Ferrier v Wilson [1906] HCA 77; (1906) 4 CLR 785 (10 December 1906)

This is an appeal from an order of Pring J. quashing a conviction by a magistrate on a complaint for a breach of a regulation made by the Sydney Harbour Trust Commissioners under their Act, No. 1 of 1901. The regulation, No. 139, is in these terms:—"Should any ashes or other material be allowed to fall into the waters of the port from any lighter licensed under these regulations the licence for such lighter shall be cancelled, and the owner of the said lighter shall be liable to a penalty of not exceeding one hundred pounds."

The facts may be briefly stated. The respondent was the owner of a lighter licensed by the Commissioners, which was being employed for the purpose of taking rubbish, or waste of some sort, from a vessel lying in Sydney Harbour, and on the evening of 28th May was moored alongside the vessel with a quantity of this material upon its deck. Next morning the lighter was found to have capsized, and the material which had been on its deck had of course fallen into the harbour. There was evidence to show that during the night there had been an extraordinary downpour of rain which might have led to a considerable discharge of water from the deck of the vessel on to the lighter, and that such a discharge might have caused the lighter to capsize. On the other hand there was evidence that, if the lighter had been in a proper state of repair, it would not have capsized from any such cause. The magistrate who heard the case has not stated what view he took of the facts. He has submitted all the evidence and stated the points raised by the defence, and has asked the question whether he was right in coming to the conclusion that, to use the words of the special case, "the matter hereinbefore stated afforded no ground of answer or defence to the said information." There is no doubt that the material did in fact fall off the deck of the lighter in the sense that I have mentioned, that is, that in the evening it was there, and in the morning it was in the harbour beneath. But under what circumstances it fell off, and whether anyone for whose acts or default the respondent was responsible was guilty of any negligence conducing to that event, are questions left undecided.

It was contended by the appellant that under the by-law the owner of a lighter is liable if under any circumstances whatever ashes fall from the lighter into the waters of the port. On an appeal to Pring J. by way of special case stated for the opinion of the Supreme Court, the learned Judge was of opinion that the by-law was ultra vires and bad, and also that, even if it were good, there was no evidence of any offence having been committed by the defendant. The learned Judge, as I understand his judgment, thought that the by-law was bad mainly on the ground that the same subject matter had been dealt with by the Statute itself, and, that where the legislature has dealt with a subject in a particular manner, a by-law under the same Statute on the same subject cannot make the same Act unlawful under different conditions.

In order to determine whether the by-law is ultra vires it is first of all necessary to decide what it means. The appellant contends that it covers every case in which the material referred to in it escapes, no matter how, from the deck of a lighter into the waters of the port. That construction, in my opinion, gives no effect to the word "allowed," which means, I think, that some person who has control of the lighter by his negligence permits the material, which ought to be retained on the lighter, to fall into the water. I, therefore, construe the by-law as limited to the case where somebody by negligence allows the event which ought to be prevented to happen. Then the by-law makes the licensee responsible. In my opinion that means that the licensee is responsible if material is allowed to fall off the lighter by reason of the permission or default of the licensee or any person to whom he delegates the control of the lighter. The term default used in that connection would, as it usually does, include the absence of such reasonable care as ought to be used in such circumstances for the prevention of such accidents.

That being the meaning of the by-law, was it within the power of the Commissioners to make it? The Act, after providing for the appointment of Commissioners, imposes upon them various duties regarding the general control of the port. I will only refer to two sections. Sec. 32 says:—"It shall be the duty of the Commissioners, according as they may think necessary, to dredge the port and keep it in fit and proper condition for navigation, and to prevent any filling or silting up of the channels or other waterways of the port." Sec. 33 says:—"The exclusive control of the port and of the shipping, lighthouses, lightships, leading lights and marks, buoys, beacons, moorings, wharves, docks, piers, jetties, ferries ... landing-stages, slips or platforms, and the preservation and improvement of the port generally, are hereby vested in the Commissioners." Sec. 80 empowers them to make regulations on various enumerated subjects, one of which is (h) "the improvement and management of the port." Then follows a general provision in these words:—"And generally for duly administering and carrying out the powers vested in the Commissioners by this Act." I am of opinion that under one or the other of these clauses the Commissioners have power to make by-laws to prevent the silting up of the channels of the port, and that a provision for preventing rubbish from being allowed negligently to fall into the water is within that power.

