1906. BAUME v. THE COMMON- and second counts except in respect of goods for which entries H. C. OF A. had actually been made; (3), (4), and (5) improper rejection of evidence of statements made by the Collector that the goods would not be delivered up whatever the plaintiff might de (6) improper rejection of evidence of refusal by the Customs to deliver up goods mentioned in a certain letter from the plaintiff to the defendant; (7) improper refusal by His Honor to allow plaintiff to give evidence under the particulars in the letter; (8) erroneous ruling by His Honor that particulars were necessary under the third and fourth counts; and (9) improper refusal by His Honor to allow amendment of the particulars furnished by the plaintiff; (10) and (11) improper refusal by His Honor to direct the jury to find a verdict for the plaintiff on the sixth and seventh counts and to direct them that there was no justification proved for the seizure of the books and documents; and (12) that the damages were insufficient. The defendant filed notice of cross appeal, to have the verdict set aside and a new trial granted, and also of its intention to contend that the verdict returned for the plaintiff on the fifth, sixth and seventh counts should be set aside and a verdict entered for the defendant, or a new trial granted upon the grounds, (1) that the verdict was against evidence; (2) and (3) that His Honor should have directed the jury that on the evidence the defendant was not liable in the action, and that the defendant was not responsible even if the books and documents were unreasonably detained; (4) that a verdict should have been directed for the defendant on the fifth, sixth and seventh counts; (5) erroneous direction that the jury in assessing damages might consider any unreasonable delay in returning the books and documents of which copies had already been furnished to the plaintiff; (6) that the jury should have been directed that on the evidence the plaintiff was only entitled to nominal damages; and (7) that the damages were excessive. The facts sufficiently appear in the judgments. Shand K.C. (with him Garland), for the respondent, submitted, by way of preliminary objection, that the High Court had no jurisidiction to entertain an application for a new trial 1906. BAUME H. C. OF A. after the verdiet of a jury in a Court exercising federal jurisdiction, and referred to Musgrove v. McDonald (1). Sec. 20 of the Judiciary Act 1903 does not confer such a power. It presupposes the power, but it cannot give what the Constitution has WEALTH..not given: sec. 73 of the Constitution. The proper course was to appeal to the Full Court and from that to the High Court. [GRIFFITH C.J. referred to Wilcox v. Donohoe (2).] THE COMMON This is not a judgment of the Supreme Court within the meaning of sec. 39 of the Judiciary Act 1903. Knox K.C., for the appellants, referred to sec. 51, sub-sec. xxxix., of the Constitution. The judgment of the Court was delivered by GRIFFITH C.J. We do not think that the decision in Musgrove v. McDonald (1) covers the present case. That turned entirely on the Constitution. The Judiciary Act 1903 defines the word "appeal," as used in that Act, as including "an application for a new trial and any proceeding to review or call in question the proceedings decision or jurisdiction of any Court or Judge." Section 39 is the section under which the Supreme Court in this case exercised jurisdiction. In passing that section Parliament assumed to act under sec. 77 of the Constitution, which authorized Parliament to make laws investing any Court of a State with federal jurisdiction, and defining the extent to which the jurisdiction of any federal Court shall be exclusive of that which belongs to or is vested in any Courts of the States. By sec. 39 the legislature conferred upon State Courts power to exercise this particular branch of federal jurisdiction, subject to certain conditions. One of those conditions is, for the purpose of the present case, (reading the word appeal in the sense of the definition), that the decision "shall be final and conclusive except so far as an application for a new trial may be brought to the High Court:" Sec. 39 (2) (a). In the same Act we find careful provisions for the making of such appeals and for the Constitution of the High Court before which they come. By the High Court Procedure Act 1903, which was passed at the same time, careful provision (1) 3 C.L. R., 132. (2) 3 C.L.R., 83. 1906. is made for regulating the procedure in such applications. Under H. C. OF A. these circumstances we are of opinion that the High Court has power to make an order directing a new trial, after a verdict of a jury in the Supreme Court exercising this delegated federal jurisdiction under sec. 39 of the Judiciary Act 1903. Knox K.C. and J. L. Campbell (with them E. M. Mitchell), for the appellant. The Commonwealth is liable for the wrongful acts of its servants in administering the Customs Act. The maxim respondeat superior applies in the same degree as between subject and subject. The principle that the King can do no wrong no longer applies to State or Commonwealth governments. Secs. 56 and 64 of the Judiciary Act 1903, which replace the temporary provisions of the Claims against the Commonwealth Act 1902, are similar in effect to the words of the New South Wales Statute which, in Farnell v. Bowman (1), were held to take away the prerogative immunity from the Crown. That having gone, the Commonwealth is in the same position as any other public body as regards liability