R v Dalgety and Company Limited Suppliant [1944] HCA 2

R v Dalgety and Company Limited Suppliant [1944] HCA 2 - HCA 1944 case summary — Zoe

[87]

(Attorney-General v. De Keyser's Royal Hotel Ltd. (1)). The pre- rogative is simply placed in abeyance, it is not abolished. The Crown Suits Act 1898 does not disclose any intention to make the provisions of that statute the sole provisions regulating the grant of a fiat. The Act was not intended to be exclusive. The respondent's claim does not come within the provisions of s. 33 of the Act, nor does the Act as a whole provide the respondent with a remedy. The respon- dent's claim is a claim for restitution of property in the hands of the Crown. There is no provision in the Crown Suits Act for the recovery of property in the hands of the Crown. The Act is an Act to facilitate, and not to restrict, the right of the subject as against the Crown. Section 4 (3) of the Act finds an application in relation to (i) possible proceedings under the Ordinance which were pending, and (ii) causes of action for which there was a remedy under the Ordinance but for which there would not be a remedy under the Act. The words "' subject to the provisions of this part" in s. 22 are very important and show that the words " any claim " must be read down to mean any claim within s. 33. As regards s. 22 the principle is that a statute does not alter the common law except by express statement or necessary intendment. The word " may" in s. 22 is permissive. The intention of the Act is to leave the Crown powers, authorities, privileges and rights unimpaired. When s. 24 and s. 25 are applied they depend upon the existence of a prerogative to grant a fiat in such cases and, therefore, at least, presume the continuance of the prerogative in those cases. In those cases the fiat is granted on a prerogative, and not on a statutory basis. This supports the argument that the Act has not affected the common law prerogative of the Crown to grant a fiat. The approach to the construction of the statute must be: Does it evidence an intention (a) to remove temporarily the prerogative, and (b) to preclude the subject from a large class of rights which he would have had at common law and which are not provided for in the statute ? The statute does not contain express words on the matter and there are many indications in the statute which point the other way. The statute leaves untouched the prerogative to grant a fiat with respect to matters outside s. 33. The Court did not decide in The Crown v. McNeil (2) that a subject must bring a petition within s. 33 of the Crown Suits Act 1898. It is conceded that the respondent's claim does not come within either par. 1 or par. 2 of s. 33. The authorities referred to on behalf of the appellant are directed to the question of whether the Act has conferred a new right as distinct from removing the prerogative. It does not necessarily follow that

[187]

Now it is to be observed that claims for land or goods or money of the subject which have found their way into the possession of the Crown are not mentioned or provided for by the Act. Such claims are not repugnant to nor ousted by any explicit provisions of the Act. All the Act provides is that no claim or demand shall be made against the Crown under the Act unless founded upon or arising out of some one of the causes mentioned in the Act. In the absence of words excluding expressly or by necessary implication the common law remedy, that remedy is not ousted, and especially is this so if the statute provides no alternative remedy. But then it is argued that the claim in the petition of right before the Court is ousted by force of the statute because provision is made for the enforcement of certain causes of action against the Crown in contract and in tort. In terms the statute is not prohibitive or exhaustive : it enables (s. 22) the subject to proceed under the Act, but s. 33 precludes any claim or demand " wnder this Part of this Act" unless founded upon certain causes of action mentioned in the section. Moreover, the proviso that nothing in the Act contained shall be deemed to give a cause of action for breach of contract which would not have arisen in like circumstances before the passing of the Act contemplates the existence and continuance of the old remedy against the Crown and restricts the improved method of proceeding to the same causes as before. Further still, s. 37 is not a general limitation of causes of action but of the right to pursue the simplified method of procedure under the Act. And the provision of s. 33 dealing with actions against the Commissioner of Railways is notice- able, for it specially provides (par. 4) that "no action shall lie against the Commissioner . . . in respect of any claim or demand unless the same be founded upon, or arise out of some one of the causes of action" mentioned in the section. This section is explicit, but finds no counterpart in the provisions relating to claims or demands against the Crown. The provision in s. 33 as to torts creates a new remedy against the Crown which did not exist at the 1943 1944. Tu Crown

[190]

received by the Government of Western Australia or by the Treasury or Treasury Department on its behalf for the use of the suppliant, is such as to found a petition of right at common law. For the reasons already given this question should be answered, as it was in the Supreme Court, in the affirmative. But let it be assumed that the exclusive method of pursuing claims and demands against the Crown in Western Australia founded upon or arising out of some breach of contract is that prescribed by the Crown Suits Act, still, in my opinion, the present petition stands outside those provisions. As between subject and subject the petitioner's cause of action might have been framed in contract or in tort (Morison v. London County and Westminster Bank Ltd. (1) ). But the matter was one of substance, not of form. And "the substance is the right of the plaintiff to recover property or its proceeds from one who has wrongfully received them": See United Australia Ltd. v. Barclay's Bank Ltd. (2). Thus Lord Wright, reviewing this case, has said (Law Quarterly Review, vol. 57, p. 198): "The abolition of the Forms of Action has made it clear that besides the categories of contract and tort, there is a further distinct category, which has been variously named quasi-contract, restitution, unjust enrichment . . . Professor - Winfield (Province of Tort, p. 119) had suggested the following definition: 'So far as current English law is concerned, genuine quasi-contract signifies liability, not exclusively referable to any other head of the law, imposed upon a particular person to pay money to another particular person on the ground of unjust benefit '" : See also Holdsworth, History of English Law, (1926), vol. 9, p. 42. And in my opinion such a claim can be asserted against the Crown for reasons so strongly asserted by Scrutton L.J. in Brocklebank Ltd. v. The King (3). In truth such a proceeding is to recover property or money of the petitioner which has found its way into the hands of the Crown and is wrongfully detained. Further I would add that the decision in Brocklebank Ltd. v. The King (4) suggests that the claim or demand within s. 33, par. 1, must arise under a definite contract, whether expressed or implied, and not a contract assumed in law upon a liability arising upon quasi-contracts as for money had and received.

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The recital in the Ordinance describes the defects of petition of right as a remedy of the subject against the Crown. It said that the ordinary remedy of petition of right is of limited operation and is insufficient to meet all cases that may arise and is attended with great expense and delay. It seems to me that the apparent intention of the provisions of the Ordinance, which are professedly enacted to give the subject a wider and more effective remedy, was to substitute a statutory remedy and a new mode of procedure for the common law petition of right. The Ordinance provides that in all cases of dispute or difference touching any claim between any person and the Colonial Government, which may have arisen or which may there- after arise, it shall and may be lawful for any person to present a petition to the Governor setting forth the particulars of the claim of the petitioner. The Ordinance vests the constitutional discretion to decide whether the petition should be referred to the Supreme Court in the Governor of the Colony and provides that this discretion is to be exercised on the advice of Ministers in Western Australia. The Ordinance entrusts the Governor with the duty of safeguarding the royal prerogative from invasion by proceedings taken by a subject pursuant to the Ordinance. It is clear from the recital and the scope of these provisions that the legislature intended to give a new right to the subject and to provide a mode of enforcing it and that this right and the mode of procedure should supersede the common law remedy of petition of right. The apparent intention of the Ordinance is that the right of the subject to sue the Crown in the Supreme Court of Western Australia should depend on the exercise by the Governor of the discretion which the Ordinance vests in him and that the previously existing right of the subject to petition the Sovereign for redress and the new right created by the Ordinance should not exist together. In my opinion the Ordin- ance was in substitution for, not in addition to, the common law petition of right to the extent to which the Ordinance covered the causes of action to which the petition of right extended. So far as

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