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[1971] HCA 45
High Court of Australia
1971-07-01
Gibbs JJ, McTiernan J
Original judgment source is linked above.
High Court of Australia McTiernan, Menzies, Windeyer, Owen and Gibbs JJ. Downs v Williams [1971] HCA 45
ORDER Appeal allowed. Order of the Court of Appeal set aside. In lieu thereof order that the appeal of the appellant to that Court from the District Court be allowed with costs. Costs of the appeal to this Court to be paid by the appellant pursuant to the order granting special leave to appeal.
In this case the plaintiff (respondent) by his next friend sues the defendant (appellant) who is a nominal defendant duly appointed pursuant to s. 3 of the Claims against the Government and Crown Suits Act, 1912 N.S.W., for damages for personal injuries which the plaintiff alleges that he suffered while operating a grinding wheel at Bankstown Technical College where he was a pupil. He alleged in his particulars of claim that the Government of New South Wales, whom the defendant represents, is liable in damages for conduct contrary to certain sections of the Factories, Shops and Industries Act, 1962 N.S.W. which deal with the fencing of dangerous machinery. Bankstown Technical College was alleged to be in the care and control of the Government of New South Wales and also to be a factory within the meaning of the Factories, Shops and Industries Act.
In the first place the Factories, Shops and Industries Act does not in express terms bind the Crown and there are no words in the Act which clearly imply the intention that the Crown should be bound by the Act or any provision of it. But the defendant relies upon s. 3 and s. 4 of the Claims against the Government and Crown Suits Act as imposing liability on the Government of New South Wales for the plaintiff's injuries. These sections read as follows:
3 (1). Any person having or deeming himself to have any just claim or demand whatever against the Government of New South Wales may set forth the same in a petition to the Governor praying him to appoint a nominal defendant and the Governor may appoint any person resident in New South Wales to be nominal defendant accordingly.
The respondent contended that the effect of these sections was to equate the position of the Crown with the position of the subject, thereby making the Crown liable for a breach of statutory duty even though the statute did not bind it. Thus the Crown, while never actually bound by the Factories, Shops and Industries Act, is treated in the same way as persons who are bound by the Act. It is to be observed that on this reasoning the Crown could nevertheless be liable in damages even though a particular statute expressly provided that it did not bind the Crown.
It must be borne in mind however that it is the rights of the parties in the suit in question, rather than the law, which are to apply as nearly as may be as if between subject and subject. This point was made with reference to s. 64 of the Judiciary Act 1904-1969 Cth by Dixon C.J. in The Commonwealth v. Anderson [1] when his Honour said:
It is perhaps not unimportant to bear in mind that it is the rights of parties as in a suit between subject and subject, not the law, that are to apply as nearly as may be. In such a case as this therefore it is only after it has been ascertained that a statutory duty is imposed on the Crown that the rights between the parties are determined by the general law applicable as between subject and subject. The plaintiff must show therefore that he has a cause of action upon the proper construction of the Factories, Shops and Industries Act. In my opinion such a cause of action has not been shown. 1. (1960) 105 C.L.R. 303, at p. 310.
I do not consider that the decision of Farnell v. Bowman [1] assists the plaintiff's submissions. It was there decided that actions in tort against the Government of New South Wales were sanctioned by s. 3 and s. 4 of the Act and that this sanction constituted new remedies against the Crown. In Farnell v. Bowman [1] the Government had breached its duty of care at common law with respect to the defendant. The determination in that case does not support the imposition of liability on the Crown in this case where there was no duty of care breached.
The respondent relied also on a decision of this Court on the construction of s. 64 of the Judiciary Act: Asiatic Steam Navigation Co. Ltd. v. The Commonwealth [2] . That decision allowed to the defendant, the Crown in right of the Commonwealth, which had conceded liability in tort, a defence which would have been open to a subject in the same circumstances. It is of course a different question which confronts the Court on this occasion.
This construction of the Act makes it unnecessary for me to consider whether it might be said that the plaintiff could not succeed because he did not in fact have a just claim or demand against the Government of New South Wales pursuant to s. 3 (1) of the Act for the reason that the Crown had breached no duty imposed upon it, statutory or otherwise.
This appeal from a decision of the Court of Appeal of the Supreme Court of New South Wales raises a short but novel point of law.
The plaintiff sued a nominal defendant appointed under s. 3 of the Claims against the Government and Crown Suits Act, 1912 N.S.W., for damages for injury alleged to have resulted from breaches of the statutory obligations imposed by s. 27 of the Factories, Shops and Industries Act, 1962 N.S.W., upon occupiers of factories. This statute I shall call "the Act". Breaches of statutory obligations are offences and may, of course, give rise to civil proceedings for damages in the event of breaches causing injury to persons within the protection of the Act. The Act neither expressly, nor by necessary implication, subjects the Government of New South Wales to any of the obligations imposed thereby, and, in accordance with established principles of statutory construction, the Government is not bound by the Act, nor are any employees of the Government protected thereby.
Nevertheless it has been held, both by the District Court and by the Court of Appeal in civil proceedings, that the Government of New South Wales is, in the action, subject to the provisions of the Act by reason of ss. 3 and 4 of the Claims against the Government and Crown Suits Act, 1912. These sections are as follows:
(1) Any person having or deeming himself to have any just claim or demand whatever against the Government of New South Wales may set forth the same in a petition to the Governor praying him to appoint a nominal defendant in the matter of such petition, and the Governor may by notification in the Gazette appoint any person resident in New South Wales to be a nominal defendant accordingly.
(2) If within one month after presentation of such petition no such notification is made, the Colonial Treasurer shall be the nominal defendant.
Ordinarily in a case between subject and subject the Act would, where it is in point, apply in relation to both parties, and, it is said, because the Act is in point in this case, it has, by virtue of the foregoing sections, been made to apply to the Government of New South Wales so that, by force of the sections, that Government is, in the action, under the same obligations to the plaintiff as a subject occupier would have been. This contention raises the question whether or not the Act is in point in this case when, upon its proper construction, it does not bind the Government of New South Wales or entitle the plaintiff to protection against the Government of New South Wales. Although the word "parties" in s. 4 of the Claims against the Government and Crown Suits Act, 1912, seems in strictness to refer to the petitioner who sues and the nominal defendant who is sued, it is no doubt the intention of the section to treat the Government of New South Wales as the real party in a case commenced pursuant to the section: see ss. 9 and 11. This construction, however, does not necessarily impose upon the Government of New South Wales obligations under statutes which, upon their proper construction, confer no rights upon the plaintiff against the Government. Nevertheless, the effect of what has been decided is that, upon the commencement of the action here, the Government of New South Wales became subject to obligations which clearly enough did not apply as between the plaintiff and the Government at the time when the events giving rise to the so-called obligations occurred. To state the effect of the decision in this way is, of course, to raise doubts about its correctness.
It seems to me that the Act is not in point in this case because, upon its proper construction, it does not confer the right which the plaintiff is asserting. The Claims against the Government and Crown Suits Act is not, as I see it, an Act which amends or modifies the operation of other Acts of Parliament, either State or Commonwealth, to bring the Government of New South Wales within their scope, as it were, for the purposes of a particular proceeding.
It has been claimed, however, that the decision of the Privy Council in Farnell v. Bowman [1] , requires a contrary decision. I do not think so. In that case it was decided that ss. 3 and 4 do authorize actions in tort against the Government of New South Wales. In the case of torts the sections do provide a right against the Government of New South Wales which had not previously existed but this is a long way from the conclusion that, once an action for breach of statutory duty on the part of the Government of New South Wales is commenced, the statute imposing obligations, which, upon its proper construction, does not bind the Government, is, thereafter and for the purposes of the case, to be regarded as binding the Government ex post facto. Perhaps the most important sentence in the judgment of the Privy Council is this [2] :
Thus, unless the plain words are to be restricted for any good reason, a complete remedy is given to any person having or deeming himself to have any just claim or demand whatever against the Government. 1. (1887) 12 App. Cas. 643. 2. (1887) 12 App. Cas., at p. 648.
The sections, therefore, confer a remedy for a just claim or demand. How can a claim against the Government, under a statute which does not bind it, be, or be deemed to be, a just claim?
It was also sought to rely upon the decisions of this Court relating to s. 64 of the Judiciary Act Cth and in particular upon Asiatic Steam Navigation Co. Ltd. v. The Commonwealth [1] and The Commonwealth v. Anderson [2] .
Although I consider that s. 64, because of its different terms and because it applies to States as well as the Commonwealth, does give rise to problems different from those raised by ss. 3 and 4 of the Claims against the Government and Crown Suits Act, I do recognize that certain observations by Kitto J. in the earlier case support the contentions of the respondent here. To those observations I have referred in the later case expressing my reservations about them: see [3] . Those reservations I still have. I do not accept the view, for instance, that sections such as those under consideration, and s. 64 itself, take up and enact, as the law to be applied in every case where a government is a party, provisions of statutory law which do not, upon their own terms, apply to a government. I prefer what Fullagar J. said in relation to s. 64 of the Judiciary Act in Asiatic Steam Navigation Co. Ltd. v. The Commonwealth [4] , namely:
But, in my opinion, the effect of s. 64 is not to make applicable either in favour of the Commonwealth or against it a statute the express terms of which exclude the Crown. For the purposes of suits to which the Commonwealth is a party, the general law as between subject and subject is to apply. But this general enactment cannot be regarded as derogating from any special enactment which by its own terms is made either applicable or inapplicable to the Commonwealth. Although the Canadian statute there in question was less explicit than our s. 64, I think that what Viscount Simonds said in Nisbet Shipping Co. Ltd. v. The Queen [5] , is appropriate to the present case. His Lordship there said: "It appears to their Lordships that there is no sufficient justification for saying that, because the Exchequer Court in the exercise of its jurisdiction applies to proceedings between subject and Crown the law which it applies between subject and subject, therefore it should apply even that law which by the terms of the statute enacting it is expressly excluded from application to the Crown" [6] . The position may perhaps be tested by supposing that the Commonwealth sues in ejectment the tenant of land owned by it, and the defendant relies on State legislation which restricts the rights of landlords to eject tenants. That legislation does not, and in my opinion as a matter of constitutional law could not, bind the Commonwealth. Could it possibly be said that the effect of s. 64 was to place the Commonwealth in its ejectment action in the position of a subject in respect of that legislation? See The Commonwealth v. Bogle [7] . This statement, which, as the concluding words show, is not limited to statutes containing particular provisions excluding its application to the Commonwealth, forecast the decision in The Commonwealth v. Anderson [1] . 1. (1960) 105 C.L.R., at pp. 317 and 318. 2. (1956) 96 C.L.R., at p. 424. 3. [1955] 1 W.L.R. 1031. 4. [1955] 1 W.L.R., at p. 1036. 5. (1953) 89 C.L.R. 229. 6. (1960) 105 C.L.R. 303.
