John Sharp & Sons Ltd v Ship "Katherine Mackall" [1924] HCA 37; (1924) 34 CLR 420 (20 August 1924)

The question for decision in this case is whether the High Court has jurisdiction in an action in which the cause of action consists of a claim by consignees against a ship for delivery in damaged condition of certain timber for which the consignees held a bill of lading issued by the master.

Sec. 2 (1) of the Colonial Courts of Admiralty Act 1890 is in the following words, namely:—"Every Court of law in a British possession, which is for the time being declared in pursuance of this Act to be a Court of Admiralty, or which, if no such declaration is in force in the possession, has therein original unlimited civil jurisdiction, shall be a Court of Admiralty, with the jurisdiction in this Act mentioned, and may for the purpose of that jurisdiction exercise all the powers which it possesses for the purpose of its other civil jurisdiction, and such Court in reference to the jurisdiction conferred by this Act is in this Act referred to as a Colonial Court of Admiralty. Where in a British possession the Governor is the sole judicial authority, the expression Court of law for the purposes of this section includes such Governor."

For the defendant it is admitted—rightly, we think—that, if the High Court is a "Colonial Court of Admiralty" within the meaning of this section, it has jurisdiction to entertain the action. By sec. 3 of the Judiciary Act 1914 the High Court was declared to be a Colonial Court of Admiralty within the meaning of the Imperial Act known as the Colonial Courts of Admiralty Act 1890. It is not denied that the Court has, within the Commonwealth, original unlimited civil jurisdiction as defined in the Colonial Courts of Admiralty Act. It follows that, if the Commonwealth of Australia is a British possession within the meaning of that Act, the High Court is a Colonial Court of Admiralty either by force of sec. 3 of the Judiciary Act 1914, if that section be valid, or, if not, then by force of that portion of sec. 2 of the Imperial Act which provides that "if no such declaration is in force in the possession every Court of law in a British possession which has therein original unlimited civil jurisdiction" shall be a Colonial Court of Admiralty. The first question for decision, therefore, is whether the Commonwealth of Australia is a "British possession" within the meaning of the Colonial Courts of Admiralty Act 1890.

By sub-sec. 2 of sec. 18 of the Imperial Interpretation Act 1889 (52 & 53 Vict. c. 63) the expression "British possession" is defined as meaning "any part of Her Majesty's dominions exclusive of the United Kingdom, and where parts of such dominions are under both a central and local legislature, all parts under the central legislature shall, for the purposes of this definition, be deemed to be one British possession." If the first part of the definition stood alone, there could, we think, be no doubt that each Australian State and the Commonwealth as a whole would be a "part of Her Majesty's dominions," and therefore a British possession. As the definition stands, we think the Commonwealth is a British possession within the second part of the definition. It is clear that parts of Australia, namely, the States, are under both a central and a local legislature.

It was not argued that the Colonial Courts of Admiralty Act contained any indication of intention that the expression "British possession" when used therein should not have the meaning assigned to it by the Interpretation Act 1889. If the expression be given that meaning, the Commonwealth is a British possession, and it follows that the High Court is a Colonial Court of Admiralty.

In this view it is not necessary to deal with the objection that the Judiciary Act 1914 was not reserved or otherwise dealt with in accordance with sec. 4 of the Colonial Courts of Admiralty Act.

In our opinion the ground of defence set up in par. 8 of the statement of defence is bad in law.

This case arises on an objection in law—in effect, a demurrer—by the defendant to the statement of claim. The action is brought for damage to timber carried, under bill of lading signed by the master of the ship, on the American schooner Katherine Mackall, trading between the port of Portland, Oregon, and Melbourne, Australia. The owners are not in Australia, and the jurisdiction attaches, if at all, by reason of the presence of the ship, which is made the defendant and arrested as in the ordinary course of admiralty proceedings. The objection in law is, in effect, that this Court has no such jurisdiction, for the following reasons: (1) Sec. 30A of the Commonwealth Judiciary Act is void because the enactment inserting it (Act No. 11 of 1914) was not reserved for His Majesty's pleasure as required by sec. 4 of the Colonial Courts of Admiralty Act 1890 (53 & 54 Vict. c. 27); (2) the cause of action alleged does not come within the authority of sec. 76 (III.) of the Constitution and sec. 30 of the Judiciary Act, as amended by No. 4 of 1915, sec. 2.

The ordinary civil jurisdiction is, ex concessis, unavailable in the circumstances. As to the maritime personality of "the Ship" see Townsville Harbour Board v. Scottish Shore Line Ltd.[1]. The questions of law which emerge are two of great importance, and are:—(a) Has this Court jurisdiction to entertain this action, by virtue simply of sec. 30 of the Judiciary Act, as amended, which confers original jurisdiction on the High Court "in all matters of admiralty or maritime jurisdiction"? (b) Is this Court a "Colonial Court of Admiralty" within the meaning of the Imperial Act mentioned?

