Russell v Wilson [1923] HCA 60

Russell v Wilson [1923] HCA 60 - HCA 1923 case summary — Zoe

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offence under sec. 42 of the Act and convicted, the date of that con- viction being 8th June 1921. The plaintiff appealed from that conviction ; and the appeal came on for hearing on 25th August 1921 before the Quarter Sessions, and was dismissed. The conviction, therefore, was then affirmed. It is admitted that no other charge was pending against him beyond the one on which the plaintiff was charged and convicted. When the Magistrate convicted the plain- tiff, as he did, he might have made an order under sec. 44 that all that money and property found in the plaintiff's possession on those premises should be forfeited or destroyed. He made no such order. I am satisfied as a fact that after the dismissal of the appeal to Quarter Sessions there was a demand for and a refusal by the defendant to return those goods so found on the plaintiff's premises. The property taken possession of under the provisions of the Act to which I have referred and held by the defendant at the present time consisted of certain bank-notes, certain cash, certain cheques and certain postal notes. Certain of the bank-notes, amounting to £240, were in a small kit-bag together with other articles to which it is unnecessary to refer. As far as the £240 in that kit-bag were concerned, it is not - and could not - be disputed that it was money derived from a legitimate source; that is, that it is the pro- ceeds of the sale by the plaintiff of property of his to Mr. Gardiner and was the money paid to him by the purchaser for that property. In another kit-bag there were cash, bank-notes, cheques, postal notes and other documents. With regard to £10 of that, that also repre- sented the purchase-money paid for this property, and, with regard to one cheque for £8 10s., that was proved affirmatively to be moneys which had been obtained by the plaintiff altogether independent of the sweep business which he was promoting. It was money which he earned in carrying on his legitimate business. Consequently. as far as the £250 and the cheque for £8 10s. are concerned, the plaintiff has proved affirmatively a perfectly good, legitimate title. Supposing there was a demand and refusal prior to action brought, as I have held there was, it is not denied that the plaintiff is entitled to a verdict for the £250 and the £8 10s. cheque. As far as the balance of the property sued for in this action is concerned - cheques, cash and securities - it is admitted by the plaintiff that he cannot

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our view necessary to express any definite opinion on the first point, as we are clearly of opinion that the second point cannot be sustained. Immediately before the seizure on 6th May 1921, Wilson was in actual possession of all the property seized, which comprised the proceeds of the forbidden transactions. But he was possessed of that property as for himself by the actual consent of the original, and, we shall for this purpose assume, the continuing, absolute owners of the property. That is to say, he had possession of the property, not as servant or agent of another, but as in his own right subject to any right of the absolute owners to recover it whenever they so desired. Had there been no intervention of the police, his possession would have continued unless the absolute owners had recovered the property from him, either upon simple demand or by action. They have not intervened, and the matter is left to a contest between Wilson and the police. We interpose one observation : that the contest does not involve any reliance by him on any illegal transaction. He starts with actual possession as being the owner of the property. It is true his possession was broken. But it is of the essence of the matter to inquire first what right his possession in the circumstances conferred, and next what the breaking of it involved with regard to that right. Possession, in the relevant sense, is not merely evidence of absolute title: it confers a title of its own, whichis sometimes called a '« possessory title." This possessory title is as good as the absolute title as against, it is usually said, every person except the absolute owner. As to real property, Cockburn C.J. said in Asher v. Whitlock (1) : - * All the old law on the doctrine of disseisin was founded on the principle that the disseisor's tile was good against all but the disseisee. It is too clear to admit of doubt, that if the devisor had been turned out of possession he could have maintained ejectment. What is the position of the devisee? There can be no doubt that a man has a right to devise that estate, which the law gives him against all the world but the true owner." This is affirmed by the Privy Council in Perry v. Clissold (2). So as to chattels. In Glenwood Lumber Co. v. Phillips (3) Lord Davey quoted from Jeffries v. Great Western Railway Co. (4) the words of