But, it is said, and this argument seems to have impressed the learned Judge of the Supreme Court, the legislature has already dealt with this subject. Sec. 86 provides that:—"Every person who unloads, puts, or throws into any part of the port or on any shore or ground in the port below high-water mark at ordinary tides, any rubbish, earth, ashes, dirt, mud, soil, or other matter, or allows any offensive matter to flow into the port, shall forfeit for every such offence any sum not exceeding one hundred pounds."

It will be observed at once that that section deals only with acts of commission, not with acts of omission, and it does not, it appears to me, cover nearly all the cases which it is necessary to cover in order to prevent the silting up of the waters of the port. I quite agree that if the legislature deals with a particular act, and prescribes the conditions under which it will be lawful and those under which it will be unlawful, the subordinate authority cannot, under the pretence of making a by-law, alter the law as so declared by the legislature. But when the legislature does not do that, then so far as the matter is left untouched by the express provisions of the Act, the powers of the delegated authority to deal with it by by-law are not affected. It appears to me that this by-law does not make unlawful anything that the legislature has declared to be lawful, and therefore it is not repugnant to sec. 86. That section was clearly not intended to be an exclusive and exhaustive dealing with the subject; for it deals, amongst other things, with persons who "allow any offensive matter to flow into the port," and yet the Act elsewhere confers upon the Commissioners express power to make by-laws for the regulation and control of the use of sanitary conveniences on board vessels within the port: sec. 80, sub-sec. (l). I think, therefore, that the by-law is within the express powers conferred by the Act, and is not obnoxious to any of its express provisions, and, construed as I construe it, is valid.

Another objection taken was that the by-law was bad because or so far as it made the existence of mens rea immaterial to the offence. I confess I do not know exactly what is meant by that objection. There is no general rule of law that I know of that an act may not be made punishable without mens rea. There are innumerable instances nowadays in which mens rea is not an essential element of an offence. If the Commissioners have power to make regulations prohibiting persons from negligently allowing material to fall into the waters of the harbour, then the offence created by the by-law is negligently allowing the thing which the legislature says is not to be done. So far as mens rea is necessary to constitute an offence it is present. It is not necessary to deal with that objection further.

The learned Judge, having come to the conclusion that the by-law was ultra vires on the ground that the Act only intended such acts as throwing the rubbish into the harbour to be punishable, went on to say:—"But even assuming it to be intra vires, I think on the evidence that the appellant should not have been convicted, because he could not be held responsible for every possible contingency that might occur after the punt was placed alongside the vessel." I quite agree with His Honor in that. The construction which I put upon the by-law is that the owner of a lighter is not to be held responsible for every possible contingency that occurs. But, regarding the matter from that point of view, it does not appear what opinion the magistrate formed on the facts. Nor do we know what construction he put upon the by-law, whether he accepted the construction that the owner was to be held responsible for whatever occurs, or the construction which I have just stated to be in my opinion the proper one. There is nothing to show that he applied his mind to the right question at all. Even if he was of opinion that the offence was not proved unless the falling of the rubbish into the harbour was shown to be owing to the default of the defendant, it may be that on the evidence he thought that the owner had in that sense allowed it to fall. Under these circumstances the case should go back to the magistrate for further consideration. He will, of course, be guided in his determination of the case by what has been said by this Court.

