Maguire v Simpson

Maguire v Simpson - [1977] HCA 63 - HCA 1977 case summary — Zoe

[16]

Quite apart from the debate whether s. 64 applies only to matters of procedure or extends also to substantive law there exists some uncertainty concerning the content of the qualifying phrase "as nearly as possible". In The Commonwealth v. Baume Griffith C.J. described it as meaning "as far as the provisions the aid of which is invoked are applicable to such a party as the Commonwealth" [69] ; his Honour regarded as not so applicable a provision which required affidavits to be sworn by a party in person. O'Connor J. took a like view [70] . However it was not only the fact that the Commonwealth was not a natural person, and hence incapable of swearing an affidavit, that the Chief Justice thought might bring into operation the qualification involved in "as nearly as possible"; any inconsistency with "the notion of a sovereign State" would have a like effect and the Chief Justice instanced process for contempt as something accordingly excluded from possible application to the Crown [69] . In The Commonwealth v. Miller [71] Isaacs J. gave to "as nearly as possible" the effect of excluding from application to the Crown "all coercive action incompatible with the dignity of the Crown and unwarranted by the express words of the enactment"; his Honour would thus have viewed this qualifying phrase as excluding from application to the Crown any provision inconsistent with its dignity. He regarded the furtherance of public justice, which is the concern of s. 64, as obliged to give way in face of "the still higher consideration of the general welfare" [71] - and accordingly also regarded the qualifying phrase as preserving an adequate measure of Crown privilege in the discovery of documents. Higgins J. regarded s. 64 as not carrying the process of assimilation of Crown to subject so far, as to take away, in the case of orders for discovery, the "privilege of the Crown's officers as to affairs of State, etc." [73] . In Marconi's Wireless Telegraph Co. Ltd. v. The Commonwealth [No. 2] [74] the Court was unanimous in concluding that Crown privilege against discovery was not abrogated by the effect of s. 64. The Chief Justice regarded a claim to privilege as examinable but if, on examination, it proved to be well founded the Crown might still take advantage of it [75] . Barton J. appears to have taken a similar view; Isaacs J. took the opportunity of repeating what he had said in Miller's Case [72] and of emphasizing that the privilege of public interest remained available to the Crown.

[18]

More recent cases throw little further light upon the effect of the qualification, "as nearly as possible". In Asiatic Steam Navigation Co. Ltd. v. The Commonwealth [76] the joint judgment of Dixon C.J., McTiernan and Williams JJ. suggests that where "purposes or functions peculiar to Government" are in question, s. 64 may have but limited application [77] - and see the reference to ships of war [78] . On the other hand Kitto J. speaks [79] of s. 64 as making the law as between subjects applicable "as completely as possible" to the Crown, any "special position of the Crown" being put out of account [80] . This would appear to give a relatively narrow field of operation to the words "as nearly as possible". In South Australia v. The Commonwealth [81] Dixon C.J. observed that the necessary difference between principles of private and public law had to be borne in mind in applying the law as between subject and subject to a cause concerning the rights and obligations of government. In Downs v. Williams [1] Gibbs J. remarked that "not every statute which imposes a duty on a subject can be rendered applicable to the situation of the Crown". The observations of Owen J. [2] , if they are to be understood as concerned with the effect of "as nearly as possible", would seem to give that phrase a very wide operation and one which I find difficult to reconcile with that not inconsiderable number of cases in which the substantive law applicable to subjects has been applied to the Crown. To these references may be added what was said by Newton J. inThe Commonwealth v. Burns [3] in relation to the Chief Justice's observations in South Australia v. The Commonwealth [4] to which I have already referred and, in particular, to the judgment of Else-Mitchell J. in The Commonwealth v. Lawrence [5] . In the latter case his Honour [6] provides instances of the possible operation of the phrase "as nearly as possible", instances which serve to emphasize the variety of cases to which the phrase may possibly have occasion to operate.

