196 HIGH COURT H.C. or A. under the Workers' Compensation Act. To my mind it 1905. feetly clear that he was entitled to that £1 17s. 11d. a 2 Tue Grear Alleged agreement of compromise was made, and therefore it ¢ Fincat.Cox- : . hare 2 ees een, not form a consideration for any new promise ; that being so Lro. £1 17s. 11d. was not a consideration at all. There was th Suernay. no consideration to support the agreement, and it has th validity either as an agreement ousting the jurisdiction of O'Connor J. Court, or as a compromise or accord and satisfaction of the tiff's claim. The only way of doing justice is to send tl back to the Local Court. I therefore agree with the con of the Supreme Court, although for different reasons from th on which their conclusion was based, that the matter mu remitted to the Local Court for decision. . Appeal dismissed with costs, Solicitors, for appellants, Stawell & Cowle. Solicitors, for respondents, Martin & Phillips. HE. (HIGH COURT OF AUSTRALIA.) THE YORKSHIRE FIRE AND LIFE) ApPE INSURANCE COMPANY Ile PLAINTIFF, AND THE BRITISH AND FOREIGN MARINE) REsro! INSURANCE COMPANY LTD. the H.C. oF A. DEFENDANT, hess ON APPEAL FROM THE SUPREME COURT OF VICTORIA. — creyeenend Fire Brigades Act 1890 (No. 1200) (Vict.), secs. 2, 42, 45, 46—Contr fen 20, expenses of Fire Brigades Bourd—* Insurance Company," meaning of- Insurance Company insuring against fire on land—Fire insurance it Grimth c.J., marine insurance—Premium covering both insurances—Ascertainment Of 1 Barton and . ony, O'Connor JJ. portion of contribution. 3 CLR.) OF AUSTRALIA. 'The definition of "insurance company" in sec. 2 of the Fire Brigades Act 1890 (Viet.), includes every person or company who or which carries on the business of fire insurance or who or which carries on some business other than that of fire insurance and, as an incident to contracts made by it, for con- sideration indemnifies against loss or damage by fire property on land. Held, that a marine insurance company which issued slips annexed to its policies by which it insured the goods the subject of those policies against fire while on land before shipment or after discharge during transit from or to the shippers' warehouses to or from the ship, or while lying temporarily in such warehouses, was an "insurance company" within the meaning of sec. 2 of that Act, and was liable to contribute to the expenses of the Fire Brigades Boards under sec. 42 thereof. Decision of the Full Court The Yorkshire Fire and Life Insurance Co. v. The British and Foreign Marine Insurance Co. Ltd., (1905) V.L.R., 503; 2° A.L.T., 39, reversed. 'The mere fact that a marine policy insures against the risk of fire the hulls of ships while moored to wharves in the Port of Melbourne and goods and merchandise therein, does not render a company issuing such a policy liable to contribute to the Metropolitan Fire Brigades Board under sec. 42 of the Act. Where the premiums for marine policies cover also the fire risks on land to which the slips apply as above described, and the goods the subject of the policies are, for a short period during the currency of such fire risks, in a Fire Brigades District, the company issuing such slips is liable to contribute to the Fire Brigades Board of that district in respect of so much of the gross premiums received by it, being in respect of the property in question, as is proportional to the extent of the land risk while the property is within the district of that Board, as compared with the extent of the marine risk together with any other risk covered by the slips, regard being had to the average premiums asked by fire insurance companies undertaking fire risks only for similar protection. Appeal from the Full Court. In an action brought by The Yorkshire Fire and Life Insurance Co. against The British and Foreign Marine Insurance Co. Ltd., and The Metropolitan Fire Brigades Board, the following special case was stated by consent of the parties, that is to say:— 1. This is an action brought by the plaintiff on behalf of itself and all other insurance companies which have been assessed in respect of the contribution of insurance companies under the Fire Brigades Acts in the years 1903 and 1904 respectively against the defendant, The British and Foreign Marine Insurance Company Limited (hereinafter referred to as the defendant com- Vor. 111. 4 H.C. or A. 1905. Peay, Tue York- SHIRE FIRE AND LIFE INSURANCE Co. v. Tue Brivis Ap Forni Manis Iv- SURANCE Co. Lp. 198 HIGH COURT H.C. or A. pany)—the defendant, The Metropolitan Fire Brigades B ea (hereinafter referred to as the defendant Board) being a nor Tux Yorx- defendant—for a declaration that the defendant company is li SHIRE FIRE AND LiFE to contribute to the contribution of insurance companies p suant to the Fire Brigades Acts and for a declaration that v. defendant company is bound to indemnify or recoup the plait ees and each of the other insurance companies on behalf of who Martxe Is- sues a proportionate amount of the defendant company's cont SURANCE Co, Lr. bution in respect of the years 1903 and 1904 respectively. 2. Before the 31st days of January in the years 1903 and respectively, the defendant Board, in accordance with the p visions of the Fire Brigades Act 1890, No. 1200, as amen' the Fire Brigades Act 1891, No. 1207 (which Acts are hereinafi referred to as the Fire Brigades Acts), duly prepared estimates the probable expenditure which was necessary to be incurred int execution of the Fire Brigades Acts within the metropolit district during the said respective years 1903 and 1904, and th said estimates were respectively duly approved of by the Governo in-Council and were respectively within the limit fixed by Minister administering the Fire Brigades Acts. 3. The plaintiff and the other companies on behalf of whom sues before the 28th day of February in the years 1903 and 190 respectively duly transmitted to the defendant Board return showing the total amount of the premiums received by the p) tiff and the said other companies during the years 1902 and respectively in respect of property situated within the metropolitan district insured from fire by the plaintiff and said other companies. : 4. The plaintiff and the said other companies on behalf 6 whom it sues duly contributed and paid to the defendant towards the said estimated annual expenditure for the years 9 and 1904 respectively, the whole of the proportion of the conti bution of insurance companies liable for such contribution unde the provisions of the Fire Brigades Acts for each of the years in respect of property within the said metropolitan dist insured from fire by the plaintiff and the said other compani | 5. In the years 1902 and 1903 respectively, and at all time material to this action prior thereto, the defendant comp 3 CLR.) OF AUSTRALIA. granted policies of insurance both within the State of Victoria and in the other States of the Commonwealth other than the State of Western Australia in consideration of premiums paid therefor in the form annexed hereto and marked A. In some cases the defendant company issued policies of insurance in the suid form with slips in the forms B,C and D or B, ©. or D annexed hereto, attached to such policies. 