This special case arises out of a regulation or by-law made under the Harbour Trust Act 1901. [His Honor read the by-law and continued.] For the purpose of testing the by-law under which the prosecution was brought it is necessary to have recourse to the sections of the Act defining the powers and duties of the Commissioners, in order to see whether such a by-law could validly and properly be made. Now, the first section in the Act that has any particular reference to that consideration is sec. 27, which vests in the Commissioners, upon trust for the purposes of the Act, the bed and shores of the waters of the port, and with relation to that it is provided by sec. 32 that "it shall be the duty of the Commissioners, according as they may think necessary, to dredge the port and keep it in fit and proper condition for navigation, and to prevent any filling or silting up of the channels or other waterways of the port," and that they "shall keep or cause to be kept in fit and proper condition all public wharves and quays, and dredge and deepen the port fronting the same," and so on. Sec. 33 vests in the Commissioners the exclusive control of the port and shipping, and the preservation and improvement of the port generally. By sec. 47 the Commissioners are empowered, for the purpose of maintaining and improving the navigation within the port, to dredge, cleanse and scour the rivers, and alter, deepen, cleanse and enlarge the channels within the port, and to abate and remove impediments and nuisances which may tend to obstruct the free navigation of the port. After all these enactments comes sec. 80, which gives the Commissioners power to make regulations for and relating to a great number of subjects, of which I may mention the improvement and management of the port, and more particularly the general power at the end of the section "and generally for duly administering and carrying out the powers vested in the Commissioners by this Act." Looking at the nature of the subjects of the power, some of which I have detailed, one must come to the conclusion that this regulation is one made for duly carrying out the powers vested in the Commissioners. Then is this regulation, which is upon a subject matter within the powers of the Commissioners, in other respects good? What is its meaning? The words are "allowing ashes or other material to fall into the waters of the port." What is the force of the word "allow"? That is the first question. The next question is, whether the owner is responsible for the acts of every person who may "allow" such material to fall into the port? As has been already said, the lighter, the vessel from which the material fell, or is alleged to have fallen, into the harbour, was a lighter licensed under this Act. The regulations provide for the licensing of the lighter, and the Schedule deals with the licensing of the owner of the lighter. Some question was raised as to whether it was the owner or the lighter that was licensed, but it does not seem to me to matter very much which it is. At any rate, the owner is licensed in respect of his lighter.

I find great difficulty in coming to the conclusion that the owner can be said to have allowed the material to fall into the water unless he has some knowledge of the matter. Whatever may be the meaning of the expression mens rea in other instances, it seems to me that, for the purposes of prosecutions of this kind, it may very well be defined as the intention to commit an act known to be forbidden by the law. There may, of course, be expressions in an enactment which rebut the presumption that that intentional commission is the only thing the legislature aimed at, and which make an act or omission the subject of criminal liability, no matter whether such intention exists or not. That can be done only by express words of the enactment or by necessary implication, as appears from the case of Massey v. Morriss[1]. There the owner of a British ship, which was overloaded without his knowledge or consent by the master in breach of the provisions of sec. 28 of the Merchant Shipping Act 1876, was held not to be responsible for the act of the master so as to be liable to the penalty enacted by the section. The section read thus:—"Any owner or master of a British ship who allows the ship to be so loaded as to submerge in salt water the centre of the disc shall, for each offence, incur a penalty not exceeding one hundred pounds." The evidence was that the appellant was the owner of a British ship which sailed from Greece for Garston. When the ship left port she was loaded so as to submerge in salt water the centre of the disc to the knowledge of the master. The owner was summoned under the section for having allowed the ship to be so overloaded in breach of the section, and the stipendiary magistrate convicted him subject to a case for the opinion of the Court. The question was whether the responsibility was thrown upon the owner or the master. Cave J. said[2]:—"This case seems to me to be reasonably clear," and after referring to the section continued:—"Then, did the appellant allow the ship to be so loaded? There is no evidence whatever that he did so unless the mere fact that he appointed the master who allowed it to be done amounted to an allowing of it by himself. But I do not think that could possibly have been the intention of the legislature. Of course, there may in some cases be circumstances from which you may fairly draw the conclusion that the owner appointed a particular master knowing that he would overload the ship, and intending that he should do so; but there is no evidence of any such circumstance here. There is nothing beyond the bare fact that the appellant appointed the master, and that is not enough." His Honor then dealt with the alehouse cases and pointed out that they were not analogous. I cannot see any escape from the reasoning of that short judgment. The owner could not possibly be there held to have even formed the intention to commit any act known by him to be forbidden by law. So here an owner has not himself, within the meaning of this regulation in which the words are pro tanto similar, allowed material to fall unless he has some knowledge of the matter. But that is not enough to save him, because the owner may be responsible under this by-law for the act of somebody else who has allowed the material to fall. What is an "allowing" by any person not being the owner? In that case, I think, the principle of the same case applies as to the person not being the owner whose conduct is made the foundation of the charge. He in turn has not allowed the material to fall if the thing has been purely accidental.

