Ardeshirian, S. v Robe River Iron Associates

[1993] FCA 517

SHAHBAHRAM ARDESHIRIAN v. ROBE RIVER IRON ASSOCIATES
No. WAG32 of 1993
FED No. 517
Number of pages - 12
Limitations
(1993) 116 ALR 173
(1993) 43 FCR 475, (1993) 30 ALD 803 (extract)

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
French J(1)

CATCHWORDS

Limitations - statutory cause of action - claim for compensatory and remedial relief under Racial Discrimination Act 1975 - claim based on determination by Commission - whether claim for penalties, damages or sums given by any enactment to the party grieved - nature of jurisdiction to entertain claim - remedial - construction of s.38(1)(a)(i) Limitation Act 1935 (WA) - whether applicable to penal claims only - s.79 of Judiciary Act - principles governing application.

Campbell, Contribution, Contributory Negligence and Section 52 of the Trade Practices Act Part 1 (1993) 67 ALJ 87, Part II (1993) 67 ALJ 177

Racial Discrimination Act 1975 s.25ZA

Limitation Act 1935-1978 (WA) s.38(1)(a)(i)

Judiciary Act 1903 (Cth) s.79

Ardeshirian v. Robe River Iron Associates (1990) EOC 92-299

John Robertson and Co. Ltd (In Liq.) v. Ferguson Transformers Pty Ltd (1973) 129 CLR 65

Thomson v. Lord Clanmorris (1900) 1 Ch 718

State Government Insurance Commission v. Teal (1989-90) 2 WAR 105

Aldridge v. Booth (1988) 80 ALR 1

Maynard v. Neilson (unrep. Fed. Ct. 27/5/88 Wilcox J)

Hall v. A. and A. Sheiban Pty Ltd (1989) 20 FCR 217

White v. Gollan (unrep. Fed. Ct. 1/10/91 Pincus J)

Mort v. Bradley (1916) SASR 129

Keyse v. Keyse (1886) 11 PD 100

Carslake v. Guardian Assurance Co. (1977) 15 SASR 378

Jarvis v. Surrey County Council (1925) 1 KB 554

Pratt v. Cook, Son and Company (1938) 2 KB 51

Pratt v. Cook, Son and Co. (1940) AC 437

Commissioner of Stamp Duties (NSW) v. Owens (No. 2) (1953) 88 CLR 168

Pedersen v. Young (1964) 110 CLR 162

Commonwealth v. Anderson (1960) 105 CLR 303

L. Grollo and Co. Pty Ltd v. Nu-Statt Decorating Pty Ltd (No. 2) (1980) 47 FLR 44

Suehle v. The Commonwealth (1967) 116 CLR 353

Re Youngs Horsham Garage Pty Ltd (In Liq) (1967) 17 FLR 410

Scotland v. Bargen and Anor (1982) 41 ALR 65

Adams v. Anthony Bryant and Co. Pty Ltd (1986) 67 ALR 616

HEARING

PERTH, 29 April 1993

#DATE 28:7:1993

Counsel for the Applicant: Ms. C. Tan

Solicitors for the Applicant: Dwyer Durack

Counsel for the Respondent: Mr H. Dixon

Solicitors for the Respondent: Parker and Parker

ORDER

THE COURT ORDERS THAT:

1. The respondent's motion is dismissed.

2. The respondent to pay the applicant's costs of the motion.

Note: Settlement and entry of Orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

Introduction

FRENCH J On 18 May 1990, the President of the Human Rights and Equal Opportunity Commission made a determination pursuant to s.25Z of the Racial Discrimination Act 1975. The determination included a declaration that Robe River Iron Associates had engaged in conduct rendered unlawful by the Act and should pay to Shahbahram Ardeshirian $10,000 damages by way of compensation for loss or damage suffered by reason of that conduct.

1. On 17 August 1992, solicitors instructed by Mr Ardeshirian wrote to the solicitors for Robe River Iron Associates demanding payment of the sum of $10,000 plus interest at the rate of 13% from 18 May 1990. No payment was forthcoming. On 3 March 1993, an application was filed in this Court claiming the sum of $10,000 and interest. On 14 April, Robe River Iron Associates filed a motion seeking an order that the proceedings be dismissed on the ground that they disclosed no reasonable cause of action. The basis for the motion was that the time limited for bringing the proceedings had expired. Although the proceedings are brought in the Federal Court and invoke a liability derived from a Commonwealth statute, it was submitted that the Limitation Act 1935-1978 (WA) applies by virtue of s.79 of the Judiciary Act 1903 (Cth). Before turning to the relevant statutory provisions it is necessary to see the basis upon which the claim is made as disclosed in the statement of claim.

The Statement of Claim
3. Mr Ardeshirian pleads that he is of Iranian origin and that he migrated to Australia in 1982. He commenced employment with Robe River Iron Associates in August 1982. He says that in the course of his employment he suffered verbal abuse and racist remarks from fellow employees. On 2 May 1986 another employee, Domenic Mita, is said to have made taunting remarks to Mr Ardeshirian which assumed a racial character and referred to a television program shown the previous evening about the Khomeni regime in Iran. According to Mr Ardeshirian, Mr Mita made further abusive and inflammatory remarks about his national origin. Mr Ardeshirian went outside the building in which they were both working and returned shortly with an iron bar which he placed on a table in front of Mr Mita. He offered no direct violence to Mr Mita or anyone else present.

