owners under the Act have also in regard to the stock so held by them for the Imperial Government a right conferred in express terms by the statute (where an order under s. 6, subsec. 2, is actually made for the appropriation of the stock) to have the prices fixed by an independent board under s. 8, which gives to them the prices so paid by His Majesty's Imperial Government for such stock, the Chief Secretary acting for both Governments as an agent and intermediary. To enable the defendants to justify a seizure under this Act, they must establish that an order was made under the hand of the Chief Secretary or Under Secretary-s. 6, subsec 2 It was admitted at the trial that no such order was made. Can the defendants justify under the Sugar Act? The Attorney-General in answer to me, disavowed any claim or contention that any provision of the Sugar Act, or any proclamation under it, repealed the Meat Act in any particular. He also contended that the two Acts should be read together, and were in fact " harmonious." Such a claim would mean the ascribing to the Legislature an intention to override and neutralise, or to empower the Governor-in-Council to override and neutralise, an Act of Parliament passed apparently at the request of the Imperial Government as a matter of national importance and need, and to aid in the present war. The defence naturally incline against the supposition of such an intention which would savour of questionable loyalty; and I think that the Court should also show a decided disinclination to entertain it. But the defendants cannot, in my opinion, at one and the same time, admit that there is no repeal, and still use a line of argument which, if sound, would prove that a repeal was in effect made. Are they not placed on the horns of a dilemma ? With great respect, I agree with the words of Isaacs J., which I quoted above, and I cannot see how the Queensland Government could validly take the plaintiffs' cattle under the Sugar Act. If the extension of that Act to cattle is to be read" harmoniously " with the provisions of the Meat Act, I think that the only possible way is to read it as subject to the rights of the Imperial Government under the Meat Act, and applicable only after the Meat Act has ceased to have effect-i.e., after the termination of the war and the further period to which it may be extended by proclamation. The Legislature has passed an Act dealing primarily with sugar and, under a power of extension, with F.C. DUNCAN AND DUNCAN AND BEAL. Cooper C.J. F.C. DUNCAN AND THEODORE AND Cooper C.J. "cattle," and a proclamation was issued purporting to be are and have become and shall remain and be held for the purposes of and of the existing owners shall give immediate and peaceable possession to the Treasurer of Queensland or to any person authorised by him to demand and take delivery and possession of the same.' are "4. All persons whosoever, including the owners hereby warned and inhibited against and prohibited from selling or in any manner whatsoever dealing with any such cattle, except only in pursuance of and under direction and order of the said Treasurer. "5. Every contract, agreement, security, mandate, authority under order or direction, whether oral or in writing, and wherever expressed or implied, which is in any way whatsoever contrary to this my proclamation and which prejudices or may have the effect of prejudicing His Majesty in the full and unrestricted use, control, and disposal of any such cattle, whether now in existence or hereafter so to be and whether made, entered into, given or executed before or after the date of this my proclamation, is hereby declared to be and shall be void and of no effect whatsoever." This Proclamation is signed, "By command, John A. Fihelly." It will be observed that by this Proclamation the cattle are to be held for the purposes and kept for the disposal, not of His Majesty's Imperial Government, but of His Majesty's Government 1917. of the State of Queensland, and all the property of the existing owners in the cattle shall be divested from them, and vested in the said Government of Queensland. Is this Proclamation valid? Does it come within the powers intended to be conferred by the Act? I think it is invalid by reason of its unauthorised trespass on the rights of His Majesty's Imperial Government-that is, the Crown, whose rights are a statutory adjunct to and are inseparable from or, at any rate, have not been severed from those of the plaintiffs. I think it is invalid, because the two statutes (as the AttorneyGeneral contends) must be read harmoniously together, and therefore the power of the State Government to appropriate cattle was not intended by the Legislature to be exercised, and cannot be exercised, whilst the Meat Act continues in force. And I think it is invalid because it does not comply with the Sugar Act itself, which provides that the whole of the commodity must be brought under the confiscatory provisions of the Act before an order can be made against specific property or the property of a specific person. In order that a commodity other than sugar may be brought within the operation of the Sugar Act, it is necessary that—(i.) The Act should be extended by Proclamation so as to authorise the acquisition of the commodity by the Queensland Government. That has been done. (ii.) The next step necessary is the "acquisition" of the commodity (cattle in this case) by a proclamation containing provisions similar to those of the Proclamation set forth in the Schedule. The whole