Commonwealth v New South Wales [1923] HCA 23

By Knox C.J., Isaacs, Rich and Starke JJ., on the ground that such ju tion is conferred by sec. 75 (t1.) of the Constitution ;

By Higgins J.,on the ground that such jurisdiction is conferred by sec. of the Judiciary Act 1903-1920 enacted under the power given by sec. 78 of tl

Per Isaacs, Higgins, Rich and Starke JJ. : 'The expression " sovereign State' as applied to a State of Australia is not justified ; and a State is not a foreign country in relation to the Commonwealth.

Per Higgins J. : - Sec. 75 of the Constitution merely means that, if there matter (of the kinds mentioned) to be tried, the High Court can try it; it not create a new cause of action, or make a matter justiciable which is n¢ But, by virtue of sec. 78 of the Constitution, Judiciary Act makes justiciable a complaint on the part of the Commony as one agent of the King, against a State, as another agent of the King.

An action in the High Court by the Commonwealth against th

plaintiff by a collision which took place in Port Jackson on 5th December 1921 between the defendant's steamship Kiama and a motor-launch, No. 322, of the plaintiff. The defendant applied to the High Court by summons for an order setting aside the service of the writ or, in the alternative, for an order staying all proceedings in the action, on the ground that the High Court has no jurisdiction to entertain an action brought by the Commonwealth against the State of New South Wales without the consent of that State.

The summons came on for hearing before Higgins J., who directed that the question raised by it should be argued before the Full Court.

Flannery K.C. (with him Harry Stephen), for the defendant. The High Court has no jurisdiction either under the Constitution or under the Jud ciary Act to entertain an action by the Commonwealth against a State without the consent of that State. A State has the preroga ive right of the King not to be sued without its consent. Sec. 75 of the Constitution is an enumeration of the matters which are within the judicial power of the Commonwealth, but does not subject the King as representing the State to being sued in the High Court. The word " matters" in that section means subjects which can be litigated, and the section gives the High Court juris- diction over matters only and not over persons. One of the facts in existence at the time the Constitution was enacted was that in the United States of America it had been he'd that the States might be sued in the Supreme Court without their consent (Chisholm v. Georgia (1); and see Hans v. Louisiana (2) ), and that an amendment of the American Constitution had been made to prevent that being done. (See Quick and Garran's Commonwealth Constitution, 1st ed., pp. 774, 804; Harrison Moore on the Commonwealth, 2nd ed., p. 496.) That being so, secs. 75 to 78 of the Constitution were enacted, of which s.c, 75 must be read in the light of sec. 78; and there is no reason for giving an ex necessitate meaning to sec. 75. The Crown is not to be impleaded adversely unless there is competent legislation to that effect (Lhe Mogileff (3); Young v. s.s. Scotia (4) ). Sec. 78 was intended to give the Commonwealth Parliament power to coerce

(1) (1792-93) 2 Dall, 419. (3) (1921-22) 38 T.L.R., 71, 279. (2) (1890) 134 U.S., 1. (4) (1903) A.C., 501, at p. 504.

H.C. or A. the States if it thought fit. Sec. 75 should not be read by itself, bu 1923. Should be read with the law existing as to the rights of sovereign and States (see The Parlement Belge (1); Tobin v. The Queen (2)) On the ordinary principles of construction sec. 75 (m1.) should no be read as giving power to any State of the Commonwealth, or e a foreign State, to sue the Commonwealth ; which would be the re if the contrary view of sec. 75 were correct. The words " conferriny rights to proceed " in sec. 78 show that rights to proceed were lacking without sec. 78. This view of sec. 75 does not dep ive the Court of jurisdiction to entertain an appeal from a State Court i an action in which the State was defendant, for the State must hay consented by statute to being sued in the State Court; and that con- sent carried with it consent to the incidents of being so sued, includ ing an appeal to the High Court. The Parliament has enacted see, 38 of the Judiciary Act 1903-1920, not under sec. 78 of the Cor stitution, but under sec. 77. Sec. 38 is a definition of the juri diction over the subject matters referred to in sec. 75, but in i confers no jurisdiction ; and no implication must necessarily be drawn from sec. 38 (c) that the Commonwealth can sue a State without it consent. The word " person" is not used in the Judiciary Act a including the Commonwealth or a State; and that is apparent from secs. 56 to 59, where " person" in sees. 56 and 58 is contrasted w "State" in secs. 57 and 59. The result is that there has been n legislation under the power conferred by sec. 78 which enables the Commonwealth to sue a State without its consent.