6. The property which formed the subject matter of insurance by the said policies with or without such slips or either of them attached thereto respectively mentioned in the preceding para- graph comprised the following :— (a) Goods and merchandise which were within the said metropolitan district at the time the said policies in respect thereof were taken out, being sometimes lying in warehouses or other places, sometimes at railway or customs sheds or upon wharves, and which continued temporarily in some such place until they were de- spatched out of the colony of Victoria. (b) Goods and merchandise which were not within the said metropolitan district at the time the said policies in respect thereof were taken out but which afterwards during the continuance of the said policies respectively came into the said district whether by ship or otherwise, and were temporarily at warehouses or other places, customs or railway sheds, or upon wharves while in transit from the place of production of such goods to the place of final delivery thereof. (c) Goods and merchandise on board vessels temporarily moored to wharves within the Port of Melbourne, some awaiting delivery to consignees and some despatch upon a voyage. (d) Hulls of vessels temporarily moored to wharves within the Port of Melbourne, some having arrived from a voyage, and some awaiting despatch upon a voyage. 7. The defendant company did not transmit to the defendant Board before the 28th days of February in the years 1903 and 1904 respectively, or at all, returns showing the total amount of the premiums received by or due to it during the years 1902 and H.C. or A. 1905. ei Tur Yorx- SHIRE Fire AND LIFE INSURANCE Co. v. Tue British AND FOREIGN Marre In- suRANCE Co, Lrp. H. C. or A. 1905. —_ Tue Yorx- SHIRE FIRE AND Lire Insuras Co. v. Tue britisu AyD For © in respect of such or similar property so insured, and does " defendant Board towards the said estimated annual expe' HIGH COURT described in paragraph 6 hereof, and the defendant e contends that it is not required by the Fire Brigades transmit to the defendant Board the said returns or any intend to send returns in respect of similar business tra by it in the future. 8. The defendant company has not contributed or paid to for the years 1903 and 1904 respectively any proportion of contribution of the whole of the insurance companies liable such contribution for each of the said years in respect of. premiums received by it under the policies with or without slips or either of them attached thereto issued by the defe company on the said property described in paragraph 6 and claims that it is not liable to contribute to the expenditi the defendant Board in respect thereof, and does not intend | make any contribution in respect of premiums received by it up similar business transacted by it in the future. The questions submitted for the opinion of the Court are» 1. Whether upon the facts stated the defendant compa liable to contribute towards the annual expenditure of # defendant Board in respect of any, and which, of the premiu mentioned in paragraphs 5, 6 and 7 hereof ? 2. If yea, in respect of what proportion (7.¢., the whole or and what part thereof) of such premiums is it liable to conti 3. Is the defendant company liable to recoup or reimburse tl plaintiff and the other companies on behalf of which it suesa pro portionate amount of the defendant company's contribution respect of the years 1903 and 1904 respectively ? If the answer to the said question No. 1 is in the affirma judgment shall be entered for the plaintiff with costs against t defendant company, and if tie answer to question No. 3 is in affirmative, an order shall be made for such accounts and inqu or other consequential relief as to the Court may appear just. the answer to question No. 1 is in the negative, judgment sl be entered for the defendant company with eosts. The Court t make such order as to the costs of the defendant Board as to 3 CLR.) OF AUSTRALIA, may seem fit, the defendant, The British and Foreign Marine Tnsurance Company Limited not to be taken, however, to admit that the defendant Board is entitled to any costs, and reserving its right to contest the same. The policy exhibit A, was a policy of marine insurance in the ordinary form, containing the following provisions inter alia :— "And the company promises and agrees that the insurance aforesaid shall commence upon the said goods and merchandise from the time when the goods or merchandise shall be laden on board the said ship . . . and continue until the said goods and merchandise be discharged and safely landed at as above. And touching the adventures and perils which the said company is contented to bear and does take upon itself in the voyage so insured as aforesaid, they are of the seas men-of-war, fire," &e. Exhibit B, headed " Fire Risk—Intercolonial and Coastal," was as follows :— "Including the risk of fire from time of leaving warehouse at port of shipment during transit whilst at wharf or wharves or jetties until expiry of three days after discharge or until arrival at warehouse at port of destination in which the interest is to be stored whichever may first occur but if any property included herein shall at the time of loss or damage be covered by a fire policy protecting it specially against fire or which would so protect it in the absence of a marine policy this policy shall not insure the same except only as regards any excess of value beyond the amount of such insurance." Exhibit C, headed "Fire Risk, Warehouse to Warehouse— Outward," was as follows :-— "Tneluding the risk of fire from time of leaving supplier's warehouse during transit to port of export and until shipped, also risk of fire from vessel or lighter's side at port of discharge until the interest is deposited in a bond or in public freestore or in a warehouse of the consignees, but if any property included herein shall at the time of any loss or damage be covered by a fire pulicy protecting it specially against fire or which would so protect it in the absence of a marine policy, this policy shall not insure the H.C. or A. 1905, ——- Tue York- SHIRE FIRE AND Lire IysuRaNnce Co. v. 'Tue British AND ForeicN Manivz In- SURANCE Co, Lrp. Tue York- sure Fine. v. Tue British AND Fortin MakINE suRANCE Co. Lrp. © and whilst in transit direct to ship provided interest be at - ease by saying that the defendant company was not li b HIGH COURT amount of such insurance." Exhibit D was a follows :— "Covering risks in auctioneers' stores from time of pu insured." The Full Court answered the first question asked by thes contribute towards the annual expenditure of the defen Board in respect of any of the premiums mentioned in paragr 5, 6, and 7 thereof: The Yorkshire Fire and Life Inswrang y. The British and Foreign Marine Inswrance Co. Ltd. (1 From this decision the plaintiff company now appealed. Issacs A.G.and Mitchell K.C.(with them Hngland),for the lant company. 'The defendant company is within the defin of "insurance company" in sec. 2 of the Fire Brigades A The use of the word "includes" is primd fucie for the p enlarging the meaning of "insurance company": Hx parte guson and Hutchinson (2); Nutter v. Accrington Local B of Health (3); Dilworth v. Commissioners of Stamps (4). definition is divisible into two parts: (a) any person We., carr on the business of fire insurance ; (b) any person &e. grantin consideration indemnity against loss or damage by fire wht by itself or in conjunction with any contract other than insurance. The word "insurance" where last used, must 0 "fire insurance," which is the only insurance spoken of, against loss or damage by fire in conjunction with a contrael than fire insurance, i.¢., marine insurance, and is within That being so, the defendant company is made liable to cont under sec. 42. According to the judgment of the Full Court property insured, in respect of which companies are liable to tribute, must be permanently situated within one district. 