But if it has occurred within his knowledge or by his negligence, he has allowed it. I think that is the sense in which the term is used, and therefore the master may be responsible under this by-law. But is the owner responsible whoever may allow the thing to happen? There are two possible constructions: first that the owner is responsible even if a perfect stranger who is on board his lighter allows some material to fall from it into the water, even though the owner knows nothing of the matter. That is a construction so monstrous to my mind that it is not to be contemplated as the meaning of the regulation, and, moreover, if that were the proper construction, I doubt whether the statutory powers of the Commissioners would be an authority for making such a regulation. But if the owner is to be made responsible under this regulation, I agree with the Chief Justice in thinking that the person for whose act the owner is liable, must be some person whose action within the scope of his authority, would render the owner liable in a civil action for negligence. I think that is the sort of responsibility at which the regulation is aimed. It is contended that, where the person actually controlling the lighter is in the employment of the owner, or is one to whom the owner has delegated the control, or in whose hands he has placed the lighter, the owner is not divested of responsibility: that where a person acting under the authority of the owner is guilty of such default or negligence as results in the escape of this material into the water, then in that case the owner, and not merely the person actually guilty of the default or negligence, is responsible under this regulation. It is for the owner, that is to say, to see that he acts with care himself by placing a careful and responsible person in charge. If such person turns out not to be of that character, that is, if by his specific negligence or default he allows material to escape, it is the intention of this regulation to make the owner responsible. That is a reading of it which, as between the two readings which I have mentioned, is the reasonable one. And, seeing that the regulation is within the scope of the powers conferred as to subject matter, it is reasonable beyond all question in the sense in which that term is applied to by-laws and regulations. In this connection I refer to the case of Institute of Patent Agents v. Lockwood[3]. That was a case involving the construction of the Patents, Designs and Trade Marks Acts of 1883 and 1888, under which the Board of Trade had a general power to make rules for regulating the practice of registration, and the general rules when made were to be of the same effect as if they were contained in the Act. The rules were to be laid before both Houses of Parliament, as under this Act, and if either House within a certain time resolved that any of them ought to be annulled, they were from that time to be of no effect. By the Act of 1888 it was provided that no person should describe himself as a patent agent without registration, under a penalty. A person was prosecuted for describing himself as a patent agent, against the prohibition. He claimed to have been practising as a patent agent before the passing of the Act and therefore entitled to registration, and he alleged that he was so entitled without fee and for ever. That claim was not sustained, and it was held that certain rules made by the Board of Trade known as the "Register of Patent Agents Rules 1889," which had been laid before Parliament and to which no objection had there been taken, and which provided, amongst other things, for the payment of an entrance fee, and an annual fee by all patent agents on the register, and for erasure from the register of the name of any person whose annual fee was not paid, were intra vires, and that, so long as such rules remained in force, it was not competent to question their authority, and, Lord Morris dissenting, that the Court could not interfere with their enforcement. And here, although there is so little similarity between the constitution of the Board of Trade and that of the Sydney Harbour Trust, it may be argued with great reason that it is not competent to question the authority of any rule made under the powers given to the latter body by the Act. But be that as it may, the by-law as we construe it does not come within the category mentioned by Lord Morris, in dissenting, as objectionable, but is obviously a reasonable exercise of the powers conferred by the Act, not only as to scope and as to subject matter, but as to the character of its provisions. I am of opinion, therefore, that whenever there is such a negligence or default on the part of a person acting under the authority of his employer, and within the scope of his authority, as results in material of this kind being allowed to fall into the port with his knowledge or by his default, then the intention is to make the owner, who ought in view of the requirements of this regulation to have provided against accident by appointing careful people to undertake the duties, responsible if, in view of the nature of the case, the facts are such as would have established a civil complaint of negligence against him at the suit of any other person. That being the construction of the by-law which seems to me the right one, I think that the by-law is consequently intra vires and reasonable.

