Daly v Victoria [1920] HCA 63; (1920) 28 CLR 395 (21 October 1920)

This is an application on behalf of the defendant for an order setting aside the service upon it of the writ of summons in this action.

The statement indorsed on the writ discloses that the plaintiffs are residents of the State of New South Wales and sue as executors of the will of John Daly deceased, who was at all material times domiciled in that State. The plaintiffs claim a declaration that portion of the duty claimed by and paid under protest to the Victorian Commissioner of Taxes on the sealing of probate of the will of John Daly was not properly payable, and a refund of the amount alleged to have been overpaid. The defendant entered a conditional appearance denying the jurisdiction of this Court to entertain this action without the consent of the defendant.

The plaintiffs rely on sec. 75 (IV.) of the Constitution as conferring jurisdiction on this Court to entertain the action. Mr. Latham, for the defendant, while admitting that the Supreme Court of Victoria has jurisdiction under the Crown Remedies and Liability Act 1915 to entertain and adjudicate upon the claim of the plaintiffs, contends that sec. 75 (IV.) of the Constitution only confers jurisdiction on the High Court in cases in which the plaintiff has a cause of action against the defendant independently of the provisions of that section, and that in this case the plaintiffs have no such independent cause of action. He says that the Crown Remedies and Liability Act 1915 is not limited to prescribing the procedure by which a subject may obtain redress by process of law against the Crown as represented by the State of Victoria, but that it is that statute and that alone which confers on the subject his right or cause of action. It follows, he argues, that it is only by proceeding in conformity with the provisions of that statute that a subject can obtain redress in respect of a claim against the Crown as represented by the State of Victoria. He summed up his argument in the contention that if the Victorian statute were not in force no legal proceedings could be taken by a subject against the State of Victoria, that this proved that no right of action existed apart from that statute, and that, as the only right given by that statute was to proceed in the Supreme Court in the manner prescribed by the statute, there was no such independent cause of action in the plaintiffs as was necessary to found the jurisdiction of this Court under sec. 75 (IV.) of the Constitution. Assuming, without deciding, that the jurisdiction of the High Court under sec. 75 of the Constitution is limited to cases in which the party suing has some right of action independently of that section, we are still clearly of the opinion that this application must fail. The Victorian statute, in our opinion, does no more than prescribe the method of procedure by which claims by a subject against the Crown may be enforced. Part II. of that Act is headed "Mode of enforcing claims against the Crown," and is clearly directed to cases in which the subject has, apart from the Act, a claim or demand against the Crown. The condition on which the right to present a petition depends is "when any person has any claim or demand against His Majesty which has arisen or accrued since the fourth day of June one thousand eight hundred and fifty-eight within Victoria or which hereafter arises or accrues within Victoria" (sec. 20). Secs. 21-26 are clearly directed to matters of procedure only, and sec. 27 in express terms recognizes the existence of claims and demands founded on and arising out of some contract entered into on behalf of His Majesty or by the authority of his local government. It is well settled by decisions of the Supreme Court of Victoria that a claim such as that made by the plaintiffs is a claim founded on and arising out of a contract entered into by some person on behalf of His Majesty within the meaning of the section last quoted. Mr. Latham contended that at common law and apart from statutory authority the Crown cannot create a contractual obligation in favour of a subject, and as authority for the proposition relied on a statement in Anson on Contracts, 14th ed., p. 68. In our opinion it is abundantly clear both on principle and on authority that this contention cannot be supported. It is unnecessary to do more than refer to the following cases in support of this opinion and of the further proposition that at common law damages for breach of contract were recoverable from the Crown by petition of right: Feather v. The Queen[1]; Thomas v. The Queen[2] and Windsor and Annapolis Railway Co. v. The Queen[3].

It is neither necessary nor desirable that we should express any opinion as to the precise scope of sec. 75 of the Constitution, further than by saying that in our opinion it is clear that a claim founded on and arising out of a contract entered into by some person on behalf of His Majesty is a "matter" within the meaning of that section. The claim being a "matter" within sec. 75, its enforcement by the High Court is provided for by sec. 58 of the Judiciary Act, a provision passed under the power conferred by section 78 of the Constitution.

[1] [1865] EngR 205; 6 B. & S., 257, at p. 294.

[2] L.R. 10 Q.B., 31.

[3] 11 App. Cas., at p. 612.

High Court of Australia

Daly v Victoria [1920] HCA 63; (1920) 28 CLR 395 (21 October 1920)

HIGH COURT OF AUSTRALIA