Varawa v Howard Smith Company Ltd [1911] HCA 46;

Varawa v Howard Smith Company Ltd [1911] HCA 46; - HCA 1911 case summary — Zoe

[27]

The order itself is made ex parte. The Act 1 & 2 Vict. c. 110 provided that the arrested defendant might apply to any Judge of a Superior Court, i.e., to the Chancellor, Master of the Rolls, or a Vice-Chancellor, as well as to any Judge of the Queen's Bench, Common Pleas or Exchequer, or to the Court in which the action was brought, for his discharge from custody. It is suggested that this is the same thing as setting aside the order. It is in fact and in principle quite different. The proceeding directed was exactly analogous to proceedings by habeas corpus, and was founded upon the assumption that the order was on the face of it right, but that by reason of additional facts the defendant was entitled to his discharge. The notion of allowing a Judge of one Court to set aside an order made by a Judge of another would not have occurred to any lawyer in those days. As I have said, the order itself was ex parte. In my opinion the principles laid down in the case of Steward v. Gromett[11] govern the matter, except so far, if at all, as the present case is distinguishable by reason of the opportunity to ask for a discharge from custody. In that case it was held that, in an action for maliciously procuring the plaintiff to be imprisoned in default of finding sureties of the peace, it is not necessary to show a determination of the proceedings complained of in favour of the plaintiff. The reason given is that the charge before the justices was not controvertible, and that they were bound to make the order if the necessary facts appeared before them. In the present case the Judge was, in the same sense, bound to make the order if the necessary facts were sworn to. The respondents contend, however, that that case is distinguishable on the ground that the appellant was at liberty to controvert the allegations of the plaintiffs, either by an application for discharge, or by an application to set aside the order in the exercise of the general jurisdiction of the Court to set aside ex parte orders. It is important to inquire, therefore, what was his real and substantial opportunity of obtaining redress in the method suggested.

[65]

My Lords, I cannot but think that this case, although the amount involved is small, raises very important questions indeed. Amongst other questions, I think it raises a question as to the conduct of the trial itself, and the position in which people are placed, when, apart altogether from the actual issues raised by the written pleadings, the conduct of the parties has been such as to leave one or more questions to the jury, and those questions being determined, they come afterwards and strive to raise totally different questions, because, upon the evidence, it might have been open to the parties to raise those other questions.

My Lords, it is one of the most familiar principles in the conduct of causes at Nisi Prius, that if you take one thing as the question to be determined by the jury, and apply yourself to that one thing, no Court would afterwards permit you to raise any other question. It would be intolerable, and it would lead to incessant litigation, if the rule were otherwise. I think Dr. Blake Odgers has, with great candour, produced the authority of Martin v. Great Northern Railway[29] which lays down what appears to me to be a very wholesome and sensible rule, namely, that you cannot take advantage afterwards of what was open to you on the pleadings, and what was open to you upon the evidence, if you have deliberately elected to fight another question, and have fought it, and have been beaten upon it.

My Lords, so far as regards the conduct of the trial, it appears to me that nothing could be stronger than what the learned Judge himself said at the very commencement of his remarks in the presence of the learned counsel, who, if it is not accurate, were bound then and there to intervene and say so. The learned Judge says at the commencement of his summing up, after he has introduced the facts to the jury: "We have to deal with the law in this matter, and the case is fairly put by Mr. Willis in the only way in which he could put it. He cannot ask you to treat this as a libel, unless you are satisfied that the whole thing was a sham got up by the defendant for the mere purpose of disparaging the character of the plaintiff." My Lords, after that statement by the learned Judge, which is at the commencement of his summing up, the learned counsel, not intervening at all, but allowing the learned Judge to leave that as the one question to the jury, it appears to me that it is absolutely hopeless, in any other Court, afterwards to attempt to raise any other question than that which the learned counsel deliberately elected to allow the learned Judge at all events to leave to the jury as the only one which was to be put to them.

