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Decisions of the Superior Courts of New South Wales, 1788-1899

In re Deedo (1844) NSW Sel Cas (Dowling) 583; [1844] NSWSupC 4

reception of English law - ship's crew, wages

Supreme Court of New South Wales

Dowling C.J., Burton and Stephen JJ, 15 April 1844

Source: Dowling, Select Cases, Vol. 7, S.R.N.S.W. 2/3465, p. 41

Sir James Graham's Act, 5 & 6 Wm 4 c. 19 (1835), applied in New South Wales and permitted the recovery of seamen's wages before a justice of the peace. The Legislative Council is a "legislative assembly" for the purpose of constitutional law, as it comprised 24 elected representatives and 12 nominees of the crown.*

Dowling C.J. On the last day of last term, cause was shewn against a rule nisi for a mandamus to be directed to Henry Macdermott Esq., one of Her Majesty's justices of the peace in and for the city of Sydney, commanding him to hear and determine a summons exhibited by Deedo, late a seaman on board the ship Strathisla , against the owners of that vessel, for the recovery of wages claimed to be due him to an amount not exceeding £20. The justice refused to adjudicate, on the ground of want of jurisdiction.

The Strathisla was a colonial registered vessel of 387 tons and owned by resident merchants in Sydney . The applicant had hired himself to serve as a seaman on board the vessel from Batavia to any port or ports in the India Islands and to the port of Sydney and there to be discharged. The vessel having returned to her home port and been discharged, Deedo summoned the owners for his wages, under the Act 5 & 6 Wm 4 c. 19 (1835), s. 15 which gives jurisdiction to decide on claims to an amount not exceeding £20 for seaman's wages to any justice in any part of Her Majesty's dominions residing near to the place where the ship shall have ended her voyage, cleared at the custom house, or discharged her cargo, or near to the place where the master or owner upon whom respectively the claim is made, shall be or reside. By the 54th section of the same Act, it is enacted, that that Act "shall not extend or apply to any ship registered in or belonging to any British colony having a legislative assembly, or to the crew of any such ship, while such ship shall be within the precincts of such colony, anything herein before contained to the contrary in any wise notwithstanding".

By the local act of the Governor and Legislative Council, 7 Vic. No. 21 (1843) entitled: "An act to amend an act intituled 'An act for the further and better regulation and government of seamen within the Colony of New South Wales and its dependencies, and for establishing a water Police' and further to amend the law relating to the Government of seamen in the Merchant Service" (which Act was passed on the 23rd December 1843) after reciting by the 17th section that "it is expedient to remove doubts as to whether the Statute 5 & 6 Wm 4 c. 19 be now in force in the colony of New South Wales it is in the gross "declared and enacted that the Act is and shall be in full force and operation in this Colony". Notwithstanding this declaratory enactment of the local legislature the justice below refused to adjudicate on the claim, being of opinion that the 54th section of the Act deprived him of all power of adjudication.

It could not be disputed that but for the 54th section in the English statute, which is popularly called Sir James Graham's Act , the justice below would have had jurisdiction to adjudicate upon this seaman's claim; that section however having expressly enacted, that the statute shall not extend or apply to any ship registered in or belonging to any British colony "having a legislative assembly", one question presented for our determination was, whether for the purposes of that enactment, the legislature of this, as a British colony, must not now be held to be a legislative assembly within the intent and meaning of Parliament and consequently that the justice below had no jurisdiction.

Until the passing of the statute 5 & 6 Vic. c. 76 (1842) establishing the present Legislative Council composed as it is of 12 nominees of the crown, and 24 elected representatives of the people, this Colony could not be said to possess a legislative assembly according to the well known constitutional meaning of that description of legislative body. It is to be observed that the 54th section of the Act does not say having "a house of assembly" but having "a legislative assembly". The former has a definite meaning as a body of popular representatives analogous to the House of Commons, distinct from councillors appointed by the crown. By the new legislative constitution for this Colony, the distinct elements which form the legislatures of other colonies are amalgamated into one body for the same common purpose of ordaining laws for the welfare and good government of the people.

