated by the Gov in Council for the taking of the referendum poll directed to be under the Parliamentary Bills Referendum Act of 1908, and | defendants Richard Joseph Cole, William Bradshaw Hard Henry Taylor Macfarlane and Frederick Bennett are the assi returning officers appointed as hereinafter stated by the Gove in Council for the electoral districts of Brisbane, Fortitude Vs South Brisbane and Toowong, respectively, for the taking said referendum poll. The defendants Frank McDonnell and A James Jones are also Members of the said Legislative Council, : are the persons appointed by an order of his Honor the Chief Jus of Queensland to be joined as defendants on behalf of themsel

other persons having the same interest as themselves in this

e Act entitled the Constitution Act Amendment Act of 1908 and assented to by His Excellency the Governor on 3rd 908. The second reading of the said Act was passed in the islative Council on a division by 17 to 15 votes in a House con- of 44 members, as appears in the Journals of the House of 3, and the third reading of the said Act was passed in the said itive Council without division, as appears in the Journals of use of 1908, at which sitting of the said Legislative Council ers were present. The second reading of the said Act was in the Legislative Assembly without division, at which of the said Legislative Assembly 64 members were present, the third reading by 41 votes to 19 in a House consisting of ubers, as appears in the Journals of the House of 1908.

The said Act passed the second and third readings in the ive Assembly without division, at which sittings 63 members

Jn or about 19th November 1915 the Legislative Assembly of nd passed a Bill entitled A Bill to Amend the Constitution sland by Abolishing the Legislative Council. The second third readings of the said Bill were passed by 38 votes to 17 e and by 30 votes to 9 votes respectively in a House of 72 members, sin the Journals of the House of 1915.

0 n or about 8th December 1915 the said Bill was rejected by

or about 15th September 1916, in a House consisting of ers, the said Legislative Assembly again passed the second the said Bill by 35 votes to 15 votes, and on or about 19th

TayLor v. ATTORNEY- GENERAL oF QUEENS- LAND.

September 1916 the third reading without division, at whic! of the said Legislative Assembly 66 members were present, as ap in the Journals of the House of 1916. 8. On or about 15th November 1916 the said Legislative Coun again rejected the said Bill by 19 votes to 3, as appears in the Jou of the House of 1916. 9. On 3rd April 1917 His Excellency the Governor of Queens! with the advice of the Executive Council, made and issued a clamation directing that the said Bill should be submitted referendum of the electors under the provisions of the Parliament Bills Referendum Act of 1908. The Proclamation aforesaid published in the Government Gazette on 3rd April 1917. 10. On the said 3rd April 1917 His Excellency the Governor of Queensland, with the advice of the Executive Council, appoi the defendant William James Gall to be the returning officer for taking the said referendum poll (notification of which appoint men was published in the Government Gazette of 3rd April 1917), and writ under his hand commanded the said William James Gall take the said referendum poll on 5th May 1917 and to return t said writ not later than 6th August 1917. 11. On the said 3rd April 1917 His Excellency the Governor 0 Queensland, by and with the advice of the Executive Coune made and issued regulations under the Parliamentary Bills Refé dum Act of 1908 providing for the issue of the said writ and taking of the said referendum poll, which regulations have b published in the Government Gazette of 3rd April 1917. 12. On the said 3rd April 1917 His Excellency the Governor Queensland, with the advice of the Executive Council, appoin certain places to be the polling places at the said referendum in the electoral districts of Queensland, and directed the defendants Richard Joseph Cole, William Bradshaw Hardcastle, Henry Tay! Macfarlane and Frederick Bennett to be assistant returning offic for four of the said electoral districts, to wit, Brisbane, Fortitu Valley, South Brisbane and Toowong, respectively, notification which appointment was published in the Government Gazette of April 1917.

