Strachan v Commonwealth [1906] HCA 48; (1906) 4 CLR 455 (14 August 1906)

HIGH COURT OF AUSTRALIA

Alice S. H. Strachan Plaintiff; and The Commonwealth Defendants.

H C of A

14 August 1906

Griffith C.J. and O'Connor J.

L. Armstrong, for the plaintiff.

Shand K.C. and Bavin, for the defendants.

L. Armstrong, in reply,

Aug. 14

Griffith C.J.

This is an action brought by the plaintiff, who is the owner of a British ship called the "Envy," against the Commonwealth, seeking to make the defendants responsible for certain wrongful acts alleged to have been committed by officers of the Possession of British New Guinea within the territory of that Possession. These acts relate to the seizure of the ship and to wrongful dealings with the ship's papers, which have resulted in a loss to the plaintiff.

On a summons for directions it was ordered that the question whether the persons who did the alleged acts were at the time in question servants of the defendants in a way that would make the defendants liable should be referred to the Full Court. The alleged wrongful acts were committed in March 1905. Now the principle upon which the Government is responsible for the acts of its servants is the same as that which arises from the relations which exist between a master and his servant, and is stated by Erle C.J. in the well-known case of Tobin v. The Queen[1], in which, after referring to some arguments used to show that the Queen should be held responsible, he says[2]:—"But the argument for the suppliant fails, because in our judgment there is no analogy between the relation of the captain of a Queen's ship to the Queen, and the relation of servant to master or bailiff to sheriff, so as to create the liability here in question. The liability of a master for the act of his servant attaches in the case where the will of the master directs both the act to be done and the agent who is to do it. The act of the servant is then held to be the act of the master; and the servant acting in the course of his employment, is a general agent in that employment, and makes his principal liable for all that he does within the scope of his authority as such general agent; and, further, in respect of all his acts within the scope of that authority, they are the acts of the principal notwithstanding any private arrangement to the contrary between the principal and such agent."

The territory of British New Guinea was constituted by Letters Patent, dated 8th June 1888, into a separate Possession and government under the name of British New Guinea, the administration of which was entrusted to an officer called the Administrator, who was to act in accordance with instructions given him under the Sign Manual and Signet, or by Order in Council, or through one of the principal Secretaries of State. Provision was also made for the appointment of an Executive Council to advise and assist the Administrator, and also for a Legislative Council, which was empowered to make laws, establish Courts, and provide for the administration of justice generally, subject to any conditions and limitations prescribed from time to time by Order in Council, &c. The right of disallowing any law and of signifying such disallowance through one of the principal Secretaries of State was expressly reserved. The Administrator was also empowered to make grants of land and to appoint Judges and other officers.

The result of these letters patent was that British New Guinea became a Crown Colony which, however, differed from other Crown Colonies in respect of certain matters to which I will presently refer. By instructions of the same date the Administrator was directed to correspond with the Governor of Queensland on all subjects connected with his office, to transmit to him all official reports touching the same, and to apply to him for such instructions as he might require for guidance in the discharge of the duties of his office. The result was that the Governor of Queensland became the persona designata to exercise a control analogous to that exercised by the Secretary of State in the government of Crown Colonies properly so called. I should mention that under contemporaneous arrangement (recorded in the Statutes of Queensland) the Governor was instructed to consult his Ministers with respect to directions given to the Administrator. The net result was that British New Guinea became a Crown Colony, subject to such control by the Governor of Queensland as persona designata as Crown Colonies were subject to by the Secretary of State. It was not suggested that under such circumstances officers of British New Guinea or of the King would be officers of the Government of Queensland, or that the relation of master and servant existed between the Governor of Queensland and the Administrator of British New Guinea. Matters stood thus until 5th March 1902, when another Order in Council was made, and on 18th March further Letters Patent were issued reciting that the Senate and the House of Representatives had passed resolutions authorizing the acceptance of British New Guinea as territory of the Commonwealth. In the Papua Act 1905 these resolutions are more fully stated. The Letters Patent then went on to recite as follows:—"We do hereby place our Possession of British New Guinea under the authority of the Commonwealth of Australia. The Governor-General of our Commonwealth of Australia shall, so soon as the Parliament of the Commonwealth has made laws for the government of our Possession of British New Guinea, issue a proclamation signifying and declaring that the Parliament of the Commonwealth of Australia has made laws for the government of that Possession, and from and after the date of such proclamation (hereinafter referred to as the appointed day) the aforesaid Letters Patent of 8th June 1888 and any instructions which may from time to time have been given to any officer administering the government of British New Guinea, either under the Royal Sign Manual and Signet of Her late Majesty Queen Victoria or by the order of Her late Majesty Queen Victoria in her Privy Council or by her through one of her principal Secretaries of State with respect to the execution of any things that belong to the said office of Administrator of British New Guinea shall cease to have effect and shall be revoked without prejudice to anything lawfully done thereunder. The powers and authorities conferred by the said Letters Patent of 8th June 1888 and any instructions as aforesaid shall, until the appointed day, be read and construed as though any powers, authorities and duties thereby conferred or imposed upon the Governor of Queensland were conferred and imposed upon the Governor-General of our Commonwealth of Australia, and the said Letters Patent and instructions shall be construed and take effect with the substitution of the Governor-General of our Commonwealth of Australia for the Governor of Queensland." The proclamation referred to has not yet been issued, and the Letters Patent of 8th June 1888 remain in full force, with the substitution, in the instructions, of the Governor-General of the Commonwealth for the Governor of Queensland.

