KITANO V. THE COMMONWEALTH OF AUSTRALIA

IN THE HIGH COURT OF AUSTRALIA

REASONS FOR JUDGMENT

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RM.72/20133

+ SHIGEO KITANO

THE COMMONWEALTH OF AUSTRALIA

JUDGMENT GIBBS J. (ORAL)

SHIGEO KITANO ve

THS COMMONWEALTH OF AUSTRALIA

In this action brought by a Japanese national against the Commonwealth the plaintiff seeks to enforce what proadly stated may be said to be two causes of action, namely, first a claim for damages for breach of contract and, secondly, a claim for damages for negligence or breach of statutory duty.

The act which constituted, so it is alleged, both the breach of contract, and the negligence or breach of statutory duty, was the issue by a customs officer of a certificate of clearance pursuant to which, it is said, _one Norio Matsushita and other members of the crew of a yacht in which the plaintiff claims a ninety per cent interest sailed the yacht out of Darwin harbour and away from Australia.

Application is now made for an order pursuant to Order 35 rule 2 of the Rules that the question whether the facts alleged by the plaintiff in his amended statement of claim, if established, entitle the plaintiff to recover damages from or to any other relief against the defendant on any of the grounds nentioned in the statement of claim other than the alleged breach of contract and in particular the grounds of wrongful or negligent conduct or breach of statutory duty, should be decided by a single Justice before any evidence is given or question or issue of fact is determined. .

The principles on which an application of this

kind is to be dete ed were stated by Lord Justice Romer

in Bverett v. Ribbands in 1952, 2 King's Bench, 198, at ». 206,

in a passage which the Court of Appeal in ©

Zoiss Sti

v. Herbert Smith & Company in 1969, 1 Chancery, 93,

said was the "true rule" as follows: