Merchant Service Guild of Australasia v Archibald Currie & Co [1908] HCA 89; (1908) 5 CLR 737 (15 April 1908)

HIGH COURT OF AUSTRALIA

H C of A

15 April 1908

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

D. F. Ferguson and Flannery, for the claimants.

Knox K.C. (Piddington with him), for the respondents,

Ferguson, in reply,

April 15

Griffith C.J.

This is a case which has been referred for the opinion of this Court by the President of the Commonwealth Court of Conciliation and Arbitration. The claim is preferred by the Merchant Service Guild of Australasia, an organization of employés registered under the Commonwealth Conciliation and Arbitration Act 1904, claiming an award as between themselves and the respondents as to the wages, hours and conditions of labour of the respondents' officers at sea. The respondents are Archibald Currie & Co., individuals residing in Melbourne, and Archibald Currie and Co. Proprietary Limited, a joint stock company registered in Victoria. The ships in question are registered in Victoria, and are engaged in trade between Calcutta and the neighbouring ports and Australia, sometimes going to South Africa. They carry cargo and passengers to and from Asia, Australia and South Africa.

The ships' articles are always signed in Calcutta, not in Australia. The officers are all domiciled in Australia and are always engaged in Australia, although, as I have said, the articles are signed in Calcutta; and, although not entitled to be discharged at Australian ports, they are usually allowed to leave at such ports if they wish, with the consent of the master. The ships often make short trips from Calcutta to other Indian ports, but do no inter-State trade in Australia.

The claimants claim that under these circumstances the Commonwealth Court has jurisdiction to make an award which will govern the wages, hours and conditions of labour of the officers on those ships engaged in that trade.

Of course, the jurisdiction of the Commonwealth Courts and the operation of the Commonwealth laws extend only to places within the Commonwealth, except so far as a larger jurisdiction or operation is given to them by law. Sec. V. of the covering Act of the Constitution of the Commonwealth is as follows:? "This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the Courts, Judges, and people of every State, and of every part of the Commonwealth, notwithstanding anything in the laws of any State; and the laws of the Commonwealth shall be in force on all British Ships, the Queen's Ships of war excepted, whose first port of clearance and whose port of destination are in the Commonwealth." If reliance is placed on that provision, as, indeed, it must be, when the jurisdiction of the Commonwealth Court of Arbitration is invoked in this case, the question is whether these ships, while engaged in the trade I have described, are ships whose first port of clearance and whose port of destination are in the Commonwealth. The terms "first port of clearance" and "port of destination" are terms well known in shipping law. Every ship, before starting on a voyage, must obtain a clearance. The first port of clearance is the port where she gets her clearance on beginning a voyage. The port of destination obviously means the end of that voyage. So that the Act applies only to cases where the beginning and the end of a voyage are both in the Commonwealth.

Under these circumstances, it seems to me impossible to say that these ships, while engaged in the trade I have described, are ships "whose first port of clearance and whose port of destination are in the Commonwealth." The most favourable view that can be taken in favour of the claimants is to assume that their port of departure or first port of clearance is an Australian port, which is extremely doubtful. Regarding the case from that point of view, it is impossible to say that the port of destination is also in the Commonwealth. The question, therefore, must, in my opinion, be answered in the negative.

Numerous other questions were raised incidentally in the course of the argument as to what may be a voyage within the words of section 5, but on these I express no opinion.

Barton J.

I concur.

O'Connor J. read the following judgment:?

I shall confine my judgment to the one really substantial question upon which the opinion of this Court is sought, and I take it to be this:?Has the Commonwealth Court of Conciliation and Arbitration jurisdiction to settle this dispute, involving, as it does, the fixing of rates of wages and conditions of employment on the respondents' ships whilst voyaging on the High Seas to ports outside Australia?

The jurisdiction of that Court, as of any other Commonwealth Court, must, of course, be confined within the territorial limits over which the laws of the Commonwealth extend, and it is conceded that, apart from the provisions of section V. of the covering clauses of the Constitution, those laws can have no operation beyond the three miles sea limit around Commonwealth territory. The matter, therefore, for consideration is whether, under the circumstances set forth in the case, the voyage of the respondents' ships is such as to bring them within the meaning of the latter part of section V. That involves two questions. In the first place, what is the true interpretation of the words "whose first port of clearance and whose port of destination are in the Commonwealth?" Secondly, is there sufficient evidence before the Court that the voyage in which the ships are engaged is of the class to which the section, when rightly interpreted, applies?