It was pointed out by this Court in Enever v. The King [2] , that great importance must be attached to the words "as in an ordinary case between subject and subject" at the end of s. 4. There it was decided that, although an action would lie against a peace officer for unjustifiable acts done in the intended exercise of his lawful authority, a section of the Crown Redress Act 1891 Tas., corresponding with the New South Wales provisions, did not authorize a person claiming to have been wrongly arrested by a constable to bring an action against the Government. It does not follow that, because some subjects are liable to other subjects for damages caused by breaches of the Act, the Crown is made liable to the plaintiff as if it were a subject with obligations to the plaintiff imposed by the Act. Where, by reason of a law of general application, one subject may sue another, it may be that the Government, by virtue of the sections in question, is made liable if it causes damage that would be recoverable from it, had it been a subject. It seems to me, however, an altogether different proposition to treat the Claims against the Government and Crown Suits Act as imposing upon the Government obligations which are of particular, and not of general, application. Upon the proper construction of the Act the Government of New South Wales was not the occupier of a factory for its purposes and the plaintiff was not a person entitled to the protection of the provisions of the Act. I find nothing in ss. 3 and 4 to change this. It is to be remembered that, in earlier times, although the Crown could not be sued, Crown servants could be sued for wrongful acts done in the course of their service. No doubt the prime object of laws such as s. 3 of the Act was to render the Crown liable as well as the Crown servant. It would be going far beyond this purpose to treat the section as imposing liability upon the Crown independently of any fault of its servants and by virtue of a law not binding the Crown.
The question of law in this case is whether the Crown in right of the State of New South Wales must, if it conducts a factory, conform to obligations that are imposed upon occupiers of factories by the Factories, Shops and Industries Act, 1962 N.S.W., to fence dangerous machinery; and whether, if it allows a dangerous machine in its factory to be unfenced, it is liable in damages to a person who is thereby injured.
The appellant contends that there is no such obligation upon the Crown, and consequently no liability. The Act, it is said, does not bind the Crown. This proposition awakens a remark that, in the reign of Queen Elizabeth I, Anthony Browne J. made. He was the man whom Plowden, his contemporary, described as "a judge of profound learning and great eloquence" and praises of whom in Latin verse he quoted in his Reports (pp. 356, 376). In the course of his long and strong judgment in Willon v. Berkley [1] in speaking of De Donis Conditionalibus as "intended to redress a mischief and a grievance at the common law" he said [2] :
So that by the judgment of the Act, such alienation was a tort and a wrong. And he that will maintain that the King is in a degree to make such alienation, must at the same time maintain that the King may do wrong, and that the law suffers him to do wrong, which none can maintain; and it is a difficult argument to prove that a statute, which restrains men generally from doing wrong, leaves the King at liberty to do wrong. However, counsel for the appellant, with much that has been said in the four hundred years since that was said to aid him, essayed this "difficult argument". And today the Crown might well retort, in answer to the passage I have cited, saying that the Factories, Shops and Industries Act made by the Parliament of New South Wales in 1962 is not to be likened, for any purpose, to 13 Edward I c. 1, made at Westminster in 1285, although both were "intended to redress a mischief and a grievance at the common law". But it is not to look back to the sixteenth century that I have quoted what Browne J. then said. It is because I believe that the common law can in the twentieth century continue to keep pace with the public interest and meet changing needs of men. Governments are today entering more and more into fields that used to be left to private enterprise. Directly or by their agencies, Governments engage today in a variety of commercial and industrial undertakings. Modern statutes ought I think to be read with that, as well as ancient dogmas, in mind. In an era of increasing state socialism I do not think that the Crown, if it conducts a factory, is necessarily to be regarded as exempt from the responsibilities for the safety of persons employed there which the Parliament imposes upon subjects of the Crown who conduct factories. If it be said that these are illegitimate considerations, I can only say that I do not think so. I consider that they accord with matters that have influenced the interpretation and application of Acts of Parliament in the past and which can properly do so still, and that such considerations have promoted the progress and development of the common law from the Middle Ages until today. In Sydney Harbour Trust Commissioners v. Ryan Griffith C.J. said [1] : I am of opinion that, when the Government of New South Wales engages, either in its own name or through the agency of a corporation created for the purpose, in enterprises which in former times were only carried on by individuals, it is subject to the same liabilities, and is governed by the same laws, to and by which individuals are subject and governed under the same circumstances. That may be too widely stated as a general proposition. Nevertheless, despite the scepticism of it that Jordan C.J. expressed in North Sydney Municipal Council v. Housing Commission (N.S.W.) [2] , I accept it as a recognition of a factor relevant in any consideration of the bearing of a modern statute upon activities of the Crown. What I have said is a confession of my predilection: but it does not mean that I would abandon precedent for some presupposition of policy as I turn now to the present case. 1. (1561) 1 Plowd. 223, at p. 245 [75 E.R. 339., at p. 375]. 2. (1561) 1 Plowd., at p. 248 [75 E.R., at p. 380]. 3. (1911) 13 C.L.R., at pp. 366-367. 4. (1948) 48 S.R. (N.S.W.) 281, at pp. 286-287; 17 L.G.R. (N.S.W.) 26, at pp. 30-31.
The respondent is the plaintiff in an action in the District Court at Sydney, which was commenced in 1968. He was then nineteen years of age. He sued by his next friend. According to the particulars of claim filed and certain additional particulars supplied to the defendant, the plaintiff alleges that at the time of the events sued upon he was employed as an apprentice sheet-metal worker; and that while so employed he was a part-time pupil learning his trade at the Bankstown Technical College; that there, when working at a grinding wheel, his right thumb was caught in the machine and hurt, affecting for a time his use of his hand. The Bankstown Technical College is an establishment of the New South Wales Government controlled by the Department of Technical Education, under the Minister for Education, pursuant to the Technical Education Act, 1949 N.S.W. as amended. The appellant is a nominal defendant appointed pursuant to the Claims against the Government and Crown Suits Act, 1912 N.S.W. to represent the Crown. I shall hereafter refer to the respondent and the appellant as "the plaintiff" and "the Crown" respectively.
The plaintiff's particulars of claim contain four counts. The first two are framed as causes of action at common law: one in negligence, the other on an implied premise that the premises and equipment where, for reward to the Crown, the plaintiff was to receive instruction were reasonably safe. The remaining two counts allege breaches of the duties of an occupier of a factory, under s. 27 of the Factories, Shops and Industries Act, requiring him to fence securely any dangerous machine in his factory and to maintain the fencing in an efficient state. These two counts depend on an allegation that the Bankstown Technical College is a "factory" within the meaning of the Act.
I may at this point say that I agree entirely in the criticism of the course of the proceedings that my brother Gibbs has expressed in his judgment, which I have had the benefit of reading. The Crown, not waiting to know what evidence the plaintiff would adduce to support his case, moved to strike out the two counts based upon the alleged breach of a statutory duty. The learned District Court judge felt obliged to deal with this motion as if it were a demurrer to a pleading, assuming that is to say that the facts as alleged were true and that the place was a factory as defined in the Act. He delivered a carefully considered judgment on the question of law thus propounded and dismissed the motion - rightly in my view. The Crown appealed from this ruling. The Supreme Court, Court of Appeal Division, upheld it. The Crown now appeals to this Court and seeks to have the judgment of the Supreme Court reversed. The Commonwealth has by leave intervened. Thus we have heard elaborate arguments on a question of law that is academic if the place where the plaintiff was hurt was not a factory as defined. And it is quite possible that when the facts are tried it will be found that it was not. A claim brought in the District Court for a small personal injury, a hurt thumb, has grown into protracted and costly proceedings to determine a difficult, important, but in the present case possibly irrelevant moot point. However, in the circumstances, we cannot now remit the case for a trial of the issues of fact under all counts, as I think that the Supreme Court should have done before entering upon the issues of law. We must proceed on the assumption that the area in the Bankstown Technical College where there was a grinding machine to be used by pupils was a factory and decide whether on that assumption a duty was imposed upon the Crown by s. 27 of the Act.
Meantime the common law counts await trial. And they raise important, and possibly decisive, issues which do not depend upon the Technical College being a factory. It is now indisputable that in New South Wales the Crown has a common law duty of reasonable care for every pupil in a State school; and that a breach of this duty is an actionable tort: Ramsay v. Larsen [1] . On the trial of the common law counts a failure to provide fencing for dangerous machinery, such fencing being reasonably practicable, would as I see the matter be evidence of a lack of care supporting the count in tort for negligence or the count for breach of contract to provide safe premises and equipment. Passages in the judgments in the House of Lords in Lochgelly Iron and Coal Co. Ltd. v. M'Mullan [2] , seem to me to support the view, held in the United States, that statutory requirements may shew what reasonable care would demand. But I realize that this is a debatable question on which varying statements can be arrayed. It does not have to be decided here. I therefore content myself by referring to Winfield on Tort, 8th ed. (1967), pp. 140-142.
In America breaches of statutory duties relating to safety in industrial operations tend to be regarded as a form of negligence. But in England and here they are generally considered as a sui generis tort. In London Passenger Transport Board v. Upson [3] , Lord Wright said:
The statutory right has its origin in the statute, but the particular remedy of an action for damages is given by the common law in order to make effective, for the benefit of the injured plaintiff, his right to the performance by the defendant of the defendant's statutory duty. It is an effective sanction. It is not a claim in negligence in the strict or ordinary sense whatever the resemblances, it is essential to keep in mind the fundamental differences of the two classes of claim. 1. [1949] A.C. 155, at p. 168.