ie the Government Gazette of 3rd April 1917 the Home Secre- uursuance of the power in him vested by the Parliamentary eferendum Act of 1908, published a public notification con- g in the schedule thereto a copy of the Bill entitled A Bill to

the Constitution of Queensland by Abolishing the Legislative

12th April 1917 the plaintiffs on their own behalf issued a n the Supreme Court of Queensland against some of the defend- On 19th April 1917 a further writ was issued by the plain- aiming the same relief and adding certain defendants in a ntative capacity as Members of the Legislative Council.

j. On 19th April 1917 a motion for an injunction as prayed in | writs was made to his Honor the Chief Justice of Queens-

appeal from the orders of the Full Court of Queensland. 2nd, 3rd and 4th May the said appeal was heard before zh Court of Australia when an Ce (which is the order of

The said 5th May 1917 was appointed as a polling day for an 'of the Senate and for a general election of the House of

itatives, and an election for the Senate and a general

pie House of Representatives were duly held on the said

s the Constitution Act Amendment Act of 1908 a valid and

Is the Parliamentary Bills Referendum Act of 1908 a valid

) Is there power to abolish the Legislative Council of Queens-

' land by an Act passed in accordance with the provisions

(4) Was the referendum taken on 5th May 1917 a valid refer

(5) How and in what manner are the costs of the proceedi to be borne and paid?

Feez K.O, and Stumm K.C. (with them Fowles and Douglas), the plaintiffs. The Constitution of Queensland has been establish by the following Statutes: Australian Courts Act 1828 (9 Geo. c. 83) ; Australian Constitutions Act 1842 (5 & 6 Vict. c. 76), provi a government for New South Wales, and giving authority for establishment of new colonies in the territory comprised within Colony of New South Wales, with similar forms of government; the Australian Constitutions Act 1850 (13 & 14 Vict. c. 59), whi gave power to alter the constitution of the Legislative Coun

and Houses of representatives, 7.e., power to establish a bicai system of government. The bicameral system was introduced int New South Wales by 18 & 19 Vict. c. 54 (1855), secs. 3-7 and Schedi Under the provisions of this Act an Order in Council was made

for a Legislative Council and 1 Tegialative Assembly (Order in oa 7 6th June 1859, pars. 1, 2, 8, 14, 22). 4 The Constitution Act Amendment Act of 1908 was not reserved

Secs. 1 and 2 of the Queensland Constitution Act of 1867 (31 Viet. No. 38) have nct been altered or repealed. Before the Legislati Council could be abolished those sections would have to be amended so as to allow for its abolition.. The Imperial Parliament has that the Legislature of Queensland shall consist of a Legis Council and a Legislative Assembly. The Constitution Act of 18 is a consolidation (see preamble). Sec. 9 gives the only power to alter the Constitution. The Order in Council of 6th June 1859 is still the basis of the Constitution (Cooper v. Commissioner of Inco Tax (Qd.) (1)). The Constitution Act is merely a transfer of pow

e Parliament of Queensland which are only as wide as those yy the Order in Council, and the exercise of any wider powers e left to the Imperial Legislature. The power conferred is

ing what shall be the internal composition of both but no power is given to abolish either House (Attorney- for New South Wales v. Rennie (1) ).

cs J. referred to Australian States Constitution Act 1907, (2).]

e the power to abolish is intended to be given the word sh" is used as in clause 20 of the Order in Council. The e to the Order in Council provides for the establishment of ure in a manner " as nearly resembling the form of govern- nd legislature which should be at such time established in South Wales," 7.c., the bicameral system. This system is nly one provided for by 18 & 19 Vict. c. 54. Under the pro- of 18 & 19 Vict. c. 54 it was not intended that the Legislature

ion. Then further power was given by the Colonial Laws Act 1865, sec. 5. So far as the Legislative Council is con- the Queensland Parliament have exhausted their power under e Order in Council and the Colonial Laws Validity Act, by the of the Constitution Act of 1867. The Parliamentary Bills Act of 1908, which substitutes for the Legislative Council cases the vote of the people and the Legislative Assembly,

lonial Laws Validity Act does not give power to abolish itive Council; it may give power to take the power to but that power has not been taken.

wisions of sec. 14 of the Commonwealth Electoral (War-time) come within the defence power of the Commonwealth,

eae Tayror 2. ATTORNEY- GENERAL OF QUEENS- LAND.

and also within the power to regulate Federal elections (C wealth Constitution, sec. 51 (v1.) (Farey v. Burvett (1) ).