[101]

The appellant's right to hold the judgment entered for him at the trial must depend upon whether he can establish that his causes of action for malicious prosecution and for abuse of the process of the Court are well founded. In respect of both causes of action the alleged wrongs were committed in New South Wales, and the appellant's right to sue for them in a Victorian Court rests upon well recognized principles of international law, it being clear, for the purpose of the present discussion, that the proceedings in the Courts of New South Wales stand on the same footing as proceedings in the Courts of a foreign country. In the course of the argument it was contended that, since the passing of the Commonwealth State Laws and Records Recognition Act 1901, no proceedings in a State Court can be treated in the Court of another State as proceedings in a foreign Court. In my opinion that Statute has no bearing on the matters under consideration in this appeal. The 18th section, which is the section relied on, is really an evidence section, and does not affect the principles on which the Courts of one State take cognizance of wrongs committed in another State. That principle is well recognized, and may be thus stated. Where an act is wrongful both by the law of the State in which it was committed and by the law of the State in which the wrongdoer is being sued, the action will lie. The material inquiry therefore is in respect of each of the plaintiff's causes of action what is it that really constitutes the wrongful act for which the laws of New South Wales and the laws of Victoria give a remedy. I shall take the charge of malicious abuse of process first, because in respect of that cause of action, by reason of its nature, it is not, and cannot be, necessary for the plaintiff to establish want of reasonable and probable cause, termination of the action in the plaintiff's favour, or the setting aside of the proceedings under which the writ of ca. re. was issued. It is an unusual form of action, and few cases can be cited to illustrate the principles upon which it is founded. The earliest is Grainger v. Hill[35]. There process regularly obtained was wrongfully used by way of pressure to extort from the plaintiff property to which the defendant had no right. Lord Chief Justice Tindal describes the cause of action as being a complaint by the plaintiff that the process of the law "had been abused to effect an object not within the scope of the process." In the next case, Gilding v. Eyre[36], the cause of action is thus described by Mr. Justice Willes: - "The defendant has maliciously employed the process of the Court in a terminated suit, in having by means of a regular writ of execution extorted money which he knew had been already paid and was no longer due on the judgment." In Parton v. Hill[37] Mr. Justice Blackburn, referring to the plaintiff's contention that the action was not for malicious prosecution but was an action for abusing the process of the Court, lays it down that to support the latter form of action according to the doctrine laid down by Tindal C.J. in Grainger v. Hill[38] the complaint must be that the process of the Court has been abused to effect an object not within the scope of the process. That statement expresses in as few words as possible what is necessary to constitute the cause of action for malicious abuse of process, and being founded on the principles of the common law it is the same in New South Wales as in Victoria. It follows that, if the ca. re. proceedings were taken in New South Wales merely with the object of more effectively securing payment of the amount claimed by the ordinary processes of the law, there would be no cause of action for malicious abuse of process even though the claim were unfounded to the plaintiff's knowledge and the application for the order to hold to bail were supported by false affidavits. The cause of action in that case would be for malicious arrest. The plaintiff, in my opinion, could establish his cause of action only by showing that the order had been obtained and the writ issued in respect of a claim false to the respondent's knowledge and solely for the purpose of arresting the plaintiff, as a means of extorting from him payment of moneys which the respondents well knew were not due. In paragraph 2_a_ of the statement of claim the appellant has stated the facts on which he relies in that form, and in that form the jury have found them. Now, assuming that the facts so stated and found would constitute the cause of action alleged, I agree with the learned Judges of the Supreme Court that there was no evidence to go to the jury in respect of the case attempted to be made in paragraph 2_a_. Conceding, for the sake of argument, that the respondents acted maliciously and without reasonable and probable cause, there are no facts from which in my opinion the jury could have reasonably drawn the inference that the object of the writ and proceedings was any other than to ensure payment of the claim by the ordinary processes of the law. As the verdict of the jury and the judgment entered for plaintiff were general, the damages attributable to the cause of action with which I am dealing cannot be separated from those attributable to the cause of action for malicious prosecution. It is impossible therefore that the verdict for the plaintiff can stand. Whether the remedy will be a new trial or the entry of judgment for the defendants must depend upon what is the right view to take of the questions raised in respect to the cause of action for malicious arrest. The first of these is, was it essential to the plaintiff's action to prove that the order for ca. re. had been set aside, or at all events that the original action had been determined in his favour, before the issue of his writ? The learned Judges of the Supreme Court held that it was essential, and, having determined that the plaintiff had not made out his case for malicious abuse of process, directed a verdict to be entered