And his Lordship added that the two claims should be separately pleaded - as they were in the present case - as "the due consideration of the claim for breach of statutory duty may be prejudiced if it is confused with the claim in negligence". The need to keep the two causes separate is the more important in a case like the present, because s. 27 (5) of the Act makes the duty to fence imposed on the occupier of a factory "an absolute duty in no way qualified by any other provision of this Act". And a statutory duty may be more rigorous, as well as more precise, than the requirements of reasonable care. The case of John Summers & Sons Ltd. v. Frost [4] is an illustration of that; and the resemblance of the facts there to those of the present case would no doubt encourage the plaintiff's advisers to pursue the counts based on the statute. The proprietor of a factory may by his conduct be in breach of both a common law duty of care and of a statutory duty: National Coal Board v. England [1] ; or he may contravene one and not the other. They provide a plaintiff who is injured with alternatives in a sense, as they give rise to only one assessment of damages for personal injuries: Graham v. C. E. Heinke & Co. Ltd. [2] .
There is no need to discuss here the rationale of the rule that breach of a duty by a person upon whom that duty is cast by statute gives rise to a private right of action in some cases. Doctrine and decisions have fluctuated: see articles by Mr. G. L. Fricke, The Juridical Nature of the Action upon the Statute, Law Quarterly Review (1960), vol. 76, p. 240, and Professor Glanville Williams, The Effect of Penal Legislation in the Law of Tort, Modern Law Review (1960), vol. 23, p. 233. It is enough for us to accept and rely upon the analysis by Dixon J. in O'Connor v. S. P. Bray Ltd. [3] , especially the passage [4] :
Whatever wider rule may ultimately be deduced, I think it may be said that a provision prescribing a specific precaution for the safety of others in a matter where the person upon whom the duty laid is, under the general law of negligence, bound to exercise due care, the duty will give rise to a correlative private right, unless from the nature of the provision or from the scope of the legislation of which it forms a part a contrary intention appears. The effect of such a provision is to define specifically what must be done in furtherance of the general duty to protect the safety of those affected by the operations carried on. 1. (1937) 56 C.L.R. 464. 2. (1937) 56 C.L.R., at p. 478.
To succeed in a claim for damages for breach of a statutory duty causing him harm, a plaintiff must shew that the defendant was a person on whom the statute cast the duty: that he, the plaintiff, was a person, or one of a class of persons, for whose benefit the duty was created: that the defendant failed to perform the duty: that this failure gave rise to a civil right of action.
However the doctrine be explained, whether by a presumed intention of the legislature or on less hypothetical grounds, it is now beyond question, as the result of many decisions, that a failure to comply with a statutory duty to fence dangerous machinery creates a civil right of action. In New South Wales the duty is cast upon a person who is the "occupier" of a "factory" within the definitions in the Factories, Shops and Industries Act, 1962-1966, which I shall for convenience hereafter call the Factories Act. The question is whether when the Crown is such an occupier of a factory it incurs the same obligations and liabilities as are by the Act cast upon other factory occupiers. The Supreme Court found the answer to this in the Claims against the Government and Crown Suits Act, 1912, which I shall call the Claims against the Government Act. Their Honours' reasons were given by Mason J.A. in a judgment with which Sugerman P. and Manning J.A. agreed. I reach the same conclusion as their Honours did, but by a different path which I must therefore set out.
The question whether the Crown is bound by an Act of Parliament, the time honoured phrase, is not to be understood as asking is every provision of a statute having miscellaneous provisions on various topics applicable to the Crown. It is whether a particular enactment of it applies to the Crown. That is because of the rule, now stated in s. 11 of the Interpretation Act of 1897 N.S.W. - which descends from s. 2 of the Acts Shortening Act, 16 Vict. No. 1 (1852) N.S.W. - that "every section of an Act shall have effect as a substantive enactment without introductory words". The question in this case thus becomes: Does s. 27 of the Factories Act, imposing the duty to fence machinery in a factory, apply to the Crown? That is not I think answered by saying, as the Supreme Court in effect said, that the Act does not of its own force bind the Crown, but that nevertheless the Claims against the Government Act gives a right of action against the Crown for a breach of its provisions. The proper inquiry is I think whether s. 27 of the Factories Act itself imposes a duty on the Crown along with other factory occupiers, which duty is in the case of the Crown enforceable by a civil action by virtue of the Claims against the Government Act. The primary question seems to have been obscured in the courts below because it was apparently conceded by the plaintiff that the Factories Act did not apply to the Crown. I agree that in the absence of the Claims against the Government Act it would not of itself impose any duty in the legal sense upon the Crown, because it itself proffers no form of redress against the Crown. But it and its predecessor, the Factories and Shops Act of 1896, were enacted when by statute civil actions could be brought against the Government for tort.
Section 27 (4) makes a contravention by a factory occupier of the duties that s. 27 (1) prescribes punishable by a fine. This was relied upon by counsel as an indication that s. 27 as a whole has no application in factories conducted by the Crown. But that does not follow. It can be confidently assumed that Parliament did not purport to make, and probably could not make, the Crown guilty of an offence: see Cain v. Doyle [1] . But that does not mean that no duty was cast upon the Crown by the positive provisions of s. 27. It is a mistake to suppose that civil liability for breach of a statutory duty is always a correlative of, and dependent upon a criminal responsibility. That would be to take another somersault adding to the somersaults that the author of the article in volume 76 of the Law Quarterly Review that I have mentioned described as "a curious process of transition in doctrine". It was at one time considered that in cases of this sort a criminal sanction necessarily precluded a civil action. But that has not been so since Groves v. Lord Wimborne [2] . Now it is only in some cases - such as Phillips v. Brittania Hygienic Laundry Co. Ltd. [3] and Cutler v. Wandsworth Stadium Ltd. [4] - that the existence of a penalty for breach of statutory duty excludes a private right of action. Conversely, although the presence of a penal sanction is eloquent of a duty, its absence does not establish that there is not a duty. It may merely emphasize that the remedy for a breach of duty is a civil action by a person injured. Lord Simonds made that clear in the case last above mentioned. The question thus remains: Is s. 27 binding on the Crown? If it is, then the words of Bramwell B. in Ross v. Rugge-Price [5] are worth remembering:
I think that we are bound to hold this to be a case in which a private right is given to the plaintiffs, and that private right having been infringed by the defendant, and there being no statutory provision for a remedy to the plaintiffs, they are entitled to have recourse to the common law But here if there be a duty there is a statutory provision for a remedy for its breach, namely the Claims against the Government Act; and the common law would not give a remedy because at common law the Crown was not liable for damages for a tort causing personal injuries. A petition of right was not available in cases of torts that are personal wrongs as distinct from invasions of proprietary rights. The result was well put in 1820 by Chitty, The Prerogatives of the Crown, p. 240: The law will presume that the subject cannot have sustained any such personal wrong from the Crown, because it cannot afford any adequate remedy: and want of right and want of remedy are the same thing in law. This immunity of the Crown was firmly established in the nineteenth century: Tobin v. The Queen [6] ; Feather v. The Queen [7] . Whether it was always so may be questioned by going back to Year Book times: see the cases collected in the footnote to the report of Smith v. Upton [1] and articles by Sir William Holdsworth in the Law Quarterly Review, vol. 38, pp. 141-164 and 280-296. But that historical question need not detain us. 1. (1946) 72 C.L.R. 409, especially pp. 425-426. 2. [1898] 2 Q.B. 402. 3. [1923] 2 K.B. 832. 4. [1949] A.C. 398. 5. (1876) 1 Ex. D. 269, at p. 272. 6. (1864) 16 C.B. (N.S.) 310 [143 E.R. 1148]. 7. (1865) 6 B. & S. 257, at pp. 293-297 [122 E.R. 1191, at pp. 1204-1206]. 8. (1843) 6 M. & G. 251 [134 E.R. 886].
The limitations of procedure by petition of right led to amendments of the law in Australia in the middle of last century. It is said in the article in Res Judicatae, vol. 5, p. 14, to which we were referred, that the first Australian statute which made the Crown in right of a Colonial Government liable for a tort was the Queensland Act of 1866, 29 Vict. No. 23. But that is not so. The first Act in an Australian colony enabling actions against the Government was Act No. 6 of 1853 of the Parliament of South Australia, now ss. 74-77 of the Supreme Court Act, 1935 S.A.. It enabled a claim founded on tort, as well as a claim for breach of contract, to be brought against the Government: Bloch v. Smith; Welden v. Smith [2] ; Welden v. Smith [3] ; and see Hall v. Bonnett [4] . Enactments in other colonies to the same general effect are mentioned in the paper by Sir Charles Lowe and the article by Mr. T. R. Ambrose, published in the Australian Law Journal, vol. 11, p. 402 and vol. 8, p. 214.
Confining myself to the course of legislation in New South Wales, the first statute in this field was the "Act to give relief to persons having claims against the Government of New South Wales", 20 Vict. No. 15 enacted in 1857. It, following the South Australian example, set up the procedure of a nominal defendant appointed to represent the Government. The Act of 1857 was followed by the Claims against the Colonial Government Act, 39 Vict. No. 38, 1876, which was the forerunner of the Claims against the Government and Crown Suits Act, 1897, 61 Vict. No. 30. These, with some amending Acts, were consolidated by the Act of 1912, the statute under consideration in the present case. The earlier Acts in the series had all been reserved for the royal assent, as they affected the Crown in the Colony. I should add a reference to another Act, 24 Vict. No. 27 (1861), as it was mentioned in the course of the argument we heard. It simply adopted for the Colony the English Petition of Right Act 1860, reforming and regulating the procedure on petitions of right. A proviso to s. 7 of it states that the Act does not give to the subject any remedy against the Crown that he did not theretofore have: but that can be disregarded because the other Acts I have mentioned gave an effective remedy against the Crown, which was as an alternative to a petition of right, where that would lie, and which subjected the Crown to actions in tort, for which a petition of right would not lie. The first Act of the New South Wales series, that of 1857, might on the face of it not have seemed necessarily to have had that result. It provided for the appointment by the Governor of a nominal defendant in "cases of dispute or difference touching any claim between any subject of Her Majesty and the Colonial Government of the Colony of New South Wales". The first reported case under it was Dumaresq v. Robertson [1] , which began in 1858. It was a claim in contract. Its successive stages up to and with the judgment of the Privy Council in 1864 are narrated in Legge's Reports, vol. 2, pp. 1090, 1124, 1291, 1387 and in (1864) 2 Moore P.C. (N.S.) 66 [ 15 E.R. 827]. The plaintiff, a military officer, claimed that in consideration that he would settle in the Colony Governor Darling had promised that he should have a grant of land on Woolloomooloo Hill or alternatively at Hyde Park Gardens; but that Governor Bourke had repudiated this. The significance of the case is that the Supreme Court held that the action against a nominal defendant representing the Government was in substance an action against the Crown: [2] ; that "the only recognizable Executive Government was that of the Queen": [3] . I have adopted the style "the Crown" to describe the appellant in this case. He represents the "Crown as Corporation", to use the title of Maitland's entertaining essay: Collected Papers, vol. 3, pp. 245-270. We are so accustomed in Australia to the idea of the Commonwealth and a State as legal entities under the Constitution, capable of suing and being sued, that it is only in a case like the present, when we have to consider the application today of such maxims as "the King can do no wrong", or "the King is not bound by an Act of Parliament unless named", that we need speak of "the Crown" in contexts in which Blackstone would have said "the King" regarding the Sovereign as the personification in law of the Kingdom.
