Johnstone v The Commonwealth

[1979] HCA 13

HIGH COURT OF AUSTRALIA

Gibbs, Stephen, Jacobs, Murphy and Aickin JJ.

JOHNSTONE v. THE COMMONWEALTH

(1979) 143 CLR 398

26 March 1979

High Court

High Court—Practice—Power to remit action to any federal, State or Territory Court with jurisdiction with respect to subject-matter and parties—Action in tort against the Commonwealth—Whether power to remit only to Supreme Court of State in &hich cause of action arose—The Constitution (63 &64 Vict. c. 12), ss. 71, 75, 76—Judiciary Act 1903 (Cth), ss. 44, 56 (1).

Decisions

1979, March 26.
The following written judgments were delivered: -
GIBBS J. The plaintiff commenced in this Court an action against the Commonwealth of Australia claiming damages for negligence causing personal injuries. The alleged negligence occurred in South Australia. The plaintiff, who resides in New South Wales, applied for the action to be remitted to the Supreme Court of New South Wales. The following question has been referred to the Full Court: whether the Court or a Justice may under s. 44 of the Judiciary Act 1903, as amended, remit an action against the Commonwealth to any Supreme Court of a State or whether, on the contrary, it may only remit the action to the Supreme Court of the State in which the cause of action arose. (at p400)

2. The question is asked generally, but it must be understood in the light of the circumstances of the case. It is therefore sufficient to discuss whether an action against the Commonwealth in tort may be remitted to any Supreme Court of a State. As will be seen, exactly the same answer will be given in relation to actions in contract; whether the subject matter of any other actions would require a different answer to be given, it is not now necessary to discuss. (at p400)

3. The answer to the question before the Court depends on the true meaning of s. 44 of the Judiciary Act 1903, as amended. That section reads as follows:

"Any matter that is at any time pending in the High Court, whether originally commenced in the High Court or not, may, upon the application of a party or of the High Court's own motion, be remitted by the High Court to any federal court, court of a State or court of a Territory that has jurisdiction with respect to the subject-matter and the parties, and, subject to any directions of the High Court, further proceedings in the matter shall be as directed by the court to which it is remitted."

It is also necessary to consider s. 56 (1) of that Act, which provides:

"(1) 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." (at p401)

4. Section 44 gives to this Court power to remit a pending matter to any of the courts described in that section, including a court of a State "that has jurisdiction with respect to the subject-matter and the parties". So far as subject matter is concerned, no-one can doubt that the Supreme Court of New South Wales has jurisdiction with respect to actions in tort. So far as the parties are concerned, the Supreme Court of New South Wales has jurisdiction with respect to some actions in tort brought by an individual person against the Commonwealth - s. 56 makes that clear. The Supreme Court of New South Wales therefore "has jurisdiction with respect to the subject matter and the parties" unless those words mean "has jurisdiction to entertain the matter in question". The argument submitted on behalf of the Commonwealth is that this is in effect the meaning of those words - that s. 44 does not itself confer any jurisdiction and does no more than empower this court to remit a matter to a court that already has jurisdiction independently of s. 44. (at p401)

5. In support of the Commonwealth's argument much emphasis was laid on two propositions - (1) that the Commonwealth is immune from legal liability except such as is cast upon it by the Constitution or by statute, and (2) that no court has jurisdiction to entertain a suit against the Commonwealth unless that jurisdiction is conferred on it by the Constitution or by statute. These propositions may be readily conceded, but they do not advance the argument in the present case. The Commonwealth is without doubt liable in tort - whether that liability is cast on it by s. 56 of the Judiciary Act (as was held in Shaw Savill and Albion Co. Ltd. v. The Commonwealth (1940) 66 CLR 344, at pp 357-358 ; and Suehle v. The Commonwealth (1967) 116 CLR 353, at pp 355-356 ) or by ss. 56 and 64 of the Act in combination (see Maguire v. Simpson (1977) 139 CLR 362 and cases there cited) does not matter. This Court is invested with jurisdiction in any suit in which the Commonwealth is a party: see s. 75 (iii.) of the Constitution. There being no doubt that this Court has jurisdiction in an action brought against the Commonwealth in tort, no immunity of the Commonwealth will be impaired if this Court, by a remitter order, can confer on another court jurisdiction to exercise (subject to any directions this Court may give) part of the existing jurisdiction of this Court. The question therefore is simply one of construction: does s. 44 enable this Court, by a remitter order, to invest the court to which a matter is remitted with a jurisdiction which it did not previously possess, or can a remitter be made only to a court which is already invested with jurisdiction? (at p402)