1 (1) (1905) V.L.R., 503; 27 A.L.T., 39. (3) 4Q.B.D., 375. (2) LR. 6 Q.B., 280, 2C., 99. 3 CLR.) OF AUSTRALIA. is not the meaning of the words "property situated within" a H. ©. district. If the property is at any time during the continuance OF A. 1905. ew, _of the fire risk, situated within the district, that is sufficient. tue Yorx- _ See. 68, which provides that the owners of uninsured houses or SHIRE Fire AND Lire goods damaged by fire shall pay the expenses incurred by the Sagi: Fire Brigades Boards in saving them from destruction, makes no v 'Tae Brittsu "such provision as to uninsured goods in insured premises. The qxp Forxiex "result of the interpretation given by the Supreme Court to the es cn * Act would be to relieve such goods from contribution altogether "even if they were covered by one of these slips. (Grwrira C.J.—In view of the provision in sec. 45 for the "penalties for neglect to make the returns thereby required or for making false returns, does this action lie ?] The rule that an action will not lie where a remedy is provided "by an Act for breaches of it, only applies where the intention of the legislature is apparent to so restrict the remedy. Here no such "intention can be gathered. If a fire insurance company made "contracts covering the risk which is covered by the slips, they + would be liable to contribution in respect of those contracts. ' There is no reason why other companies, who make such contracts, should be exempted from contribution. Duffy K.C. and Goldsmith, for the respondent company. The defendant company does not come within the definition of "in- -ssurance company." When the Act was passed there were "scompanies carrying on business of fire insurance solely. There 2 were also companies carrying on two or more distinct businesses, eg, five and life insurance, or fire and marine insurance. Further -there were companies carrying on the business of marine insur- ance only, but which in the course of that business took fire risks outside those usually taken by marine insurance companies. Practically all the property insured by companies of the first two _ classes would be stationary, while that included in the fire risks taken by companies of the third class would consist of goods or merchandise either in course of transit to or from ships, or swemaining for a few days at warehouses. The object of the Act was that those companies, which insured property permanently within the districts, should contribute to the expenses of the Lrp. H.C, or A. 1905. eS, 'Tue YorK- sare Frre AND LIFE IssuRANCE Co. v. 'Tue Britisn AnD Foreign '- Ltd. (2); Harding v. Bussell (3); Davies v. National Fire, Marise SURANCE Co. Lrp. HIGH COURT Boards, and to let other property contribute when helped fire brigades: see sec. 68. The definition of " insurance comp, is exclusive, that is to say, the word "includes" means "ing the things specifically mentioned and nothing else." insurance may include other things than insuring against risks: Imperial Marine Inswrance Oo. v. Fire Insurance poration Ltd. (1); Nelson v. Empress Assurance Corpora Marine Inswrance Co. of New Zealand (4); Rodocanael Elliott (5); Flint v. Barnard (6); Goldsmiths' Company Wyatt (7). So that, in issuing these slips, the defendant pany is carrying on marine insurance and not fire insu That is an inference which a jury might draw, and the Court m draw it. Rules of the Supreme Oowrt 1884, Order XXXIV. 1, The words "other than that of insurance" at the end of th definition mean what they say, viz., other than that of any ki of insurance, whether it be marine, life, or accident. Read that way the definition does not cover a company which cai on the business of marine insurance, and, as incidental to business, indemnifies against the risk of fire on land. Even i defendant company is within the definition, it is not liable | contribute. Under sec. 45 the returns have to set out thi premiums. Unless it is proved that this company chi premiums for the risks covered by the slips, it cannot mak return in respect of them. Even if it be said that a portion the premium paid for a marine policy is attributable to the covered by the slips attached thereto, there is no provision in Act for apportionment of premiums, and it would be unr to interpret the Act so as to make this company contribute respect of the gross premiums received for marine policies. 7 word "situated " in sec. 42 connotes permanence of locality w a Fire Brigades District. The Act does not cover the wholese of fire insurance, for it makes no provision as to insured goods. transit and passing through several districts. (1) 4.C.P.D., 166. (5) L.R. 8 ©.P., 649; LR. 9C.P., (2) (1905) 2 K.B., 2 (6) 22 Q.B.D., 90. (3) (1905) 2 K. (7) (1905) 2 K.B., 586. (4) (1891) Ad 3 CLR.) OF AUSTRALIA. 205 Isaacs in reply. The only effect of the cases referred to is that H. 0. or A. by usage or special words a marine policy may cover risks other ca than purely maritime risks. They have no bearing on the que Yorx- question whether this company carries on the business of fire SHIP Pm anp Lire insurance within the meaning of the Act. The test is to look at ee the contract and see what is the risk the company undertakes. a If it undertakes the risk of paying for the property if it is Prine damaged or destroyed while within a particular Fire Brigades Marie Iv. peer o.2s SURANCE Co, District, it is within the Act. Lrp. Cur adv. vult. Grirrits C.J. This was an action brought by the plaintiff com- pany suing on behalf of itself and all other insurance companies, which had been assessed in respect of the contribution of insurance companies under the Fire Brigade Acts, against the defendants The British and Foreign Marine Insurance Company and The Metropolitan Fire Brigades Board, asking for the determination of certain questions as to the liability of the defendant company to contribute to the annual expenditure of The Metropolitan Fire Brigades Board. By the Fire Brigades Act 1890 provision is made for defraying the expenses of the Board by a fund which is raised in part by contributions from the various companies insuring from loss by fire property within the metropolitan district. Those companies contribute in proportion to the gross amount of the premiums received by them in respect of property situated in the metropolitan district and insured by them. The main questions in the present case are whether the defendant company is liable to contribute to the fund, and, incidentally, if so, how its contribution is to be calculated. The defendant company is a marine insurance company, issuing marine insurance policies in the ordinary way. By the policies in common use by that com- pany it agrees that the insurance shall commence upon the goods and merchandise from the time when the goods and merchandise shall be laden on board the ship, and continue until the goods and merchandise be discharged and safely landed. So that the marine risk begins when the goods are put on board ship, and continues until they are discharged. But the company has latterly been in the habit of attaching to the policies slips covering fire H.C. or A. 1905. —S Tue York- SHIRE Fire AND LIFE {xsuraNnce Co. v. Tue British AND ForEIGN Marrse Iy- SURANCE Co. HIGH COURT risks upon the goods the subject of marine policies, either b shipment of the goods or after they are discharged. The issued are in three different forms. [His Honor read the forms, Exhibits B, C and D, set out in the special ease, and ¢ tinued]. It is quite clear from