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)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Johnstone v The Commonwealth

Details

AGLC: Johnstone v The Commonwealth [1979] HCA 13
Case: [1979] HCA 13
Decision Date: 26 March 1979

CaseChat Overview and Summary

The High Court of Australia considered the case of *Johnstone v The Commonwealth*, brought by the applicant, Johnstone, against the respondent, the Commonwealth of Australia. The dispute concerned the validity of certain actions taken by the Commonwealth in relation to the applicant's property.

The central legal issue before the Court was whether the Commonwealth had lawfully exercised its executive power under section 61 of the Constitution to acquire or interfere with the applicant's property rights. Specifically, the Court had to determine if the actions constituted an acquisition of property for which just terms were constitutionally required under section 51(xxxi) of the Constitution, and if so, whether those terms were indeed just.

The Court reasoned that the Commonwealth's actions, while potentially impacting the applicant's property, did not amount to an "acquisition of property" in the constitutional sense. Applying established principles, the Court held that section 51(xxxi) of the Constitution is engaged only when the Commonwealth acquires property for its own purposes, not when it exercises its regulatory or executive powers that may incidentally affect property rights. The Court found that the Commonwealth's actions were within its executive power and did not involve the compulsory acquisition of property, thus section 51(xxxi) was not enlivened.

The High Court dismissed the applicant's application.

Orders