Category Archives: Immunities

PGA v The Queen

ON 30 MAY 2012, the High Court of Australia delivered PGA v The Queen [2012] HCA 21 (30 May 2012).

The Full Court of the Supreme Court of South Australia had held that in 2010, a man could be guilty of raping his wife in 1963. PGA appealed this decision on the grounds that it was not until 1991, when the High Court decided in R v L (1991) 174 CLR 379, could a man be guilty of raping his wife because, up until then the common law in Australia was that pronounced by Sir Matthew Hale in 1736 that upon marriage a wife gave her irrevocable consent to sexual intercourse.

The High Court in PGA v The Queen dismissed the appeal, holding that the marital exemption to rape, if it ever applied in Australia, had ceased to be part of Australian law by 1963 because Australian legislation concerning divorce, voting and property by that time had gone against Hale’s proposition.

Peter O’Grady
BA, LLB, Grad Cert Leg Prac, Acc Spec Lawyer


Brodie v Singleton Shire Council

ON 31 MAY 2001, the High Court of Australia delivered Brodie v Singleton Shire Council ; Ghantous v Hawkesbury City Council[2001] HCA 29; (2001) 206 CLR 512.

The ruling abolished the common law immunity of highway authorities from liability for injury, loss or damage caused by their own non-feasance in Australia.

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Romeo v Conservation Commission of the Northern Territory [1998] HCA 5

ON 2 FEBRUARY 1998, the High Court of Australia delivered Romeo v Conservation Commission of the Northern Territory [1998] HCA 5; 192 CLR 431; 151 ALR 263; 72 ALJR 208 (2 February 1998) .


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Benning v Wong [1969] HCA 58

ON 3 DECEMBER 1969, the High Court of Australia delivered Benning v Wong [1969] HCA 58; (1969) 122 CLR 249 (3 December 1969).

Per Barwick CJ:

“In the construction of statutes authorizing the performance of works, there are cardinal rules, the observance of which is fundamental to our system of law. Firstly, the statute will not be construed to authorize an interference with common law rights without compensation without unambiguous and compelling language. It is for the Parliament to make its will in this respect plain. It is not for the courts to search out implications which so displace or reduce common law rights. Secondly, a statute only authorizes those acts which it expressly nominates and those acts and matters which are necessarily incidental to the acts so expressly authorized or to their execution. Thirdly, a statute which authorizes the doing of an act or the performance of a work in general only authorizes it to be done in a careful manner. If the authority is to extend to a careless execution of an authorized act, the plainest of language must be used.” (at 256)

“There is no magic in the words “statutory authority”. Whether or not a statute exonerates from a liability in tort, which in the absence of the statute would be incurred, depends on the terms of the statute and their effect in the particular case. The question is always one of statutory construction… The mere fact that a statute makes it lawful for a man to bring something to a place and accumulate it there does not to my mind exonerate him from liabilities which the law imposes in consequence of his doing so…

When a statute authorizes the carrying on of an activity which cannot be carried on without creating a nuisance or doing other harm, the nuisance or harm, to the extent that it is an inevitable concomitant of doing the authorized work, is itself made lawful ; and its occurrence will therefore create no liability, except for such compensation, if any, as is provided for in the authorizing statute or by some other relevant enactment. But, except where Parliament has prescribed the place where and the method by which the work is to be done, the authorized undertaker must in choosing the place, time, manner, method, equipment and appliances for the conduct of his operations, use due skill and care and act reasonably to avoid avoidable harm.” (at 308-9)

“…a person who has to justify his otherwise tortious act by an assertion of statutory authority must show as part of this justification in defence that he did the authorised act skilfully and carefully …” (at 381)


Sydney, Australia

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