That, then, is the constitution of British New Guinea, and its relations to the Commonwealth are the same as those which it formerly bore to the Colony of Queensland. The relation is to the Governor-General, and not to the Commonwealth, strictly speaking. And the Governor-General consults his Ministers before giving any directions. Under these circumstances it is quite impossible to say that the officers of the Government of British New Guinea are in any way officers of the Commonwealth, or that the relation of master and servant exists between them. It was suggested by counsel for the plaintiff that the words in the Letters Patent of 18th March 1902, "We do hereby place our Possession of British New Guinea under the authority of the Commonwealth of Australia," do bring about such a relation. But these words can only be construed as enabling the Parliament of the Commonwealth to make laws for the government of that Possession. Up to the present, however, they have not done so. It has never been suggested that the relation of master and servant or principal and agent existed between the officers of the Government of a Crown Colony and the Sovereign in his capacity of Sovereign of the Empire, except perhaps in one case where a petition of right was brought in England against the Sovereign in respect of something done by officers of the Government of Upper Canada, and it was held that the petition did not lie: Holmes v. The Queen[3]. I think it is quite clear that a petition of right would not lie against the Sovereign in respect of an act done by a servant of a Crown Colony. Nor could the Governor-General of the Commonwealth be sued in the present form of action for an act done by officers of the Government of a British Possession, notwithstanding that the Possession is governed under the authority of a constitution made by the Parliament of the Commonwealth. In my opinion, this case is hopeless from every point of view. The defendants are not in any way responsible, in the sense in which that word is used in Courts of law, for the acts of the Government of British New Guinea. It is like the case of a dispute between nation and nation. If the subjects of one nation wrong the subjects of another, the matter is purely one for adjustment by diplomacy. Therefore the question submitted to us must be answered adversely to the plaintiff, and the action must be dismissed with costs.

O'Connor J.

It is sought to make the Commonwealth liable for certain acts of two officials of the Government of British New Guinea, committed in 1905. Mr. Armstrong has properly admitted that the liability of the Commonwealth for the acts of these officials rests upon the obligations, if any, which are imposed upon the Commonwealth by Letters Patent of 18th March 1902. The liability of the Commonwealth in such a case must be determined by the application of precisely the same principles as are applied in determining the liability of a master for the acts of his servant in any of the ordinary relations of life. These principles are laid down clearly in the case of Tobin v. The Queen[4], which has been cited by the Chief Justice, and it is only by the application of them that we can determine whether or not the Commonwealth is liable for the acts of these officials.

The effect of the Letters Patent of 18th March 1902 may be stated in a very few words. After some recitals, to which it is not necessary to refer, the first clause reads:—"We do hereby place our Possession of British New Guinea under the authority of the Commonwealth of Australia." That in itself creates no relation between the officials of the Government of British New Guinea and the Commonwealth. It is, apparently, a step taken by the British Government as preparatory to action by the Commonwealth under sec. 122 of the Constitution, which empowers the Parliament of the Commonwealth to make laws for the government of any territory placed by the Queen under the authority of, and accepted by, the Commonwealth. These Letters Patent thus placed the Possession of British New Guinea under the authority of the Commonwealth of Australia. But before the power arises to make laws for the territory, it must be accepted by the Commonwealth. The acceptance, of course, must follow the terms of the offer, and consequently it becomes necessary to see the terms on which the Possession of British New Guinea is placed under the authority of the Commonwealth. The second paragraph of the Letters Patent directs that the Governor-General of the Commonwealth shall, as soon as Parliament has made laws for the government of British New Guinea, issue a proclamation signifying and declaring that the Parliament of the Commonwealth has made laws for the government of that Possession, it being assumed that the laws made by the Parliament will be substituted for the laws of the Crown Colony constituted by Letters Patent of 8th June 1888. The third paragraph provides that the powers and authorities conferred by the Letters Patent of 8th June 1888, and any instructions thereunder, shall be read as if the powers therein conferred upon the Governor of Queensland were conferred upon the Governor-General. In other words, it substitutes the Governor-General of the Commonwealth for the Governor of Queensland in the Letters Patent and instructions. The fourth paragraph states that, whereas it is expedient that the provisions relating to this substitution should come into operation without delay, it is ordained and declared that these Letters Patent shall come into force forthwith.