I agree with His Honor on the further question that the stipendiary magistrate should not have satisfied himself by merely stating the evidence which was before him, but should have found specifically as to the facts and made a ruling upon them, and then remitted the question to the higher Court as a finding of fact and law. The case must therefore go down to him in order that these requirements may be fulfilled.

As to the facts of this particular case, I have nothing to add to what has fallen from the learned Chief Justice. But on the important question raised as to the validity of Regulation 139, I propose to add my reasons for concurring in the judgment of the Court.

Having regard to the objects of the Sydney Harbour Trust Act 1900, the public character of the Commissioners, and the nature and extent of their powers and duties, sec. 80 of the Act must be read as conferring ample authority to pass a regulation of this description. By the express words of that section regulations may be made for and relating to the following subjects (inter alia), the improvement and management of the port, any purpose relating to the convenience of shipping or of the public within the port, and generally for duly administering and carrying out the powers vested in the Commissioners by the Act. Those powers include the preservation and exclusive control of the port and its proper maintenance for navigation. I do not entertain any doubt that, so far as sec. 80 is concerned, it extends to such matters as form the subject of the regulation in this case. It is however contended that any primâ facie authority of the Commissioners to regulate is cut down by necessary inference from sec. 86. The argument is that sec. 86 has expressly dealt with the subject of rubbish and other material getting into the port, and the legislature having taken the question into its own consideration and defined the conduct that is to be penalised, it is ultra vires of the Commissioners to extend the field of criminalty by making that an offence which Parliament has intentionally left innocent. But the powers having been conferred by sec. 80 in the widest terms and not anywhere expressly cut down, the inference relied on cannot arise except repugnancy is to be necessarily implied. Sec. 86 is a general provision, the primary intent of which is plainly directed to the prevention of pollution or obstruction, from the shore, and not to the operations of lighters or to materials falling from them into the port, although its words may be large enough to include them in many instances. It is not, in my opinion, a reasonable construction of that section to hold that the legislature deliberately intended by its provisions to exhaust the whole category of injurious interference by this means and to secure immunity to the introduction of all substances, however objectionable and in any quantity, into the port, provided only there was no contravention of sec. 86. But unless that is so, there is no implied prohibition against providing by regulation that lighters are not by the negligence or recklessness of their owners to be made the vehicles for discharging what the regulation describes as "ashes and other material" into the port of Sydney. The reasoning of Lord Campbell C.J. in Edmonds v. The Master &c. of Watermen and Lightermen[4] seems entirely apposite. He said:—"The by-law is not necessarily inconsistent with the provisions and directions of the Act, although it forbids that which the Act did not forbid. It does not seek to forbid anything which the Act directed to be done, and there is no provision of the Act which, the by-law being enforced, will not have its full operation."

The regulation is therefore within the ambit of authority granted to the Commissioners. It is however further challenged as being unreasonable, and therefore invalid. The unreasonableness alleged is that the owner of a lighter may be held responsible for an act or omission which he neither personally committed nor authorized, and which he never even knew of, and without any mens rea on his part. At first glance the argument seems to have weight, but not when all the circumstances are taken into consideration.