[46]

Support for this broad view of the section is provided by the decision of the Privy Council in Farnell v. Bowman [6] on ss. 2 and 3 of the Claims against the Government Act, 1876 N.S.W., where the sections were held to apply to substantive as well as to procedural rights. There the statute contained an earlier reference to "proceedings" which perhaps assisted the conclusion that the reference to "rights" was not limited to matters of procedure. However, it is not a feature which in my view supplies a sufficient point of distinction from s. 64. In Baume v. The Commonwealth [7] , this Court unanimously held that s. 64 should be given a construction similar to that favoured in Farnell v. Bowman, being of opinion that the language of the section was indistinguishable from that of s. 3 of the Claims against the Government Act, 1876. Although Isaacs J. in Griffin v. South Australia [8] thought that s. 64 was confined to procedural rights, the current of opinion has flowed in the opposite direction. Pitcher's Case [9] , to which I have referred in another connexion, is authority for the proposition that the section applies to substantive as well as procedural rights. There all the members of the Court held that ss. 56 and 64 of the Judiciary Act operated to pick up and apply the provisions of the Compensation to Relatives Act, 1897 N.S.W.. In Asiatic Steam Navigation Co. Ltd. v. The Commonwealth [10] , Kitto J. said that the rights referred to in s. 64 included substantive as well as procedural rights and that the section made applicable to the Commonwealth and State "the whole body of the law by which the rights of the parties would be governed if the Commonwealth or State were a subject instead of being the Crown". Fullagar J. disagreed, asserting that s. 64 does not operate to pick up and apply to the Commonwealth a statute the express terms of which exclude the Crown [11] . Although Dixon C.J., McTiernan and Williams JJ. left the question undecided [12] , they said nothing to indicate their support for the view that the rights referred to in the section are procedural only.

[66]

It has been held that the Commonwealth Trading Bank of Australia is "the Commonwealth or a person suing or being sued on behalf of the Commonwealth" within the meaning of those words in s. 75 (iii.): Inglis v. Commonwealth Trading Bank of Australia [24] . Section 78 refers only to the Commonwealth and not to a person being sued on behalf of the Commonwealth but I do not think that the difference in language has a significant difference in effect. Section 75 (iii.) deals with cases where the Commonwealth in substance, though not necessarily in form, is suing or being sued. The intention was to make the words as comprehensive as possible. I do not think that it was intended to make a definitive categorization between the Commonwealth on the one hand and on the other hand a person suing or being sued on behalf of the Commonwealth. In this context the word "Commonwealth" in s. 78 should be taken to embrace not only the case where in form the Commonwealth is the actual party on the record but also the case where the actual party is a person being sued on behalf of the Commonwealth. Section 64 of the Judiciary Act should be construed in the same manner. I would, however, add, although in the event it is not necessary to be decided, that it does not follow that, because the Bank falls within the descriptions in s. 75 (iii.) and the description in s. 78 of the Constitution, it is necessarily the Crown in right of the Commonwealth so that there is attracted to it any prerogative immunity of the Crown in respect of limitation of action. The latter subject matter and the subject matter of s. 75 (iii.) are different. Section 75 (iii.) should be given a wide construction and effect: the Banking Case [25] ; Inglis's Case [26] , per Barwick C.J. On the other hand the Crown prerogative does not generally extend as widely. Cf. Rural Bank of New South Wales v. Bland Shire Council [27] ; Rural Bank of New South Wales v. Hayes [28] . But on this aspect I do not need to express a concluded view. Section 64 of the Judiciary Act is applicable and therefore the rights of the Bank (as "the Commonwealth" within the meaning of the word in that section) and of a person sued by it for the recovery of money lent are to be as nearly as possible the same as in a suit between subject and subject. In a suit between subject and subject ss. 14 (1) and 63 (1) of the Limitation Act would apply and those sections likewise would be applicable in an action by the Bank to recover the balance of a current account.

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Judgment (79 paragraphs)

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