Agent-General of Immigration v H Marks & Company [1890] FJLawRp 7; [1876-1897] 1 FLR 211 (21 August 1890)

[1890] 1 FLR 211

SUPREME COURT OF FIJI

Civil Jurisdiction

AGENT-GENERAL OF IMMIGRATION

v

H. MARKS and COMPANY.

1890 Aug. 13, 21.

Polynesian immigration Amendment Ordinances, VII. of 1885 and XXI. of 1888, ss. 1, 73 - Return-Passages - Costs.

The transferee of an indentured immigrant is liable for the payment of his return-passage as "the employer to whom such immigrant was originally indentured." The period of such payment, however, in respect of an immigrant indentured before the passing of Ordinance XXI. of 1888 is not affected by s. 75 of that Ordinance unless it is expressly intended that the provisions of that section shall have a retrospective effect.

The liability to costs of a public officer acting mistakenly in discharge of his public duty considered.

The Attorney-General (Mr. Udal) for the Plaintiff.

Mr. Garrick and Mr. Caldwell (with whom was Mr. Solomon, Q.C.) for the defendants.

The facts and arguments sufficiently appear from the judgment.

The case was argued on the 13th August when his Honour reserved his decision, and on the 21st gave judgment as follows:-

H.S. BERKELEY, C.J. This is an action to recover from Messrs. H. Marks and Co. the sum of 75l. For the return-passage money for ten Polynesian immigrants indentured as from the 2nd December, 1886, to Messrs. James McEwan & Co. for the space of three years and transferred on 22nd September, 1888 to the defendants for the balance of the term of indenture then unexpired. This transfer had been effected by arrangement with the Sub-Agent-General of Immigration on behalf of the immigrants and under arrangement the defendants were substituted as the employers in the room and stead of James McEwan & Co. and fresh indentures for the remainder of the unexpired term were entered into between the immigrants and the defendants. Under this indenture which constituted the substituted contract of service the defendants undertook to pay the "return-passage money" of the labourers then engaged. At the time when the indentures to McEwan & Co. -were entered into and at the time when the defendants were substituted as the employers of the immigrants indentured to McEwan & Co. and until the 31st day of December, 1888, the law which regulated the payment by "employers" of the cost of return-passages of Polynesian immigrants indentured to them was contained in the Polynesian Immigration Amendment Ordinance, No. VII. of 1885, s. 1, which so far as material is as follows:-

The estimated cost of return-passage of any immigrant together with twenty days' keep in depot .... shall be borne by the employer to whom such immigrant was as originally indentured and shall be paid by such employer or his agent into the Colonial Treasury within twenty-one days from the date of such immigrant's embarkation.

This law was repealed by Ordinance XXI. of 1888, which came into operation. on the 1st day of January, 1889. By the 756 section of the repealing Ordinance-

The estimated cost of returning an immigrant to the place where he was recruited and the estimated cost of retaining sash immigrant in depot for the period immediately prior to departure, not exceeding twenty days shall be borne by the employer to whom such immigrant shall have been originally indentured and shall be paid by such employer into the Treasury on the expiration of the indenture of such immigrant.

This new provision made, it will be observed, an important alteration in the liability of employers of Polynesian indentured immigrants and imposed an obligation on them from which they were exempt under the repealed Ordinance No. VII. of 1885. Ordinance XXI. of 1888, the repealing Ordinance, contains also a provision which is relied on by the defendants as saving them from the operation of that Ordinance. That provision is contained in s. 1 of the Ordinance, and so far as material is as follows ....:-

The repeal of the said Ordinance shall not affect anything ... already done or suffered ...., nor any right or interest already acquired nor any liability already incurred under any such Ordinance.

The indenture of service to the defendants by which they were substituted for McEwan & Co. as the employers to whom the immigrants were "originally indentured," expired on 31st December, 1889, Ordinance XXI. of 1888, the repealing and re-enacting Ordinance, having then been in operation for a full year. On these facts two questions arise, viz.: - (1) Are defendants the employers to whom the immigrants were originally indentured? (2) If yes, are they as such employers liable to be now called upon on the expiration of the indentures to pay the estimated cost of the return-passage money of such immigrants as required by s. 75 of Ordinance XXI. of 1888, the Ordinance in force and passed at the date of the expiration of the indentures, or is their liability limited to the payment of such cost within "twenty-one days from the date of such immigrants' embarkation" as provided by Ordinance VII. of 1885?

The first question which was suggested on the pleadings, but not directly raised at the trial, must I think be assumed in the affirmative. It was necessary to consider this question, for primá facie the defendants are not the persons to whom the immigrants were originally indentured. The indenture of the 22nd September, 1888, however, though in form a substantive reindenture to the defendants, was not intended to operate as a reindenture to the defendants which would have left McEwan & Co. liable for the cost of the return-passage as being the persons to whom the immigrants were originally indentured, but was intended to operate as a transfer of the contract of service by which the defendants were to replace McEwan & Co. and stand in their stead as the original employers, and as such it has been all along treated both by the Immigration Department and by the defendants who were regarded and who regarded themselves as substituted for McEwan & Co. as the persons to whom the immigrants were originally indentured as from 2nd December, 1886, for a period of three years. The defendants are therefore, in my opinion properly before the Court as "the employers to whom the immigrants were originally indentured," and as such they are liable to pay the estimated cost of the return-passages of the immigrants.

