Wool Sliping & Scouring Co Ltd v Central Wool Committee [1920] HCA 21; (1920) 28 CLR 51 (13 April 1920)

The Wool Sliping and Scouring Company Limited Plaintiff; and The Central Wool Committee and Others Defendants.

The plaintiff in this case is the Wool Sliping and Scouring Co. Ltd., which carries on the business of fellmongering, and the defendants are the Central Wool Committee and its members, the State Wool Committee for Victoria and its members (both of which Committees are constituted under the War Precautions (Wool) Regulations 1916), and the Prime Minister and the Commonwealth. The allegations upon which the claim is founded are, first, that the plaintiff in carrying on its business requires a sufficient supply of sheepskins, and it also requires to be able to obtain sheepskins at a price which will not involve it in ruinous loss. It is pointed out in the statement of claim that under the War Precautions (Sheepskins) Regulations 1916—which, with the War Precautions (Wool) Regulations 1916, are now in Schedules to the Commercial Activities Act 1919—wool obtained from sheepskins in the course of treatment of the skins is subject to appraisement under the latter Regulations; which means that the price obtained for that wool is limited by the average price agreed to be paid by the Imperial Government for the wool clip of Australia. The statement of claim then goes on, in par. 7, to set out what the plaintiff alleges is the proper construction of the Sheepskins Regulations to which I have referred. It alleges, first, that it is the duty of the Prime Minister to appoint appraisers of sheepskins, and of the Central Wool Committee to make recommendations for the appointment of such appraisers; secondly, that it is the duty of the State Wool Committee to arrange for the appraisement of sheepskins, and, thirdly, as an alternative contention, that it is the duty of the Central Wool Committee to make such arrangements and of the Prime Minister to give directions for such arrangements to be made. The plaintiff then contends that the Commonwealth Government has no power to consent to any sales of any sheepskins other than sheepskins not needed for fellmongering or other local requirements, and that it is the duty of the Prime Minister and of the Central Wool Committee to do no act which would permit or enable sheepskins to be sold other than such surplus sheepskins. The plaintiff then goes on to allege in par. 8 that no appraisers have been appointed in Victoria or any other State since 30th June 1918, and that the Central Wool Committee have refrained from making any recommendations for the appointment of appraisers, and generally (par. 9) the plaintiff alleges that the State Wool Committee, the Central Wool Committee and the Prime Minister have altogether omitted to perform the duties described in par. 7, to which I have already referred. The statement of claim further alleges (par. 10) that the Central Wool Committee, in breach of clause 5 (f) of the Sheepskins Regulations, directed and authorized the sale of a large number of sheepskins which were not surplus sheepskins at all, and has devised and carried out a scheme contrary to the provisions of the Regulations. Then it is alleged (par. 11) that the duties referred to in par. 7, which are duties which the defendants are alleged to have omitted to perform, are duties owing to the plaintiff (among others) as a fellmonger, and that the plaintiff has a special private interest in the performance of those duties and the carrying out of the Regulations as to appraisement and sale of sheepskins, which, it is said, were obviously intended to protect fellmongers (among others) from loss in carrying out the scheme mentioned in par. 6 of the statement of claim, namely, that all the wool obtained in the course of the plaintiff's fellmongering operations must be appraised under the Wool Regulations and transferred to the control of the Central Wool Committee. The plaintiff then alleges (par. 12) that, in consequence of the neglect of duty and breaches of the Regulations, it has not been able to purchase sheepskins except at a price which, having regard to the fact that it must sell the wool from the skins at the appraised prices, would involve it in serious loss, and consequently that it is unable to carry on its business and is compelled to close down; and also (par. 13) that the defendants have refused and neglected to carry out the provisions of the Sheepskins Regulations; and (par. 14) that the plaintiff has sustained damage by being compelled to close down. The plaintiff then claims an order that the Prime Minister shall appoint appraisers and that the Central Wool Committee shall make recommendations for the appointment of appraisers, and such orders as may be necessary to ensure that there shall be appraisements of sheepskins and that sheepskins shall be made available for the plaintiff's business, and an inquiry as to damages.

Broadly speaking, therefore, the action is one to recover damages for an alleged breach of duty by the defendants in not appointing appraisers and making sheepskins available, and to obtain an order which will compel the defendants to perform those duties. The plaintiff having moved before me for an interim injunction and a mandatory order, I referred the matter to the Full Court, and after it came on for hearing the plaintiff filed a statement of claim. The matter is now before us for a decree. Since the proceedings were instituted a notice has been issued calling upon every person owning sheepskins over the value of £50 to make them available for appraisement, and approval has been given by the Prime Minister to the appointment of appraisers.