It is contended by the plaintiff and by the Commonwealth as intervenant that it is such a Court for either or both of two reasons. The first is that sec. 30A of the Judiciary Act so declares (Act No. 11 of 1914, sec. 3). The second is that, if that declaration fails for any reason, then, since the High Court has "original unlimited civil jurisdiction" within the meaning of sec. 15 of the Imperial Act, sec. 2 of the same statute constitutes the High Court a Colonial Court of Admiralty with the full jurisdiction defined in sub-sec. 2 of that section.

With respect to the jurisdiction conferred by sec. 30 (b), namely, "in all matters of admiralty or maritime jurisdiction," it is not necessary now to pronounce an opinion. I confess the matter is far from simple. I do not feel impressed with the judgment of Story J. in De Lovio v. Boit[2], even supported by the case of Insurance Co. v. Dunham[3]. In 1862, that is, after the British Parliament had thought it necessary to legislate for such a claim as the present, Dr. Lushington was pressed, in the case of The Don Francisco[4], with the American practice. He said in arguendo:—"The Admiralty Courts in America exercise a much wider jurisdiction than the Admiralty Court here. They disregard all the authorities since James I., which have limited the operations of this Court; they claim to do all things set forth in my patent." In the judgment[5] the learned Judge said: "The American Courts assume to themselves an extended jurisdiction which (however in former times it might have been exercised here) has, by a series of decisions of the Courts of common law, for a very long space of time been denied to the Court of Admiralty of this country." In 1891 Lord Esher, in R. v. Judge of the City of London Court[6], expressly says that the doctrine of Story J. in De Lovio v. Boit[7] has never been accepted in England.

It is not conceivable that, in framing the Australian Constitution, the content of "admiralty and maritime jurisdiction" was intended by the people of Australia and the British Parliament, with reference to a subject so Imperial in character, to follow American doctrine in direct opposition to established English precedent. But that by no means disposes of the matter. Sec. 76 of the Constitution recognizes that "matters of admiralty and maritime jurisdiction" are or may be distinct from "matters arising under this Constitution," &c., and from "matters arising under any laws made by the Parliament." If it became necessary to determine this case upon sec. 76 (III.) of the Constitution and sec. 30 (b) of the Judiciary Act, there are some very difficult questions to answer. They are not inevitable questions in this case, and the Constitution (by sec. 51 (I.) and (XXXIX.) and sec. 98) undoubtedly gives great scope for relevant legislation. It is not, therefore, to be supposed the constitutional power to confer jurisdiction on this Court in matters of admiralty and maritime law is a power in respect of merely a stereotyped common law admiralty jurisdiction, which at the date of the Constitution had already been extended for more than forty years in England.

Were the decision of this case dependent on the provision in sec. 76 (III.) of the Constitution with the statutory exercise of the power, there would be a field of inquiry by no means clear. Among relevant English authorities other than those already mentioned, there would be the important cases of The Zeta[8], Owners of s.s. Devonshire v. Owners of Barge Leslie[9], The Marlborough Hill v. Alex. Cowan & Sons Ltd.[10] and The Tubantia[11]. Among American cases that might be read with some advantage are American Insurance Co. v. Canter[12], United States v. Bevans[13] and The Steamer St. Lawrence[14]. One relevant point for consideration would be whether and how far sec. 30 (b) of the Judiciary Act could and did at a stroke validly adopt Imperial legislation on the subject of admiralty jurisdiction. There is no need at present to explore the possibilities of this branch of the arguments.

