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Of Kings and Officers — The Judicial Development of Public Law

Published online by Cambridge University Press:  24 January 2025

Bradley Selway
Bradley Selway*
Affiliation:
Justice of the Federal Court of Australia; University of Adelaide
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Extract

The relationship of the King to the persons who actually perform the work of government has changed profoundly over the last 250 years. The purpose of this article is to analyse those changes and to analyse how the common law reacted (or failed to react) to them.

For this purpose I propose first to consider the structure of English government in about 1750. Although the structure was already evolving into a more modern form, in 1750 it was still a relatively simple governmental structure based upon a sovereign Monarch and upon public officers, many of them in regional areas.

At that time the common law clearly distinguished between the Monarch and his officers. Although the extent and importance of the various legal powers and immunities of the Monarch are now often overstated, the Monarch did possess special powers and immunities which reflected or, at least, were derived from his sovereignty.

Type
Research Article
Information
Federal Law Review , Volume 33 , Issue 2 , June 2005 , pp. 1 - 52
Copyright
Copyright © 2005 The Australian National University

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Footnotes

I acknowledge the assistance of my Associate, Su Hamsanathan in checking the accuracy of citations. I also thank Justice Paul Finn of the Federal Court for his helpful comments and the anonymous reviewer for his or her constructive and useful suggestions.

References

1 Talcott, Parsons (ed), Max Weber: The Theory of Social and Economic Organization (1947) 341Google Scholar ff: ‘Obedience is not owed to enacted rules, but to the person who occupies a position of authority by tradition or who has been chosen for such a position on a traditional basis. What determines the relations of administrative staff to the chief is not the impersonal obligations of office, but personal loyalty.‘

2 Parsons, above n 1, 329-41; George, Ritzer, Sociological Theory (4th ed, 1996) 127–8Google Scholar.

3 Julius Stone, The Province and Function of Law (1946) 197.

4 Jeffrey, Goldsworthy, The Sovereignty of Parliament (1999)Google Scholar; John, Allison, A Continental Distinction in the Common Law (rev’d ed; 2000) 75–6Google Scholar; H T, Dickinson, ‘The Eighteenth Century Debate on the Sovereignty of Parliament’ (1976) 26 Transactions of the Royal Historical Society (5th Series) 198Google Scholar. Interestingly, the supremacy of the Parliament over the King after 1688 was not accepted in the American colonies, where it was argued, relying upon Calvin’s Case (1608) 7 Co Rep 2a; 77 ER 377 that they were governed by the King personally (rather than by ‘the Crown’ of England) and that consequently they were not subject to laws (particularly taxation) made by the English Parliament: see Charles McIlwain, The American Revolution: A Constitutional Interpretation (1923); Barbara, Black, ‘The Constitution of Empire: The Case for the Colonists’ (1976) 124 University of Pennsylvania Law Review 1157Google Scholar; Daniel, Hulseboch, ‘The Ancient Constitution and the Expanding Empire: Sir Edward Coke’s British Jurisprudence’ (2003) 21 Law & History Review 439Google Scholar.

5 The Monarch in his or her “official” capacity was perceived as a corporation sole with perpetual succession: see Sir William Blackstone, Commentaries on the Laws of England, Vol 1 (1783 ed) 469; contrast Frederic, Maitland, ‘The Crown as Corporation’ (1901) 17 Law Quarterly Review 131, 134–5Google Scholar; Pitt, Cobbett, ‘“The Crown” as representing “The State“’ (1903) 1 Commonwealth Law Review 23, 25–7Google Scholar; SirNorman, Chester, The English Administrative System 1780–1870 (1981) 93–6Google Scholar. Historically the dual capacities of the Monarch — one personal and the other official – was of some constitutional significance: see Martin, Loughlin, ‘The State, the Crown and the Law’ in Maurice, Sunkin and Sebastian, Payne, The Nature of the Crown (1999) 33, 55–9Google Scholar and see above n 4 re the American colonies. The concept of the Crown as a ‘corporation sole’ involved an early attempt to deal with this issue. It was largely resolved by the introduction of the Civil List (see below). In any event, in most of the Monarch’s realms, and certainly Australia, the Monarch’s functions were almost entirely ‘official’: see China Ocean Shipping v South Australia (1979) 145 CLR 172, 220.

6 Blackstone, above n 5, 250; see also at 190; Chester, above n 5, 3.

7 A number of public offices (particularly hereditary ones) did not separate from the Royal Household and still remain associated with it. Some continue to exist and to have ceremonial functions or functions relating to the management of the Queen’s household or the personal prerogatives, particularly relating to Honours. Examples include the Lord Chamberlain, the Earl Marshall and the Keeper of the Privy Purse.

8 See Town Investments v Department of Environment [1978] AC 359, 398.

9 Blackstone, above n 5, 338.

10 Frederic, Maitland, The Constitutional History of England (1908) 416Google Scholar.

11 Michael, J Braddick, State Formation in Early Modern England c 1550–1700 (2000) 21Google Scholar; SirWilliam, Blackstone, Commentaries on the Laws of England, Vol 2 (1783 ed) 346–7Google Scholar; see also Lanes Case (1586) 2 Co Rep 16b; 76 ER 423; Butterworths Halsbury’s Laws of England Vol 7 (3rd ed) [661]Google Scholar.

12 William, Holdsworth, A History of English Law Vol 10 (1938) 494–5Google Scholar; Chester, above n 5, 8–11.

13 Chester, above n 5, 67. See also Paul, Finn, Law and Government in Colonial Australia (1987) 8Google Scholar, 11.

14 Blackstone, above n 5, 338 ff.

15 As to the office of the Sheriff, see Braddick, above n 11, 30; William, Holdsworth, A History of English Law Vol 1 (7th ed, 1956) 67–8Google Scholar; Maitland, above n 10, 232–4, 485–9; Cameron, Churchill, The Law of the Office and Duties of the Sheriff (2nd ed, 1882)Google Scholar; Blackstone, above n 5, 339–44; James, Parker, Conductor Generalis Or the Office Duty and Authority of Justices of the Peace &c (1722) 235Google Scholar ff.

16 As to the office of Coroner, see Holdsworth, above n 15, 85; Ann, Lyon, Constitutional History of the United Kingdom (2003) 43–4Google Scholar; Blackstone, above n 5, 348–9.

17 As to the modes of appointment of Justices of the Peace, see Joseph, Chitty, Prerogatives of the Crown (1820) 79–80Google Scholar; Holdsworth, above n 15, 290–1; Butterworths Halsbury’s Laws of England Vol 21 (2nd edition, 1932) 515Google Scholar.

18 As to the duties of constables, see R v Wyatt (1705) 2 Ld Raym 1189, 1192–1193; 92 ER 286, 288; Edith, Henderson, Foundations of English Administrative Law (1963) 12–8Google Scholar; Parker, above n 15, 53–67.

19 James, Stephen, Mr Sergeant Stephen’s New Commentaries on the Laws of England (8th ed, 1880) Vol III 43Google Scholar ff.

20 Blackstone, above n 5, 354. As to the office and powers of the Justices of the Peace see generally Charles, Beard, The Office of Justice of the Peace in England (1904)Google Scholar; Parker, above n 15.

21 See Local Government Act 1888 (UK) 51 & 52 Vict c 41; Local Government Act 1894 (UK) 56 & 57 Vict c 73; Lyon, above n 16, 154–5, 360; Finn, above n 13, 8–9.

22 Maitland, above n 10, 39–54.

23 Blackstone, above n 5, 120; John, Wade, The Extraordinary Black Book: An Exposition of Abuses in Church and State, Courts of Law Etc (3rd ed, 1832) 454–5Google Scholar, 464–75.

24 Henderson, above n 18, 35–45.

25 Blackstone, above n 5, 116–120.

26 Ibid 111–114. The established church in England had the practical result that the church performed a variety of administrative tasks: see Wade, above n 23, 1–137; H J, Hanham, The Nineteenth Century Constitution 1815–1914 (1969) 417Google Scholar ff.

27 Holdsworth, above n 12, 154, 171–2; Parker, above n 15, 122–9. As to the duty of parishes and corporations to maintain roads and bridges, see Henderson, above n 18, 18–20. In the late 18th and the early 19th centuries many of these responsibilities were conferred upon some town corporations or upon Turnpike Trustees pursuant to a variety of specific statutes.

28 Thomas, Macaulay, History of England from the Accession of James II (1957) vol 1Google Scholar ch 3(2); Herbert, Fisher, A History of Europe (1935) vol 2, 787–8Google Scholar.

29 Braddick, above n 11, 11, 45 describes the English ‘State’ in 1700 as being a ‘network of offices’. This would seem to be an apt description at least if this network is understood as including the monarchy itself.

30 See Chitty, above n 17, 80–1. For example, the King could not create a public office inconsistent with one already in existence: see King v Amery (1790) 2 Br 336, 360–5; 1 ER 981, 997–1000.

31 As to the manner of appointment, see generally Chester, above n 5, 13–4; Chitty, above n 17, 84–5.

32 See R v Kempe (1695) 1 Ld Raym 49; 91 ER 929; Henderson, above n 18, 76–9.

33 Chitty, above n 17, 80–1.

34 The presumption was inapplicable if the appointment was made by someone other than the King: see R v Richardson (1758) 1 Burr 517; 97 ER 426; R v The Mayor, Aldermen and Burgesses of Doncaster (1729) 2 Ld Raym 1564; 92 ER 513. It was also inapplicable if the appointment was otherwise than by commission eg by letters patent: see Henry, Parris, Constitutional Bureaucracy (1969) 22–3Google Scholar.

35 Dickson v Combermere (1863) 3 F&F 527; 176 ER 236. There is authority that the Crown lacked the capacity to make an appointment other than at pleasure: see Dunn v R [1896] 1 QB 116, 118–9. This would seem to be contrary to other and better authority: see, eg, Anonymous 3 Salked 806; 91 ER 806; Young v Adams [1898] AC 469, 473; Shenton v Smith [1898] AC 229; see Chitty, above n 17, 82–3.

