Opinion Number. 1508

Subject

claims against the commonwealth whether alien may maintain suit against commonwealth: whether citizen of United States is entitled to sue Commonwealth in Australian Courts: ‘any person’

Key Legislation

Judiciary Act 1903 s 56

Date
Client
The Secretary, Prime Minister

The Official Secretary to the Commissioner-General for Australia in USA has forwarded the following communication for advice:

I desire to advise you that this office has received the following inquiry from Mr Warren F. Farr of Messrs. Ropes, Gray, Boyden and Perkins, 50 Federal Street, Mass:

I should appreciate it, if you would obtain from the Attorney-General’s Department, Canberra, an opinion on the question whether section 56 of the Judiciary Act 1903–1910 permits an alien to sue the Commonwealth of Australia or whether, as a matter of practice, such a suit may be brought. A reply by mail will reach us early enough for our purpose.

I understand Messrs. Ropes, Gray, Boyden and Perkins are handling a matter which involves a question of the right of an Australian citizen to sue the United States in the Court of Claims to recover taxes illegally assessed. It becomes material to know whether a citizen of the United States is entitled to sue the Australian Commonwealth in the Australian Courts. A search through the Australian statutes has revealed no provision expressly allowing aliens to sue the Commonwealth.

It would be appreciated if this office could be advised, with a view to forwarding an appropriate reply to Mr. Warren F. Farr.

Section 56 of the Judiciary Act 1903–1927 is as follows:

56. Any person making any claim against the Commonwealth, whether in contract or in tort, may in respect of the claim bring a suit against the Commonwealth in the High Court or in the Supreme of the State in which the claim arose.

In my view, the term ‘any person’ would include an alien friend, and I think therefore that an alien in Australia would be entitled to bring a suit in contract or in tort against the Commonwealth in the High Court of Australia or the Supreme Court of a State. The fact that the plaintiff was an alien would not prevent his bringing such a suit if, in all other respects, he was entitled to do so.

In the case of Zachariassen v. The Commonwealth and another 24 C.L.R. p. 166 and Blom v. The Commonwealth 24 C.L.R. p. 189, the High Court held that the plaintiffs, who were aliens, were entitled to maintain actions for damages against the Commonwealth with respect to the refusal to issue certificates of clearance for their ships under the Customs Act.

[Vol. 25, p. 606]