¹ This article is a revised 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. I accept responsibility for errors or misconceptions which may appear in this article.

² (1993) 179 CLR 155.

³ (1993) 179 CLR 297.

⁴ The definition of “suit” in the Judiciary Act 1903 (Cth) makes it clear that it does not extend to criminal proceedings: below n 23. See also Commonwealth v Evans Deakin Industries Ltd (1986) 161 CLR 254 at 265.

⁵ For example, Commonwealth v Dinnison (1995) 129 ALR 239 at 243 per Gummow and Cooper JJ.

⁶ (1994) 125 ALR 151; 34 ALD 413.

⁷ Ibid at 173; 433, citing Georgiadis v Australian and Overseas Telecommunications Corp (1993) 179 CLR297.

⁸ (1995) 129 ALR 239.

⁹ Ibid at 243 per Gummow and Cooper JJ.

¹⁰ 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), s 9(2); Crown Proceedings Act 1992 (SA) s 5(1)(b). Cf Crown Proceedings Act 1958 (Vic), s 23(1)(b), pursuant to which the liability of the Crown is a vicarious one.

¹¹ (1995) 69 ALJR 527 at 544, n 82.

¹² Aitken, L, “The Liability of the Commonwealth under Section 75(iii) and Related Questions” (1992) 15 UNSWLJ 483 at 485- 486Google Scholar; Aitken, L, “The Commonwealth's Entrenched Liability – Further Refinements” (1994) 68 ALJ 690 at 690- 691Google Scholar.

¹³ L Aitken (1994), above n 12 at 690.

¹⁴ L Aitken (1992), above n 12 at 485-486 and 491.

¹⁵ Ibid at 514.

¹⁶ Ibid at 487.

¹⁷ For example, Australian Grand Prix Act 1994 (Vic), s 50. Cf R v Hickman & ors: Ex parte Fox and Clinton (1945) 70 CLR 598. For a discussion of the effect of s 85, see Foley, C, “Section 85 Victorian Constitution Act 1975: Constitutionally Entrenched Right … or Wrong” (1994) 20 Mon LR 110Google Scholar.

¹⁸ The nature of the federal jurisdiction is considered below at 102.

¹⁹ Maguire v Simpson (1976) 139 CLR 362.

²⁰ Commonwealth v Evans Deakin Industries Ltd (1986) 161 CLR 254; Commissioner for Railways v Peters (1991) 102 ALR 579.

²¹ Commonwealth v New South Wales (1923) 52 CLR 32.

²² See the discussion below at 103-104.

²³ “Suit” is defined ins 2 to include “any action or original proceeding between parties”.

²⁴ The meaning of “federal jurisdiction” is discussed below at 102-105.

²⁵ Farnell v Bowman (1887) 12 App Cas 643 (PC). With respect to claims in contract, it is arguable that no express removal of immunity was necessary as the petition of right lay against the Crown for claims in contract. However, that procedure required the consent of the Crown so the difference may not be great. See Thomas v R (1874) LR 10 QB 31; Hogg, P, Liability of the Crown (2nd ed 1989) at 5-6Google Scholar; Arrowsmith, S, Government Procurement and Judicial Review (1988) at 113- 118Google Scholar; cf Donaldson, G, “Commonwealth Liability to State Law” (1985) 16 UWALR 135Google Scholar, who maintains the distinction.

²⁶ Convention Debates, Melbourne 1898, 1653-79 quoted in J Quick and Garran, D G, The Annotated Constitution of the Australian Government 1901 (1976) at 804-6Google Scholar. It is clear from the debates that s 78 of the Constitution was intended to confer the power to remove the Crown's common law immunity from suit. However, as is pointed out by Professor Campbell, s 78 may not be the exclusive source of “rights to proceed” under Part IX of the Judiciary Act 1903 (Cth): E Campbell, “Section 78 of the Commonwealth of Australia Constitution Act” (unpublished) Faculty of Law, Monash University, September 1987; see also Final Report of the Constitutional Commission (1988) vol 1 at para 6.275.

²⁷ The Hansard debates on the 1902 Act suggest that the purpose of the Act was to overcome the immunity of the Crown from action and to bring the liability of the Commonwealth in line with that of the States. See Cth Parl Deb 1902, Vol 12 at 16449-16466, 16668-16673, and 16714-16728.

²⁸ Section 2(1). The procedural model of the Claims Against the Government and Crown Suits Act 1897 (NSW) is clear. This legislation was similar to that in issue in Farnell v Bowman (1887) 12 App Cas 643. However, it should be noted that the Commonwealth Act expressly refers to claims in tort and contract.

²⁹ Baume v Commonwealth (1906) 4 CLR 97 at 110; Zachariassen v Commonwealth (1917) 24 CLR 166. In Baume v Commonwealth, O'Connor J pointed out that the Judiciary Act 1903 (Cth) amended the procedure of the 1902 Act to enable a subject to sue the Commonwealth direct: (1906) 4 CLR 97 at 118-9.

³⁰ For example, Shaw Savill & Albion Co Ltd v Commonwealth (1940) 66 CLR 344; Parker v Commonwealth (1965) 112 CLR 295.

