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The Commonwealth V Mewett (1997) 191 CLR 471: Common Law Actions, Commonwealth Immunity and Federal Jurisdiction

Published online by Cambridge University Press:  24 January 2025

Nick Seddon
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Type
Comment
Information
Federal Law Review , Volume 27 , Issue 1 , March 1999 , pp. 165 - 172
Copyright
Copyright © 1999 The Australian National University

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References

1 Seddon, N, “JS McMillan Pty Ltd v Commonwealth (1997) 147 ALR 419: The Trade Practices Act and Government Immunity” (1998) 26 FL Rev 401Google Scholar.

2 See the historical discussion by Gummow and Kirby JJ in Commonwealth v Mewett (1997)191 CLR 471 at 542-545. These precepts were more applicable to torts cases than to contract cases. The petition of right enabled a citizen to seek redress for breach of contract by the Crown, though this procedure gave no absolute right to the citizen whose status was that of a suppliant: Commonwealth v Miller (1910) 10 CLR 742 at 756 per Isaacs J.

3 P Finn, “Claims Against the Government Legislation” in P Finn (ed),Essays on Law and Government, vol 2, The Citizen and the State in the Courts (1996).

4 (1997) 191 CLR 471.

5 (1994) 126 ALR 391.

6 (1995) 59 FCR 391.

7 (1994) 179 CLR 297.

8 The effect of the expiry of the limitation period is usually that a claim is not enforceable, that is, there is a procedural bar to the claim but the claim is still extant. However, the Limitation Act 1969 (NSW), s 63 provides that the cause of action is extinguished once the limitation period has expired. This legislation applied to Rock's and Brandon's cases. The Court did not decide (and did not have to decide) whether it would be an acquisition of property to destroy a cause of action which was procedurally barred but substantively still alive. Gummow and Kirby JJ expressed the view that a statute barred cause of action may still have “sufficient substance” to answer the constitutional description of “property”: (1997) 191 CLR 471 at 534. Dawson J also appeared to be of the same view at 511-512.

9 (1997) 191 CLR 471 at 552-553. The State limitation legislation was only invoked or attracted, according to Gummow and Kirby JJ, either by the act of bringing suit or possibly by the act of filing a defence by the Commonwealth (at 556-557).

10 The liability of the Commonwealth will be discussed here. The same arguments apply to the States in cases of federal jurisdiction, that is, where a State is a party to a suit covered by the Constitution, s 75(iv): (1997) 191 CLR 471 at 549 per Gummow and Kirby JJ.

11 Georgiadis (1994) 179 CLR 297 at 305-306 per Mason CJ, Deane and Gaudron JJ. In Mewett Gummow and Kirby JJ hinted that even the destruction of a purely statutory right might be an acquisition of property: (1997) 191 CLR 471 at 552.

12 (1923) 32 CLR 200.

13 Werrin v Commonwealth (1938) 59 CLR 150 at 167.

14 Ibid at 168.

15 (1997) 191 CLR 471 at 550-551 (footnote reference omitted).

16 Ibid at 531.

17 lbidat496.

18 Ibid at 498.

19 Ibid at 512.

20 Ibid at 513.

21 Maguire v Simpson (1977) 139 CLR 362;Commonwealth v Evans Deakin Industries Ltd (1986) 161 CLR254.

22 Choice of Law (Limitation Periods) Act 1993 (NSW).

23 (1997) 191 CLR 471 at 526.

24 Ibid at 521. See also the same approach to Rock's and Brandon's claims at 527.

25 Ibid at 554-555.

26 Ibid at 492-493.