The second question concerns the jurisdiction of the Court by virtue of the Colonial Courts of Admiralty Act 1890. It appears in the first place that the Commonwealth Act of 1914, No. 11, was assented to by the Governor-General on 29th October 1914. Strictly speaking, it should have been reserved for the King's personal assent in accordance with sec. 4 of the Imperial Act. On 7th September 1916 His Majesty gave his royal assent to the law, and this fact was notified by publication of a copy of the King's Order in Council in the Commonwealth Government Gazette on 16th November 1916. It was on the part of the defendant objected that the Bill, having been assented to in the first place by the Governor-General, could not be said to have been subsequently "reserved" either within the meaning of sec. 4 of the Colonial Courts of Admiralty Act 1890 or within the meaning of sec. 58 of the Constitution. Consequently, so ran the argument, the King's assent was nugatory and the so-called Act is void. This contention regards sec. 4 of the Act of 1890 as a rigid enumeration of three several conditions mutually exclusive of each other and of all other methods. It assumes that one of these three methods must be definitely adopted before any other course is taken, the sanction being invalidity. The three conditions are: (1) Prior approval of the Sovereign; (2) reservation for the Sovereign's pleasure, and (3) a suspending clause until His Majesty's pleasure is signified. Avowedly (1) and (3) do not apply. But, as to (2), the argument advanced is that, the Bill having been assented to by the Governor-General in fact, he was functus officio and thereafter he could not "reserve" the Bill for the signification of the King's pleasure. The contention cannot be sustained. Sec. 4 of the Act of 1890 is not intended as a weakening of the royal prerogative or the common law of the Constitution as to the King's relation to his appropriate legislature. The Act is dealing with a subject concerning the whole Empire, and by sec. 4 retains, as a condition of a new and very extensive Imperial grant of legislative power to the dominions, a right of Imperial oversight in respect of the legislation. That condition is the royal approval, guided, of course, by those who are the Sovereign's Imperial advisers. Subject to any other limitation or restriction, a Bill passed by the legislature of a British possession conformably with sec. 3 of the Act and assented to by the King is a valid and binding law, whether the Governor-General or the Governor has or has not strictly followed the directions of sec. 4. Sec. 4 prevents the Bill from becoming law unless the King's personal assent or pleasure be signified. But, once that is done, it is a valid Act of the Colonial Parliament authorized by the Imperial statute, and has full force of law. It is not vitally necessary to pursue this particular branch of the matter further. It is not out of place to point out that sec. 4 of the Act of 1890 is little more than a legislative requirement for the purpose of ensuring the practice detailed with great clearness and explanation in Clark's Colonial Law (1834), at pp. 41 et seqq.

Another objection to the Act was one going much deeper, namely, that the Commonwealth is not a British possession within the meaning of the Colonial Courts of Admiralty Act 1890. That I deal with presently in connection with sec. 2 of the Act. In the meantime I complete my opinion as to sec. 30A of the Judiciary Act. Although the other objections raised to that section are placed aside, there remains, in my opinion, one fatal objection to it. The grant of legislative power in the Act of 1890 assumes a "colonial law" enacted in accordance with the Constitution of the possession. Sec. 15 defines "colonial law" as "any Act, ordinance, or other law having the force of legislative enactment in a British possession and made by any authority, other than the Imperial Parliament or Her Majesty in Council, competent to make laws for such possession." The question then is: Has this "provision 30A" the force of legislative enactment as a law made by the Commonwealth Parliament, which by sec. 1 of the Constitution includes the Sovereign as well as the two Houses? I treat the Bill of 1914 as one reserved for the King's pleasure and as having duly received his pleasure. But I find in sec. 60 of the Constitution a definite negative provision cutting down the common law, declaring unequivocally that a proposed law so reserved "shall not have any force unless and until within two years from the day on which it was presented to the Governor-General for the" Sovereign's "assent the Governor-General makes known, by speech or message to each of the Houses of the Parliament, or by proclamation, that it has received the" Sovereign's "assent." That condition was apparently not fulfilled. The Commonwealth, intervenant, produced what, I understand, was the only public declaration by the Governor-General of the King's assent, namely, a publication in the Commonwealth Government Gazette for 16th November 1916, for general information, of a copy of the Order of His Majesty in Council of 7th September 1916. The Order in Council recited that the Bill of 1914 had been "transmitted for the signification of His Majesty's pleasure thereon" and that His Majesty by that Order and with the advice of His Majesty's Privy Council declared "His assent to the said Bill." That is all. There are two obstacles in the way of that being sufficient to satisfy the conditions of sec. 60 of the Constitution: (1) It is not a speech or a message to the Houses of Parliament or a proclamation, and (2) it is beyond the period of two years, because the Governor-General's original assent was on 29th October 1914. The period of two years' limitation cannot be exceeded by repeated presentations, for such a course would nullify sec. 60.

