Downs v Williams

Downs v Williams - [1971] HCA 45 - HCA 1971 case summary — Zoe

[28]

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.

[29]

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.

[32]

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.

[50]

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.

[55]

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.

[58]

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.

[60]

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] .

[75]

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.

[87]

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.

[91]

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.

[101]

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.

[111]

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.

[113]

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.

[115]

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.

At a glance

Court

Decision date

Before

Source

Judgment (115 paragraphs)

Parties