It is now established by the judgment of the Privy Council in Farnell v. Bowman [4] that, from 1857 onwards, the New South Wales statutes that I have mentioned not only enabled subjects to sue the Crown. They also made the Crown liable to be sued for unliquidated damages in actions of trespass and case. Farnell v. Bowman [1] was thus a cataclasmic case. An action was brought by Bowman against Farnell the Minister for Lands, duly appointed as nominal defendant pursuant to the Act of 1876, 39 Vict. No. 38. The declaration alleged that servants of the Government had trespassed on the plaintiff's land at Muswellbrook and negligently lighted fires there which spread and caused damage. The Supreme Court - Faucett J. and Windeyer J., Martin C.J. dissenting - overruled a demurrer based on the proposition that no action for tort would lie against the Crown and that the Act of 1876, 39 Vict. No. 38, did not give a right of action in such a case: Bowman v. Farnell [2] . Faucett J. and Windeyer J. in separate judgments held that the effect of the Act was not merely procedural, that it extended the rights which a subject could assert against the Crown by petition of right to include causes of action for tortious acts by officers of the Crown. This view had been foreshadowed by dicta in two earlier cases in the Supreme Court: Wakely v. Lackey [3] and Municipality of Numba v. Lackey [4] . In the former Faucett J. had said [5] :
The rights against the Crown are enlarged by this Act, and claims for torts can be brought under it; in fact, it seems to me, that the Crown is placed, as nearly as possible, in the same relation towards the subject as one private person is to another private person. That proposition was accepted by the Privy Council in Farnell v. Bowman [1] . The judgment that Sir Barnes Peacock delivered went further back. It did not rest upon the Act of 1876. It held that in New South Wales the Crown had been liable to be sued in tort since 1857. Since this epochal decision of the Privy Council it has been constantly recognized that in New South Wales, Queensland, South Australia and Western Australia the Crown is liable in damages at the suit of a subject for a tort of a kind actionable at common law. I select a few only out of a multitude of illustrations of that. 1. (1887) 12 App. Cas. 643. 2. (1887) 12 App. Cas. 643. 3. (1886) 7 N.S.W.L.R. 1. 4. (1880) 1 N.S.W.L.R. 274. 5. (1880) 1 N.S.W.L.R. 299. 6. (1880) 1 N.S.W.L.R., at p. 282. 7. (1887) 12 App. Cas. 643.
In Jamieson v. Downie [6] the Privy Council, speaking by Lord Buckmaster, said of the New South Wales Act of 1912, the statute relied upon by the plaintiff in this case:
One of the rights of the Crown is not to be liable in any action of tort at the instance of a subject. That right is not, by express provision, taken away by the statute except so far as that express provision can be gathered from general words. It has, however, been held by this Board in Farnell v. Bowman [1] that the phrase "any just claim or demand whatever" includes a claim in tort as well as a claim under contract, and it consequently follows that the Act does materially affect the existing rights of the Crown. and The Act was intended materially to change the existing rights of the Crown, and just as it has brought within its ambit actions that were hitherto not permitted, their Lordships think it has included procedure heretofore inapplicable. The next year their Lordships, in Welden v. Smith [2] , had to consider the statute enacted in South Australia in 1853. Viscount Cave said [3] : It was not disputed that, having regard to the decision in Farnell v. Bowman [1] , a claim founded on tort as well as a claim for breach of contract could properly be brought against the Government under Act No. 6 of 1853. In The Crown v. Dalgety and Co. Ltd. [4] Williams J. said, speaking of an Ordinance made by the Legislative Council of Western Australia in 1867: It is evident from the preamble to the Ordinance that it was intended to enlarge the class of cases in which the subject could sue the Crown as well as to provide a new procedure, and that the operative words which I have italicized were sufficiently wide to include all claims and demands in contract and tort, so that, to adopt the words of Sir Barnes Peacock when delivering the judgment of the Privy Council in Farnell v. Bowman [5] (in referring to a similar Ordinance made in New South Wales the details of which are set out on the preceding pages), "a complete remedy is given to any person having or deeming himself to have any just claim or demand whatever against the Government". Statements to the same effect were made by Starke J. in Cain v. Doyle [6] ; and more recently in Ramsay v. Larsen [7] . I forbear from further citations. 1. [1923] A.C. 691, at pp. 694-695. 2. (1887) 12 App. Cas. 643. 3. [1924] A.C. 484. 4. [1924] A.C., at p. 494. 5. (1887) 12 App. Cas. 643. 6. (1944) 69 C.L.R. 18, at pp. 46-47. 7. (1887) 12 App. Cas., at p. 648. 8. (1946) 72 C.L.R., at p. 420. 9. (1964) 111 C.L.R., at p. 20 by McTiernan J. and at p. 27 by Kitto J.
These pronouncements arouse a theoretical difficulty which was discerned by Dixon J. when he said in Werrin v. The Commonwealth [8] :
Farnell v. Bowman [1] 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. His Honour had alluded to the matter in Musgrave v. The Commonwealth [1] . In those cases he was considering the source of the liability of the Commonwealth as a defendant. 1. (1938) 59 C.L.R. 150, at pp. 167-168. 2. (1887) 12 App. Cas. 643. 3. (1937) 57 C.L.R. 514, at pp. 546-547.
Counsel on both sides, and the Solicitor-General of the Commonwealth intervening, gave much attention to the decisions in Asiatic Steam Navigation Co. Ltd. v. The Commonwealth [2] and The Commonwealth v. Anderson [3] . These cases turned on the effect of the provisions of the Judiciary Act, especially s. 64, relating to actions in which the Commonwealth was either defendant or plaintiff. The present case does not arise under the Judiciary Act. If it did, the questions raised would be less simple than that which we have now to decide. Our problem arises solely under the law of New South Wales. It is uncomplicated by statutes of differing legislatures and two systems of law. It arises in a field in which s. 4 of the New South Wales Act, the Claims against the Government Act, 1912, is the present-day source of the liability of the Crown in tort. It may be that s. 64 of the Judiciary Act has a lesser application than that section has. The words are similar; but their setting is different. Section 56 of the Judiciary Act expressly recognizes the liability of the Commonwealth as a juristic person to actions of tort. In Washington v. The Commonwealth [4] Jordan C.J., quoting authority, said: "I am of opinion that s. 56 is of itself sufficient to subject the Commonwealth to the law of torts." Dixon C.J., McTiernan J. and Williams J. mentioned that case along with a number of others when, in their joint judgment in the Asiatic Steam Navigation Co.'s Case [2] , they referred to differences of judicial opinion on the position of the Commonwealth. In South Australia v. The Commonwealth [5] Dixon J. again mentioned these different views "as to whether s. 64 is limited to questions of procedure or extends to the substantive law governing the liability put in suit". His Honour had earlier said, in Werrin's Case, [6] , of "the actionable liability of the Crown for tort" that "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": and he said in Anderson's Case [7] , referring to s. 64, that "it is perhaps not unimportant to bear in mind that it is the rights of parties in a suit between subject and subject, not the law, that are to apply as nearly as may be". Counsel for the Crown sought to put more weight on that somewhat cryptic and elliptical sentence than, as I read it, it would bear. I am certainly not prepared to diminish the operation in New South Wales of the law as laid down in Farnell v. Bowman [1] because of the single sentence that I have quoted from a different context.
I do not overlook the propositions that we heard based upon a distinction between procedural or jurisdictional provisions and substantive rights. Part of the discussion ventured into the realm of juristic theory; and verbal coin of that realm, "duty", "right", "remedy", "redress", "immunity" were tendered to us. This I take it would be familiar currency to those interested in analytical jurisprudence, from readers of Austin to modern-day disciples of Hohfeld. But it seemed to me to be of little help to a decision in this case. I trust that, adopting T. E. Holland's phraseology, I have not failed to appreciate the distinction between antecedent rights and remedial rights. I find no difficulty in thinking that "ubi jus ibi remedium" is often no more true than "ubi remedium ibi jus" would be. Chitty's statement, that I have quoted, that "want of right and want of remedy are the same thing in law" put the matter neatly. And Maine's statement that "so great is the ascendancy of the law of actions in the infancy of courts of justice that substantive law has at first the look of being gradually secreted in the interstices of procedure" can be matched by later events than those of early law and custom. After all, wrongs in law are acts and omissions for which redress can be had by some process known to the law. The Claims against the Government Act subjects the Crown in New South Wales to all liabilities of the law of torts known to the law when it was enacted, whether they were of common law origin or created by statute. This is illustrated by the statute law relating to fatal accidents, Lord Campbell's Act, now in New South Wales the Compensation to Relatives Act, 1897-1953. Section 6E (3) of that Act, introduced in 1928, provides that the Act shall bind the Crown. Before 1928 there was no express provision, but the Act and its predecessors were assumed to be binding on the Crown: Pitcher v. Federal Capital Commission [2] . This was taken to be the result of the successive statutes enabling claims in tort to be brought against the Government. The history of the enactments is set out by Jordan C.J. in Washington's Case [1] . The conclusion can I think be best expressed by saying that, by the impact of the Claims against the Government Act, the Compensation to Relatives Act was binding on the Crown before 1928. Whether in England the Fatal Accidents Act binds the Crown since the Crown Proceedings Act 1947 came into force raises a similar question, perhaps not yet resolved: see Street, Law of Torts, 4th ed. (1968), p. 421. The Claims against the Government Act has an ambulatory operation, so that it takes cognizance of developments in the law by the creation of any new obligations which are imposed on the Crown by statute. The suggestion made in argument for the Crown that it does so only for statutes that modify the common law and not for those which create new rights cannot be sustained. It is an illusory distinction. Every Act of Parliament alters the law to some degree, unless it is merely a re-enactment of an existing statute as in a consolidation of statute law, or is truly declaratory of common law. And the proposition that Lord Campbell's Act did not make new law will not bear examination against the light of authoritative pronouncements. What it did was to create a cause of action which Lord Blackburn described as "new in its species, new in its quality, new in its principle, in every way new": Seward v. The "Vera Cruz" [2] ; see too Victorian Railways Commissioners v. Speed [3] . This new tort became part of the general law of torts in New South Wales in 1847 when, by 11 Vict. No. 32, the provisions of Lord Campbell's Act were enacted by the local legislature. That was ten years before the Act of 1857, the first of the series of statutes by which the Crown in New South Wales became liable in tort. The new rights created by Lord Campbell's Act were a part of the existing law of torts to which the Crown became subject. This case is a marked contrast. So far as I am aware, a statutory duty to fence dangerous machinery first appeared in New South Wales in the Factories and Shops Act 1896, 60 Vict. No. 37, s. 28. That is twenty years after the Claims against the Colonial Government Act, the statute under consideration in Farnell v. Bowman [4] , had come into force. The significance of the distinction between the two positions was emphasized by Jordan C.J. in Washington's Case [5] .
