Moore v Commonwealth

High Court of Australia|1958-07-01|Before: Windeyer JJ

High Court of Australia Dixon C.J. Fullagar, Taylor, Menzies and Windeyer JJ. Moore v Commonwealth [1958] HCA 53

ORDER Cause remitted to the Supreme Court of New South Wales to be dealt with according to law.

The proceeding before us consists in a demurrer to two counts contained in a declaration in an action brought in the Supreme Court of New South Wales against the Commonwealth. There is a third count in the declaration to which there is no demurrer. The plaintiff alleges that he was injured in a factory occupied by the Commonwealth. The action is, of course, brought under Pt. IX of the Judiciary Act 1903-1955.

The two counts in the declaration to which the defendant Commonwealth demurs are based upon s. 25 (2) (a) of the Factories and Shops Act 1912-1954 N.S.W.. Paragraph (2) (a) falls into two limbs. The first count is based on the first limb and the second count on the second limb of s. 25 (2) (a). The purpose of the demurrers on behalf of the Commonwealth was to raise the question whether any liability rested upon the Commonwealth in consequence of the provisions of s. 25 (2) (a). Whether such a liability did so rest upon the Commonwealth must depend upon the operation of Pt. IX of the Judiciary Act considered in combination with s. 79 of that Act. During the course of the argument of the demurrer in the Full Court of the Supreme Court of New South Wales the argument took a form which led their Honours to the view that a question or questions as to the limits inter se of the constitutional powers of the Commonwealth and of the State arose. If that were so the consequence necessarily was that s. 38A of the Judiciary Act operated to deprive the Supreme Court of jurisdiction and s. 40A of the Judiciary Act accomplished the transfer of the cause to this Court. It is on this footing that the demurrer comes before us. It is perhaps desirable to add that in such a case s. 41 of the Judiciary Act makes provision for the continuation of proceedings before this Court. Section 42 of the Judiciary Act was enacted before ss. 38A and 40A. It enables the High Court to remit a proceeding which has been removed into the High Court if it appears that the cause does not really and substantially arise under the Constitution or its interpretation. The provision does not directly apply in terms to a removal under s. 40A but the Court has proceeded by analogy when it has appeared that a supposed removal under s. 40A has not really occurred because the matter does not involve a question inter se. We have formed the opinion that the arguments addressed to the Supreme Court did not raise what was in truth a question of the limits inter se of the constitutional powers of the Commonwealth and of the State and we do not think that such a question is intrinsic in the cause. We have had the advantage of hearing both Mr. Macfarlan and Mr. Murphy as to the course of the proceedings before the Full Court of the Supreme Court. Both counsel have had access to the transcript and shorthand notes of the argument. We have, of course, ourselves considered the pleadings and the Factories and Shops Act 1912-1954. Anxious as we are that there should be no delay in the action and that what after all is a jurisdictional or procedural matter should not be the occasion of embarrassment, we nevertheless are impelled to the conclusion that we have no jurisdiction over the cause or, in the old-fashioned phrase, seisin of the matter. We think that the demurrer does not in fact and did not raise a question of the limits inter se between the constitutional powers of the Commonwealth and the State. The question which the demurrer does raise appears to us to be entirely one of statutory interpretation in which the delimitation of statutory power can play no real part. Sub-section (2) (a) of s. 25 of the Factories and Shops Act 1912-1954 N.S.W., as I have said, falls into two limbs. The first limb provides that where in connexion with any process carried on in a factory dust, fumes or other impurities are generated or given off, of such a character or to such an extent that the inhalation thereof would be likely to be injurious or offensive to the persons employed therein, effective measures shall be taken by the occupier to prevent the accumulation in any workroom of such dust, fumes, or impurities and to protect such persons against the inhalation of such dust, fumes or impurities. The first count of the declaration alleges that the plaintiff was employed in a factory in connexion with a process of the kind described by this provision and that the Commonwealth was the occupier and ought to have taken effective measures to prevent the accumulation of such dust, fumes, etc. in order to protect the plaintiff against the inhalation thereof. The count then alleges breach. The second limb to par. (a) of sub-s. (2) of s. 25 provides that where the nature of the process makes it practicable exhaust appliances shall be provided and maintained as near as possible to the point of origin of the dust, fumes and impurities, so as to prevent the dust entering the air of any workroom. The paragraph provides that a factory in which there is a contravention of the sub-section should be deemed not to be kept in conformity with the material part or the Act. Section 56 then provides in effect for the imposition of penalties on persons responsible if a factory or shop is not kept in conformity with the Act.

