F. C.

DUNCAN AND

ANOTHER V. THEODORE AND ANOTHER. DUNCAN AND ANOTHER V. BEAL.

action must fail, and vice versa.

V.

Tobin v. The Queen (1), Baume

The Commonwealth (2), Enever v. The King (3), Stanbury v. Exeter Corporation (4), The Mersey Docks Trustees v. Gibbs (5), Gilbert v. Corporation of Trinity House (6), Fox v. Government of Newfoundland (7), Farnell v. Bowman (8), Ex parte Young (9). They also argued that the damages were excessive, and concerning matters of alleged non-direction and misdirection and improper rejection of evidence-which, however, the Court did not find it necessary to consider and as to which they cited Clough v. Leahy (10), Colonial Sugar Refining Co. Ltd. v. Attorney-General for the Commonwealth (11), State of New South Wales v. The Commonwealth (12), Lloyd v. Wallack (13), Farey v. Burvett (14), Ex parte McCardle (15), Doyle v. Continental Insurance Co. (16), Prentice v. Victorian Railway Commissioners (17), Sydney Harbour Trust Commissioners v. Ryan (18), Grant v. Secretary of State for India (19); on damages, Johnston v. Great Western Railway Co. (20), McInerney v. Clareman Printing & Publishing Co. (21), Ryan v. Ross (22), Heness v. Bell (23), Dallimore v. Williams and Jesson (24).

Feez K.C. and E. A. Douglas, for the respondents: The Sugar Act is inoperative as to stock and meat, which are dealt with by the Meat Act, so long as the Meat Act is in force; as it is, the Act will be in force during the war, and probably during the period of demobilization. There is no power to apply the Sugar Act to stock-ss. 14, 6. 7, 12, 6, subsec. 2; ss. 5, 10, 8. Cox v. Hakes (25), The Johannesburg (26). The Meat Act is the preeminent and dominating Act, and governs every thing falling within its clauses in this State; that Act impressed a disability or check or suspension of property rights on owners of all meat and cattle which prevents owners from exercising full rights of property in these goods, and creates a new right in the

(1) 1864, 16 C.B. N.S. 310.

(2) 1906, 4 C.L.R. 97.

(3) 1906, 3 C.L.R. 969.

(4) [1905] 2 K.B. 838.

(5) 1864, L.R. 1 H.L. 93..

(6) 1886, 17 Q.B.D. 795.
(7) [1898] A.C. 667.

(8) 1887, 12 A.C. 643.

(9) 1908, 209 U.S.S.C.R. 123, at p. 159.

(10) 1904, 2 C.L.R. 139, at pp. 155

157.

(11) 1912, 15 C.L.R. 182.

(12) 1915, 20 C.L.R. 54.

Hence the Proclamation of 12th

F.C.

DUNCAN AND

ANOTHER v.

ANOTHER. DUNCAN AND ANOTHER .

BEAL

Imperial Government.
November is invalid. Qua cattle, the Sugar Act is ineffectual.
The Sugar Act, s. 10, does not permit a proclamation to be issued THEODORE AND
affecting property dedicated or affected with the rights of
the Imperial Government under the Meat Act. Roberts V.
Ahern (1). It amounts, pro tanto, to a repeal of the Meat Act.
The Sugar Act does not, expressly or by necessary implication,
repeal the Meat Act. Duncan v. State of Queensland (2). The
Sugar and Meat Acts are inconsistent, and the Meat Act prevails
-s. 3. If they may be read together, the Proclamation of 1st.
June, 1916, is invalid, because the whole of the commodity is
not acquired. On the argument of the appellants the Act
purports to allow what is merely a confiscation of an individual
owner's property. Brewer v. Dew (3). The two Acts aim at
different objects, and their respective purposes are very
different. Neither the Meat Act nor the Sugar Act binds
the Crown; there are no words expressly indicating such
an intention. Attorney-General of New South Wales v. Curator
of Intestate Estates (4), The King v. Sutton (5). Section 7 merely
deals with values; it postulates a valid act, and the act here
was not valid. It affords no protection, for the defendants
must show, to claim a protection, the existence of some law under
which, under some circumstances, their acts could be lawful,
and as the action was not valid under the Sugar Act (which alone
is relied on in this respect), the protection does not attach.
Roberts v. Orchard (6), Hazelton v. Potter (7). The wrongful
act was not an act of the Crown, but an unwarranted act of the
defendants Theodore and Balfour. Enever v. The King (8),
Broom on

