Moore v The Commonwealth

The plaintiff, Patrick Herbert Freyne Moore, commenced an action in the Supreme Court of New South Wales against the Commonwealth of Australia seeking damages for personal injuries sustained while employed in a factory occupied by the Commonwealth. The first two counts of the plaintiff's declaration alleged breaches of section 25(2)(a) of the *Factories and Shops Act 1912-1954* (N.S.W.). The Commonwealth demurred to these counts, arguing that the provisions of the *Factories and Shops Act* did not extend to or bind it. The Full Court of the Supreme Court, believing the demurrer raised questions concerning the limits inter se of the constitutional powers of the Commonwealth and the States, declined to proceed and the demurrer was removed to the High Court of Australia under section 40A of the *Judiciary Act 1903-1955*.

The High Court was required to determine whether the demurrer, as argued, raised a question as to the limits inter se of the constitutional powers of the Commonwealth and the States, or if it was solely a matter of statutory interpretation. The plaintiff's case, as presented, relied on the operation of Part IX of the *Judiciary Act*, particularly sections 64 and 79, to make the provisions of the *Factories and Shops Act* applicable to the Commonwealth and impose a tortious liability. The Commonwealth contended that the *Factories and Shops Act* did not, by its own terms, bind the Commonwealth, and that sections 56 and 64 of the *Judiciary Act* did not operate to make the State Act applicable to the Commonwealth in this context.

The High Court held that the arguments presented on the demurrer did not raise a question as to the limits inter se of the constitutional powers of the Commonwealth and the States. The Court reasoned that the core issue was one of statutory interpretation, specifically whether the *Factories and Shops Act*, when read in conjunction with the relevant provisions of the *Judiciary Act*, imposed a duty on the Commonwealth as an occupier. The Court found that the extent of constitutional powers was not material to this interpretive exercise, as the meaning and effect of the statutes could be ascertained independently of such considerations. Consequently, the High Court concluded it lacked jurisdiction to hear the matter as a "question inter se" and remitted the cause back to the Supreme Court of New South Wales.