E. M. Mitchell (with him Evans), for the plaintiff. Sec. 75 of Constitution by itself confers jurisdiction on the High Court t entertain an action by the Commonwealth against a State without its consent ; and sec. 63 of the Judiciary Act provides for the serv 7 of process in such an action. The plain meaning of the words " the High Court shall have . . . jurisdiction " is that the Court m go on and determine the matter (United States v. Texas (3) ; United States v. Michigan (4) ). Sec. 78 of the Constitution should be re in conjunction with secs. 76 and 77, and is not necessary to conf jurisdiction if it has been previously conferred. Its purpose is

(1) (1880) 5 P.D., 197. (3) (1892) 143 U.S., 621, at pp. 639

(2) (1864) 16 C.B. (N.S.), 310, at. 642, 646. pp. 353, 356. (4) (1903) 190 U.S., 379.

give rights to proceed in cases other than those as to which juris- diction had already been given. If sec. 78 means that legislation must be passed before there is a cause of action, it does not extend to cases where causes of action already existed under sec. 75; but sec. 78 has to do with cases contemplated by secs. 76 and 77, price provide for the creation of new Courts whose jurisdiction had not yet been defined in the Constitution. So that sec. 78 has its uses apart from cutting down the meaning of sec. 75. Once a Court is created giving jurisdiction over two Governments, the objections relied on with reference to sovereign States are inapplicable (see Dominion of Canada v. Province of Ontario (1) ). Assuming that legislation is necessary before the Commonwealth can sue a State in the High Court, sec. 38 (c) of the Judiciary Act effects that object. That sub-section means that the High Court shall have a right to try suits by the Commonwealth against a State and that no other Court shall. Then sec. 64 provides that the suit is to be assimilated to an action between subject and subject. The words of sec. 64 were intended to have the same effect as similar words were determined to have in Farnell v. Bowman (2). (See also Commonwealth v. Miller (3); Commonwealth v. Baume (4); Baume v. Common- wealth (5).) Reading secs. 38 (c) and 64 together, the suits men- tioned in sec. 38 (c) are included in sec, 64, and sec. 64 contains the legislation which is said to be necessary under sec. 78 of the Con- stitution, The Constitution did not contemplate that it was neces- sary to give any right to proceed against a State in the High Court if the right was already given by State law to proceed against the State in the Supreme Court of that State. Alternatively, the word "person" in see, 58 of the Judiciary Act is wide enough to include the Commonwealth (Acts Interpretation Act 1901, sec. 22 (a) ). {Counsel also referred to Commonwealth v. New South Wales (6) ; Commonwealth v. Queensland (7); South Australia v. Victoria (8) ; Commonwealth v. New South Wales (9).]

(1) (1910) A.C., 637, at p. 645. (5) (1906) 4 C.L.R., 97, at pp. 110, 118. (2) (1887) 1 App. Cas, 643, at pp. (6) (1915) 20 C.L.R., a 648, 650. (7) (1920) 29 CLR,

(8) (1910) 10 C.L.R., 742, at p. 753. (4) (1905) 2 C.L.., 405, at p. 418.

Kyox ©.J. This is an application by the defendant - the s of New South Wales - for an order setting aside the service of th writ or staying proceedings in an action brought by the Common-

wealth against the State to recover damages in respect of a collisi between vessels belonging to the plaintiff and defendant respectively,

to entertain an action brought by the Commonwealth against State of New South Wales without the consent of that State.

75 of the Constitution provides that in all matters in which Commonwealth or a person suing or being sued on behalf of the Commonwealth is a party the High Court shall have original juri diction. Apart from authority I should have thought that

meaning of the words used in sec. 75 was not open to doubt, a that under that sect'on the right of this Court to entertain

action could not be seriously disputed. But it is unnecessary for me to state at length my views on the matter, for the question no

South Australia vy. Victoria (1), and by the reasoning by wh that decision was supported. The plaintiff in that action claim

to restrain trespass by the defendant State in respect of a piece 0

land de facto in the occupation of the defendant which was alleged to belong to the plaintiff. In effect the cause of action was tresp to land. For the defendant it was argued that the High Court had no jurisdiction to entertain the action because the dispute was not justiciable before Federation, and that the jurisdiction given y sec. 75 of the Constitution to deal with matters between States wat

limited to matters arising in connection with the Constitution or

State against another founded on an alleged trespass by the latt x (1) (1911) 12 C.L.R., 667.

on the territory of the former. It necessarily involved a decision that the High Court had what has been called in argument in the present case " compulsive jurisdiction " against a State, or, in other words, that the jurisdiction of the High Court under t! over a State was not dependent on the consent of the State against

'The following extracts from the reasons given in the case referred to cover, in my opinion, the whole ground of the present case : - Griffith C.J. said, at p. 675 : - The word ' matters' was in 1900 in common use as the widest term to denote controversies which might

come before a Court of Justice. In my opinion a matter

between States, in order to be justiciable, must be such that a con- troversy of like nature could arise between individual persons, and must be such that it can be determined upon principles of law. This definition includes all controversies relating to the ownership of property or arising out of contracts. In the simple case of a trespass by one State upon territory in the de facto possession of another, I have no doubt that this Court would have jurisdiction." And at p. 676 : - There is another way in which the point of juris- diction may be approached, which leads to the same result. The law of the Empire, including the statute law, is binding as well upon the dependencies, regarded as political entities, as upon individual subjects. If, therefore, any dependency infringes the law of the Empire governing its relations with a neighbouring depen- deney it is guilty of a wrong towards that other dependency. Similar wrongs committed by one independent State against another are not justiciable, because there is no tribunal which has jurisdiction to take cognizance of them. But if there is a tribunal which has jmisdiction to summon a dependency before it, there is no reason why such a wrong should not be redressed. This Court has such jurisdiction. The question, therefore, whether the State of Victoria has infringed the statute law of the Empire as regards South Aus- tralia may be inquired into by this Court as a ' matter between States,' within the meaning of sec. 75 of the Constitution." O°Connor J. said, at p. 707: - * The suitis . . . in substance one in which a State seeks to recover portion of her territory, of which she alleges that an adjoining State is in wrongful occupation." And

