Sims v Commonwealth of Australia [2022] NSWCA 194

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Sims v Commonwealth of Australia [2022] NSWCA 194 Hearing dates: 11 August 2022 Date of orders: 04 October 2022 Decision date: 04 October 2022 Before: Bell CJ at [1]; Meagher JA at [112]; White JA at [153] Decision: 1. Appeal allowed. 2. Direct the parties to formulate orders in accordance with these reasons, and to file written submissions as to costs of no more than three pages by 11 October 2022, with any submissions in reply of no more than three pages to be filed by 18 October 2022. Catchwords: CONSTITUTIONAL LAW – constitutional implications – whether ss 81 and 83 of the Constitution provide an implied basis for the recovery of ultra vires payments by the Commonwealth – where proceedings brought by Commonwealth to recover ultra vires payments mistakenly made to former Navy officer after his separation from Navy – whether s 14(1)(a) of Limitation Act 1969 (NSW) is rendered inoperative or invalid in its application to the Commonwealth's claim by reason of ss 81 and 83 of the Constitution RESTITUTION – bars and defences to restitutionary claims – limitation periods – where Commonwealth brought proceedings to recover ultra vires payments mistakenly made to former Navy officer after separation from Navy – application of principle in Auckland Harbour Board v The King [1924] AC 318 – whether recovery of some payments statute-barred by reason of limitation period – whether Auckland Harbour Board claim is a claim in "quasi contract" within the meaning of s 14(1)(a) of the Limitation Act 1969 (NSW) – meaning and historical development of claims in "quasi contract" – whether limitation period should be postponed pursuant to s 56 of the Limitation Act RESTITUTION – public authorities – claims by public authorities – where Commonwealth mistakenly continued to make payments to former Navy officer for six years following separation from the Navy – where mistaken payments were made ultra vires – application of principle in Auckland Harbour Board v The King [1924] AC 318 – historical development and juristic nature of claim pursuant to Auckland Harbour Board principle – whether recovery of some payments statute-barred by reason of limitation period – whether claim based on the Auckland Harbour Board is a claim in "quasi-contract" within the meaning of s 14(1)(a) of the Limitation Act 1969 (NSW) – whether former Navy officer liable for payments made to third parties at his direction prior to separation from Navy RESTITUTION – nature of restitutionary liability – common counts – money had and received to the use of the plaintiff – where Commonwealth mistakenly continued to make payments to former Navy officer for six years following separation from the Navy – where mistaken payments were made ultra vires – application of principle in Auckland Harbour Board v The King [1924] AC 318 – historical development and juristic nature of claim pursuant to Auckland Harbour Board principle – whether recovery of some payments statute-barred by reason of limitation period – whether claim based on the Auckland Harbour Board is a claim in "quasi contract" within the meaning of s 14(1)(a) of the Limitation Act 1969 (NSW) LIMITATION OF ACTIONS – quasi-contract and restitution – construction of "quasi contract" for the purposes of s 14(1)(a) of the Limitation Act 1969 (NSW) – where Commonwealth brought proceedings to recover ultra vires payments mistakenly made to former Navy officer after separation from Navy – application of principle in Auckland Harbour Board v The King [1924] AC 318 – whether recovery of some payments statute-barred by reason of limitation period – whether Auckland Harbour Board claim is a claim in "quasi contract" within the meaning of s 14(1)(a) of the Limitation Act 1969 (NSW) – meaning and historical development of claims in "quasi contract" – whether limitation period should be postponed pursuant to s 56 of the Limitation Act Legislation Cited: Judiciary Act 1903 (NSW) ss 39(2), 64, 78B, 79(1) Limitation Act 1969 (NSW) ss 14(1)(a), 55, 56, 63 Limitation Act 1623, 21 Ja 1, c 16, s 3(a) Limitation Act 1939, 2 & 3 Geo 6, c 21, s 2 Limitation of Actions Act 1958 (Vic), s 5(1)(a) Commonwealth Constitution ss 81, 83, 92 Common Law Procedure Act 1852 ss 3, 41, 49, 91, Sch B Cases Cited: Antill Ranger & Co Pty Ltd v Commissioner for Motor Transport (1955) 93 CLR 83; [1955] HCA 25 Arris & Arris v Stukeley (1677) 2 Mod 260; 86 ER 1060 Attorney General v Perry (1733) 2 Com 481; 92 ER 1169 Attorney-General v Gray [1977] 1 NSWLR 406 Auckland Harbour Board v The King [1924] AC 318 Australia & New Zealand Banking Group Ltd v Westpac Banking Corporation (1988) 164 CLR 662; [1988] HCA 17 Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106; [1992] HCA 45 Australian Financial Services and Leasing Pty Limited v Hills Industries Limited (2014) 253 CLR 560; [2014] HCA 14 Ballard v Multiplex [2012] NSWSC 426 Baltic Shipping Company v Dillon (1993) 176 CLR 344; [1993] HCA 4 Bonnel v Foulke (1657) 2 Sid 4 Breckenridge Speedway Ltd v Her Majesty The Queen in Right of Alberta [1970] SCR 175 Brown v West (1990) 169 CLR 195; [1990] HCA 7 Charles Terence Estates Ltd v Cornwall Council [2011] EWHC 2542 