of that Proclamation rests upon a declaration that all the commodity then in existence in Queensland should be kept for the disposal of His Majesty's Government of Queensland. (iii.) The final step is the Treasurer's authority to demand possession of such cattle as may be in the hands of any particular person. The second step was not taken, no such Proclamation was ever issued. In its stead, the Proclamation of 1st June, which I have quoted, was issued. It follows from these conclusions that the justification of their acts relied upon by the defendants fails under the Meat Act, because the trespass and other acts complained of were not done under the authority of that Act, because they were not done by the Chief Secretary nor for His Majesty's Imperial Government 265 F.C. DUNCAN AND Cooper C.J. F.C. DUNCAN AND ANOTHER V. THEODORE AND ANOTHER. DUNCAN AND ANOTHER V. BEAL. Cooper C.J. And it failed under the Sugar Act, because the trespass and other acts complained of could not be legally done under that Act at all, or, if they could, they could not be legally done until all the commodity-cattle-were, in the manner prescribed, brought under that Act. I think the plaintiffs are entitled to judgment for £2900 and costs. I ought to add that if the defendants had succeeded, I should have deprived them of the costs of seven days. The case began on 1st March, and ended on the 18th March. Both counsel told me that they expected it to last from five to seven days. I consider that the cross-examination of the plaintiff Mrs. Duncan and her witness McKenzie were unreasonably protracted, and that the lengthy cross-examination of the defendants' witness Murphy was rendered necessary by that unreasonably long cross examination of Mrs. Duncan and McKenzie. I consider that seven days were wasted in this manner, and defendants were responsible for it. On the appeal to the Full Court, Ryan A.G. and H. D. Macrossan, for the appellants, referred to The Meat Supply for Imperial Uses Act of 1914 (herein called the Meat Act), s. 2, "Chief Secretary," "stock," "owner," ss. 3, 4, 5, 6, 7, 8, 9, 10, 12; The Sugar Acquisition Act of 1915 (herein called the Sugar Act), ss. 2, 3, 5, 6, 7, 8, 10, 13; Foggitt, Jones & Co. Ltd. v. State of New South Wales (1), Duncan v. State of Queensland (2). The judgment is contrary to law. The Imperial Government is separate from the Queensland Government, and the Meat Act binds the Crown. The King v. Sutton (3), The Municipal Council of Sydney V. The Commonwealth (4), Duncan v. State of Queensland (5), per Isaacs J., Sydney Harbour Trust Commissioners v. Ryan (6), The State of New South Wales v. The Commonwealth (7). The provisions of the Meat Act apply to cattle owned by the Queensland Government by necessary implication, because (a) the Act is an Act for the public good, and is an exception to the general rule that statutes do not bind the Crown unless so declared; (b) the public contemplated by the Act includes all citizens, even the (1) 1916, 21 C.L.R. 357. (2) 1916, 22 A.L.R. 465, at p. 474. (5) 1916, 22 A.L.R. 465. F.C. DUNCAN AND ANOTHER V. Queensland Government; (c) the Queensland Government, by the Act, has subordinated its rights as a trader to the Imperial Government, and the Queensland Government, when dealing THEODORE AND with cattle under the Sugar Act or on its own behalf, is not the same entity as when dealing with cattle as representative of the Imperial Government. The State has the same power of acquisition of cattle and other property as an individual, and no distinction exists in the attributes of property acquired by the State, whether by purchase or by statutory authority, unless some distinction is expressly declared by statutory authority. The Act did not diminish the power of the State Government to purchase cattle with the authority of the Chief Secretary. The power of the State Government to purchase under the Sugar Act is not inconsistent with the provisions of the Meat Act. The powers under the Meat Act and the Sugar Act both exist, and are concurrent and consistent. It may be used as auxiliary to the Meat Act. Vide also The Control of Trade Act, 1914. The Proclamation of 12th November, 1915, was a valid exercise of the power to extend the Sugar Act (vide s. 10), and so was the Proclamation of 1st June, 1916. The power is not improperly exercised because it is not made applicable to all of a particular commodity. It may be exercised over the whole or any portion or in respect of any particular locality or any particular quality. If these proclamations, or either of them, are valid, s. 7 of the Sugar Act is a bar to the plaintiff's claim; the Acts were done in furtherance of the Sugar Act and proclamations, and purported to be done under that Act. Dicker v. Angerstein (1). If the Proclamation of 1st June is invalid, and if s. 7 is no bar, even then the Crown is not liable for actions done by servants which are wholly beyond their authority, for their authority was a statutory authority only. The learned Judge should have held that s. 7 afforded complete protection to the defendants. Further, the Crown is not liable for tortious acts of the Treasurer done under the Sugar Act, as he has independent discretion under that Act, and acts judicially and not ministerially; and if the Crown is liable, that liability has its basis in an Act of State for which the defendants Theodore and Balfour cannot be held personally liable. If the action against Beal is maintainable, the other (1) 1876, 3 Ch. D. 600. ANOTHER. DUNCAN AND ANOTHER V. BEAL. |