36 Chitty, above n 17, 85–6; Matthew, Bacon, The New Abridgement of the Law (7th ed, 1832) vol 8, 41–4Google Scholar.

37 Hutchins, Sergeants Case (1694) 3 Salked 252; 91 ER 807; Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1, 15; Chitty, above n 17, 87–8; Comyns, above n 46, 137; Bacon, above n 36, 35–7.

38 Chitty, above n 17, 88.

39 For example, for proven misbehaviour where the appointment was during good behaviour: see Christine, Wheeler, ‘The Removal of Judges from Office in Western Australia’ (1979–1982) 14 University of Western Australia Law Review 305Google Scholar.

40 Maitland, above n 10, 317–8; Holdsworth, above n 15, 379–84.

41 Blackstone, above n 11, 37; Cockerell v Fry (1967) 15 LGRA 164, 177; Finn, above n 13, 9–10. See, for example, the fees that could be charged by Justices of the Peace out of the fines they imposed: Beard, above n 20, 150–1. In some circumstances the right to fees could be assigned: see notes to Stuart v Tucker (1777) 2 Black W 1137, 1140; 96 ER 671, 672.

42 (1828) 5 Bing 92; 130 ER 995, 107–9; 1001–2.

43 See, for example, R v Bembridge (1783) 3 Dougl 327, 332; 99 ER 679, 681.

44 Bacon, above n 36, 2.

45 Described by Finn, above n 13, 14 as ‘property and individual autonomy and responsibility’. See also Chester, above n 5, 18–21; Greiner v ICAC (1992) 28 NSWLR 125, 159; Marks v Commonwealth (1964) 111 CLR 549, 567–8.

46 John, Comyns, A Digest of the Laws of England (4th ed, 1800) vol 5, 139Google Scholar; Bacon, above n 36, 29–30. The sale of certain public offices relating to the administration of justice or the collection of revenues was prohibited by the Sale of Offices Act, 1551 (UK) 5–6 Edw VI, c 16. See Bacon, above n 36, 13–28. However, the Act only applied to specified offices. See, eg, Ellis v Earl Grey (1833) 6 Sim 214; 55 ER 574 involving property rights in the office of Side Clerk of Exchequer.

47 Comyns, above n 46, 139; Bacon, above n 36, 37–41.

48 Chester, above n 5, 17–8; Holdsworth, above n 12, 501–6; Hunkin v Siebert (1934) 51 CLR 538, 541. For example, if the office was one of ‘trust and knowledge’ (which included judicial offices) it was implicit that the duties had to be exercised personally: see Barker v Kent (1702) 3 Salked 124; 91 ER 730.

49 It was a question of fact whether the relevant staff were public officers in their own right or, if employees, were those of the King or those of the relevant public officer. As to appointments by Secretaries of State see Viscount Canterbury v AG (1842) 1 Ph 306, 324 contrast The Mersey Docks Trustees v Gibbs (1866) LR 1 HL 93, 124–5, 128.

50 Finn, above n 13 ; Greiner v ICAC (1992) 28 NSWLR 125, 159.

51 (1720) 1 Br 153; 1 ER 481.

52 See generally Donald, Thomas (ed), The Public Conscience — State Trials (1971) vol 2, 74–157Google Scholar.

53 The terms of the Letters Patent are more fully described in Huggins v Bainbridge (1740) Willes 241; 125 ER 1152, 1152–53. That case concerned the attempt to sell the office to Bainbridge — an attempt which failed because the Sale of Offices Act, 1551 prohibited the sale of offices of justice.

54 R v Huggins (1730) 1 Barn 396; 94 ER 267.

55 Paul, Finn, ‘Public Officers: Some Personal Liabilities’ (1977) 51 Australian Law Journal 313Google Scholar.

56 See A v Heyden (1984) 156 CLR 532, 580–1; Paul Lordon, Crown Law (1991) 564–5.

57 (1783) 3 Dougl 327, 332; 99 ER 679, 681.

58 Mathew, Goode, ‘Offences of a Public Nature’ (1992) 14 Adelaide Law Review 103, 114Google Scholar; see also Finn, above n 55, 313, 315–6; Paul, Finn, ‘Official Misconduct’ (1978) 2 Criminal Law Journal 307Google Scholar.

59 See Frederic, Maitland, The Forms of Action at Common Law (1997) 54–5Google Scholar.

60 Commonwealth v Mewett (1997) 191 CLR 471, 543; M v Home Office [1994] 1 AC 377, 408–10; Roncarelli v Duplessis (1959) 16 DLR (2d) 689; National Harbours Board v Langelier (1969) 2 DLR (3d) 81; Nelles v Ontario (1989) 60 DLR (4th) 103, 617–8, 620; William Wade, ‘The Crown, Ministers and Officials: Legal Status and Liability’ in Maurice Sunkin and Sebastian Payne, above n 5 25–8; Holdsworth, above n 12, 650–2; George, Robertson, The Law and Practice of Civil Proceedings by and Against the Crown and Departments of the Government (1908) 638–40Google Scholar.

61 See Oliver, W Holmes, ‘Agency’ (1891) 4 Harvard Law Review 345, 356–7, 361–2Google Scholar. For this purpose the admissions of the deputy were admissible against the office holder: Yabsley v Doble (1698) 1 Ld Raym 190; 91 ER 1023.

62 Rowning v Goodchild (1772) 2 Black W 906; 96 ER 536.

63 See John, Comyns, Comyns’s Digest of the Laws of England (4th ed, 1800) vol 1, 226–7Google Scholar, 274, 279 ff. As to negligence, see below n 77.

64 As to the duties of a sheriff to execute the writ of fieri facias (directing the sheriff to seize and sell the defendant’s property to satisfy a money judgment), see P, Walton, ‘Execution Creditors — Almost the Last Rights in Insolvency’ (2003) 32 Common Law World Review 179Google Scholar.

65 See Stimson v Farnham (1871) LR 7 QB 175; Warne v Varley (1795) 6 TR 443; 101 ER 639.

66 William v Mostyn (1838) 4 M & W 145; 150 ER 1379. See Mark Aronson and Harry Whitmore Public Torts and Contracts (1982) 152–3; Parker, above n 15, 260 ff. Contrast the liability of a gaoler for escape which required proof of negligence: see Parker, above n 15, 77. As to negligence, see below n 77.

67 Albert, Kiralfy, The Action on the Case (1951) 34–40Google Scholar, 133–5; Robert, Watkins, The State as a Party Litigant (1927) 44–8Google Scholar; Paul, Finn, ‘A Road Not Taken: The Boyce Plaintiff and Lord Cairns Act’ (1983) 57 Australian Law Journal 493, 493–5Google Scholar.

68 See RC, Evans, ‘Damages for Unlawful Administrative Action: The Remedy for Misfeasance in Public Office’ (1982) 31 International and Comparative Law Quarterly 640Google Scholar, 640–3; John, Baker, An Introduction to English Legal History (3rd ed, 1990) 490Google Scholar. The similarity between the common law tort and the common law criminal offences considered above is not simply a coincidence. At the relevant time tort and crime were closely related: see David, Friedman, ‘Comment: Beyond the Tort/Crime Distinction’ (1996) 76 Boston University Law Review 103Google Scholar.

69 (1703) 6 Mod 45; 87 ER 810 (also 2 Ld Raym 938; 92 ER 126).

70 It has been suggested that Holt CJ also required malice as an element of the wrong: see NT v Mengel (1996) 185 CLR 307, 356–7. It is not apparent to the writer that he did. See, for example, his dissent in Lane v Cotton (1701) 1 Ld Raym 646; 91 ER 1332.

71 (1704) 1 Brown 62; 1 ER 417.

72 (1828) 5 Bing 92, 107; 130 ER 995, 1000. See also Eyre CB in Sutton v Johnstone (1786) 1 TR 494, 509; 99 ER 1215, 1224, ‘[e]very breach of a public duty, working wrong and loss to another, is an injury and actionable’. See also the Crown’s submissions in Tobin v R (1864) 16 CB (NS) 310, 330; 143 ER 1148, 1156 and in Mersey Docks Trustees v Gibbs (1866) 11 HLC 686, 694–8; 11 ER 1500, 1504–05. See also Amnon, Rubenstein, Jurisdiction and Illegality (1965) 135–9Google Scholar; Chichester v Marine Board of South Australia [1910] SALR 22, 29. Aronson and Whitmore, above n 66, 125 treat these cases as early examples of breach of statutory duty.

73 Consequently where the duty was owed by ‘the county’ it could not be enforced: see Russell v Men of Devon (1788) 2 TR 667; 100 ER 359. This case was subsequently misunderstood as establishing a distinction between misfeasance and malfeasance in respect of highway authorities: see Brodie v Singleton Shire Council (2001) 206 CLR 512, 564–565, 590–91, 607–13.

74 See Everett v Griffiths [1921] 1 AC 631; In re McC [1985] 1 AC 528; Rajski v Powell (1987) 11 NSWLR 522; Abimbola, Olowofoyeku, Suing Judges: A Study in Judicial Immunity (1993) 9–32Google Scholar. Although the immunity certainly extended to the tort of breach of public duty, it was not limited to that tort. It extended to other torts such as defamation.