States Constitution Act 1907, sec. 1; Keith's Responsible Go in the Dominions, vol. 11., p. 998). In any event the Govern authorized by the Secretary of State for the Colonies to a the Bill (Australian States Constitution Act 1907, sec. 1, proviso

The Parliamentary Bills Referendum Act of 1908 is to be construed with and as an amendment of the Constitution 1867. This Act altered the Constitution in effect by provi a third body, the electorate, in certain cases. The power to p: Act was conferred by clause 22 of the Order in Council of 6th Jun 1859, or, if this is insufficient, by the Colonial Laws Valid 1865, sec. 5, which confers upon the Queensland Parliament power to make laws altering or repealing any part of the Order

Keith's Responsible Government in the Dominions, vol. 1, p. R. v. Burah (4); West Derby Union v. Metropolitan Life Assi Society (5); Powell v. Apollo Candle Co. (6) ).

The Constitution Act of 1867, by sec. 2, gives power to lk in all cases whatsoever, and includes, therefore, a power to amend Constitution (Dicey's Law of the Constitution, 8th ed., p. 101; Jenk British Rule and Jurisdiction beyond the Seas, p. 75). *

The provisions of sec. 14 of the Commonwealth Electoral ( War. Act 1917 (No. 8 of 1917) are not within the Commonwealth power or the power of regulating elections; and, even if ti its provisions are merely directory, and not mandatory, and fore do not avoid a referendum taken on the same day as the elections (see Montreal Street Railway Co. v. Normandin (7), title of the Act and sec. 2). By sec. 3 the Commonwealth Bi

(1) 21 C.LR., 433, at p. 442. (5) (1897) A.C., 647, at p. 655.

(2) (1907) A.C., 81; 4 C.L.R., 356. (6) 10 App. Cas., 282, at p.

(3) 4C.L.R., 1304, at p. 1314, (7) (1917) A.C., 179. (4) 3 App. Cas., 889, at p. 904.

) Act 1917 and the Commonwealth Electoral Act 1902-1911 read as one. (See Smith v. Oldham (1).)

C, and Stumm K.C., in reply. wing judgments were read : -

J. This special case was stated as in the original juris- n of this Court in consequence of its order made on the fourth 'May by consent of the parties to an appeal, who are the

e are five questions for the opinion of the Court : - (1) Is the on Act Amendment Act of 1908 a valid and effective Act of it? (2) Is the Parliamentary Bills Referendum Act of id and effective Act of Parliament? (The two Statutes are Acts of the Parliament of Queensland.) (3) Is there to abolish the Legislative Council of Queensland by an Act n accordance with the provisions of the Parliamentary Bills m Act of 1908? (4) Was the referendum taken on 5th 7 a valid referendum? (5) How and in what manner are its of the proceedings to be borne and paid ?

0 question No. | the position of the plaintifis rested on the that the Bill had not been reserved for the assent of His d that in view of the necessity for that assent the Bill tay Itin fact received the assent of the Governor of Queens- hich, it was contended, did not suffice to give it the form of appearing that the Governor had been authorized by y of State for the Colonies to assent to the Bill, counsel ntifis very properly withdrew the objection, and the @ question must be in the affirmative.

No. 2 I have had a great deal of doubt, but I have conclusion that in this instance also the answer must native. I was for some time much impressed by the conclusions of the Supreme Court of Queensland in

subject of the appeal already mentioned, and but for (1) bCLR., 355, at p. 358.

sec. 5 of the Colonial Laws Validity Act 1865 1 should have much disposed to agree with that judgment.

Assuming agreement with the Full Court up to that point, of opinion that sec. 5 of the Imperial Act establishes the contenti

it is a part was passed by the Imperial Parliament two years the Queensland Constitution Act of 1867 "to consolidate the relating to the Constitution of the Colony of Queensland."

