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Colonial Cases

Palmer v. Hutchinson, 1880


Palmer v. Hutchinson

Judicial Committee of the Privy Council
June 1880
Source: The Times, 19 June, 1880

(Present - Sir James Colville, Sir Barnes Peacock, Sir Montague Smith, and Sir Robert Collier.)
  This was a petition for leave to appeal from a judgment of the Supreme Court of Natal on the 8th of December last.
  Mr. Danckwerts appeared in support of the petition.
  On the 3d of September last an action in the Supreme Court was instituted by Mr. Mark Hutchinson, of Maritzburg, against Mr. Charles Palmer, Her Majesty's Deputy Commissary-General, to recover £743 for the price of hire of certain wagons and oxen for the transport of goods; £1,000 in respect  of 50 trek oxen, which he alleged had been killed or had died in the course of that transport; and other sums for wagons and goods which had been "impressed" for the service of the army during the Zulu campaign, and for use in the field. Mr. Palmer took exception to the claim thus made, on the grounds, among others, that the acts in respect of which the suit was performed, if at all, in his official capacity and on Her Majesty's behalf, and that they could only be dealt with by a petition of right, and were therefore not competent to be investigated by the Supreme Court at Natal.
  The Court over-ruled the exceptions to their jurisdiction, and ordered the trial to be proceeded with. Mr. Palmer, or the Treasury in his behalf, now asked the leave of the Judicial Committee to appeal from that decision on the ground that important questions of constitutional law and public policy were involved in the matter, and, in support of his motion to that effect, Mr. Palmer, who is now in England on sick leave, made an affidavit, in which he said that in the course of the war it became necessary to hire a large number of wagons and oxen from the colonists for transport services, and for the purpose of carrying supplies to the troops in the field. He also stated that the suit brought against him by Mr. Hutchinson was defended at Natal on his (Mr. Palmer's) part, by the General commanding the troops, and he concurred that important issues would arise in connection with the suit.
  Their Lordships granted the petitioner special leave to appeal against the decision of the Supreme Court.

Source: The Times, 1 July, 1881

LAW REPORT, June 30.
(Present - Sir Barnes Peacock, Sir Montague Smith, Sir Robert Collier, Sir Richard Couch, and Sir Arthur Hobhouse.)
  This was an important appeal from a judgment of the Supreme Court of the Colony of Natal, of the 8th of December, 1879.
  The Attorney-General, Mr. A. L. Smith, and Mr. Danckwerts were counsel for the appellant on the part of the Crown.
  The appellant, Mr. Charles Palmer, is Deputy Commissary-General for the Colony of Natal, and the respondent, who is a farmer and saw-miller, in the county of Pietermariztburgh, sued him in his official capacity as the agent of the Crown in respect of certain incidents in the transport arrangements during the late Zulu War. The respondent's declaration stated that the Crown, in April, 1879, accepted his terms to convey certain Government stores, goods, packages, and other supplies from Pietermaritzburg to Dundee, or Doornberg. That tender was for £743 odd, and the wagons were to convey servants and invalids as passengers. It was understood that the stores were to be carried in reasonable time and under the usual conditions. On the 29th of April the officials started his wagons without his knowledge, in charge of an officer, who made a forced march to Howick, thereby killing five of his oxen, which he had to replace, and in consequence of that forced march, five more oxen were left at Colenzo, and subsequently died. On the 10th of May, near Ladysmith, Major-General Marshall, commanding the cavalry brigade, requested him to keep pace with and accompany the 7th Lancers (left wing), and promised full compensation for all oxen already disabled or dead, or that might be disabled or die in consequence of travelling faster and out of the ordinary course of wagon travelling.  General Marshall promised that any further reasonable compensation he might claim for the extra strain upon the oxen should be paid.
  The respondent, relying on those promises, agreed to travel with the Lancers. On the night of the 12th of May, an alarm took place, when, by orders of the General, the oxen were cut loose, and one of them lost, and on the 13th of May five oxen were left disabled at Dundee, and died. On the 14th of May, at Dundee, the wagons were off loaded, having completed the contract. The cattle were then utterly exhausted by want of food and excessive travelling, when an officer in charge of the Commissariat Department at Landtman's Drift and Dundee, "by threats and violence," seized and pressed his wagons and oxen, loaded them with supplies and goods, and forced him to proceed with them to Conference Hill, in the Transvaal, notwithstanding that he pointed out that the oxen would all die if they were forced to proceed further. He was promised the remuneration or rate of carriage whatever for the conveyance of goods, and had received none. He claimed £455 as remuneration for the conveyance of those goods and supplies. He had lost in all 50 trek oxen, which had died in consequence of the over-driving and the illegal seizure of the wagons and cattle, and these were worth £1,000.  He had also been unable to attend o his business for many weeks, and on this head he claimed £250. The total claim was £2,449.  The Crown had tendered £1,053, but the offer was refused.
  On the case being brought before the Supreme Court, the Crown took exception to the Court's jurisdiction, on the grounds that the action was not cognizable there, being a suit against Her Majesty's Commissariat Department for acts alleged to have been done by officers of Her Majesty's service in performance of their duties, and that the acts were such over which the court had no jurisdiction and could afford no remedy.  The Crown demurred on the ground that Mr. Palmer, in the capacity in which he was sued, was an officer of Her Majesty's service, acting under the direction of the Commander of the Forces in South Africa, and through him, was subject to the Secretary for War, and that the negligence and acts complained of and the claims made under the alleged contract were acts and claims for which no legal remedy existed against Her Majesty's Commissariat Department, even if proceedings had been adopted in England by way of petition of right until the Secretary for War had had an opportunity of inquiring into the merits of the claims and the alleged wrongs, and the relief, if any, which should be afforded, and of submitting the petition and his recommendations thereon to the Queen for Her Majesty's consideration. Those exceptions were argued before the Supreme Court, who over-ruled those relating to the Court's jurisdiction. From this decision the Crown now appealed.
  The Attorney-General submitted that the judgment was erroneous on the grounds that the Supreme Court had no jurisdiction to entertain the complaint made by the respondent, or without the Sovereign's permission to entertain a suit against the Crown. It, moreover, had no jurisdiction to entertain an action the object of which was to charge the Crown, or its revenues or property, whether within its jurisdiction or not; nor could it obtain jurisdiction for that purpose by the device of allowing an officer or servant of the Crown to be sued in his capacity as such. The Supreme Court could not lawfully issue execution against the property of the Imperial Government within its territorial jurisdiction. The appellant was not liable in respect of any contract made by him in his character of a servant of Her Majesty.
  At the conclusion of the arguments their Lordships reserved judgment.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School