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Judamia & Ors v State of Western Australia
Supreme Court of Western Australia
Malcolm CJ, Rowland and Franklin JJ
1 March 1996
Casenote by Edwina Cowdery[1]
This decision raises, but does not ultimately decide, whether the Western Australian Constitution still contains a provision (s70) which sets aside one percent of gross State revenue for the welfare of the State's Aboriginal people. The focus of the decision was on the preliminary issue of whether or not the action, as outlined in the statement of claim, complied with those provisions of the Crown Suits Act 1947 (WA) which regulate the manner in which actions against the Crown can be brought. Like the judge at first instance, Craven J, the Full Supreme Court of Western Australia held that the action could not be maintained because it failed to comply with the Crown Suits Act. Malcolm CJ and Rowland J wrote separate judgments which agreed in substance, while Franklyn J agreed with both judgments.
Section 70 of the Constitution Act 1889 (WA) ('the Constitution'), when first enacted, provided that an annual sum of £5,000, or one percent of the gross revenue of the Colony, whichever was the greater, was to be 'appropriated to the welfare of Aboriginal Natives, and expended in providing them with food and clothing when they would otherwise be destitute, in promoting the education of Aboriginal children (including half-castes) and in assisting generally to promote the preservation and well-being of Aborigines'. The moneys were to be issued by the Treasury to the Aborigines Protection Board (constituted under the Aborigines Protection Act 1886 (WA)) to be expended by the Board in any way it saw fit.
Snowy Judamia, Crow Yougarla, Paddy Yarbarla, Billy Thomas and Leslie Ankie ('the appellants') on behalf of themselves and all other Aboriginal inhabitants of Western Australia, brought an action against the State of Western Australia claiming that the two legislative attempts to repeal s70 in 1897 and 1905 were flawed, and that, as a result, s70 is still a validly enacted law. If that is the case, they contended further that the terms of s70 suggest that the State of Western Australia voluntarily accepted a fiduciary obligation to pay money for the welfare of the Aboriginal inhabitants of Western Australia, and that, as s70 is still valid, the fiduciary obligation continues to the present day. Further, the State of Western Australia has failed to pay money, in accordance with its obligation under s70, since 1897 (when the first attempt at repealing s70 occurred), and it is thus in breach of its fiduciary obligation.
The relief sought by the appellants consisted of an order appointing them to represent all Aboriginal inhabitants of Western Australia, a declaration that the attempts to repeal s70 of the Constitution in 1897 and 1905 were invalid, a declaration that the state of Western Australia was in breach of the fiduciary obligation owed to the Aboriginal people of Western Australia, and an order that the Court settle a scheme for the application of funds payable by the State of Western Australia to the Aboriginal inhabitants of Western Australia.
In putting their case, the appellants outlined the requirements laid down by statute for the alteration of s70 of the Constitution, which they argued was, by virtue of these requirements, an 'entrenched provision'. Section 73 of the Constitution provided that the Legislature of the Colony of Western Australia had full power and authority to repeal or alter any of its provisions, provided that in the case of certain provisions, including s70, the relevant Bill was to be reserved by the Governor 'for the signification of Her Majesty's pleasure thereon'. The requirements for obtaining the Royal Assent to such a Bill were contained in s2 of the Western Australia Constitution Act 1890 (Imp) ('the 1890 UK Act') and s33 of the Government of New South Wales and Van Diemen's Land Act 1842 (Imp) ('the 1842 UK Act'). (The latter Act was made applicable to Western Australia by the Australian Colonies Government Act 1850 (Imp) ('the 1850 UK Act').) Section 33 provided that a Bill required to be reserved had no effect until the Governor signified by speech or message to the Legislative Council, or by proclamation, that Her Majesty had assented to the Bill.
In addition to signification by Her Majesty and proclamation by the Governor, certain Bills were also required to be tabled for 30 days in both the House of Commons and the House of Lords in the Imperial Parliament prior to obtaining the Royal Assent. The appellants argued that a Bill repealing s70 was such a Bill, by virtue of s73 of the Constitution, s2 of the 1890 UK Act, and s32 of the 1850 UK Act. Section 32 of the 1850 UK Act provided, relevantly, that after the establishment of a Legislative Council in Western Australia, it would be lawful for the Governor and the Legislative Council, by an Act of Parliament, to alter the provisions or laws for the time being in force under the 1850 UK Act concerning such issues as the election of elective members of the Legislative Council, the qualifications of electors and elective members, and the establishment of a separate House of Parliament from the Legislative Council.