The Parliament of Queensland is a " representative legislati and also a " colonial legislature " within the meaning of the Imp Act. As such it is deemed always to have had, and it has had 1865, "'full power within its jurisdiction to establish Courts judicature, and to abolish and reconstitute the same, and to alter constitution thereof, and to make provision for the administrat

of justice therein." Also it is deemed always to have had, an has had from 1865, " full power to make laws respecting the constitt tion, powers, and procedure of such legislature ; provided tha: laws shall have been passed in such manner and form as may fi time to time be required by any Act of Parliament, letters pat Order in Council, or colonial law for the time being in force " Queensland. I take the constitution of a legislature, as the is here used, to mean the composition, form or nature of the Hi of legislature where there is only one House, or of either House the legislative body consists of two Houses. Probably the power d not extend to authorize the elimination of the representative chara of the legislature within the meaning of the Act.

Argument has been raised on the difference in phraseology bi the first part of this section referring to Courts of judicature, and the second part referring to the constitution, powers and procedure of the legislature, and I am far from thinking that there is n good deal of force in the argument. But I think that the words the second part of the section, with which we are more immedia' concerned, are too strong and too comprehensive to enable on : say that the power therein given is not sufficient to give to the legislation impeached. The section is one of conti vitality, and acts upon all laws as to the constitution and pi

legislature, so as to give them validity whether they were before or after 1865. It is true that the Constitution Act of vided for all laws passed thereunder to be enacted " by ijesty by and with the advice and consent of the Legislative and Legislative Assembly in Parliament assembled," and Constitution did not recognize the making of laws by any uthority. It is also true that in general the legislation of a ated by and acting under a written charter or constitution

i variance with the charter or constitution, cannot be held ive law on the ground that the authority conferred by that ent includes a power to alter or repeal any part of it, if the n questioned has not been preceded by a good exercise of ower; that is, if the charter or constitution has not ante- ly been so altered within the authority given by that document _ stated that proposition in the case of Cooper v. Commissioner e Tax (Qd.) (1), in expressing my agreement with the other of this Court. Normally, therefore, in the absence of such a on as sec. 5 of the Imperial Act, I should have been prepared to hat the Parliamentary Bills Referendum Act of 1908, which, h it professed to be an amendment of the Constitution Act of s merely, in view of its provisions, an Act at variance with titution, not preceded by a valid extension of the constitu- wer, was therefore itself, as it stood, invalid. But in the case the Imperial provision seems to me to take away the ion of the principle I have stated to legislation of the kind authorizes. The Parliamentary Bills Referendum Act is "respecting the powers" of the Legislature in certain cases. that when a Bill passed by the Legislative Assembly 'successive sessions has in the same two sessions been rejected egislative Council it may be submitted by referendum to ;, and if affirmed by them shall be presented to the Governor ijesty's assent. It therefore provides for the substitution ar vote for the assent of the Legislative Council as often stances indicated may occur. I feel bound to say that

in my opinion the words of the Imperial sec. 5 cover su

could be abolished by the process provided by the Referen

If the Act in question had been invalid without it, I am co to think that it gives the necessary validity. Question No, 2, therefore, I answer in the affirmative. Question No. 3 asks whether the Legislative Council of Quee

of 1908. In 1916 a Bill for that purpose was twice in sue sessions passed by the Legislative Assembly and each time by the Legislative Council. Seeing that it proposed the ab of that branch of the Legislature, was it such a Bill as might be submitted to the process authorized by the Referend The latter Act was unrestricted, and, as I think it valid, I d how the fact of the Bill of 1916 being a Bill to deal with the lative Council can be held to place it beyond the legislative a of 1908. There is power to make laws " respecting the constit of the legislature, and this, if passed, is such a law. The me making it a law are provided validly by the Referendum Ac seems to me, therefore, that I cannot but hold that there is po abolish the Legislative Council by an Act passed in accordant the Referendum Act. That is to say, I must answer question No in the affirmative. ee The fourth question really raises a controversy as to the v of the 14th section of the Commonwealth Electoral (War-ti 1917. In the circumstances we think it unnecessary to ans question. a As to question No. 5, we are of opinion that there should costs.