6. There is no reason to give s. 44 a narrow, restrictive construction. If the Parliament had intended that remitter should be made only to a court already invested with jurisdiction it would have been very easy to say so. Strong reasons of convenience may in a particular case demand that a matter pending in this Court should be remitted to a Supreme Court other than that in which the cause of action arose. There may be claims in tort against the Commonwealth which did not arise in any State or Territory, e.g., claims that arose on the high seas or abroad; on the construction suggested by the Commonwealth, this Court would be constrained to hear such cases itself, there being no court already having jurisdiction to which they could be remitted. It would not serve any useful purpose to confine the words of s. 44 in the manner suggested and to fetter a power of remitter which was obviously intended to be large and general. The section does not compel a remitter to be made - it confers a discretion, to be exercised after due consideration of all the circumstances of the case - and it is not immaterial that the discretion which s. 44 confers is entrusted to this Court which is the ultimate judicial authority in the Commonwealth; provisions granting such a discretion should be liberally construed. (at p402)

7. I conclude that when a person making a claim against the Commonwealth in tort brings a suit against the Commonwealth in this Court, s. 44 empowers this Court to remit the matter to a court which has jurisdiction in tort and in matters in which the Commonwealth is a defendant, although that court would not have had jurisdiction if proceedings had been instituted there in the first instance. Since all the Supreme Courts of the States have jurisdiction in actions in tort, and jurisdiction to entertain proceedings in which the Commonwealth is a defendant, it follows that this Court has power to remit to any Supreme Court of a State a pending matter in which a claim in tort is brought against the Commonwealth. (at p402)

8. I would accordingly answer the question asked as follows:
The Court or a Justice may under s. 44 of the Judiciary Act 1903, as amended, remit an action against the Commonwealth in tort to any Supreme Court of a State. (at p402)

STEPHEN J. The circumstances of this case appear from other judgments. The short point calling for decision concerns the meaning of s. 44 of the Judiciary Act 1903, as amended. That section empowers this Court to remit pending matters to, inter alia, any court of a State "that has jurisdiction with respect to the subject matter and the parties". The question is, in effect, whether that description is apt to include a court which, while having undoubted jurisdiction as to subject matter, lacks jurisdiction as to parties as at the time when the order for remission is about to be made. (at p403)

2. Because the claim in this case arose in South Australia and was a claim in tort against the Commonwealth, both this Court and the Supreme Court of that State would have had jurisdiction- Judiciary Act, s. 56 (1) (b). However that sub-section clearly enough conferred no such jurisdiction on the courts of any other State; on the contrary, it is explicit in confining the bringing of claims against the Commonwealth to the courts of the State in which claims arise. (at p403)

3. If, then, s. 44 of the Judiciary Act is to be invoked as enabling the present action to be tried in the Supreme Court of New South Wales it can only be because it permits this Court, by the making of an order under s. 44, to create jurisdiction in a Supreme Court where none before existed: I do not so read it. On the contrary, as I would read it, in describing the variety of courts to any of which this Court may remit a matter, it includes as part of that description the words already quoted referring to their possession of jurisdiction both as to subject matter and as to parties. Unless a court to which remission is contemplated conforms to that description, which the Supreme Court of New South Wales does not, it is not, in my view, a court to which the power of remission extends. (at p403)

