Crouch v Commissioner for Railways (Qld) [1985] HCA 69; (1985) 159 CLR 22 (5 November 1985)

HIGH COURT OF AUSTRALIA

DAVID STANLEY CROUCH v. THE COMMISSIONER FOR RAILWAYS (QUEENSLAND) AND THE STATE OF QUEENSLAND [1985] HCA 69; (1985) 159 CLR 22

Constitutional Law (Cth)

High Court of Australia
Gibbs C.J.(1), Mason(2), Wilson(2), Brennan(2), Deane(2) and Dawson(2) JJ.

CATCHWORDS

Constitutional Law (Cth) - Federal jurisdiction - High Court - Original jurisdiction - Matters between residents of different States - Corporation - Whether sole resident of State - Matters between State and resident of another State - Commissioner of Railways - Whether the State - The Constitution (63 & 64 Vict. c. 12),s. 75(iv) - Railways Act 1914 (Q.),ss. 6, 8,93,94,99.

HEARING

Brisbane, 1985, July 9;
Canberra, 1985, November 5. 5:11:1985
QUESTIONS reserved pursuant to the Judiciary Act 1904 (Cth),s. 18.

DECISION

GIBBS C.J.: The substantial question for decision in these proceedings is whether the present action was properly brought in the original jurisdiction of this Court. The plaintiff is Mr David Stanley Crouch, who is alleged to be a resident of the State of Western Australia. The defendants are the Commissioner for Railways (Queensland) ("the Commissioner") and the State of Queensland. The plaintiff alleges that he sustained personal injuries on 6 May 1980, when he was employed by the Commissioner, or alternatively by the State of Queensland, as a labourer in a railway gang in Queensland. He alleges that the injuries were caused by the negligence of the Commissioner, or alternatively by the State of Queensland, its employees, servants or agents. Further, or in the alternative, he alleges that the injuries were caused by a breach by the Commissioner, or alternatively by the State of Queensland, of a contractual duty to take reasonable care for his safety. He claims damages. The statement of claim asserts that the action is within the Court's original jurisdiction under s.75 of the Constitution, as being a matter between residents of different States, or alternatively between a State and a resident of another State, within s.75(iv) of the Constitution. Section 75(iv) provides that in all matters "Between States, or between residents of different States, or between a State and a resident of another State" the High Court shall have original jurisdiction.

2. Before us, the plaintiff was unable to support an argument that the State of Queensland, under that name, was a proper party to the action. His counsel rightly disclaimed any reliance on s.64 of the Judiciary Act as conferring jurisdiction. That section provides that "In any suit to which the Commonwealth or a State is a party, the rights of parties shall as nearly as possible be the same, and judgment may be given and costs awarded on either side, as in a suit between subject and subject." As the words of the section themselves show, s.64 applies only if there is a suit validly constituted; in other words, "the essential condition of the application of s.64 is the existence of the suit" to which the Commonwealth or a State is a party: The Commonwealth v. Anderson [1960] HCA 85; [1960] HCA 85; (1960) 105 CLR 303, at p 310. If the matter is not otherwise within federal jurisdiction, s.64 does nothing to bring it within jurisdiction. As the argument in the case progressed, it became clear that the action will be within the original jurisdiction of this Court only if the Commissioner is a resident of the State of Queensland within the meaning of s.75(iv), so that the matter is one between residents of different States, or if the Commissioner can be regarded as representing the State of Queensland and the matter can properly be described as one between a State and a resident of another State.

3. The Commissioner is appointed by the Governor in Council under s.6(1) of the Railways Act 1914 (Q.), as amended ("the Railways Act"). Section 8(1) of that Act provides:

"The Commissioner, representing the Crown,
shall be a corporation sole by the name of 'The
Commissioner for Railways', and by that name shall
have perpetual succession and an official seal
which shall be judicially noticed, and shall be
capable in law of suing and being sued, and shall
have power to take, purchase, sell, exchange,
lease, and hold land, goods, chattels, and other
property.
the purposes of any Act, shall have and may
exercise all the powers, privileges, rights, and
remedies of the Crown."
The Commissioner has power to employ employees (s.17) and to make contracts (ss.95-96). It is expressly provided that actions for breach of contract may be brought by or against the Commissioner (s.96(3)) and that every claim against the Commissioner to recover damages or compensation in respect of personal injury which is brought in the Supreme Court of Queensland shall be heard and determined by a judge without a jury (s.121(1)). There is no doubt that under the law of Queensland the Commissioner would be the proper defendant to the plaintiff's present action. The Crown Proceedings Act 1980 (Q.) provides by s.8(1) that subject to that Act and any other Act or law a claim by or against the Crown may be made and enforced by a proceeding by or against the Crown under the title "State of Queensland", but s.8(2) provides that s.8 does not apply to a claim by or against a corporation representing the Crown constituted by or under any Act. Since the Commissioner is a corporation representing the Crown, the Crown Proceedings Act does not enable the plaintiff's claim to be enforced against the State of Queensland, and under the law of Queensland, that claim could be enforced only against the Commissioner.