The whole meaning of this document is that the Possession of British New Guinea is placed under the authority of the Commonwealth, but is nevertheless to maintain its own Constitution as created by the Letters Patent of 8th June 1888 until the Parliament makes laws conferring a Constitution upon it; and in the meantime the Governor-General is to be the persona designata on behalf of the British Government to correspond with and instruct the Administrator of British New Guinea. But the only power given to the Governor-General is that previously given to the Governor of Queensland. It becomes necessary, therefore, to refer to the position of the latter in the Constitution of British New Guinea under the Letters Patent of 8th June 1888. These Letters Patent embody no reference to any power or authority conferred upon the Governor of Queensland. They simply constitute British New Guinea a Crown Colony of the ordinary type presided over by a Governor or Administrator. An Administrator is appointed, and provision is also made for the appointment of a Governor or Lieutenant-Governor at any time the Crown may think proper. The Administrator is to act under instructions given him under the Sign Manual and Signet, or Order in Council, or by one of the principal Secretaries of State. The Letters Patent further provide for an Executive Council to advise the Administrator and for a Legislative Council. Within the terms of the Letters Patent the Colony is self-contained and has sufficient powers for its own needs, with the proviso that it has to communicate with the Secretary of State. Accompanying that Constitution, however, are the instructions to the Administrator, which provide for a reference to the Governor of Queensland; and the whole of the latter's authority under the instructions is defined by the second paragraph in the following terms:—"The Administrator shall correspond with the Governor on all subjects connected with his office, and shall transmit to him all official reports and information touching the same, and shall apply to the Governor for all such instructions as he may require for his guidance in the discharge of his office." The ninth paragraph further provides that minutes shall be regularly kept of all the proceedings of the Executive Council, and that a copy of such minutes shall be forwarded half yearly to the Governor for transmission to the Secretary of State.

The only object, apparently, for such a departure from the usual Constitution of a Crown Colony is that Australia, particularly that portion of it adjoining British New Guinea, is so vitally interested in the development of this Possession that, for the purpose of advising and instructing the Administrator on behalf of the British Government, it was felt to be desirable that there should always be at hand some person having that knowledge of local conditions, which it would be impossible for the Government in Downing Street to have always available. Save to the extent thus provided for, the Governor of Queensland has no authority over the Administrator or over the acts of officials of British New Guinea.

The Letters Patent of 18th March 1902 substitute the Governor-General for the Governor of Queensland in respect of the authority exercised by the latter; and there is no connection whatsoever between the Governor-General of the Commonwealth and the officials of this Crown Colony other than that defined by the paragraph referred to—that is to say, a directing or supervising authority, or an authority which makes the Governor-General the medium of communication between the Government of New Guinea and the Secretary of State for the British Government. But it is impossible from a relation of that kind to infer anything approaching that relation of a master and servant on which alone can rest any liability of the Commonwealth for the acts of these officials. I therefore agree with the Chief Justice that in this case it is clear that from the documents before us no liability on the part of the Commonwealth for the acts of these officials can be inferred. The two documents referred to by Mr. Shand bear out very strongly the position for which he contends. It appears that there are two commissions relating to the office of Administrator which show that, even after the proclamation, the British Government were treating officials of British New Guinea as being still under their control. By a commission dated 12th August 1898, Sir G. Le Hunte had been appointed Lieutenant-Governor in accordance with the Constitution created by the Letters Patent of 8th June 1888. Then by a revocation under the Royal Sign Manual and Signet, dated 9th April 1902, which recites the commission appointing Sir G. Le Hunte and the Letters Patent of 18th March 1902, it is provided that from and after the date of the issue by the Governor-General of a proclamation signifying and declaring that the Parliament had made laws for the government of British New Guinea, the commission of 12th August 1898 should be revoked and determined. The revocation is not to take effect immediately, but only when the proclamation has been issued by the Governor-General. Then, and not till then, does the Constitution, created by the Letters Patent of 8th June 1888, come to an end. Further, by a commission dated 6th April 1904, Captain Barton was appointed to administer the government, and it is expressly declared that his appointment is to have effect only until the issue of the proclamation already referred to. Both these documents seem to indicate in the plainest way that, not only was it the intention of the Letters Patent of 18th March 1902 to preserve the Constitution of British New Guinea as it was under the Letters Patent of 8th June 1888 until that Constitution was displaced by one created under the laws of the Commonwealth, but also indicate that the British Government acted upon that view by authorizing Sir G. Le. Hunte's appointment only up to the date of the proclamation and by confirming the term of Captain Barton's appointment to the same date. It follows that no liability for the acts of these officials was imposed on the Commonwealth under the Letters Patent of March 1902, and, as no other liability is contended for, the question before us must be answered adversely to the plaintiff.

Action dismissed with costs.

Solicitor, for plaintiff, A. J. McDonald.

Solicitors, for defendants, Macnamara & Smith for Crown Solicitor of Commonwealth.

[1] [1864] EngR 21; 16 C.B.N.S., 310.

[2] [1864] EngR 21; 16 C.B.N.S., 310, at p. 350.

[3] 31 L.J. Ch., 58.

[4] [1864] EngR 21; 16 C.B.N.S., 310, at p. 359.