³¹ The first State to legislate was South Australia in 1853 (Claims Against the Local Government Act, No 6 of 1853). The formula which s 64 of the Judiciary Act contains, specifying that the rights of the parties “shall as nearly as possible be the same … as … between subject and subject”, was introduced by the Claims Against the Government Act 1866 (Qld) and reproduced in subsequent legislation.

³² See Werrin v Commonwealth (1938) 59 CLR 150 at 166 per Dixon J, discussed below at 107-108.

³³ Asiatic Steam Navigation Co Ltd v Commonwealth (1956) 96 CLR 397 (application of Merchant Shipping Act 1894 (Imp) to limit the Commonwealth's liability).

³⁴ Maguire v Simpson (1976) 139 CLR 362.

³⁵ Commonwealth v Evans Deakin Industries Ltd (1986) 161 CLR 254.

³⁶ Strods v Commonwealth (1982] 2 NSWLR 182 (approved in Commonwealth v Evans Deakin Industries Ltd (1986) 161 CLR 254).

³⁷ Commonwealth v Miller (1911) 10 CLR 742 (action for discovery); Maguire v Simpson (1976) 139CLR362.

³⁸ Maguire v Simpson (1976) 139 CLR 362.

³⁹ (1962) 108 CLR 372.

⁴⁰ Hanks, P J, Australian Constitutional Law (5th ed 1994) at 451Google Scholar.

⁴¹ J J Doyle, “1947 Revisited – The Immunity of the Commonwealth from State Law” in G Lindell (ed), Future Directions in Australian Constitutional Law (1994) 47; Evans, G, “Rethinking Commonwealth Immunity” (1972) 8 Melb Univ LR 521Google Scholar; RP Meagher and Gummow, WM C, “Sir Owen Dixon's Heresy” (1980) 54 ALj 25Google Scholar; P J Hanks, above n 40 at 457; R Sackville, “The Doctrine of Immunity of Instrumentalities in the United States and Australia : A Comparative Analysis” (1960) 7 Melb Univ LR 15 at 62.

⁴² Australian Postal Commission v Dao (1984) 63 ALR 1 at 30-35 per McHugh JA.

⁴³ L Aitken (1992), above n 12 at 508-512.

⁴⁴ (1986) 161 CLR 254 at 267.

⁴⁵ (1976) 139 CLR 362.

⁴⁶ Ibid at 390.

⁴⁷ Ibid at 402. See also Stephen J, who commented that “some of the possible effects of s 64, both upon the Commonwealth and upon the States and in relation both to Commonwealth statutes and to those of a State, may prove both obscure and curious” (ibid at 396).

⁴⁸ Zines, L, The High Court and the Constitution (3rd ed 1992) at 319Google Scholar; P J Hanks, above n 40 at 474; Australian Postal Commission v Dao (1985) 63 ALR 1 at 33-34 per McHugh JA.

⁴⁹ (1947) 74 CLR 509.

⁵⁰ Ibid at 521 (emphasis added).

⁵¹ Lumb, RD, The Constitution of the Commonwealth of Australia Annotated (4th ed 1986) at 352-3Google Scholar.

⁵² (1947) 74 CLR 509.

⁵³ (1953) 89 CLR 229 at 259-60. See also Federal Commissioner of Taxation v Official Liquidator of EO Farley Ltd (Farle-y's case) (1940) 63 CLR 278 at 308 per Dixon J.

⁵⁴ See the discussion below at 115-116 of the meaning of those words ins 64.

⁵⁵ Bropho v State of Western Australia (1990) 171 CLR 1.

⁵⁶ See Hogg, P, Liability of the Crown (1st ed 1971) at 224-226CrossRefGoogle Scholar.

⁵⁷ [1982] 2 NSWLR 182.

⁵⁸ (1988) 165 CLR 55.

⁵⁹ See also Deputy Commissioner of Taxation v DTR Securities Pty Ltd (1988) 62 ALJR 376; Dao v Australian Postal Commission (1987) 61 ALJR 229; Gilvarry v Commonwealth (1995) 127 ALR 721.

⁶⁰ Federal Commissioner of Taxation v Official Liquidator of EO Farley Ltd (Farley's case) (1940) 63 CLR 278 at 308 per Dixon, J; Uther v Federal Commissioner of Taxation (1947) 74 CLR 508 at 528 per Dixon JGoogle Scholar.

⁶¹ For a discussion of this matter, see Pavich v Bobra Nominees Pty Ltd (1988) 84 ALR 285 per French J; Morris, J H C, Dicey's Conflict of Laws (1958) at 7- 8Google Scholar.

⁶² Section 79 cannot apply a State law which would extend the meaning of the statute beyond the limits of principles of construction or of the Constitution. See Commissioner of Stamp Duties (NSW) v Owens (No 2) (1953) 88 CLR 168; Trade Practices Commission v Manfal Pty Ltd (1990) 92 ALR 416 at 418 per Lee J; (1990) 97 ALR 231 (Full Ct Fed Ct); HE Renfree, Federal Judicial System in Australia (1984) at 305; Pedersen v Young (1964) 110 CLR 162 at 165. See also John Robertson & Co Ltd (in liq) v Ferguson Transformers Pty Ltd (1973) 129 CLR 65.

⁶³ P Hogg, above n 56 at 226; Campbell, E, “Suits between the Governments of a Federation” (1971) 6 Syd LR 309, 326Google Scholar; Howard, C, “Some Problems of Commonwealth Immunity and Exclusive Legislative Powers” (1972) 5 FL Rev 31 at 34Google Scholar.