4. The first submission made on behalf of the plaintiff in support of the contention that the Commissioner is a resident of Queensland is that we should reconsider the correctness of the decision in Australasian Temperance and General Mutual Life Assurance Society Ltd. v. Howe [1922] HCA 50; (1922) 31 CLR 290, where it was held, by a majority, that the words "residents" and "resident" in s.75(iv) do not refer to artificial persons or corporations. In Cox v. Journeaux [1934] HCA 72; (1934) 52 CLR 282 this Court refused to reconsider that decision, which has been acted on ever since (see also Union Steamship Co. of New Zealand Ltd. v. Ferguson [1968] HCA 25; (1969) 119 CLR 191, at p 196). The result reached in these decisions was a convenient one, since it is difficult to see any good reason why the High Court should have original jurisdiction in cases of this kind. One reason suggested for the insertion of the reference to "residents of different States" in s.75(iv) - the fear that a resident of one State might suffer prejudice in the courts of another State - was always groundless in Australia (cf. Australasian Temperance and General Mutual Life Assurance Society Ltd. v. Howe, at pp 330, 339). Another suggested reason - the difficulty of service of process and enforcement of judgments (see Australasian Temperance and General Mutual Life Assurance Society Ltd. v. Howe, at p 339) - lost its force with the passing of the Service and Execution of Process Act 1901 (Cth). Although the Court of course would not be justified in departing from the Constitution on grounds of mere convenience, these considerations add strength to the view that this question, so long regarded as settled, should not be reconsidered. In the present case we have already announced that we would not permit the decision to be re-opened.

5. It was then submitted on behalf of the plaintiff that Australasian Temperance and General Mutual Life Assurance Society Ltd. v. Howe is distinguishable. It was said that that case dealt with the position of an ordinary company, which might conduct business in a number of States, and should not be regarded as applicable to a corporation such as the Commissioner which is constituted to carry out public duties within one State - although that submission ignores the fact that the Commissioner may well enter into contracts outside Queensland. It was also pointed out that the Railways Act uses the term "Commissioner" in two senses - as referring, first, to an individual, who may, for example, receive a salary (s.7) or be suspended or removed from office (s.10), and, secondly, to a corporation sole which has the powers and functions which the Act confers. However, in the present case the Commissioner is sued as a corporation sole and not as an individual. The submission that Australasian Temperance and General Mutual Life Assurance Society Ltd. v. Howe is distinguishable cannot be accepted. The foundation of that decision was that the words "residents" and "resident" in s.75(iv) of the Constitution refer to natural persons only; they do not refer to corporations of any kind. The present action is not one between residents of different States.

6. The next question is whether the matter is one between a State and a resident of another State. No doubt has been cast on the plaintiff's claim to be a resident of Western Australia. The question accordingly is whether the matter between the plaintiff and the Commissioner may be regarded as a matter between the plaintiff and "a State" within the meaning of s.75(iv). It is clear that the Commissioner is, for relevant purposes, an instrumentality or agent of the Crown in the right of the State of Queensland. It was so held in Bradken Consolidated Ltd. v. Broken Hill Proprietary Co. Ltd. [1979] HCA 15; [1979] HCA 15; (1979) 145 CLR 107, at pp 114-115, 126-127, 133-134 and 139 and in the light of the judgments in that case it is sufficient to say that a consideration of ss.6(2), 17(3), 17(5), 33-35, 38, 42A, 71, 75A, 75B, 94-97, 99 and 128 of the Railways Act shows that the decision on that point was inevitable. There seems no reason to hesitate in taking a further step, and holding that the Commissioner represents the State, as that expression is used in the Constitution. In Bank of N.S.W. v. The Commonwealth [1948] HCA 7; (1948) 76 CLR 1, at p 363, Dixon J. said:

"The Constitution sweeps aside the
difficulties which might be thought to arise in a
federation from the traditional distinction
between, on the one hand the position of the
Sovereign as the representative of the State in a
monarchy, and the other hand the State as a legal
person in other forms of government ... and goes
directly to the conceptions of ordinary life. From
beginning to end it treats the Commonwealth and the
States as organizations or institutions of
government possessing distinct individualities.
Formally they may not be juristic persons, but they
are conceived as politically organized bodies
having mutual legal relations and amenable to the
jurisdiction of courts upon which the
responsibility of enforcing the Constitution rests.
It is from this point of view that the
interpretation of s.75 must be approached."

According to ordinary conceptions, a person who represents the Crown in the right of a State represents the State regarded as an organization or institution of government. But of course the Commissioner does not represent the Crown - or the State - for all purposes; it does so only for the purposes of the Railways Act. The question, therefore, is whether the words "a State" in s.75(iv) include a corporation which is an agency of, and represents, a State for certain purposes, or whether a matter will be between a State and a resident of another State only if the State sues or is sued as such - i.e., in its own name, or at least in the name of a person, such as the Attorney-General, by whom the State itself may be represented for the purposes of legal procedure.

