Commonwealth v Mewett

Commonwealth v Mewett - [1997] HCA 29 - HCA 1997 case summary — Zoe

[38]

with the jurisdiction of a Court and not with the rights or liabilities of persons who may be litigants in the Court. It says, in effect, that if any person desires to litigate a legal claim which he may conceive himself to have against the Commonwealth or the Commonwealth to litigate a legal claim which it may conceive itself to have against any person, he or it may do so by means of an original proceeding in the High Court; but it neither invests them with substantive rights nor subjects them to substantive liabilities. Subsequent judgments in this Court have confirmed that view. In Asiatic Steam Navigation Co Ltd v The Commonwealth [31] , Fullagar J expressed a preference for a statutory rather than a constitutional basis for the right to bring an action against the Commonwealth in contract or in tort, as did Windeyer J in Suehle v The Commonwealth [32] . Jacobs J took the same view in Maguire v Simpson [33] , a view which is implicit in other judgments in that case. In The Commonwealth v Evans Deakin Industries Ltd [34] the majority said that "[t]here can be no doubt that the Commonwealth Parliament has full power to make laws governing the liability of the Commonwealth", whilst Brennan J expressly rejected the view that "s 75(iii) operates without the assistance of any law made pursuant to s 78 to impose substantive liability on and to authorise proceedings against the Commonwealth in this Court" [35] . Toohey J in Breavington v Godleman [36] spoke of "the Commonwealth's common law immunity", and in both Mutual Pools & Staff Pty Ltd v The Commonwealth [37] and Georgiadis [38] , McHugh J was of the opinion that the immunity of the Crown in right of the Commonwealth in contract and tort was unaffected by s 75(iii) of the Constitution. His Honour was in dissent in Georgiadis , but the majority assumed [39] , without deciding, the correctness of the view which he took and determined the case on that assumption. 1. (1939) 39 SR (NSW) 133 at 140. 2. (1956) 96 CLR 397 at 422-423. 3. (1967) 116 CLR 353 at 355. 4. (1977) 139 CLR 362 at 404. 5. (1986) 161 CLR 254 at 263. 6. Evans Deakin Industries (1986) 161 CLR 254 at 269-270. 7. (1988) 169 CLR 41 at 169. 8. (1994) 179 CLR 155 at 217. 9. (1994) 179 CLR 297 at 325-326; see also at 318, per Toohey J. 10. Georgiadis (1994) 179 CLR 297 at 306, per Mason CJ, Deane and Gaudron JJ; at 312, per Brennan J.

[257]

For it must be borne in mind that the petition of right, unlike a petition addressed to the grace and favour of the Sovereign, is founded on the violation of some right in respect of which, but for the immunity from all process with which the law surrounds the person of the Sovereign, a suit at law or equity could be maintained. The petition must therefore shew on the face of it some ground of complaint which, but for the inability of the subject to sue the Sovereign, might be made the subject of a judicial proceeding. Now, apart altogether from the question of procedure, a petition of right in respect of a wrong, in the legal sense of the term, shews no right to legal redress against the Sovereign. For the maxim that the King can do no wrong applies to personal as well as to political wrongs; and not only to wrongs done personally by the Sovereign, if such a thing can be supposed to be possible, but to injuries done by a subject by the authority of the Sovereign. For, from the maxim that the King cannot do wrong it follows, as a necessary consequence, that the King cannot authorise wrong. For to authorise a wrong to be done is to do a wrong; inasmuch as the wrongful act, when done, becomes, in law, the act of him who directed or authorised it to be done. It follows that a petition of right which complains of a tortious act done by the Crown, or by a public servant by the authority of the Crown, discloses no matter of complaint which can entitle the petition to redress. Nevertheless, as his Lordship went on to point out [173] , a servant of the Crown was responsible at common law for a tortious act done to a fellow subject, although done by the authority of the Crown, and to that tortfeasor the immunity of the Crown would afford no defence. Moreover, in most instances, the action against the officer or servant of the Crown would have the same effect as a petition of right would have, "since, in a proper case, the Crown [would] defend its officer and become responsible for any damages awarded" [174] . 1. (1865) 6 B & S 257 at 295-296 [122 ER 1191 at 1205]. 2. Feather (1865) 6 B& S 257 at 297 [122 ER 1191 at 1205-1206]. 3. Robertson, The Law and Practice of Civil Proceedings By and Against the Crown and Departments of the Government (1908), p 351.

[289]

It must be remembered that the question to which the material parts of the judgment are directed is the actionable liability of the Crown for tort and this is a subject upon which the distinction between procedure and substantive law has never been steadily maintained, at all events in the manner in which the Crown's immunity has been stated and explained. For one traditional mode of expressing and indeed accounting for the absence of any liability on the part of the Crown for the torts of its servants has been to say that the Crown cannot be sued except by its own consent and no fiat will be granted for a petition of right for tort. Farnell v Bowman [215] is based upon the view that the grant of a general remedy against the Crown makes the torts committed on its behalf actionable. Implicit in this view appears to be the assumption that the Crown's substantive responsibility existed in contemplation of law but had not been the subject of legal remedy. If this mode of reasoning is applied, it is easy to understand how s 75 should be considered enough to expose the State and the Commonwealth to a remedy for tortious liability. It treats the liability as already existing in abstracto as a duty of imperfect obligation and made perfect by the creation of a jurisdiction in which the Crown may be sued without its consent. (Emphasis added.) Dixon J decided that the joint judgment in The Commonwealth v New South Wales probably was not intended as a pronouncement that the liability of the State within federal jurisdiction and of the Commonwealth was imposed directly by the Constitution "so as to be unalterable and indestructible by legislation" [216] . His Honour concluded [217] that the interpretation which he would give to s 75, and which he considered was consistent with the joint judgment of Isaacs, Rich and Starke JJ, did not deny to the Parliament the power to extinguish a cause of action which has accrued against the Commonwealth. Of course, since Georgiadis , it has become clear that a law which extinguishes a non-statutory cause of action which accrued before the commencement of that law may have to provide just terms within the constitutional guarantee provided by s 51(xxxi) of the Constitution. 1. Maxwell v Murphy (1957) 96 CLR 261 at 286 2. (1938) 59 CLR 150. 3. Werrin v The Commonwealth (1938) 59 CLR 150 at 167-168See also Dixon J's remarks in Bank of NSW v The Commonwealth (1948) 76 CLR 1 at 367and those of Murphy J in Johnstone v The Commonwealth (1979) 143 CLR 398 at 405-406 4. (1887) 12 App Cas 643. 5. Werrin (1938) 59 CLR 150 at 167 6. Werrin (1938) 59 CLR 150 at 168

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