the terms of those docum that the goods in question are insured against fire while on as well as insured by the marine policies against fire while aflo It is stated in the special case that the property which the subject-matter of the policies in respect of which the pl claimed that the defendant company was liable to contribut comprised in four categories. [His Honor read the four s paragraphs (a) (6) (c) and (d) of paragraph 6 of the special ¢ and continued]. With respect to the last two, it is quite that the fire risk on the property included in them is covered the marine policies, and the Attorney-General did not press claim on behalf of the plaintiff that the defendant company shoul be liable in respect of them. We are therefore not cone with them. I confine myself to the first two classes of g Those are all goods on land and in the metropolitan distriet « the time when they are covered by the contract of indemni against fire contained in the slips. The question is whether th defendant company comes within the Act, that is, is this com pany an insurance company for the purpose of contribution? determine that questions it is necessary to have recourse to the provisions of the Act. Apart from any argument derived from the specific languag of the Act, it is obvious that this defendant company carries 0 the business of fire insurance, that is, it carries on the busine of insuring from loss by fire property on land. That is p facie, not marine insurance. The Act is called "an Act to ma better provision for the protection of life and property from fir and for other purposes." The whole scope of the Act is to de with protection against fire. The interpretation clause, sec. detines the term "insurance company." It says:—*Insura company includes any person or persons incorporate or unineol porate carring on the business of fire insurance or of granting fo consideration indemnity in whole or in part against loss or damag by fire whether by itself or in conjunction with any contr 3 CLR.) OF AUSTRALIA. 207 other than that of insurance." Prima facie, then, this company H.C. or A. falls within the definition of a fire insurance company. The Act ihe evidently does not deal with companies which are not fire insur- hone ance companies. It is said that this definition is exclusive or pore comprehensive, and that a company must fall within the words Issurayce of the detinition in order to be affected by the Act. In one sense i that is true. It does not include a company which only carries [Y* BRITS on the business of life insurance. But it is immaterial whether Marise Iv- it does or does not include other companies than those described oi, o if in fact they accept premiums for fire insurance. So itis un- gimn cu. necessary to consider in what sense those words are exclusive or comprehensive. But reliance is placed on the particular words of the definition. It says:—" Insurance company includes any person or persons incorporate or unincorporate carrying on the business of fire insurance." Stopping there, the defendant company is clearly within the definition. It is an incorporated body carrying on the business of fire insurance. It is said that you cannot stop there. In the first place I think you can. That part of the sentence is complete in itself, and is sufficient to show that the defendant company falls within the Act. But it is said another construction is open which is raised by the following words : " or of granting for consideration indemnity in whole or in part against loss or damage by fire whether by itself or in conjunction with any con- tract other than that of insurance." Those words may be read as an alternative definition of what is meant by persons carry- ing on the business of fire insurance, viz., persons carrying on the business of granting indemnity against loss by fire by itself, or carrying on some other business in conjunction with which they incidentally grant indemnity against loss by fire, although they cannot properly be said to carry on the business of fire insurance. An instance has been given of the case of sales of wool by brokers where one of the conditions of sale is that purchasers will be protected against the risk of fire for a limited time while the goods remain in the warehouse of the broker. Possibly the definition was intended to cover such a case. Possibly it was intended to cover the case of carriers who, as an incident of their business, expressly agree to indemnify against loss by fire. H.C. or A. 1905. ~ Tue Yor«- SHIRE Fire AND Lire Insurance Co. v. Tue British AND FOREIGN Marie Iv- SURANCE Co, Lr. Griffith .J. HIGH COURT But it is contended that the words "whether by itself Fe conjunction with any contract other than that of insuranee," also exclusive, and 'that, if a company carries on the busine granting indemnity against loss by fire in conjunction y another business of insurance other than fire insurance, it do not carry on the business of fire insurance within the detini It is doubtful whether the antecedent of the word " itself" j the word "business" or the word "contract" which is implied the words " granting for consideration indemnity." If the a cedent is "business" then the clause would run "carrying o business . . . whether by itself or in conjunction with contract other than that of insurance,'—a very singular constru tion. But even if that construction be right, and I do not thin it is, the words "other than that of insurance" mean other that of the insurance spoken of before, #.c. fire insurance, and 1 other than that of insurance of an entirely different kind. So th whichever be the antecedent of the word "itself" the words "oth than that of insurance" refer only to that insurance or indemnit which has just been spoken of. The simple effect is that, if: company carries on the business of granting indemnity fire, it does not matter if in the same contract it has made stipulation for something else. The words are not exclusive but inclusive, and mean that a company cannot escape from liabi to contribute merely because, in conjunction with a contract 0 indemnity against fire, it makes another contract of a diffe kind. So that in my opinion the defendant company falls w the definition. But even so, it is said that no duties are imposed upon tl defendant company when regard is had to the other provisions 0 the Act. It is also said that those other provisions may throy light upon the construction of the definition clause. That is doubt correct. Let us see what the effect of those other provisions is. The funds of the Metropolitan Board are made up of sepa contributions, one-third of the estimated annual expenditu being contributed by the Treasurer of Victoria, one-third by # municipalities within the metropolitan district, and one-third the insurance companies insuring from fire property situ: within the metropolitan district respectively. Sec. 45 (1) provid 30.LR.