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aperson possessed of goods as his property has a good title as against every stranger, and that one who takes them from him having no title in himself is a wrongdoer, and cannot defend himself by showing that there was title in some third person, for against a wrongdoer possession is title." Lord Davey added some words of the Master of the Rolls in The Winkfield (1), namely : " Therefore it is not open to the defendant, being a wrongdoer, to inquire into the nature or limitation of the possessor's right, and unless it is com- petent for him to do so the question of his relation to, or liability towards, the true owner cannot come into the discussion at all, and therefore, as between those two parties, full damages have to be paid without any further inquiry." In the later case of Eastern Con- struction Co. vy. National Trust Co. (2) Lord Atkinson, delivering the judgment of the Privy Council (Lords Atkinson, Moulton and Parker), also referred to the question. He quoted Lord Campbell's observation that as ' quoted Armory v. Delamirie (3) as deciding the finder has "such a _ property as will enable him to keep it against all but the rightful owner," and reaffirmed Glenwood Lumber Co. v. Phillips (4). It is therefore clear that Wilson had by that possession a real "title " to the property, just as lawful and just as powerful as if it were the absolute title, except as against the absolute owner, or any person claiming to hold by virtue of the absolute owner's authority. And it is also clear that a wrongdoer is, according to Lord Campbell, "one who takes them " (the goods) " from him " (the possessor), " having no title in himself." The expression " having no title in himself" must, we think, mean no legal right superior to the title of possessor. If the person taking the goods has a superior right, then to the extent of that superior right, and to that extent only, must the possessory title yield. The absolute owner, his rights being unqualified by any circumstance, would of course be justified in taking and keeping or demanding the goods, because his title is superior. The defendant in Buckley v. Gross (5) had a superior title, because, as Blackburn J. said (Crompton

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'sum represented the value of certain cheques, cash and securities which the appellant had seized on the respondent's premises under a warrant issued pursuant to sec. 40 of the Gaming and Betting Act 1912. _ The case was conducted in the Courts below on the footing that the warrant authorized the seizure, and any other view of the effect of the warrant ought not, at this late stage of the case, to be considered, and indeed no other view was presented by the appellant. The respon- dent was convicted of an offence under sec. 42, and his conviction was affirmed on appeal, but no order was made for forfeiture of the cheque, cash or securities pursuant to the provisions of sec. 44 (3). The proceedings against the respondent being now ended, he brought his action against the appellant for the recovery of the cheque, cash and securities which the appellant held and refused to deliver to him. Judgment for the value of the goods or their return and payment of a nominal sum for their detention was recovered by the respondent in the Supreme Court. The appeal brought to this Court against the judgment is based on the contention that the respondent had neither the possession of nor the property in the goods. Possession of the goods was lawfully divested, so it was said, by the seizure under the warrant, while the property in the goods - the right to possess them - never vested in the respondent because the physical act of handing over the goods to the respondent by the former owners was 'in contravention of the Gaming and Betting Act, and therefore had no effect in point of law, or, in other words, the transaction by which the respondent acquired the physical possession of the goods had no ; legal consequence. The validity of the argument depends upon the proper construction of the Gaming and Betting Act. Sec. 42 prohibits the keeping of betting-houses and sec. 45 the receiving of any money or yaluable things as deposits on bets or as a consideration for certain assurances, undertakings, promises or agreements. Sec. 48 enacts that any money or thing so received should be deemed to have been received to the use of the person from whom it was received, and might be recovered in any Court of competent jurisdiction. " It may be," as Buckley L.J. said in Gordon v. Chief Commissioner of Metropolitan Police (1), "' that the plaintiff never ought to have

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award was as follows : expenses of an employee incurred in the service or in the interests of the employer. (a) This provision shall apply to (amongst other matters) inquiries as to casualties or as to the conduct of employees and to proceedings for any alleged breach of any maritime or port or other regulations unless the inquiry or the proceeding be due to the personal misconduct or negligence of the employee." The District Court Judge before whom the action was tried gave a verdict for the defendant upon which judgment was given for the _ defendant. The plaintiff having appealed to the High Court, that Court allowed the appeal and remitted the case to the District Court for rehearing (Spain v. Union Steamship Co.of New Zealand Ltd. (1) ). The rehearing took place before Scholes D.C.J., who found that the plaintiff had been guilty of negligence and that the casualty was due to that negligence. In his judgment the District Court Judge set out the following statements of fact, which he said were undisputed :

