Parker v. The Commonwealth of Australia1
| Author | J. A. Crawford |
| DOI | 10.1177/0067205X6600200107 |
| Published date | 01 March 1966 |
| Date | 01 March 1966 |
| Subject Matter | Article |
122
Federal Law Review
[VOLUME'2
Hallstrom's Case
49
seem more like apious hope
than
astatement
of
the
law.
For
myself however, Iam not prepared to concede
that
the
distinction between an expenditure on account
of
revenue and
an outgoing
of
acapital nature is so indefinite and uncertain as
to remove the matter from the operation
of
reason and place it
exclusively within
that
of
chance
or
that it must be placed in the
category
of
an
unformulated question
of
fact.
T.
J.
HIGGINS
PARKER
v.
THE
COMMONWEALTH
OF
AUSTRALIA1
Commonwealth-Liability
in
tort-Negligent
act
oj'member
of
de,.fence
forces
in
peacetime-Injury
on
high seas-Judiciary
Act
1903-1960
(Cth), SSe 79,
80-Wrongs
Act
1958 (Vic.), section
18.
This action arose out
of
the tragic collision between two ships
of
the
Royal Australian Navy, H.M.A.S. Melbourne and H.M.A.S. Voyager.
The plaintiff, the widow
of
aperson who lost his life as aresult
of
the
collision, brought
an
action against the Commonwealth in the Admiralty
jurisdiction
of
the High Court
on
the basis
that
her husband's death was
caused by the negligence
of
the officers and crew
of
the two ships and
of
other servants
of
the Commonwealth. The Commonwealth admitted
the allegations
of
negligence. The action was heard in Melbourne
before Windeyer J.
On apreliminary point Windeyer J. held that, since the repeal, in
1939,
of
section 30 (b)
of
the Judiciary Act, 1903-1960 (Cth) the sole
source
of
the Admiralty jurisdiction
of
the High Court had been the
Colonial Courts
of
the Admiralty Act, 1890 (Imp.). As the plaintiff's
rights were perhaps less in
an
action in the Admiralty jurisdiction than
they would be in an ordinary action in the original jurisdiction
of
the
Court, His Honour considered the case as
if
it were
an
ordinary action
at
law.2Thus the difficult questions concerning the extent
of
the
Admiralty jurisdiction
of
the High Court were avoided.
The liability
of
the Commonwealth in
tort
depends upon the pro-
visions
of
the Constitution and sections 56 and 64
of
the Judiciary Act
1903-1960 (Cth). His
Honour
mentioned the vexing question whether
the
'vicarious'
liability
of
amaster for the tortious acts
of
his servant
arises because the master is answerable for his servant's torts,
or
because
49
(1946) 72 C.L.R. 634, 646.
1(1965) 112 C.L.R.
295;
(1965)
38
A.L.J.R. 444. High
Court
of
Australia;
Wind
eyer J.
2See Huddart Parker
Ltd
v.
The'
Mill
Hill'
(1950)
81
C.L.R. 502, 508.
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