| OF AUSTRALIA. that, for the purpose of ascertaining the contribution to be paid by each insurance company every such company is to send in an annual return showing the total amount of the premiums received by or due to such company during the year preceding the return in respect of the amounts held at risk. Sub-sec. (2) provides that such premiums are to be "the gross premiums received by or due to such company in respect of all property situate within the metropolitan district . . . insured from fire by such company." See. 46 (1) using slightly different terms, directs how the arith- metical calculation of the contribution of each insurance company is to be made, and states that it is to be calculated upon " the amount of the premiums received by or due to such company during the past year in respect of risks held by such company on property situate within the metropolitan district." It is said that it would be absurd to require the defendant company to bring into the calculation the gross premiums received for marine policies and the slips attached to them. I agree, but it does not follow that it should not bring into account anything, or that, if it undertakes an indemnity against fire on land in consideration of a single payment which also covers the marine risk, it should not account for a portion of that money. But the governing section to my mind is sec. 45, which applies, by virtue of the definition in sec. 2, to cases where fire insurance is not the only subject matter of the contract. The provisions of sec. 46 for calculating the amount of the contribution to be paid by each insurance company are subsidiary provisions, and must be moulded so as to give effect to the principle provision. Obviously the proper basis of calculation is such a portion of the whole premium as represents the consideration that each company receives for granting indemnity against fire. This is not in any way a forced construction of the Act. For these reasons I am of opinion that the defendant company is liable to contribute. The learned Judges of the Supreme Court thought that the defendant company did not carry on the business of fire insurance, and therefore was not liable to contribute. I am unable to agree with that conclusion. Ithink the defendant company is liable to contribute in both classes of cases. The first question is:—[His Honor read it and continued]. The answer is that the defendant company is liable H.C. or A. 1905. Se 'THe York- SHIRE Fire AND LiFe Insurance Co. v Tue Brivis AND FoREIGN Griffith C.J. H. C. or A. 1905. a Tue YorK- SHIRE Fire AND LiFe Insurance C v Tue Bririsn AND ForeiGn Mari: SURANCE Co. Lrp. Griffith C.J. HIGH COURT to contribute in respect of premiums received for the goods tioned in the first two categories. 3 The second question is—In respect of what proportion o premiums is the defendant company liable to contribute? question the Supreme Court did not answer, as it came to thee clusion that the defendant company was not liable to contribut all. The answer to that question, in which I think my bi agree, is that the defendant company is liable to contribu e respect of so much of the gross premiums received by it, being respect of the property in question, as is proportional to the ext of the land risk while the property is within the district of Board, as compared with the extent of the marine risk with any other risk covered by the slips, regard being had to' average premiums asked by fire insurance companies under' fire risks only for similar protection. Some interesting questions arose during argument, one whether, in the ease of goods passing through several fire di while subject to the protection oftered by the slips, the defend company would be liable to contribution in respect of each those districts. That is a matter which it will be time enougl determine when it arises. The amount of contribution in such case would probably be so small that it would not be wo the expense of issuing a writ. There is a third question asked, viz., is the defendant comp liable to recoup the companies on whose behalf the plaintiff in respect of the years 1903 and 1904? That point has not be argued. If the question were answered in the affirmative, tht would be very great difficulties in the way of the Court und taking the inquiries which would thereby be rendered neces But having regard to sec. 42 (3), requiring the payments to made before a certain day, to see. 45 (4), imposing a penalty default in sending in returns and for making incorrect or ine plete returns, and to sec. 46 (2) under which the Board i determine the amounts of the contributions, if the plain company thinks it worth while to proceed in respect of p contributions, possibly the proper course will be to induce defendant company to make returns, leaving the Board to enfo the contributions when the returns are made, or to take proc 3CLR.] OF AUSTRALIA. "ings to enforce the penalties if they are not made. For these yeasons I think the appeal should be allowed, and the questions » answered as I have stated. ~ Barton J. The Fire Brigades Act 1890 is "an Act to make better provision for the protection of life and property from fire and for other purposes." Certain financial provisions occur in it - relating to the creation of funds to meet the probable expenditure . of the Fire Brigades Boards created by the Act, of which there are two, the Metropolitan Fire Brigades Board, and the Country Fire Brigades Board. Those funds are, under sec. 42, to be pro- vided by equal annual contributions by the Treasurer of Victoria, out of the consolidated revenue, by the municipalities whose _ districts are within or partly within the metropolitan or any country district (as the case may be), out of the city, town or municipal fund of such municipalities respectively, and by the insurance companies insuring from fire property situated within the metrepolitan or any country district (as the case may be). Each of the parties mentioned is to contribute one third of that expenditure. Then provision is made by sec. 43 as to how the amount of the municipal contribution is to be ascertained, and by see. 44 that the amount of any contribution payable by a munici- * pality may be raised, if necessary, by the council increasing the annual town or general rate, and soon. Then sec. 45 relates to the returns to be made by insurance companies for the purpose of ascertaining the proportion which each of them is to contribute, and provides that the return of each company is to show "the total amount of the premiums received by or due to such company "during the year preceding the return in respect of the amounts "held at risk by such company during the whole or any part of that year." That return is to be supported by a declaration of its truth, and a penalty is imposed for default in transmitting the return, or for furnishing an incorrect or incomplete return. Then sec. 46 provides for ascertaining the amount of the contribution of individual insurance companies. It says: "The contribution of the whole of the insurance companies shall be made by each of the said insurance companies providing annually by quarterly ~ payments such a sum of money as shall amount to the pro ratd H. C. oF A. 1905. —— 'Tue Yorxk- SHIRE FIRE AND LIFE IysuraNnce Ce Tue Brivisi AND Fortien Marve ly- SURANCE Co. Lr. Barton J. H. C. or A. 1905. a Tur York- SHIRE FIRE AND Lire InsuRANCE Co. v. Tue Britis AND Forriey MARINE surance Co. Lrp. Barton J. HIGH COURT proportion of such contribution calculated upon the the premiums received by or due to such company di past year in respect of risks held by such company on pro situate within the metropolitan district or any country dist as may appear by the return hereinbefore provided for." sums are to be determined by the Board and are to be fixe such amounts "as shall produce upon the aggregate of such su of money payable for each such district by all the said i companies the total amount of the contribution to be provide the whole of the insurance companies for the year." These financial provisions are for the purpose of casting burden of providing for the expenditure of the Board under Act upon the parties whom Parliament considers most cone: viz., the public, represented by the Treasurer; the rate] whose property is within the districts where fires may occur; the insurance companies insuring against fire, whose ope are reasonably possible upon modern principles owing to the p tection afforded by the agencies which exist in all the cities towns for the extinction of fires, Now, if the defendant co pany is an insurance company within the meaning of this and is earring on the business of fire insurance, in my opit is subject to the liabilities which are declared by the Act, and the determination of which, provision is made by the Act. I to the interpretation clause, sec. 2, which defines " insurance ¢ pany " in this way :—"' Insurance company' includes any pet or persons incorporate or unincorporate carrying on the busin of fire insurance or of granting for consideration indemnity whole or in part against loss or damage by fire whether byi or in conjunction with any contract other than that of insurar and shall include as well the company as its agent or agents." the first place, I will consider whether the defendant comp carries on the business of fire insurance. 