75 Again, the immunity was not limited to the historic tort: see Sirros v Moore [1975] QB 118, 132, 138; Gallo v Dawson (No 2) (1992) 109 ALR 319; Canada Trust Co v Stolzenberg [1997] 4 All ER 983, 988–9; Mann v O’Neill (1997) 191 CLR 204; Re East (1999) 196 CLR 354, 365–6; Gazley v Lord Cooke of Thorndon [1999] 2 NZLR 668, 671, 678–81, 683–5; Robert, Sadler, ‘Judicial and Quasi–Judicial Immunities: A Remedy Denied’ (1982) 13 Melbourne University Law Review 508Google Scholar; Abimbola, Olowofoyeku, ‘State Liability for the Exercise of Judicial Power’ (1998) Public Law 444Google Scholar; Susan, Kneebone, Tort Liability of Public Authorities (1988) 259–83Google Scholar; Olowofoyeku, above n 74, 33–78. It is noted that this continued operation of this immunity in the UK may be affected by the European Convention on Human Rights: see Helen, Scott and NW, Barber, ‘State Liability under Francovich for Decisions of National Courts’ (2004) 120 Law Quarterly Review 403Google Scholar.

76 See Cullen v Morris (1819) 2 Stark 577, 587; 171 ER 741, 744. The facts of Cullen are remarkably similar to those of Ashby v White notwithstanding the different approach taken. See also Tozer v Child (1857) 7 El & Bl 377; 119 ER 1286. In Evans, above n 68, 643 it is argued, apparently on the basis of Tozer, that malice was an essential element of the tort even for ministerial acts.

77 Finn, above n 13, 22–3. Some care needs to be taken with the word ‘negligence’ in this context. At various times the word seems to have been used to refer to any omission to act, or more generally to nonfeasance, rather than to negligence as now understood: see John, Wigmore, ‘Responsibility for Tortious Acts: Its History — III’ (1894) 7 Harvard Law Review 441, 453–4Google Scholar.

78 See, for example, Blackburn J in Coe v Wise (1864) 1 B&E 440, 461; 122 ER 894, 902.

79 Apparently the description was first used by Mansfield J in the 1759 case of R v Cowle (1759) 2 Burr 834, 855–6; 97 ER 587, 599.

80 Perhaps the more difficult question is not why these writs were described as ‘prerogative writs’, but why others were not included. For example, the writ of error: see S A, de Smith, ‘The Prerogative Writs’ (1951) 11 Cambridge Law Journal 40, 54Google Scholar; Standish, Grady and Colley, Scotland, Law and Practice on the Crown Side of the Queen’s Bench (1844) 332 ffGoogle Scholar. Similarly, the writ of scire facias: see James, Pfander, ‘Sovereign Immunity and the Right to Petition: Towards a First Amendment Right to Pursue Judicial Claims Against the Government’ (1997) 91 Northwestern Law Review 899Google Scholar, 915–6; Holdsworth, above n 12, 344.

81 See generally Edward, Jenks, ‘The Prerogative Writs in English Law’ (1923) 32 Yale Law Journal 523Google Scholar; De Smith, above n 80; Louis, Jaffe and Edith, Henderson, ‘Judicial Review and the Rule of Law: Historical Origins’ (1956) 72 Law Quarterly Review 345Google Scholar.

82 This was of some importance in the English colonies where the superior courts invariably exercised the jurisdiction of Kings Bench: see Garry, O’Connor, ‘Rule Maker and Judge: Minnesota Courts and the Supervisory Power’ (1997) 23 William Mitchell Law Review 605, 608–11Google Scholar.

83 James, Pfander, ‘Jurisdiction Stripping and the Supreme Court’s Power to Supervise Inferior Tribunals’ (2000) 78 Texas Law Review 1433Google Scholar, 1443–5 (footnotes omitted).

84 Jaffe and Henderson, above n 81, 359–61.

85 See Grady and Scotland, above n 80, 219, 249–56 giving, as examples, cases where mandamus was issued against private companies (such as canal companies, or railway companies) to compel the performance of statutory or public duties. However, where the duty was entirely a private duty, mandamus did not go: see The King v White (1704) 3 Salked 232; 91 ER 795 contrast The Queen v Raines (1708) 3 Salked 233; 91 ER 796; John Shortt Informations Mandamus and Prohibition (1887) 231.

86 Leslie, Stein, ‘Mandamus’ in Leslie, Stein (ed), Locus Standi (1979) 82Google Scholar ff; Bradley, Clanton, ‘Standing and the English Prerogative Writs: The Original Understanding’ (1997) 63 Brooklyn Law Review 1001, 1043–7Google Scholar.

87 R v Bank of England (1780) 2 Dougl 524, 526; 99 ER 334, 335. See also Chitty, above n 17, 338–9; Henderson, above n 18, 140–42.

88 See Sir William Blackstone, Commentaries on the Laws of England, Vol 3 (1783 ed) 110; see also Commonwealth of Kentucky v Dennison 65 US 66 (1861) 97.

89 Commissioner of State Revenue (Vict) v Royal Insurance Aust Ltd (1994) 182 CLR 51, 81, 88.

90 See Blackstone, above n 88, 111–14.

91 Frederick, Short and Francis, Mellor, The Practice on the Crown Side of the Kings Bench Division of His Majesty’s High Court of Justice (2nd ed, 1908) 252Google Scholar ff; Shortt, above n 85, 427–34, 439–40.

92 Louis, Jaffe, ‘Standing to Secure Judicial Review: Public Actions’ (1961) 74 Harvard Law Review 1265Google Scholar, 1274; Shortt, above n 85, 441–6. Contrast Clanton, above n 86, 1009–20 who argues that a person seeking the writ had to establish some interest. Given the discretionary nature of the remedy the two positions are not necessarily inconsistent. What is clear is that a stranger to the proceeding in the inferior court could seek prohibition.

93 Blackstone, above n 88, 111–14. Even today Dan, Dobbs, Law of Remedies: Damages Equity Restitution (2nd ed, 1993) 165Google Scholar treats mandamus, prohibition and habeas corpus as specialised types of injunction which could be granted by King’s Bench.

94 By statute these included some quasi judicial officers eg, by 7 Geo III c 39 s 15 decisions of the Poor Law Commissioners, and by 1 Vict c 78 s 44 some decisions of Borough Councils: see Grady and Scotland, above n 80, 137–9.

95 De Smith, above n 80, 46–8; Henderson, above n 18, 83–101.

96 (1642) March NR 196; 82 ER 473; Henderson, above n 18, 101–6; 182–6.

97 The remedy was also available for the failure of inferior courts to perform statutory administrative functions which could be described as ‘jurisdictional’: see Henderson, above n 18, 154–8.

98 See Re McBain; Ex parte Catholic Bishops (2002) 209 CLR 372, 417–23, 463–5; Jaffe and Henderson, above n 81, 355–9; Grady and Scotland, above n 80, 128–9.

99 Sir William Blackstone, Commentaries on the Laws of England, Vol 4 (1783 ed) 21. Given that the purpose of the writ was to review judicial proceedings it is doubtful whether strangers could apply for the writ: see Clanton, above n 86, 1020–32.

100 For example, when the county of Derby failed to comply with the militia Acts of 1757, 1765 and 1769 the King issued the writ of mandamus against the justices of the county to require them to raise their statutory quota of men: Holdsworth, above n 12, 156.

101 See, for example, R, French, ‘The Equitable Geist in the Machinery of Administrative Justice’ (2003) 39 Australian Institute of Administrative Law Forum 1Google Scholar.

102 R v Transport Secretary; Ex parte Factortame Ltd [1990] 2 AC 85,145; see discussion in I, Spry, Equitable Remedies: Injunctions & Specific Performance (6th ed, 2000) 346–7Google Scholar.

103 See William, Wade, ‘Injunctive Relief Against the Crown and Ministers’ (1991) 107 Law Quarterly Review 4Google Scholar.

104 Subject to the exclusive jurisdiction of Exchequer in relation to revenue matters: see Priddy v Rose (1817) 3 Mer 86; 36 ER 33.

105 Court of Chancery Act 1841 (UK) 5 Vict c 5.

106 (1830) 4 Sim 13; 58 ER 6. See also, for example, Priddy v Rose (1817) 3 Mer 86,102; 36 ER 33,39; Ellis v Rose (1833) 6 Sim 214; 58 ER 574. There were a number of cases after 1842 where the Court of Chancery granted injunctions against public officers in relation to their official functions: see for example, AG v The Guardians of the Poor of Southampton (1849) 17 Sim 6; 60 ER 1028; AG v Andrews (1850) 2 Mac & G 225; 42 ER 87. In Ellis v Earl Grey (1833) 6 Sim 214; 58 ER 574 the Court of Chancery had granted an injunction against the Lords of Treasury to prevent them paying moneys to the wrong party.

107 [1901] AC 561, 573–4. See also Bombay & Persia Steam Navigation Co v MacLay [1920] 3 KB 402, 406.

108 The jurisdiction to grant a stand–alone, binding declaration of right is now seen as being within the inherent jurisdiction of a superior court: see Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 581–2. As such the remedy may not properly be described as ‘equitable’, being a remedy also available from a common law court.

109 See Lord, Woolf and Jeremy, Woolf, Zamir & Woolf — The Declaratory Judgment (3rd ed, 2002) 10Google Scholar. The remedy was thought to be limited to consequential relief until changes to the English Rules of Court in 1883 (later adopted elsewhere).

110 For a general discussion of the administrative arrangements for the collection of these revenues and of the practices of the Court of Exchequer in relation to them, see Geoffrey Gilbert, An Historical View of the Court of Exchequer and of the King’s Revenues (1738) and see Bryson, above n 114, 32–159.

111 Holdsworth, above n 15, 238–42 and see Chitty, above n 17, 244 as to the jurisdiction of the Court of Exchequer to determine any matter affecting the revenues (even involving only private parties) at the request of the Monarch.

112 The jurisdiction of the Court of Exchequer in relation to revenue officers was exclusive: see Bereholt v Candy (1718) Bunbury 34; 145 ER 585; Scott v Shearman (1775) 2 Black W 977, 979; 96 ER 575, 576–7; Nanaimo Community Hotel v Board of Referees [1945] 3 DLR 225, 252–3.

