Fitzgibbon v HM Attorney General

United Kingdom courts cannot determine the validity or constitutional operation of legislation after the relevant territory has become an independent sovereign state. The legislation then operates as part of that state’s law, and its interpretation and consequences fall to the courts of that state. International comity may also require refusal of relief that would interfere in the affairs of an independent Commonwealth state. Declaratory proceedings may be struck out where they are academic and have no effective practical consequence. Judicial review permission may be refused for substantial unexplained delay, particularly where the challenge could have been brought many years earlier.

The claimant, a British and Australian national, sought declarations concerning the constitutional position of the Queen when exercising functions under the Commonwealth of Australia Act 1900. He argued that the Queen acted in right of the United Kingdom and that letters patent concerning the Governor-General required the Great Seal of the United Kingdom.

The Master struck out the claim. Permission to appeal was granted. Before the High Court, the claimant accepted that the public-law issues should have been brought by judicial review under Part 54 of the CPR. The central issues were jurisdiction, international comity, the practical utility of the declarations, delay and sufficient interest.

1. Appeal dismissed. The Master was right to strike out the claim.
2. Once Australia became independent, the Commonwealth of Australia Act 1900 ceased to operate as an exercise of United Kingdom sovereign power. Its continuing effect was as part of Australian law. The validity and interpretation of that law, including the capacity in which the Queen acted, the appropriate seal and the consequences of using an allegedly incorrect seal, were matters for Australian courts.
3. The decision in R v Foreign Secretary ex parte Indian Association of Alberta [1982] 1 QB 892 supported the divisibility of the Crown. Buck v Attorney General [1965] Ch 745 supported the jurisdictional and comity conclusions.
4. R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2004] 2 WLR 1 did not assist the claimant. It concerned a dependent overseas territory, not an independent sovereign state, and involved materially different constitutional and factual circumstances.
5. Even if jurisdiction existed, international comity required refusal to entertain the claim. The declarations would have no effective legal or practical consequence in Australia and would constitute unwarranted interference in the affairs of an independent Commonwealth member.
6. Permission for judicial review would also have been refused for a 19-year delay, without explanation, in challenging the 1984 measures. The three-month limit in CPR 54.5, the absence of sufficient interest in ineffective relief and the detriment to public administration supported that conclusion.

1. High Court (Chancery Division) [2005] EWHC 114 (Ch): appeal from the Master’s decision striking out the action; appeal dismissed.
2. Master Bowman: by reserved decision dated 25 June 2004, struck out the action and ordered the claimant to pay costs. Permission to appeal was later granted by Patten J.