1t issues, in conn with policies of marine insurance, slips in the form stated in annexures to the special case, and they include provisions whi without doubt, relate to and establish an indemnity against occurring on land in certain cases, and that not in the cour the journey between two terminal sea ports, as in some of cases cited, but before the beginning, and after the end of 3C.LR.} OF AUSTRALIA. 213 normal fire risk accepted in the marine insurance policies. It is ¥- as ca no famonstration that this company is not carrying on the busi- ness of fire insurance to say that risks, which in themselves are Tux Yorx- fire risks, are by apt words included in the whole contract of saree Eee which the marine contract is part. There are cases which go to Lua ance establish that, in some such circumstances, apt words for the v. ; ee : . Tue Brivis purpose of making such an inclusion will not deprive the main xp Foreicy Marie Ix- SURANCE Co. do not show that when such words occur, either in a new policy Lrp. or in a slip issued in connection with a policy, if those terms or _ Barton s. those slips are habitually part of the transactions of the company, the additional business constituted by the acceptance of such risks is nota carrying on of the business of fire insurance, under what- ever name you designate the policy. I take it that it needs no argument to show that a company is not freed from liability in - respect of carrying on the business of fire insurance merely by the fact that similar operations may sometimes be found in - connection with marine policies. That objection in my judgment fails. It is then said that the defendant company is not carrying on . the business of fire insurance because it is not making a specific _ charge for the additional risk against which it insures property _ the subject of marine policies while that property is on land before shipment or after discharge. It is said the company throws . in, to use its own term, this risk, and that it and the marine risk are undertaken for the same premium. That may be so, but that is no proof that there is no valid contract. There was no , suggestion in argument that, if the defendant company were sued f upon the contract resulting from one of the slips, it would be able _ to set up asa valid defence that it was nudum pactum. The company is bound at law to answer to the risk it has accepted in the case of fire occurring to the property, and under the _ Gireumstances, described in any of the slips, before shipment or _ after discharge. One test as to whether this is a binding contract, and, if it is, ~ whether carrying it on habitually is a business of fire insurance, - is to consider how matters would go if other companies confined themselves to the issuing of policies for similar marine risks with- Vou, 11. 16 contract of its quality of a marine insurance. But those cases H.C. oF A. 1905. = Tue York- SHIRE FIRE AND Lire Insurance Co. v. 'Tue British AND FoReIGN Marine SURANCE Co, Lrp. Barton J. HIGH COURT out issuing such slips or incurring any liability in respect 0 on land. It is obvious to any one that this company, in the: of such competition, would receive the difference between the which the other companies would have to take for the more lim insurance and the rates which this company charged. It this company charges nothing extra for the risk covered slips, but it must be receiving that margin, and it is in that margin that it receives consideration, and that it is e ry on the business of fire insurance. : But although they are carrying on the business of fire in ance, if the view put on behalf of the defendant company | the interpretation of the other parts of the definition claus right, it does not follow that it is liable to contribute. — interpretation is this: that the words "whether by itself o conjunction with any contract other than that of ins apply to the business of fire insurance mentioned in the as well as the business therein described as that of "g for consideration indemnity in whole or in part against lo damage by fire." If that is established then, as the other b which the defendant company carries on is also an business, viz., marine insurance, it is contended, and it m possibly be successfully contended, that the position of defendant company is not one aimed at by the interprets clause. Without questioning the interpretation put by the le Chief Justice on the words "other than that of insuran J arrived at my construction of this interpretation clause will reference to the meaning he puts on those words, because Ith sufficient can be deduced from the clause to establish the plain case without resort to that meaning of the words. 'The two businesses mentioned in this interpretation clause, business of fire insurance, and the other, that of grantit consideration indemnity against loss by fire, and, alth contract of fire insurance is a contract of indemnity by fire, and might well be so described, still the legis drawn a distinction between the two businesses, and i be conceded that they intended a distinction in that Whether they did or did not, it seems to me the business insurance is intended to be one thing, and the business of " 3 CLR.) OF AUSTRALIA. 215 ing for consideration indemnity against loss by fire whether by H.C. oF 4. itself or in conjunction with any contract other than insurance," oy is intended to be another thing. I cannot apply the words vyx Yorx- "whether by itself," &¢., to the words "carrying on the business pe of fire insurance." I adopt that construction, first, because it is 1% i, the more natural and reasonable construction, and secondly, because v. I think it is the more grammatical. I have not heard any reason He Ce advanced in argument which would justify the taking those Reet Co. words out of that more natural current of thought and placing Lr. them in a different one, and I cannot myself see in the context any reason for supposing that the legislature intended such a curious limitation of the class to be deemed insurance companies. If my own view of the interpretation is correct, then it is only necessary qua this company to come to the conclusion that it is a number of persons, incorporated and carrying on the busi- ness of fire insurance. That it is carrying on the business of fire insurance is made plain enough, and that it is a body of persons incorporated is not denied. It seems to me for the reasons I have given that the first two lines of the interpretation clause cover the position of this company, and that it therefore is under the liability which flows from its being an insurance com- pany as there defined. Under these circumstances there was another construction raised by counsel for the defendant based mainly on the words "situated within the metropolitan or any country district," in sec. 42 (1) (c). It was argued with some force that the word "situated " implied a permanent, or, at any rate a somewhat con- tinuous stationary position of the property within a particular district. Ido not agree with that contention because I think that the use of the word "situated" was never intended to con- fine the operations of companies insuring against fire on land to _ property which in its nature remained necessarily stationary. 