Blom v Commonwealth [1917] HCA 73; (1917) 24 CLR 189 (20 December 1917)

HIGH COURT OF AUSTRALIA

Blom Plaintiff, Appellant; and The Commonwealth Defendant, Respondent.

H C of A

On appeal from the Supreme Court of New South Wales.

20 December 1917

Barton, Isaacs, Gavan Duffy and Rich JJ.

Maughan (with him Halse Rogers), for the appellant.

Knox K.C. (with him H. E. Manning), for the respondent.

Maughan, in reply.

The following judgments were read:—

Dec. 20

Barton, Isaacs and Rich JJ.

For the reasons given by us in the case of Zachariassen we are of opinion that a good cause of action is disclosed as to the refusal to grant a clearance.

With respect to the alleged trespass by armed guards, it is to be observed that the argument on both sides in the Supreme Court, as appears from the judgment of Cullen C.J., was on the assumption that the guard was a military guard, placed on board through the agency of the military authorities. The special case states that this was done "for the purpose of preventing the said ship from sailing without a clearance." Learned counsel for the Crown did not urge that a final answer should be given in favour of the Crown on the facts as stated. But he contended that no final answer in favour of the plaintiff should be given. We think that what he asked for should be acceded to. We are not prepared to say that, taking into account the state of war, and the nature and extent of it, and all those circumstances which are so notorious as to be judicially noticed, the placing of a military guard by way of precaution against a ship leaving without a clearance would not be a primâ facie justification. It is, however, unnecessary to decide so much. Following the à fortiori precedent in Fowles v. Eastern and Australian Steamship Co. Ltd.[1], the appeal should be allowed as to this part also, but the Court should refuse to answer the question, leaving the parties to go to trial in order to have the facts satisfactorily settled.

Gavan Duffy J.

In this action the parties have stated a case containing admissions made for the purpose of the case, but each party has reserved the right to go to trial and then rely on any facts which he may be able to prove and which he may be advised will have the effect of relieving him from the consequences of the opinions we are now asked to pronounce.

The questions submitted for our consideration are "(1) whether the plaintiff is entitled to recover damages in an action against the defendant for the refusal of the Collector or Comptroller of Customs to grant the said clearance; (2) whether the plaintiff is entitled to recover damages in an action against the defendant for the grievances set forth in par. 14 thereof."

In order to determine whether the plaintiff is entitled to recover damages it is necessary to inquire into the nature of the acts from which the damages are said to flow.

On the facts set out on the special case both Collector and Comptroller were apparently acting under the instructions of the Executive, and the Executive was probably acting under the authority and in pursuance of the King's prerogative powers. If so, the acts complained of may be lawful or the question of their legality may not be cognizable by this Court. In either case the plaintiff could not succeed. We are not at liberty to draw inferences of fact, and if we were at liberty to do so I should not feel disposed to pronounce on the legality of the acts complained of on the materials contained in the special case. I do not think that the question of the responsibility of the Commonwealth for the act of the Collector or Comptroller if he on his own initiative refused to grant a clearance is raised by the first question, and I say nothing about it. To affirm it would merely put us on an inquiry as to the legality of the officer's act, to deny it would open up the further question of the complicity of the Commonwealth in his act, and neither of these points can be determined without a finding of fact, which I am not at liberty to make.

I am unable to answer either of the questions submitted for consideration.

Appeal allowed. First question answered in the affirmative. In its discretion the Court does not answer the second question. Costs of the appeal to be costs in the action.

Solicitors for the appellant, Dalrymple & Blain.

Solicitor for the respondents, Gordon H. Castle, Crown Solicitor for the Commonwealth.

[1] [1913] HCA 31; 17 C.L.R., 149.