H. C. or A. 1923. ~~ THe Common- WEALTH v New Sourn Wates.

at p. 709: - * The language of the Commonwealth Constitution it this respect iy inc no authorities are needed for its interpretation. It plainly says, and it clearly means, that whenever a question is raised as to position of a boundary line between two States this Court will ha jurisdiction to entertain it, if the question arises in a controversy

between the States which is capable of being determined on re nized legal principles." At p. 715 my brother Isaacs said : - * first question is as to the jurisdiction of the Court to entertain t suit. This depends on the meaning of the word ' matters' in 75 of the Constitution. In my opinion that expression, used y reference to the Judicature, and applying equally to individuals States, includes and is confined to claims resting upon an all violation of some positive law to which the parties are alike subj and which therefore governs their relations, and constitutes the measure of their respective rights and duties." And at p. 721 said : - " Tf on examination of the case it be found that the ¢ n is not supported by any law binding the defendants, but is dependent on political considerations merely, the Court must say so. Tt has jurisdiction to entertain the suit, but in the course of its exerci it may be compelled to adjudge adversely to the plaintifis on th ground that no paramount law can be found to support their claim,' Barton J. agreed with the reasons given by the Chief Justice ; and my brother Higgins (at p. 742) concurred with the other members of the Court in rejecting the argument that the High Court had no power to entertain the action and to give some judgment in favou of the plaintiffs, if the plaintiffs had a cause of action. 4 Tt is evident, indeed it was not disputed, that a claim to recover damages in respect of a collision between two vessels is a " matter" within the meaning of sec. 75. It is apparent also that in "matter" the Commonwealth is a party. It follows that by sec. 1% en jurisdiction is conferred on the High Court in this case, and "jurisdiction " means " the authority which a Court has to decide matters that are litigated before it or to take cognizance of matter presented in a formal way for its decision" (Halsbury's Laws of England, vol. 1x., p. 13, par. 10). This power is conferred by the Constitution itself on this Court

to take cognizance of this matter. Any legislation by Parliament, directed to conferring this power would, therefore, be as superfluous as legislation by Parliament to restrict the limits of the jurisdiction would be ineffective. The argument for the applicant based on see. 78 of the Constitution ignores the essential distinction between matters which come within the terms of sec. 75 and those which come within sec. 76. In respect of the former class the jurisdiction of the High Court is independent of, while in respect of the latter class it is dependent upon, Parliamentary enactment.) The result of acceding to this argument would be in effect to remove sub-sec. m1. from sec. 75 and place it in sec. 76. In my opinion the application should be dismissed.

Tsaacs, Rich anp Srarkxe JJ. In this case the Commonwealth has sued the State of New South Wales in this Court in original jurisdiction for damages occasioned to the plaintiff by a collision between a vessel belonging to the defendant and a motor-launch belonging to the plaintiff. The cause of action, as a tort in its inherent nature, would as between subject and subject be justiciable in a competent Court. It therefore falls within the meaning of the word "matters" in sec. 75 of the Commonwealth Constitution. The question arising on the defendant's summons - referred by our brother Higgins to the Full Court - is whether this Court has juris- diction to entertain this action, without the consent of the State. The Commonwealth maintains that there is jurisdiction, and rests primarily on sec. 75 of the Constitution. Alternatively, it contends that in various ways the Judiciary Act has made whatever Parlia- mentary provision is necessary. The defendant State has entered a conditional appearance, and contests jurisdiction unless it elects to consent.

The contention urged at the Bar on behalf of the defendant was (1) that it is a sovereign State and therefore cannot be sued without its consent ; (2) that no actual consent has been given; (3) alter- natively, that the jurisdiction given by the terms of the Constitution in sec. 75 is conditioned on Parliament under sec. 78 of the Con- stitution conferring on the Commonwealth the right to proceed

It may be convenient to refer first to the assertion (which is the root of the defendant's contention) that an Australian State | a "sovereign State." Learned counsel placed the matter on t same plane as a foreign independent State, the " representative of which is included in sub-sec. 11. of sec. 75. As to such a " rept sentative " it was said the consent of the foreign State was neces and so of an Australian State. There are two fallacies involved in this. The first is that there is any analogy whatever between position of the " representative " of a foreign State and that of one of the States of Australia. In saying that, we put aside all distinctions between consuls and ambassadors and assume highest character, that of an ambassador. This is conceding ve much, seeing that it is difficult to imagine an ambassador to Au tralia. But what is the principle of the immunity of an ambassador } We need refer to three cases only, as they are very recent : M7 s Bey v. Gadban (1), In re Republic of Bolivia Exploration Syndicate Ltd. (2) and In re Suarez; Suarez v. Suarez (3). In the first mentioned case A. L. Smith LJ. quotes (4) with approval from Lor Campbell's judgment in Magdalena Steam Navigation Co. v. Martin (5), that an ambassador "is not supposed even to live within # territory of the sovereign to whom he is accredited, and, if he has done nothing to forfeit or to waive his privilege, he is for all juridie purposes supposed still to be in his own country." Davey L.J. (6), quoting from the head-note to I'he Parlement Belge (7), s "As a consequence of the absolute independence of every soverei authority and of the international comity which induces ever sovereign State to respect the independence of every other soverei m1 State, each State declines to exercise by means of any of its Co any of its territorial jurisdiction over the person of any sovereig or ambassador, or over the public property of any State which destined to its public use, or over the property of any ambassador, though such sovereign, ambassador, or property be within it territory." There is nothing in the Constitution to prevent the

(1) (1894) 2 Q.B., 352. (5) (1859) 2 EB. & E., 94, (2) (1914) 1 Ch., 139. (6) (1894) 2 Q.B., at p. 361. (3) (1918) 1 Ch. 176. (7) (1880) 5 P.D., 197.

