Administration of Territory of Papua and New Guinea v Leahy [1961] HCA 6

High Court of Australia Dixon C.J. McTiernan and Kitto JJ. Administration of Territory of Papua and New Guinea v Leahy [1961] HCA 6

ORDER Appeal allowed with costs. Order that the judgment of the Supreme Court of the Territory of Papua and New Guinea against the defendant the Administration of the Territory of Papua and New Guinea be set aside and that in lieu thereof judgment be entered for the said defendant with costs of the action to be taxed.

Cur. adv. vult.

The following written judgments were delivered:—

Mar. 7 Dixon C.J.

In my opinion this appeal must be allowed on the simple ground that the facts in no way support the conclusion that the defendant, the Administration of the Territory, entered into any such contractual relation with the plaintiff as his pleading alleges or as has been found in his favour. I am clearly of opinion that the Administration of the Territory, by its officers, did not contract with the plaintiff; there was no intention on their part to enter into any contract, to undertake contractual obligations or to do or undertake more than was considered naturally and properly incident to carrying out their governmental or departmental function in the conditions prevailing. They were merely pursuing the policy adopted for the eradication of tick. I do not wish to add anything to the reasons for this view of the case given by Kitto J. whose judgment I have had the advantage of reading. At one stage of the consideration of this case I was inclined to explore the possibility of the plaintiff's case being put upon the ground that by certain of its officers there had been neglect which could be vicariously imputed to the Administration of the Territory in the course of performing a voluntary service for the plaintiff, the negligent performance of which was likely to occasion damage to the plaintiff. But I formed the opinion that no such case in tort was open to the plaintiff. In the first place to make it now would be inconsistent with the course the proceedings took in the Supreme Court and in the second place, on the dubious hypothesis that in the facts enough could be found to justify treating the acts or omissions on the part of the officers in question as a neglect sufficient to give rise to a liability in tort, it would be impossible on the evidence to trace to those particular acts or omissions any identifiable part of the damages which the plaintiff sought to establish.