7. There is a marked contrast between s.75(iii) of the Constitution, which refers to matters "In which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party" and s.75(iv), which does not refer to persons suing or being sued on behalf of a State. A comparison of these two provisions suggests that the words of s.75(iv) do not extend to the case where a corporation is sued in its official capacity as an agency of the State for limited purposes. The judgment of Dixon J. in Bank of N.S.W. v. The Commonwealth may be thought to support that view. His Honour said, at p 363:

"There is the strongest presumption that in using
the expression 'or person suing or being sued on
behalf of the Commonwealth' the framers of the
Constitution were not concerned with the
Attorney-General or any other officer by or through
whom the Crown might come or be brought into court.
In s.75(iv.), referring to the States as parties,
there is no concern on this procedural topic. But
what they were concerned with was amenability to
the jurisdiction of persons in whom causes of
action were vested, or against whom causes of
action lay, but in their official capacity only and
as agencies or emanations of the Commonwealth."

After discussing the history of the provision, and in particular the manner in which the courts of the United States had dealt with s.2 of Art.III of the American Constitution, Dixon J. expressed his conclusion as to the effect of s.75(iii) as follows, at p.367:

"There is no reason to treat the words in
question as anything but an endeavour to ensure
that, for the purposes of the jurisdiction, the
conception of the Commonwealth included the agents
and instrumentalities of the Commonwealth suing or
being sued in their official or governmental
capacity and so 'on behalf of the Commonwealth.' In
my opinion so understood the provision covers the
Commonwealth Bank as a corporate agency of the
Commonwealth ..."

The opinion of Dixon J., with whom the other members of the majority agreed (see at pp.275-276 and 321-323), was that the words "or a person suing or being sued on behalf of the Commonwealth" in s.75(iii) were not limited to a person appointed as a nominal defendant to represent the Commonwealth for procedural purposes but extended to persons who acted as "agencies or emanations of the Commonwealth". His remarks suggest that he considered that s.75(iv) would extend to nominal defendants who represented the State for procedural purposes even though that provision did not contain words which corresponded to those of s.75(iii), but he perhaps implied that s.75(iv) did not go any further. However, the case did not decide any question arising under s.75(iv). The actual decision of the majority of the Court on this point was that the provisions of the Banking Act 1947 (Cth) which purported to give exclusive jurisdiction to a new Federal Court of Claims in proceedings against the Commonwealth Bank for compensation invalidly attempted to oust the jurisdiction of the High Court under s.75(iii).

8. Once it appears that a matter falls within s.75(iii), it becomes unnecessary, for the purposes of that provision, to decide whether a party is the Commonwealth or a person suing or being sued on behalf of the Commonwealth. The question was, however, considered in two cases in which the Commonwealth Trading Bank was a party - Inglis v. Commonwealth Trading Bank of Australia [1969] HCA 44; (1969) 119 CLR 334 and Maguire v. Simpson [1977] HCA 63; (1977) 139 CLR 362. In the first of those cases the question for decision was whether the matter was within s.75(iii) and it was answered in the affirmative. Barwick C.J., at p.336, said that he found no need to decide into which part of s.75(iii) the matter fell, but indicated that his own personal preference would be to regard the matter as one in which the Commonwealth was a party. Kitto J. (with whom Windeyer J. concurred) on the other hand concluded that the Commonwealth Trading Bank was "sued as being the emanation by which the Commonwealth operates in the field of general banking, and (was) therefore 'sued on behalf of the Commonwealth' in the sense which the Banking Case shows to be the true sense of that expression in s.75(iii.) of the Constitution": see at p 342. In Maguire v. Simpson, Barwick C.J. appears to have deferred to the views of Kitto and Windeyer JJ. in the earlier case, for he said, at p 368, that the Commonwealth Trading Bank was "suing ... on behalf of the Commonwealth". Mason J. however criticized the conclusion reached by Kitto J. and preferred to hold that the action was one in which the Commonwealth was a party: see at pp.397-398. Murphy J. appears to have been of the same opinion: see at p.407.

9. Since, as I have indicated, it is not material for the purposes of s.75(iii) to decide within what part of that provision a matter falls, in my respectful opinion not much assistance can be derived in deciding the present question from these conflicting dicta. Maguire v. Simpson is however of importance for another reason. It was there decided that s.64 of the Judiciary Act had the effect that certain provisions of the Limitation Act 1969 (N.S.W.) applied in proceedings instituted in the Supreme Court of New South Wales by the Commonwealth Trading Bank of Australia. Each member of the Court held that s.64 of the Judiciary Act applied, notwithstanding the facts that that section refers only to a suit "to which the Commonwealth or a State is a party" and that the party named in the suit in question was not the Commonwealth but the bank. The decision is consistent with two earlier cases: Pitcher v. Federal Capital Commission [1928] HCA 44; (1928) 41 CLR 385 and Naismith v. McGovern [1953] HCA 59; (1953) 90 CLR 336 in which s.64 was applied where the parties to the suit were in one case the Federal Capital Commission and in the other the Commissioner of Taxation. It establishes that the word "Commonwealth" in s.64 includes a statutory corporation which is an agency of the Commonwealth: see at pp.389, 391, 398, 404-406, 407. Further, as the judgment of Jacobs J. shows, the decision also provides authority for the view that "Commonwealth" has a similar meaning in s.78 of the Constitution. That section provides:

"The Parliament may make laws conferring
rights to proceed against the Commonwealth or a
State in respect of matters within the limits of
the judicial power."