113 See, for example, Score v Lord Admiral (1709) Park 273; 145 ER 777.

114 Seldon Society, Cases Concerning Equity and the Courts of Equity 1550–1660 (2001) vol 1, xxii–xxxviiGoogle Scholar; Maitland, above n 59, 64; WH, Bryson, The Equity Side of the Exchequer (1976) 25–7Google Scholar. Dicey commented ‘[t]he ordinary civil jurisdiction of the Court of Exchequer rested upon the … absurd fiction that the plaintiff in an action was a debtor to the King and, owing to the injury or damage done him by the defendant, was unable to pay his debt to the King’: Albert, V Dicey, Law and Public Opinion in England (2nd ed, 1914) 91Google Scholar.

115 See, for example, AG v White (1733) 2 Comyns 433; 92 ER 1146. The writ authorised the interlocutory seizure of the debtor’s lands, goods or body so as to secure payment if the debt was subsequently established.

116 See Murray v The Hoboken Land and Improvement Co 59 US 272 (1855), 277–8; Robertson, above n 60, 189 ff.

117 Finn, above n 55, 313, 316 ftn 36.

118 Robertson, above n 60, 234 ff.

119 See, eg, AG & Hogskins v Dr Guedon (1676) Hardres 371; 145 ER 503.

120 See, eg, Earl of Devonshire Case (1607) 11 Co Rep 89a; 77 ER 1266.

121 See, eg, The King v Clark 1 Comyns 388; 92 ER 1124; In re Westminster Land Tax Commissioners (1747) Parker 74; 145 ER 717; King v Radley (1801) Forrest 150; 145 ER 1142.

122 See, eg, King v Incledon (1811) Wight 369, 385; 145 ER 1294, 1300.

123 See, eg, Deare v AG (1835) 1 Y & C Ex 197, 208–9; 145 ER 80, 85.

124 Holdsworth, above n 15, 239.

125 See above n 5.

126 Holdsworth, above n 12, 342–7; Austalian Law Reform Commission, The Judicial Power of the Commonwealth (2001) 461–73Google Scholar.

127 Blackstone, above n 5, 245.

128 Ibid 270.

129 Crown v Dalgety & Co Ltd (1944) 69 CLR 18, 39; Western Australia v Bond Corporation Holding Ltd (1991) 5 WAR 40, 63.

130 Chief Secretary (NSW) v Oliver Food Products (1959) 60 SR (NSW) 435, 444.

131 Commonwealth v Anderson (1960) 105 CLR 303, 312, 318–21; PSAC, Local 660 v CBC (1976) 66 DLR (3d) 760; Australian Law Reform Commission, The Judicial Power of the Commonwealth (2001) 475–85Google Scholar.

132 Commonwealth v Northern Land Council (1991) 103 ALR 267, 288; Lordon, above n 56, 207.

133 Latoudis v Casey (1990) 170 CLR 534, 538, 557–8, 567; Wentworth v AG (NSW) (1984) 154 CLR 518, 526–7; R v Scott (1993) 42 FCR 1, 11–12, 29–30; Lordon, above n 56, 215.

134 Duncan Fairgrieve, State Liability in Tort (2003) 8.

135 See William, Holdsworth, A History of English Law Vol 9 (3rd ed, 1944) 13–22Google Scholar; William, Holdsworth, ‘The History of Remedies against the Crown’ (1922) 38 Law Quarterly Review 141Google Scholar, 147–56; Chitty, above n 17, 339–52; Maitland, above n 10, 482–4; Lordon, above n 56, 319.

136 Chitty, above n 17, 345–6.

137 Pfander, above n 80, 912, 940; Chitty, above n 17, 346–52; Watkins, above n 67, 16–30; Susan, Randall, ‘Sovereign Immunity and the Uses of History’ (2002) 81 Nebraska Law Review 1, 28–30Google Scholar contrast Holdsworth (1944), above n 135, 40.

138 Petition of Rights Act 1860 (UK) 23 and 24 Vict c 34; Robertson, above n 60, 331 ff.

139 The inquest of office was a procedure by which the appropriate Crown officers (usually the sheriff or the escheator) initiated proceedings in Chancery seeking an order that the Crown was entitled to certain property.

140 Holdsworth (1944), above n 135, 22–8; Chitty, above n 17, 352–73; Watkins, above n 67, 14–16; Pfander, above n 80, 912–14; Holdsworth (1922), above n 135, 158–61.

141 The King v Hornby (1700) 5 Mod 30; 87 ER 500 (reference should also be made to the report at Skinner 601; 90 ER 270); Holdsworth (1944), above n 135, 32–9; Holdsworth (1922), above n 135, 283–90.

142 See also Blackstone, above n 88, 256–7; Alden v Maine 527 US 706 (1999) 770; contrast Chitty, above n 17, 355 citing Lord Somers in the Banker’s Case as to which, see 87 ER 500, 519 nn(a).

143 Chisolm v Georgia 2 US 419 (1793) 437–42; contrast Tobin v R (1864) 16 CB (NS) 310; 143 ER 1148.

144 Pawlett v Attorney General (1688) Hardres 465; 145 ER 550. See Holdsworth (1922), above n 135, 280–3; Watkins, above n 67, 35–7; Bryson, above n 114, 5; contrast NSW v Commonwealth (No 3) (1932) 46 CLR 246, 266 which seems to misunderstand the cases cited. Following Paulett the law remained unclear as to what was the appropriate procedure for obtaining such an injunction: see Holdsworth (1944), above n 135, 31–2; Chitty, above n 17, 210–11, 296–7.

145 Taylor v AG (1834) 8 Sim 413; 59 ER 164; Clayton v AG (1834) 1 Coop temp Cott 87; 47 ER 766; Dyson v AG [1911] 1 KB 410; R v Employment Secretary; Ex parte EOC [1995] 1 AC 1, 34–5; Law Reform Committee of South Australia, Proceedings by and Against the Crown (1987; 104th Report); Andrew Harding, Public Duties and Public Law (1989) 150 ff.

146 See IRC v Rossminster [1980] AC 952; R v Sec State for Transport; Ex parte Factortame Ltd [1990] 2 AC 85, 143–50; Blyth District Hospital Inc v South Australian Health Commission (1988) 49 SASR 501, 503–6; Peter, Hogg and Patrick, Monahan, Liability of the Crown (3rd ed, 2000) 31Google Scholar.

147 Thomas v R (1874) LR 10 QB 44; Commonwealth v Northern Land Council (1991) 103 ALR 267, 288.

148 R v Powell (1841) 1 QB 352; 113 ER 1166. As a practical matter prohibition or certiorari were also not available against the King, but this followed from the limited reach of those writs. Both writs were directed to judicial functions, which the King did not perform personally: see Robertson, above n 60, 123 ff.

149 See above n 131.

150 See Law Reform Commission (NSW), Proceedings By and Against the Crown (LRC 24, 1976) 135–6; Tom Cornford, ‘Legal Remedies Against the Crown and its Officers Before and After M’ in Maurice Sunkin and Sebastian Payne (eds), above n 5 233, 235; Holdsworth (1922), above n 135, 293–6; Edwin, Borchard, ‘Government Liability in Tort’ (1924) 34 Yale Law Journal 1Google Scholar; Louis, Jaffe, ‘Suits Against Governments and Officers: Sovereign Immunity’ (1963) 77 Harvard Law Review 1Google Scholar; Herbert, Barry, ‘The King Can do no Wrong’ (1925) 11 Virginia Law Review 349Google Scholar; George, Pugh, ‘Historical Approach to the Doctrine of Sovereign Immunity’ (1953) 13 Louisiana Law Review 476Google Scholar.

151 Law Reform Commission (NSW), Proceedings By and Against the Crown (LRC 24; 1976) 13Google Scholar. See, eg, Feather v The Queen (1865) 122 ER 1191, 1205; Lordon, above n 56, 327 ff; Fairgrieve, above n 134, 10.

152 (1843) 1 Ph 305; 41 ER 648.

153 The rule is now well entrenched. In Matthews v Ministry of Defence [2003] 1 AC 1163, 1169 Lord Bingham said

[f]ew common law rules were better established or more unqualified than that which precluded any claim in tort against the Crown, and since there could be no wrong of which the claimant could complain (because the King could do no wrong) relief by petition of right was not available.

This is to be contrasted with the modern Australian position discussed below.

154 Wade, above n 60, 23, 25–6; see also Maitland, above n 10, 484.

155 See William, Anson, ‘The Cabinet in the 17th and 18th Centuries’ (1914) English Historical Review 56, 57–8Google Scholar.

156 Arthur, Berriedale Keith, The British Cabinet System 1830–1938 (1939)Google Scholar see especially 28; A, Aspinall and Anthony, Smith, English Historical Documents Vol XI 1783–1832 (1959) 86–95Google Scholar.

157 See Maitland, above n 10, 390–4.

158 Bradley, Selway, ‘Mr Egan, the Legislative Council and Responsible Government’ in Adrienne, Stone and George, Williams (eds), The High Court at the CrossRoads (2000) 56–8Google Scholar; Chester, above n 5, 76–84; Hanham, above n 26, 24 ff. However, it would be in error to think that during this period the Monarch was an agent of the Cabinet: see Aspinall and Smith, above n 156,158–86 on the veto by George III of catholic emancipation.

159 See B B, Schaffer, ‘The Idea of the Ministerial Department: Bentham, Mill and Bagehot’ (1957) 3 Australian Journal of Politics and History 60Google Scholar.

160 Chester, above n 5, 221 ff; Hanham, above n 26, 347–56. For example, in relation to the Board of Trade: see Parris, above n 34, ch 3; Finn, above n 13, 12; and see Richard, Johnson, ‘Administrators in Education Before 1870’ in Gillian, Sutherland (ed), Studies in the Growth of Nineteenth Century Government (1972) 33, 110Google Scholar ff.