The appellants argued that the first attempt to repeal s70, contained in the Aborigines Act 1897 (WA) ('the 1897 Act'), was passed by both Houses of Parliament and received the Royal Assent, but was not proclaimed in the manner and form required by the Constitution. The 1897 Act purported to abolish the Aborigines Protection Board and replace it with an Aborigines Department, which would be given .£5,000 for expenditure on Aboriginal welfare. The second attempt to repeal s70, embodied in the Aborigines Act 1905 (WA) ('the 1905 Act'), was passed by both Houses of the Western Australian Parliament and received the Royal Assent, but was not tabled for 30 days in both Houses of the Imperial Parliament as the appellants contend was required. The 1905 Act restated the responsibilities of the Department and provided that it would be granted £10,000 for carrying out those responsibilities. The 1905 Act recognised that the 1897 Act had not effectively repealed s70, and contained a provision which deemed the 1897 Act to have been validly enacted.
In response to the appellants' statement of claim, the State of Western Australia did not file a defence, but instead filed an application that the action be struck out on the basis that it failed to comply with s6 of the Crown Suits Act 1947 (WA). Section 6 regulates the manner in which, and the time within which, an action can be brought against the Crown. Section 6(1) provides that no right of action lies against the Crown unless notice of the intended action is given to the Crown Solicitor as soon as practicable, or within three months of the cause of action accruing, and the action is to be commenced within a year of the date on which the cause of action accrued. Section 6(1) also provides that where the act, neglect or default on which the proposed action is based is 'a continuing one', no cause of action accrues until it has ceased, but the notice may be given and the action brought 'while the act, neglect or default continues'. Subsections 6(2) and 6(3) provide that the Attorney-General may consent to the bringing of an action, or the Court having jurisdiction to hear the action may grant leave to bring an action, at any time before the expiration of six years from the date when the cause of action accrued.
The appellants responded to the strike-out application with four distinct submissions, each of which will be dealt with in turn.
In their first submission, the appellants argued that the Crown Suits Act had no application to proceedings for the enforcement of Constitutional rights, because the Constitution is a 'grundnorm of legislative power within the State and its operation cannot be limited by a procedural statute such as the Crown Suits Act. Alternatively, a Parliament of the State cannot amend an 'entrenched provision' of the Constitution simply by passing legislation purporting to have that effect. It was further contended that the effect of the Crown Suits Act was to bar the remedy available to attack the Constitutional validity of the 1897 Act and the 1905 Act. This was said to have been done in the same way as legislation enacted to bar claims for recovery of moneys paid under legislation was held to be invalid as contrary to s92 of the Commonwealth Constitution. Reliance was placed on the decisions in Antill Ranger & Co Pty Ltd v Commissioner for Motor Transport ((1955) [1955] HCA 25; 93 CLR 83), Sub Nom Deacon v Grimshaw ((1955) 93 CLR 104), and Commissioner for Motor Transport v Antill Ranger & Co Pty Ltd ((1956) [1956] UKPCHCA 5; 94 CLR 177) ('the s92 cases').
Like Owen J at first instance, none of the members of the Full Supreme Court thought that the Crown Suits Act deprived the subject of a right of Constitutional challenge. Malcolm CJ and Rowland J both expressed the opinion that the 'grundnorm' concept, developed by Austrian legal writer Hans Kelsen, was not a useful way of characterising the issue in the instant case. Moreover, Malcolm CJ suggested that Professor Julius Stone had demonstrated a number of fundamental weaknesses in Kelsen's theory, while Rowland J was of the view that if the 'grundnorm' theory were correct, there would be no need for the appellants to limit the remedy sought to declaratory relief as they had done.
Malcolm CJ and Rowland J also held that s70 could not properly be characterised as 'an entrenched provision' simply because it could only be repealed or amended in compliance with the manner and form provisions contained in s73. Section 73 itself was not an 'entrenched provision', and was subject to repeal by an Act passed by a simple majority of both Houses of Parliament. The Western Australian Constitution itself, while it is derived from certain fundamental principles, contains processes for change within it.