4. The possession by this Court, at the time of remission, of jurisdiction both as to subject matter and as to parties is undoubted, but this fact does not further the position. This Court's jurisdiction is to try the matter and, although power is now also given to remit it pursuant to s. 44 for trial in a State or federal court such as is described in the section, that is the limit of the power conferred: there is no power conferred upon this Court to invest with jurisdiction, in claims against the Commonwealth, courts which would not otherwise possess such jurisdiction. It would no doubt be desirable that this Court's power of remission should not be restricted in this way. However that is a matter for the legislature. (at p403)

5. I have had the advantage of reading the judgment of my brother Jacobs. I would adopt as my own the views there expressed on those aspects of this case which my brother's judgment has made it unnecessary for me to refer to. (at p403)

6. I would accordingly answer the question asked by saying that an action against the Commonwealth may only be remitted under s. 44 to the Supreme Court, or other appropriate court, of the State in which the claim arose. (at p404)

JACOBS J. The question is what is meant in s. 44 of the Judiciary Act 1903, as amended, by the words "federal court, court of a State or court of a Territory that has jurisdiction with respect to the subject-matter and the parties". The word "jurisdiction" can be used in a number of different senses but I am satisfied that in this context it has the meaning which the word has in ss. 75, 76 and 77 of the Constitution. It means the legal power and right to determine the matter. That legal right and power must exist both in respect of subject matter and of parties. It seems to me that the section presupposes a jurisdiction in the remitter court which it possesses independently of s. 44 itself. Otherwise the words add nothing. It would be the remitting court itself which gave jurisdiction to a court which otherwise had no jurisdiction. (at p404)

2. The determination of a matter in which the Commonwealth is a party is an exercise of the judicial power of the Commonwealth and in which the High Court has original jurisdiction. (Constitution, s. 75 (iii.)). A State court only has jurisdiction if it is invested with federal jurisdiction by a law of the Commonwealth passed by virtue of s. 77 (iii.) (The Commonwealth v. Limerick Steamship Co. Ltd. (1924) 35 CLR 69 at p 118 ). The law of the Commonwealth is found in s. 56 (1) of the Judiciary Act 1903 which provides inter alia that 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, if the claim arose in a State, in the Supreme Court of that State or in any court of competent jurisdiction of that State. The words "court of competent jurisdiction" refer to competency in respect of amount and subject matter and personality of the plaintiff, but not the personality of the defendant. The latter is dealt with by s. 56 itself. (at p404)

3. The Supreme Court or other court of a State thus only has jurisdiction with respect to an action against the Commonwealth if that court has been invested with that jurisdiction under s. 56. A condition of that investing is that the claim arose in the State. Therefore this Court under s. 44 can only remit to a court in the State where the claim arose or where otherwise under s. 56 (1) jurisdiction is conferred on a State court. (at p404)

4. On the pleadings in the present case the claim is alleged to have arisen in South Australia. Therefore the only Supreme Court which had jurisdiction under s. 56 (1) (b) and to which the action could be remitted under s. 44 was the Supreme Court of South Australia. I would answer the question accordingly. (at p404)

MURPHY J. The question referred by the Chief Justice is whether the Court or a Justice may, under s. 44 of the Judiciary Act 1903, as amended, remit an action against the Commonwealth to any Supreme Court of a State or whether, on the contrary, it may only remit the action to the Supreme Court of the State in which the cause of action arose. (at p405)

2. The question arises out of the contention based on the combined operation of s. 44 and s. 56 of the Judiciary Act which state:

"44. Any matter that is at any time pending in the High Court, whether originally commenced in the High Court or not, may, upon the application of a party or of the High Court's own motion, be remitted by the High Court to any federal court, court of a State or court of a Territory that has jurisdiction with respect to the subject-matter and the parties, and, subject to any directions of the High Court, further proceedings in the matter shall be as directed by the court to which it is remitted." "56. (1) 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." (at p405)