161 Schaffer, above n 159, 60; William Anson, above n 155, 60; Maitland, above n 10, 202–3, 393–4; Lyon, above n 16, 273.

162 Maitland, above n 10, 430–1; John, Stevens, The Royal Treasury of England (1725) i–xviGoogle Scholar; Wade, above n 23, 186–211.

163 See Bradley, Selway, The Constitution of South Australia (1997) 124Google Scholar ff.

164 Chester, above n 5, 14–16, 61–4.

165 Chester, above n 5, 64–6. As to the problems with these arrangements, see DL, Keir, ‘Economic Reform, 1779–1787’ (1934) 50 Law Quarterly Review 368, 380–1Google Scholar. For example, the public officer was entitled to the interest on the moneys in the accounts held by him or her: see Chester, above n 5, 169–70.

166 Chester, above n 5, 178 ff; Northern Suburbs General Cemetery Reserve Trust v Commonwealth (1993) 176 CLR 555, 575. One other reform which was of significant constitutional importance, although it does not concern this article, was the increasing reliance by the government on debt as a means of funding major expenditure and the increasing use of the Bank of England as the central body to provide any credit that the government required.

167 See R v Adams (1848) 2 Ex 299; 154 ER 506.

168 The introduction of a civil list in the colonies served a different purpose from in England. In the colonies the civil list distinguished between colonial and imperial expenditure: see Hugh, Roberts and Ivan, Mescher, ‘The Premier Constitution: Legislative Power in New South Wales since 1855’ (1992) 3 Public Law Review 90, 96–7Google Scholar.

169 1 Wm & M sess 2 c 2; see Maitland, above n 10, 306–11.

170 Chester, above n 5, 58–64, 169–220; Exchequer & Audit Departments Act 1866 (UK).

171 See Chester, above n 5, 185–91; Maitland, above n 10, 430–7. There was a period in the late 18th and early 19th century where the difference between the receipts surrendered to the government in return for the civil list and the receipts that had to be paid into the Consolidated Fund had the practical effect that the Ministry had effective control over significant funds which were not subject to parliamentary control: see Wade, above n 23, 212–43.

172 Chester, above n 5, 197–208. Over time it has resulted in the increase of the power of the Treasury over the rest of government.

173 Chisolm v Georgia (1793) 2 US 419, 445; Pitt, Cobbett, ‘‘The Crown’ as Representing ‘the State’’ (1903) 1 Commonwealth Law Review 23, 28–9Google Scholar; W, Harrison Moore, ‘The Crown as Corporation’ (1904) 20 Law Quarterly Review 351, 352–3Google Scholar, 357–62.

174 The term was not in fact used until the 1850s: Chester, above n 5, 298–9. Before that time any distinction between central and regional government may be misleading: see above. However, the reforms operated differently in relation to each and it is convenient to consider them separately for this purpose.

175 See Paul, Johnson, The Birth of the Modern: World Society 1815–1830 (1991) 395Google Scholar. John, Bowle, The English Experience (1971) 366Google Scholar refers to the increasing size and complexity of the Treasury, of the Customs and Excise Office and of the Admiralty and the War Office. The initial reforms were focused on those agencies. The reforms did not extend to the navy or the military.

176 Angus, Calder, Revolutionary Empire (1998) 292Google Scholar.

177 DL, Keir, ‘Economical Reform, 1779–1787’ (1934) 50 Law Quarterly Review 368Google Scholar; see Joseph, Jacob, The Republican Crown (1996) 84–6Google Scholar. In any event, the creation of the Consolidated Fund meant that payment by fees could not continue as it had.

178 Chester, above n 5, 134–40.

179 Sale of Offices Act 1809, 49 Geo 3, c 126 which extended the 1551 Act (discussed above) to most offices appointed by the King, by Secretaries of State and by other officers. Even so the sale of commissions in the Army was still permitted until 1871 when it was prohibited by Royal Warrant. One reason why the sale of military commissions was retained at least until the death of the Duke of Wellington was that the practice had his support. The Duke’s view was that the necessity to buy commissions ‘brought into the service men of fortune and character’: Christopher, Hibbert, Wellington — A Personal History (1997) 369–70Google Scholar.

180 Lyon, above n 16, 343; John, Willis, The Parliamentary Powers of English Government Departments (1933) 11–12Google Scholar.

181 See Chester, above n 5, 166–8. For example, as to the Home Office, see J, Cannon (ed), The Oxford Companion to British History (1997) 212Google Scholar; Johnson, above n 175, 391.

182 Johnson, above n 175, 390 and see also at 341–2 describing the operation of the Colonial Office in the early 19th century; see also Chester, above n 5, 282–3.

183 Chester, above n 5, 286 ff.

184 A Civil Subaltern, Civil Service Report – Observations upon the Report by Sir CE Trevelyan KCB and Sir Stafford Northcote Bart on the Organization of the Permanent Civil Service (1854) 11 quoting from the ‘Morning Post’ newspaper. See also Chester, above n 5, 286 ff.

185 In sociological terms, that bureaucracy more closely conformed to the Weberian ‘ideal–typical bureaucracy’: see above n 2.

186 Finn, above n 13, 15.

187 Stafford Northcote and C Trevelyan, Report on the Organisation of the Permanent Civil Service Parliamentary Papers, Sessional Papers, Vol XXVII, Paper 1713 (1854).

188 Ibid 22–3.

189 For a general description of the reforms see Jacob, above n 177, 86–9; C, Northcote Parkinson, The Law (1979) 91–6Google Scholar; Hanham, above n 26, 314–38. As to the specific steps in the process of reform from 1854–1871, see J Donald Kingsley, Representative Bureaucracy (1944) 71–7.

190 There were at least two exceptions. One was the Foreign Office: see Valerie, Cromwell and Zara, Steiner, ‘The Foreign Office Before 1914: A Study in Resistance’ in Gillian, Sutherland (ed), Studies in the Growth of 19th Century Government (1972) 167Google Scholar ff; Kingsley, above n 189, 125 ff. The other was the provision of ‘in house’ legal services: see Theodore, Plucknett, A Concise History of the Common Law (5th ed, 1956) 230Google Scholar; Kingsley, above n 189, 135–6. For the history of the organisation of legal services to UK Departments and agencies, see Gavan, Drewry, ‘Lawyers in the UK Civil Service’ (1981) 59 Public Administration 15Google Scholar. Of course, central government was further reformed as its role and its size continued to expand. For example, as to the further reforms in England in the 20th century, see Jacob, above n 177, 84–221.

191 Finn, above n 13, 14–5.

192 See Dicey, above n 114, 307.

193 See Poor Law Amendment Act 1834 (UK) 4 & 5 Wm 4, c 76.

194 Public Health Act 1848 (UK) 11 & 12 Vict, c 63; Nuisances Removal and Diseases Prevention Act 1848 (UK) 11 & 12 Vict, c 123.

195 County Police Act 1839 (UK) 2 & 3 Vict, c 93; County & Borough Police Act 1856 (UK) 19 & 20 Vict, c 69. For example, in 1835 the Treasury began to meet half the costs of criminal prosecutions and of the movement of convicts — costs which, until then, had been borne by the counties or by officers or by private individuals — see Chester, above n 5, 374.

196 See Chester, above n 5, 355–61.

197 5 & 6 Wm 4, c 76; see Lyon, above n 16, 326–8; Maitland, above n 10, 359–63. Separate legislation was enacted dealing with the government of London, culminating in the London Government Act, 1899 (UK). In Hanham, above n 26, 372 ff the reforms of regional government are described as establishing ‘local self government’.

198 Dicey, above n 114, 186–7.

199 Local Government Act 1888 (UK) 51 & 52 Vict, c 41; Lyon, above n 16, 360–2; Maitland, above n 10, 492–501.

200 (1883) 9 LR App Cas 61.

201 [1889] 22 QBD 484.

202 Ibid 490–2.

203 Alastair Davidson, The Invisible State (1991) 91 ff.

204 Finn, above n 13.

205 As to the use of statutory corporations in Australia, see Re Residential Tenancies Tribunal; Ex parte Defence Housing Authority (1997) 190 CLR 410, 471; Paul, Finn, ‘The State Corporation’ (1999) 3 Flinders Journal of Law Reform 1Google Scholar; Roger, Wettenhall, ‘Corporations and Corporatisation: An Administrative Perspective’ (1995) 6 Public Law Review 7Google Scholar; Finn, above n 13, 3.

206 (1701) 1 Comyns 100; 92 ER 981 (see also 1 Ld Raym 646; 91 ER 1332). The case was followed in Whitfield v Lord de Despencer (1778) 2 Cowp 754; 98 ER 1344 apparently on the basis that superior officers were not vicariously liable for the torts of inferior officers: ‘The case of the post-master … is like all other public officers … who were never thought liable for any negligence or misconduct of the inferior officers in their several departments’ (Lord Mansfield at 755–756; 1350). This is clearly wrong. Sheriffs, gaolers and others were liable for the misconduct of inferior officers and of their own employees: see above.

207 What power the Crown had to grant an exemption from liability was not explained. It has been accepted for at least 400 years that the Crown cannot confer any such immunity: see A v Heyden (1984) 156 CLR 532, 580–581; Robertson, above n 60, 640.

208 What difference this made in terms of legal analysis was not explained.

209 Unless the inferior officers were deputies this reasoning seems correct as far as it goes. However, it does not answer the question whether the Post–Masters General had a duty to ensure that the mail was delivered: see below.

210 [1906] 1 KB 178.

211 Under s 42 of the Telegraph Act 1863 (UK) 26 & 27 Vict, c 112 telegraph companies were liable for all ‘accidents, damages and injuries’ occasioned by their works. The companies were nationalised by the Telegraph Act 1868 (UK) 31 & 32 Vict, c 110. Section 2 of that Act provided that the term ‘the company’ in the 1863 Act should be read as the Post–Master General. On the face of it the Post-Master General’s liability was a primary liability under s 42 of the Telegraph Act 1863. On the face of it the case had nothing to do with vicarious liability.