for the defendants on the whole claim: the question now to be determined is whether that order was right. The action for malicious arrest rests upon common law principles and its essentials are the same in New South Wales and in Victoria. If the person suing in a Victorian Court founds his claim on malicious proceedings taken in a Victorian Court it is clear that he must show that the proceedings complained of terminated in his favour, if they were capable of being so determined, before the issue of the writ. If the proceedings were criminal he must show that he was acquitted or that the conviction was set aside. If they were in bankruptcy he must show that the adjudication was set aside as in Metropolitan Bank Ltd. v. Pooley[39]. Generally speaking it is not actionable to institute civil proceedings without reasonable and probable cause even though maliciously. But where the proceedings are of a kind that necessarily involve damage to a person's credit or reputation or to his property or an invasion of his personal liberty, an action will lie if the proceedings were taken maliciously and without reasonable or probable cause: Quartz Hill Consolidated Gold Mining Co. v. Eyre[40], per Bowen L.J. In England before the enactment of 1 & 2 Vict. c. 110, which is substantially identical with the Victorian and with the New South Wales Acts regulating the issue of writs for arrest on mesne process, the plaintiff in a civil action was entitled as a matter of right to the issue of a writ of capias ad respondendum on making an affidavit of debt. The writ was issued to him, if he wished to take it out, without any judicial leave or intervention. But on the debtor's complaint that the proceedings had been taken out maliciously and without reasonable and probable cause, it was always necessary for him to show that the action had terminated in his favour before the issue of his writ, because the gist of his claim was that the action of debt had been instituted maliciously and without reasonable and probable cause. In Daniels v. Fielding[41] Baron Rolfe explains the change in the nature of proceedings for arrest on mesne process brought about by 1 & 2 Vict. c. 110. Since that Statute became law the action is for maliciously and without reasonable and probable cause obtaining the Judge's order to hold to bail, and the obtaining of the order maliciously and without reasonable and probable cause is the gist of the action. Before the order can be issued the Judge must be satisfied of three things - (1) that there is a good cause of action; (2) that the defendant is about to depart out of the jurisdiction; (3) that his departure will defeat the plaintiff's remedy. Where the debtor afterwards complains that the order has been obtained maliciously and without reasonable and probable cause, the requisites of his cause of action will depend upon the nature of his grievance. Where he does not deny the existence of a cause of action, but charges that the allegations that he was about to depart out of the jurisdiction and that his departure would defeat the creditor's remedy were false and malicious, the question whether it would be necessary to show that the Judge's order had been set aside before the commencement of his action is one not free from difficulty. On the one hand it is contended that the proceedings to obtain the ca. re. are ex parte, and therefore come within the principle laid down in Steward v. Gromett[42]. In other words, as the debtor cannot on the application obtain a determination of the matters in issue in his favour, the proceedings must be regarded as ex parte within the rule laid down in that case, and the debtor is therefore not bound to set the order aside before the commencement of his action. On the other hand, it is urged that as the debtor may obtain from any Judge an order for his discharge from custody which involves a reversal of the determination, he is bound to show that the order has been set aside. It is not, however, necessary to further consider these contentions because that aspect of the facts is not material on this appeal. In the present case it is not denied that the debtor was about to depart out of the jurisdiction, and it is clear that his departure would have defeated the creditor's remedy. The debtor's complaint is that his creditor had wronged him in that he had maliciously and without reasonable and probable cause falsely alleged that there was a debt or cause of action upon which the proceedings could be founded. The question therefore to be determined is whether the debtor, in afterwards attacking those proceedings in an action for malicious arrest, was bound to show that before the issue of his writ he had set aside the Judge's order, or that at least the action had terminated in his favour. As to setting aside the Judge's order the principle of Steward v. Gromett[43] is clearly applicable, and the question at once arises whether the Judge, in granting the order to hold to bail, had any jurisdiction to finally determine between the parties whether there was or was not a cause of action. It is quite clear that he had no jurisdiction to finally decide that issue. It is familiar practice, as stated in Chitty's Archbold, that the Judge, before making the order, will not inquire into the existence of the cause of action any further than is necessary to satisfy himself that the claim is not obviously without foundation. If the debtor's case is, on the face of it, credible, and discloses primâ facie a cause of action, the Judge on any subsequent application to set aside the order cannot do otherwise than hold that there is a good cause of action for the purposes of that proceeding, no matter how strong a case the debtor might make out to the contrary. Under these circumstances it is clear that the proceedings, in so far as that issue is concerned, could not terminate in the debtor's favour, and that he was therefore under no obligation to set aside the order as a condition precedent to the commencement of his action.