That leaves to be considered the third position, namely, the jurisdiction of this Court by the direct operation of the Act of 1890 on the Court as having "original unlimited civil jurisdiction." It is not contested or contestable that this Court is of that character, having regard to the definition of the term by sec. 15. Assuming the inefficacy of sec. 30A of the Judiciary Act, then "no such declaration is in force in the possession," provided, however, "the Commonwealth of Australia" as a political organism is a "British possession" within the meaning of sec. 2 of the Act of 1890. The argument for the defendant denies that proviso. It does not deny that, if a similar Act were to be passed to-morrow, the Commonwealth would be within it. But it says, in effect, that in 1890 there was no Commonwealth, and the ambit of the legislation was completely filled so far as Australia is concerned by the colonies as then existing, and they cannot be added to now by the Commonwealth. Canada, says the defendant, is in a different position, because it received its Constitution in 1867, and the Act of 1890 may well have contemplated both Dominion and Provinces. That, in my opinion, is not a sound argument. The Colonial Courts of Admiralty Act 1890 used the term "British possession" without definition because in 1889 the Interpretation Act 1889 (52 & 53 Vict. c. 63) was passed to obviate the necessity of particular definition in every Act. Sec. 18, for that Act and "every Act passed after the commencement of" that "Act," declared that, unless the contrary intention appears, certain expressions should have assigned meanings, including (2) the expression "British possession" shall mean "any part of Her Majesty's dominions exclusive of the United Kingdom, and where parts of such dominions are under both a central and a local legislature, all parts under the central legislature shall, for the purposes of this definition, be deemed to be one British possession." To adapt a vivid and illuminating expression of Lord Robertson in Coster v. Headland[15], the Interpretation Act "lies in wait, as it were, for Acts which may be passed." There is no contrary intention in the Act of 1890. The assigned meaning in the Act of 1889 is one which regards a "possession" as a political organism having a legislature of its own. The definitions in sec. 15 of and of most distinctly support this construction. The defendant's argument on this point, not only excludes the Commonwealth, but would apparently exclude also the Union of South Africa and the Irish Free State. It is, to my mind, an argument entirely inadmissible, as opposed alike to the literal words of the Interpretation Act 1889 and to the inherent nature of the relations of the constituent political units of the Empire.

The question is whether this Court has jurisdiction to entertain an action in rem, under its admiralty jurisdiction, against the schooner Katherine Mackall (whose owner is not domiciled in Australia), in respect of a claim by the owner and consignee of certain timber carried into the port of Melbourne, for that the timber was not delivered in good order and condition but in a damaged state in breach of the terms of the bill of lading (see Admiralty Court Act 1861 (24 Vict. c. 10, sec. 6)).

The arguments at the Bar did not convince me that the jurisdiction could not be supported upon the express grant to this Court of original jurisdiction in all matters of admiralty and maritime jurisdiction, pursuant to sec. 76 of the Constitution (see Judiciary Act 1903-1920, sec. 30). Nor did they convince me that the provision in sec. 30A of the Judiciary Act declaring the High Court to be a Colonial Court of Admiralty within the meaning of the Colonial Courts of Admiralty Act 1890 (53 & 54 Vict. c. 27) was invalid. Unless sec. 4 of this last-mentioned Act invalidates the provision in sec. 30A of the Judiciary Act—which I doubt—then the Governor-General assented to the law in the King's name, and did not reserve it for His Majesty's pleasure. The provision thus became law, and its confirmation by the King himself simply allayed doubts as to its validity, or was intended to have that effect. But, as at present advised, I do not think that sec. 60 of the Constitution ever operated upon the Act No. 11 of 1914. The Bill containing sec. 30A was never reserved for the royal pleasure, as perhaps it ought to have been under the Act 53 & 54 Vict. c. 27.

I agree, however, with the other members of the Court in thinking that, if the jurisdiction fails under secs. 30 and 30A of the Judiciary Act, still it is sustained by the provisions of the Colonial Courts of Admiralty Act, sec. 2, declaring that every Court of law in a British possession which has therein unlimited civil jurisdiction shall be a Court of Admiralty with the jurisdiction therein mentioned in case no declaration has been made as provided in the earlier part of the section.

Defendant's objection in law to the statement of claim overruled. Defendant to pay costs of objection in law and of the argument.

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

[1] [1914] HCA 33; (1914) 18 C.L.R. 306, at p. 324.

[2] (1815) 2 Gallison 398.

[3] [1870] USSC 63; (1870) 11 Wall. 1.

[4] (1862) Lush. 468, at p. 471.

[5] (1862) Lush., at p. 473.

[6] (1892) 1 Q.B. at pp. 293-294.

[7] (1815) 2 Gallison 398.

[8] (1893) A.C. 468.

[9] (1912) A.C. 634, at pp. 642-643.

[10] (1921) 1 A.C. 444, at p. 448.

[11] (1924) P. 78, at p. 86.

[12] [1828] USSC 2; (1828) 1 Pet. 511, at pp. 545-546.

[13] [1818] USSC 18; (1818) 3 Wheat. 336, at pp. 388-389.

[14] [1861] USSC 54; (1861) 1 Black 522, at pp. 526, 527.

[15] (1906) A.C. 286, at p. 289.

High Court of Australia

John Sharp & Sons Ltd v Ship "Katherine Mackall" [1924] HCA 37; (1924) 34 CLR 420 (20 August 1924)

HIGH COURT OF AUSTRALIA