'To come to that conclusion would prevent the provisions of the Act in these financial clauses from applying in the case of insur- ances effected upon large classes of moveable personal property, such as wool and grain, which cannot be turned to use unless they are brought to a market either here or elsewhere. Such a construction would have the effect of excluding from liability RANCE Barton J. H. C. or A. 1905. "S Tue York- SHIRE FIRE AND Li Iysura: Co. v. Tue BritisH AND Foren Mariye Is SURAN Lr. E Barton J. HIGH COURT to contribute in respect of such property companies carry on the business of insuring against fire such pi op either in conjunction with other business or by itself, and would probably be, in the eyes of the framers of the Act, ap cipal source from which it might be expected that contribu would flow. A construction therefore which gives su effect to the word "situated" is admissible so long as it is equ reasonable with that suggested by the defendant's counsel, an think myself a more reasonable construction can be found, insurance is undertaken upon goods, they are inevitably situ somewhere. Are they less situated in a district, for the pur of contribution, because they move about in that dis because, being placed on a train, for instance, they are ti from that district into another and become situated there? fact that there may be some difficulty in ascertaining the p portion of the premium to be allocated to the insurance of | goods while in a particular district is not to my mind agi reason for concluding that it was not intended to subject in ances on such goods to contribution. A very large portion of | revenue derivable by the Board from fire insurance comp would be lost if such a construction were accepted, while goods at risk would still have the benefit of protection. Its much more probable that the intention of the framers of the: was that, while using words indicating the locality of the perty insured, those words would be satisfied by the pi the goods in the district during the time in respect of which contribution is to be assessed. That I take to be the me: the word " situated." I think the questions asked by the special case sl treated in the manner indicated by the learned Chief Jus as to which we have given joint consideration. O'Connor J. Iam of the same opinion. The liability the plaintiff seeks to impose upon the defendant company this proceeding is founded upon see. 42 (1) (c) of the Fire B Act 1890, which makes it imperative upon " insurance com) insuring from fire property situated within the metropolitat any country district (as the case may be)," to contribute ani 3 CLR.) OF AUSTRALIA. towards the expenses of the working of this fire brigade system. The liability, therefore, of the defendant company depends upon the construction which is to be placed upon that section. There can be no question, I think, that the defendant company did insure from fire certain property which is mentioned in the special case. There is no mystery about the contract of fire insurance. It may be described as an undertaking to pay com- pensation to the owner of goods if they are destroyed by fire within a certain period. That undertaking may be for a money consideration, commonly called a premium, or it may be for any other consideration. So long as there is an undertaking to com- pensate the owner of the goods if they are destroyed by fire, that is an insurance of the goods from fire. But it is said that this section cannot apply to the fire insurance of goods which are covered by the slips attached to the special case. In regard to the greater portion of these goods I think that contention is clearly untenable. The goods insured are described under two heads, the first is:—{His Honor read paragraph 6 (a) of the special case and continued.] I cannot see how it can be said that goods in that position at the time of the insurance being effected are not situated within the metropolitan or a country district within the meaning of sec. 42. The argument applies, no doubt, with greater force to the second class of goods, viz. :—[His Honor read paragraph 6 (b) of the special case and continued.] There is no doubt the greater bulk of goods insured, the premiums of which are returned under this Act by the different insurance com- panies, are goods situated permanently in the metropolitan or a country district, such as goods in warehouses, or property, or stores, or furniture in houses. The great bulk of the revenue which the Fire Brigades Boards derive from the metropolitan and country districts is drawn from the goods which may be described as stationary. But we have te consider whether or not by the Act it was intended, in using the word "situate," to confine the liability to contribute in respect of goods to cases of that character. What is the object of the Act? The object in the financial part of it was to compel those who are benefited by the Act to contribute towards the cost of this fire brigades system. The public is benefited, therefore the Treasurer pays out of the H.C. or A. 1905. Shee Tue Yorx- SHIRE Fire AND Lire InsURANCE Co. v Tue Brivis AND FoREIGN Marine In- SURANCE Co, Lrp. O'Connor J. H. C. oF A. 1905. =< Tue YorK- SHIRE Fire AND LIFE IysuraNce Co. v Tue Bririsit AND ForeEIGN Marve IN- SURANCE Co. Lrp. Q'Connor J. just as much benefit from the service of the fire brig HIGH COURT consolidated revenue ; the ratepayers of the various munici are benefited, and therefore the various municipalities pay ou their municipal funds; and finally the insurance compan whose risks are lessened by the existence of this system of fi brigades, are benefited very largely. So it was contended for th plaintiff that, inasmuch as fire insurance companies would whether the goods insured travel in a railway train and there destroyed by fire, or are stationary or situated in son building, they should contribute in the one case just as in tl other. It was intended by the legislature that the insuran companies should contribute in respect of such goods. Its ns on principle that we should give such a construction to the v " situated " as will enable the obligation to contribute to be pla upon insurance companies in regard to the saving of goods wh they are travelling exactly the same as if they are situated ina building. The word "situated " is grammatically used as meanit not only permanently placed, but also being in some position. my opinion, that word is used to cover not only goods which a1 permanently placed in the building, but any goods whether moving or stationary, the subject of insurance, which are in the me politan or a country district. Otherwise there would be shut ou from the obligations of this Act a very large portion of thi property and produce which is continually coming from, and