Charles Terence Estates Ltd v Cornwall Council [2012] EWCA Civ 1439 Combet v Commonwealth (2005) 224 CLR 494; [2005] HCA 61 Commonwealth of Australia v Burns [1971] VR 825 Commonwealth v Crothall Hospital Services (Aust) Ltd (1981) 36 ALR 567 Commonwealth v Davis Samuel Pty Ltd (No 7) [2013] ACTSC 146; (2013) 282 FLR 1 Coshott v Lenin [2007] NSWCA 153 David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353; [1992] HCA 48 Dodington's Case (1653) Cro Eliz 545; 78 ER 791 Earl of Devonshire's Case (1606) 11 Co Rep 89; 77 ER 1266 Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Ltd [1943] AC 32; [1942] 2 All ER 122 Holt v Markham [1923] 1 KB 504 In re Diplock [1948] 1 Ch 465 In re Rhodes; Rhodes v Rhodes (1890) 44 Ch D 94 James v The Commonwealth (1939) 62 CLR 339; [1939] HCA 9 Kleinwort Benson Ltd v Glasgow City Council [1999] 1 AC 153 Lipkin Gorman v Karpnale Ltd [1991] 2 AC 548 Maguire v Simpson (1977) 139 CLR 362; [1977] HCA 63 Martin v Sitwell (1690) 1 Show KB 156; 89 ER 509 Melbourne Corporation v Commonwealth (1947) 74 CLR 31; [1947] HCA 26 Moses v Macferlan (1760) 2 Burr 1005; 97 ER 676 Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221; [1987] HCA 5 Rizeq v Western Australia (2017) 262 CLR 1; [2017] HCA 23 Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516; [2001] HCA 68 Sandvik Australia Pty Ltd v Commonwealth (1989) 89 ALR 213 Sinclair v Brougham [1914] AC 398 The Environment Centre NT Inc v Minister for Resources and Water (No 2) [2021] FCA 1635; (2021) 399 ALR 68 Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104; [1994] HCA 46 Victoria v Commonwealth (1975) 134 CLR 338; [1975] HCA 52 Westdeutsche Bank Girozentrale v Islington London Borough Council [1996] AC 669 Williams v Commonwealth (2012) 248 CLR 156; [2012] HCA 23 Westdeutsche Landesbank Girozentrale v Islington Borough Council [1994] 4 All ER 890 Woolwich Equitable Building Society v Inland Revenue Commissioners [1993] AC 70 Texts Cited: A Burrows, The Law of Restitution (1993, Butterworths) AWB Simpson, A History of the Common Law of Contract (1975, Clarendon Press) Bullen and Leake, Precedents of Pleadings in Personal Actions in the Superior Courts of Common Law (3rd ed, 1868, Stevens and Sons) GH Newsom and L Abel-Smith, Preston & Newsom on Limitation of Actions (3rd ed, 1953, Solicitors' Law Stationery Society) GS Robertson, The Law and Practice of Civil Proceedings by and against The Crown (1908, Stevens and Sons) IM Jackman, The Varieties of Restitution (2nd ed, 2017, Federation Press) J Allsop, "Restitution: Some Historical Remarks" (2016) 90 ALJ 561 J Edelman and E Bant, Unjust Enrichment in Australia (2nd ed, 2016, Hart Publishing) J Kirk, "Constitutional Implications (I): Nature, Legitimacy, Classification, Examples" (2000) 24(3) Melbourne University Law Review 645 J Unger, "Limitation Act 1939" (1940) 4(1) Modern Law Review 45 JB Ames, Lectures on Legal History (1913, Harvard University Press) JH Baker, "The History of Quasi-Contract in English Law" in WR Cornish et al (eds), Restitution: Past, Present and Future (1998, Hart Publishing) K Mason, "Money Claims by and against the State" in P Finn (ed), Essays on Law and Government, Volume 2: the Citizen and the State in the Courts (1996, Law Book Co) K Mason, "Money Claims by and against the State" in P Finn (ed) Essays on Law and Government, Volume 2: the Citizen and the State in the Courts (1996, Law Book Co) 101 Law Commission of England and Wales, Restitution: Mistakes of Law and Ultra Vires Public Authority Receipts and Payments (1994) M Franks, Limitation of Actions (1959, Sweet & Maxwell) M Lobban, "Restitutionary Remedies" in The Oxford History of the Laws of England – 1820–1914: Private Law (2010, Oxford University Press) N Manousaridis, "The Common Law Courts: Origins, Writs and Procedure" in JT Gleeson, JA Watson and RCA Higgins (eds), Historical Foundations of Australian Law (2013, Federation Press) P Birks, An Introduction to the Law of Restitution (1985, Oxford University Press) P Birks, Restitution: The Future (1992, Federation Press) Parliament of New South Wales, Law Reform Commission, First Report on the Limitation of Actions (October 1967) PH Winfield, The Law of Quasi-Contract (1952, Sweet & Maxwell) R Goff and G Jones, Goff & Jones' The Law of Unjust Enrichment, ed C Mitchell, P Mitchell and S Watterson (9th ed, 2016, Sweet & Maxwell) R Goff and G Jones, The Law of Restitution (1966, Sweet & Maxwell) R Goff and G Jones, The Law of Restitution (2nd ed, 1978, Sweet & Maxwell) R Goff and G Jones, The Law of Restitution, ed G Jones (4th ed, 1993, Sweet & Maxwell) RM Jackson, The History of Quasi-Contract in English Law (1936, Cambridge University Press) Sir Owen Dixon, "The Common Law as an Ultimate Constitutional Foundation" (1957) 31 Australian Law Journal 240 SJ Stoljar, "The Transformations of Account" (1964) 80 Law Quarterly Review 203 SJ Stoljar, The Law of Quasi-Contract (1964, Law Book Company of Australasia) SJ Stoljar, The Law of Quasi-Contract (2nd ed,1989, Law Book Company) United Kingdom, Law Revision Committee, Fifth Interim Report (Statutes of Limitation) (December 1936) Category: Principal judgment Parties: Jeremy Mark Sims (Appellant) Commonwealth of Australia (Respondent) Representation: Counsel: