Claims against the Commonwealth and States and Their Instrumentalities in Federal Jurisdiction: Section 64 of the Judiciary Act1
| Author | Susan Kneebone |
| Date | 01 March 1996 |
| DOI | 10.22145/flr.24.1.4 |
| Published date | 01 March 1996 |
| Subject Matter | Article |
CLAIMS
AGAINST
THE COMMONWEALTH
AND
STATES
AND
THEIR INSTRUMENTALITIES
IN
FEDERAL
JURISDICTION: SECTION
64
OF THE JUDICIARY ACTl
Susan Kneebone*
INTRODUCTION
Two
recent decisions of the
High
Court, Mutual
Pools
and
StaffPty Ltd vCommonwealth2
(Mutual
Pools)
and
Georgiadis
vAustralian
and
Overseas
Telecommunication
Corporation
3
(Georgiadis)
have
re-opened the debate
about
the source of
the
Commonwealth's
liability to
be
sued
in
civil proceedings.4The
debate
can
be
expressed
in
this form: does
that
liability arise from the Constitution so as to confer aconstitutionally
guaranteed
right
to
sue
the
Commonwealth
(the "constitutional argument")
or
does
it
arise from
rights conferred
by
s64 of
the
Judiciary Act 1903 (Cth) -possibly
in
combination
with
"rights to proceed" allowed
by
the Constitution?5
In
practical terms this is adifference
between
entrenching the Commonwealth's liability
in
the Constitution
or
acknowledging
that
those "rights to proceed"
can
be
removed
by
Commonwealth
legislation
preventing
action against it.
Before his recent
appointment
to the
High
Court,
Gummow
J
raised
the issue
in
two
cases
in
the
Federal Court, pointing to the conflict of opinion
between
Brennan J(as
he
then
was)
and
McHugh
J
in
Georgiadis.
In
Bienke
vMinister
for
Primary Industries
and
Energy,6
an
action
in
negligence against
the
Commonwealth
Minister,
Gummow
J
commented
that
"in Australia, consideration
...
is
required
of the extent of
the
'waiver'
of liability effected
by
the Judiciary Act,
or
by
the
Constitution itself,
something
still
*
1
2
3
4
5
6
Lecturer, Faculty
of
Law,
Monash
University.
This article is arevised version
of
a
paper
presented
to
the
45th ALTA Conference,
Australian
National University, September 1990, "Claims
in
Tort
in
the
Federal
Jurisdiction: Section
64
of
the
Judiciary Act". I
would
like to
thank
Professor Enid
Campbell, Professor Leslie Zines
and
Associate Professor Peter
Hanks
for their detailed
comments
on
that
paper. Iaccept responsibility for errors
or
misconceptions
which
may
appear
in
this article.
(1993) 179 CLR 155.
(1993) 179 CLR 297.
The definition
of
"suit"
in
the
Judiciary Act 1903 (Cth)
makes
it clear
that
it does
not
extend
to criminal proceedings:
below
n23. See also Commonwealth vEvans Deakin Industries Ltd
(1986)
161
CLR 254
at
265.
For example, Commonwealth vDinnison (1995) 129 ALR 239
at
243
per
Gummow
and
Cooper
JJ.
(1994) 125 ALR 151; 34 ALD 413.
94
Federal
Law
Review
Volume
24
unresolved
...
".7
In
Commonwealth vDinnison8
he
again
referred to
the
debate
as
"unsettled"9.
In
view
of
the
current
composition of
the
High
Court
the
debate
is
thus
alive one.
The
question
is
whether
the Commonwealth's liability
should
be
treated
as a
constitutional issue
or
whether
its civil liability
should
be
governed
by
the
common
law.
In
this article, it is
argued
that
the latter
view
is
most
consistent
with
the
basic
rule
that
the
civil liability of governments is to
be
assimilated to
that
of
private
individuals
"as
nearly
as possible" as the
words
of s64 recognise.
10
It is
important
to
note
that
this
basic
rule
was
recognised
and
applied
by
the majority
in
Northern Territory vMengel
(Mason CJ,
Dawson
J,
Toohey
J,
Gaudron
J
and
McHugh
J);11
they
expressly referred
to
s64 of
the
Judiciary Act.
Arguing
in
favour
of constitutionally
guaranteed
rights, Aitken suggests
that
his
view
is consistent
with
the
"dignity" of
the
Constitution.l2
He
suggests
that
the
view
that
the
Commonwealth's
liability
can
be
removed
by
lefislation
"demeans
the
Constitution as
the
fundamental
doctrine of
the
Federation"l
and
further,
that
such
view
is "legally disingenuous".14
He
supports
his
argument
by
pointing
to
the
impossibility of reconciling all the "minutiae"
surrounding
s64 of
the
Judiciary Act
and
contrasts
the
appealing
simplicity of the constitutional argument.
1S
He
attacks
the
s64
view
on
the
basis
that
it seems "odd"
that
the
Commonwealth
Parliament
has
no
control
over
the
Commonwealth's
liability.16
My
argument
is
that
the
way
that
s64
has
been
interpreted
by
the
courts
provides
a
flexible case-by-case
approach
appropriate
to
determining
the
civil liability of
governments
and
that
it
provides
adequate
protection for citizens' rights. The effect of
the
constitutional
argument,
however, enhances the
assumed
superiority
of
the
Commonwealth
in
inter-governmental matters.
In
response to Aitken, I
suggest
that
the
constitutional
argument
depends
upon
equating
a
grant
of jurisdiction
with
entrenched
liability. I
argue
that
the
constitutional
argument
overlooks
the
importance
of
an
essential
and
basic distinction, recognised
by
the courts,
between
liability to
be
sued
and
the
conferral of jurisdiction
or
authority
to adjudicate. This distinction is
in
turn
consistent
with
the separation of
powers
which
the Constitution implies. By
enacting s64 of
the
Judiciary Act,
the
legislature
has
conferred
power
upon
the
courts
to
determine
the
extent of liability of parties
sued
in
the federal jurisdiction. The
High
7
8
9
10
11
12
13
14
15
16
Ibid
at
173; 433, citing
Georgiadis
vAustralian
and
Overseas
Telecommunications
Corp
(1993)
179 CLR 297.
(1995) 129 ALR 239.
Ibid
at
243
per
Gummow
and
Cooper
JJ.
This basic principle is
enshrined
in
the
common
law
and
in
the
various
Crown
proceedings
Acts
of
each
State, eg:
Crown
Proceedings Act 1980 (Qld), s9(2);
Crown
Proceedings Act
1992
(SA)
s5(1)(b).
Cf
Crown
Proceedings Act 1958 (Vic), s23(1)(b),
pursuant
to
which
the
liability
of
the
Crown
is avicarious one.
(1995) 69 ALJR 527
at
544, n82.
LAitken, "The Liability
of
the
Commonwealth
under
Section 75(iii)
and
Related Questions"
(1992) 15 UNSWLl483
at
485-486; LAitken, "The
Commonwealth's
Entrenched
Liability -
Further
Refinements" (1994)
68
ALl
690
at
690-691.
L
Aitken
(1994), above n12
at
690.
L
Aitken
(1992), above n12
at
485-486
and
491.
Ibid
at
514.
Ibid
at
487.
1996
Section
64 of
the
Judiciary
Act 95
Court
has,
however,
recognised
that
its jurisdiction is entrenched
by
the Constitution.
This
provides
some assurance
that
the rights of citizens against the
Commonwealth
will
be
protected
by
the law,
in
contrast to the position
under
State Constitutions. This
has
become amajor issue
in
Victoria, for example,
in
relation to
damage
caused
by
works
associated
with
the staging of the Formula
One
Grand
Prix race
at
Albert Park.
Although
s85 of
the
Constitution Act 1975 (Vic) prescribes a
procedure
for statutes
altering
the
jurisdiction of
the
Supreme
Court, it does
not
entrench the jurisdiction of
the
Court,
and
legislation
has
removed
the
common
law
rights of citizens to
sue
for
damages.
17
The
debate
raises extraordinarily complex issues. To
begin
with, because s64 of the
Judiciary
Act
has
been
interpreted
to
apply
in
actions
between
States,
the
debate
must
be
extended
to include the position of States
sued
in
the federal jurisdiction.
18
It raises
the
basis of
the
contract
and
tort liability of the Commonwealth, States
and
their
instrumentalities, as s64 extends to the latter.
19
To
what
extent does
that
liability
depend
upon
the
express removal of the Crown's traditional
immunity
in
tort
(and
possibly contract)? The context is often inter-governmental immunities because s64
has
been
interpreted
as
applying
the
statutes of one legislature to
another
government.
20
Another
relevant context is principles of conflict of law. I
tum
first to a
summary
of
these issues before examining
in
more
detail the application of s64
and
the
two
High
Court
decisions
in
Mutual
Pools
and
Georgiadis.
SECTION 64
IN
CONTEXT
Section 64
appears
in
Part
IX
of the Judiciary Act 1903 (Cth),
which
makes
provision
for
"Suits By
and
Against the
Commonwealth
and
the
States". Sections 56-59 of
the
Judiciary
Act
1903 (Cth) (in
Part
IX)
make
provision for claims to
be
brought
by
and
against the
Commonwealth
and
the States,
in
courts exercising federal jurisdiction.
Sections 56
and
57
each
provide
for claims
in
"contract
or
in
tort" to
be
brought
against
the
Commonwealth
by
private
persons
and
States respectively. Sections 58
and
59 refer
to
claims against States
by
"any person" (which
has
been
held
to
include
the
Commonwealth)21
or
by
another
State. The claims to
which
s58 refers are
in
"contract
or
in
tort",
but
s59 refers simply to "any claim"
without
limiting it to contract
or
tort.
Sections 56-59 also
provide
the
venue
22
for the
hearing
of
such
"suits",23
in
courts
exercising federal jurisdiction.
24
Section 64 provides:
17
18
19
20
21
22
23
24
For
example,
Australian
Grand
Prix
Act
1994 (Vic), s50.
Cf
Rv
Hickman
&
ors
:
Ex
parte
Fox
and
Clinton (1945) 70 CLR 598.
For
a
discussion
of
the
effect
of
s85,
see
CFoley, "Section 85
Victorian
Constitution
Act
1975:
Constitutionally
Entrenched
Right
...
or
Wrong"
(1994) 20
Mon
LR
110.
The
nature
of
the
federal
jurisdiction
is
considered
below
at
102.
Maguire vSimpson (1976) 139 CLR 362.
Commonwealth
v
Evans
Deakin
Industries
Ltd
(1986) 161 CLR 254;
Commissioner
for
Railways v
Peters
(1991) 102
ALR
579.
Commonwealth
vNew South
Wales
(1923) 52 CLR 32.
See
the
discussion
below
at
103-104.
"Suit" is
defined
in
s 2
to
include
"any
action
or
original
proceeding
between
parties".
The
meaning
of
"federal jurisdiction" is
discussed
below
at
102-105.
To continue reading
Request your trial