(1) The Karitane was on a voyage from Devonport to Sydney. (2) The vessel was abreast of the Pyramid Rock on the morning of 24th December 1921. (3) The first mate took a bearing and found the position of the vessel to be three miles off; the plaintiff who was present did not check the mate, but judged from vision that the vessel was three miles off, having the Pyramid Rock to the starboard. (4) At 8 p.m. on 23rd December the plaintiff left this "night order "' - ' Let me know when you see the Pyramid Rock and the distance off when abeam. The course will then be N. by 'RYE. to pass Deal Island Lighthouse five miles off and when it is abeam reset log and steer N34°E." (5) The plaintiff left the bridge at about a quarter to six a.m. on 24th December and lay in his bunk fully dressed. (6) Three minutes before receiving the message in the next finding set out the plaintiff heard the fog signal and remained where he was. (7) The plaintiff got the following written message from the first mate, who was on watch: "24/12 /21 - 7.15 a.m. 7.25 a.m. - I have run 18 miles by the log and Deal Island should be abeam. I have not seen it yet on account of very heavy fog. Engines at stand-by." To this message the plaintiff returned the order "O.K. Carry on." (8) The plaintiff did not LL.R., 138.

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the s.s. Karitane, fixed his position off Pyramid Rock in Bass Straits at about 5.30 o'clock in the morning, and then set a course which, ifall went well, would take his ship past Deal Island, which was about eighteen miles away, with an offing of five or six miles. Deal Island, it should be observed, is a small island in Bass Straits about two miles long, and 1,000 or 1,100 feet high, with a lighthouse upon it. 'When, however, the ship had run eighteen miles by the log, the officer on the bridge reported in writing to the appellant that Deal Island should be abeam but that he had not seen it on account of a very heavy fog. As a matter of fact, the appellant, before he received this report, heard, while resting in his cabin, the ship's " siren going," which indicated fog. He minuted the report O.K., which means "all right," but he also sent a verbal message to the officer on the bridge to carry on. At the time this order was given, the ship was at her full speed, some ten knots an hour, and she continued on her course at that speed. The appellant himself proceeded to the bridge within ten minutes after the receipt of his officer's report, but, before he reached it, the ship's engines were suddenly reversed, and, apparently before he gained the bridge, the ship had struck the island with great force, and she was totally lost. The learned Judge found that the ship was set on to the island by a westerly set, which could not reasonably have been anticipated by the appellant. But, even if he could not have anticipated the set, ought a prudent seaman, in the circumstances of the case, to have acted as if his position were definitely fixed and secure at the time of the officer's report? The Admiralty Chart, which is in evidence, shows that the ship was in the vicinity of islands and in a locality affected by currents. A dense fog had come on, and land, which should have been in sight, could not be seen. A seaman could not, in these circumstances, be sure of his position ; for involved were the possibilities of error in the course set, and in the steering, and, in fact, all the grave risks attendant upon fog at sea. And it is not unimportant to observe that in earlier orders the appellant directed his officers, when Deal Island was abeam, to reset the log and steer another course. Under these conditions, no prudent seaman would, in our opinion, have driven

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The collision regulations do not apply here (see The Normandy (1), The Upcerne (2), Reischer v. Borwick (3) and Chandler v. Blogg (4) ). But even where they do apply, there is no absolute rule to stop in fog. It is well established that the duty depends on circumstances includ- ing the nature of the locality and the probability of meeting other vessels, and, again, the ability to keep command of the vessel. It may even be negligence to stand still in the way. There had been fog during the night and for hours. The Karitane had passed another vessel, doing probably eight or nine knots, going in the same direction. She was behind the Karitane - how far behind it is not known, but, as her speed was not far short of that of the Karitane, she probably was not far behind, at all events not so far behind as to be negligible in the retrograde movement suggested by the defendant's witnesses. They appear to have given no consideration to this possibility. Captain Spink's evidence may be thus summarized for what it is worth : - The captain on getting the message, which did not indicate that the mate felt in danger, should have gone dead slow for five or six minutes and used the leadline ; and, if he got no indication, should have turned back. But if he found, as he would have found, 'a depth of thirty fathoms, he would have felt perfectly safe, and if he believed himself clear, he would be justified in going full speed ahead. But Captain Spinks drew attention to a very important feature that seems to have escaped the attention of the learned District Court Judge. Its only importance is to test the value of the suggestion as to turning round. That feature is just that eastward - and about ten or eleven miles eastward of the point in the projected course, where the eighteen mile run ended - is Wright's Rock. Captain Spink at first thought a course allowing six miles distance from Deal Island would be as he said " mighty close to Wright's Rock." On measurement he allowed it to be about or a little over ten miles, and that the course was safe if the departure was right. The importance of Wright's Rock will be more apparent presently when the diagram is looked at. The evidence of Captain

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