RW Miller & Co (South Australia) Pty Limited v McKain

The case of R W Miller & Co (South Australia) Pty Limited v McKain involved an application before the High Court of Australia. The applicant, R W Miller & Co (South Australia) Pty Limited, was the defendant, and William Thomas McKain was the respondent and plaintiff. The proceedings concerned the removal of a cause.

The central legal issue before the High Court was the source of power for section 79 of the Judiciary Act 1903 (Cth), and how it interacts with state laws, including choice of law rules, when federal jurisdiction is enlivened. The court was also required to consider the interpretation and application of section 118 of the Constitution, particularly in light of American jurisprudence concerning federal common law and the implications of decisions such as Swift v Tyson and Erie v Tompkins.

The applicant argued that the power for section 79 could be found in section 51(xxv) of the Constitution, as well as the incidental power related to Chapter III of the Constitution. The submission was that if federal jurisdiction is engaged, the court should be able to resolve the entire matter, which includes applying the law of the relevant jurisdiction, encompassing state laws and choice of law rules. Reference was made to Musgrave v The Commonwealth and Deputy Commissioner of Taxation v Brown to support the inclusion of choice of law rules. The applicant also addressed contentions regarding the doctrine of federal common law, noting that Swift v Tyson, which dealt with this doctrine in federal jurisdictions, was overruled by Erie v Tompkins. The applicant submitted that the outcome after Erie v Tompkins was analogous to the operation of section 79, ensuring a litigant is not in a different position whether proceeding in state or federal jurisdiction within a state. Furthermore, the applicant embraced an approach to section 118 of the Constitution that assigns it a limited substantive subject-matter, emphasizing its federal purpose and symmetry with section 117, rather than section 109.