Isaacs J. In view of par. 19 of the special case, I was of the opinion as my learned brother Barton, that the Court ought answer the questions. The action was, in its inception, only nature of quia timet, and whatever argument was then open to tain it - as to which I say nothing - seemed to me to disappear ¢

questions applied, and that no party had a right to the Court answering the first four questions for the purpose ining the fifth, as to incidence of costs. The majority of rt, however, being of a different opinion, I merely record and proceed to consider the questions.

-In my opinion the Constitution Act Amendment Act of 1908 and effective Act of Parliament.

g (1) that it had been passed by a two-thirds majority, and it the royal assent had been validly given. Both provisions fact to have been observed.

Imperial Government, in his telegram of 23rd March 1908, ither provision applied to the measure.

the Parliamentary Bills Referendum Act of 1908 a valid and Act of Parliament ?" This Act, as is well known, was passed

two Houses, the Ministry and the Governor. Apparently it as a method of preventing the recurrence of such a

is no-doubt within the function of a Court, but the con- would be so momentous that only the very clearest con- of its invalidity would justify the declaration.

ect may, for the present purpose, be shortly stated. Both ; are left unaltered in composition and affirmative powers. change effected by the Act consists in no longer requiring jolute condition of legislation the concurrence of both Houses the Crown. After two failures to agree, the advice of gislative Assembly is sufficient, provided there be obtained the oval of a majority of the electors at a referendum. Sec. 10 "Tf the referendum poll is decided in favour of the Bill, shall be presented to the Governor for His Majesty's assent, receiving such assent the Bill shall become an Act of 'in the same manner as if it had been passed by both

Houses of Parliament, and notwithstanding any law to the C01 trary." The Act makes no change in respect of the mode of obtaining royal assent. Presentation to the Governor for that assent i always necessary, and whether it is given by the Governor at or upon express instruction, or is reserved for His Majesty's pers assent, is a matter to be determined by considerations other than provisions of the Act.

The effect, summed up briefly, is that the Legislature of Q ; land - apart from the Crown, which must in all cases assent - her forth consists of the two Houses concurring, except in the case 0

The Attorney-General contends for two distinct authoriti pass this measure. One is clause 22 of the Order in Council of the other is the Colonial Laws Validity Act 1865.

The plaintiffs' answer to the Order in Council is twofold. say that clause 22, whatever its ambit otherwise may have be all events extends no further than to alter provisions in the On in Council itself, and as that was repealed by Act 31 Vict. No. 39 (1867) and replaced by the Constitution Act of 1867 (31 Vict. ! 38), a separate and distinct Act, and not the Order in Counci follows that clause 22 can have no operation upon the Act. - say the plaintiffs, further, as to the construction of clause 22, it never did extend so far as to exclude altogether one of the legislat Houses established by the Order in Council itself.

With respect to the Colonial Laws Validity Act, their argument is that, equally with clause 22 of the Order-in Council, its exter does not reach to eliminating one of the Houses from law ma They urge that if that were possible, the Crown itself nil esas since the pone isa ga ios the legislature.

more general importance, the BBs serie is contained sec. 5. The crucial words are " every representative legislat shall . . . have . . . full power to make laws resj the constitution, powers, and procedure of such legislature."

. Feez argued that the words "constitution . . . of such " are limited by the outward form of the legislature at e the constitutional amendment is made. Thus, if it then the Crown consists of one chamber, it cannot provide for chambers, and if it then besides the Crown consists of two it cannot provide for one chamber. According to the nt, internal changes only are possible - such as the number jualifications of members and the electoral franchise. This which was directed both to question 2 and question 3, mn to deduce that, as one chamber cannot be entirely abolished, xr can the necessity for joint concurrence of both Houses in ry act of legislation. It was supported by urging that since ture" included the Crown, the Attorney-General's view

At a glance

Court

Decision date

Before

Source

Judgment (217 paragraphs)