212 [1906] 1 KB 178, 194.

213 See Australian Law Reform Commission, The Judicial Power of the Commonwealth, Discussion Paper No 64 (2000) 331–45; Cornford, above n 150, 233, 239–40.

214 (1843) 1 Ph 305; 41 ER 648.

215 See Tobin v R (1864) 16 CB (NS) 310; 143 ER 1148.

216 Ibid 349; 1163.

217 (1865) 6 B&S 257; 122 ER 1191.

218 Southern Centre of Theosophy v South Australia (1979) 21 SASR 399, 405.

219 This reasoning is based upon the ‘master tort’ theory of vicarious liability: see Feather v R (1865) 6 B&S 257; 122 ER 1191, 1204–5. That theory has now been rejected: see NSW v Lepore (2003) 212 CLR 511, 611; Hogg and Monahan, above n 146, 6–7, 65–6; Susan, Kneebone, Tort Liability of Public Authorities (1998) 319–22Google Scholar; Holdsworth (1944), above n 135, 38–9.

220 [1876] 1 AC 632.

221 Ibid 640–2, 646, 652, 656, 659. As is noted in Robertson, above n 60, 353 the Patents and Designs Act 1907 (UK) expressly provided that officers and servants of the Crown could be sued personally for breach by them of a patent given by the Crown.

222 Ibid 652. See Sidney, Low, The Governance of England (revised ed, 1915) 255Google Scholar: ‘The Crown of England is a convenient working hypothesis’.

223 Maitland above n 5, 131. See also Jacob, above n 177, 47–54.

224 A point reinforced in a paper by W, Harrison Moore, ‘The Crown as Corporation’ (1904) 20 Law Quarterly Review 351Google Scholar. See also Bradley, Selway, ‘The Constitutional Role of the Queen of Australia’ (2003) 32 Common Law World Review 248, 249–55Google Scholar.

225 [1978] AC 359.

226 See Allison, above n 4, 75–81; WA v Watson [1990] WAR 248, 266. The word ‘State’ has more than one meaning. In this context it is used to refer to the government and to comprise in particular the institutions and persons who exercise the executive power of government. This is the sense in which the word is used by Braddick, above n 11, 11 ff; Kenneth, Dyson, The State Tradition in Western Europe (1980) 43–4Google Scholar. Used in this sense the word ‘State’ connotes a concrete description of executive government.

227 [1990] WAR 248, 268.

228 See McHugh JA (as he then was) in Suttling v Director General of Education (1985) 3 NSWLR 427, 450 who distinguished between the act of the Director General and that of the Governor or Ministers. The latter were the acts of the Crown for the purpose of the ‘dismissal at pleasure’ rule; the acts of the Director General were not. See also Kirby P at 436.

229 See Allison, above n 4, 80–1. The confusion is manifest in the policies reflected in the development of the Crown Proceedings Act 1947 (UK): see Jacob, above n 177, 64 ff.

230 Pitt, Cobbett, ‘The Crown as Representing the State’ (1903) 1 Commonwealth Law Review 23Google Scholar, 25, 27–8. See also Watkins, above n 67, 11–3.

231 For a general discussion of these problems, see Nicholas, Seddon, ‘The Crown’ (2000) 28 Federal Law Review 245Google Scholar.

232 There is one exception. It was held in Mostyn v Fabrigas (1774) 1 Cowp 161, 173–4; 98 ER 1021, 1021–28 that colonial Governors enjoyed an immunity in tort. This immunity was subsequently limited to ‘acts of State’: see Hill v Bigge (1841) 3 Moore PC 465; 13 ER 189; Musgrave v Pulido (1879) 5 LR App Cas 102; see also Chisolm v Georgia (1793) 2 US 419, 446.

233 (1907) 23 Law Quarterly Review 12. See also Gleeson, Robinson, Public Authorities and Legal Liability (1925) 16–33Google Scholar; Glanville, Williams, Crown Proceedings (1948) 20–8Google Scholar; WG, Friedmann, ‘Legal Status of Incorporated Public Authorities’ (1948) 22 Australian Law Journal 7Google Scholar; Harry, Street, Governmental Liability (1975) 28–30Google Scholar; Herbert, V Evatt, The Royal Prerogative (1987) 239–45Google Scholar; Seddon, above n 231, 245, 249–53; Australian Law Reform Commission, Judicial Power of the Commonwealth, Report No 92 (2001), 541–52.

234 Williams, above n 233, 21 ff.

235 [1915] 1 KB 45, 53.

236 [1943] 1 KB 478.

237 [1948] P 33.

238 Ibid 44.

239 Tyne Improvement Commissioners v Armement Anversois S/A (‘The Brabo’) [1949] AC 326, 342.

240 See Short and Mellor, above n 91, 202–4; Shortt, above n 85, 225; Harding, above n 145, 86 ff.

241 (1907) 4 CLR 1497.

242 Ibid 1512–13.

243 M v Home Office [1994] 1 AC 377, 416–17.

244 FAI Insurances Ltd v Winneke (1982) 151 CLR 342, 351, 372, 386–7, 404, 419–21; Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135, 145–6. However, other remedies are available to enforce the duties of Governors.

245 See Stanbury v Exeter Corporation [1905] 2 KB 838; Fisher v Oldham Corporation [1930] 2 KB 364.

246 See The Brabo [1949] AC 326 discussed above.

247 See, eg, Resi Corporation v Sinclair (2002) 54 NSWLR 387, 401–8 as to the immunity of a statutory authority from suit; Townsville Hospitals Board v Townsville City Council (1982) 149 CLR 282, 288–92 as to whether a statutory authority is bound by a statute which does not bind ‘the Crown’.

248 See, eg, Bropho v WA (1990) 171 CLR 1. In relation to the presumption that the Crown was not bound by the general words in a statute the majority at 15–16 make the point,

The rule presents no real problem of principle in so far as it operates to express a presumption that statutory provisions do not apply to the actual person of the Sovereign. … The extension of the benefit of the rule to Crown or governmental instrumentalities or agents may, of itself, offend notions of parity.

249 Loughlin, above n 5, 39; see also John, Allison, ‘Theoretical and Institutional Underpinnings of a Separate Administrative Law’ in Michael, Taggart (ed), The Province of Administrative Law (1997) 78–9Google Scholar.

250 Dyson, above n 226, 210–11; Allison, above n 4, 77–9. This is to be contrasted with the European tradition: see Robert, Thomas, ‘Continental Principles in English Public Law’ in Andrew, Harding and Esin, Orucu (eds), Comparative Law in the 21st Century (2002) 121, 133Google Scholar (cited with approval by McHugh and Gummow JJ in Re Minister for Migration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1, 24).

251 Sue v Hill (1999) 199 CLR 462, 498.

252 Sue v Hill (1999) 199 CLR 462, 500–1; Selway, above n 223, 260–1.

253 See AG (BC) v AG (Canada) (1889) 14 AC 295; Liquidators of the Maritime Bank of Canada v Receiver-General of New Brunswick [1892] AC 437, 444. Relevant expenses had to be met from the appropriate Treasury: St Catherine’s Milling and Lumber Co v Queen (1888) 14 AC 46, 60. The various polities within the federation could enter into enforceable contracts and transfer property to each other and they could sue each other: AG (BC) v AG (Canada) (1889) 14 AC 295.

254 The title of the Chapter is ‘The Judicature’. It provides generally for federal judicial power.

255 Sue v Hill (1999) 199 CLR 462, 501–2. The meaning of this juristic entity may nevertheless be changeable depending upon the context: see Re Minister for Immigration and Muticultural Affairs; Ex parte Goldie (2004) 206 ALR 380, 384 [23].

256 (1996) 189 CLR 253, 291.

257 (1997) 191 CLR 471.

258 See, eg, Glynn in Official Record of the Debates of the Australasian Federal Convention, Third Session, Melbourne 1898 (II) 1654.

259 See the discussion in Bradley, Selway, ‘All at Sea — Constitutional Assumptions and the Executive Power of the Commonwealth’ (2004) 31 Federal Law Review 495Google Scholar.

260 Selway, above n 224, 266–73.

261 Selway, above n 163, 152.

262 Finn, above n 55, 314. It excluded those that did not hold a ‘position’, such as those employed on weekly or daily rates of pay. Applying even the broad definition of public office is often difficult — the meaning will often be dictated by the context: see R v Rogers; Ex parte Lewis (1878) 4 VLR 334, 368; R v McCann [1998] 2 Qd R 56 and see Sita Qld Pty Ltd v Qld (1999) 162 ALR 18.

263 See Brian, Napier, ‘Office and Office-Holder in British Labour Law’ in Franz, Gamillscheg and Ors (eds), In Memoriam Sir Otto Kahn-Freund (1980) 593Google Scholar ff.

264 Employment in the public service in Australia has been regulated by statute since the late 19th century: see Gregory, McCarry, Aspects of Public Sector Employment Law (1988) 3–5Google Scholar. The three main features of these statutory schemes were central control; common recruitment and a career service: see Richard Spann, Government Administration in Australia (1979) 255. In England, on the other hand, the civil service has generally been regulated by the exercise of prerogative powers: see R v Lord Chancellor’s Department; Ex parte Nangle [1992] 1 All ER 897; W Ivor Jennings, The Law and the Constitution (3rd ed, 1948) 179–83.