The foundation of the right of the plaintiff to relief in this action is the allegation in par. 11 that the plaintiff has a special private interest in the performance of the duties imposed by the Regulations. I think that regs. 5 (d) and 5 (f) show that the general intention of the scheme established by the Sheepskins Regulations was that local requirements in the way of sheepskins should be provided for before sheepskins were to be available for other purposes, and that a part of that general intention was that sheepskins should be made available for fellmongers and for other local requirements at prices which would enable the local users to carry on having regard to the fact that they were limited to certain prices for the wool taken off the skins. The claim of the plaintiff is that every fellmonger has by virtue of the Regulations, a right to enforce by action the performance of the various acts directed by the Regulations to be done by the different persons in the position of the defendants here, and that any omission by the Central Wool Committee, the State Wool Committee or the Prime Minister to perform any of the duties or obligations laid on them or him by the Regulations gives rise to a cause of action for damages to any fellmonger injured by such omission. I think that there are two answers to the claim of the plaintiff. The first is that, reading the Regulations as a whole, while it appears from regs. 5 (d) and 5 (f) that the general intention was as I have stated it to be, it appears equally clearly from reg. 14 that the class of persons which was to have the benefit of getting sheepskins at appraised prices was limited to persons who had obtained authority—"persons," in the words of reg. 14, "properly authorized." Reg. 14, of course, only deals with the display and examination of skins and the invoicing of skins to authorized persons, but it must be looked at in conjunction with the other regulations to see what the general scheme was, and, in my opinion, it shows that the general scheme for the benefit of local industries was conditioned upon the owners of those industries being persons "properly authorized," that is to say, persons who had been authorized to purchase sheepskins by the Central or the State Wool Committee. That would be calculated to ensure that persons not intended to get sheepskins should not get them. I think that that affords the first answer, because it is clear on the evidence that the plaintiff is not, and never has been, an authorized person within the meaning of the Regulations, and therefore has never been in a position to require selling brokers to perform their duty under reg. 14 even if all matters precedent to that had been carried out.

The second answer is, I think, that, even assuming that the plaintiff were an authorized person, it would not necessarily follow that it could maintain an action to compel the defendants to carry out the Regulations or to recover damages for their omission to do so. The right to maintain such an action depends on the existence of a duty as between the persons laid under an obligation by the Regulations and the plaintiff, and I can find no trace of any intention to create any duty of the defendants to any particular person or to any class of persons or individuals comprised in that class. The Regulations appear to have been designed to carry out a scheme to meet the abnormal circumstances caused by the War and the consequent scarcity of shipping. The scheme originated in the sale of the whole of the wool in Australia to the Imperial Government. That involved wool "off skins" as well as wool "off sheep," and therefore the sale of the wool to the Imperial Government at a named price necessarily reacted upon the sale of sheepskins. These Regulations were therefore designed for the conduct of the trade in sheepskins in consequence of the sale of the whole of the wool to the Imperial Government. To my mind the administration of the Regulations is akin to the administration of a Government Department, as to which it is clear that individuals have no right to bring actions for omissions to do some act the obligation to do which is laid upon officers of the Department, unless that right is expressly conferred.

In the circumstances of this case it turns out to be unnecessary to consider certain constitutional questions which otherwise might have presented themselves. Dealing with the case on other grounds, it is important to see what is claimed. The plaintiff claims now in this proceeding, which is by consent the hearing, four things, viz., (1) a mandatory order, (2) an injunction, (3) a declaration of right and (4) damages. Since the conclusion arrived at is that there is no cause of action, damages may be put aside. But in considering whether there is a cause of action the other claims are, of course, important.