⁶⁴ (1976) 139 CLR 362.

⁶⁵ Ibid at 377. See also South Australia v Commonwealth (1962) 108 CLR 130 at 140 per Dixon J.

⁶⁶ This generally refers to jurisdiction conferred under s 77(iii) of the Constitution. See below at 104-105.

⁶⁷ Phillips, PD, “Choice of Law in Federal Jurisdiction” (1961) 3 Melb Univ LR 170Google Scholar; M Pryles and Hanks, P, Federal Conflict of Laws (1974) at 192Google Scholar.

⁶⁸ Commonwealth v Dixon (1988) 13 NSWLR 601.

⁶⁹ Uther v Federal Commissioner of Taxation (1947) 74 CLR 509; L Grollo & Co Pty Ltd v Nu Statt Decorating Pty Ltd (in liq) (1980) 4 ACLR 907; Trade Practices Commission v Manfal Pty Ltd (1990) 92 ALR 416. See PD Phillips, above n 67; Harding, R W, “Common Law, Federal and Constitutional Aspects of Choice of Law in Tort” (1965) 7 UWALR 196Google Scholar. Cf O'Brien, B, “The Law Applicable in Federal Jurisdiction” (1976) 1 UNSWLJ 327Google Scholar.

⁷⁰ For example, Musgrave v Commonwealth (1937) 57 CLR 514; Parker v Commonwealth (1965) 112 CLR 295 at 306 per Windeyer, J; Deputy Federal Commissioner of Taxation v Brown (1958) 100 CLR 32 at 39Google Scholar.

⁷¹ (1870) LR 6 QB 1.

⁷² McKain v Miller & Co (South Australia) Pty Ltd (1991) 174 CLR 1; Stevens v Head (1992) 176 CLR433.

⁷³ P Hogg, above n 56 at 226-230.

⁷⁴ Suehle v Commonwealth (1967) 116 CLR 353; Breavington v Godleman (1989) 169 CLR 41; Commonwealth v Mewett (1995) 126 ALR 391.

⁷⁵ Musgrave v Commonwealth (1937) 57 CLR 514 at 547-548; Commonwealth v Dinnison (1995) 129 ALR 239 at 244.

⁷⁶ Commonwealth v Mewett (1995) 126 ALR 391; cf Gilvarry v Commonwealth (1995) 127 ALR 721.

⁷⁷ See above n 26.

⁷⁸ This was the recommendation of the Final Report of the Constitutional Commission (1988) at para 6.285.

⁷⁹ Commonwealth v Evans Deakin Industries Ltd (1986) 161 CLR 254 at 263.

⁸⁰ Commissioner for Railways for State of Queensland v Peters (1991) 102 ALR 579; Mutual Pools (1993) 179 CLR 155.

⁸¹ PH Lane, Commentaries on the Australian Constitution (1986) at 351; HE Renfree, above n 62 at 534; Western Australian Psychiatric Nurses' Association (Union of Workers) v Australian Nursing Federation (1991) 102 ALR 265 at 272 per Lee J.

⁸² For example, China Ocean Shipping Co & Others v State of South Australia (1979) 145 CLR 172; 27 ALR 1 (held: admiralty jurisdiction was conferred by Merchant Shipping Act 1894 (UK), not by s 39(2) of the Judiciary Act, and that therefore s 64 of the Judiciary Act was not applicable); Commonwealth v Mewett (1994) 126 ALR 391.

⁸³ For example, Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245.

⁸⁴ For example, State Bank of New South Wales v Commonwealth Savings Bank of Australia (State Bank case) (1986) 161 CLR 639; Breavington v Godleman (1989) 169 CLR 41; Commissioner for Railways of Queensland v Peters (1991) 102 ALR 579.

⁸⁵ (1976) 139 CLR 362.

⁸⁶ Ibid at 404.

⁸⁷ State Bank case (1986) 161 CLR 639.

⁸⁸ (1985) 159 CLR 22.

⁸⁹ (1976) 139 CLR 362.

⁹⁰ (1985) 159 CLR 22 at 32.

⁹¹ In some instances there may be differences in the extent of liability of an instrumentality depending upon whether s 64 applies. If the constating statute of an instrumentality provides it with rights, they may conflict with those arising under s 64 of the Judiciary Act. In other situations where the liability of a State or its instrumentality is in issue, there may be differences between its liability under State Crown proceedings legislation and under the Judiciary Act: see, eg, Downs v Williams (1972) 126 CLR 61.

⁹² This power was discussed in Johnstone v Commonwealth (1979) 143 CLR 398, in which it was held that a negligence action against the Commonwealth arising from acts which occurred in South Australia could be remitted from the High Court to the Supreme Court of New South Wales, although the Supreme Court of New South Wales did not have jurisdiction to hear the action under s 56 of the Judiciary Act. In other words, the High Court decided that the exercise of jurisdiction under s 56 of the Judiciary Act was not a pre-condition to the remittal of a matter under s 44.

⁹³ These provisions appear to be enacted under s 77(ii) of the Constitution.

⁹⁴ Judiciary Act 1903 (Cth), s 38(b).

⁹⁵ Judiciary Act 1903 (Cth), s 38(c), (d).

