F.C.

DUNCAN AND
ANOTHER V.

ANOTHER. DUNCAN AND ANOTHER V. BEAL.

that it must still be regarded as part of the Act itself, and it is not disputed that the acts complained of purported to be done thereunder. It is not suggested that the persons guilty of the THEODORE AND trespass were attempting, under the colour of law, to do an act which they knew to be unauthorised. I agree therefore with the majority of this Court in thinking that s. 7 is a bar to the plaintiffs' action. I need hardly say I regret extremely that this case should be decided on such a point. I agree with the form of judgment proposed by the Senior Puisne Judge.

LUKIN J. This is an appeal from the judgment entered by the Chief Justice in an action tried before him with a jury, in which, after considering the findings of the jury and hearing argument of counsel, he entered judgment for the plaintiffs for the sum of £2,900 against the nominal defendant as representing the Queensland Government, the Hon. Edward Theodore, the Treasurer, and H. Balfour, who had acted as police constable under the direction of the defendant Theodore.

The relevant facts, as alleged by the pleadings and appearing in and supported by the evidence, may be shortly stated.

The Queensland Government, acting under the powers they supposed they had under The Meat Supply for Imperial Uses Act of 1914-and as decided by the High Court they really hadplaced a restriction on the removal of cattle over the borders of Queensland, and that restriction was being enforced throughout the months of May and June, 1916.

The plaintiffs were the owners of Mooraberrie, a small station in the far south-west of Queensland, having a small herd of cattle variously estimated from 1700 to 3000, from which, from time to time, in previous years, the plaintiffs had drawn "fats," and disposed of them at the nearest and best payable market in South Australia.

In May, 1916, the plaintiffs sought permission from the Queensland Government to remove 600 head of cattle, and take them over the borders of Queensland for the purposes of disposal in South Australia. The Queensland Government refused the plaintiffs' request, and took steps to prevent the plaintiffs from doing so without such permission. Thereupon the plaintiffs brought an action in the High Court of Australia, complaining that such prevention was illegal, and could not be authorised by the Meat Act, for such Act, if it purported to so authorise, was,

Shand J.

Lukin J.

F.C.
DUNCAN AND
ANOTHER V.

THEODORE AND
ANOTHER.
DUNCAN AND
ANOTHER V.
BEAL.

Lukin J.

it was claimed, in contravention of s. 92 of the Commonwealth Constitution Act.

On the 1st June the plaintiffs gave the defendants notice of motion for an injunction to be made before the High Court on 2nd June to restrain the Queensland Government from so acting. The Queensland Government then evidently felt themselves in a difficulty, for a decision had just recently been given in Foggitt, Jones & Co., Ltd. v. The State of New South Wales (1), in which provisions in a New South Wales act similar to those of the Queensland Meat Act, had been held to be ultra vires the State Parliament of New South Wales. Evidently fearing that under that decision they were in the wrong, the Government sought other means, so it is suggested, of protecting themselves from their apparently illegal action, and at the same time of punishing the plaintiffs for their temerity in questioning the legality or propriety of such action. The Government could have exercised their power of compulsory purchase under s. 6, subsec. 2, of the Meat Act, but that would have necessitated the appointment of a board under s. 8, the purchase on behalf of the Imperial Government and the payment under s. 15 of the price fixed by such board. The Government preferred to seek protection under the powers they supposed were conferred on them by the provisions of The Sugar Acquisition Act of 1915. Accordingly the Government having previously, under s. 10 thereof, issued a Proclamation of 12th November, purporting to extend "the operation of The Sugar Acquisition Act of 1915 so as to authorise the acquisition by His Majesty of cattle now or hereafter to come within the said State," issued a further proclamation on 1st June in a form somewhat similar to the Proclamation ratified by the Sugar Act, except that it purported not to acquire all the commodity or all of a particular class of the commodity-that is, without differentiation as to persons-but to acquire only the cattle, in all a small number, on this distant outlying station.

This proclamation recited that "by reason of the continued existence of the present war and the expected shortage in supply of live stock, it had become necessary to take such action as appears to be most conducive towards safeguarding the interests of the public; "and then proceeded to declare and direct that all the cattle on Mooraberrie to the number of about 1700, including

(1) 1916, 21 C.L.R. 357.

66

F.C.

DUNCAN AND

ANOTHER V.

ANOTHER. DUNCAN AND ANOTHER V. BEAL.

Lukin J.

the 600 fat bullocks which the Government had prevented from crossing the border, are and have become and shall remain and be held for the purposes of and shall be kept for the disposal THEODORE AND of His Majesty's Government of the State of Queensland and all the title and property of the existing owners thereof are and shall be divested from such owners, and are and shall be vested in His Majesty's said Government (that is, of the State of Queensland) absolutely freed from any mortgage, charge, lien, or other encumbrance thereon whatsoever, and all the title and property of such owners are and shall be changed into a right to receive payment of the value thereof ... to be thereafter determined and declared by a further proclamation all owners shall give immediate and peaceable possession to the Treasurer," and authorised any State officer to seize and take possession by force, if necessary, and inhibited any dealing, and declared all contracts before and after the date of the Proclamation void and of no effect.