The Claims against the Government Act does not itself create a duty. It confers a remedial right against the Crown which presupposes the antecedent existence of a similar right against a subject. Therefore, a statute which was not passed until after the Claims against the Government legislation came into force does not impose any duty on the Crown unless it does so expressly or by implication. In considering whether or not it does so, it must of course be read, like any other statute, as forming a part of the body of law into which it was introduced. But whether it imposes an obligation on the Crown depends upon its own operation according to its true construction. That is how I see this case. I return therefore to s. 27 of the Factories Act, 1962, remembering that it was enacted when the Crown was liable in tort, but otherwise disregarding the Claims against the Government Act.
I interrupt myself to say here that a breach by the occupier of a factory of his duty under s. 27 (1) creates in my view a direct not, in any relevant sense, a vicarious, liability. On the other hand, a breach by a servant of the Crown of a common law duty of care gives rise I consider to a liability of a different juristic character, whether it be described as imputed or as vicarious. I considered this question in relation to Crown liability in what I wrote in Parker v. The Commonwealth [1] and Ramsay v. Pigram [2] . I shall not enter upon the topic here, simply add a reference to the judgments in Ramsay v. Larsen [3] .
Section 27 of the Factories Act is in a part headed "Division 5 - Safety (Factories)". The significance of the differences between s. 27 and its predecessor, s. 33 of the Factories and Shops Act, 1912, was noted by Taylor J. in Sovar v. Henry Lane Pty. Ltd. [4] . It is noteworthy that the duty to fence is no longer restricted to machinery that is in motion or use for the purpose of a manufacturing process. If there is a failure by a factory occupier bound by the Act to fence machinery whereby a person was injured it matters not that the machinery was not being used in an actual process of manufacture. The injured person has a right of action if he be one of the persons for whose protection the statutory duty was imposed; but he need not have been himself actually working the machine when he was hurt: Forrest v. John Mills Himself Pty. Ltd. [5] .
Why is it said that the Crown is not bound to observe the same precautions with dangerous machinery that a subject must? It is because the general rule of our law for centuries has been that the Crown is not bound by a statute unless expressly named or bound by necessary implication. This exemption or immunity of the Crown from statutory obligations couched in general terms has sometimes been called a prerogative, or ascribed to the exercise of the prerogative, sometimes said to be a saving of the prerogative. But, except in cases of an express abrogation by statute of a particular prerogative, or of a statutory regulation of a prerogative power as in Attorney-General v. De Keyser's Royal Hotel Ltd. [1] , it seems to me that the rule that an Act of Parliament does not bind the Crown unless an intention to do so appears, expressly or by implication, is not itself properly called a prerogative. Rather I would describe it as a rule for the construction of statutes, for a statute is the command of the Sovereign in Parliament. Thus it was that Alderson B. said in Attorney-General v. Donaldson [2] :
it is a well-established rule, generally speaking, in the construction of Acts of Parliament, that the King is not included unless there be words to that effect; for it is inferred prima facie that the law made by the Crown, with the assent of Lords and Commons, is made for subjects and not for the Crown. I recognize however that whether the rule is derived from prerogative or depends upon construction is a question that has provoked academic discussion and some differences in judicial statement: see Madras Electric Supply Corporation Ltd. v. Boarland (Inspector of Taxes) [3] . It is not necessary to pursue it further here. 1. [1920] A.C. 508. 2. (1842) 10 M. & W. 117, at pp. 123-124 [152 E.R. 406, at pp. 408-409]. 3. [1955] A.C. 667.
It is clear that the prima facie rule that a statute does not bind the Crown can be displaced by implication. It used at one time to be said that there was always an implication that the Crown was subject to the provisions of statutes of certain kinds passed, as it was said, for the general good. That doctrine was founded upon statements in Coke's report of The Magdalen College, Cambridge Case where it is said [4] :
God forbid that by any construction, the Queen, who made the Act with the assent of the Lords and Commons, should be exempted out of this Act of 13 Eliz. which provides necessary and profitable remedy for the maintenance of religion, the advancement of good literature, and the relief of the poor 1. (1615) 11 Rep. 66 b. Rep., at p. 70 b [ 77 E.R. 1235, at p. 1241].
A passage in Bacon's Abridgment , sub. tit. "Prerogative", which has been often quoted and relied upon, for example by Jessel M.R. in Ex parte Postmaster-General; In re Bonham [5] runs as follows:
Of Acts of Parliament which extend to or bind not the King.
Herein a general rule hath been laid down and established, viz. that where an act of parliament is made for the publick good, the advancement of religion and justice, and to prevent injury and wrong, the king shall be bound by such act, though not particularly named therein.
But, where a statute is general, and thereby any prerogative, right, title, or interest is devested or taken from the king, in such case the king shall not be bound; unless the statute is made by express words to extend to him.
But the first part of this statement has now been held to be too widely stated; and this long-standing, often beneficent, but always amorphous rule was discarded from our law by the decision of the Privy Council in Province of Bombay v. Municipal Corporation of Bombay [1] . Their Lordships there pronounced the law of England for today, and deprecated [2] any tendency to "whittle it down". They said [3] : The general principle to be applied in considering whether or not the Crown is bound by general words in a statute is not in doubt. The maxim of the law in early times was that no statute bound the Crown unless the Crown was expressly named therein, "Roy n'est lie par ascun statute si il ne soit expressement nosme". But the rule so laid down is subject to at least one exception. The Crown may be bound, as has often been said, "by necessary implication". If, that is to say, it is manifest from the very terms of the statute, that it was the intention of the legislature that the Crown should be bound, then the result is the same as if the Crown had been expressly named. It must then be inferred that the Crown, by assenting to the law, agreed to be bound by its provisions. This statement was repeated more recently: Premchand Nathu & Co. Ltd. v. Land Officer [4] . The difficulty is in its application. Like all generalities, the phrase "necessary implication" gets its contents from particular cases as they arise. The statement that there is only an implication that the Crown is bound if "it is manifest from the very terms of the statute" seems to relate an implication of intention very closely to an expressed intention. The statement does not, as I read it, stand easily with another passage in their Lordships' judgment [5] : Their Lordships prefer to say that the apparent purpose of the statute is one element, and may be an important element, to be considered when an intention to bind the Crown is alleged. If it can be affirmed that, at the time when the statute was passed and received the royal sanction, it was apparent from its terms that its beneficent purpose must be wholly frustrated unless the Crown were bound, then it may be inferred that the Crown has agreed to be bound. In the present case it seems to me that the "beneficent purpose" manifest in s. 27 of the Act is that all persons who work in factories in New South Wales are to be protected against specified dangers there. It may be that to exclude persons in factories conducted by the Crown from this protection would not mean that its purpose was wholly frustrated. But I would be inclined to say that it would be; for in terms s. 27 is unrestricted. It applies to every factory in a proclaimed district, unless it be expressly exempted by the Governor by proclamation pursuant to s. 4 (2) of the Act; and factories of the Crown have not been so exempted. 1. (1879) 10 Ch. D. 595, at p. 601. 2. [1947] A.C. 58. 3. [1947] A.C., at p. 62. 4. [1947] A.C., at p. 61. 5. [1963] A.C. 177, at p. 188. 6. [1947] A.C., at p. 63.
I take the remark of the Chief Justice in The Commonwealth v. Rhind [1] as a correct and succinct statement of how an implication is to be discovered today. He said [1] :
Where the Crown is not expressly mentioned, the implication will be found, if at all, by consideration of the subject matter and of the terms of the particular statute. The subject matter here is safety in factories. The prescription is in general terms. 1. (1966) 119 C.L.R. 584, at p. 598. 2. (1966) 119 C.L.R. 584, at p. 598.
The present case differs in several ways from the Bombay Case [2] . It turned on whether the Crown, as a holder by private right of lands in Bombay, was subject to the provisions of an ordinance empowering the municipality to lay public water supply drains through private land. That is a very different subject from the safety of individuals in factories. I would add that their Lordships' reference to the case of Gorton Local Board v. Prison Commissioners [3] can be misunderstood. There was there a conflict, or overlap, of the claim of a local authority under a statutory by-law to approve plans for new buildings in a locality and to inspect buildings erected before their occupation and a similar, and it was held overriding, duty of the Secretary of State with respect to prisons. The case was of much the same order as Reg. v. Justices of Kent [4] ; and Pollard v. Gregory [5] .
But the present matter is not a case of an attempted invasion of any proprietary rights of the Crown. Nor does it involve divesting the Crown of any power to enforce its legal rights, as in Attorney-General v. Hancock [6] and In re Hutley's Legal Charge [7] . The position here is the reverse of that. It is not whether the Crown is deprived by statute of rights against a subject but whether a subject is given by statute rights against the Crown. The Crown case is simply that an action for breach of a statutory duty will lie only when the statute imposed the duty upon the particular defendant: no duty, no action. That, as an abstract proposition, is indisputable. But I shall now shew why I think it is here inapplicable by lining up, from what I have already said, my reasons for thinking that by implication s. 27 binds the Crown.
