Marks v The Commonwealth

The High Court of Australia heard an appeal in *Marks v The Commonwealth*. The appellant, Marks, sought to recover damages from the respondent, The Commonwealth, for injuries sustained while he was a member of the Royal Australian Air Force (RAAF). The dispute centred on whether the appellant's service in the RAAF rendered him a "member of the King's naval or military forces" for the purposes of section 70 of the *Judiciary Act 1903* (Cth), which would have barred his claim.

The primary legal issue before the Court was the interpretation of section 70 of the *Judiciary Act*. Specifically, the Court had to determine whether service in the Royal Australian Air Force constituted service in the "King's naval or military forces" within the meaning of that provision. This interpretation was crucial to deciding whether the appellant was precluded from bringing an action against the Commonwealth for negligence.

The Court, by majority, held that the Royal Australian Air Force was not included within the phrase "King's naval or military forces" as it appeared in section 70 of the *Judiciary Act* at the relevant time. The reasoning focused on the historical context and the specific wording of the legislation, which did not explicitly encompass air forces. Consequently, the Court found that the appellant was not barred by section 70 from pursuing his claim. The appeal was allowed, and the case was remitted to the Supreme Court of New South Wales for assessment of damages.