Malcolm CJ held that the Crown Suits Act is readily distinguishable from the kinds of legislation under challenge in the s92 cases. It enables the Crown to be sued in the same way as an action between subject and subject. In other words, it facilitates proceedings by a subject against the Crown by simplifying the procedure, albeit subject to requirements of notice and the fixing of a limitation period of one year from the accrual of the cause of action (subject to an extension of time up to six years from such accrual). His Honour agreed with Owen J at first instance that the Crown Suits Act does no more than regulate procedure and fix a reasonable time limit for the bringing of actions against the Crown. His Honour considered that there is 'considerable force' in the argument that requirements of s6 constituted conditions precedent to the right of action and to the jurisdiction of the Court with respect to it as discussed (but not decided) in the recent Western Australian decisions of Western Australia v Watson ([1990] WAR 248) and Biljabu v State of Western Australia ((1993) 11 WAR 372).
Rowland J was of the view that the Crown Suits Act does more than regulate procedure; it creates remedies where none existed before, and it extinguishes rights if the appropriate procedural requirements are not followed. It cannot be said that the Crown Suits Act, as with the s92 cases, bars the remedy. Instead, it sets out, in s6, the procedural requirements for the exercise of the remedy. It is the failure to comply with those requirements that gives rise to the bar. In His Honour's view, the Constitution stands in this regard in no different relationship to the Crown Suits Act than other statutes.
In their second submission, the appellants argued that s6 of the Crown Suits Act does not apply to a proceeding for a declaration, because it does not involve a 'cause of action' for the purposes of that section. A 'cause of action', it was submitted, referred to one of the old common law or equitable forms of action. Thus there was no relevant time limit imposed by the Crown Suits Act in respect of proceedings for a declaration (and similarly there was no time limit in relation to the commencement of proceedings for declaratory relief only under the Limitation Act 1935 (WA)). Reliance was placed upon a number of English authorities and commentaries, including National Bank of Commerce v National Westminster Bank ((1990) 2 Lloyds LIZ 514) and Declaratory Orders by PW Young (2nd ed 1984).
In answering this submission, Malcolm CJ reviewed the historical development leading to the modern wide scope of declaratory relief as it is stated in Dyson v Attorney-General [1911] 1KB 410; [1912] 1Ch 158. His Honour reached the view that 'when it was said that it was not necessary to have a "cause of action" in order to obtain declaratory relief, that was a reference to a "cause of action" in the historical or traditional sense of one of the recognised forms of action'. In His Honour's view, 'the true position is that while it is not necessary that there be a "cause of action" in the traditional sense which identifies one of the historic "forms of action", there must be a controversy of a justiciable nature'.
Malcolm CJ endorsed the definition of a 'cause of action' adopted by Wilson J in Do Carmo v Ford Excavations Pty Ltd ((1984) [1984] HCA 17; 154 CLR 234 at 245), as 'the fact or combination of facts which gives rise to the right to sue'. His Honour concluded that 'in proceedings for a declaration under the Crown Suits Act it is the occurrence of the last fact or circumstance which gives rise to the right to sue for the declaration, which should be taken as the date upon which the cause of action accrued'. On the facts of the instant case, this means that if a declaration is to be obtained that the repealing Acts are invalid, such a declaration rests upon a combination of facts and circumstances, the last of which occurred in 1906 (that is, the failure to table the disputed legislation in Houses of the Imperial Parliament). The last relevant fact relating to the State of Western Australia's purported breach of fiduciary obligation was the enactment of the 1905 Act.
In a related attempt to circumvent the application of the Crown Suits Act, the appellants applied to join the Attorney-General as a party to the proceedings. The appellants argued that by virtue of s7(c) of the Crown Suits Act, proceedings against the Attorney-General as the representative of the Crown are not subject to the notice provisions and time limitations set out in s6 of the Crown Suits Act. Section 7(c) provides that nothing in the Crown Suits Act affects any right or liability, established by law or custom, of the Attorney-General to sue or be sued on behalf of the Crown.