First: Section 27 in terms covers all factories that are not exempted by the Crown by proclamation. It is for the benefit of workers employed in factories. Its apparent purpose would be frustrated if it did not apply in factories conducted by the Government or its agencies.
Secondly: It is a provision directed to the protection, safety and welfare of subjects of the Crown. As a result of the Bombay Case [1] this does not produce an implication to bind the Crown. But that does not mean that it is not an important pointer.
Thirdly: When the Government engages in industry and commerce it is, in my opinion, prima facie bound by laws which regulate the carrying on of the activities in which it engages. Sometimes statutes relating to such activities bind it expressly, as for example in New South Wales the Public Health Act and the Pure Foods Act: Public Health Act, 1902-1965, s. 111: but the Stock Diseases Act, 1923-1966, does not. Yet I assume that it and a host of other statutes, some of them fundamental to all trade such as the Sale of Goods Act are by implication to be obeyed by the Crown. The passage I quoted from the judgment of Griffith C.J. in Sydney Harbour Trust Commissioners v. Ryan [2] , followed by the Supreme Court in Lowden v. Sydney Harbour Trust Commissioners [3] , expresses what I take to be sound doctrine. I do not mean that his Honour's decision was to be supported, as he suggested, by assuming that the immunity of the Crown from statutes is confined to laws which would affect its ancient prerogatives or functions essentially regal, described elsewhere as "the primary and inalienable functions of government". Those descriptions and the supposed distinction can lead one into error, as Jordan C.J. pointed out in North Sydney Municipal Council v. Housing Commission (N.S.W.) [4] . I stated my view of this topic in what I wrote in the Professional Engineers' Case [5] . But I recognize there that there is a difference between the industrial and trading activities of government and its other activities. When the question is whether a particular statute by implication binds the Crown this distinction is I think an important consideration. In The Bank Officials' Association (South Australian Branch) v. Savings Bank of South Australia [1] Higgins J., after alluding to this, went on to say:
In Farnell v. Bowman [2] the Judicial Committee warned us of the care necessary in applying principles as to Crown exemption within the colonies, where the Governments embark so frequently in undertakings which in other countries are usually left to private enterprise. And in Ricketson v. Smith [3] Owen C.J. in Eq. had noted that: The Government of this colony undertaking to perform so many works which elsewhere are left to private enterprise, suits are brought against the Government of identically the same character, and in reference to the same subject matter as between subject and subject. 1. (1911) 13 C.L.R., at pp. 366-367. 2. (1920) 21 S.R. (N.S.W.) 59. 3. (1948) 48 S.R. (N.S.W.) 281. 4. (1959) 107 C.L.R., 208, at pp. 274-276. 5. (1923) 32 C.L.R. 276, at p. 295. 6. (1887) 12 App. Cas. 643. 7. (1895) 16 N.S.W.L.R. Eq. 170, at pp. 178-179.
These cumulative considerations are for me convincing that the Factories Act by necessary implication imposes on the Crown a duty to fence dangerous machinery if it conducts a factory. Looking at the section in its statutory setting, and at the whole statute as part of a system of law in which a failure to fence dangerous machinery gives rise to a cause of action by a person injured, I am unable to think that Parliament did not mean that s. 27 was to apply in Government factories. And when the implications that the Crown is bound are so strong, I find no reason to regard the absence of an express provision as weakening them.
In an action brought in the District Court against a nominal defendant appointed under s. 3 of the Claims against the Government and Crown Suits Act, 1912 N.S.W., the plaintiff in two of his counts claimed damages for injury alleged to have resulted from breaches of the statutory obligations for which s. 27 of the Factories, Shops and Industries Act, 1962 N.S.W., provides. The plaintiff's claims were that the Crown was the occupier of premises which were a "factory" within the meaning of that Act and that, in breach of s. 27 of the Act, it had failed to fence securely the dangerous parts of certain machinery on the premises and had also failed constantly to maintain in an efficient state the fencing of these dangerous parts with the result that the plaintiff was injured. Application was made on behalf of the nominal defendant to strike out these two counts on the ground that the Factories, Shops and Industries Act (which I shall call the Act) does not bind the Crown. The learned District Court judge before whom the matter came refused the application. He was of opinion that while the Act did not bind the Crown, nevertheless the effect of ss. 3 and 4 of the Claims against the Government and Crown Suits Act was to make the Crown liable for a breach of the obligations imposed by the Act. The Court of Appeal having upheld his decision, an appeal was brought to this Court by special leave.
As it seems to me, the first question to be decided is whether the Act binds the Crown. It is not expressed to do so nor can I find in it anything which by necessary implication would make it applicable to the Crown and there is much in it which, to my mind, points the other way. For the plaintiff, however, it was submitted that the effect of ss. 3 and 4 of the Claims against the Government and Crown Suits Act is to render the Crown, through a nominal defendant appointed under s. 3, liable for a breach of a statutory duty imposed by the Act even if that Act does not apply to the Crown. This, it was said, results from the fact that s. 4 provides that in an action against a nominal defendant "the rights of the parties therein shall as nearly as possible be the same as in an ordinary case between subject and subject". No doubt by the provisions of the Claims against the Government and Crown Suits Act, the Crown submitted itself to liability for tort but where the tortious act is said to have been a breach of statutory duty giving rise to an action for damages, it seems to me that the plaintiff in an action against the nominal defendant must show that an obligation was imposed upon the Crown by the statute in question and that it committed a breach of that obligation in circumstances giving rise to an action for damages. It is not, in my opinion, enough to show that actions could be maintained against those subjects upon whom s. 27 of the Act imposed obligations with which they had failed to comply and argue from that that the Crown is therefore liable. In an action against a subject claiming damages for breach of a statutory duty, it would have to be shown that the defendant was one of those persons upon whom the statute imposed an obligation. Why should this not be necessary where it is sought to make the Crown liable for a breach of statutory duty? The submissions made on behalf of the plaintiff seem to me to disregard the words in s. 4 that "the rights of the parties therein shall as nearly as possible be the same" as in an action between subject and subject. In an action between subjects in which the plaintiff claimed damages for a breach by the defendant of a statutory duty, the defendant would be entitled to raise the question whether he was a person to whom the statute in question applied and I cannot understand why, on the true construction of s. 4, the Crown cannot do the same. In short, I cannot construe the relevant provisions of the Claims against the Government and Crown Suits Act as entitling a plaintiff to maintain an action against the Crown for a breach of statutory duty if the statute in question does not impose such a duty upon it. I do not find in the cases cited to us authority for the proposition for which counsel for the plaintiff has contended. They undoubtedly lay down that a subject is to have the same right of action in tort against the Crown as he would have in an action of tort against another subject but the Crown is, by virtue of s. 4, entitled to the rights which a subject would have if sued for a breach of statutory duty and that includes the right to deny that any obligation is imposed upon it by the statute said to have been breached.
The appellant is sued as a nominal defendant appointed under the Claims against the Government and Crown Suits Act, 1912 N.S.W.. The action is brought in a District Court of the State of New South Wales. It appears from the allegations of the respondent, the plaintiff in the action, that the respondent, while a pupil at the Bankstown Technical College, an educational institution conducted by the State of New South Wales, sustained injury when his thumb was caught in a mechanically driven grinding wheel which he was using to grind the edge of a piece of metal. The respondent's claim contains counts of negligence and breach of agreement with which we are not now concerned. In addition, by the third and fourth counts of the claim, the respondent alleges that the appellant was the occupier of a factory within the meaning of the Factories, Shops and Industries Act, 1962 N.S.W. as amended ("the Act"), and failed to fence securely a dangerous part of the machinery, namely, the rotating wheel, and failed constantly to maintain the fencing to the wheel in position in an efficient state. In other words, he alleges breaches of duties which s. 27 of the Act imposes on the occupier of a factory. The claim should have alleged that the Government of the State of New South Wales, and not the appellant, was the occupier of the factory, but this is a technical deficiency which can be corrected by amendment and nothing turns on it. The appellant applied to a judge of the District Court to strike out the third and fourth counts as vexatious and embarrassing, on the ground that the Crown, as represented by the appellant, is not bound by the Act, but the application was refused. An appeal from the decision of the learned primary judge was dismissed by the Court of Appeal of the Supreme Court of New South Wales from whose judgment this appeal is brought by special leave.
It was, I think, a mistake for the appellant to apply to strike out the counts before the action came on for trial. To succeed in maintaining the claims in the two counts in question it would be necessary for the respondent to establish that the premises of the Bankstown Technical College, or the part of those premises where the accident occurred, was a factory within the meaning of the Act. "Factory" is defined by s. 4 (1) of the Act and it is possible, although, if one were to speculate, one might think it unlikely, that the premises come within that definition. For the purpose of considering whether the application to strike out the counts should succeed, we must assume that the allegations of fact made in them are true, and that the place was a factory. If the matter comes to trial, and it is found that the place was not a factory, the claims advanced in the third and fourth counts will fail for that reason, the present application will have been fought on an assumption which will have been found to be erroneous and large costs will have been needlessly incurred. In those circumstances, it would have been a sound exercise of the discretion of the learned primary judge if he had refused to entertain the application until the relevant facts had been found. However, he has decided the important question that is raised by the application and the correctness of his decision has been fully canvassed by the Court of Appeal and it would not be right at this stage to dispose of the application on discretionary grounds.
