1885-86.

BERRY

v.

SHEAD.

is said to be the principle on which the Courts of England act rather than on what is called comity, we can hardly throw the question of comity out of consideration in a case depending upon a statute, the preamble of which recites that it is enacted because Windeyer J. "the proximity of the several Australasian colonies to each other, and the separation of their respective jurisdictions, greatly facilitate the evasion of the judgments, decrees, rules and orders of the Supreme Courts of the said colonies respectively," and when we find, moreover, that similar provisions to our own as to effecting foreign service, and as to issuing execution upon a memorial of the judgment of our Supreme Court, are in force in Victoria.

There, indeed, I find that the Supreme Court of Victoria has, going further than this Court did in the case of the Brisbane Oyster Fishery Company v. Emerson (3), decided in the case of Mullins v. Ditchburne (18), that where a judgment of this Court was regularly obtained in his absence against a person who made a contract in this colony when not domiciled here, he was bound by our judgment, and could not dispute our jurisdiction.

Whether we decide therefore on the principle that the defendant is bound by the judgment of a Court of competent jurisdiction over him, inasmuch as he owed allegiance to the laws of the colony in which he was residing at the time he entered into his obligation, or whether we decide upon the grounds of comity, I am clearly of opinion that it is no ground of refusing to issue execution that the defendant was not resident in Victoria when the suit was instituted against him.

Upon the technical ground, however, that the memorial is not in accordance with the statute, inasmuch as it does not give the addition of the defendant, I think that the application must be refused, but without costs.

Application refused, without costs.

Attorney for plaintiff: D. L. Levy.

Attorney for defendant: Ashdown.

(18) 5 A.J.R. 119.

1886.

Feb. 12.

Martin C.J. Faucett J. and

Re O'ROURKE AND ANOTHER.

Mandamus-Directing Engineer-in-Chief to issue certificate of his satisfaction with work completed-Jurisdiction.

The applicants for a mandamus entered into a contract with the Commissioner of Railways for the construction of a line of rail, and by such contract Windeyer J. the obtaining of the certificate of the Engineer-in-Chief was a condition precedent to the right of the applicants to sue in respect of the work done. The line of railway was completed by the applicants and handed over by them to the Government, and has been in use for some time; but the Engineer-in-Chief refused to give his certificate of the due fulfilment of the contract to his satisfaction, alleging as a reason that the applicants and he could not agree as to the amount of the balance payable under the contract. On motion for a rule nisi for a mandamus directing the Engineer-in-Chief to grant his certificate that the works had been completed to his satisfaction:—

Held, that the application must be refused. This case cannot be distinguished from the case of a contract between private individuals. Further, there was no evidence that the Engineer-in-Chief was satisfied with the work done.

MANDAMUS. Application of John O'Rourke and James McSharry for a rule nisi for a mandamus directing Mr. Whitton, the Engineer-in-Chief for Railways, to grant to them his certificate, certifying that the works done by the said O'Rourke and McSharry, in the construction of the railway line from Murrumburrah to Young, have been satisfactorily executed or completed to the satisfaction of the said Engineer-in-Chief for Railways.

The following facts were stated by McSharry in his affidavits filed on the making of this application :

1. In or about September, 1882, the applicants entered into a written contract with the Commissioner of Railways for the construction of a railway line from Murrumburrah to Young. The 24th clause of the conditions of the contract was as follows:

Payment will be made once in every month (unless same shall become not payable by reason of anything contained in these conditions), on the engineer's certificate, as the work proceeds, in the proportion of 90 per cent. of the work satisfactorily executed; and the remaining 10 per cent. will be paid after the engineer has certified that the whole of the works have been completed to his entire satisfaction. And it is expressly declared that the obtaining of a certificate from the engineer that the work done

by the contractors has been satisfactorily executed or completed to his satisfaction, shall be a condition precedent to the contractors having any right or cause of action in respect of any work done or materials provided, and to the contractors having any right of action and claim to the payments from time to time to be made hereunder, as well as to the final payment upon the whole of the work being finished." 2. The works specified in the said contract were faithfully performed and completed by the applicants; and the said railway line was taken possession of by the Commissioner of Railways, and was opened for public traffic on 26th March, 1885, and has since then, and still is, in use by the Government for public traffic, as aforesaid. 3. There is now due by the Government to the applicants for the construction of the said railway line, under the said contract, a balance of 52,000l., or thereabouts, including a sum of 50001. deposited by the applicants as security for the completion of the said contract, for the payment of which I am advised that it is requisite to obtain from the Engineer-in-Chief his certificate, certifying that the works contracted to be done under the said contract have been performed to his entire satisfaction, as provided by the said 24th clause of the said agreement. 4. During the year 1885, after the completion of the said contract, I, on behalf of the said firm, frequently applied to the Engineer-in-Chief, requesting him to furnish us with such certificate as aforesaid; but he declined to do so, his reason being that we could not agree with him as to the amount of the balance payable to us.