[104]

It must, therefore, be taken as established that, if the appellant's complaint had been of ca. re. proceedings wrongfully taken in Victoria, it would have been necessary to show that before the issue of his writ the action had terminated in his favour. Similarly in an action for malicious prosecution brought in New South Wales, where the complaint was with respect to proceedings in a New South Wales Court similar proof would be required. But the proceedings complained of in this case were not proceedings in a Victorian Court, but proceedings in a New South Wales Court, and as I have already pointed out, the proceedings in a New South Wales Court must be regarded in the Courts of Victoria as proceedings of a foreign Court, and their recognition and effect in the Victorian Courts must be regulated by the principles of international law. Speaking generally, the State in which the action is brought will recognize and give full effect to the judgments of a foreign Court, that is to say, judgments on the merits which it was within the jurisdiction of the foreign Court to pronounce, and which are in the foreign Court final and conclusive between the parties; but it will not recognize the pendency of proceedings in the foreign Court otherwise than in exercising its discretion to control the conduct of the parties before it, nor will it give effect to the merely procedural requirements of the foreign Court. (Foote's Private International Law 2nd ed., p. 580; 1st ed., p. 477). Of this Huber v. Steiner[45] affords one illustration. It was there held that an action would lie in England on a promissory note made in France and payable in France, although the action in France would not have been maintainable by reason of a French Statute of Limitations, the limitation of time for bringing the action being procedural only. Scott v. Lord Seymour[46] affords another illustration. In that case an action was brought in England for an assault committed in Naples. In substance the pleas were, first, that penal proceedings had been taken by the plaintiff in the Courts of Naples against the defendant, and were still pending secondly, that according to Neapolitan law, an action would not lie for the assault until penal proceedings had been instituted and determined in Naples. Pollock C.B., in deciding on demurrer in the Court of Exchequer that the pleas were bad, held that the pendency of proceedings in a foreign Court was no answer to an action in an English Court for a wrong committed in the foreign country if the wrong was actionable by the laws of both countries; secondly, that the requiremement of Neapolitan law that a penal adjudication for the assault must precede the institution of civil proceedings was procedural only, and was no answer to the action. The case was afterwards taken on error to the Exchequer Chamber, and although the learned Judges there differed as to the construction of the pleadings, they all agreed with the Chief Baron's statement of law on the points I have mentioned. The appellant contends that, in applying the principles illustrated by these cases to the matter now under consideration, the facts essential to constitute the cause of action in New South Wales must be examined in order to separate those which constitute the wrongful act for which the laws of both States give a remedy from those which merely concern the procedure by which in each State the wrongfulness of the act must be proved. The wrongful act, it is argued, is the obtaining of the ca. re. order maliciously and without reasonable and probable cause; the termination of the action in the debtor's favour is a fact entirely distinct from that, having no relation to the wrongful act which gives the right to damages; it is not a constituent of the wrongful act, but merely a rule of evidence prescribing the mode in which the absence of reasonable and probable cause for the bringing of the action must be established. If the matter could be determined solely by the application of the principles which I have been considering I should find little difficulty in assenting to the appellant's reasoning. But the question cannot be considered apart from authority. No decision directly in point was cited during the argument, but the case of Taylor v. Ford[47], to which my brother Isaacs has called attention, demands consideration. The proceeding there complained of was the issue out of the District Court of Pennsylvania of a writ of attachment against a ship in an action brought in that Court against the shipowner. The latter afterwards in the English Courts sued the plaintiff in the Philadelphian action for damages in respect of that proceeding. He was nonsuited with leave reserved. The Court of Queen's Bench, consisting of Mr. Justice Blackburn, Mr. Justice Quain and Mr. Justice Archibald refused a rule nisi to set aside the nonsuit, and one of the grounds of decision was that the plaintiff had failed to prove the determination of the Philadelphian suit in his favour before the commencement of his action in England. It is thus on the face of it an authority against the appellant's contention, but I venture to think that it stretches the principle of recognizing the proceedings of a foreign Court by the comity of nations further than is warranted by the authorities. It is true that in the Philadelphian proceedings the right to issue the attachment arose without judicial intervention out of the writ in the action, just as the right to issue the writ of ca. re. arose in England before the enactment of 1 & 2 Vict. c. 110. But, as the English Courts have always held, no doubt by way of analogy to the old practice, that since the enactment of 1 & 2 Vict. c. 110, just as before it, a termination of the action in the debtor's favour must be shown before he can bring his action for malicious arrest, I do not see any sound ground for distinguishing the case of a writ for the attachment of a ship, though it follows as a right from the initiation of the action, from the case of a writ to arrest the debtor by virtue of an order to hold to bail under the New South Wales Statute. It follows that, though I cannot assent to the reasoning in Taylor v. Ford[48], I cannot disregard it, and if it were necessary to decide the point on the present appeal I should be obliged to determine whether I should follow it. But, having regard to the view which I take of the facts of this case in the aspect which I shall next mention, it becomes unnecessary for me to determine the question.