The question remains whether the payments in respect of passage money for which as such employers they are liable are payable by them under s. 75 of Ordinance XXI. of 1888, or s. 1 of Ordinance. VII. of 1885. It is urged on the part of the Agent-General that the payments must be made under the former Ordinance which was in operation for a full year before the term of the indentures expired. It is pointed out that one of the principal objects of Ordinance XXI. of 1888 was to abolish the inconvenient and mischievous system theretofore existing by which the cost of return-passages was left to be collected from employers until after the immigrant had embarked, a system which ex necessitate rei frequently resulted in the Immigration Department being unable to collect the amount of return-passage money when, perhaps after the lapse of several years from the termination of the indentures on the immigrant making up his mind to return home, the employer to whom he had been originally indentured frequently could not be found, or, if found, was then oftentimes insolvent. It is, of course, obvious that such a system of collecting from employers the money for which they might become liable was faulty in the extreme, and was likely, as was found in practice to be the case, to result in many instances in the money not being forthcoming when the immigrant had at length embarked. This, it was pointed out, had had the further result of throwing upon the public funds of the Colony the burden of discharging towards the immigrants the obligations which the employers had assumed at the time of entering into the contract of service; and it is pressed on behalf of the Agent-General that the Legislature, with the view of putting an end to such an inconvenient and mischievous system, had expressly provided by Ordinance XXI. of 1888, s. 75, that the cost of the return-passage is to be paid on the expiration of the indenture; and I am reminded that that Ordinance was in operation for a period of twelve months before the indentures of the immigrants whose return-passage money is now sued for expired. On the other hand it is submitted for the defendants that a retrospective effect should not be given to Ordinance XXI. of 1888, and that the rights and liabilities of the defendants are to be determined by the law as it existed at the date of the original indenture to McEwan & Co., or at least by the law as it existed at the time when they the defendants were substituted as the employers in McEwan's place; and the defendants further say that in any case they come within the benefit of the saving clause of Ordinance XXI. of 1888. With respect to this latter contention it is argued on the part of the Agent-General that the saving clause only relates to transactions past and completed at the date of the passing of the Ordinance XXI. of 1888, and that the liability of the defendants to pay the return-passage money was not complete, that is to say, had not in the words of the saving clause "been already incurred" at the date of the passing of the Ordinance, the contract of service being at that time still unexplained.

There is much force in this argument and for some time I was inclined to concur in that view, but on fuller consideration I think that the contract with the defendants by which they had bound themselves to provide for the passage money of the immigrants was a complete contract at the time of the passing of Ordinance XXI. of 1888. I am of opinion, therefore, that the rights and liabilities of the defendants with respect to the immigrants indentured to them under the substituted contract of the 22nd of September, 1888, must be determined by reference to the law as it existed at the time that contract was made, and that the liability of the defendants in respect of return-passage money is to be determined by the provisions of s. 1 of Ordinance VII. of 1885. It may be true, as it was put to me, that this is such a case as was intended to be met by the framers of Ordinance XXI. of 1888. As to that I can express no opinion. - I have only to give effect to the Ordinance as framed, construing for that purpose the language in which it is couched by the light of the established rule that a statute which takes away or impairs a right acquired under existing laws and imposes a new obligation in respect of transactions already past should not be given a retrospective operation unless expressly made applicable to such transaction, for parties must be taker prima facie to contract with respect to existing law only.

I think that the contract between the defendants and the Agent-General of Immigration for the payment of return-passage money was by implication of law engrafted on to the contract of service with the Polynesian immigrants, and that the two combined formed a complete contract and so was a past transaction at the time of the passing of the Ordinance XXI. of 1888 under the 75th section of which it is sought to render the defendants liable. That section, therefore, will not apply unless expressly made applicable.

Now I am unable, in the face of the wording of the saving clause, to say that s. 75 expressly declares that the new obligations thereby imposed shall be applicable to such a case as this where the contract and all the rights and obligations themselves were complete before the passing of the Ordinance though unexpired at that date. Therefore, in the absence of a declaration in the Ordinance to the contrary, such a contract must, in accordance with the maxim that legislative enactment ought to be prospective and not retrospective in its operation, be taken not to be affected thereby. That being so, the parties are for the purpose of determining their several rights and liabilities relegated back to the law as it existed at the time that the contract between them was made. Now at the time that the parties to this action entered into the contract upon which the present action rests the defendants could not have been called upon to pay the estimated cost of return-passages until after the immigrants had embarked, which might not be - and often in practice was not - for a very considerable period after the termination of the indenture or contract of service. To compel the defendants now to pay such estimated cost immediately on the expiration of the indenture would be very materially to impair the right to delayed payment which they had acquired under the law as it existed at the date of entering into the contract.

My judgment must, therefore, be for the defendants, but, under the circumstances, as this action appears to have been brought by the Agent-General of Immigration and resisted by the defendants mainly for the purpose of obtaining the opinion of the Court upon the construction of the Ordinance which presents some difficulty, I do not think the Agent-General should be ordered to pay costs. The case of In re Pettitt's Estate⁽¹⁾ is all authority to support the proposition that a public officer acting in discharge of his duty and failing solely on the construction of a difficult Act of Parliament should not be ordered to pay costs. There will therefore be judgment for the defendants without costs.

(1) L.R. 1 Ch. D.450.

Judgment for defendants without costs.