The plaintiffs, as to this Proclamation, alleged, and the learned Judge held, that it had been unlawfully made, and further alleged, and the jury found, that such Proclamation and the acts complained of were not issued and done in good faith with the object of safeguarding the interests of the public, and was not issued in order that the cattle should be and become and remain and be held for the purposes and kept for disposal, as set out in par. 1 of the schedule to the Sugar Acquisition Act, but that the said Proclamation was issued and the said acts were done with an indirect object, and for some ulterior purpose. See No. 9 of the findings of the jury (page 254).

In passing, I may say that if such an inquiry is permissible, there was ample evidence to warrant such a finding.

66

Having regard to the past history of the cattle trade in Queensland, to the number of cattle in Queensland (something over 4 millions), to the fact that the State of Queensland is one of the most important sources of meat supply in the Empire;" further, that stock are held for the purposes of the export of their flesh as meat in almost every part of its vast and that it is a notorious fact that in 1914 large quantities of frozen and chilled meat were exported overseas from Queensland to Europe," as to all of which judicial notice must be taken (see Griffith C.J., Duncan v. The State of Queensland (1) ;

area

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

FC.

DUNCAN AND

ANOTHER V. THEODORE AND

ANOTHER.

DUNCAN AND
ANOTHER V.
BEAL.

Lukin J.

and further,

It is a fact so notorious as to be the proper subject of judicial notice that in that State-i.e., Queensland-are bred and owned a larger number of cattle than in any other part of Australia"-per Barton J. (1);-it is difficult to understand how the recital in the Proclamation, "the expected shortage in supply of live stock" can be justified as stating the truth; particularly when, under the Meat Act, all stock were already held for the Imperial Government, except in so far as trading therewith might be permitted by the Chief Secretary. It is also difficult to understand how "the expected shortage in supply of live stock" was to be remedied by the seizure of 1700 head of stock in a remote corner of the State when there are something like 4 millions of cattle within its boundaries.

These peculiarities of the proclamation, taken with the dates on which the Government acted, so significantly relate to the action then pending in the High Court, that they would seem to warrant the conclusions at which the jury arrived in answering Question 9.

The defence, however, take up the attitude

1. That no action will lie against the Queensland Government for a tort, and that even if it does, that the motives and purposes of the actions of the Queensland Government, however oppressive or harsh they may in fact have really been, cannot be inquired into; that it is a conclusive presumption of law that any action taken or proclamation issued by the Queensland Government must be deemed to have been taken and issued in good faith.

2. That the Governor-in-Council was authorised under the provisions of the Sugar Acquisition Act consistently with, or alternatively, notwithstanding the provisions of the Meat Act, to seize all the cattle in question.

3. That in any event all the defendants are protected by the provisions of s. 7 of the Sugar Acquisition Act.

As to the contention that no action for tort lies against the Queensland Government, The Claims against Government Act of 1866 and the decision of the Privy Council in Farnell v. Bowman (2) seems to me to be a complete answer. Section 5 of that Act provides that "the rights of parties therein " (i.e., any person having a just claim or demand against the Government, and the Government), "shall as nearly as possible be the same as in an ordinary case between subject and subject (1) 1916, 22 C.L.R. 465, at p. 478.

(2) 1887, 12 A.C. 643.

at law or in equity"; and s. 7, that every species of relief, including damages, may be given.

The protecting shield of the maxim, "The King can do no wrong," has, it seems to me, been by this Act withdrawn as a protection to any wrongful acts of the Queensland Government, and that in consequence, the cases and law of England, where no similar Act is in force and the protecting shield of the maxim still operates, cannot be considered of any authority. In Farnell v. Bowman (1), the defendant was the Secretary of Lands appointed under a similar statute in New South Wales to be sued as nominal defendant. The claim was for damages on a declaration containing two counts, the first for trespass, and the second for negligence. The majority of the Full Court in New South Wales. held that the Government was liable for damages eo delicto, and their judgment was supported by the Privy Council. The Privy Council say: "These words" (i.e., of the statute similar in all material respects to the Queensland Act) "are amply sufficient to include a claim for damages for a tort committed by the local Government by their servants," and speak of a "complete remedy" being given, and emphasise the provision that "not the proceedings only, but the rights shall be the same, and that judgment shall follow as in an ordinary case between subject and subject."

As in Farnell v. Bowman (1), so in the present action, the claim is for trespass arising out of the alleged legally unauthorised acts of the Government and its servants, and as the plaintiff was there held entitled to recover, so also here, if the Government action was unlawful, the plaintiffs would be entitled to recover. Further, as in estimating damages in an action of tort between subject and subject relative items for consideration are the motives of the defendant-per Lord Atkinson in Addis v. Gramaphone Co. (2)-the absence of bona fides, the exercise and misuse of power for ulterior purposes," the high-handed procedure or insolent behavour"-per Lord Halsbury in The Mediana (3)— and the oppressive nature of the wrongful act, it would seem to follow that, under the express terms of the statute, these matters may be taken into consideration in an action against the Government. If this is so, then the Government cannot object to the bona fides or the motives or the purposes of their action (3) [1900] A.C. 113.

(1) 1887, 12 A.C. 643.

(2) [1909] A.C. 488, at p. 495.

FC.

DUNCAN AND ANOTHER V. THEODORE AND ANOTHER. DUNCAN AND ANOTHER v.

BEAL.

Lukin J.