3. The Commonwealth contended that part from s. 56 of the Judiciary Act, the Commonwealth has immunity from suit in actions in tort or contract; that if it were not for s. 56, no court (including the High Court) has jurisdiction to entertain such an action. It contended that the immunity exists unless removed by statute. For this, it relied on the following: ". . . at common law the Crown was immune" from "liability for tort" (Shaw Savill and Albion Co. Ltd. v. The Commonwealth (1940) 66 CLR 344, at p 358 , per Dixon J.). "In the middle ages the reason why the King could not be sued in the royal courts was the feudal principle that a lord could not be sued in his own court." (Hogg, Liability of the Crown in Australia, New Zealand and the United Kingdom (1971), p. 3); and "At common law no proceeding, civil or criminal, was maintainable against the Sovereign in person, for it was said that as the courts were her own they could have no jurisdiction over her." (Halsbury's Laws of England 4th ed., vol. 8, p. 613, par. 966). (at p405)

4. The maintenance of legal conceptions appropriate to the feudal system is increasingly inappropriate in a modern democratic society. Today, governments are involved in undertakings and activities in respect of which there is no rational and just basis for treating them as immune from suit. This is reflected in the trend in other common law jurisdictions to abandon governmental immunity as a common law principle (for example, see Nieting v. Blondell (1975) 235 NW 2d 597 and the cases referred to in it). In Muskopf v. Corning Hospital District (1961) 55 Cal 2d 211; 11 Cal R 89; 359 P 2d 457, at p 460 Traynor C.J. said: "The rule of governmental immunity for tort is an anachronism, without rational basis, and has existed only by the force of inertia." Governmental immunity (especially immunity of the Commonwealth Government in the federal courts) founded on feudal notions is quite out of touch with modern Australian conditions. In Australia, the federal courts are not the Sovereign's courts in the sense used in the United Kingdom. Under the Commonwealth Constitution, the legislative power of the Commonwealth is expressed to be vested in the Queen, the Senate and the House of Representatives (s. 1); and the executive power is vested in the Queen (s. 61). However, the judicial power is not vested in the Queen, but in " a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction" (s. 71). (at p406)

5. Further, the Constitution treats the Commonwealth as an entity which may be sued in the High Court under s. 75 (iii.). In matters falling under other paragraphs of s. 75, the Commonwealth has no immunity. Section 78 - "The Parliament may make laws conferring rights to proceed against the Commonwealth or a State in respect of matters within the limits of the judicial power" - does not, in my opinion, detract from this conclusion. Maintenance of the Constitution may require that the High Court entertain actions against the Commonwealth in a variety of matters (including those which are often briefly described as actions "whether in contract or tort"). In my view, if s. 56 of the Judiciary Act were repealed, the Commonwealth would not be immune from such actions in this Court. (at p406)

6. However, this claim has been brought within s. 56; there is no immunity; the High Court has jurisdiction; the simple question is what is the effect of s. 44? Does it permit this Court to remit this matter only to a court which independently would have jurisdiction to entertain the matter? (at p406)

7. The words, "subject-matter", in s. 44 should not be construed as meaning "the matter". The Supreme Court of New South Wales has jurisdiction to entertain a claim by the plaintiff against the Commonwealth where the claim arose in the State (see s. 56 of the Judiciary Act). The Commonwealth contends that the words of s. 56, "A person . . . may in respect of the claim bring a suit . . . if the claim arose in a State . . . in the Supreme Court of that State . . . ", govern the meaning of "jurisdiction" in s. 44. In my opinion, such a literal construction would serve to narrow unduly what appears to be a very general power intended to be used for public convenience in the administration of justice. The section should be construed beneficially rather than narrowly. The words, "court . . . that has jurisdiction with respect to the subject-matter and the parties . . . ", should be read in a general sense. They operate, for example, to prevent the remission of a claim such as this to a Family Court, Licensing Court or Workers' Compensation Commission. But if a court can entertain tort claims against the Commonwealth, as every Supreme Court can, then the matter may be remitted to it. In my opinion, s. 44 empowers this Court to remit the matter to any Supreme Court of a State or Territory whether or not that Supreme Court has jurisdiction independently to entertain the matter. (at p407)

