Commonwealth v Huon Transport Pty Ltd [1945] HCA 5

70 C.L.R.] OF AUSTRALIA. 293

(HIGH COURT OF AUSTRALIA.)

THE COMMONWEALTH . 3 . Z . APPELLANT ; DEFENDANT,

AND

HUON TRANSPORT PROPRIETARY LIMITED Responvent. PLarntTIEF,

ON APPEAL FROM THE SUPREME COURT OF TASMANIA.

Defence—Requisitioning of ships—Statute giving power to officer authorized by H.C. or A. regulations—No regulations enacted—Whether requisitioning on basis of compul- 1945, sory taking or taking by agreement—Assessment of compensation for period of —§ ~~ possession—Whether interest allowable—The Constitution (63 & 64 Vict. c. 12), MELBOURNE, 8.51 (xxxi.)—Defence Act 1903-1939 (No. 20 of 1903—No. 13 of 1939), ss. 67, 124, Mar. 1, 2, 5.

Section 67 of the Defence Act 1903-1939 provides that "the owner of any S¥DNEY,

. . . boat or vessel . . required for naval or military purposes, shall, Muy 10. when required to do so by an officer authorized in that behalf by the regula- yatham C., Rich, Starke,

tions, furnish it for those purposes, and shall be recompensed therefor in the Pie}, 30

J " MeTiernan and manner prescribed.' Williams JJ.

Although no regulations had been made with reference to s. 67 of the Defence Act, the Commonwealth, purporting to act in pursuance of that section, requisitioned and took possession of two steamers of the H. company.

Held :—By Latham C.J. and McTiernan J., that the taking of the steamers was upon an implied promise by the Commonwealth to pay a fair hire for them, since s. 67 of the Defence Act does not operate until authority is given by regulations to an officer to act thereunder. By Rich, Starke, Dixon and Williams JJ., that the steamers were lawfully requisitioned under s. 67 of the Defence Act, and that, in the absence of regulations prescribing the method of recompense, the compensation payable must be worked out on general legal principles.