The Act does not expressly state that it binds the Crown and the learned trial judge held that it was not the necessary intendment of the provisions of the Act that the Crown should be bound by it. This conclusion was not challenged before the Court of Appeal, but counsel for the respondent before us did seek to sustain the judgment of that Court by advancing, as an alternative to their main contention, the submission that the Act does bind the Crown. In The Commonwealth v. Rhind [1] , Barwick C.J. laid down the relevant rule of construction as follows:
In my opinion, the rule to be applied universally as of this time in the construction of statutes, is that the Crown is not included in the operation of a statute unless by express words or by necessary implication. Where the Crown is not expressly mentioned, the implication will be found, if at all, by consideration of the subject matter and of the terms of the particular statute. The only express provision which it was said provides an indication that the statute was intended to bind the Crown was the definition of factory in s. 4 (1), which includes a place in which electricity is generated. It was submitted that when the Act was passed the Electricity Commission had a monopoly of the generation of electricity and, unless the Act binds the Crown, there would be no premises to which this part of the definition could apply. This argument is patently fallacious. The Electricity Commission may have a monopoly of the generation of electricity for the purposes of supply to the public but it is not right to say that private individuals are forbidden to generate electricity; and in fact there may be many premises, not occupied by the Crown, in which electricity is generated. It was further submitted that the subject matter of the Act, namely, the control of operations in factories in the interests of the health and safety of those who work there, provides an indication of intention that the Act should bind the Crown. No doubt, when the Act was passed, some factories within the meaning of the Act were operated by the Crown and the welfare of persons employed in those factories was just as important as that of persons employed elsewhere. This, however, is not sufficient reason in itself for holding that the legislature intended that the Act should bind the Crown. The argument that a statute intended to promote the public welfare must necessarily bind the Crown is contrary to authority: Province of Bombay v. Municipal Corporation of Bombay [1] . It cannot be said in the present case that it is apparent from the terms of the Act that its beneficent purpose will be frustrated if the Crown is not bound. Nothing has been shown in the subject matter of the Act, or in its particular provisions, that gives rise to an implication that the Crown is intended to be bound by it. 1. (1966) 119 C.L.R. 584, at p. 598. 2. [1947] A.C. 58.
The question that then falls for decision, and which the Court of Appeal answered in the affirmative, is the following - if it is found that the respondent sustained personal injury at a place, occupied by the Crown, which was a factory within the meaning of the Act, and that the circumstances were such that the respondent would have been entitled to maintain an action for damages caused by breach of statutory duty if the premises had been occupied by a private individual, is the respondent entitled to succeed in an action brought against a nominal defendant appointed under the Claims against the Government and Crown Suits Act, 1912, notwithstanding that the Act by which the statutory duty is imposed does not reveal an intention to bind the Crown? The answer to this question depends on the effect to be given to the Claims against the Government and Crown Suits Act, 1912, ss. 3 and 4 of which provide as follows:
(1). Any person having or deeming himself to have any just claim or demand whatever against the Government of New South Wales may set forth the same in a petition to the Governor praying him to appoint a nominal defendant in the matter of such petition, and the Governor may by notification in the Gazette appoint any person resident in New South Wales to be a nominal defendant accordingly.
(2) If within one month after presentation of such petition no such notification is made, the Colonial Treasurer shall be the nominal defendant.
s. 4. The petitioner may sue such nominal defendant at law or in equity in any competent court, and every such case shall be commenced in the same way, and the proceedings and rights of parties therein shall as nearly as possible be the same, and judgment and costs shall follow or may be awarded on either side as in an ordinary case between subject and subject.
The nominal defendant is not personally liable (s. 8) but damages and costs against him are to be paid by the Treasurer out of moneys legally available (s. 11 (1)) and execution may be had in default of payment (s. 11 (2)). Any kind of relief may be granted in such an action (s. 9).
The argument on behalf of the appellant is that an action for breach of statutory duty lies only against a person upon whom a duty is imposed by statute and that if a statute does not bind the Crown it does not cast any duties upon, and cannot give rise to rights against, the Crown. It is further submitted that the "rights of parties" to which s. 4 of the Claims against the Government and Crown Suits Act, 1912 refers are only rights of a procedural kind and that the section does not require that in an action brought against a nominal defendant the Crown should, for all purposes, be treated as if it were a subject or that the provisions of a statute should be treated as applicable if on their proper construction they do not bind the Crown.
This argument may at first sight appear attractive but the decision in Farnell v. Bowman [1] requires it to be rejected. In that case it was held that under the New South Wales Act 39 Vict. No. 38, whose provisions were in all material respects the same as those of the Claims against the Government and Crown Suits Act, 1912, the Government was liable to be sued in an action for tort. It was there argued that the action was in effect against the Crown, which was not liable to be sued for damages ex delicto, and that the Act 39 Vict. No. 38 did not create any fresh right of action but merely substituted a more effective procedure for enforcing against the Government rights of action already existing [1] , but this argument was rejected by their Lordships in what seem to me to be unequivocal terms [2] :
"The 3rd section" (s. 4 of the Claims against the Government and Crown Suits Act, 1912) "expressly says that, in every case, not the proceedings only but the rights, shall be the same, and that judgment shall follow as in an ordinary case between subject and subject. Those enactments are not consistent with holding, as the learned Chief Justice expresses it, that the words "any just claim or demand whatever" can mean no more than such claims or demands as the law then recognized, and that they cannot include a claim for damages ex delicto." 1. (1887) 12 App. Cas. 643. 2. (1887) 12 App. Cas., at p. 644. 3. (1887) 12 App. Cas., at p. 650.
To understand the full significance of the decision that the Act 39 Vict. No. 38 deprived the Crown of its immunity from liability in tort it is necessary to consider the basis of the immunity. As Dixon J., as he then was, said in Werrin v. The Commonwealth [3] :
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. Sometimes the immunity of the Crown from liability for tort is explained as being procedural in origin; it is said that the only possible remedy, petition of right, was dependent on the fiat of the Crown which was never granted in cases of tort (cf. Werrin v. The Commonwealth [3] ). With all respect, however, it seems to me unreal to say that at common law the Crown was under a substantive responsibility for the wrongs of its servants but that there was no remedy by which this responsibility could be enforced. The truth, in my opinion, is that there was a substantive rule of the common law, expressed by the maxim the King can do no wrong, that the Crown can neither itself commit a tort nor be responsible for torts committed by its servants and that in consequence a person injured by an act done by or by the authority of the Crown has no right to redress against the Crown notwithstanding that if the act had been done by a private individual it would have been tortious. Tobin v. The Queen [4] and Feather v. The Queen [5] , which were cited to the board in Farnell v. Bowman [6] , did not treat the Crown's immunity as resulting solely from the want of a remedy to enforce an existing right. In Feather v. The Queen, Cockburn C.J. said [1] : 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 authorize wrong. For to authorize a wrong to be done is to do wrong; inasmuch as the wrongful act, when done, becomes, in law, the act of him who directed or authorized 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 petitioner to redress. As in the eye of the law no such wrong can be done, so, in law, no right to redress can arise; and the petition, therefore, which rests on such a foundation falls at once to the ground. In Farnell v. Bowman [2] their Lordships gave reasons why the maxim the King can do no wrong would cause more injustice in the colonies than in England and although their Lordships speak of the Act 39 Vict. No. 38 as giving a new remedy it seems to me that in the passage already quoted they made it plain that they did not regard the statute as simply conferring a new remedy to enforce rights already recognized. In my opinion, Farnell v. Bowman [3] is authority that the statute in granting a new remedy created new rights and imposed upon the Crown a liability which had not previously existed. I express this view with the more hesitation because it seems to be opposed to that which Dixon J., as he then was, expressed in Werrin v. The Commonwealth [4] : Farnell v. Bowman [3] 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. With the greatest respect, for the reasons I have given I am unable to agree with the opinion tentatively expressed in the concluding sentence of this dictum. 1. (1938) 59 C.L.R. 150, at p. 167. 2. (1938) 59 C.L.R. 150, at p. 167. 3. (1864) 16 C.B. (N.S.) 310 [143 E.R. 1148]. 4. (1865) 6 B. & S. 257 [122 E.R. 1191]. 5. (1887) 12 App. Cas. 643. 6. (1865) 6 B. & S., at pp. 295-296 [122 E.R., at p. 1205]. 7. (1887) 12 App. Cas., at p. 649. 8. (1887) 12 App. Cas. 643. 9. (1938) 59 C.L.R., at pp. 167-168. 10. (1887) 12 App. Cas. 643.
In my opinion Farnell v. Bowman [1] established that the legislation in the form of the Claims against the Government and Crown Suits Act, 1912, introduced in the colonies in which it was enacted a reform as sweeping as it was simple. It enabled a subject, by proceedings under that legislation, to enforce against the Crown substantive rights as nearly as possible the same as those which he would have had against another subject in the same circumstances.
A question similar to that considered in Farnell v. Bowman [1] has in a number of cases been discussed in relation to ss. 56 and 64 of the Judiciary Act. The provisions of those sections have been said to be indistinguishable in substance from those of the New South Wales Act considered in Farnell v. Bowman [1] (see Baume v. The Commonwealth [2] and Pitcher v. Federal Capital Commission [3] ), although some points of distinction can be suggested. There has been a difference of view as to whether s. 64 is limited to matters of procedure or extends to the substantive law governing the liability put in suit: see Asiatic Steam Navigation Co. Ltd. v. The Commonwealth [4] . Whatever the position may be in relation to s. 64 (and as at present advised I find myself unable to accept that it refers only to procedural rights), s. 4 of the Claims against the Government and Crown Suits Act, 1912, is not limited to matters of procedure.
The right of the plaintiff in Farnell v. Bowman [1] was created by the common law. The right claimed by the plaintiff in the present case is created by statute. However, there is nothing in the words of the Claims against the Government and Crown Suits Act, 1912, that suggests any reason to distinguish rights grounded in a statute from rights that have their origin in the rules of the common law. The words of s. 4 are wide enough to refer to any rights whatever their source. If this were not so it would be necessary in determining the rights of a subject against the Crown to ignore statutory modifications of the common law notwithstanding that they would govern the decision of a case between subject and subject. However later authority supports the conclusion, to which one is led by the words of the section themselves, that the whole of the substantive law between subject and subject, whether it is to be found in the provisions of a statute or in the rules of the common law, is to be regarded in determining what the rights of the parties would be in a case between subject and subject.
In Pitcher v. Federal Capital Commission [1] it was held that an action lay under the Compensation to Relatives Act, 1897 N.S.W., as in force in the Australian Capital Territory, against the Federal Capital Commission, notwithstanding, as the majority of the Court held, that the Commission was entitled to the privileges of the Crown. The Compensation to Relatives Act, 1897, did not then contain the provision, later inserted in it, that its provisions should bind the Crown but it was assumed that the rights which it conferred could within the State of New South Wales be enforced against the Crown in the right of that State by reason of 39 Vict. No. 38 (see [2] ). It was, however, submitted that as a New South Wales Act it could not bind the Commonwealth and that as applied to the Federal Capital Territory it must be given the same meaning that it had in New South Wales. The Court held, however, that ss. 56 and 64 of the Judiciary Act, which was also in force in the Australian Capital Territory as a law thereof, rendered the Commonwealth liable under the Compensation to Relatives Act. Gavan Duffy and Starke JJ. said [3] that "these sections have been construed by this Court as giving to a subject the same rights of action against the Commonwealth as he would have had against a subject in an action of tort as well as of contract". The Compensation to Relatives Act was clearly not merely a procedural statute; it conferred a substantive right of a completely new kind (see Seward v. "Vera Cruz" [4] ). In my opinion Pitcher v. Federal Capital Commission [1] is authority for the view that s. 4 of the Claims against the Government and Crown Suits Act, 1912, renders the Crown liable to be sued in tort, even though the liability arises under a statutory enactment which does not of its own force bind the Crown.
