Removing the government's immunity from suit in federal cases

Melbourne University Law Review, Dec, 2006 by Graeme Hill

A person making a claim against the Commonwealth, whether in contract or in tort, may in respect of the claim bring a suit against the Commonwealth:

(a) in the High Court;

(b) if the claim arose in a State or Territory--in the Supreme Court of that State or Territory or in any other court of competent jurisdiction of that State or Territory; or

(c) if the claim did not arise in a State or Territory--in the Supreme Court of any State or Territory or in any other court of competent jurisdiction of any State or Territory. (18)

Section 58 provides that claims against a state in federal jurisdiction, 'whether in contract or in tort', may be brought in the supreme court of that state or (if the High Court has original jurisdiction) in the High Court.

There are obvious limits on the scope of the rights to proceed conferred by ss 56 and 58 of the Judiciary Act. Both provisions are limited to claims 'whether in contract or in tort', and only apply in specified courts.

2 Section 64

The High Court's decision in Commonwealth v Evans Deakin Industries Ltd (19) indicates that a right to proceed in federal cases could also derive from s 64 of the Judiciary Act. (20) Section 64 provides:

   In any suit to which the Commonwealth or a State is a party, the
   rights of parties shall as nearly as possible be the same, and
   judgment may be given and costs awarded on either side, as in a
   suit between subject and subject.

Unlike ss 56 and 58 of the Judiciary Act, s 64 applies to all cases in federal jurisdiction, (21) and is not limited by reference to the subject matter of the claim, or to particular courts.

Writing in 1996 (before Mewett was decided by the High Court), Susan Kneebone stated that '[t]he bulk of authority favours the view that s 78 of the Constitution, read with ss 56 and 64 of the Judiciary Act, is responsible for the removal of the Commonwealth's immunity in tort.' (22)

B Mewett--The Right To Proceed against the Commonwealth

In Mewett, (23) however, a plurality of the High Court held that laws enacted under s 78 of the Australian Constitution were not the source of the right to proceed when the Commonwealth was sued in contract or tort. The immediate question in that case was whether Commonwealth legislation extinguishing the right to bring common law claims against the Commonwealth amounted to an 'acquisition of property' in its operation on time-barred claims. In considering whether these claims were 'property' for the purposes of s 51(xxxi) of the Australian Constitution, the Court had to determine the source of the Commonwealth's liability, and whether these claims could be said to derive only from provisions such as ss 56 or 64 of the Judiciary Act. All members of the Court held that common law claims against the Commonwealth were 'property', even if time-barred. However, there were two views expressed on the source of the right to proceed.

Four members of the High Court--Gummow and Kirby JJ in a joint judgment, with Brennan CJ and Gaudron J agreeing--held that the right to proceed against the Commonwealth in cases in contract or tort derives from s 75(iii) of the Australian Constitution, which confers original jurisdiction on the High Court in matters in which the Commonwealth is a party. (24) That conclusion has been repeated in several subsequent decisions, without further discussion. (25)