The Commissioners with the approval of the Governor in Council have prohibited the employment of lighters unless licensed as provided by the regulation. The mode prescribed is to grant a licence to the owner to use a particular lighter. Considerations of public security, order, convenience, health, and revenue, as well as the protection of the port, are among those which may properly suggest and support such a regulation. But once a licence is issued, it is impossible to dissociate the licensee from the use of the licensed lighter, so as to make its employment a matter wholly unconnected with him. The law grants him in respect of his lighter a privilege, and looks to him to control and supervise its operations. He cannot be allowed to take the benefits and escape the responsibilities which his privilege imports. He is not bound to personally direct the operations of his lighter, he has the choice of a person to do so for him, but he cannot complain if he is asked to accept the ordinary consequences of acting by an agent, and to be responsible for that agent's wrongful acts or omissions.

If the agent by permission or acquiescence is instrumental in transferring ashes or other materials from the lighter into the port, the owner may justly be held to answer for it, and it is, in my opinion, no justification for him to say merely that he was never personally concerned in the specific act complained of. So also, if the agent by reason of negligence does not prevent the material from falling into the water. The case is still stronger against the owner if, in circumstances of probable risk that the material will fall into the port unless care is taken to avoid it, he neither personally directs the lighter, nor places some other person in control of it; but practically, and without regard to consequences, abandons his duty of control. In any of these events the regulation is contravened because the material is "allowed" to fall into the water from the lighter, and the owner is properly held responsible. The necessary protection of public interests brings this case within the scope of such cases as Commissioners of Police v. Cartman[5]. But, if wholly by some unavoidable accident, or the wilful act of some persons who cannot fairly be said to be the agent of the owner, the material finds its way into the port, then it cannot, in relation to the owner or within the meaning of this regulation, be said to be "allowed" to fall into the water from the lighter.

I should not be prepared to hold this regulation unreasonable in any sense, and still less in the only sense in which unreasonableness is a ground of invalidity.

A Court is not at liberty to declare a regulation or by-law invalid on the ground of unreasonableness merely because the Court may think it could be more fairly framed, or so as to bear with less hardship on those affected. Such considerations are here entrusted to high public functionaries, and although the ultimate power of supervision remains in the Court, it is only for the purpose of confining the rule making power within the limits of its jurisdiction, and not for correcting any possible unwisdom in its determinations. In Kruse v. Johnson[6] a Divisional Court, specially constituted for the purpose, reviewed the question of unreasonableness of by-laws, and Lord Russell of Killowen C.J., while maintaining the authority of the Court to condemn by-laws as invalid because unreasonable, said[7]:—"But unreasonable in what sense? If, for instance, they were found to be partial and unequal in their operation as between different classes; if they were manifestly unjust; if they disclosed bad faith; if they involved such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men, the Court might well say Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires. But it is in this sense, and in this sense only, as I conceive, that the question of unreasonableness can properly be regarded."

The reluctance of the Court to declare void for unreasonableness a regulation made by a public authority, having no possible object but the general welfare, naturally approaches its extreme limit when the regulation, as here, is required by the legislature to be approved by the highest executive authority of the State, and to be brought under the direct notice of Parliament itself.

When all the circumstances are borne in mind the objection of invalidity for unreasonableness is in my opinion impossible to sustain.

[1] (1894) 2 Q.B., 412.

[2] (1894) 2 Q.B., 412, at p. 413.

[3] (1894) A.C., 347.

[4] 24 L.J.M.C., 124, at p. 128.

[5] (1896) 1 Q.B., 655.

[6] (1898) 2 Q.B., 91.

[7] (1898) 2 Q.B., 91, at p. 99.

High Court of Australia

Ferrier v Wilson [1906] HCA 77; (1906) 4 CLR 785 (10 December 1906)

HIGH COURT OF AUSTRALIA