The expressions "first port of clearance" and "port of destination" are clearly intended to describe the beginning and the end of one continuous voyage. There is no difficulty about the expression "first port of clearance." The Merchant Shipping Acts, all Custom Acts, and many Port Acts, require compliance with various requirements before a ship is permitted to go to sea. The certificate of the officer authorized by law to determine that the requirements have been complied with, is known as the "clearance certificate" or the "clearance." The first port of clearance would, therefore, ordinarily be the port from which the voyage begins. The expression "port of destination," which describes the other terminal point is not so free from ambiguity. It might be said, although Mr. Knox did not raise that contention, that the voyage intended to be described was merely from port to port within the Commonwealth. But that interpretation is not consistent with the whole provision. There can be only one "first port of clearance" on each voyage, and, in the case of a ship making an inter-State voyage round Australia, if the words "port of destination" were read as meaning the first port of call the section would apply only between the commencement of the voyage and that port, for the rest of the voyage it would have no operation. The only interpretation which will give any effective operation to the section is to take the port of destination as meaning port of "final destination" or last port of the voyage. The words of sec. V. would then be taken to describe a round voyage beginning and ending within the Commonwealth. That is the class of voyage to which, in my opinion, the section was intended to apply.

In coming to that conclusion I have, in accordance with a well known rule applicable to the interpretation of ambiguous expressions in a Statute, considered the state of facts which must be taken to have been within the knowledge of the British legislature at the time these covering clauses were passed. It was well known that a shipping trade carried on by ships owned and registered in Australia, and manned and officered by Australian citizens, had for many years existed in Australia and was rapidly increasing, and that it extended to New Zealand and the Islands of the Pacific and Indian ports, and that in the natural expansion of that trade Australia was destined to be the home port of a very extensive shipping trade with the East and the Islands of the Pacific. It was in recognition of the requirements of Australia in that respect that sec. 20 of the Federal Council Act 1885 was enacted, giving a much more extended operation to Australian laws passed under the authority of that Statute than is given to Commonwealth laws by the section now under consideration in its widest interpretation.

Under these circumstances it would appear not unreasonable to impute to the British legislature an intention to place the ships engaged on round voyages in such a trade in the same position as regards Australian laws as the ordinary British ship holds in regard to British laws, namely, that, while on a voyage coming within the meaning of the section, the Australian ship should be for the purposes of Commonwealth laws a floating portion of Commonwealth territory. That being the meaning of the section, it appears to me that, when once it is established that the voyage is of that description, it is immaterial to what part of the world it may extend. So that, if it were established that the voyage of the respondents' ships was a round voyage beginning at an Australian port, calling at Calcutta or any other foreign port, and ending in an Australian port, the ships during the whole of the voyage would be under the Commonwealth laws and under the jurisdiction of Commonwealth Courts. In the interpretation of the section, therefore, I see no reason to depart from the conclusion at which I arrived in delivering my award in the case of the Merchant Service Guild of Australasia v. The Commonwealth Steamship Owners' Association[1] . Whether, however, a voyage does or does not come within the section must always be a question of fact. It is upon this part of the case that the claimants must fail.

The proof of any fact necessary for jurisdiction must be on the claimants, and where jurisdiction depends upon the fact of the respondents' ships being engaged in a particular class of voyage, they must establish that fact before they can claim that jurisdiction exists. On the documents and evidence before us I can see nothing to show that the first port of clearance of the voyages of these ships is a port in Australia. The facts upon which Mr. Ferguson has relied, that the ships are owned, registered, repaired, and, as far as the officers are concerned, manned, by persons domiciled in Australia, are at most as consistent with the first port of clearance being in India as being in Australia. Indeed, the ship's articles, although in no way conclusive, would, in the absence of other evidence, appear to indicate that the commencement and end of the voyage was Calcutta rather than some Australian port. But even if the articles are to be left out of consideration in determining that question, it is clear to my mind that the claimants have not brought before the Court any evidence to show what are the terminal points of the voyage in which their ships are engaged, and have failed, therefore, to establish that their voyage is such as to bring them within that class in respect of which a specially extended jurisdiction is given to the laws and Courts of the Commonwealth under the section now under consideration.

I agree, therefore, that our answer to the question submitted in this case must be that the Commonwealth Court of Conciliation and Arbitration has, under the circumstances, no jurisdiction to settle the dispute.

Isaacs J.

I agree, on the ground that there are no facts upon which the learned President could conclude that there was an industrial dispute extending beyond the limits of any one State, or that the first port of clearance and port of destination of any of these voyages are both in the Commonwealth.

Higgins J.

I agree in the judgment pronounced by the Chief Justice, and desire to withhold all opinion as to the other matters that have been discussed, as they are matters which, in my opinion, do not really arise for decision in this case. I advisedly confined my question to the effect of sec. V. of the Constitution, and stopped all evidence as to the nature of the industrial dispute until that question should be settled. It was to be assumed for the purpose of this special case, that the claimants could show that the dispute extended beyond the limits of any one State. When the case came before me I could not see any evidence upon which I could find that these ships had their first port of clearance and port of destination in the Commonwealth. But I thought that some principle might possibly be found which would enable me to bind employers and employés as to wages, hours and conditions of labour beyond the limits mentioned, if, as here, the parties were resident in Australia and the employés were engaged in Australia; and I did not wish to preclude the claimants from establishing such a principle if they could do so. After the parties had had full opportunity for consideration of the matter, the claimants have failed to show me that there is any jurisdiction to settle the dispute.

Question answered in the negative.

Solicitors, for the claimants, W. C. Moseley.

Solicitors, for the respondents, Sly & Russell.

1. 1 Commonwealth Arbitration Rep., 1.