Court from observing in a proper case the respect due to the inde- pendence and dignity of foreign nations on the principle of what is called international comity (see per Lord Shaw in Lecouturier v. Rey (1), and Westlake on Private International Law, 6th ed., pp. 256 et seqq.). But what possible analogy is there between such a lly deemed to be out-

case - where person and property are judici side the territory and beyond the territorial jurisdiction of the local Courts - and the case of an Australian State, an integral and necessary part of the territory of the Commonwealth in relation to this Court? New South Wales is not a foreign country. The people of New South Wales are not, as are, for instance, the people of France, a distinct and separate people from the people of Aus- tralia. The Commonwealth includes the people of New South Wales as they are united with their fellow Australians as one people for the higher purposes of common citizenship, as created by the Constitution. When the Commonwealth is present in Court as a party, the people of New South Wales cannot be absent. It is only where the limits of the wider citizenship end that the separateness of the people of a State as a political organism can exist. To appeal to the analogy of an entirely foreign independent State is to appeal to an impossible standard. And again, this Court is not a foreign Court. It is the tribunal specially created by the united will of the Australian people, as a Federal Court and as a national Court. It has very special functions in relation to the powers, rights and obligations springing from the Constitution and the laws made under it - matters which concern the Commonwealth as the organiza- tion of the whole population of this Continent, the States in their relations to the Commonwealth and to each other, and the people in their relation to the Commonwealth and to the States regarded as constituent parts of the Commonwealth. Besides those Federal functions, this Court has by the Constitution an appellate juris- diction, which extends to the interpretation and enforcement of purely State laws, unrelated to any Federal consideration. In this aspect, it is as truly an appellate Court for each State as if it were competently created for the purpose by State or Imperial legislation. How in the face of these considerations can there possibly be any (1) (1910) A.C., 262, at p. 266.

H.C. or A. Jogical resemblance between the case of an independent. sovere

or his representative at the bar of the Court of a foreign count and the position of a State of Australia at the bar of this the hig Australian tribunal ?

The second fallacy in the defendant's argument is in the use

costing uncounted lives and treasure, that expression was 1 uncommon in the United States. And that, despite the war given by Story J. in his work on the Constitution.

to States. The term ' sovereign' or ' sovereignty ' is used ind senses, which often leads to a confusion of ideas, and som

upon the assumption that New South Wales is a " sovereign Sta would be both mischievous and unfounded. The term " sov di State" as applied to constituent States is not strictly correct

in America since the severance from Great Britain (see Story, 208). Still further from the truth is it in Australia. The appell tion "sovereign State" as applied to the construction of the monwealth Constitution is entirely out of place, and worse unmeaning. This Court has recently, in Amalgamated Soci

Engineers v. Adelaide Steamship Co. (1), stated the true me

meaning of its language, as applied to the subject matter. applied the standard, universal in British Courts, by giving to the actual bargain made with all its mutual rights and obligati as they are stated on the face of the instrument. Applying nov the same method of interpretation, by allowing the words of | h Constitution to speak for themselves, it is difficult to see how an real doubt can exist. Sec. 75 of the Constitution is explicit. says: - ''In all matters - (1.) Arising under any treaty: (i (1) (1920) 28 C.L.R., 129.

Affecting consuls, or other representatives of other countries : (111) In which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party: (tv.) Between States, or between residents of different States, or between a State and a resi- dent of another State: (v.) In which a writ of mandamus or pro- hibition or an injunction is sought against an officer of the Common- wealth: the High Court shall have original jurisdiction." What can be plainer? " In all matters" (and this is one) " in which the Com- monwealth . . . is a party" (and this is such a matter) "the High Court shall have original jurisdiction." How, without direct violence to these explicit words, can it be contended then that this Court has not in this case " original jurisdiction" ? We put aside for reasons already given the contentions as to " foreign sovereigns," and "sovereign States," and take up the other grounds of contest. Sec. 78 says: " The Parliament may make laws conferring rights to proceed against the Commonwealth or a State in respect of matters within the limits of the judicial power." The exercise of that power, it is said, is a condition precedent to the suability of a State in the High Court in original jurisdiction. That is an error which it is not difficult to detect. There is undoubtedly in our common law a principle that the Sovereign cannot be sued in his own Courts. A tort by the Sovereign is impossible at common law; the fault, if any, being attributed to the subject who actually committed or authorized it - the Sovereign being assumed never to authorize a breach of the law. A contract or deprivation of property is open to redress by means of a petition of right, when, by consent of the Sovereign, justice is done. But there is also another principle in our common law, that the Sovereign may always sue in his own Courts (see Bradlaugh v. Clarke (1) ). Even apart from statute the Crown may in some instances sue in one right and defend in another (see Williams v. Attorney-General for New South Wales (2) ). Obviously the matter was one to be dealt with by the Con- stitution, which created mutual rights and obligations between Commonwealth and States and foresaw the necessity of some tribunal, not the judicial organ of any one State exclusively,