[105]

It was essential to the plaintiff's cause of action for malicious arrest to establish the absence of reasonable and probable cause. He has, I think, failed to give any evidence upon which a jury could lawfully find absence of reasonable and probable cause, and on that ground the defendants are entitled, in my opinion, to hold the judgment entered by the Supreme Court in their favour. My brother the Chief Justice has dealt so fully with the facts necessary to be considered on this view of the case that I do not think it necessary to do much more than express my concurrence in his reasoning and in his conclusions. Whether there was or was not reasonable and probable cause depended upon whether there was a completed contract on the letters and telegrams that had passed between the parties by themselves or their agents. That was a question of law upon which the defendant company took the opinion of their solicitor. There was no evidence of fraud or concealment in laying their case before him, nor any ground for suggesting that they did not honestly believe that the advice he gave them was right. I agree that the telegrams and letters which were not put before the defendant company's solicitor, and to which my brother the Chief Justice has referred in detail, were immaterial to the question upon which the solicitor was called upon to advise. One argument of the appellant's counsel on this part of the case deserved specially full consideration. He contended that there was evidence to go to the jury on the issue that the defendants were never really ready and willing to carry out the contract on their part by delivery of the ship, and, in support of that view, the communications oral and written between the defendants' representatives and certain officers of the Commonwealth were relied on. This incident, described as the belligerency incident, was not brought to the knowledge of the defendant company's solicitor, and the argument in respect of it was put in two ways. It afforded evidence, it was said, first, that the contract was illegal; secondly, that the defendants could not have been really ready and willing to deliver the ship to the plaintiff.

[107]

The other ground on which the belligerency incident was put forward stands on a different footing. It was I think open to the plaintiff to have contended at the trial that the belligerency incident furnished evidence from which the jury might lawfully infer that the defendant company, although they had after the happening of that incident formally offered the ship to the plaintiff and asked him to take her over, did not really intend to hand her over, were not ready and willing to perform the contract on their part, and therefore to their own knowledge had no cause of action against him. But the plaintiff did not at the trial raise that contention. Every reference made at the trial to the "belligerency incident" by the plaintiff's counsel and by the presiding Judge were examined during the course of the argument before this Court, and I entirely agree with the conclusion of my brother the Chief Justice that the only use made of the incident at the trial was to found the argument that the contract for the sale of the ship was to the defendant company's knowledge illegal and incapable of being enforced. The appellant is now therefore seeking to hold his judgment upon a view of the facts which he did not put before the jury, although he had the opportunity of doing so, with reference to which the Judge in his summing up told the jury no question was raised and upon which they have made no finding. I agree that the plaintiff cannot do that. Browne v. Dunn[49] is directly applicable to the position which has arisen on this appeal. It would be, as the learned Judges in that case decided, to use the language of Lord Bowen[50], "pessimi exempli, and contrary to all one's experience at Nisi Prius, and contrary to the best interests of justice, if a plaintiff, who had obtained a verdict from a jury upon one issue which he had presented to them, were allowed to sustain it by fishing out various causes of action, which he had not presented to the jury, and upon which their verdict was not asked for, and upon which damages unquestionably were not given." The principle there laid down is well worthy of adoption, and on this appeal the defendant company is in my opinion entitled to ask that this Court shall consider the facts only as they were presented by the plaintiff at the trial. Upon the facts as so presented it is clear to my mind that there was no evidence upon which the Judge could determine, or the jury under his direction could find, absence of reasonable and probable cause. Upon that ground I base my conclusion that at the trial judgment should have been entered for the defendant company, and that they are entitled now to hold the judgment entered in their favour by the Supreme Court.

