Sims v Commonwealth: The Ultimate Foundation of Australian Law and the Recovery of Ultra Vires Payments by the Commonwealth Executive

Abstract

The application of a statutory limitation period to the recovery of mistaken payments by the Commonwealth to a former naval serviceman is not a place one would expect to locate the practical influence of jurisprudence. Yet it emerges in Sims v Commonwealth. The issue concerns the accurate identification of the ultimate foundation of Australian law. It is contended that the foundation is materialised by the interaction between the Australian Constitution and the common law: the Constitution is incomplete without common law doctrines. Therefore, there must be limits to the extent to which legislatures can abolish or amend the operation of common law rules in order to safeguard the constitutional allocation of powers. This necessarily includes limitation of action provisions. The contention is derived from recent High Court authority which was apparently not cited on appeal in Sims. A limitation period must be sourced elsewhere in the interaction between the Constitution and the unified common law of Australia.