The third count of the declaration, to which there is no demurrer, is based on common law liability as between master and servant.

The first two counts are based upon the supposition that by virtue of s. 79 and Pt. IX, in particular, s. 64, of the Judiciary Act the provisions of s. 25 (2) of the Factories and Shops Act are given an operation which will result in the imposition upon the Commonwealth of a tortious liability. It is not contested by the Commonwealth that ss. 64 and 79 have an ambulatory operation so that they are capable of including legislative changes made in State law after the Judiciary Act was enacted. The plaintiff maintains that s. 25 (2) (a) implies as between subject and subject that the employer occupier of the factory is civilly liable for damages to an employee who suffers injury by reason of a breach of the provisions. The plaintiff treats ss. 64 and 79 of the Judiciary Act as, so to speak, lifting this provision or consequence of a provision of State law and making it applicable to the Commonwealth in so far as it imposes a tortious liability. To us all this appears to be a question of statutory interpretation. We do not see how it involves a question as to the extent of the power of the Commonwealth or of the power of the State, nor do we see how any inter-action between the definition of powers inter se, whether they be powers both legislative or one legislative and the other executive, can affect the question. It is only when you encounter a limitation of the power to legislate or a limitation of the executive power (we leave out of account any question of judicial power as immaterial to this case) and you find the definition or application of the one affects the definition or application of the other that you get a question inter se. We have been unable to see how in this case any such question can exist. What is suggested is that it may arise from some attempt to interpret either the sections of the Factories and Shops Act to which I have referred, to interpret it in the light of the extent of State constitutional power, or on the other hand, to interpret s. 79 or s. 64 of the Judiciary Act in the light of the extent of the constitutional powers of the Commonwealth. The suggestion appears to us to be far fetched. We cannot see how from a consideration of the extent of the State constitutional power in relation to the Commonwealth or of the Commonwealth constitutional power in relation to the State any light upon the interpretation of any of the provisions to which I have referred can be obtained. The legislative provisions are there to be construed and their respective purposes are ascertainable as a matter of construction and to that construction the extent of constitutional powers behind them has no materiality. In the same way their mutual inter-action is dependent upon nothing but statutory construction.

We have given some time in the course of the argument to considering the possibility of pursuing some course which would enable us to give a decision of more practical assistance to the parties. For that purpose we have asked a number of questions concerning matters which lie strictly outside the scope of the demurrer; the result, however, has been to leave us with the impression that no very useful attempt to obtain our opinion upon the questions of law which the case may contain could be made unless by resort to s. 18 of the Judiciary Act. What bearing these questions will have on the ultimate result having regard to the existence of the third count is a matter upon which one may be sceptical. Section 18, however, does enable a judge of the Supreme Court in any case in which he is exercising federal jurisdiction to refer a case or any questions therein to this Court. It may be done by the statement of a case, or the reservation of a question for our consideration, or by directing a case or question to be argued before us. It is not for us to say what should be done in the circumstances of this case. Primarily it is a matter for the parties and if they or one of them make an application to the Supreme Court it will then be for the Supreme Court to say. But if the matter is to come here at all it does appear to us that some of the questions we have raised in the course of the argument might be suitably dealt with in any case that is stated or any reference that is made. For the practical purpose of who wins the action, however, one cannot help being alive to the fact that upon a trial much might be said under the third count to a jury which would make otiose some of the argument addressed to us on the first and second counts. As matters stand we must simply exercise the power to remit this matter to the Supreme Court.

There is just one word or two that I would wish to add, and that is with reference to the sentence in which the learned judges of the Supreme Court give their reasons for taking the view that this case raised a 40a point. Their Honours said: "The remaining matters argued before us lead to a consideration of the question whether the Factories and Shops Act binds or can bind the Crown in right of the Commonwealth."

If that question actually did arise, I should think the question of whether the Crown in right of the Commonwealth could be so bound would be an inter se question, but, as far as we have been able to gather, Mr. Murphy disclaims any suggestion that the State could of its own independent force bind the Commonwealth by the Factories and Shops Act, and says that he rests his case entirely on the construction of those sections of the Judiciary Act to which his Honour the Chief Justice has referred. That being so, I do not think it can be said that such a question has arisen as yet.

I agree that the matter is not properly before us and should be remitted.

At a glance

Court

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Before

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Judgment (10 paragraphs)

Parties