265 See Dunn v R [1896] 1 QB 116; Fletcher v Nott (1938) 60 CLR 55, 67; John, Mitchell, The Contracts of Public Authorities (1954) 32–52Google Scholar; Enid, Campbell, ‘Termination of Appointments to Public Office’ (1996) 24 Federal Law Review 1Google Scholar; Peter, Hogg, Liability of the Crown (1st ed, 1971) 150–8Google Scholar; Lordon, above n 56, 95–6, 308 ff. The reasoning in Dunn is based upon a misunderstanding of the case law on the appointment and termination of public officers: see above n 35 and see Holdsworth, above n 12, 56. McHugh JA (as he then was) in Suttling v Director General of Education (1985) 3 NSWLR 427, 444–7 explained Dunn as being based entirely upon policy considerations. Certainly those considerations are referred to in the reasons for the decision. However, it is not obvious that policy considerations can justify the result in Dunn: see McClelland v Northern Ireland General Health Services Board [1957] 1 WLR 594, 612–3.

266 Worthington v Robinson (1897) 75 LT 446.

267 Deynzer v Campbell [1950] NZLR 790.

268 Kaye v AG (Tas) (1956) 94 CLR 193.

269 (1985) 3 NSWLR 427; on appeal (1987) 162 CLR 427.

270 R v Lord Chancellor’s Department; Ex parte Nangle [1992] 1 All ER 897.

271 See Enever v The King (1906) 3 CLR 969 (police constables); Baume v Commonwealth (1906) 4 CLR 97, 110–12, 122–3 (customs officers); Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626 (shipping pilots); Cubillo v Commonwealth (1999) 163 ALR 395, 443–4; Aronson and Whitmore, above n 66, 23–6. The history of this development is outlined in S, Churches, ‘Bona Fide Police Torts and Crown Immunity’ (1980) 6 University of Tasmania Law Review 294Google Scholar; see also Susan, Kneebone, ‘The Independent Discretionary Function Principle and Public Officers’ (1990) 16 Monash University Law Review 184, 198Google Scholar.

272 Selway, above n 163, 156; contrast Konrad v Victorian Police (1999) 165 ALR 23, 45–53.

273 State Chamber of Commerce and Industry v Commonwealth (1987) 163 CLR 329, 347, 351–353, 369; O’Connor v South Australia (1976) 14 SASR 187, 188–9; Rajski v Powell (1987) 11 NSWLR 522, 530–31. This would still seem to be the case under most Crown Proceedings Acts where the definition of ‘Crown’ usually does not include judicial officers. Consequently where it is alleged that a Judge has committed a tort the relevant suit should be against the Judge personally. Usually the government would indemnify the relevant judicial officer.

274 State Chamber of Commerce and Industry v Commonwealth (1987) 163 CLR 329, 347, 351–3, 369. However, the definition of ‘the Crown’ in the relevant Crown Proceedings Act usually includes Ministers. They may also be treated as ‘the State’ or ‘the Commonwealth’ under the Judiciary Act 1903 (Cth). Consequently the primary (rather than vicarious) liability of the relevant juristic entity may include the tortious acts of a Minister.

275 In Australian governments those within this group would usually include at least the Electoral Commissioner, the Auditor General, the Solicitor General, the Ombudsman and the Director of Public Prosecutions.

276 See Paul, Finn, Fiduciary Obligations (1977) 8–14Google Scholar.

277 For example, see Finn, above n 55, 313; Paul Finn, above n 275, 14; Peter, Hall, Investigating Corruption and Misconduct in Public Office (2004) 7–13Google Scholar.

278 In Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438, 481 Kirby J refers to the purported trust relationship as a ‘metaphor’.

279 It should not be forgotten, of course, that there are many mechanisms for the enforcement of public duty that do not involve the courts. There are political and administrative mechanisms that also have a role — maybe a greater one. See, for example, the role of the Attorney General within government: Bradley, Selway, ‘The Different Role of the Australian Attorney General’ (2002) 13 Public Law Review 263, 271–2Google Scholar.

280 See Question of Law Reserved (No 2 of 1996) (1996) 67 SASR 63; R v Dytham [1979] QB 722; R v Bowden [1995] 4 All ER 505; Hall, above n 277, 18 ff. See also Herscu v The Queen (1991) 173 CLR 296; R v McCann [1998] 2 Qd R 56 dealing with statutory offences.

281 Question of Law Reserved (No 2 of 1996) (1996) 67 SASR 63, 78, 87–8; R v Dytham [1979] QB 722.

282 See Finn, above n 55, 313.

283 See Finn, above n 67, 494–5; Finn, above n 13, 184 fn 67. Some specialised elements of the tort continued to be applied in England and Australia, such as the duty of a Sheriff to execute a writ: see Aronson and Whitmore, above n 66, 125. However, even in these specialised areas the relevant duty is now likely to be considered in the context of the tort of negligence: see, for example, Vanstone J in Huggins v State of South Australia [2004] SASC 16.

284 Judicial reasoning in some later cases would still seem to echo the 18th century tort: see, eg, Rogers v Dutt (1860) 13 Moo PC 209, 236–8; 15 ER 78, 88–9. Some commentators even in relatively recent times have continued to recognise the tort: see Rubenstein, above n 72, 135–9. The tort may still have some application in the US where a distinction is made between the liability of government officers for ‘ministerial’ and ‘legislative’ (or discretionary) acts: see Westfall v. Erwin (1988) 484 US 292; Bogan v Scott-Harris (1998) 523 US 44; Floyd, Mechem, A Treatise on the Law of Public Offices and Officers (1890) 441Google Scholar, 444 ff; Ronald, Cass, ‘Damage Suits against Public Officers’ (1981) 129 University of Pennsylvania Law Review 1110Google Scholar, 1119–25; W, Keeton, D, Dobbs, R, Keeton and D, Owen, Prosser and Keeton on Torts (5th ed, 1984) 1060Google Scholar.

285 (1966) 120 CLR 145.

286 Ibid 156.

287 Ibid 153.

288 See, eg, Dunlop v Woollahra Municipal Council [1981] 1 NSWLR 76, 82; Munnings v Australian Government Solicitor (1994) 68 ALJR 169, 171.

289 (1995) 185 CLR 307.

290 Ibid 348.

291 The difference in approach can be highlighted by comparing the respective approaches in Henly v The Mayor & Burgesses of Lyme (1828) 5 Bing 92; 130 ER 995 and in East Suffolk Rivers Catchment Board v Kent [1940] AC 74. The facts of both cases were similar. Henly was decided by considering whether there had been a breach of a public duty. East Suffolk Catchment Board was decided by considering whether the Board or its employees had been negligent.

292 It would appear that the tort was developed for the purpose of enforcing the obligations imposed by private statutes: see Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 458–61. However, there are some cases where the tort is discussed in a manner reminiscent of cases discussing the tort of breach of public duty. For example, in Maguire v Corporation of Liverpool [1905] 1 KB 767, 782–3 it is at least suggested that where a public statutory duty would be enforceable by criminal proceedings then an action will lie at the suit of a subject suffering injury. The Court of Appeal reached the illogical conclusion that there could be no liability in damages for breach of a statutory duty unless the duty was enforceable by criminal proceedings. The case involved a highway authority.

293 See Hague v Deputy Governor of Parkhurst Prison; Ex parte Hague [1992] 1 AC 58; Byrne v Australian Airlines (1995) 185 CLR 410, 424–5; KM, Stanton, ‘New Forms of the Tort of Breach of Statutory Duty’ (2004) 120 Law Quarterly Review 324Google Scholar. As to the artificiality of any search for parliamentary intent in this context: see Byrne v Australian Airlines (1995) 185 CLR 410, 458–61; Crimmins v Stevedoring Finance Committee (1999) 200 CLR 1, 59–60; Fairgrieve, above n 134, 36–41.

294 O’Connor v SP Bray Ltd (1937) 56 CLR 464, 477–8; Crimmins v Stevedoring Finance Committee (1999) 200 CLR 1, 59. Given that the creation of such a statutory right of action by the Commonwealth Parliament has jurisdictional consequences under Chapter III of the Constitution there may be an expectation that the creation of a private right of action by federal legislation would be done expressly: Byrne v Australian Airlines (1995) 185 CLR 410, 458–61; Crimmins v Stevedoring Finance Committee (1999) 200 CLR 1, 59.

295 Hague v Deputy Governor of Parkhurst Prison; Ex parte Hague [1992] 1 AC 58.

296 Wentworth v Woollahra Municipal Council (1982) 149 CLR 672; Finn, above n 67. However, such a plaintiff can obtain declarations and injunctions: see below.

297 See Three Rivers DC v Bank of England [2003] 2 AC 1, 189–90; Northern Territory v Mengel (1995) 185 CLR 307, 355; Susan, Kneebone, ‘Misfeasance in a Public Office after Mengel’s Case’ (1996) 4 Tort Law Review 111, 120Google Scholar; David, Baker, ‘Maladministration and the Law of Torts’ (1986) 10 Adelaide Law Review 207, 242Google Scholar; Evans, above n 68, 640–43. On the other hand there is some dicta to suggest that the tort was developed in the 19th century by analogy with the tort of malicious prosecution: see Grainger v Hill (1838) 5 Bing (NC) 212; 132 ER 769.

298 See Sanders v Snell (1998) 196 CLR 329, 346–7; Three Rivers DC v Bank of England [2003] 2 AC 1, 190–6, 219–23; James, Bailey, ‘Misfeasance in Public Office: The Tort Defined’ (2001) 16 Banking & Finance Law Review 317, 324–2Google Scholar; Susan Kneebone, above n 297, 121–34; Evans, above n 68, 644–55; Tina, Cockburn, ‘Personal Liability of Government Officers in Tort and Equity’ in Bryan, Horrigan (ed), Government Law and Policy (1998) 342–64Google Scholar; Fairgrieve, above n 134, 87–95. However, at least in Australia, malice has been redefined to mean the intentional infliction of harm: see Tina, Cockburn and Mark, Thomas, ‘Personal Liability of Public Officers in the Tort of Misfeasance in Public Office’ (2001) 9 Torts Law Journal 80, 98–103Google Scholar.

299 See Martin v Watson [1996] AC 74; Gregory v Portsmouth City Council [2000] 1 AC 419; Grivan v Brooks (1997) 69 SASR 532; Megan, Smith, ‘Malicious Prosecution’ (1996) 70 Australian Law Journal 970Google Scholar.

300 See Robert, FV Heuston and RA, Buckley, Salmond and Heuston on the Law of Torts (20th ed, 1992) 379Google Scholar; James v Commonwealth (1939) 62 CLR 339, 374; Rookes v Barnard [1964] AC 1129, 1205. The existence or otherwise of such a tort was left open in Northern Territory v Mengel (1995) 185 CLR 307.

301 Jamieson v Black (1993) 177 CLR 574; Hillman v Black (1996) 67 SASR 490, 503–5, 511–12; Taylor v Serious Fraud Office [1997] 4 All ER 887, 900–1; Stanton v Callaghan [1998] 4 All ER 961, 971–84, 985–91; Mahon v Rahn (No 2) [2000] 4 All ER 41, 68; Darker v Chief Constable of the West Midlands Police [2001] 1 AC 435, 446–9, 450–2, 456–61, 463–70.

302 (1997) 191 CLR 471, 541–52.

303 See Bradley, Selway, ‘The Source and Nature of the Liability in Tort of Australian Governments’ (2002) 10 Tort Law Review 14, 32–7Google Scholar.

304 (2003) 200 ALR 403, 407–11 [10]–[26], 419–20 [59]–[63], 439–40 [141]–[144].

305 I have discussed these changes in Bradley, Selway, ‘The Constitution of the UK: a Long Distance Perspective’ (2001) 30 Common Law World Review 3Google Scholar. As to the effect upon ‘public torts’ see: Darker v Chief Constable of the West Midlands Police [2001] 1 AC 435, 455; D v East Berkshire NHS Trust [2003] 4 All ER 796, 816–24; Michael, Harris, ‘Education and Local Authorities’ (2001) 117 Law Quarterly Review 25, 28Google Scholar; Basil, Markesinis, J-B, Auby, D, Coester-Waltjen and S, Deakin, The Tortious Liability of Statutory Bodies (1999) 96–104Google Scholar, 115–6; Scott and Barber, above n 75, 403.

306 [1994] 1 AC 377.

307 See Hogg and Monahan, above n 146, 31.

308 Woolf and Woolf, above n 109, 277–80.

309 See City of Enfield v Development Assessment Commission (2000) 199 CLR 135, 145–6, 157–8; David, Wright, ‘The Role of Equitable Remedies in the Merging of Private and Public Law’ (2001) 12 Public Law Review 40Google Scholar; SirAnthony, Mason, ‘The Place of Equity and Equitable Remedies in the Contemporary Common Law World’ (1994) 110 Law Quarterly Review 238Google Scholar. These developments have been more restricted in England where Rules of Court have limited the extent to which equitable remedies can be pursued.

310 See Manna Hill Resources Pty Ltd v South Australia (2001) 82 SASR 18. For example, the continued operation of the rule limiting the availability of the prerogative writs against the Governor has not limited the extension of the substantive law to the Governor e.g. the duty to afford a fair hearing. That duty can be enforced by declaratory proceedings or in collateral proceedings: see R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170; South Australia v O’Shea (1987) 163 CLR 378, 386, 416; South Australia v Tanner (1989) 166 CLR 161, 174. On the other hand, in Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438, 455–6 Gaudron, Gummow and Hayne JJ treat the question whether a decision can be set aside by reason of the acts of persons other than the decision maker as being a question to be determined having regard to the historical reach of certiorari for fraud.

311 See Egan v Willis (1998) 195 CLR 424, 438–9; St George’s Healthcare NHS Trust v S [1999] Fam 26, 58–62; ABC v Lenah Game Meats (2001) 208 CLR 199, 241; Electricity Supply Assoc v ACCC (2002) 189 ALR 109, 139 [122], 140 [131]. The courts cannot engage in ‘merit review’: see Ainsworth v CJC (1991) 175 CLR 564; Foster v Minister of Justice & Customs (1999) 164 ALR 357, 359–60. In Australian federal jurisdiction there must be a ‘matter’: Re McBain; Ex parte Catholic Bishops Conference (2002) 209 CLR 372.

312 There are limitations upon the right of the Crown (through the Attorney General) to restrain future breaches of the criminal law: see Selway, above n 163, 83. Even where the proceedings are instituted by the Attorney General or where he or she grants a fiat, there may still not be a ‘matter’ for the purposes of federal jurisdiction: see Re McBain; Ex parte Catholic Bishops Conference (2002) 209 CLR 372. If a fiat is not granted it may be necessary to establish a ‘special loss’: see Boyce v Paddington BC [1903] 1 Ch 109; Wentworth v Woollahra Municipal Council (1982) 149 CLR 672, 680; Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund (1998) 194 CLR 247, 256; Electricity Supply Association of Australia v ACCC (2001) 189 ALR 109, 142; Finn, above n 67, 571; Baker, above n 297, 240–2; Harding, above n 145, 149 ff. See also Kevin, Lindgren ‘Standing and the State’ in Paul, Finn (ed), Essays on Law and Government Vol 2 (1996) 269–74Google Scholar; HE, Renfree, Executive Power of the Commonwealth (1984) 208Google Scholar.

313 There may be statutory restrictions on obtaining an injunction against the Crown in such circumstances: see Enfield City Corporation v Development Assessment Commission (1997) 69 SASR 99, 115.

314 In O’Reilly v Mackman [1983] 2 AC 237, 255 Lord Denning drew a distinction between public law remedies (namely the prerogative writs) and private law remedies (torts and equity), suggesting that the private law remedies had only been developed in relation to public duties to overcome the limitations upon the availability of the prerogative writs. As discussed above, this is not a correct understanding of the historical position.

315 Mark, Aronson, Bruce, Dyer and Mark, Groves, Judicial Review of Administrative Action (3rd ed, 2004) 15–6Google Scholar.

316 See discussion in ibid 731–2.

317 See R v Electricity Commissioners; Ex parte London Electricity Joint Committee Co [1924] 1 KB 171, 192–5; Rubenstein, above n 72, 98–103.

318 See, eg, R v Woodhouse [1906] 2 KB 501; SA, de Smith, Judicial Review of Administrative Action (1st ed, 1959) 272Google Scholar.

319 See, eg, R v Local Government Board (1882) 10 QBD 309, 321. However, the general thrust of authority even well into the 20th century still limited the writs to the exercise of judicial power: see R v Electricity Commisisoners; Ex parte London Electricity Joint Committee Co [1923] 1 KB 171, 205; H, Curlewis, D, John Edwards and W, Sanderson, The Law of Prohibition (1910)Google Scholar.

320 [1964] AC 40.

321 See O’Reilly v Mackman [1983] 2 AC 237, 279; Clive, Lewis, Judicial Remedies in Public Law (2nd ed, 2000) 173–4Google Scholar. The issue may still be open in Australia: see Aronson, Dyer and Groves, above n 315, 702–6.

322 R v Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1952] 1 KB 338; Rubenstein, above n 72, 91–4.

323 See the discussion by Callinan J in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, 521–2 and 524–5 and 533–5 as to the historical differences between certiorari on the one hand and mandamus and prohibition on the other in relation to ‘jurisdictional error’.

324 [1969] 2 AC 147.

325 See Bradley, Selway, ‘The Principle Behind Common Law Judicial Review of Administrative Action — The Search Continues’ (2002) 30 Federal Law Review 217, 222–6Google Scholar. Contrast Aronson, Dyer and Groves, above n 315, 104.

326 See R (Daly) v Home Secretary [2001] 2 AC 532, 546–7; contrast Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502, 517–20 [65]–[77]. As to the significance of the changes in England: see generally Paul, Craig, ‘The Court, the Human Rights Act and Judicial Review’ (2001) 117 Law Quarterly Review 589Google Scholar; Dawn, Oliver Constitutional Reform in the United Kingdom (2003) 97–101Google Scholar.

327 See Craig v South Australia (1995) 184 CLR 163, 178–9.

328 Selway, above n 325; Aronson, Dyer and Groves, above n 314, 166.

329 See John, Basten, ‘Constitutional Elements of Judicial Review’ (2004) 15 Public Law Review 187Google Scholar.

330 See Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82, 92–3.

331 See Allison, above n 4, 125–8.

332 See, eg, Michael, Keating, ‘Sovereignty and Plurinational Democracy: Problems in Political Science’ in Neil, Walker (ed), Sovereignty in Transition (2003) 192Google Scholar ff; Alfred, van Staden and Hans, Vollard, ‘The Erosion of State Sovereignty: Towards a Post-territorial World’ in Gerard, Kreijen (ed), State, Sovereignty and International Governance (2002) 165Google Scholar ff.

333 Of course, the extent and nature of government liability could be further clarified: see the Australian Law Reform Commission, The Judicial Power of the Commonwealth, Report No 92 (2001) 497.

334 See, eg, the Administrative Decisions (Judicial Review) Act 1977 (Cth).

335 See, eg, the Administrative Appeals Tribunal Act 1975 (Cth).

336 See the comments in Director General of Education v Suttling (1986) 162 CLR 427, 437–8 that ‘[t]o the extent that the statute governs the relationship it is idle to inquire whether there is a contract which embodies its provisions’.

337 See Kiao v West (1985) 159 CLR 550, 567.

338 Contrast Mark, Aronson, ‘Is the ADJR Act Hampering the Development of Australian Administrative Law?’ (2004) 15 Public Law Review 202, 216–19Google Scholar.

339 Wik Peoples v Queensland (1996) 187 CLR 1, 182–3.

340 See Bradley, Selway, ‘The Use of History and Other Facts in the Reasoning of the High Court of Australia’ (2001) 20 University of Tasmania Law Review 129, 148–55Google Scholar.