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  • Unreported Judgment

Nelson v Commonwealth of Australia


[2002] QSC 274







Supreme Court


Application to strike out statement of claim


Supreme Court at Townsville


12 September 2002




9 September 2002


Cullinane J


1. The plaintiff’s pleading so far as it is based in a claim in contract be struck out as disclosing no cause of action.

2. Leave to amend the claim generally.


PROCEDURE – APPLICATION – STRIKING OUT – STATEMENT OF CLAIM – SUMMARY JUDGMENT – RULE 292 UNIFORM CIVIL PROCEDURE RULES – PARTICULARS – STATEMENT OF CLAIM – where plaintiff bringing action in torts and contract against Commonwealth of Australia – where plaintiff a gunner in the Royal Australian Artillery – relationship between soldier and the Commonwealth of Australia not in contract nor does it give rise to contractual liability – whether plaintiff’s action  in tort maintainable


M Pope for the applicant/first and second defendant

S Durwood SC for the respondent/plaintiff


Roberts Nehmer McKee for the applicant/first and second defendant

Alex Nelson & Associates, Lawyers for the respondent/ plaintiff

[1] This is an application by the defendants seeking an order that the plaintiff’s pleading be struck out or that summary judgment be entered for the defendant under Rule 292.

[2] The application also seeks as an alternative that certain particulars be struck out.

[3]  The plaintiff who was at all relevant times a gunner in the Royal Australian Artillery has sued the defendants for damages for false imprisonment and breach of contract.  The second defendant was at all material times the commanding officer of the fourth field regiment based at Lavarack Barracks.  The first defendant is sued in respect of certain alleged actions of the second defendant and of other army personnel.

[4] The claim for wrongful imprisonment is based upon allegations that the plaintiff was charged by the second defendant and dealt with by another officer appointed pursuant to the relevant legislation.  The plaintiff pleaded not guilty but was found guilty.  It is alleged that he was not formally convicted in that the officer concerned did not pronounce a finding of guilt but proceeded to sentence the plaintiff.  It is not challenged that this occurred after he had considered the material placed before him.

[5] It is also alleged that the officer concerned imposed penalties upon the plaintiff that were beyond his powers pursuant to the Defence Force Discipline (Consequences) of Punishment Rules 1986 pursuant to the Defence Force Discipline Act 1982 and that one or more of these restrictions constituted imprisonment which given the two matters to which reference has been made constitutes the tort alleged.

[6] It was not challenged that the penalties imposed did or might exceed those which could have been lawfully imposed.

[7] The alternative claim is a claim for breach of contract.  A number of express or implied terms were relied upon which essentially constitute an allegation that the plaintiff was to be treated fairly and not unreasonably or unlawfully and that these terms were breached.  Conduct other than that relied upon in respect of the claim in tort is alleged in respect of this claim although some of the conduct is related to the conduct giving rise to the action in tort.

[8] The applicant claims that the action is not maintainable in law and ought to be struck out as not disclosing any reasonable cause of action.

[9] It seems to me that insofar as the claim is based in contract this must be so as the law currently stands.  There is a body of authority including judgments of the High Court of Australia which establish that the relationship between a soldier and the Commonwealth of Australia does not rest in contract and can give rise to no contractual liability.  See The Commonwealth v. Quince & Anor (1943) 68 CLR 227 per Rich J at p. 242 and Coutts v The Commonwealth (1984-85) 157 CLR 91.  There are statements in the judgments of the various members of the Court to this effect.  At page 120 Dawson J. said:-

“Military service (and I use that term to embrace the three services) has always stood in a different position from service under a contract of employment with a private employer.  As Windeyer J pointed out in Commissioner for Railways (NSW) v Scott (1959) 102 CLR 392 at pp. 441, 442, officers serve in accordance with their commissions and other members in accordance with their engagements.  In the absence of statute, it is the prerogative power which supports the relationship between members of the armed forces and the Crown and it is a concomitant of that relationship that none of them has at common law any right of action against the Crown for breach of contract or any right to sue for pay.  The relationship is not a contractual one.”

[10] The Defence Act 1903 contains no provision which is inconsistent with this common law principle and indeed its terms would seem to reflect it.  See section 36 and (in the case of officers) section 13.