The net result of the argument on behalf of the plaintiff is this: It says that under the Commercial Activities Act 1919 (No. 3 of 1919) the Commonwealth Parliament has laid down a set of provisions which, while restraining the normal rights of trading in sheepskins and wool, also substitutes other rights—modified rights,—and that the plaintiff's substituted or modified rights arising under the Act have been violated or disregarded or are threatened with violation. The plaintiff says in effect: (1) Persons other than fellmongers and others engaged in local manufacture are prohibited under penalty from purchasing otherwise than in accordance with the Act; (2) fellmongers and local manufacturers are also separately prohibited under penalty from selling except in accordance with the Act; (3) the two sets of prohibitions are correlative, and the permissive provisions are also correlative to the prohibitions, and, as long as the fellmongers are prohibited from violating the Act, the other persons should be equally prohibited; and, lastly, (4) it is the duty of the Government and the Prime Minister and the Committees to do all that is required by the Act to preserve the substituted or modified rights—the statutory rights—of fellmongers, so long as the statutory prohibitions on them remain. In support of those contentions, learned counsel for the plaintiff rely (inter alia) on reg. 14, which gives to "authorized persons"—i.e. authorized by some competent authority under the Regulations—rights of inspection, after appraisement, and rights of getting copies of appraisements, and of getting invoices of what they purchase. But I do not understand learned counsel to rest there; nor am I able to limit my opinion to that regulation. The claims for mandatory order and injunction are respectively directed to regs. 5 (d) and 5 (f). Reg. 5 (d) provides that all "other" dry skins shall be collected, concentrated, classified, and appraised, and that the appraised prices shall be their selling value for fellmongering or any other local purpose. Reg. 5 (f) provides that "surplus" sheepskins not required for fellmongering or local requirements may be sold, but only to, or through, or with the consent of, the Commonwealth Government. The mandatory order sought is to compel compliance with reg. 5 (d) which includes appraisement. And as appraisement includes the appointment of appraisers, such appointment is sought. And further, as the rights given by reg. 14 are subsequent to appraisement, I am not able to say that the want of authorization to do something that can only be done after appraisement, and is futile in the absence of appraisement, is in itself a complete answer to the claim. So as to 5 (f) the injunction sought is to restrain the permission to sell "surplus" sheepskins, that is sheepskins that fellmongers do not require. It seems to me that, if the plaintiff's main argument is sound, namely, that fellmongers and other local manufacturers are given individual statutory rights, the authorization mentioned in reg. 14 is only one of those rights and the plaintiff has a prior and fundamental right of protection, which could not be got rid of by a refusal to authorize the plaintiff under reg. 14. But I think, on broad grounds of construction, that the argument of the plaintiff is not sound. It is laid down, in cases of the class of In re Nathan[1], that the Court will not interfere with the official execution of an Act of Parliament at the instance of a private person, unless there is a violation or threatened violation of a duty to that particular person. Fulton v. Norton[2] is a converse case where the Privy Council enforced an individual right under a statute. And so has this Court acted under the Public Service Act (R. v. Commonwealth Public Service Commissioner; Ex parte O'Brien[3], and other cases). The Commercial Activities Act 1919 is a public general Act, under which for war purposes the Commonwealth Parliament has laid down controlling regulations in certain trading operations, and provides, by means of direct executive action and the action of certain committees, machinery for carrying out the scheme. Reading the Act and the Sheepskins Regulations as a whole, I interpret them as leaving to the wisdom and fairness and discretion of the agencies designated as an administrative function the task of carrying out the broad lines of policy outlined by Parliament. I do not read them as creating specific rights in individuals, except perhaps where, as in reg. 14, certain express provisions are made relating to brokers on the one hand and authorized persons on the other. It would be tedious here to analyse the various regulations, but that is the general result. They were sufficiently analysed during the argument. It was contended that great hardship arises from a neglect to observe the requirements of the Act. That may be so—whether it is so, I am not called upon to inquire; but even if it be so, that is a political matter: it is a matter for the Executive Government, and ultimately for Parliament. But, having regard to the authorities that bind us, it is not a matter with which this Court can interfere without overstepping the boundaries of its constitutional powers, by substituting its judgment for the judgment of the political branch.

In my opinion the plaintiff has not shown that it has any right to require the defendants or any of them to do any of the acts mentioned in reg. 5 (d) of the Regulations, or to abstain from acting under reg. 5 (f). Consequently, whatever has been done or left undone by the defendants or may be done or left undone under either of these regulations, it cannot be said that there has been or will be any invasion of a legal right of the plaintiff. We are therefore asked to interfere with the public duty of a Department of the Government and with the discretion which it has to exercise in its public capacity. The authority of the Vice-Chancellor of England shows there is no jurisdiction to do so (Ellis v. Earl Grey[4]).

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

[1] 12 Q.B.D., 461.

[2] (1908) A.C., 451.

[3] [1919] HCA 26; 26 C.L.R., 380.

[4] [1833] EngR 703; 6 Sim., 214, at p. 223.

High Court of Australia

Wool Sliping & Scouring Co Ltd v Central Wool Committee [1920] HCA 21; (1920) 28 CLR 51 (13 April 1920)

HIGH COURT OF AUSTRALIA