for the wrongful acts of its servants. [They referred to Tobin v. The Queen (2); Delacauw v. Fosbery (3); Whitfield v. Lord Le De Spencer (4); River Wear Commissioners v. Adamson (5); Ruling Cases, vol. 1., p. 308; Quick and Groom, Judicial Power of the Commonwealth, p. 119; Gibson v. Young (6); Davidson v. Walker (7).] The Commonwealth is only a great corporation. There is no distinction between the liability of bodies whose objects are public and that of bodies which carry on business for profit: Mersey Docks and Harbour Board v. Gibbs (8). The possibility of such a tort is clearly contemplated by the Judiciary Act 1903. The liability of the Customs for the acts of its officers is recognized by sec. 34 of the Customs Act 1901. The wrongs complained of in this case were committed by the officers of the Commonwealth in performing a duty cast upon the Customs Department: See sec. 4 of the Customs Act. They are not acts of a specific officer designated by Statute to perform a specific duty, (1) 12 App. Cas., 643. (2) 16 C.B.N.S., 310, at p. 324. (3) 13 N.S. W. W.N., 49. (4) Cowp., 754, at p. 765. (5) 2 App. Cas., 743. (6) 21 N.S.W.L.R., 7; 9 App. Cas., 418, at p. 433. (7) (1901) 1 S.R. (N.S. W.), 196. (S) L.R. 1 H. L., 93. BAUME v. THE COMMON- 1906. BAUME บ. THE COMMON WEALTH. H. C. OF A. as in Enever v. The King (1). The Commonwealth is bound to detain goods so far as is necessary for the purposes of revenue, but is not entitled to exceed those limits. The plaintiff was entitled to get his goods on tendering the proper duty. And the Customs officers were bound to demand a particular amount of duty in order to give the plaintiff an opportunity of tendering it. Having offered to do all that was necessary under the Act, he was entitled to the goods, and the Commonwealth is liable for damage caused by their detention after that time. The Commonwealth may not be liable for an honest mistake on the part of its officers, but it must be liable for excess on their part if damage is caused: Tracy v. Swartwout (2). If there is a boná fide dispute as to the amount of duty there is a provision in sec. 167 by which the importer may get his goods, but the plaintiff was denied all information as to what was complained of. The passing of an entry is not a condition precedent to the right to get possession of the goods. Darley C.J. ruled that it was, and rejected evidence of conversations with the Collector which would have proved that the detention was oppressive and wrongful, and that the plaintiff was ready to do all that was necessary. The onus was on the defendant to justify the detention under the circumstances, yet no evidence of justification was given. There is clear authority for the liability of the officers in Barry v. Arnaud (3) and Barrow v. Arnaud (4). The officer is bound to do everything necessary to enable persons affected by the Act to exercise their rights: Pickering v. James (5). [BARTON J. referred to In re Thornbury Division of Gloucester Election Petition; Ackers v. Howard (6), as approving that case.] The officer here is merely the instrument of the Commonwealth, performing a ministerial duty. At any stage the Minister could intervene. There is not a mere nonfeasance. The neglect to carry out the duties imposed by the Act is a wrongful act: Queen v. Williams (7). (1) 3 C.L.R., 969. (2) 10 Peters, 80 (12 Curtis, 26). (4) 8 Q.B., 595. (5) L. R. 8 C.P., 489. [GRIFFITH C.J. referred to Brennan v. Guardians of Limerick H. C. or A. Union (1).] 1906. v. WEALTH. The principal is liable even if the servant acts capriciously: ВАСМЕ Bayley v. Manchester Sheffield and Lincolnshire Railway Co. (2); THE COMMONDyer v. Munday (3). The goods having been wrongfully withheld from the plaintiff, the subsequent delivery of them will not exonerate the defendant from an action for trespass: Hiort v. London and North-Western Railway Co. (4). If the form of the action is incorrect an amendment should be allowed. Assuming that there is a cause of action under the third and fourth counts, an amendment of the particulars should have been allowed, and evidence admitted in support of the claim as amended: Lysaght Bros. & Co. Ltd. v. Falk (5); the defendant was not prejudiced by the new particulars, as it had sufficient notice of them before the action; and evidence of conversations with the Collector should have been admitted. The plaintiff is therefore entitled to a new trial. Shand K.C. and Garland, for the respondent. Evidence of the refusal by the Collector to deliver up the goods, was inadmissible without an amendment of the particulars filed. The amendment was rightly refused, as the defendant was prejudiced by the delay, and the amended particulars tendered were incorrect. The Judge's discretion will not be interfered with: Chitty's Archbold's Practice, 12th ed., pp. 1,452, 1,460, 1,455. [GRIFFITH C.J.-The form of the action should be conversion: Keyworth v. Hill (6); Fouldes v. Willoughby (7).] If there was any wrongful act the officer is liable, not the Commonwealth. Secs. 56 and 64 of the Judiciary Act 1903 being in derogation of the prerogative, should not be extended to include all classes of torts unless it is absolutely clear that they were intended to do so. But there was no evidence of a conversion. The plaintiff was not entitled to immediate possession of the goods. They were subject to the control of the Customs until entries were passed: secs. 30, 33, 37, 39, 154 and 167 of the (1) 2 L. R., Ir., 42. (2) L.R. 7 C.P., 415. (3) (1895) 1 Q. B., 742. (4) 4 Ex. D., 188. (5) 2 C.L.R., 421. |