⁹⁶ In Commonwealth v New South Wales (1923) 52 CLR 20, it was held that the word “person” in s 58 included the Commonwealth.

⁹⁷ See also s 77(i) of the Constitution, which contains a general power to define the jurisdiction of any federal court.

⁹⁸ (1989) 169 CLR 41.

⁹⁹ For a discussion of s 39, see HE Renfree, above n 62, ch 4.

¹⁰⁰ Commissioner for Railways for State of Queensland v Peters (1991) 102 ALR 579.

¹⁰¹ H E Renfree, above n 62 at 541.

¹⁰² Cf E Campbell, above n 63 where it is suggested that s 75(iii) refers to inter-governmental, not necessarily constitutional, matters.

¹⁰³ Lane, PH, A Manual of Australian Constitutional Law (4th ed 1987) at 351Google Scholar.

¹⁰⁴ L Aitken (1992), above n 12 at 484. See also Aitken, L, “Jurisdiction, Liability and 'Double Function' Legislation” (1990) 19 FL Rev 31Google Scholar.

¹⁰⁵ (1923) 32 CLR 200.

¹⁰⁶ P H Lane, above n 103 at 351; HE Renfree, above n 62 at 534.

¹⁰⁷ E Campbell, above n 63.

¹⁰⁸ The fundamental distinction between jurisdiction and substantive or procedural rights was recognised in the High Court decision in Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 69 ALJR 223 at 227 per Mason CJ, at 242-433 per Deane and Gaudron JJ, at 251 per Dawson J, at 258 per Toohey J and at 264 per McHugh J.

¹⁰⁹ Contrast the tendency in the context of jurisdictional error and judicial review to merge the concepts of jurisdictional and non-jurisdictional error. But in that context there is a concern to preserve the jurisdiction of the courts to review all errors of law: Re Gray; Ex parte Marsh (1985) 157 CLR 357 at 371 per Gibbs CJ.

¹¹⁰ Note that in L Aitken, above n 104, the distinction between jurisdiction to grant a remedy and jurisdiction to decide or to hear a matter is not made.

¹¹¹ Farnell v Bowman (1887) 12 App Cas 643.

¹¹² Section 64 has also been used to provide procedural rights, eg, Commonwealth v Miller (1911) 10 CLR 742 (discovery).

¹¹³ For example, Rowling v Takara Properties Ltd (1988] 1 All ER 162; Jones v Department of Employment (1988] 1 All ER 725; Sutherland Shire Council v Heyman (1985) 157 CLR 564.

¹¹⁴ For example, Park Oh Ho v Minister for Immigration and Ethnic Affairs (1990) 167 CLR 637 (no award of damages under the “necessary to do justice” provisions in s 16 of the Administrative Decisions Oudicial Review) Act 1977 (Cth)). Aitken suggests that adopting a “double function” approach would allow such relief: L Aitken, above n 104 at 32.

¹¹⁵ (1993) 179 CLR 297 at 325-326.

¹¹⁶ (1923) 32 CLR 200.

¹¹⁷ Similar reasoning was employed by Dixon Jin Werrin v Commonwealth (1938) 59 CLR 150, discussed below at 107-108.

¹¹⁸ G Donaldson, above n 25 at 144.

¹¹⁹ (1923) 32 CLR 200 at 220-221.

¹²⁰ The decision in Commonwealth v New South Wales (1923) 32 CLR 200 was approved in the following decisions: New South Wales v The Commonwealth (No 1) (1932) 46 CLR 155 at 210, 211 and 215; New South Wales v Bardolph (1934) 52 CLR 455 at 458-9; Heinemann v Commonwealth (1935) 54 CLR 126 at 129; Musgrave v Commonwealth (1937) 57 CLR 514 at 550 per Evatt and McTiernan JJ; South Australia v Commonwealth (1962) 108 CLR 130 at 148. Decisions which establish that s 75(iii) does not create liability in tort include: Werrin v Commonwealth (1938) 59 CLR 150 at 167 per Dixon J, approved by Windeyer Jin Suehle v. Commonwealth (1967) 116 CLR 353 at 355; Asiatic Steam Navigation Co Ltd v Commonwealth (1956) 96 CLR 397 at 422-423 per Fullagar J; Washington v Commonwealth (1939) 39 SR (NSW) 133 at 140 per Jordan CJ. The weight of academic opinion supports the proposition that s 75(iii) is a procedural or jurisdictional section only: P Hogg, above n 56 at 215-6; Lane, PH, The Australian Federal System (2nd ed 1979) at 531-2Google Scholar; M Pryles and P Hanks, above n 67; HE Renfree, above n 62 at 162-9; G Donaldson, above n 25 at 144; Z Cowen and Zines, L, Federal Jurisdiction in Australia (2nd ed 1978) at 32- 38Google Scholar. See also Commonwealth v Evans Deakin Industries Ltd (1986) 161 CLR 254 at 269 per Brennan J (dissenting).

¹²¹ Musgrave v Commonwealth (1937) 57 CLR 514 at 546 per Dixon J.

¹²² (1994) 179 CLR 155 at 217. See also L Aitken (1992), above n 12 at 491.

¹²³ (1938) 59 CLR 150.

¹²⁴ See M Pryles and P Hanks, above n 67 at 186.

¹²⁵ (1938) 59 CLR 150 at 166.

¹²⁶ Ibid.

