Cuming Smith & Company Pty Ltd v Melbourne Harbour Trust Commissioners [1905] HCA 27; (1905) 2 CLR 735 (24 August 1905)

HIGH COURT OF AUSTRALIA

Cuming Smith & Company Proprietary Limited Defendant, Appellant; and The Melbourne Harbour Trust Commissioners Plaintiffs, Respondents.

H C of A

On appeal from the Supreme Court of Victoria

24 August 1905

Griffith C.J., Barton and O'Connor JJ.

Coldham and Cussen, for the appellant.

Duffy K.C., Mitchell K.C. and Bevan, for the respondents,

24th August

Griffith C.J.

This case has been very fully argued, and the argument has left no doubt on our minds as to the conclusion at which we ought to arrive. The question is whether the material in question which formed the cargo of the ship "Emma", is "guano" within the meaning of sec. 110 of the Melbourne Harbor Trust Act 1890. It is conceded that the question for the Court is, whether at the time when that Act was passed, this material had acquired the name of "guano" in such a sense that Parliament must be understood to have included it in the term "guano" in the exception to sec. 110.

There was a great deal of evidence which was very fully discussed before us. For my own part I should be contented to rest upon the conclusions of fact at which Hood J., the Judge of first instance, arrived, and the reasons he gave for arriving at those conclusions, and also upon the reasons given by Holroyd J. on the appeal to the Full Court. But, as the matter was argued so fully, it is perhaps more satisfactory to the parties to state the conclusions which appear to follow from the evidence taken as a whole.

It is admitted, and is common ground to both parties, that "guano" is a term which was originally applied to deposits of bird droppings generally found on islands, sometimes in caves. Those droppings in the course of many years, centuries, or perhaps thousands or millions of years, have in many instances become consolidated, and on casual observation would appear to be a mineral. It is said that in some cases it is necessary to adopt blasting in order to get the material out. But the original sense in which the word "guano" was used was bird droppings either in an unconsolidated form or in a consolidated form as the result of rain falling upon them for a long period of time. The way in which Hood J. put it was "the meaning of the word must be confined to the deposit of sea birds whether leached or not." The question then is primâ facie whether the material in question comes within that definition. The defendants allege that in Victoria before 1890 the word "guano" had acquired a more extended meaning, and was no longer referable to the substance consisting of bird droppings lying upon the surface of the ground, but had been extended to everything found on certain islands, which has the same chemical constituents as the consolidated bird droppings. It appears from the evidence, and may be taken to be a matter of common knowledge, that these deposits were generally made upon coral islands in the Pacific. Everyone who has seen coral reefs knows that the surface is usually very uneven, and that there are often great depressions. In the course of time these vast deposits of bird droppings appear to have covered the coral and filled the depressions until the whole surface was level, much as the desert sandstone often covered great tracts of country filling up the inequalities to one level. The material has been then acted upon by rain which has consolidated portion of it and washed the rest away. That appears to be the ordinary way in which these deposits have been formed. It appears that there are several islands in the Pacific Ocean and the neighbouring seas from which this guano has been imported into Victoria for many years. Particular evidence was given as to two of them, Maldon Island and Ocean Island, and photographs were produced of the latter island. On that island the deposit is some feet in thickness, and in the course of working the underlying coral rock has been denuded. In the case of Maldon Island we have the evidence of two witnesses who have been there. One of them says that the depth of the deposit is from 2 to 6 feet, and that there are pockets which are very deep, some going below the level of the sea. The other witness gives similar evidence.

Hood J. was of opinion that the commercial use of the word "guano" had been extended to cover these deposits, although they had been consolidated so as to be hardly distinguishable from rock, and a good deal of evidence was given to show that it was known as rock phosphate. In the present case the defendant endeavoured first to prove that the material in question consisted of deposits of this sort, or, that if it did not, the term "guano" had been extended so as to cover other material of the same chemical constitution. The first point is not in question before this Court, nor was it before the Full Court, because it is formally admitted that the material in question was phosphatic rock, which was explained by Mr. Coldham to mean coralline rock phosphatized by overlying bird deposits. It appears that in some instances when guano properly so called has been lying for a long time upon coralline rock, the element of phosphorus in the guano has in some way passed down to and come into chemical combination with the element of lime in the coralline rock forming phosphate of lime. The question is whether the coral so changed in consequence of contact with the guano lying above it into phosphate of lime, which chemically is not distinguishable from the phosphate of lime in the guano, is guano.

It appears to me upon that question the onus is upon the parties alleging it.

We start with the proposition that "guano" means the deposit of bird droppings. It is said that in Melbourne guano means anything having certain properties which it has acquired from contact with bird droppings, or, as Mr. Cussen put it, "material arriving in bulk from overseas, containing a certain percentage of phosphates whether with or without nitrogen or whether in blocks or powder, at all events if such material comes from the guano islands of the Pacific." The onus is upon the defendant. How is it discharged? In order to discharge it, it appears to me the defendant must establish three things: first, that before 1890 material of that kind had been imported into Victoria; secondly, that persons knowing the nature of that material called it guano; and thirdly, that by their so doing the material had become commonly known as guano. I am bound to say that taking the whole of the evidence for the defendant, I do not find any evidence fit to be left to a jury on any one of these points. There was no evidence that any material of this sort was introduced into Victoria before 1890. The evidence is that Christmas Island, from which this material came, has only been used for a short time as a place from which phosphates have been obtained. Three cargoes have arrived in Melbourne within the last two years. That island is said to be of a singular character in that the deposits of guano have gone, and that nothing is left but the underlying coralline rock upon which the deposit had rested. On Maldon and Ocean Islands the deposit still remains. But if any material of this sort had been introduced into Victoria before 1890, and had been mistaken by some persons for guano—as it might have been—that would only prove that these persons thought something was guano which was not guano, and, without intending to mislead others, had called it guano. That seems to me a very different thing from saying that guano, instead of meaning the residue of bird droppings, had come to include rock phosphatized by bird droppings.

Shortly, the evidence on this point was that of two persons engaged in the importation of this material, who used the word without reference to origin, because for their purposes it made no difference where the material came from. All they were concerned with was the chemical constituents of the material. So long as it contained 80 per cent. of phosphates they were satisfied. So that on that point also it appears that the defendant failed. There was no evidence from which the Court could come to the conclusion that the word guano had the extended meaning for which the defendant contends.

The material being admitted to be not guano in the sense in which that term is generally accepted, or in the wider sense to which it had become extended, cannot be brought into Melbourne without paying the wharfage rate imposed by the Seventh Schedule, unless it can be so brought in by reason of the construction of the language of the Schedule itself, that is by holding that it is not within the words "goods not otherwise enumerated" because it is not ejusdem generis with the things mentioned immediately before. Upon that point I agree with the Supreme Court.

For these reasons I am of opinion that the appeal fails.

Even if the evidence had not been so clear as I think it is against the appellant, still it would have required a great preponderance of evidence in the appellant's favour to induce us to reverse a judgment of the Full Court in which they unanimously supported the judgment of the Judge of first instance on a question of fact. For these reasons the appeal will be dismissed.

Barton J.

I am entirely of the same opinion.

O'Connor J.

I am also of the same opinion.

Appeal dismissed with costs.

Solicitors, for appellant, Braham & Pirani.

Solicitors, for respondents, Malleson, England & Stewart.