Melbourne v Howard Smith Company Ltd [1911] HCA 43; (1911) 13 CLR 253 (21 September 1911)

The Mayor, Aldermen, Councillors and Citizens of the City of Melbourne Respondents, Appellants; and Howard Smith Company Ltd Appellants. Respondents.

The wharves in the Port of Melbourne are vested in the Melbourne Harbor Trust Commissioners. The respondents are shipowners and have a preferential right of occupancy of certain wharves belonging to the Commissioners. I use that neutral expression "right of occupancy" instead of the word "occupation." The Statute under which the respondents enjoy that right, the documents conferring it and the nature of the occupancy, are not distinguishable in any respect from the Statute, the documents and the nature of the occupancy in the case of Rochdale Canal Co. v. Brewster[1]. In that case it was held that under the circumstances the plaintiff company were not in exclusive occupation of the wharves and land, and were therefore not liable to be rated under the Poor Laws under which exclusive occupation is necessary to impose liability. It is therefore not arguable in this case that the respondents are in exclusive occupation of the wharves, or berths, as they are called.

But another argument was set up in this Court—I do not quite know whether it was set up in the Supreme Court—it is not mentioned in the judgment—namely, that the rating powers of the appellants are larger than those under the Poor Laws in England. Sec. 42 of Act No. 178, which with sec. 43 confers rating power upon the Corporation of Melbourne, provides that the Corporation may "direct an assessment to be made of all land beneficially occupied in any manner whatsoever" &c., and it is suggested that the words "in any manner whatsoever" cover the case of the present respondents. It is therefore necessary to refer to the quality of their occupancy.

They have obtained from the Commissioners a document called a "lease," which is granted under the powers conferred by sec. 85 of the Melbourne Harbor Trust Act 1890, which provides that "The Commissioners may from time to time and upon such terms and conditions and upon payment of such rents or other sums of money and subject to such restrictions and regulations as they shall think proper set apart and appropriate any particular portion of any wharf dock pier jetty landing-stage or platform shed warehouse or other works with the appendages thereunto for the exclusive accommodation of any person engaged in carrying on any particular trade who shall be desirous of having such exclusive accommodation for the reception of the vessels and goods belonging to or employed and conveyed by them. All persons to whom such exclusive accommodation as aforesaid shall be afforded and their vessels crews and servants and other persons employed by them or under their control shall be subject to regulations to be made by the Commissioners under this Act." Now the grant contained in the instrument called a "lease" is a grant of "full and free privilege and liberty (subject to the provisions hereinafter contained) to use and enjoy for the term mentioned in the Schedule hereunder written the berth at the Queen's Wharf ... for the purpose of discharging passengers and cargo from and receiving passengers and cargo on board the steamers or vessels which may for the time being belong to the lessee together with the use of any shed which for the time being may be opposite to the said berth and used in connection therewith such use and enjoyment as aforesaid to be at all times subject to all the regulations of the Commissioners in force now or during the said term." Then it is provided that the respondents may not transfer the rights and privileges given to them without the prior written consent of the Commissioners; that the harbor master is to be at liberty to use or permit the use of the berth or part of it for the accommodation of other vessels when the berth is unoccupied and not actually required by the respondents for the purposes above mentioned, and may order the removal of the ships of the respondents from the berth in the same way as in the case of any other ship lying at the wharves; and that the business of the respondents is to be conducted at the berth and shed the subject matter of the lease, and that the respondent's will not be entitled to accommodation at the public berths without the prior written consent of the harbor master.

For these privileges the respondents pay £25 a year, being 2s. 6d. for each foot of wharf frontage of the berth, and £40, being 7 per cent. on the cost of the shed—that is in the case of one berth. There are two other leases of larger berths the payments for which amount to a little over £200 a year in each case. The respondents also pay to the Commissioners what is called a "quayage rate," that is a tonnage rate, which is paid by all shipowners whose ships use the wharves. In that respect the respondents are in exactly the same position, and pay exactly the same rate, as any other shipowner who makes use of the wharves of the Commissioners.

The result of this appears to be that the respondents are entitled to use the wharf for mooring their ships and taking on board and discharging passengers and cargo, but that they are not entitled to use the wharf or the shed for the purpose of storing goods except in the process of loading and unloading their vessels. Under these circumstances I think the real nature of the respondents' right is that properly described by the words I used at the beginning of my judgment. They have a preferential right of occupancy of the wharves which cannot be said to be a beneficial occupation of land in any manner whatsoever in the sense in which that term is used in the rating Acts. It is not a right of occupation of land at all. It is a right more like that to a chair or stall at a place of entertainment which is in one sense occupied by the hirer while he is sitting in it, but as to which he cannot be said to in any manner occupy the land on which the chair is within the meaning of the rating Acts. For these reasons I think the decision of the Supreme Court is right and should be affirmed.