[11] The claim insofar as it is based upon contract, must be struck out.

[12] It is the applicant’s contention that the action in tort also is not maintainable.  This is based upon a line of authority, the effect of which is that actions between a soldier and the Crown insofar as they relate to matters of discipline or punishment are not justiciable by the civil tribunals.

[13] The right of a soldier to sue the Commonwealth of Australia was discussed in some detail by the High Court in Groves v The Commonwealth (1981-82) 150 CLR 113 where the relevant authorities were reviewed.  This case was not concerned with disciplinary proceedings.  However the Court in reviewing the early authorities considered cases which were concerned with such proceedings.  The proposition advanced here is supported by longstanding judgments such as Dawkins v Lord Rokeby (1866) 4F at F806 and Dawkins v Paulet (1869) 39 LJQB 53 and other cases dealing with military discipline and military duty.  The Full Court of the Supreme Court of Victoria in Lindsay v Lovell (1917) VLR 734 seems to have accepted the validity of these principles.

[14] The question whether any matter arising in such a way might be justiciable in the ordinary courts was left open by the House of Lords in Fraser v Balfour (1918) 87 KB 1116 and by the High Court in Groves.

[15] On the other hand in Heddon v Evans (1919) XXXV TLR 642, McCardie J expressed the view that a military officer is liable to an action for damages if in excess of his jurisdiction he commits an act which amounts to false imprisonment or other common law wrong even though he purports to act in the course of military discipline.  The position is otherwise if what he has done is within jurisdiction even if done maliciously and without reasonable and probable cause.

[16] In the extensive review of the authorities in the joint judgment of Stephen, Mason, Aickin and Wilson JJ in Groves reference was made to Heddon v Evans. Their Honours said:


“This decision, albeit restricted to the narrow field of military discipline, shows a clear refusal wholly to exclude even that field from within the reach of courts of law.”

[17] There was some argument directed towards the question whether the penalty imposed namely the restriction of the plaintiff to the guard room rather than as the relevant rule provides the loss of his privileges by requiring him to remain on the base, was capable of constituting the necessary deprivation of liberty to make out the tortious claim.  Similarly argument was directed to the question of whether the requirements that the plaintiff perform drills for periods in excess of the time prescribed by the rules could amount to the necessary deprivation of liberty.  I think the first at least arguably does.  The second is more problematical but I do not propose to strike out the pleading in this regard.  The authorities have shown a tendency towards a relaxation or widening of the conduct constituting the necessary restraint.

[18] So far as the claim that the plaintiff had not been convicted is concerned, the plaintiff it seems to me faces significant obstacles in succeeding on this argument in view of the judgment of the High Court in Griffiths v The Queen 137 CLR 293.  See also Della Patrona v Director of Public Prosecutions (Commonwealth) (No. 2) SC NSW Court of Appeal 40102/92.

[19] However I am satisfied that the claim as pleaded and particularised raises an issue in relation to the claim for false imprisonment which cannot be regarded as necessarily doomed to failure.  There are at least debatable questions of law to be resolved (see Dey v Victorian Railway Commissioners (1948-49 78 CLR 62 at 91) per Dixon J).  I think the plaintiff should be allowed to pursue the action in tort.

[20] There was as I have mentioned, a claim based upon a failure to properly particularise some of the allegations in the claim.  A number of these relate to the claim in contract which will be struck out whilst there was some debate about whether others were ascribable to that claim or also in part to a claim based on contract.

[21] Ultimately it was accepted that the best course to take in relation to the particulars was to give the plaintiff general leave to amend the Claim in the light of the order striking out the Claim based at contract.

[22] I order that the plaintiff’s pleading so far as it is based in a claim in contract be struck out as disclosing no cause of action. I grant leave to the plaintiff to amend the claim generally.


Editorial Notes

  • Published Case Name:

    Nelson v Commonwealth of Australia & Anor

  • Shortened Case Name:

    Nelson v Commonwealth of Australia

  • MNC:

    [2002] QSC 274

  • Court:


  • Judge(s):

    Cullinane J

  • Date:

    12 Sep 2002

Litigation History

No Litigation History

Appeal Status

No Status