Jacobs J. said, at p.404, that the power to enact s.64 of the Judiciary Act is partly at least found in s.78 of the Constitution; at pp.405-406 he continued:

"Section 78 refers only to the Commonwealth and not
to a person being sued on behalf of the
Commonwealth but I do not think that the difference
in language has a significant difference in effect
... In this context the word 'Commonwealth' in
s.78 should be taken to embrace not only the case
where in form the Commonwealth is the actual party
on the record but also the case where the actual
party is a person being sued on behalf of the
Commonwealth. Section 64 of the Judiciary Act
should be construed in the same manner."

10. The decision in Maguire v. Simpson makes it clear that the words "the Commonwealth" will, in an appropriate context, be wide enough to include a corporation which for certain limited purposes is an agency or instrumentality of the Commonwealth. Logically it must follow that the words "a State" could have a similarly wide meaning. This conclusion is supported by the decision in The Municipal Council of Sydney v. The Commonwealth [1904] HCA 50; (1904) 1 CLR 208. In that case it was held that for a municipality to levy a rate upon Commonwealth property is to impose a tax within the meaning of s.114 of the Constitution which, inter alia, forbids "a State" to impose any tax on property belonging to the Commonwealth. O'Connor J., at p.241, said that the prohibition effected by s.114 extends "to taxation by an agency under the authority of the State, and deriving its power to levy taxation from the Parliament of the State": see also at pp.230 and 233.

11. In the light of these authorities it should be concluded that the words "a State" in s.75(iv) are wide enough to include an agency or instrumentality of a State. Elsewhere in the Constitution, when "State" is used to refer to a polity, rather than to a geographical area, it appears to be used in that wide sense - see, e.g., ss.78, 109 and 114. In general, a constitutional provision conferring jurisdiction should not be given a narrow construction. It is true that if the only object of the conferral of federal jurisdiction in matters between a State and a resident of another State had been "to avoid partiality, or the suspicion of partiality" (Quick and Garran, The Annotated Constitution of the Australian Commonwealth, at p.778), there would have been little or no justification for the provision. However, there were reasons of procedural convenience for giving the High Court competence to entertain proceedings to which the States were parties, and the status of the disputants might have been regarded as sufficient reason to confer original jurisdiction on the High Court in matters between States. In any case, I have already indicated that the Court should not give a restricted meaning to a constitutional provision of this kind simply because it thought it inconvenient. There seems to me no sufficient reason why the words "a State" in s.75(iv) should not be given the wide meaning which they are capable of bearing.

12. The contrast between the words of s.75(iv) and those of s.75(iii) has caused me some doubts. However, the two provisions are differently framed. The fact that s.75(iii) refers to matters in which the Commonwealth is "a party" - thus looking to the form in which the proceedings are constituted - may provide an explanation for the addition of the reference to "a person suing or being sued on behalf of the Commonwealth". Section 75(iv) on the other hand refers to a matter "between a State and a resident of another State" and may be thought to refer to the persons between whom, in substance, the controversy has arisen.

13. For these reasons I would hold that the matter between the plaintiff and the Commissioner is a matter between a State and a resident of another State.

14. Two questions were referred to the Full Court, viz.:

1. Whether the Commissioner for Railways constituted

pursuant to Section 8 of the Railways Acts 1914-1982 (Queensland) is a resident of the State of Queensland within the meaning of Section 75(iv) of the Constitution?

2. Whether on the facts alleged in the Statement of

Claim in this action the State of Queensland may be held liable in damages for the negligence or breach of contract of the Commissioner for Railways or its servants or agents?

15. I would answer the first question "No". The second question should not be answered. It does not raise the question, which the parties debated and which I have discussed and answered in the affirmative, whether the action between the plaintiff and the Commissioner is within jurisdiction as a matter between a State and a resident of another State. I would repeat that we are not called upon to consider the effect in the proceedings of s.64 of the Judiciary Act.

MASON, WILSON, BRENNAN, DEANE AND DAWSON JJ.: The plaintiff purportedly brings this action in the Court's original jurisdiction. In it, he seeks to recover damages in negligence or contract for injuries sustained while he was in the employ of the Commissioner for Railways (Queensland) ("the Commissioner"). The defendants named in the proceedings are the Commissioner and the State of Queensland. The plaintiff concedes, however, that he cannot successfully maintain the action against both the Commissioner and the State and that, if his action against the Commissioner can of itself be sustained as being within the Court's original jurisdiction, the State should be struck out as a defendant. In these circumstances, the convenient starting point of the determination of the issue of jurisdiction which the questions reserved for the opinion of a Full Court are intended to raise is a consideration of whether the action by the plaintiff against the Commissioner lies, as the plaintiff contends, within the original jurisdiction of the Court for the reason that it is, for the purposes of s.75(iv) of the Constitution, a matter "between residents of different States" or a matter "between a State and a resident of another State". Since it is common ground that the plaintiff is a resident of Western Australia, his action against the Commissioner satisfies the one or the other of those alternative descriptions if, and only if, either the Commissioner is, for the purposes of s.75(iv), a "resident" of the State of Queensland or the "matter" involved in the action by the plaintiff against the Commissioner is, for the purposes of that paragraph, a "matter" between the plaintiff and that "State".
Is the Commissioner a "resident" of Queensland?

