Historically, it was impossible at common law to undertake litigation against the Crown. In Australia, statutory provisions later provided that "in any suit to which the [government] is a party, the rights of parties shall as nearly as possible be the same … as in a suit between subject and subject." Litigation against government or other public authorities in relation to the exercise of functions analogous to those of private actors thus proceeds in essentially the same fashion as between two private individuals. However, the very wording of the statutory provision recognises that government and individuals can never be absolutely the same. Consequentially, there has been some debate as to the extent of government liability in tort in a number of High Court cases over the last 25 years, including Sutherland Shire Council v Heyman (1985) 157 CLR 424, Pyrenees Shire Council v Day (1998) 192 CLR 330, Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 and Stuart v Kirkland-Veenstra (2009) 237 CLR 215. This article will examine the historical basis of the maxim ‘the King can do no wrong’, the misunderstanding which led to it being taken as conferring a common law immunity from suit on the government and the basis and effect of the statutory provisions which exposed government to liability in tort. It argues that government and private actors can never truly be "the same" and supports this conclusion with an analysis of the leading High Court authorities.
Administrative Law | Injury and Tort Law | Public Law and Legal Theory
Date of this Version
Greg Weeks, "Private Law Litigation Against the Government: Are Public Authorities and Private Actors Really 'the Same?'" (December 2010). University of New South Wales Faculty of Law Research Series 2010. Working Paper 68.