ACTION AGAINST COMMONWEALTH-Liability
for tortious acts of servants-Independent
officer - Collector of Customs - Ministerial
duty-Nominal and small damages-Customs
Aet (No. 6 of 1901), secs. 30, 214, 215-Judie-
iary Act (No. 6 of 1903), secs. 56, 64. Practice
-Verdict of jury in Court exercising federal
jurisdiction-New trial motion-Misdirection
-Jurisdiction of High Court-Power of Court
to reduce damages-Amendment at trial-
Judiciary Act (No. 6 of 1903), secs. 2. 39.]—
Secs. 56 and 64 of the Judiciary Act 1903 give
a subject the same rights of action against the
Commonwealth as he would have against a
subject in matters of tort as well as contract.
The Commonwealth is therefore responsible in
an action for the tortious acts of its servants
in every case in which the gist of the cause of
action is an infringement of a legal right, if
the act complained of is not justified by law,
and the person doing it is not exercising an
independent discretion imposed upon him by
Statute, but is performing a merely ministerial
duty. The Collector of Customs, pending the

ACTION AGAINST COMMONWEALTH-continued
passing of entries, took and detained certain
imported goods liable to ad valorem duty for
the purposes of ascertaining their true value
for duty, and upon the passing of the entries
delivered the goods to the importer. Held,
that, in refusing to pass entries until the
ascertainment of the true value for duty, the
Collector was performing a quasi-judicial duty
prescribed by the Statute to be performed by
him personally, in the performance of which
he was required to exercise independent judg
ment on a preliminary question of fact, and
that an action would not lie against the Com-
monwealth for a wrongful refusal to pass
entries owing to a mistake of facts or even
mala fides on the part of the Collector. Tobin
v. The Queen, 16 C. B.N S., 310, and Enever
v. The King, 3 C. L. R., 969, followed. Barry
v. Arnaud, 10 A. & E., 646, and Barrow v.
Arnaud, 8 Q.B., 595, distinguished. But,
held, that the neglect or refusal by the Customs
Department to furnish the importer with
copies of books and documents impounded or
retained under secs. 214 and 215 of the Cus-
toms Act 1901 was a breach of an absolute
duty cast by the latter section on the depart-
ment, for which an action would lie against
the Commonwealth; and that, though the
impounding and retaining of the books and
documents in the first instance were justified
by the Act, the unreasonable detention of them
after the expiration of the period necessarily
occupied in the ascertainment of the value of
the goods was unlawful, and rendered the
Commonwealth liable to an action for con-
version; but that, in either case, the damages
recoverable were limited to the pecuniary loss
actually suffered by the plaintiff by reason of
the wrongful acts. Semble, that on a motion
for a new trial on the ground of misdirection
the High Court will follow the practice of the
Supreme Court and refuse to grant a new trial
if the misdirection involves only a trifling
amount. If, on a motion for a new trial on
the ground that the damages are excessive, it
appears that the damages are excessive, but
that the plaintiff is entitled to something
more than nominal damages, the Court has nc

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202

Court heard his application and argument
thereon, and decided against him, considering
that they were bound by the Act not to
allow solicitors to appear before them as
agents unless with the consent of all parties.
The solicitor obtained from the Supreme
Court of Western Australia a writ of man-
damus to compel the Court to allow him to
appear and be heard as the agent of a party
to the proceedings. Held, that the right of a
particular person to appear as an advocate
before the Arbitration Court was a question
involving the interpretation of the Arbitra-
tion Act, which that Court had full jurisdic-
tion to decide. The decision they pronounced
was not a refusal to exercise their jurisdiction,
but an actual exercise of jurisdiction, so that
mandamus would not lie. By sec. 87 of the
Industrial Arbitration and Conciliation Act
(No. 21 of 1902), proceedings of the Arbitra-
tion Court were made not liable to be
'challenged, appealed against, reviewed,
quashed or questioned on any account what-
soever. Held, that the decision of the
Arbitration Court being one made within the
competence of the Court, mandamus could not
be resorted to as an indirect method of obtain
ing the appeal which the Act has denied. Ar-
bitration Court (W.A.) v. Nicholson

362

-Special case submitted by arbitrator
- Arbitration Act 1895 (W.A.), (59 Vict.
No. 13), secs. 9 (b), 12-Power to draw infer-
ences of fact-Remitting incomplete award—
"Extras" Employer, architect and con-
tractor.]—It was stipulated in a building
contract that no extra works beyond those
included in the contract should be allowed or
paid for without an order in writing from the
employer and architect; the specification con-
tained a similar provision. The contractor
executed a number of works; some were upon
written orders signed by the architect, ex-
pressed to be at the employer's direction, but
not signed by him. A dispute having arisen
upou a claim made by the contractor for the
price of the extras, the matters in dispute
were referred to arbitrators, and, they having
disagreed, to an umpire, who stated a case for
the opinion of the Court under the Arbitra-
tion Act 1895. There was a finding of fact
that the written orders were not endorsed by
the employer, but that he had such knowledge
of those extras as might be fairly inferred from
the fact that he was constantly on the works
and took an active interest in them. Upon
a submission under the Arbitration Act the
Court has power to draw all necessary infer.
ences of fact. Held, that the proper person
to find the facts and draw the inferences neces-
sary to decide liability to pay for the works in
question was in this case the umpire, and that
as the umpire had failed to draw the inference
of fact necessary to decide the matter in dis-