13 ALR 631 [3/1905]

• Jurisdiction: Papua New Guinea
• Court: High Court
• Judge: O'Connor J:
• Judgment Date: 14 August 1906
• Citation: (1906) 4 CLR 455; 13 ALR 631 [3/1905]
• Year: 1906
• Docket Number: Alice SH Strachan v The Commonwealth (1906) 4 CLR 455

Full Title: Alice SH Strachan v The Commonwealth (1906) 4 CLR 455; 13 ALR 631 [3/1905]

High Court: Griffith CJ, O'Connor J

Judgment Delivered: 14 August 1906

1 Action against Commonwealth—Liability for tortious acts of officials of British New Guinea—Territory placed under administrative control of Governor–General—Crown colony—Acceptance of territory by Commonwealth—The Constitution (63 & 64 Vict), s122—Order in Council of March 1902.

2

___________________________

Prior to 6 March 1902, British New Guinea was a Crown Colony under an administrator, who was subject to the control of the Governor of Queensland, acting with the advice of his ministers, in the same way as ordinary Crown Colonies are to that of the Secretary of State. By Order in Council of 6 March 1902 and Letters Patent of the 18th of the same month, the Possession was placed under the authority of the Commonwealth, and the Governor–General was authorised, as soon as the Parliament should make laws for the government of the Possession, to issue a proclamation declaring that that had been done, and from that date the Letters Patent dealing with the administration of the Possession and the instructions issued thereunder should be revoked, and until the appointed day the Governor–General was invested with the powers and duties formerly entrusted to the Governor of Queensland.

The plaintiff brought an action in the High Court against the Commonwealth to recover damages in respect of alleged wrongful acts of officers of the Possession, committed at a date prior to any legislation by the Commonwealth on the subject of New Guinea.

Held, that until such legislation took place, and the proclamation consequent thereon was made, no such relationship of master and servant existed between the Commonwealth Government and the officials of the possession as would render the Commonwealth liable in an action of tort for wrongful acts of such officers.

Tobin v R, 16 CBNS 310, applied. 4 CLR 455

Tobin v R 16 CBNS 310 Holmes v R 31 LJ Ch 58

__________________________________________________

1906: SYDNEY, July, 30, 31; Aug. 14.

Prior to 6th March 1902, British New Guinea was a Crown Colony under an administrator, who was subject to the control of the Governor of Queensland, acting with the advice of his ministers, in the same way as ordinary Crown Colonies are to that of the Secretary of State. By Order in Council of 6th March 1902 and Letters Patent of the 18th of the same month, the Possession was placed under the authority of the Commonwealth, and the Governor–General was authorised, as soon as the Parliament should make laws for the government of the Possession, to issue a proclamation declaring that that had been done, and from that date the Letters Patent dealing with the administration of the Possession and the instructions issued thereunder should be revoked, and until the appointed day the Governor–General was invested with the powers and duties formerly entrusted to the Governor of Queensland.

The plaintiff brought an action in the High Court against the Commonwealth to recover damages in respect of alleged wrongful acts of officers of the Possession, committed at a date prior to any legislation by the Commonwealth on the subject of New Guinea.

Held, that until such legislation took place, and the proclamation consequent thereon was made, no such relationship of master and servant existed between the Commonwealth Government and the officials of the possession as would render the Commonwealth liable in an action of tort for wrongful acts of such officers.

Tobin v R, 16 CBNS 310, applied.

CASE referred for consideration of the Full Court.

This was an action brought by the plaintiff, who was the owner of a British ship called the "Envy," against the Commonwealth, seeking to make the defendants liable for certain wrongful acts alleged to have been committed by officers of the Possession of British New Guinea within the territory of that possession.

The statement of claim—after referring to the Royal Letters Patent of 8th June 1888 erecting British New Guinea into a separate British Possession and providing for the government of the country, Order in Council of 8th February 1896 defining the boundaries of the Possession, and Order in Council of 18th March 1902 placing the Possession under the authority of the Commonwealth and revoking the Letters Patent of 8th June 1888 as from the date when the Governor–General of the Commonwealth should proclaim that the Commonwealth had made laws for British New Guinea and making other provisions—went on to allege that the Governor–General had not made such proclamation at the time this action was begun, and then set out the circumstances under which the claim arose, which were shortly as follows:—At the time when the alleged wrongs were committed the positions of Resident Magistrate and sub–collector of Customs at Daru in British New Guinea were filled by persons named Jiear and Fitzgerald respectively, who it was alleged were confirmed in their offices by the Commonwealth after 18 March 1902. The plaintiff's schooner "Envy" was on 2 May 1905 on a trading cruise among the island near New Guinea, and being in distress and leaking fast put in at the mouth of the Katau River near Daru and anchored beyond the three mile limit. The master, the husband of the plaintiff, went in a ship's boat to the shore and asked permission to beach the schooner, but the natives, acting under the alleged instructions of the Commonwealth officers, refused to allow him to land, and directed him to proceed to Daru, which was about 16 miles away. He therefore went to Daru and informed Jiear and Fitzgerald of the condition of the schooner. Fitzgerald demanded to see the ship's papers, which were handed to him accordingly, and by his orders the schooner was searched and the papers detained without any lawful excuse, and the schooner prevented from putting into Katau. The plaintiff alleged that by reason of these acts she was injured in her business iii of trading with the schooner, and put to great expense in sailing away elsewhere to have the schooner repaired, and injured in her credit and reputation. It was also alleged that afterwards the servants of the Commonwealth wrongfully detained the schooner at Samarai, and refused to allow her to be cleared at the Customs because of the absence of the ship's papers, which were detained by the defendants' servants. There was also a claim for remuneration for carrying the Royal mails and for loss of time in connection therewith. The plaintiff claimed £7,900.

The statement of defence denied that Jiear and Fitzgerald were appointed or acting under the authority of the Commonwealth as alleged, and either denied, or did not admit, all the material allegations of fact in the statement of claim, and, as to the claim for carrying the mails, said that British New Guinea was not at that time a State or part of the Commonwealth, and therefore the Commonwealth was not liable to pay any remuneration to the plaintiff in respect of it. It was also alleged that anything done by Jiear or Fitzgerald with reference to the schooner was done in the execution of their duty and in pursuance of powers vested in them by the Laws and Acts of British New Guinea and the Merchant Shipping Act 1894.

Issue having been joined, a summons was taken out by the defendants for directions for the trial of the preliminary issue whether Jiear and Fitzgerald and other persons, who did the alleged acts in respect of which the action was brought, were at the times in question servants of the Commonwealth so as to make the Commonwealth liable for their acts, and Griffith CJ, before whom the matter came, ordered that that issue be determined before the trial of any issues of fact, and referred the question to the Full Court.

The material portions of the Letters Patent, Orders in Council, and other documents referred to are sufficiently stated in the judgments.

L. Armstrong, for the plaintiff. The Commonwealth are responsible for the wrongful acts of the officers of British New Guinea by virtue of the acceptance by the Commonwealth Parliament of the territory of the possession from His Majesty. By Order in Council of March 1902 it was provided that, on a proclamation by the Governor–General of the Commonwealth that the Parliament had made laws for the hearing of appeals from the Courts of British New Guinea, the Orders in Council of 17 May 1888 and 24 November 1891, which provided for such appeals, should be revoked. The Letters Patent of 18 March 1902 placed the Possession under the authority of the Commonwealth, and provided that the Governor–General should, so soon as Parliament had made laws for the...