2. The plaintiff's contention that the Commissioner is, for the purposes of s.75(iv), a resident of the State of Queensland is effectively answered by the decision of the Court in Australasian Temperance and General Mutual Life Assurance Society Ltd. v. Howe [1922] HCA 50; (1922) 31 CLR 290. As the dissenting judgments of Isaacs J. and Starke J. demonstrated, the reasoning of the majority in that case might well be thought to be less than compelling (see also Quick & Garran, The Annotated Constitution of the Australian Commonwealth (1901), p.777). The decision has however stood for over sixty years and the Court unanimously refused over fifty years ago to reopen it (see Cox v. Journeaux [1934] HCA 72; (1934) 52 CLR 282). In the course of argument in the present case an application was made on the plaintiff's behalf that the decision be reconsidered, but the Court, again unanimously, refused to reopen it. The basis of the decision in Howe is correctly stated in the headnote to the report (at p.290): "the words 'residents' and 'resident' in sec.75(iv) refer to natural persons only and not to artificial persons or corporations" (see per Knox C.J. and Gavan Duffy J. at pp.294ff. and per Higgins J. at pp.325ff.).

3. The present legislative foundation of the office of the Commissioner is the Railways Act 1914 (Q.) ("the Act"). Section 6(1) of the Act empowers the Governor in Council to appoint a Commissioner for Railways for a term not exceeding seven years. Section 6(2) provides that, upon such appointment, "all the functions, duties, rights, liabilities, privileges, and powers imposed and conferred upon the Commissioner ... shall be vested in and be performed and exercised by such Commissioner". Section 8(1) of the Act constitutes the "Commissioner, representing the Crown," a corporation sole by the name of "The Commissioner for Railways" and provides that the Commissioner, by that name, "shall have perpetual succession and an official seal which shall be judicially noticed, and shall be capable in law of suing and being sued, and shall have power" to acquire and hold real and personal property. Section 8(1) also provides that the "Commissioner, as such corporation, for all the purposes of any Act, shall have and may exercise all the powers, privileges, rights, and remedies of the Crown".

4. It has been said by judges of the highest authority that "(a) corporation sole has two capacities, that of the natural person and that of the corporation" (see per Dixon, Williams, Fullagar and Kitto JJ., McVicar v. Commissioner for Railways (N.S.W.) [1951] HCA 50; (1951) 83 CLR 521, at p 534). We need not stay to identify, let alone resolve, the conceptual difficulties involved in the notion that an artificial entity, which is a creature of the law, can have both its own capacity and the natural capacity of the human office holder who represents it. It suffices, for present purposes, to emphasize that one must, in the case of a corporation sole, distinguish between the transient natural person who happens to hold the particular office at a particular time and the continuing corporate identity which the law attributes to the office. A particular incumbent of the office is, for so long as he or she holds it, clothed by the law with the personality, powers and functions of the corporate entity. It is the office and not the particular human incumbent which is incorporated however and, even though the powers and functions of the office may lie dormant, the artificial corporate entity does not cease to exist when, by reason of a vacancy, the office lacks visible representation.

5. While sometimes blurred, the distinction between the natural person who holds the office of Commissioner and the artificial corporate personality of the office which he or she holds is either expressly adverted to (e.g. s.8(1): "as such corporation") or inherent in many provisions of the Act. Thus, for example, it is the natural person who happens to hold the office who is entitled to receive the Commissioner's salary under the provision that the "Commissioner shall, during his continuance in office, receive a salary" (s.7) and who is referred to in provisions that the "Commissioner" may be "suspended from his office" (s.10), "removed from office" (s.10) or "be deemed to have vacated his office" (s.11). On the other hand, it is the continuing corporate personality or the corporation sole which (or "who") has perpetual succession, which is capable of suing and being sued as such (s.8), which holds railway property (s.8), which appoints and employs officers and other employees to assist in the execution of the Act (s.17(2)) and which has and enjoys the powers, privileges, rights and remedies of the Crown (s.8(1)).

6. In the present case, the plaintiff's action is against the artificial corporate personality of the Commissioner, the corporation sole, as distinct from the natural person who, assuming there was no vacancy in the office, happened to be Commissioner at the time the plaintiff sustained his alleged injuries. That corporate personality or corporation sole is a figment of the law. It is an artificial and not a natural person even though the natural person who holds the office from time to time embodies and visibly represents it. The effect of the decision of the Court in Howe that the words "residents" and "resident" in s.75(iv) refer to natural persons only is that the corporate personality or corporation sole which the plaintiff sues is not a "resident" for the purposes of that paragraph. It follows that the plaintiff's action against the Commissioner does not lie within the original jurisdiction of the Court on the ground that it is a matter between "residents" of different States.
Does the action by the plaintiff against the Commissioner involve a "matter" between the plaintiff and the "State" of Queensland?

7. The corporation sole by the name of "The Commissioner for Railways" does not, of course, constitute the State of Queensland. In that sense, it is not the State. That assertion of the obvious does not, however, suffice to answer the question whether the plaintiff's action against the Commissioner falls within the Court's original jurisdiction under s.75(iv) of the Constitution as a "matter" between the plaintiff (as a "resident" of Western Australia) and the State of Queensland. It is equally obvious that neither a person appointed as a nominal defendant to represent a State in an action to enforce a claim against the State nor a State Minister who sues in his or her own name on behalf of the State to enforce a right of the State constitutes the State. The subject of the action in which he or she is sued or sues in that capacity might well however, depending upon the context, properly be described as a "matter" between the other party and the State against which or for whose benefit the claim lies, at whose expense it is resisted or pursued and from or by whose treasury any verdict will be satisfied or received.