Mr. Mitchell very properly admitted that if the criterion were the same here as in England he could not distinguish this case in principle from Rochdale Canal Co. v. Brewster[2], and the two cases on which that decision chiefly rests, namely, Allan v. Overseers of Liverpool[3] and London and North Western Railway Co. v. Buckmaster[4]. The test in England is whether there is an exclusive occupation. See the above cases and Cory v. Bristow[5]. Even if it is only such an occupation as is necessary to the effective enjoyment of an easement, still, if it is exclusive, the holder of it is an "occupier" within the meaning of the Statute of Elizabeth and rateable, as in Holywell Union and Halkyn Parish v. Halkyn Drainage Co.[6]; while if there is not an occupation in the sense of a right to exclude all others, including the grantor, there is no liability to the rate, for the case falls within the decisions first mentioned.

The 54th section of the Melbourne Harbor Trust Act 1890 vests in the Commissioners the exclusive management and control of the Port (except certain property mentioned in sec. 51) the shipping, moorings, wharves, &c., and the preservation and improvement of the Port generally, and their control is not to be interfered with by any persons whomsoever.

The principal exhibit in the case is the document under which the respondents enjoy a preferent right to berth No. 1 and the wharf thereat—this being one of the three berths that they occupied at the time in respect of which their liability is asserted. Although the document speaks of a "lease" and a "lessee" and also of a "term," it seems to avoid in other respects the use of expressions distinctive of the relation of landlord and tenant. The Commissioners grant the respondents "full and free right privilege and liberty (subject to the provisions hereinafter contained) to use and enjoy" the berth mentioned for the limited purpose of discharging passengers and cargo from and receiving passengers and cargo on board the respondents' vessels, together with the "use" of any shed opposite to the berth: "such use and enjoyment ... to be at all times subject to all the regulations of the Commissioners in force." This is a very limited privilege, and apart from the regulations, which it will be seen place the berths, wharves and sheds under the complete control of the Commissioners or their harbor master, the notion of an exclusive occupation is difficult to maintain in face of the further provisions of the document. Whenever the berth or any part of it is "unoccupied and not actually required for the purpose aforesaid," the harbor master is to be at liberty to accommodate other vessels at the berth; he may remove any of the respondents' vessels from the berth whenever he thinks it necessary; and may order any of the respondents' vessels, when not actually loading or discharging, from this berth to any other, at their expense. When dredging is required the dredge is to have priority in the use of the berth as long as the harbor master may think fit for that purpose; and "should the exigencies of the Port at any time demand it" the harbor master may "temporarily encroach upon the said berth and the wharf thereat and occupy or use such part of it as he may think fit." In case of the wharf at the berth requiring repair, alteration or renewal in the harbor master's judgment, he may fence off and retain the whole of the wharf or such part as he requires as long as the work lasts, though if he takes or encroaches on more than 100 feet of the wharf he is if possible to find the respondents another berth until this one is restored to them.

The respondents are to pay the quayage rates, just as the shipowners making use of the other berths are to pay them; and in addition an annual amount calculated on the wharfage frontage of the berth and the cost of the shed is made payable quarterly.

Then a number of the regulations made under the authority of the Melbourne Harbor Trust Act 1890 were quoted on behalf of the respondents with a view of showing the completeness of the control which in pursuance of that Act and under the so-called "lease" was reserved to the Commissioners. Of these it is sufficient to mention three. Clause 220 provides that no goods except such as are imported or intended for export are to be left or allowed to remain on any wharf or road without the permission of the harbor master. Clause 221 requires that "all goods imported and landed upon any uncovered wharf or in any open shed, and all goods thereon or therein for the purpose of export, shall be removed within 24 hours ... and unless ... so removed they may be removed by the harbor master and stored in any bonded or other warehouse on behalf and at the risk and expense of the owners," &c., &c. Clause 257 requires that, with an exception mentioned in a subsequent regulation, all imported goods placed in an enclosed shed shall be removed, whether entered for transhipment or otherwise, within six days after they are landed from any steamer, or four days after they are landed from any sailing vessel, and no un-entered goods shall be permitted to remain in any of the transit sheds longer than these periods, after which they shall be removed by the harbor master, at the expense of the owner or consignee, to the King's warehouse or any warehouse approved by the Customs.