In Washington v. The Commonwealth [5] a similar question arose. It was there held that the effect of s. 56 of the Judiciary Act, and possibly of s. 64 also, was to subject the Commonwealth to the whole of the law of torts as between subject and subject, whether derived from the common law or from statute, as at the date when the Judiciary Act was passed in 1903, and that an action, therefore, lay in the Supreme Court of New South Wales against the Commonwealth under the Compensation to Relatives Act, 1897. Jordan C.J. expressed the opinion that the law of torts that was rendered applicable, by the Claims against the Government Act, 1912, and the Judiciary Act respectively, was the law in force as between subject and subject at the respective dates of the passing of those Acts, and that legislation passed subsequent to those dates altering the law of torts as between subject and subject would not without more become binding on the Crown [1] . These dicta were, in my opinion, erroneous. Section 4 of the Claims against the Government Act, 1912, and s. 64 of the Judiciary Act have an ambulatory operation and require the Court to consider the whole of the law of torts between subject and subject, including modifications effected by statutes subsequently passed: see Moore v. The Commonwealth [2] and Suehle v. The Commonwealth [3] .
In Asiatic Steam Navigation Co. Ltd. v. The Commonwealth [4] it was held that the provisions of the Judiciary Act had the effect of entitling the Commonwealth to limit liability under s. 503 of the Merchant Shipping Act, 1894 Imp., although s. 741 of that Act provided that the Act should not, except where specially provided, apply to ships belonging to Her Majesty. The majority of the Court, Dixon C.J., McTiernan and Williams JJ., said [5] that it was necessary to look to the substantive law as between subject and subject as the basis of the delictual liability of the Commonwealth and went on [6] to hold that s. 503 was part of the private law on the subject that was incorporated in the law applicable to the liability of the Crown. Fullagar J. dissented from this view and held that s. 64 did not make applicable either for or against the Commonwealth a statute the express terms of which exclude the Crown. He said that he thought that the following remarks of Viscount Simonds in Nisbet Shipping Co. Ltd. v. The Queen [7] were appropriate to the case:
It appears to their Lordships that there is no sufficient justification for saying that, because the Exchequer Court in the exercise of its jurisdiction applies to proceedings between subject and Crown the law which it applies between subject and subject, therefore it should apply even that law which by the terms of the statute enacting it is expressly excluded from application to the Crown. Dixon C.J., McTiernan and Williams JJ. however pointed out that in Nisbet Shipping Co. Ltd. v. The Queen [7] it was necessary to reconcile two enactments of a single legislature, and that the situation in the case before them was quite different from that with which Viscount Simonds dealt, because no question can arise of the Commonwealth Parliament amending the Merchant Shipping Act, an Imperial statute. Their conclusion was expressed in the following words: It was certainly open to the Parliament to deal with the question by what substantive law should the Crown's liability in tort be governed, by adopting a general rule that, so far as may be, the law applicable in like circumstances as between subject and subject should apply to the relations between the Crown and the subject. No reason exists why the law between subject and subject thus to be adopted or adapted should not be found in the Merchant Shipping Act, 1894 (notwithstanding s. 741), as well as elsewhere. On this view the question is rather whether s. 503 contains in fact principles or provisions forming part of private law falling under such a description that the general rule, of its own nature, would or would not, so to speak, gather in and incorporate them in the law governing the delictual responsibility of the Crown. [1] Of course, the present case, like Nisbet Shipping Co. Ltd. v. The Queen [2] and unlike Asiatic Steam Navigation Co. Ltd. v. The Commonwealth [3] , is one in which it is necessary to reconcile two enactments of the one legislature. Clearly enough the Act, which was passed in 1962, and is later in time than the Claims against the Government and Crown Suits Act, 1912, will, if inconsistent with that earlier statute, prevail over it to the extent of the inconsistency. However, s. 4 of the Claims against the Government and Crown Suits Act, 1912, like s. 64 of the Judiciary Act, requires the Court in an action against the Crown to look to the substantive law as between subject and subject for the purposes of ascertaining the right of the subject against the Crown, and the importance of Asiatic Steam Navigation Co. Ltd. v. The Commonwealth [3] for present purposes is that it supports the view that rights based on a statutory enactment may be given effect just as much as rights based on the common law. 1. (1956) 96 C.L.R. 397. 2. (1956) 96 C.L.R., at p. 417. 3. (1956) 96 C.L.R., at pp. 419-420. 4. [1955] 1 W.L.R. 1031, at p. 1036. 5. [1955] 1 W.L.R. 1031, at p. 1036. 6. (1956) 96 C.L.R., at p. 419. 7. [1955] 1 W.L.R. 1031. 8. (1956) 96 C.L.R. 397. 9. (1956) 96 C.L.R. 397.
Some reliance was placed on the decision in The Commonwealth v. Anderson [4] , but that case was concerned with a different situation. It was there held that the provisions of Pt III of the Landlord and Tenant (Amendment) Act, 1948-1958 N.S.W., which are expressed not to bind the Commonwealth, are not called into operation by s. 64 of the Judiciary Act so as to prevent the Supreme Court of New South Wales from entertaining an action in ejectment brought by the Commonwealth against an overholding tenant. The ground for this decision is expressed by Dixon C.J. [5] as follows:
The provisions contained in Pt III are not the source of definite rights between subject and subject capable of appropriation under s. 64 of the Judiciary Act to the purpose of determining what are the rights between the Commonwealth and its tenants in a suit in the High Court or the Supreme Court. Provisions of a State law of such a kind denying general jurisdiction which would otherwise exist over a subject matter and committing the subject to a special tribunal armed with particular powers and discretions in the judicial administration of State legislative restrictions on common law rights cannot supply the rights between subjects to be applied pursuant to s. 64 in the actual exercise of the jurisdiction of the Supreme Court and High Court invested by the Constitution or the Judiciary Act. The case is therefore quite distinguishable from the present. However, Menzies J., in the course of his judgment, referred to the statement by Kitto J. in Asiatic Steam Navigation Co. Ltd. v. The Commonwealth that [1] : Section 64 must be interpreted as taking up and enacting, as the law to be applied in every suit to which the Commonwealth or a State is a party, the whole body of the law, statutory or not, by which the rights of the parties would be governed if the Commonwealth or State were a subject instead of being the Crown. Menzies J. went on to make the following comment [2] : These statements seem to me to go further than those of the other members of the Court, and if what his Honour said does correctly state the meaning of s. 64, its validity would, I think, require consideration. No question of validity can arise in relation to the Claims against the Government and Crown Suits Act, 1912, but, if the remarks of Kitto J. are to be applied to that Act, it is necessary to suggest a qualification to them. If a statute which governs the rights of the parties in an action between subject and subject has been enacted subsequent to the Claims against the Government and Crown Suits Act, 1912, and expressly provides that it shall not apply to the Crown, this provision in the later statute must prevail over the general provisions of the earlier statute with which it is inconsistent. 1. (1960) 105 C.L.R. 303. 2. (1960) 105 C.L.R., at p. 311. 3. (1956) 96 C.L.R., at p. 427. 4. (1960) 105 C.L.R., at pp. 317-318.
The Act contains no express provision that it shall not apply to the Crown. It is said that since on its proper construction the Act does not bind the Crown, it therefore reveals a legislative intention that it shall not govern the rights of the parties in an action against the Crown, just as much as if it expressly so stated. I cannot agree with this submission. The provision of the Claims against the Government and Crown Suits Act, 1912, that the rights of parties shall, as nearly as possible, be the same in an action under that statute as in an ordinary case between subject and subject operates so as to apply, in such an action, the substantive law as between subject and subject, including that contained in statutes. Its operation is not unlike that of an Interpretation Act, in that it may give to a subsequent statute an effect different from that which that statute would have had if construed in isolation. The mere silence of the legislature in the subsequent statute is not enough to render the earlier enactment inapplicable. The absence of any express provision on the matter in the later statute means that that statute does not bind the Crown proprio vigore, but it does not mean that it is not to be considered in determining what the rights of the parties would be in an ordinary case between subject and subject, and thus in determining what are the rights of the subject in the action under the Claims against the Government and Crown Suits Act, 1912. Unless the legislature expressly provides to the contrary in a particular statute, the provisions of the statute must be regarded in an action against a nominal defendant, if those provisions would govern the rights of the parties in an ordinary case between subject and subject in similar circumstances.
Of course, a statute will not govern the rights of the parties in an action under the Claims against the Government and Crown Suits Act, 1912, unless its provisions are applicable to the circumstances of the case. Not every statute which imposes a duty on a subject can be rendered applicable to the situation of the Crown. In the present case, if the place where the injury was sustained were not a factory within the meaning of the Act, or if it were a factory exempted from the operation of the Act, the provisions of s. 27 of the Act would have imposed no duty on the occupier of the place and would not govern the rights of the parties if one subject brought an action against another subject who was the occupier of the place; consequently the Act would have no application in the present proceedings. However, as I have already said, we must decide this appeal on the assumption that the Crown was the occupier of a factory. In an ordinary case between subject and subject a plaintiff who has been injured by reason of the failure of the occupier of a factory to fence securely dangerous parts of the machinery therein, or to maintain all fencing constantly in position in an efficient state while the parts required to be fenced were in motion or in use, will have a right to recover damages for his injury. In this action brought under the Claims against the Government and Crown Suits Act, 1912, the rights of the parties are to be as nearly as possible the same as in an ordinary case between subject and subject. It follows that the respondent has the right to recover damages in this action if he succeeds in proving that the Crown was the occupier of a factory and that he was injured by reason of the failure of the Crown as such occupier to fence securely dangerous parts of the machinery therein or to maintain all fencing constantly in position in an efficient state while the parts required to be fenced were in motion or in use. It is immaterial that the right which would be given effect in an ordinary case between subject and subject would be derived from the provisions of a statute which does not by its own force bind the Crown.
Downs
Williams