8. It is now established that the word "matter" in s.75 of the Constitution is not synonymous with a legal proceeding. It was said by Knox C.J., Gavan Duffy, Powers, Rich and Starke JJ. in In re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257, at pp 266 and 265 (respectively) that the "word 'matter' is used several times in Chapter III of the Constitution (secs. 73, 74, 75, 76, 77), and always ... with the same meaning" and that the word, as so used, means not a legal proceeding "but rather the subject matter for determination in a legal proceeding". That general meaning of the word "matter" has been accepted in subsequent cases (see, e.g., Fencott v. Muller (1983) 152 CLR 570, at pp 591, 603). It should, in our view, be accepted as the settled prima facie meaning of the word in Ch III of the Constitution. At least since the judgment of Latham C.J. in Carter v. Egg and Egg Pulp Marketing Board (Vict.) [1942] HCA 30; (1942) 66 CLR 557, however, it has been recognized that the meaning of the word "matter" within Ch III, particularly as used with reference to the various paragraphs of s.75, "must be affected by the context in each case where it is used" (at pp 578-580; and see, generally, Philip Morris Inc. v. Adam P. Brown Male Fashions Pty. Ltd. ; (1981) 148 CLR 457, at pp 491-493, 508-509, 543-544).

9. When the word "matter" is used in Ch. III of the Constitution in its ordinary prima facie sense of the subject matter for determination in a legal proceeding rather than the legal proceeding itself, it focuses attention upon the substance of the dispute. As so used, the word is a word of wide connotation: it is, and was in 1900, "the widest term to denote controversies which might come before a Court of Justice" (per Griffith C.J., South Australia v. Victoria [1911] HCA 17; (1911) 12 CLR 667, at p 675; Philip Morris, at pp 492,507; Fencott v. Muller, at p 603). It is so used in relation to s.75(iv) of the Constitution which refers to "matters ... between" designated parties. The consequence is that the question whether a particular "matter" lies within the original jurisdiction of the Court under s.75(iv) as a matter "(b)etween States" or as a matter "between a State and a resident of another State" falls to be determined by reference to the substantial subject matter of the controversy and not by reference only to the form in which the legal proceedings involving it happen to be framed. That this is so accords well with what would appear to be the rationale of the relevant conferral of original jurisdiction by s.75(iv), namely, that justiciable disputes between States or between a State and a resident of another State should be amenable to the jurisdiction of the principal court of the new Federation. In a context where the established method of proceeding against one or other of the federating Colonies was by an action against a person named as a nominal defendant (see, e.g., Quick & Garran, op. cit., at pp.805-806), it can scarcely have been the intention of the framers of the Constitution that the original jurisdiction of the Court in relation to a matter of dispute between States or between a State and a resident of another State should be determined according to whether a State sued or was sued in its own name as a party or whether an appropriate State Minister, officer or instrumentality or a nominal defendant sued or was sued on its behalf.

10. Examination of the provisions of the Act discloses that the Commissioner is an instrumentality of the State of Queensland through which the Executive Government of the State discharges an important part of its governmental functions. It has long been recognized in this Court, as indeed it was recognized by the Constitution itself (see, e.g., s.51(xxxii), (xxxiii) and (xxxiv) and s.102), that the conduct of railways is, as a matter of history, an established and "very large and important part" of government in this country (The Federated Amalgamated Government Railway and Tramway Service Association v. The N.S.W. Railway Traffic Employees Association (1906) 4 CLR 488, at pp 534-535, and see also Bradken Consolidated Ltd. v. Broken Hill Proprietary Co. Ltd. [1979] HCA 15; (1979) 145 CLR 107, at p 115). In each of the federating Colonies, "the actual administration of the railways was entrusted to a body specially constituted under State law for the purpose, but the revenue from the railways was State revenue, and the obligations incurred by their managers were State obligations" (The N.S.W. Railway Traffic Employees Association Case, at p.535). This position continues in Queensland. Under the Act, the Commissioner is an instrumentality, agent or authority of the Crown in right of Queensland (see Bradken Consolidated Ltd., at pp.126-127, 133-134). While the Act "does of course leave the Commissioner with some discretionary powers, ... in many important respects it subjects him to direct control either by the legislature (e.g., ss.33-35), the Governor in Council (e.g., ss.38, 42A, 71, 75A, 75B and 128) or the Minister (e.g., ss.94, 95, 97)" (per Gibbs A.C.J., Bradken Consolidated Ltd., at p.115 and see also s.6(2) of the Act). All moneys payable to the Commissioner "shall be collected and received by him on account of and shall be paid into the Consolidated Revenue" (s.99). The contracts of the Commissioner are of no force or effect unless and until ratified by the Minister (s.95(1)). The funds of the Commissioner must be appropriated by Parliament from Consolidated Revenue (see, e.g., ss.93,94) and the Financial Administration and Audit Act 1977 (Q.) and any other Queensland Act relating to the collection and payment of public moneys and the audit of the public accounts are made generally applicable to the Commissioner and to all employees under the Act (s.99). To borrow from words used in judgments in this Court in Bank of N.S.W. v. The Commonwealth ("the Banking Case") [1948] HCA 7; (1948) 76 CLR 1, at p 274 and in Inglis v. Commonwealth Trading Bank of Australia [1969] HCA 44; (1969) 119 CLR 334, at pp 337, 339 and 342, the intention of the Parliament of Queensland as evidenced by the Act was "to transmute a part" of the Government of the State "into the outward form of a corporation as a convenient means of carrying on" a traditional government activity with the result that when the Commissioner is sued, as in the present case, he is "sued as being the emanation by which" the State of Queensland discharges its governmental activities in relation to railways.

