Sunday, November 21, 2004

New Case for Judiciary Act Junkies

The Branch has noticed an interesting recent case in the Victorian Supreme Court, concerning s 64 of the Judiciary Act: Victorian WorkCover Authority v Commonwealth of Australia [2004] VSC 474 (19 November 2004)

WorkCover was suing the Commonwealth under s 138 of the Accident Compensation Act (Vic) to recover compensation paid to a worker who was injured on the Commonwealth's property when she tripped and fell while fleeing a swarm of wasps.

Section 64 of the Judiciary Act provides: "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 Kaye J put it, the issue in the case " it is whether the rights of the Authority are capable, for the purposes of s.64, of being "as nearly as possible" the same as the rights of a subject in a suit commenced by it against the Commonwealth."

The Commonwealth argued that the Workcover Authority, as an emanation of the Crown, was carrying out a function peculiar to government, so that its rights could not, for the purposes of s.64 , be "as nearly as possible the same" as the rights between subject and subject.

His Honour rejected this argument:

The flaw in the argument of the Commonwealth lies, in my view, in its focus on the status and functions of the Authority, as distinct from the rights asserted by the Authority in a claim made by it under s.138 of the Accident Compensation Act. Even if the Authority is the sole entity entitled to institute a claim under s.138 - and thus such a claim is a right "peculiar" to the Authority - it is the rights so asserted by the Authority, and not the status of the Authority, which are required, by s.64, to be equated, as nearly as possible, to rights between subject and subject. There is nothing about the rights so asserted by the Authority which renders them incapable of being so equated to rights between subject and subject.

In other words, in order to preclude s.64 of the Judiciary Act applying to a proceeding under s.138 of the Accident Compensation Act, it is not sufficient that the Authority is an emanation of the Crown which exercises a function which is exclusive to the Crown. … A cause of action based on s.138 does not involve any rights so peculiar to the Crown that the rights of the parties in such an action may not, as nearly as possible, be the same as rights between two litigating subjects.