Crouch v Commissioner for Railways

Crouch v Commissioner for Railways - [1985] HCA 69 - HCA 1980 case summary — Zoe

[18]

There is the strongest presumption that in using the expression "or person suing or being sued on behalf of the Commonwealth" the framers of the Constitution were not concerned with the Attorney-General or any other officer by or through whom the Crown might come or be brought into court. In s. 75(iv), referring to the States as parties, there is no concern on this procedural topic. But what they were concerned with was amenability to the jurisdiction of persons in whom causes of action were vested, or against whom causes of action lay, but in their official capacity only and as agencies or emanations of the Commonwealth. After discussing the history of the provision, and in particular the manner in which the courts of the United States had dealt with s. 2 of Art. III of the American Constitution, Dixon J. expressed his conclusion as to the effect of s. 75(iii) as follows [10] : There is no reason to treat the words in question as anything but an endeavour to ensure that, for the purposes of the jurisdiction, the conception of the Commonwealth included the agents and instrumentalities of the Commonwealth suing or being sued in their official or governmental capacity and so "on behalf of the Commonwealth." In my opinion so understood the provision covers the Commonwealth Bank as a corporate agency of the Commonwealth The opinion of Dixon J., with whom the other members of the majority agreed [11] , was that the words "or a person suing or being sued on behalf of the Commonwealth" in s. 75(iii) were not limited to a person appointed as a nominal defendant to represent the Commonwealth for procedural purposes but extended to persons who acted as "agencies or emanations of the Commonwealth". His remarks suggest that he considered that s. 75(iv) would extend to nominal defendants who represented the State for procedural purposes even though that provision did not contain words which corresponded to those of s. 75(iii), but he perhaps implied that s. 75(iv) did not go any further. However, the case did not decide any question arising under s. 75(iv). The actual decision of the majority of the Court on this point was that the provisions of the Banking Act 1947 Cth which purported to give exclusive jurisdiction to a new Federal Court of Claims in proceedings against the Commonwealth Bank for compensation invalidly attempted to oust the jurisdiction of the High Court under s. 75(iii). 1. (1948) 76 C.L.R., at p. 363. 2. (1948) 76 C.L.R., at p. 367. 3. (1948) 76 C.L.R., at pp. 275-276, 321-323.

[43]

When the word "matter" is used in Ch. III of the Constitution in its ordinary prima facie sense of the subject matter for determination in a legal proceeding rather than the legal proceeding itself, it focuses attention upon the substance of the dispute. As so used, the word is a word of wide connotation: it is, and was in 1900, "the widest term to denote controversies which might come before a Court of Justice": per Griffith C.J., South Australia v. Victoria [38] ; Philip Morris [39] ; Fencott v. Muller [40] . It is so used in relation to s. 75(iv) of the Constitution which refers to "matters between" designated parties. The consequence is that the question whether a particular "matter" lies within the original jurisdiction of the Court under s. 75(iv) as a matter "[b]etween States" or as a matter "between a State and a resident of another State" falls to be determined by reference to the substantial subject matter of the controversy and not by reference only to the form in which the legal proceedings involving it happen to be framed. That this is so accords well with what would appear to be the rationale of the relevant conferral of original jurisdiction by s. 75(iv), namely, that justiciable disputes between States or between a State and a resident of another State should be amenable to the jurisdiction of the principal court of the new federation. In a context where the established method of proceeding against one or other of the federating colonies was by an action against a person named as a nominal defendant (see, e.g., Quick and Garran, op. cit., pp. 805-806), it can scarcely have been the intention of the framers of the Constitution that the original jurisdiction of the Court in relation to a matter of dispute between States or between a State and a resident of another State should be determined according to whether a State sued or was sued in its own name as a party or whether an appropriate State Minister, officer or instrumentality or a nominal defendant sued or was sued on its behalf.

[45]