The affidavit then set out several letters written to the Engineerin-Chief by the solicitors for the applicants, between the 24th November, 1885, and 2nd February, 1886, asking for a certificate, and if not, asking him to point out what part of the work he was dissatisfied with. To these letters no answer was returned, save a simple acknowledgment of their receipt.

In a supplementary affidavit, McSharry stated that an interview took place between the Minister of Works, the Engineer-inChief, and himself, in which the Engineer-in-Chief, in answer to a question from the Minister as to what were the difficulties in regard to the settlement of the applicants' contract, said that there were claims which required explanation, but he made no N.S.W.R., Vol. VII.,

Law.

E

1886.

Re

O'ROURKE.

1886.

Re O'ROURKE.

Martin C.J.

objection that the work was not completed to his entire satisfaction. In answer to a question by the Minister, asking him whether there was any objection to pay the applicants the depositmoney, he said, "Yes, I have every objection." On the Minister asking whether the deposit-money had not been returned on other occasions under similar circumstances, the Engineer-in-Chief replied, "That it had been returned on several occasions; that it was a matter left to his own discretion, and in the face of a lawyer's letter from McSharry's solicitor, he would not pay the deposit in this case."

Darley, Q.C. (Want with him), for the applicants. The Engineer-in-Chief has a public duty to perform in granting or withholding certificates as to the due performance of public works: R. v. The Vice-Chancellor of Cambridge University (1); R. v. Windham (2); R. v. The Lords Commissioners of the Treasury (3); R. v. Port and Harbour Commissioners of Southampton (4); R. v. Goodrich (5).

SIR JAMES MARTIN, C.J. This is an application for a rule nisi for a mandamus made under these circumstances. The applicants entered into a contract with the Commissioner of Railways to construct a certain line of railway. In that contract there was a special stipulation that, as the works progressed, the certificate of the Chief Engineer of Railways was to be obtained before such work was paid for. Payment was to be made when the work was done to the satisfaction of the engineer, and his certificate obtained. The whole of the works contracted to be done were completed, and not only completed, but taken over by the Government. Locomotives now run upon the rails, and the line has been used by the public for some months past. This work having been accomplished in this way, application was made for the usual certificate of the Chief Engineer to enable the contractors, the present applicants, to make their claim for the balance due to them. But although they repeatedly applied for this certificate, no answer has been vouchsafed. The Chief

(1) 3 Burr. 1647.
(2) 1 Cowp. 377.

(3) 4 Ad. & Ell. 286.

(4) 1 B. & S. 81; 30 L.J. Q.B. 244

(5) 19 L.J. Q.B. 413.

Engineer does not say that the work was not done to his satis-
faction, but he does not give a certificate. The present applicants
thus cannot enforce their claim against the Government, because
the obtaining of the certificate of the Chief Engineer is a
condition precedent. This
This is laid down in the case of Milner v.
Field (6), where Chief Baron Pollock says, "Where by the
contract itself, the certificate of a surveyor is made a condition
precedent to the right of payment, even if it be withheld by
fraud, that is only the subject of a cross-action." That is a
strong statement, but the principle there enunciated has been
acted on in other cases.

As they can obtain no answer from the Chief Engineer, the present applicants come to this Court for a mandamus to compel the Chief Engineer to do what, judging from his conduct, he ought to do. We are asked to draw this inference, that the work has been done to his satisfaction, and that a duty lies on him to grant the certificate, and a corresponding right exists on the part of these applicants to have the order of this Court that this should be done.

We have been referred to several cases in which a writ of mandamus is demandable as of right, and also to other cases in which the issue of the writ is in the discretion of the Court, and where there is no other remedy. I am of opinion that these authorities do not meet a case of this sort. Two cases have particularly been mentioned. The first is R. v. The Vice-Chancellor of Cambridge (1). It is a very long case; but the head note is as follows: "Mandamus lies to compel the University to put their seal to their appointment of their High Steward." In the course of his judgment, Lord Mansfield says (p. 1659) "But it is said that the franchise of the court-leet is in the town of Cambridge, and not in the University. But the University have enjoyed it long; and they are now in possession of it; and they have elected Lord Hardwicke under this claim of many ages' standing. And the town do not appear to us to dispute it. But if it were not so, I should as there is no other specific remedy, the grant the writ. And so they will do in (6) 5 Exch. 829.

still think that, Court ought to

1886.

Re O'ROURKE. Martin C.J.