(1) (1883) 8 App. Cas., 354, at p. 360. (1915) A.C., 573, at p. 580; 19 OLR, (2) (1913) 16 C.L.R., 404, at p. 430; 343, at p. 346.

to determine or finally determine possible disputes be Commonwealth and States, and between different States, 4 between States and residents of other States. As to these { Constitution at once enacted sec. 75 as a self-executing provis in the terms mentioned. The words " in all matters " are the that can be used to signify the subject matter of the Courts ju diction in the specified cases. " Matters" read with the conte

and in relation to " judicial power" are limited by the i sense of matters which a Court of law can properly dete that is, by some legal standard. In the Boundary Case this poi was fully expounded (1). The word " matters" is certainly enough to include the words which formed the basis of deci Farnell vy. Bowman (2). The Privy Council referring to the in sec. 2 of the Act 39 Vict. No. 38, namely, " Any person hay or deeming himself to have any just claim or demand wh ever against the Government," say (3): "These words amply sufficient to include a claim for damages for a tort mitted by the local Government by their servants." 'h Lordships made some valuable observations showing why they sidered those earlier words should not be restricted by the may "The King can do no wrong." They referred to the cireumsta of local Governments as pioneers of improvements, and to the co sequential difference of circumstances when compared with #l in England, and to the " greater hardship " that would arise | h from the strict application of the maxim. Again, reference is n toa a recital as to the reasons eae gu Lea to pass 1

"Tt could not, therefore, have ea intended to limit the oper of the Act to cases in which the subject had a remedy by p of right. The very object of the Act was to give a remedy in ca to which a petition of right did not extend, Why, then, should be supposed that the Legislature intended to exclude cases of tor Justice requires that the subject should have relief against the colot Governments for torts as well as in cases of breach of contract

(1) (1911) 12 C.L.R., at pp. 675-676 (2) (1887) 12 App. Cas., 643. (Griffith C.J.) ; at p. 706 (Barton J.); at (3) (1887) 12 App. Cas., at p. P. 708 (O'Connor J.); at pp. 715, 721 (4) (1887) 12 App. Cas., at p. 649. (Isaacs J.) ; at p. 742 (Higgins J.). q

detention of property wrongfully seized into the hands of the Crown. And when it is found that the Act uses words sufficient to embrace new remedies, it is hard to see why full effect should be denied to them." It is true that their Lordships went on to state further reasons confirming the conclusion just stated; and those further yeasons included a reference to sec. 3 in which the rights of the parties were declared to be as between subject and subject. But the earlier reasons are the broad main reasons, and are sufficient in themselves. They amount to saying that, notwithstanding the common law maxim, plain words of a statute expressly dealing with actions against the Crown are not to be cut down from their full signification where the nature of the statute requires for its proper and just effect that their full sense should be retained. Applying that principle, is it not obvious that the Constitution would fail greatly in effect if the word "matters" were not considered to include even " torts,' in other words, if it were not considered to include all claims for infringements of legal rights of every kind

• all claims referable to a legal standard of right? The word would, without question, include a claim for breach of contract. Why should it not include a breach of some constitutional declara- tion of right or duty created by the very instrument containing sec. 75% For instance, sec. 90, forbidding States imposing customs laws or granting bounties on the production or export of goods after uniform customs duties were imposed by the Commonwealth. Suppose a State proceeded to raise a military force, contrary to sec. 114, or suppose the Commonwealth imposed a tax on the property of a State, or suppose the Commonwealth proceeded to make a railway in a State without that State's consent: in any of those cases is it possible to think that sec. 75 of the Constitution was not intended to enable the complaining party - whether Commonwealth or State - to approach the High Court for redress? And if so, where is the room for the maxim at all in sec. 75 in view of this new Constitutional situation? The truth is that the King in his Imperial Parliament in passing the Constitution not only preserved the doctrine of the indivisibility of the Crown that applies throughout his dominions, but also recognized the divisibility of the powers of the

H.C. oF A. Crown in respect of self-governing units of the Empire. Ind se ing powers, and providing for their respective spheres of applicat Tae and the effect of possible conflict, specific provision was also m

pacers by means of sec. 75 for the royal power of administering ju:

New Soura through the High Court in the cases mentioned, so that the e

Wates. political relations established for Australians should in case of ¢

tsaaca J. troversy be effectively determined. In a much higher degree 4 Senes. with a vastly greater force can these considerations be appli sec. 75 so as to preserve the full meaning of the word " matters