8. The question should be answered as proposed by Gibbs J. (at p407)

AICKIN J. I have had the advantage of reading the reasons for judgment of my brother Gibbs and am in complete agreement with them. I would accordingly answer the question in the manner which is set out in those reasons. (at p407)

2. There are, however, some further observations which I wish to make concerning the manner in which s. 44 of the Judiciary Act 1903, as amended, might operate on other heads of original jurisdiction conferred on this Court by s. 75 of the Constitution. As I understand the contrary view to that which is expressed by Gibbs J. it is that s. 44 requires that the court to which proceedings commenced in the High Court may be remitted must be one which would have had jurisdiction to hear and determine the proceedings if they had been originally commenced in that Court. If one seeks to apply that view to a case between residents of different States, State Supreme Courts would have jurisdiction in such a case if the defendant had entered an unconditional appearance to a writ issued out of such court. However, where the proceedings had been commenced in the High Court and the question of remission had arisen there would be no question of any appearance in a Supreme Court or of any voluntary submission to its jurisdiction. I can see no reason for regarding the entry of an appearance in the High Court as a submission to the jurisdiction of some unspecified Supreme Court. A Supreme Court would also have jurisdiction if the case were one where the defendant had been served while temporarily within the State, but again that has, ex hypothesi, not happened. A Supreme Court would have jurisdiction if the case were one in which under its rules it could order service out of the jurisdiction, or one in which service could be effected under s. 4 of the Service and Execution of Process Act 1901-1903 (Cth), read in the light of s. 13, and which also fell within s. 11 of that Act - see Tallerman &Co. Pty. Ltd. v. Nathan's Merchandise (Victoria) Pty. Ltd. (1957) 98 CLR 93 and Victoria v. Hansen (1960) VR 582 . (at p408)

3. It is my opinion that this Court is neither required nor authorized by s. 44 to consider the hypothetical question whether the defendant would have entered an unconditional appearance in such a case if commenced in the Supreme Court of a State, or whether he would have moved for a stay of proceedings without entering an appearance. Nor does it seem to me that s. 44 contemplates that, before remitting a case to the Supreme Court of a State, it should have to investigate the somewhat abstruse questions involved in the cases which I have just cited and require the parties to file affidavits to show whether a Supreme Court could order service out of the jurisdiction or would set aside service under the Service and Execution of Process Act or stay the proceedings. (at p408)

4. The problems to which I have referred are not confined to cases under par. (iv.) of s. 75, but could equally arise under par. (ii.) and perhaps par. (i.). (at p408)

5. These considerations appear to me to support the view that the effect of s. 44 is to confer federal jurisdiction on State courts in cases where this Court remits a case to them, and that federal jurisdiction is in those same matters in which this Court has federal jurisdiction by virtue of s. 75 of the Constitution. That jurisdiction is coextensive with the jurisdiction of this Court, subject only to the Supreme Court having jurisdiction over the same kind of party and the same kind of subject matter as that over which the High Court has jurisdiction, without investigation of the question whether the Supreme Court would have had jurisdiction (whether State or Federal) over the particular parties and the particular subject matter if the action in question had been commenced in that Supreme Court rather than in the High Court. (at p408)

6. This jurisdiction is conferred on the State courts by the Parliament, not by this Court. What s. 44 does is not to authorize this Court to confer federal jurisdiction on the State courts. What it does is to confer federal jurisdiction on State courts in cases where this Court is authorized to remit the proceedings to State courts and does in fact so remit. (at p409)

Orders

Order that the question referred to the Full Court be answered as follows:

The Court or a Justice may under s. 44 of the Judiciary Act 1903, as amended, remit an action against the Commonwealth in tort to any Supreme Court of a State.

Order that the Commonwealth pay the plaintiff's costs of and incidental to the reference to be taxed.