Opinion Number. 1568

Subject

CROWN SUITS CROWN SUITS: suits by or against the Crown in right of the Commonwealth : JURISDICTION: right to discovery and interrogatories: claim to privilege on account of public interest or public policy: APPLICATION OF STATUTE OF LIMITATIONS

Key Legislation

Judiciary Act 1903 ss 56, 61, 63, 64, 65, 66, 67: Crown Suits Act 1908 (nz): Crown Suits Amendment Act 1910 (nz) ss 3, 4

Date
Client
Attorney-General of New Zealand

I am in receipt of your letter dated 25 August 1934 relating to the abovementioned subject, and am pleased to give you the following information.

Suits by or against the Crown in Australia may be either suits by or against the Crown in right of the Commonwealth or by or against the Crown in right of the States. The information in this letter is confined to suits of the former class; information relating to suits of the latter class may be obtained from the Attorneys-General of the various States.

Section 56 of the Judiciary Act 1903–1934 (a copy of which is forwarded herewith) provides that any person making any claim against the Commonwealth, whether in contract or tort, may bring a suit against the Commonwealth in the High Court or the Supreme Court of the State in which the claim arose. It will be seen that this section is similar to clause 4 of the draft bill submitted by the New Zealand Law Society. There is no provision in the law of the Commonwealth similar to clause 3 of the draft bill.

Section 56 of the Judiciary Act was considered by the High Court in Baume v. The Commonwealth 4 C.L.R. 97. It was contended in this case that the Commonwealth was not liable in respect of the Plaintiff’s claims (which sounded in tort) because the Commonwealth was entitled to avail itself of the old rule that an action of tort cannot be brought against the Crown. The Court was of opinion that this contention could not be sustained, in view of section 56. O’Connor J., in his judgment, at p. 119 said:

The Judiciary Act 1903, as if to emphasize the equality of subject and Crown in litigation, gave the right directly to the subject to sue the Commonwealth … The Commonwealth acts, as all Governments must act, by its servants, and whenever the relation of the Commonwealth is such that in a similar case an individual would be liable for the acts of his servant, the Commonwealth is liable for the acts of its servants. This applies to cases of contract, cases of wrongful interference with property, and cases of neglect to perform a statutory duty. The decision in the case was applied in Pitcher v. The Federal Capital Commission 41 C.L.R. 385.

Provisions similar to the provisions of sections 61, 63, 64, 65, 66 and 67 of the Judiciary Act are contained in clauses 5, 7, 8, 10 and 11 of the draft bill. There is no provision in the Judiciary Act similar in terms to clause 9 of the draft bill, but it is considered that rights similar to those expressly conferred by that clause are conferred by section 64 of the Judiciary Act.

There is no law of the Commonwealth corresponding to the Crown Suits Act 1908, or the Crown Suits Amendment Act 1910, and there are no restrictions similar to those contained in sections 3 and 4 of the latter Act.

Claims by the Commonwealth may be brought in any Court which has jurisdiction to entertain them.

It is clear that one of the rights referred to in section 64 of the Judiciary Act is the right to discovery and interrogatories (Commonwealth v. Miller, 10 C.L.R. 742; Marconi’s Wireless Telegraph Company Limited v. The Commonwealth, 16 C.L.R. 178; Jamieson v. Downie 1923 A.C. 691; Griffin v. The State of South Australia, 35 C.L.R. 200).

The power to order discovery does not destroy any claim to privilege on account of public interest, or public policy (Marconi’s Wireless Telegraph Company Limited v. The Commonwealth, supra; The Commonwealth v. Miller, supra, at p. 758, per Higgins J.)

The question has been raised departmentally but not, so far as I am aware, litigated, whether the effect of section 64 of the Judiciary Act has abrogated the rule that the Statute of Limitations did not apply to proceedings by or against the Crown (Rustomjee v. Regina, L.R.1 Q.B. 487; Cayser Irvine and Company v. Board of Trade, 1927 1 K.B. 269; 43 L.Q.R. 157). It will be seen from the following decisions that there is room for a difference of opinion in regard to the question, so far as similar provisions in various State Acts are concerned (Dumaresq v. Robertson, 2 Legge’s New South Wales Cases 1291; Elliott v. Baker 1 N.S.W. L.R. 296; De Rossi v. Walker 2 S.R. (N.S.W.) 249; Fisher v. R., 6 A.L.R. 233, 1903, A.C. 158.)

So far as section 64 is concerned, the inclination of my own opinion is that either the Commonwealth or the subject may plead the Statute of Limitations in the same manner as in a suit between subject and subject.

[Vol. 27, p. 617]