sec. 75, than could the important but less far-reaching conside

tions mentioned in Farnell v. Bowman (1) be applied to the pha

there in question. Further, if the word " matters " does not includ

tort, then nowhere is it included. If it be said that it does inclu

torts but that torts have to be additionally dealt with, the questi

at once arises: Under what provision of the Constitution cai

State be made liable for torts? It is, of course, unthinkable 1

a State can defeat sec. 75 by declining to be liable for its tort

It was, however, suggested that sec. 78 enabled the Fe

Parliament to declare either the Commonwealth or a State

would enable the Commonwealth to render a State liable to th Commonwealth, and to refuse a reciprocal liability. It would F enable the Commonwealth to make one State liable to another, a leave that other irresponsible to the first. In short, there ¥ be no certainty of equal and undiscriminating responsibility to obe} the law or make reparation. The always present duty of the 1 0 to abide by and obey the law (astern Trust Oo. v. McKenzie, Mc an «& Co, (2) ) would be one of imperfect obligation except so far as th Commonwealth chose to impose a perfect sanction. But in trut sec. 78 has no such ambit or purpose. Approaching the matte once more from the standpoint of sec. 75, we see that, as to the case there set out wherein the Commonwealth and the States are sp ally mentioned, it is plain those organizations are bound - that is, i Crown in right of them is bound. But that was not a provision th covered all possible cases. As to the Commonwealth it was complet

(1) (1887) 12 App. Cas., 643. (2) (1915) A.C., 750, at 759.

so far as original process in the High Court was concerned. As to all cases of controversies in which there might be the element of con- flicting interests politically considered, an opportunity was definitely created of invoking the jurisdiction of a tribunal independent of any State, and so placed as to tenure as to be specially secure, even in relation to the Commonwealth. But the Constitution itself gave no right to anyone, whether State or individual, to proceed against the Commonwealth in any other Court, whether a Federal or a State Court. As to States, it gave no right to any of the residents of a State to sue that State, either in the High Court or any other Court. There was not the same apparent necessity. Much ground remained to be covered within the ambit of the judicial power of the Common- wealth before there existed the same facility of suing the Crown as exists in most of the States within their own jurisdiction. To this, sec. 78 is directed, and by that section the Commonwealth Parlia- ment is empowered to confer, in respect of all matters within the Federal judicial power, rights to proceed that are not already con- ferred by sec. 75. Observe the expression is "rights to proceed." It is not "the right to proceed," which is really the sense which the defendant's argument applies to sec. 78. We do not read sec, 78 as directed to mere procedural regulations which affect not any right to proceed, but the method of procedure. That is covered by other sections, as, for instance, sec. 51 (xxx1x.). But we do read it as merely supplementary to what the Constitution, so far as sec. 75 extends, did for itself in relation to the matters there mentioned. Tt enables the Commonwealth Parliament, if it thinks right, to do the same in other matters within the judicial power. But it does not enable the Commonwealth to subject a State to liability for tort in cases within sec. 75, That is not its function. The Constitution assumes that a right to proceed, either under sec. 75 of its own force or under sec. 76 by force of sec. 78, connotes an effective procedure. The various sections of the Judiciary Act which were referred to in argument thus fall, at all events for the most part, into their appro- priate places. But it is profitless to pursue them in detail, except to say that none of them provides for the Commonwealth suing a State. The word " person" (even if sec. 22 of the Acts Interpretation Act 1901 be assumed to include Commonwealth and State as a body

politic, unless the contrary intention appears, as to which we, nothing) does not include either Commonwealth or Stat the relevant sections in the Judiciary Act because the contre intention plainly appears.

Unless, therefore, sec. 75 of the Constitution embraces this «

this action cannot stand. But sec. enactment to include this case. The jurisdiction conferred by s 75 is beyond the power of Parliament to affect. It can aid it direct the method of its exercise; but it cannot diminish it. Court needs no actual consent of Commonwealth or State to # exercise of this jurisdiction. The High Court for the purposes the set out is the King's Court to which His Majesty has entrusted th duty of judicial determination in the cases specifically enumerate

decisions as to the suability of States or the United States, | whatever the hesitation of the Supreme Court in America wit respect to such jurisdiction in earlier years, it appears to be n definitely settled doctrine, resting on Constitutional pro

the States themselves are subject to the jurisdiction of the Cou The pertinent cases are : as to the States - United States v. Tex (1) and Oklahoma v. Texas (2) ; as to the United States - Minneso v. Hitchcock (3) and Kansas v. United States (4). And see Willoughl on the Constitution, vol. 11., p. 1058.

The summons therefore ought, in our opinion, to be dismissed.

Hicerys J. An action has been brought by the Commonweal in the High Court for damages against the State of New South Wak

• damages occasioned by a collision between a steamship belongin to the State and a motor-launch belonging to the Commonwei The State entered a conditional appearance, denying the jurisdic of this Court to entertain the action against the defendant Stat without its consent. The State is the King acting by one set of agents ; and the Commonwealth is the King acting by another of agents: and except by virtue of some Act of the British P ment the King cannot sue himself, or be sued by other persons

(1) (1892) 143 U.S., 621. (3) (1902) 185 U.S., 373.

(2) (1921) 256 U.S., 70, at p. 86. (4) (1907) 204 U.S., 331, at p. 342.

in contract or in tort. An action for collision is an action of tort. But by sec. 78 of the Constitution power is given to the Federal Parliament to " make laws conferring rights to proceed against the Commonwealth or a State in respect of matters within the limits of the judicial power." If there is a right to proceed against the State for this collision, it must be by virtue of an Act of the Federal Parliament passed under this section of the Constitution. Before examining the Federal Act - the Judiciary Act - however, it is neces- contended,

sary to consider sec. 75 of the Constitution, which, it

gives a right, without the aid of sec. 78, for the King in right of the Commonwealth to sue the King in right of the State - to sue him for a tort, for a wrong done by the King, even though (apart from statute) "the King can do no wrong."