[169]

The issue of reasonable and probable cause or none is one to be determined by the Judge. In that sense, and that sense only, is this a question of law - in the true sense it is a pure question of fact: per Lord Chelmsford in Lister v. Perryman[114]; per Lord Fitzgerald, in Abrath v. North Eastern Railway Co.[115]; and per Lord Macnaghten, in the Privy Council in Pestronji Mody v. Queen Insurance Co.[116]. That fact is an ultimate fact, dependent upon preliminary facts which constitute the surrounding circumstances. If these are contested the jury must find them - if there be a jury - and when they are found, or if they are not in dispute, the Judge proceeds to find by way of inference the ultimate fact constituting the subject of the issue. And so, when it is said that the question of whether or not the respondents were ready and willing to deliver the ship, supposing the contract already existed, was not submitted to the jury, that circumstance becomes unimportant if the matter were completely fought out, and were left, as it was, in such a condition that no man could reasonably find in any but one way, namely, adversely to the respondents. It would then be - as I find it was - within the power and the duty of the presiding Judge, see Davis v. Hardy[117]; Mitchell v. Williams[118], to find the respondents had no reasonable or probable cause for presenting to Pring J. and swearing the cause of action upon which the appellant was arrested. I fully recognize the importance of the principle that parties must be bound by the course they deliberately adopt at the trial. I have clearly expressed my views on this general principle in Rowe v. Australian United Steam Navigation Co. Ltd.[119], where I cited and acted on Nevill v. Fine Art and General Insurance Co. Ltd.[120], and Browne v. Dunn[121]. And if this matter required a finding of the jury on a controverted question of fact, or involved a dispute that was not fully fought out, I should consider the branch of the case met by the principle adverted to. But it does not. The case is outside that principle, so far as this point is concerned. The whole of the issues of preliminary facts necessary to enable and require the Judge to settle the issue as to reasonable and probable cause were hotly contested, but those as to which there was diverse evidence have been found by the jury, and the one that was not submitted is established by undisputed evidence, much of which comes from the respondents' own possession.

[173]

The appellant's case as to this is, first, that the ground of the then plaintiff's claim was a simple contract of sale of the ship, a constant readiness and willingness by respondents to transfer the ship, followed by a refusal to accept; and next, that the true facts were not disclosed but were knowingly suppressed, because, in truth, the respondents were not willing to transfer the ship, as it would in the circumstances have been a crime, an offence against the Imperial Foreign Enlistment Act 1870, that they not only must be taken to have known it, but in fact knew it, and had promised the Federal Government it should not be done. Further, the appellant contended the respondents were not prepared even to take the initial step of binding themselves by contract to do the illegal act; that the cables, afterwards relied on as a completed contract, were not intended by them to be so, and so the jury have found. I think there was ample evidence to sustain that finding, but that is now unimportant, and I pass on to the portion raising the considerations of law. Assuming the respondents were, and thought they were, parties to a completed contract, valid when made - in other words, assuming the full length to which the plaintiff's counsel pressed his contentions was not established, that does not end the matter. Suppose the contract itself stood, still, contract or no contract, the Imperial law forbade a certain act, imperilling Imperial obligations, and the appellant cannot, as I think, lose the benefit of the intermediate step which was in issue and fought, and must be assumed to have been decided by the jury in favour of the appellant, namely, that the respondents at the date of the alleged breach and the appellant's arrest, and ever after, had full knowledge or belief that the Peregrine was to be despatched for the military or naval service of the Russian Government in the war with Japan. The appellant Varawa was a Russian subject; this the respondents knew on 18th January. On that date he expressly told them the steamer, which was ex hypothesi sold for many thousands of pounds beyond its peace value, was wanted for the Russian Government, and afterwards would be used for commercial purposes. A plain, honest, unmistakeable statement, bearing directly on the warning of the Commonwealth Government and the respondents' promise a little over a month before, and there can hardly be a scintilla of doubt that the respondents knew well it would not only be a contravention not only of that promise, but also a step towards contravening the criminal law to assist in despatching a boat for that purpose. That the transfer of the vessel with knowledge of the transferee's purpose to utilize it in the military and naval service of the Russian Government would have been improper, seems to me to hardly to admit of argument. Sec. 8 of the Foreign Enlistment Act 1870 makes it penal for anyone who "despatches ... any ship with intent or knowledge, or having reasonable cause to believe that the same shall or will be employed in the military or naval service of any foreign State at war with any friendly State." The penalty being fine and imprisonment and forfeiture of the ship.

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Court

Decision date

Before

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Judgment (242 paragraphs)

Varawa v Howard Smith Company Ltd [1911] HCA 46; (1911) 13 CLR 35 (25 September 1911)

Parties

Legislation Cited (4)

Cases Cited (1)