goin to, the country districts, travelling by train or moving about i other ways. Therefore the argument which is founded upon # use of the word "situated" on behalf of the defendant comp cannot be upheld. I think, therefore, that the goods mention the second class (b) are included, exactly in the same way as th goods mentioned in class (@) of the special case. But a more substantial objection was that raised in the ar; of Mr. Duffy, viz., that it is not enough that an insurance compa should insure from fire property situated in the metropolitan or a country district in order to make it liable to contribution und sec. 42, but that the company must be such an insurance company as is intended by the interpretation clause to come within " provisions of the Act. That interpretation clause is one of class the substantial meaning of which is plain enough, but wh 3 CLR.) OF AUSTRALIA. certainly does not bear very critical examination, judged by the rules of exact language or expression. In interpreting Acts of Parliament, although it is necessary if possible to give every word of a particular clause some meaning, it is not always possible to do so. Acts of Parliament are not more exempt than any other documents from looseness of language or inaccuracy of expression, and it is sometimes impossible, doing the best one can, to give full and accurate meaning to every word. Looking at this interpreta- tion clause from that point of view, I see no difficulty in finding its meaning in it. The first part defines insurance company as:—" Any person or persons incorporate or unincorporate carrying on the busi- ness of fire insurance." That must be taken asa definition by itself because otherwise there would be no definition in distinct terms of the great bulk of insurance companies intended to be brought under the Act. In an Act of this kind there would be expected to he, first, a direct definition of insurance company as a company carrying on the business of fire insurance. That is what the part of the definition clanse which I have read does. But then other businesses of a similar kind have to be provided for. It is well known that persons or corporations do not always carry on the business of fire insurance by itself, but combine with another business that of taking fire risks. That may be done for the purpose of making their contracts attractive to their cus- tomers. For instance, carriers often undertake to insure against fire the goods they carry. That is a very great convenience to the persons who employ them. In the same way marine insurance companies save their clients the trouble of effecting a second insurance of the goods the subject of the marine risk. So for various reasons it is to the interest of some companies to combine the business of granting indemnity against loss or damage by fire with other business. It seems to me that the plain purport of this definition was to include that class of persons and to take care that every person or company who makes « contract to insure against fire, whether that contract is made separately or in conjunction with another contract except that of fire insurance, thereby obtaining the benefit of the Act, shall be an insurance company within that definition. That being so, sec. 42 (c) appears to me to cover the case of the defendant H.C. or A. 1905. Tue YorK- SHIRE Fire AND LirE Iysurance Co. v. 'Tue Bririsn AND ForEIGN Marinz In- SURANCE Co. Lrp. O'Connor J. H.C. or A. 1905. Tue York- SHIRE FIRE AND LIFE InsvRANCE Co. v. Tue British AND FOREIGN Marine In- SURANCE Co. Lr. O'Connor J. HIGH COURT company. It is an insurance company within the definition, it insures from fire property within the metropolitan or a count district. It appears to me entirely immaterial how it carries that business, or in what forms it makes its contracts, whether carries on the business of fire insurance as ancillary to the bu ness of marine insurance, or whether the insurance against th risk of fire is included in the body of the marine policy, or occasionally included in slips such as those before us in this ¢ That being so, I see no difficulties in carrying out the provis of the Act. There was a good deal of argument as to the difficulty o making the returns as provided for by sec. 45. The centr idea of that section is to make insurance companies thems give information about their business, and they are liable penalties if they do not give correct information. No one e give it with the same accuracy as they can. They give it: the risk of being liable to a penalty if they have not gi ; correct information. In the ordinary case they are required to make a return of the whole of the premium, In a case of kind that would be unreasonably harsh. They have to make. return of the amount of the premium in respect of the fire F; It may be a difficult matter to separate the proportion of the premium from what is held at fire risk. It may be that nothin additional is charged for the fire risk. If that be true thati the only return they are bound to make. 'hat is a matter which, if contested in any proceeding under sec. 45, may be decided then. But certainly there is no reason why a company in & similar position to that of the defendant company should not make this return of premiums showing in the manner indicated by the learned Chief Justice the value put upon that part the premium which covers the fire risk. I therefore enti concur with the mode in which the learned Chief Justice h answered these questions, both as regards the question of liability and that of apportionment of the premiums. ; As to the third question I agree that it is a very difficult and one that we are not called upon to answer. Grirritu, C.J. Iwish to add that according to the rule 3 OLR.} OF AUSTRALIA. computation suggested, the amounts of the premiums that would be stated in the returns of the company are substantially the amounts the company would have to pay by way of re-insurance of the fire risk, which, if paid by the company would, under sec. 45, have to be deducted. Appeal allowed. Judgment appealed from discharged. Judgment for the plaintifT with costs. Respondent to pay costs of the wppeal. b Solicitors, for appellant company, Malleson, Stewart & Co., * Melbourne. Solicitors, for defendant company, Moule, Hamilton, & Kiddle, | Melbourne. Be, "at ie ca ami My & dean 4 z ' i (HIGH COURT OF AUSTRALIA.] ~MOONEY . : 5 : 3 E : s APPELLANT ; DEFENDANT, AND 'THE COMMISSIONERS OF TAXATION (NEW SOUTH WALES) . PLAINTIFFS, } . RESPONDENTS. ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES. Land and Income Tax Assessment Act 1895 (N.S. W.) (59 Vict. No. 15), secs. 15, 30, 39, 44, 67, 68—Income—Profits arising from sale of mine—Persons obliged to furnish returns—Income not exceeding £200 a year—Default assessment— How far assesament conclusive—Appeal to Court of Review. 'The appellant in 1903 received £1,680 as part of the purchase money of a mine of which he was joint owner, and which had been sold in 1901 for a price payable by instalments. He also received during that year £50 admitted to be income. By the Land and Income Tas Assessment Act of 1895, sec, 27, the amount of taxable income for the year immediately preceding the year of assessment is to be taken as the basis of calculation of the amount on which the tax is payable in that year, and by sec, 68 "income" includes " profits " H. C. oF A. 1905. ~ Tue Yor«- SHIRE FIRE AND Lire InsurANCE Co. Tue British AND FoREIGN Marine In- SURANCE Co. Lrp. H. ©. oF A. 1905. ~— Sypyey, Sept. 7, 8, 11. Dec. 22, Griffith ©.J., Barton and O'Connor JJ.