See, 75 of the Constitution provides : - " In all matters - (r.) Arising under any treaty : (11.) Affecting consuls, or other representatives of other countries : (111.) In which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party: (Iv.) Between States, or between residents of different States, or between a State and a resident of another State: (v.) In which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth: the High Court shall have original jurisdiction." Now, this section does not change the substantive law: itisa mere procedural section. If there is a matter to be tried, the High Court can try it; that is all: and the position remains untouched that, without statutory authority, the King cannot sue himself (it is a contradiction in terms), nor can one agent of the King sue another agent of the King. If a case were to arise such as the Admiralty claiming for a naval dockyard jure corone the same land as claimed for a charity under some will, I have no doubt that a Court of chancery would find a means to have both interests of the King properly represented in argument, but such an exceptional case does not justify the inference that the same party can be both plaintiff and defendant in an action for damages. Sec. 75 does not

create a new cause of action, or make a matter justiciable which is "not justiciable otherwise. Under pll. 1. and 11, if there is a justiciable 'Matter arising under a treaty or affecting consuls, the High Court

may try it; under pl. 1m1., where there is a justiciable matter to : VOL. XXXII. 15

which the Commonwealth is a party, the High Court may t under pl. rv., where there is a justiciable matter between States between a resident of one State and a resident of another, the Court may try it; under pl. v., where a mandamus, &e., would b proper remedy, as between subject and subject, and the claim fo mandamus, &c., is a justiciable matter, the High Court may try claim, It so happens that here the action for collision is an a

that the King can do no wrong ; and there can be no action aga him for a tort (without statutory authority). In most of the A

the High Court to try a justiciable matter, and the giving | right to one agent of the King to sue another agent. learned writer (Dr. Baty) put it in the Harvard Law Review, v xxxiv., p. 846 (June 1921), - * The Government of the colony simply the King acting by a particular set of agents. The st of one colony by another colony would be like the suit of tl cook by the butler because too much was spent on coals, or tl suit of the War Office by" (? against) "the Board of Agricult because men who might be soldiers were kept to work at harvest." Of course, I reject the argument used by counsel for t State, that the State is to be treated as if it were a foreign " J have in other cases commented. the misapplication of the word " sovereign" to the States of 1

Commonwealth. As the same writer stated, in the same p "we forget that the colonies are not sovereign : not even (unless Versailles Treaty has worked a change) mi-sowverain." But th failure of this argument does not in the least afford an answer to th

the gap to which I have referred be not filled. But the gap filled by sec. 78 of the Constitution and the Commonwealth Pa ment. Sec. 78 leaves to the Federal Parliament the power t "make laws conferring rights to proceed against the Commonweé

If there were need of authority, it is to be found in the case of H. ©. or A.

South Australia v. Victoria (1). It was an action between two States as to their boundary, and the defendant urged that the action did not lie, The majority of the Court treated the claim as a claim for

property and possession or trespass. Griffith C.J. said (2): - * In sub- ,

stance the Sovereign as head of the body politic of the State of South Australia is plaintiff, and as head of the body politic of Victoria is also defendant. . . . Sofar . . . as a controversy requires for its settlement the application of political as distinguished from judicial considerations, I think that it is not justiciable under the Constitution." "' Matters " in sec. 75 are confined to matters which might come before a Court of justice - as, for instance, running agree- ments over railways. "A matter between States, in order to be justiciable, must be such that a controversy of like nature could arise between individual persons, and must be such that it can be de- termined upon principles of law. . . . In . . . trespass by one State upon territory in the de facto possession of another, I have no doubt that this Court would have jurisdiction." The late Barton and O'Connor JJ. concurred. The latter defined " matters" in sec, 75 as "matters capable of judicial determination" (3). Isaacs J. said (4) that the word "'matters' . . . includes and is confined to claims resting upon an alleged violation of some positive law to which the parties are alike subject." As for myself, I doubted whether there was any cause of action, as the State was not proprietor of the lands, but only donee of a power over them ; but I concurred with the view that the High Court had power to entertain the action under sec. 75, and to give some judgment in favour of the plaintiff, if the plaintiff had a cause of action : " Under the Constitution, it is our duty to give relief as between States in cases where, if the facts had occurred as between private persons, we could give relief on principles of law; but not otherwise " (5). Jn short, to give jurisdiction to a particular Court over actions or matters of a certain character is not to make a matter actionable or _ justiciable if it is not otherwise actionable or justiciable under some : (1) (1911) 12 C.L.R., 667. (4) (1911) 12 C.L.R., at

p.7 2) (1911) 12 G.L.R., at pp. 674-675. (5) (1911) 12 C.LR., at p. 74 (3) (1911) 12 C.L.R., at p. 708.

H.C. oF A. Jaw to which the parties are alike subject ; and the King ina

1923. of one State is not subject to any law binding him in rigl another State, or of the Commonwealth, unless by force of 5 r positive enactment ; and sec. 78 was designed to supply sue enactment, through the Federal Parliament. See. 78 has auth equal to sec. 75; and sec. 75 is to be read in the light of s This case of South Australia v. Victoria (1) was taken to the Council on appeal (2), and was affirmed on the merits ; but, ing to the report of the arguments, counsel for the State Victoria did not again raise its point that the action did not lie, decision of the High Court that the action did lie, therefore, ren undisturbed.