¹²⁷ Ibid at 167-168 (emphasis added).

¹²⁸ This passage was approved by Mason, CJ in Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 69 ALJR 223 at 227Google Scholar, when he explained (re s 75(v)): “The provision is not a source of substantive rights except in so far as the grant of jurisdiction necessarily recognises the principles of general law according to which the jurisdiction to grant the remedies mentioned is exercised”.

¹²⁹ Maguire v Simpson (1976) 139 CLR 362 at 404 per Jacobs J; Z Cowen and L Zines, above n 120 at 32-38; HE Renfree, above n 62 at 162-9. Cf L Aitken (1992), above n 12 at 487-489.

¹³⁰ (1994) 179 CLR 155 at 217.

¹³¹ (1989) 169 CLR 41.

¹³² L Aitken (1992), above n 12 at 497-500.

¹³³ (1989) 169 CLR 41.

¹³⁴ Four judges (Wilson, Gaudron, Brennan and Dawson JJ) decided thats 56 provided the choice of law: (1989) 169 CLR 41 at 101, 118 and 141.

¹³⁵ P H Lane, above n 103 at 344-5.

¹³⁶ Pearce, DC and Geddes, RS, Statutory Interpretation in Australia (3rd ed 1988) at para 2.5- 2.9Google Scholar.

¹³⁷ H E Renfree, above n 62 at 537; P H Lane, above n 103 at 343.

¹³⁸ (1989) 169 CLR 41 at 69 per Mason CJ.

¹³⁹ Ibid.

¹⁴⁰ Ibid at 102 per Wilson and Gaudron JJ and 140 per Deane J.

¹⁴¹ Ibid at 68 per Mason CJ and 118 per Brennan J.

¹⁴² Ibid at 68, following the decision in Commonwealth v Evans Deakin Industries Ltd (1986) 161 CLR 254. See also (1989) 169 CLR 41 at 102 per Wilson and Gaudron JJ and at 140 per Deane J.

¹⁴³ Ibid at 100-101.

¹⁴⁴ Ibid at 104.

¹⁴⁵ Ibid at 104 and 118 per Brennan J. See also at 140 per Deane J.

¹⁴⁶ Ibid at 169.

¹⁴⁷ Ibid at 69 per Mason CJ, at 152 per Dawson J, at 118 per Brennan J, at 140 per Deane J.

¹⁴⁸ Ibid at 101. Cf ibid at 169 per Toohey J.

¹⁴⁹ L Aitken (1992), above n 12 at 500.

¹⁵⁰ (1976) 139 CLR 362.

¹⁵¹ Stephen J characterised s 14(1) of the Limitation Act as a procedural provision: ibid at 392.

¹⁵² Cf L Aitken (1992), above n 12 at 492 where it is suggested that the decision “only inferentially touched upon the question of the Commonwealth's substantive liability”.

¹⁵³ (1976) 139 CLR 362 at 373 per Barwick CJ.

¹⁵⁴ Ibid at 408 per Murphy, J. See also Australian Postal Commission v Dao (1985) 63 ALR 1 at 33 per McHugh JA.Google Scholar.

¹⁵⁵ (1976) 139 CLR 362 at 377 per Gibbs J.

¹⁵⁶ (1956) 96 CLR 397.

¹⁵⁷ Ibid at 424.

¹⁵⁸ Pitcher v Federal Capital Commission (1928) 41 CLR 385 (whether the Compensation to Relatives Act 1897 (NSW) bound the Commission in a claim in tort); Suehle v Commonwealth (1967) 116 CLR 353 (claim in tort under s 56 of the Judiciary Act); and Asiatic Steam Navigation (1956) 96 CLR 397 (proceedings in tort by the Commonwealth: whether s 503 of the Merchant Shipping Act 1894 (Imp) enabled the Commonwealth to limit its liability).

¹⁵⁹ Maguire v Simpson (1976) 139 CLR 362 at 381 per Gibbs J; see also P Hogg, above n 56 at 228-229.

¹⁶⁰ For example, Cutler v Wandsworth Stadium Ltd [1949] AC 398.

¹⁶¹ (1976) 139 CLR 362 at 370 per Barwick CJ.

¹⁶² Ibid at 371.

¹⁶³ Ibid at 370.

¹⁶⁴ Georgiadis (1993) 179 CLR 297 at 326 per McHugh J.

¹⁶⁵ Commissioner for Railways of Queensland v Peters (1991) 102 ALR 579. See below at 116-119. (1986) 161 CLR 254.

¹⁶⁶ Ibid at 264.

¹⁶⁷ (1976) 139 CLR 362.

¹⁶⁸ (1986) 161 CLR 254 at 264.

¹⁶⁹ The majority in the High Court also relied upon China Ocean Shipping Co v South Australia (1979) 145 CLR 172. The issue was whether the Supreme Court of South Australia was exercising a federal jurisdiction.

¹⁷⁰ (1986) 161 CLR 254 at 263.

¹⁷¹ Ibid at 270.

¹⁷² Ibid at 271-273.

¹⁷³ Ibid at 273.

¹⁷⁴ Ibid at 269.

¹⁷⁵ D Rose, “Government and Contract” in PD Finn (ed), Essays on Contract (1987) 233 at 236.

¹⁷⁶ (1923) 23 CLR 200.

¹⁷⁷ (1960) 105 CLR 303.