Many other clauses might be referred to, but these are enough to show that the regulations, subject to which the respondents hold their privilege, ensure to the Commissioners a control which is wholly incompatible with the notion of any exclusive possession or occupation on the part of the respondents. "An occupation of land which is at all times subject to the control of the owner is not such an occupation as to render the occupier rateable to the poor," per Lindley L.J. in Rochdale Canal Co. v. Brewster[7]. The respondents may have an exclusive benefit. I should rather call it a preferent right to the use of a berth when they have a vessel in port requiring berthage. At other times they have no rights at all. Subject to the control reserved to the Commissioners by the Act and regulations and by the so-called "lease," the Commissioners covenant to allow them to load and discharge their ships at a particular berth instead of having to take whatever berth may be allotted to them pro re nata; and for this privilege they give a consideration in addition to the quayage rate which they pay in common with other owners. This seems to me to be no more than a licence, for it gives them no estate or interest in any part of the lands vested in the Commissioners. Whether there is an easement it is not necessary to decide, because, if there is, it is not coupled with any exclusive occupation so as to bring the case within the authority of Holywell Union and Halkyn Parish v. Halkyn Drainage Co.[8], and the words of Lopes L.J. in Rochdale Canal Co. v. Brewster[9] are distinctly applicable: "In my judgment, what passed to the respondents was the licence to use the accommodation of the cranes, quays, land and water berths subordinated to the superintending control of the board—a mere incorporeal right. They could not exclude the board."

In this position counsel for the appellants relied on the difference between the words of the Act 43 Eliz., c. 2, sec. 1, authorizing the raising of rates on all land "beneficially occupied," and the terms of the power given to the City of Melbourne by sec. 42 of the incorporation Act, to order the assessment and rating of "all lands beneficially occupied in any manner whatsoever." He argued that as the local Act must have been drawn with full regard to the terms of the Statute of Elizabeth and the decisions under it, the expression "all land beneficially occupied in any manner whatsoever" must be held to mean something more than if the words had been merely "all land beneficially occupied." The contention will deserve consideration when it becomes necessary to decide a case turning upon the words of the Local Government Act. But that necessity does not arise in the present case for the reason that the Melbourne Harbor Trust Act 1890 prescribes that all lands vested in the Commissioners (as the port, wharves, &c. are by sec. 46) shall be "deemed to be severed from the corporation of the city of Melbourne ... and ... exempt from any rate or tax which the council of the corporation ... but for this section might have imposed or levied thereon; but nothing herein shall preclude the corporation ... from levying and collecting rates upon tenements erected on such lands occupied for private purposes and by persons other than the Commissioners." Mr. Mann urged that there is at any rate no reason why the word "occupied" in this proviso should be construed in any sense differing from that in which the word "occupier" in the Statute of Elizabeth has been consistently interpreted in England. I confess that I am quite unable to see any reason for making the difference, and none was pointed out to us. If then the words are construed alike, as I think they must be, the present case cannot be distinguished from the English authorities, and the respondents are not rateable in respect of their licence.

The appellants relied somewhat on sec. 85 of the Harbor Trust Act. But if the Commissioners "set apart and appropriate any particular portion of any wharf ... or ... shed ... for the exclusive accommodation of any person engaged in carrying on any particular trade" it does not follow that the appropriation, for accommodation merely, gives an exclusive occupation. And it can scarcely do so in view of the concluding words of the section, which subject the persons to whom the accommodation is afforded, and their vessels, crews and servants, to the Commissioners' Regulations.

I am of opinion that the learned Judges of the Supreme Court came to the correct conclusion, and that this appeal must be dismissed.

I am of the same opinion. It is quite clear that the decision of the Supreme Court is right and I have nothing further to add.

[1] (1894) 2 Q.B., 852.

[2] (1894) 2 Q.B., 852.

[3] L.R. 9 Q.B., 180.

[4] L.R. 10 Q.B., 70, 444.

[5] 2 App. Cas., 262.

[6] (1895) A.C., 117.

[7] (1894) 2 Q.B., 852, at p. 857.

[8] (1895) A.C., 117.

[9] (1894) 2 Q.B., 852, at p. 857.

High Court of Australia

Melbourne v Howard Smith Company Ltd [1911] HCA 43; (1911) 13 CLR 253 (21 September 1911)

HIGH COURT OF AUSTRALIA