It was common ground that the Supreme Court of Western Australia can entertain proceedings for a declaration instituted against the Attorney-General as the representative of the Crown. Malcolm CJ formed the view that, in Western Australia, the jurisdiction of the former Court of Exchequer exercised in such cases as Dyson v Attorney-General was expressly preserved by s7(c) of the Crown Suits Act. But this extends to only declaratory relief obtainable against the Attorney-General as the representative of the Crown. The Crown Suits Act otherwise provides a complete code for obtaining coercive relief against the Crown. Rowland J agreed that the provisions of the Crown Suits Act embody the sole process for obtaining coercive relief against the Crown. In the context of this legislative matrix there is, as a result, no room for an unlimited right to obtain coercive relief via a declaratory judgment against the Crown through the Attorney-General.
Rowland J also noted that, although it was once the case that the only common law procedure by which the Crown could be sued was by joining the Attorney-General under s7(c), the life now left in that section is arguably limited, because of the amendments in 1953 to the Limitation Act embodied in ss47A and 48A of that Act. These provisions endeavoured to make the limitation provisions against the Crown, and any of its agencies and instrumentalities, uniform. It is now arguable that where an action falling within s7(c) of the Crown Suits Act exists, then an action to which the Attorney-General is made a party will be subject to the limitations contained in s47A. This point was not raised in argument, so no ultimate determination was made in relation to it.
In any case, if the Attorney-General were joined as a party to the instant proceedings, the question arises whether it would be necessary to amend the statement of claim. Although the appellants argued that their action was framed as an action for declaratory relief only, Malcolm CJ and Rowland J held the view that the action is better characterised as an action to enforce a fiduciary obligation, and as such is an action for coercive relief. The effect of a declaration would be to give rise to a statutory obligation to appropriate money. While a claim for relief based on breach of an alleged fiduciary duty remains, it cannot be successfully argued that declaratory relief was all that was sought. If more than declaratory relief is sought, the Attorney-General cannot be joined as a party.
In their third submission, the appellants argued that the State of Western Australia's failure to act in accordance with s70 of the Constitution could properly be characterised as a 'continuing act or default' for the purposes of s6(1) of the Crown Suits Act. Thus, the notice given and the action brought while the act or default continued were within time as specified by s6(1).
Malcolm CJ rejected this argument for the reasons articulated by Owen J at first instance. In Malcolm CJ's view, it was not the purpose of the action to procure the appointment of a board or have the other administrative procedures put in place in accordance with the original terms of s70. Rather, the main objective was to secure the appropriation of payments due to be expended for the benefit of the Aboriginal inhabitants of Western Australia. When considered in the context of the public appropriation of funds under the Constitution, it was clear that it was an annual act of appropriation that was contemplated. Each appropriation was to. form part of the budget of the State for any one particular year. Assuming that s70 is still a validly enacted law, this means that the failure of the State of Western Australia to make payments pursuant to s70 constitutes a discrete and complete default in each year that failure has occurred. There is therefore no 'continuing act or default' for the purposes of s6(1) of the Crown Suits Act.
In their final submission, the appellants put forward the argument that s70 of the Constitution contemplated an annual act, so that, at the very least, the appellants were entitled to rely upon the default in the year preceding the commencement of the action, and, with the leave of the court pursuant to s6(3), on the default in each of the six years preceding the commencement of the action.
Malcolm CJ and Rowland J held the same view that any payments which should have been made before 1947 would be statute barred by the Crown Suits Act 1898 (WA), the forerunner of the 1947 Act. In the period after 1947, the appellants would need to bring a separate cause of action for each year where there was a default, and each action would require compliance with s6 of the Crown Suits Act. The notice given to the Crown Solicitor in the instant case did not identify a cause of action within the time limit for giving notice. In addition, as the statement of claim was currently drafted, there was no specific claim in respect of any particular annual act. No application had been made to the court to amend the statement of claim so as to found the claim on any particular act or acts. A writ issued in advance of leave under s6 is necessarily incompetent, and as a result, the action must fail.
In August 1996, the High Court granted special leave to appeal against the Full Court's decision. However, the High Court has said that the grant of special leave to appeal will be revoked if procedural difficulties arise.
[1] The views expressed in this casenote are those of the author alone, and do not in any way attempt to represent those of the New South Wales Director of Public Prosecutions.
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URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1996/54.html