I pass on now to consider how the Federal Parliament has ma use of its power under sec. 78 of the Constitution - what laws ith made " conferring rights to proceed against the Commonwealt a State." To this end Part IX. of the Judiciary Act was enacted 1903 - headed "Suits by and against the Commonwealth States." & the Commonwealth, whether in contract or in tort," to bring as "against the Commonwealth in the High Court or in the Sup a Court of the State in which the claim arose," but sec. 57 provi what I regard as an exception - that where a State makes the cl

against the Commonwealth the suit may be brought in the Court. There is no power for a State to sue the Commonwi the Supreme Court. So far as to suits against the Commonwe Then sec. 58 enables " any person making any claim against a whether in contract or in tort, in respect of a matter in which t High Court has original jurisdiction " (see. 75) " or can have origi jurisdiction conferred on it " (see. 76), to " bring a suit agai State in the Supreme Court of the State, or (if the High Court original jurisdiction in the matter) in the High Court " ; but 59 provides what again seems to be an exception - that where State makes a claim against another State it may bring the s the High Court. It is clear that secs. 58 and 59 are mutually cot plementary, dealing with suits against a State, just as secs, 56. 57 are mutually complementary, dealing with suits agai =

Commonwealth. The only question is, do the words " any person" in sec. 58 include the Commonwealth as a plaintiff against a State ? Now, at the time that the Judiciary Act 1903 was passed, the Acts Interpretation Act 1901 was on the statute book; and by sec. 22 thereof it was enacted that "In any Act, unless the contrary inten- tion appears, 'Person' . . . shall include a body politic or corporate as well as an individual." Prima facie, therefore, the Commonwealth can bring an action against a State "unless the contrary intention appears." Where does the contrary intention appear? Counsel for the State here rely on the special provision as to State suing State contained in sec. 59, and say that that special provision is useless if "'any person" in sec. 58 includes bodies politic (the Commonwealth is a body politic) under " any person." But this sec. 59, as to State suing State, is probably due to the special provision in sec. 75 (1v.) of the Constitution giving the High Court jurisdiction in matters "between States"; and, having exhausted the provision of sec. 75 (11.) as to suits to which the Commonwealth is a party, it may well have been thought necessary to make it clear that suits between States are to be brought in the High Court only. It may well have been thought that no Court but the High Court should have the formidable power to grant and enforce an injunction against the State and its officers ( 60). But, whatever the explanation, sec. 61 allows the name of the Com- monwealth to be used in " suits on behalf of the Commonwealth," just as sec. 62 allows the name of the State to be used in suits on behalf of the State ; and there is no limitation of sec. 61 to suits on behalf of the Commonwealth against individuals. That Parliament

had the widest definition of " person" in mind when it framed Part s sec.

IX. appears also from sec. 67, taken with sec. 65; for, where: 65 forbids execution against property of the Commonwealth or of a

State, sec. 67 provides for such execution when in any tit a judg- ment is given in favour of the Commonwealth or of a State and against "any person." It can hardly be contended that "any person " in sec. 67 does not include bodies corporate, such as limited companies.

The heading of Part IX., too - * Suits by and against the Common-

wealth and the States "' - favours the view that the Commonwealth

H.C. or A. can sue the States as the States can sue the Commony 1923. Unless "any person " in sec, 58 includes the Commonwealth, Tae no provision whatever in Part IX. enabling the Commonwe

Commos- Sue the States, although the States can sue the Commonwealth |

. we should not act on such an absurd conclusion unless forced

Ww "unless the contrary intention appears." The contrary inter

Higgins J. must " appear " - not be a matter of surmise. i In my opinion, therefore, the Commonwealth is enabled to this suit by the Judiciary Act ; and the summons to set

service of the writ or to stay proceedings should be dismissed,

ren tg ees Solicitor for the plaintiff, Gordon H. Castle, Crown Solicitor for tl Seg ADD, Commonwealth. Nene es, a Me ee Solicitors for the defendant, Norton, Smith & Co.| Inthe

gee [HIGH COURT OF AUSTRALIA.} KING: 1; : M & " t rs ! . Appr Derenvant, AND POGGIOLI - . 3 F Z 5 z . Respon PLAINTIFF,

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

H.C. or A. Vendor and Purchaser - Day named for delivery of possession - Refusal to give p 1922-1993. sion on day named - Suit for specific performance - Jurisdiction of Co Ronee Lquity to award damages arising out of refusal to give possession - Readii Sypyey, willingness - Abatement of purchase-money - Diminution or deterioration in Sept. of properly - Breach of contract - Measure of damages - Equity Act | (N.S.1.) (No. 24 of 1901), sec. 9.*

1923, By an agreement in writing the appellant agreed to sell to the respond certain pastoral property, and it was thereby provided that di y

Higgins and * Sec. 9 of the Eyuwity Act 1901 tract, covenant, or agreement

Starke JJ. (N.S.W.) provides that "In all cases Court may award damages to the p in which the Court has jurisdiction to injured either in addition to or in entertain an application . . . for stitution for such . . . the specific performance of any con- performance,"