11. As Dixon J. pointed out in the Banking Case (at p.363), the Constitution sweeps aside the difficulties which might arise in a federation from the traditional distinction between the position of the Sovereign as the representative of the State in a monarchy and the State as a legal person in other forms of government and goes directly to the conceptions of ordinary life. "From beginning to end", his Honour remarked, "(the Constitution) treats the Commonwealth and the States as organizations or institutions of government possessing distinct individualities. Formally they may not be juristic persons, but they are conceived as politically organized bodies having mutual legal relations and amenable to the jurisdiction of courts upon which the responsibility of enforcing the Constitution rests". If, as it must be, the interpretation of s.75 of the Constitution is approached from this point of view, it becomes apparent that the whole subject matter of the proceedings between the plaintiff and the Commissioner in the present case is properly to be seen, for the purposes of s.75(iv), as a matter "between" the plaintiff and the State of Queensland. That subject matter is a claim by the plaintiff against an instrumentality or emanation of the State which is sued in its capacity as such. It arises from the discharge of traditional governmental functions of the State. The burden of any judgment, if the plaintiff's claim should succeed, will fall upon the Consolidated Revenue of the State. The funds involved in resisting the claim must come from that same source. That being so, the legal proceeding by the plaintiff against the Commissioner lies within the original jurisdiction conferred upon the Court by s.75(iv) of the Constitution.

12. It should be mentioned that it was argued on behalf of the Commissioner that the inclusion of the words "a person suing or being sued on behalf of the Commonwealth" in s.75(iii) and the absence of any corresponding words in s.75(iv) indicated that it was not intended that the relevant reference to "State" in s.75(iv) should include in the grant of jurisdiction the subject matter of legal proceedings in which only a State instrumentality, as distinct from the State itself, was actually and properly named as a party on the record. According to the argument, the reference in s.75(iii) to matters in which the Commonwealth "is a party" must, in the light of the additional words, be given a narrow and technical meaning and the relevant reference to "State" in s.75(iv) should be correspondingly confined. Any superficial plausibility of that argument does not, however, withstand closer examination. Indeed, comparison of the words of s.75(iv) with the words of s.75(iii), particularly in the context of statements in this Court about s.75(iii), supports, rather than undermines, the conclusion that the proceeding by the plaintiff against the Commissioner is within the original jurisdiction conferred by s.75(iv). We turn to explain why that is so.

13. Section 75(iii) was based upon Article III of the United States Constitution. The words "or a person suing or being sued on behalf of the Commonwealth" were apparently added, in s.75(iii), to ensure that the technical interpretation which had initially been given to the words "controversies to which the United States shall be a party" in Article III was not applied to confine the grant of jurisdiction in s.75(iii) in "matters ... (i)n which the Commonwealth ... is a party" to legal proceedings in which the Commonwealth itself as such was "the party named in the record" (see Osborn v. Bank of the United States [1824] USSC 39; (1824) 9 Wheat. 738, at pp 855-857 (6 Law Ed 204, at p 232); see also R. v. Murray and Cormie; Ex parte The Commonwealth (1916) [1916] HCA 58; 22 CLR 437, at pp 455-456; and note United States v. Lee [1882] USSC 58; (1882) 106 US 196, at pp 207-208 (27 Law Ed 171, at p 177), In re Ayers [1887] USSC 271; (1887) 123 US 443, at pp 487ff., 511ff. (31 Law. Ed.216, at pp 223ff., 231ff.), Stanley v. Schwalby [1896] USSC 87; (1896) 162 US 255, at pp 269ff. [1896] USSC 87; (40 Law Ed 960, at pp 965-966)). The words were intended "to ensure that, for the purposes of the jurisdiction, the conception of the Commonwealth included the agents and instrumentalities of the Commonwealth suing or being sued in their official or governmental capacity" (per Dixon J., the Banking Case, at p.367). That narrow technical interpretation had, however, been initially attributed to those words of Article III in the limiting context of a need to restrain the operation of the doctrine of immunity of the United States against suit without legislative consent (see per Frankfurter J., speaking for the US Supreme Court, in Keifer v. Reconstruction Finance Corporation [1939] USSC 44; [1939] USSC 44; (1939) 306 US 381, at p 388 (83 Law.Ed. 784, at p 788), quoted by Dixon J. in the Banking Case, at p.367). Such a doctrine was not operative within this country and the reference to "matters" in which "the Commonwealth" is "a party" in s.75(iii) has not been construed, as it conceivably could have been (cf. per Latham C.J., Carter, at p.579), as importing a requirement that the Commonwealth itself be actually and properly named as a party on the record (cf. Maguire v. Simpson [1977] HCA 63; [1977] HCA 63; (1977) 139 CLR 362, at pp 398, 405-406, 407). Nor have the additional words ("or a person suing or being sued on behalf of the Commonwealth") been seen in this Court as confining the ambit of the reference to "matters" in which "the Commonwealth ... is a party". In the Banking Case (at pp.362-368), Dixon J. appeared to treat the additional words as having been added merely ex abundanti cautela. In Inglis v. Commonwealth Trading Bank of Australia (at p 336), Barwick C.J. indicated a preference for the view that the action against the Bank, an instrumentality of the Commonwealth, lay within the jurisdiction conferred by s.75(iii) for the reason that the matter was "one in which the Commonwealth was a party" rather than that it was one in which a person was sued "on behalf of the Commonwealth". Kitto J., with whose judgment Windeyer J. agreed, expressed the conclusion (at p.342) that the case came within the additional words of s.75(iii) in that the Bank was sued "on behalf of the Commonwealth". As Mason J. pointed out in Maguire v. Simpson (at pp 397-398) however, there is much in the reasoning of Kitto J. which tends rather to support the conclusion reached by Barwick C.J. that the "matter" should be viewed as one in which the Commonwealth itself was a party. In Maguire v. Simpson, Mason J. (at p 398) certainly and Murphy J. (at p 407) seemingly preferred the conclusion of Barwick C.J. in Inglis. The third member of the Court who had occasion to indicate a view in that regard, Jacobs J., was at pains to emphasize that the additional words in that paragraph should not be construed as limiting either the reference to "the Commonwealth" as a party or the reference to "the Commonwealth" in s.78 of the Constitution. His Honour said (at pp.405-406):