¹⁷⁸ Ibid at 310.

¹⁷⁹ Ibid.

¹⁸⁰ (1976) 139 CLR 383.

¹⁸¹ Ibid at 384.

¹⁸² Ibid.

¹⁸³ (1986) 161 CLR 254 at 266-267.

¹⁸⁴ (1985) 63 ALR 1.

¹⁸⁵ Ibid at 40.

¹⁸⁶ Dao v Australian Postal Commission (1987) 61 ALJR 229.

¹⁸⁷ Ibid at 231. This view is used by L Aitken (1992), above n 12, to support the constitutional argument on the basis that s 64 provides some federal control over Commonwealth liability.

¹⁸⁸ (1988) 161 CLR 254 at 266-267.

¹⁸⁹ (1985) 63 ALR 1 at 33-34. At this point his Honour was dealing with the effect of the Cigamatic and Bogle decisions discussed above at 97-99.

¹⁹⁰ (1986) 161 CLR 254 at 265.

¹⁹¹ For that reason it has been decided that s 64 does not affect the principle in Auckland Harbour Board v R [1924] AC 318 (that the Crown can recover illegal payments made from consolidated revenue): Commonwealth v Burns [1971] VR 825; Sandvik Australia Pty Ltd v Commonwealth (1989) 89 ALR 213; cf Commonwealth v Crothall Hospital Services (Aust) Ltd (1981) 36 ALR 567

¹⁹² (1986) 161 CLR 254.

¹⁹³ Ibid at 265 per Gibbs CJ, Mason, Wilson, Deane and Dawson JJ, adopting the expression of Kitto Jin Asiatic Steam Navigation Co Ltd v The Commonwealth (1956) 96 CLR 397 at 427.

¹⁹⁴ (1986) 161 CLR 254 at 265.

¹⁹⁵ (1976) 139 CLR 362.

¹⁹⁶ Ibid at 376 per Gibbs J.

¹⁹⁷ Maguire v Simpson (1976) 139 CLR 362 at 393-5 per Stephen J, at 408 per Murphy J; Commonwealth v Evans Deakin Industries Ltd (1986) 161 CLR 254. See above n 191.

¹⁹⁸ Maguire v Simpson (1976) 139 CLR 362 at 406 per Jacobs J (eg, with respect to limitation of actions.)

¹⁹⁹ Commonwealth v Lawrence (1960) 77 WN (NSW) 538 at 540 per Else-Mitchell J (eg: priority in relation to Crown debts; restraints on disposal of Crown lands.)

²⁰⁰ (1980) 32 ALR 485 at 498.

²⁰¹ Groves v Commonwealth (1982) 150 CLR 113.

²⁰² (1986) 161 CLR 254 at 264.

²⁰³ (1976) 139 CLR 362 at 401. Cf at 388 per Gibbs J.

²⁰⁴ (1979) 27 ALR 1 at 24.

²⁰⁵ (1976) 139 CLR 362 at 405. Cf at 370-371 per Barwick CJ.

²⁰⁶ (1991) 102 ALR 579.

²⁰⁷ It was found that the Commissioner was for relevant purposes to be treated as the Crown in right of Queensland.

²⁰⁸ A preliminary issue was whether the Workers' Compensation Act 1987 (NSW), which was proclaimed after the date of injury, applied. Section 6(2) of that Act provided that it “binds the Crown, not only in right of New South Wales but also, so far as the legislative power of Parliament permits, in all other capacities”. It was held that the Act did not apply retrospectively.

²⁰⁹ (1976) 139 CLR 362 at 371-3.

²¹⁰ (1991) 102 ALR 579 at 598-600. On this point, Priestley JA and Waddell AJA disagreed.

²¹¹ Ibid at 600.

²¹² The leading judgment was delivered by Kirby P, with whom Priestley JA and Waddell AJA generally agreed, although they adopted different reasoning in relation to s 58 of the Judiciary Act.

²¹³ (1991) 102 ALR 579 at 603.

²¹⁴ Ibid at 604.

²¹⁵ (1990) 171 CLR 1.

²¹⁶ See S Kneebone, “The Crown's Presumptive Immunity from Statute New Light in Australia” [1991] Public Law 363.

²¹⁷ (1989) 169 CLR 41.

²¹⁸ (1991) 102 ALR 579 at 614.

²¹⁹ Ibid.

²²⁰ This is consistent with the view of Barwick CJ in Maguire v Simpson (1976) 139 CLR 362 at 371-3. Brennan Jin, Cf Commonwealth v Evans Deakin Industries Ltd (1986) 161 CLR 254 at 271Google Scholar.

²²¹ The expression is used here to describe legislation which abrogates existing common law either in whole or in part and replaces it with statutory provisions, eg, defamation legislation and compensation schemes.

²²² For example, (1991) 102 ALR 579 at 598 (res 75(iv)); at 599 (res 78); at 605 (res 51(xxxix)).

²²³ Ibid at 613 per Priestley JA. See also at 605 per Kirby P.

²²⁴ Also Maguire v Simpson (1976) 139 CLR 362 at 388 per Gibbs J: “The conclusion that I havereached … does not mean that s 64 has an operation which extends beyond constitutional power”. Note that the Constitutional Commission in its final report at para 6.277 remarked: 'There can be no question of a general law under section 78, that lays down that [sic] the substantive rights of the States in all proceedings in federal jurisdiction.”

²²⁵ For example, Union Steamship Co. of Australia v King (1988) 166 CLR 1; Pearce v Florenca (1976) 135 CLR 507. Kirby P noted (102 ALR 579 at 595) that had the 1987 Act had retrospective operation those principles would have applied.

²²⁶ (1951) 51 SR (NSW) 402.

²²⁷ (1993) 179 CLR 155.

²²⁸ (1993) 179 CLR 297.

²²⁹ Mason CJ, Brennan, Dawson and Toohey JJ.

²³⁰ (1993) 179 CLR 155 at 215.

²³¹ Ibid. McHugh J relied in particular upon the Canadian authority of Amax Potash Ltd v Government of Saskatchewan [1977] 2 SLR 576 at 592. Note that Professor Campbell points out that some of the opinions in Werrin's case (1938) 59 CLR 150 support the contrary proposition. See E Campbell, above n 26 at 27-34. See also Pannam, C L, “Torts under Unconstitutional Statutes” (1966) 5 Melb Univ LR 113 at 133-134Google Scholar.

²³² (1993) 179 CLR 155 at 216.

²³³ Ibid. In support, he cited a number of cases involving privative clauses in which the High Court has held that its jurisdiction in relation to judicial review under s 75(v) is entrenched, eg, R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598.

²³⁴ (1923) 32 CLR 200.

²³⁵ (1993) 179 CLR 155 at 217.

²³⁶ Ibid.

²³⁷ Ibid at 173 per Mason CJ, at 204-205 per Dawson and Toohey JJ, at 211-212 per McHugh J. Werrin v Commonwealth was discussed above in relation to the effect of s 75(iii) of the Constitution.

²³⁸ Latham CJ and McTiernan J.

²³⁹ Rich, Starke and Dixon JJ.

²⁴⁰ (1993) 179 CLR 155 at 177.

²⁴¹ (1992) 175 CLR 353.

²⁴² [1992] 3 All ER 737.

²⁴³ Pavey Matthew Pty Ltd v Paul (1986) 162 CLR 217.

²⁴⁴ See Commissioner of State Revenue v Royal Insurance Australia Ltd (1994) 182 CLR 51 at 69. In that case, which concerned the interpretation of a statutory discretion to refund overpaid stamp duty, Mason CJ alone based his conclusion upon “common law restitution” (as Brennan J labelled it, ibid at 90). The other judges came to the same conclusion on the facts by relying upon the interpretation of the statutory discretion.

²⁴⁵ Ibid at 73.

²⁴⁶ Ibid.

²⁴⁷ (1993) 179 CLR 155 at 173 per Mason CJ, at 185 per Deane and Gaudron JJ, at 204 per Dawson and Toohey JJ.

²⁴⁸ Ibid at 176 per Brennan J.

²⁴⁹ Brennan J decided that the Refund Act could not be characterised as a law providing for the taking of property: ibid at 177-181. Cf Deane and Gaudron JJ, who decided that the Act was outside the reach of the constitutional guarantee provided bys 51(xxix): ibid at 184-190. See also ibid at 221-222 per McHugh J. Dawson and Toohey JJ decided that the Act did not involve the acquisition of property: ibid at 194-204.

²⁵⁰ Ibid at 186 -187 per Deane and Gaudron JJ, at 222-223 per McHugh J.

²⁵¹ Ibid at 221.

²⁵² Ibid at 185.

²⁵³ For example, Health Insurance Commission v Peverill (1993) 179 CLR 226 (retrospective reduction of benefits payable under the Medicare scheme). Cf Gilvarry v Commonwealth (1994) 127 ALR 721, discussed below at 126-128.

²⁵⁴ Re Director of Public Prosecutions; Ex parte Lawler (1993) 179 CLR 270 (seizure of vessel used in commission of offence under fisheries legislation).

²⁵⁵ For example, WSGAL Pty Ltd v Trade Practices Commission (1994) 122 ALR 673 (divestiture provisions justified in the public interest to maintain competition in trade and commerce).

²⁵⁶ (1993) 179 CLR 297.

²⁵⁷ Ibid at 300.

²⁵⁸ Ibid at 305. They gave as an example of a “vested cause of action” an action against the Commonweilltrl. for goods sold and delivered.

²⁵⁹ Ibid at 305-306.

²⁶⁰ Ibid at 306 (emphasis added).

²⁶¹ Ibid at 312 (emphasis added).

²⁶² Ibid at 315 per Dawson J, at 320 per Toohey J.

²⁶³ Ibid at 321.

²⁶⁴ Ibid at 326.

²⁶⁵ Ibid at 325.

²⁶⁶ Ibid at 326.

²⁶⁷ It is possible that Kirby, P (as he then was) shares their view on the basis of his analysis in Commissioner for Railways v Peters (1991) ALR 579Google Scholar. See discussion above at 116-119.

²⁶⁸ L Aitken (1994), above n 12 at 691.

²⁶⁹ (1995) 126 ALR 391 per Foster J.

²⁷⁰ Groves v Commonwealth (1982) 150 CLR 113; Commonwealth v Verwayen (1990) 170 CLR 394; Commonwealth v Connell (1986) 5 NSWLR 218 are examples of liability arising out of the services in peace time.

