Kitano v Commonwealth [1974] HCA 31

High Court of Australia Mason J. McTiernan, Menzies, Gibbs and Stephen JJ. Kitano v Commonwealth

ORDER Appeal dismissed with costs including costs of the interlocutory application.

Cur. adv. vult.

1973, Nov. 13 Mason J

. delivered the following written judgment:—

In this action the plaintiff, who is a Japanese national, sues the defendant, the Commonwealth of Australia, for damages for breach of statutory duty, negligence, conversion and by way of action on the case. The causes of action all relate to the yacht "Akitsushima", thirty-six feet in length, which was registered in the shipping register of the Prefecture of Hyogo, Japan. The plaintiff claims that he was at all material times the owner of approximately a nine-tenths interest in the yacht, the remaining undivided interest being owned by one Norio Matsushita.

The yacht commenced a round-the-world voyage in 1970. It was, so the plaintiff claims, under his command, with a crew of three of whom Matsushita was the sailing master (as distinct from master), Nagahama and Fujikawa being the remaining members of the crew. In the course of its voyage, on 27th May 1971 the yacht entered the port of Brisbane from which it departed on 26th June 1971 and proceeded to Darwin, calling on the way at the ports of Gladstone, Bowen, Townsville and Thursday Island. The plaintiff claims that the yacht was imported into Australia, entered for home consumption and became subject to the control of the Department of Customs and Excise.

At Darwin a serious dispute arose between the plaintiff and the other members of the crew. They made it clear to the plaintiff that they desired to return home to Japan and that they did not wish to continue with him on the round-the-world voyage. According to the plaintiff, on 21st August 1971 the crew mutinied and he was forced to leave the yacht and reside ashore. The plaintiff then claims to have dismissed Matsushita from his position of sailing master of the vessel and made arrangements for his repatriation to Japan, notifying the Darwin Customs authorities of these events. The plaintiff had earlier on 20th August 1971 sought a certificate of clearance under the Customs Act so as to enable the yacht to depart from Darwin.