" It has been held that the Commonwealth Trading
Bank of Australia is 'the Commonwealth or a person
suing or being sued on behalf of the Commonwealth'
within the meaning of those words in s.75(iii.):
Inglis v. Commonwealth Trading Bank of
Australia [1969] HCA 44; (1969) 119 CLR 334. Section 78 refers
only to the Commonwealth and not to a person being
sued on behalf of the Commonwealth but I do not
think that the difference in language has a
significant difference in effect. Section 75(iii.)
deals with cases where the Commonwealth in
substance, though not necessarily in form, is suing
or being sued. The intention was to make the words
as comprehensive as possible. I do not think that
it was intended to make a definitive categorization
between the Commonwealth on the one hand and on the
other hand a person suing or being sued on behalf
of the Commonwealth".

14. Plainly, in the light of what has been said above, it would be wrong to read down the grant of jurisdiction contained in s.75(iv) by reason of the fact that the paragraph does not contain any provision to the effect of the additional words in s.75(iii). There is, however, a further reason why the provisions of s.75(iii) cannot be seen as limiting the scope of s.75(iv). As has been seen, it was the reference to the Commonwealth being "a party" in s.75(iii) which was thought to make it desirable to add the additional words in that paragraph as a safeguard against the effect which would have resulted if some earlier (and subsequently modified) United States decisions about the effect of the corresponding requirement of Article III of the United States Constitution had been followed. In contrast, s.75(iv) contains no reference to "party". It refers to matters "between" States, "between" residents of different States, or "between" a State and a resident of another State. Since, as has also been seen, the ordinary and prima facie meaning of "matter" in Ch.III is to the substantive subject matter of a legal proceeding as distinct from the legal proceeding itself, there was not the same need to include in s.75(iv) words to the effect of the additional words of s.75(iii). To the contrary, the contrast between s.75(iii) with its reference to the Commonwealth being "a party" and s.75(iv) with its broad reference to "matters ... between" particular entities or persons emphasizes the need to construe s.75(iv) as referring to the substance of the controversy rather than to the mere form of the particular legal proceeding.

15. As has been said, the plaintiff conceded that, if the action against the Commissioner as defendant lies within the jurisdiction of the Court as involving a "matter" between a State and a resident of another State, the "State of Queensland" should be struck out as a defendant. That being so, the second of the two questions reserved for the opinion of the Court is, in our view, academic and need not be answered. Instead of answering that question, we would make a declaration that the plaintiff's action is within the original jurisdiction of the Court under s.75(iv) in that it involves a "matter" between a resident of Western Australia and the State of Queensland. The first of the two questions should, for the reasons which we have given, be answered in the negative.

ORDER

Answer the questions reserved pursuant to s.18 of the Judiciary Act as follows:

1. Whether the Commissioner for Railways constituted

pursuant to Section 8 of the Railways Acts 1914-1982 (Queensland) is a resident of the State of Queensland within the meaning of Section 75(iv) of the Constitution?
No.

2. Whether on the facts alleged in the Statement of

Claim in this action the State of Queensland may be held liable in damages for the negligence or breach of contract of the Commissioner for Railways or its servants or agents?
Unnecessary to answer.

Declare that the plaintiff's action is within the original jurisdiction of the Court under s.75(iv) of the Constitution in that it involves a "matter" between a resident of Western Australia and the State of Queensland.