Clerk and Lindsell on Torts, 6th Ed,. pp. 66 and 67;
Constitutional Law, 2nd Ed., pp. 522, 544; Wilkes v. Wood (9),
Leach v. Money (10), Beardmore v. Carrington (11), Bruce v.
Rawlins (12), Wilkes v. Wood (13), Stanbury v. Exeter Corporation (14),
Sydney Harbour Trust Commissioners v. Ryan (15). On the
question of damages and motive, Addis v. Gramophone Co. Ltd. (16),

(1) 1904, 1 C.L.R. 406, at p. 418.
(2) 1916, 22 A.L.R. 465, at p. 474.
(3) 1843, 11 M. & W. 625.
(4) [1907] A.C. 519.

(5) 1908, 5 C.L.R. 789, at p. 795.
(6) 1863, 2 H. & C. 769.

(7) 1907, 5 C.L.R. 445, at p. 459. (8) 1906, 3 C.L.R. 969, at pp. 975 and 977.

(9) 1763, 19 State Tr. 1153.
(10) 1765, 19 State Tr. 1001.
(11) 1764, 2 Wils. K.B. 244.
(12) 1770, 3 Wils. K.B. 61.
(13) 1763, 2 Wils. K.B. 204.

(14) [1905] 2 K. B. 838, at p. 841.
(15) 1911, 13 C.L.R. 358, at pp.
366-367.

(16) [1909] A.C. 488, at p. 495.

F.C.
DUNCAN AND
ANOTHER V.

THEODORE AND
ANOTHER.
DUNCAN AND
ANOTHER V.
BEAL.

Real J.

Clough v. Leahy (1), Farnell v. Bowman (2), Colonial Sugar
Refining Co. Ltd. v. Attorney-General for the Commonwealth (3),
Farey v. Burvett (4), R. v. Governor of Brixton Prison (5).
No objection was taken to the summing up. They also referred
to The Acts Shortening Act, s. 6; Mutual Life Insurance Co. of
New York v. Moss (6), McLaughlin v. Fosberý (7), The
King v. Pleystowe Central Mill Ltd. (8), Ryder v. Foley (9).
On the question of the verdict being against the evidence,
Middleton v. Melbourne Tramway and Omnibus Co. Ltd. (10),
Rowe v. Australian United Steam Navigation Co. Ltd. (11).

Macrossan in reply.

C.A.V.

REAL J. On the 1st June, 1916, a Proclamation was issued by the Governor-in-Council, and published in the Government Gazette of that date, which, after reciting the continued existence of the present war and the expected shortage in the supply of live stock, and that it had become necessary to take such action as appeared to be most conducive towards safeguarding the interests of the public, and after reciting that: "Whereas by a Proclamation published in the Government Gazette of 12th November, 1915, the operation of The Sugar Acquisition Act of 1915 was extended by the Governor-in-Council so as to authorise the acquisition by His Majesty of cattle now and hereafter to come into the said State," in substance declared and directed, amongst other things, that all the cattle in the claim mentioned "are and have become and shall remain and be held for the purposes of and shall be kept for the disposal of His Majesty's Government of the State of Queensland by all persons in whose possession the same are or hereafter shall be for the time being and all such owners and all and every such owners, their agents, managers, attorneys, servants and workmen shall, without delay, hindrance, obstruction, claim, demand, or objection whatsoever, 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."

(1) 1904, 2 C.L.R. 139.
(2) 1887, 12 A.C. 643.

(3) 1912, 15 C.L.R. 182.
(4) 1916, 21 C.L.R. 433.
(5) [1916] 2 K.B. 742.

(6) 1906, 4 C.L.R. 311, at p. 322,

(7) 1904, 1 C.L.R. 546.
(8) 1906, St. R. Qd. 56.
(9) 1906, 4 C.L.R. 422.
(10) 1913, 16 C.L.R. 572.
(11) 1909, 9 C.L.R. 1.

On the 3rd June, 1916, the defendant Theodore, the Treasurer of Queensland, sent a telegram addressed to Constable Balfour, who was Acting Stock Inspector of Stock at Betoota, informing him of the Proclamation, and directing him thus-" You are hereby authorised by me to demand and take delivery and possession of the seventeen hundred cattle, including said six hundred fat bullocks on my behalf act with promptitude accordingly." Balfour received the telegram on the 11th June, and on its receipt went to Mooraberrie, being joined on the way by Constable Blandford. They arrived there on the 12th. Mrs. Duncan, one of the plaintiffs, arrived next day. Balfour told her the instructions he had received, and produced the telegram, which he read to her. They discussed the delivery of the cattle. She said, "You don't expect me to muster them?" He said he thought it would be to her interest to muster the cattle, as he thought the cost of the muster would be deducted from the price of the cattle allowed by the Government, and she could muster the cattle cheaper than he could, as he would have to put men on. McKenzie, her manager, said it would take a month to muster the cattle on Mooraberrie alone, and a little longer to get the cattle off the adjoining stations, and he would have to get his horses together first. Mrs. Duncan said she would give Balfour a definite answer in the morning. Next morning, the 14th, Balfour asked her if she had come to any decision, and she replied that she could see nothing for it but that her manager should obey his (Balfour's) instructions. Mrs. Duncan left the station that day, and communicated with her solicitors. On the 15th and 16th it rained. The country was not then in a fit condition to muster, and, owing to rain, was not in a fit condition to muster until about July. On the 18th June, Mrs. Duncan 1eturned to the station, and handed to Balfour a document which is in these words :

66

'CONSTABLE BALFOUR, of Betoota.

"Sir, Take notice that we, the undersigned, will duly hold you and the Government responsible for any loss or damage caused to the Mooraberrie cattle by any action of yours. We absolutely refuse to muster the said cattle or to permit our employees to assist at any such muster."

Balfour read it, and said, "Very well, Mrs. Duncan." Later she asked Balfour whether he was going to muster the cattle, and he said he could not take delivery of the cattle unless they

F.C.

DUNCAN AND ANOTHER v. THEODORE AND ANOTHER. DUNCAN AND ANOTHER 2.

BEAL.

Real J.

F.C.

DUNCAN AND ANOTHER . THEODORE AND ANOTHER. DUNCAN AND ANOTHER . BEAL.

Real J.

were mustered. She said she did not want to muster, and would not do it if she could help it-it would knock the cattle about to muster, and there was fear of pleuro if a large herd were mustered. Balfour said he would leave them as they were until he got instructions, and would remain in formal possession. She asked, "Are you going to stay here?" and Balfour replied, "Yes." She said, "Very well." Blandford left on the 19th June. Shortly afterwards, on the 19th or 20th June, McKenzie, by Mrs. Duncan's instructions, discharged the station employees. On the 16th June a letter was sent by FitzGerald & Walsh, plaintiff's solicitors, Brisbane, addressed to the Under Secretary, Chief Secretary's Office, Brisbane. On the same day, probably after receipt of this letter, the defendant Theodore sent a telegram to Balfour at Mooraberrie, as follows: "Please take no further action regard to mustering Duncan cattle on Mooraberrie Station. Will advise further." Balfour received this telegram on the 25th June, and told McKenzie that he had received instructions not to take any further action in regard to mustering the cattle. McKenzie said he would tell Mrs. Duncan. Mrs. Duncan remained at Mooraberrie until the end of June, when she left for Brisbane.

At that time there was an action pending in the High CourtDuncan v. The State of Queensland and Another (1)—and the plaintiffs, on the 27th July, 1916, at the request of the defendants, consented to an adjournment thereof on certain terms, including the term:

"4. The defendants undertake to assert no further claim to the cattle on Mooraberrie Station, and the plaintiffs shall be entitled to possession and ownership of the same, and the defendants shall withdraw from possession of the said cattle from and after the date hereof."

This action was brought for the injury caused by these acts of the defendants.

The trespass is alleged in the statement of claim to have continued for some months," but the particulars furnished in February, 1917, say that some months" means from the 13th June to the 27th July, 1916.

་

The case was tried before the Chief Justice and a jury. All the facts submitted to the jury were found in favour of the plaintiffs. The Chief Justice, after taking time to consider.

(1) 1916, 22 A.L.R. 465.