²⁷¹ Cf Gilvarry v Commonwealth (1994) 127 ALR 721. In that case it was decided that there was no acquisition by s 44 of a statute-barred claim, in the face of a provision which updated the limitation period to a point after s 44 had come into effect. This is discussed below at 126-128.

²⁷² (1995) 126 ALR 391 at 397.

²⁷³ (1967) 116 CLR 353.

²⁷⁴ (1995) 129 ALR 239.

²⁷⁵ Ibid at 243.

²⁷⁶ (1995) 127 ALR 721.

²⁷⁷ (1988) 165 CLR 55, referred to (1995) 127 ALR 721 at 737.

²⁷⁸ Ibid at 735-736 and 737.

²⁸⁹ (1995) 127 ALR 721 at 733.

²⁸⁰ (1993) 179 CLR 297.

²⁸¹ Ibid at 308.

²⁸² Ibid at 307.

²⁸³ Ibid at 306.

²⁸⁴ Ibid at 303.

²⁸⁵ Ibid at 308.

²⁸⁶ 127 ALR 721 at 733.

²⁸⁷ Commonwealth v Dixon (1988) 13 NSWLR 601 at 622 per Mahoney J.

²⁸⁸ (1993) 179 CLR 297 at 308.

²⁸⁹ (1995) 126 ALR 391.

²⁹⁰ (1995) 127 ALR 721 at 729.

²⁹¹ Ibid at 738.

²⁹² Cf McKain v Miller (1991) 174 CLR 1 at 41.

²⁹³ Commonwealth v Dixon (1988) 13 NSWLR 601 at 611 per Hope JA (discussing the effect of s 63 of the New South Wales Limitation Act which was expressed to extinguish a cause of action on the expiration of the limitation period).

²⁹⁴ (1976) 139 CLR 383.

²⁹⁵ (1995) 127 ALR 721 at 737.

²⁹⁶ (1995) 126 ALR 391 at 409. Foster J's reasoning was also based upon his view of the nature of the jurisdiction which the Federal Court exercised in that case. See discussion below at 130.

²⁹⁷ Health Insurance Commission v Peverill (1993) 179 CLR 226; Re Director of Public Prosecutions; Ex parte Lawler (1993) 179 CLR 270; WSGAL Pty Ltd v Trade Practices Commission (1994) 122 ALR673.

²⁹⁸ (1938) 59 CLR 150 at 167-168.

²⁹⁹ (1995) 126 ALR 391.

³⁰⁰ (1994) 127 ALR 721.

³⁰¹ Discussed above at 102-105.

³⁰² (1988) 169 CLR 41 at 121.

³⁰³ (1991) 174 CLR 1.

³⁰⁴ Ibid at 46.

³⁰⁵ Federal Court Act 1976 (Cth), s 32.

³⁰⁶ For example, Bienke v Minister for Primary Industries & Energy (1994) 125 ALR 151; 34 ALD 413.

³⁰⁷ (1995) 129 ALR 239.

³⁰⁸ Ibid at 243.

³⁰⁹ Cf Commonwealth v Mewett (1995) 126 ALR 391 at 402 where Foster J described it as “derivative or surrogate” of the High Court.

³¹⁰ Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 69 ALJR 223. A majority disapproved of the decision in David Jones Finance & Investments Pty Ltd v Federal Commissioner of Taxation (1991) 99 ALR 447.

³¹¹ Little v Commonwealth (1947) 75 CLR 94.

³¹² Musgrave v Commonwealth (1937) 57 CLR at 546 per Dixon J.

³¹³ (1994) 125 ALR 151; 34 ALD 413.

³¹⁴ Ibid at 173; 433.

³¹⁵ But on the facts of that case, which arose from changes to a fishery plan, he decided that in any event no action would lie for an act of “law-making”. That is, it was not an act of “operational” negligence: see Anns v Merton London Borough Council (1978) AC 728; Sutherland Shire Council v Heyman (1985) 157 CLR 424.

³¹⁶ Attorney-General's Second Reading Speech to 1989 Bill (H Reps Deb 1989, Vol 167 at 3298- 3300). The three attempts were the Commonwealth and Commonwealth Instrumentalities (Application of Laws) Bill 1989, the Government and Government Instrumentalities (Application of Laws) Bill 1990 and the Law and Justice Legislation Amendment Bill (No 2) 1991.

³¹⁷ H Reps Deb 1989, Vol 168 at 873-894; Sen Deb 1991, Vol 149 at 3383 (Senator R Hill).

³¹⁸ Crown Proceedings Act 1992 (ACT); Crown Proceedings Act 1993 (NT); Crown Proceedings Act 1992 (SA); Crown Proceedings Act 1993 (Tas).

³¹⁹ The word “procedural” is omitted in the South Australian Act.

³²⁰ Section 5(1) of each of the Acts.

³²¹ Section 6 of each of the Acts.

³²² See Australian Grand Prix Act 1994 (Vic), s 50. The legislation has the effect of denying the right of homeowners whose houses have been damaged by construction work on the Grand Prix track at Albert Park to claim compensation. See Age, 29 April, 1995 at 6 “GP offer sparks call for rights”.

³²³ Cf New Zealand Bill of Rights Act 1990, s 27(3). See Age, 20 February, 1996 at 14, letter to the Editor by R Richter QC, “Disquiet on rights a source of alarm”.