Repatriation Commission v Kirkland [1923] HCA 18

Repatriation Commission v Kirkland [1923] HCA 18 - HCA 1923 case summary — Zoe

[86]

the sie that the fetes of ine Commission was by chem faa trespass or conversion or replevin. Text-writers certainly favom the view that the rescue of goods before they are impounded can be justified where the distress is unlawful on the ground that no rent is due, or that the goods are privileged; but that pound-breach, after the impounding, cannot be justified on similar grounds - the goods, after the impounding being in the custody of the law (see Foa on Landlord and Tenant, 2nd ed., p. 445). This view is based mainly on a passage in Co. Lit., 47b: "If the distress be taken of goods without cause, the owner may make rescous ; but if they be distrained without cause, and impounded, the owner cannot break the pound and take them out, because they are then in the custody of the law" (and so Cotsworth v. Betison (1) ). It is not clear to my mind, but I shall assume in favour of the respondent, that this distinction as to the pound-breach did, at common law, apply to the Crown's goods privileged from distress ; but even if i did, it by no means follows that the Crown, or its agents, cannot seize Crown goods, not in a common pound (as in Coke's time), but impounded on the rented premises under the special power conferred by 11 Geo, I. ¢. 19, sec. 10 (New South Wales Landlord and Tenan Act, No. 18 of 1899, sec. 51). The Court of Appeal of New Zealand evidently thought not (Thompson v. Friedlander (2)). Tn that case, the distress was levied on 3rd July, the tenancy having ceased _ on Ist July; and Richmond J., who gave the judgment of the Court, said (3): " Whatever might have been the case with regard to a person suing for actual damage for breach of a common pound, itis, we think, clear from the language of the statute of George, that a person, to entitle himself to single damages or to treble damages in respect of breach of a pound, being such only by virtue of that statute, m st show that he had lawfully taken the distress, and further, that the premises on which the distress was impounded were held as tenant

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committed by the defendant on 30th October 1922 in respect of certain goods claimed to be the property of the defendant, and for rescue of such goods from a distress levied by the plaintiff (respon dent). The action was instituted in the District Court of the Metropolit 0 District, New South Wales, and was heard before his Honor Judge Armstrong sitting as such District Court. With diffidence, his Hono found for the plaintiff for the amount of £10 10s. From that decisio1 the defendant (appellant) has appealed to this Court. ; I do not propose to restate the facts. I would only emphasize the fact that no goods were seized except those now claimed be " the property of the Crown vested in " the appellant " on behali of and as agent of the Crown." This appeal comes to this Court direct from the District Court, which is a State Court. We have, therefore, to see whether the District Court was on this occasion a "Court exercising federal jurisdiction " within the meaning of sec. 73 of the Constitution. See. 39 (2) of the Judiciary Act invests with federal jurisdiction all Courts of the States within the limits of their several jurisdictions "in all matters in which the High Court has original jurisdiction o1 in which original jurisdiction can be conferred upon it," excep certain matters of constitutional powers inter se which are not here material. The only relevant " matters," so far as I can see, "matters" mentioned in sec. 75 of the Constitution, par. m namely, "in which the Commonwealth, or a person suing or bein sued on behalf of the Commonwealth, is a party." Difficult question may arise as to the precise meaning of the words " on behalf of the Commonwealth." But they, in my opinion, at all events, include a case where the party sued is a direct agent of the Commonwealt and defends in respect of acts done as such agent and in respect of property that is Commonwealth property. E The alleged wrongful acts complained of took place after the commencement of the Australian Soldiers' Repatriation Act 1920, which by proclamation commenced on Ist July 1920. The question then is as to the status of the Commission and the ownership of thi property under that Act. Sec. 7 enacts that "for the purposes of this Act there shall be a Repatriation Commission," and then come

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Although the Commission represents the Crown as mentioned, it could not plead Crown authority for doing an illegal act in the nature of "pound-breach." There are various kinds of " pounds" in law with reference to distress. The pound is one of the most ancient survivals of our common law, and distress has come down with it, Distress, as the learned editors of Bullen on Distress, 2nd ed., p. 3. say, in its origin was not a means of satisfying a debt, but of compel- ling a person to do something, or leave something undone. Event- ually it became usual to take a distress without previous legal process, and as a pledge. Once taken, the common law required the distrainer for rent immediately to remove the goods from the premises for the purpose of impounding them elsewhere. This, up to 11 Geo. I., c. 10, sec. 19, was his obligation at the peril of being a trespasser ab initio (Bullen, p. 171). He had to take the goods to a duly constituted pound, which, say the learned editors, was either the common pound of the locality or the private pinfold or close of the distrainer. If at the present time removal takes place, the common law respecting the pounding must still be observed. As soon as the distress is impounded in any lawful pound wherein the goods are in the custody of the law (Green v. Duckett (1); R. v. Butterfield (2); Russell on Crimes, 6th ed., vol. 1., p. 882), and whether they are lawfully put there or not, it is an offence called "'pound-breach" to retake them from the pound, that is, to wrest them from the custody of thelaw. There appears to be one exception, which is immaterial here (Bullen on Distress, 2nd ed., p. 246). Rescue before impounding, i.e., before the law has become the custodian, is a lawful remedy where goods are unlawfully taken. The statute of Geo. II. made a great change in the method of impounding, and that appears now in the local Act, Landlord and Tenant Act (No. 18 of 1899), sec. 51, with a very slight alteration of language. Sec. 51 enacts that any person lawfully taking any dis- tress on the premises chargeable with the rent may there impound and sell it. It also provides for an action in case of pound-breach, which is the action brought in the present case. But it follows from what I have said that, as the common law was not pursued in

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Judgment (110 paragraphs)