In common parlance, as well as for all practical purposes, when these elements are congregated together they form a legislative assembly. In name it is true they are called a Legislative Council, but in substance and in fact they are a legislative assembly. By 5 & 6 Vic. c. 76 (1842) did Parliament mean to confer something more of political power on the people of this Colony for the purpose of local legislation, than was imparted by the statute 9 Geo. 4 c. 83 (1828)? If it did, what was the meaning and extent of the concession? The 20th section of that Act, acknowledging the necessity of devolving upon persons resident in the Colony, the power under proper restrictions of making laws and ordinances for the welfare and good government of the Colony recites "And whereas it is not at present expedient to call a legislative assembly in either of the said colonies", and then proceeds to constitute a Council of nominees of the crown, not exceeding 15, nor less than ten.

If it was inexpedient then to call a legislative assembly, what has Parliament now done by the statute 5 & 6 Vic. c. 76? It has in fact called together 24 elective representatives of the people, and has associated with them 12 nominees of the crown, who but for this arrangement would have been a separate body as a council, in like manner with some other colonies. In name they are properly called when assembled together a Legislative Council, but in fact they are a legislative assembly. The establishment of a Legislative Council so constituted appears to satisfy the meaning of section 54 of Sir James Graham's Act when it speaks of a legislative assembly - i.e. an assembly in which popular representatives are collected armed with full powers of local legislation. If the Act had said having "a House of Assembly", there might have been a difficulty in holding that our present Council with its conjoined elements answered the meaning of Parliament. It must be taken that the Act contemplated colonies which had not within themselves powers of legislation with popular elements, adequate to the satisfactory enactment of local laws for the welfare and good government of Her Majesty's subjects. This view of the question seems to be somewhat fortified by bearing in mind the date of Sir James Graham's Act and the date of that for the government of New South Wales . The former was passed on 30 July 1835 and the latter on 30 July 1842, and Parliament may be fairly supposed to have had in view that the constitution of the new legislature for New South Wales would except the Colony out of the operation of the Seaman's Act .

Taking it therefore that the present Legislative Council of this Colony may be regarded as synonymous with a legislative assembly with power to adopt or reject acts of Parliament which are in force in other parts of the British Empire , the second difficulty which arises in this case, is as to the mode in which the power has been exercised. The local Act 7 Vic. No. 21, s. 17 has without discriminating between what parts of Sir James Graham's Act are, and what are not, applicable to the Colony has in the gross declared and enacted "that the whole act shall be in full force and operation in the Colony". Now there are several clauses which are wholly inapplicable to the Colony, such as those which relate to parish boys, parish apprentices, contributions towards hospitals and others.

Notwithstanding however this seeming incongruity and taking it to be clear that the present legislature of the Colony may be regarded as a legislative assembly within the meaning of Sir James Graham's Act , still the question is, whether that Act is not in operation, either by its own force, or by force of the local Act 7 Vic. No. 21? It is clear that up to the institution of the present legislative body Sir James Graham's Act was in force here, even with respect to colonial vessels, inasmuch as this Colony in 1835 (when the Act was passed) was not a colony previously to that time "having a legislative assembly". Taking it then that the present colonial legislature is a legislative assembly within the meaning of the Act, still if Sir James Graham's Act was in force at the moment the new local legislature was instituted, surely it did not become the less in force by the mere change in the legislative constitution of the Colony. Having once commenced its operation in the Colony, it could not ipso facto cease to operate, because of the change in the colonial legislature. There is nothing in the Act shewing that it was thus to fluctuate and shift about in its application. The words are "having" (i.e. then in 1835) "a legislative assembly"; and not "which shall have", and enacting "that thereupon the Act should as to such colony cease." In this view of the case presented to us, it is unnecessary to give any opinion as to the force or effect of the local Act 7 Vic. No. 21 s. 17. There may have been doubts entertained as to the applicability of Sir James Graham's Act in the Colony, and the local legislature may have felt it necessary to declare that it was and should be in force, but if so, why was it necessary to enact section 15 which is little more than a transcript of section 6 of Sir James Graham's Act ?

It appears to us, that the 17th section of the local Act may be simply regarded as inoperative; but that at all events whatever difficulty there may be in the case with respect to portions of Sir James Graham's Act which are clearly inapplicable to the Colony, we cannot regard it as "suicidal", but that the intention may be inferred to have been to recognize that statute, so far as it could be applied, as the law of the Colony. There is not much weight to be attached to the supposed difficulty that the 54th section was also adopted. There is no doubt that there were clear and better ways of effecting the intention of the local legislature, but that intention we may conclude was to adopt all the provisions of the Act, preceding that section; for if this be not its meaning, the 17th section has none at all.

On the whole we are of opinion that the mandamus ought to go.

Published by the Division of Law, Macquarie University