Examination of the provisions of the Act discloses that the Commissioner is an instrumentality of the State of Queensland through which the executive government of the State discharges an important part of its governmental functions. It has long been recognized in this Court, as indeed it was recognized by the Constitution itself (see, e.g., s. 51(xxxii), (xxxiii) and (xxxiv) and s. 102), that the conduct of railways is, as a matter of history, an established and "very large and important part" of government in this country: Federated Amalgamated Government Railway and Tramway Service Association v. N.S.W. Railway Traffic Employees' Association [41] , and see also Bradken Consolidated Ltd. v. Broken Hill Proprietary Co. Ltd. [42] . In each of the federating colonies, "the actual administration of the railways was entrusted to a body specially constituted under State law for the purpose, but the revenue from the railways was State revenue, and the obligations incurred by their managers were State obligations": N.S.W. Railway Traffic Employees' Association Case [43] . This position continues in Queensland. Under the Act, the Commissioner is an instrumentality, agent or authority of the Crown in right of Queensland: see Bradken Consolidated Ltd. [44] . While the Act "does of course leave the Commissioner with some discretionary powers, in many important respects it subjects him to direct control either by the legislature (e.g., ss. 33-35), the Governor in Council (e.g., ss. 38, 42A, 71, 75A, 75B and 128) or the Minister (e.g., ss. 94, 95, 97)": per Gibbs A.C.J., Bradken Consolidated Ltd. [42] and see also s. 6(2) of the Act. All moneys payable to the Commissioner "shall be collected and received by him on account of and shall be paid into the Consolidated Revenue" (s. 99). The contracts of the Commissioner are of no force or effect unless and until ratified by the Minister (s. 95(1)). The funds of the Commissioner must be appropriated by Parliament from Consolidated Revenue: see, e.g., ss. 93, 94) and the Financial Administration and Audit Act 1977 Q. and any other Queensland Act relating to the collection and payment of public moneys and the audit of the public accounts are made generally applicable to the Commissioner and to all employees under the Act (s. 99). To borrow from words used in judgments in this Court in Bank of N.S.W. v. The Commonwealth ("the Banking Case") [45] and in Inglis v. Commonwealth Trading Bank of Australia [46] , the intention of the Parliament of Queensland as evidenced by the Act was "to transmute a part" of the Government of the State "into the outward form of a corporation as a convenient means of carrying on" a traditional government activity with the result that when the Commissioner is sued, as in the present case, he is "sued as being the emanation by which" the State of Queensland discharges its governmental activities in relation to railways.

[49]

Section 75(iii) was based upon Art. III of the United States Constitution. The words "or a person suing or being sued on behalf of the Commonwealth" were apparently added, in s. 75(iii), to ensure that the technical interpretation which had initially been given to the words "controversies to which the United States shall be a party" in Art. III was not applied to confine the grant of jurisdiction in s. 75(iii) in "matters [i]n which the Commonwealth is a party" to legal proceedings in which the Commonwealth itself as such was "the party named in the record": see Osborn v. Bank of the United States [48] ; see also R. v. Murray and Cormie; Ex parte The Commonwealth [49] ; and note United States v. Lee [50] , Ex parte Ayers [51] , Stanley v. Schwalby [52] . The words were intended "to ensure that, for the purposes of the jurisdiction, the conception of the Commonwealth included the agents and instrumentalities of the Commonwealth suing or being sued in their official or governmental capacity": per Dixon J., the Banking Case [53] . That narrow technical interpretation had, however, been initially attributed to those words of Art. III in the limiting context of a need to restrain the operation of the doctrine of immunity of the United States against suit without legislative consent: see per Frankfurter J., speaking for the United States Supreme Court, in Keifer v. Reconstruction Finance Corporation [54] , quoted by Dixon J. in the Banking Case [53] . Such a doctrine was not operative within this country and the reference to "matters" in which "the Commonwealth" is "a party" in s. 75(iii) has not been construed, as it conceivably could have been (cf. per Latham C.J., Carter [55] ), as importing a requirement that the Commonwealth itself be actually and properly named as a party on the record: cf. Maguire v. Simpson [56] . Nor have the additional words ("or a person suing or being sued on behalf of the Commonwealth") been seen in this Court as confining the ambit of the reference to "matters" in which "the Commonwealth is a party". In the Banking Case [57] Dixon J. appeared to treat the additional words as having been added merely ex abundanti cautela. In Inglis v. Commonwealth Trading Bank of Australia [58] , Barwick C.J. indicated a preference for the view that the action against the Bank, an instrumentality of the Commonwealth, lay within the jurisdiction conferred by s. 75(iii) for the reason that the matter was "one in which the Commonwealth was a party" rather than that it was one in which a person was sued "on behalf of the Commonwealth". Kitto J., [59] with whose judgment Windeyer J. agreed, expressed the conclusion that the case came within the additional words of s. 75(iii) in that the Bank was sued "on behalf of the Commonwealth". As Mason J. pointed out in Maguire v. Simpson [60] , however, there is much in the reasoning of Kitto J. which tends rather to support the conclusion reached by Barwick C.J. that the "matter" should be viewed as one in which the Commonwealth itself was a party. In Maguire v. Simpson, Mason J. [61] certainly and Murphy J. [62] seemingly preferred the conclusion of Barwick C.J. in Inglis [63] . The third member of the Court who had occasion to indicate a view in that regard, Jacobs J., was at pains to emphasize that the additional words in that paragraph should not be construed as limiting either the reference to "the Commonwealth" as a party or the reference to "the Commonwealth" in s. 78 of the Constitution. His Honour said [64] :

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Judgment (52 paragraphs)

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