1. On 3 May, following an inquiry into the incident between himself and Mr Mita, Mr Ardeshirian says he was dismissed by Robe River Iron Associates. The inquiry was conducted by the General Foreman employed by Robe River Iron Associates and by a union official. In July 1987, Mr Ardeshirian says he lodged a written complaint with the Human Rights and Equal Opportunity Commission under the Racial Discrimination Act 1975 (Cth). There were two grounds of complaint. The first was that because of incidents of racial abuse and harassment from fellow workers during his period of employment and the failure of management to rectify the situation he was deprived of the enjoyment of the same conditions of work as were available to other employees - see s.9 and s.15(1)(b) of the Racial Discrimination Act 1975. The second ground of complaint was that his dismissal on 3 May 1986 way by reason of his race, colour or national origin contrary to s.15(1)(c) of the Act. On 15 June 1987, the Western Australian Equal Opportunity Commissioner determined that the complaint could not be settled by conciliation and the matter was referred to the Human Rights and Equal Opportunity Commission in accordance with s.24(E)(1)(b) of the Act. The President of the Commission, acting pursuant to s.25A(1) and 25B(1) of the Act, convened an inquiry which commenced on 23 April 1990. The President decided not to entertain the first ground of complaint as a distinct issue. In the event he held that the reason for Mr Ardeshirian's dismissal was his race, colour or ethnic origin. The Commissioner issued a declaration that Robe River Iron Associates pay Mr Ardeshirian damages in the sum of $10,000 by reason of its unlawful conduct and for the hurt feelings and humiliation suffered by Mr Ardeshirian by reason of the facts and circumstances of that dismissal - Ardeshirian v. Robe River Iron Associates (1990) EOC 92-299 at 78,033. The letter of demand is pleaded and the institution of these proceedings is pursuant to s.25ZA of the Act.

The Racial Discrimination Act 1975 (Cth)
5. When the Racial Discrimination Act 1975 was originally enacted proceedings could be instituted under s.24 in respect of acts made unlawful by Part II of the Act which includes ss.9 and 15. Remedies which could be sought under s.25 in a court of competent jurisdiction included prohibitory and mandatory injunctions, contract cancellation or variation orders and damages. No proceeding could be instituted unless the Commissioner for Community Relations had first given a certificate that there had been a conference directed by the Commissioner under s.22(1) to endeavour to settle the matter. These latter provisions were embodied in Part III of the Act entitled "Inquiries and Civil Proceedings".

1. On 6 December 1986 the Royal Assent was given to the Human Rights and Equal Opportunity Commission Act 1986 (Cth) and the Human Rights and Equal Opportunity Commission (Transitional Provisions and Consequential Amendments) Act 1986 (Cth). The Human Rights and Equal Opportunity Commission Act 1986 established the Human Rights and Equal Opportunity Commission in lieu of the Human Rights Commission which had been created under the Human Rights Commission Act 1981 (Cth). The new Commission was given responsibility for the administration of both the Racial Discrimination Act 1975 (Cth) and the Sex Discrimination Act 1984 (Cth). The Office of Commissioner for Community Relations was replaced by a new office of Race Discrimination Commissioner who became a member of the Commission along with the Sex Discrimination Commissioner. By s.8 of the 1986 Act, the Commission consists of:
   

(a) a President;

(b) a Human Rights Commissioner;

(c) the Race Discrimination Commissioner; and

(d) the Sex Discrimination Commissioner.

The functions of the Commission conferred by s.11 of the Act include:

"(a) such functions as are conferred on the

Commission by the Racial Discrimination Act 1975, the Sex Discrimination Act 1984 or any other enactment;"

Under the Human Rights and Equal Opportunity Commission (Transitional Provisions and Consequential Amendments) Act, the former Human Rights Commission Act 1981 was repealed and the Racial Discrimination Act 1975 was extensively amended. By those amendments Part III of the Racial Discrimination Act was repealed and a new Part III substituted. That Part then came to comprise ss.19 to 25ZC. The office of Race Discrimination Commissioner was established by s.19. By s.20 the functions conferred upon the Human Rights and Equal Opportunity Commission include:

"(a) to inquire into alleged infringements of Part II, and endeavour by conciliation to effect settlements of the matters alleged to constitute those infringements;"

That function of the Commission is to be performed by the Race Discrimination Commissioner on behalf of the Commission (s.21). Section 22 makes provision for written complaints to be lodged with the Commission. Under Division 2 of Part III the Commissioner is empowered to undertake inquiries and conciliation and settlement processes and to refer complaints to the Commission (s.24). The Commissioner is armed with powers to obtain information and documents (s.24B), to direct persons to attend compulsory conferences (s.24C) and to produce documents at such conferences (s.24D). Where the Commissioner is of the opinion that a matter cannot be settled by conciliation or has endeavoured to settle a matter by conciliation but has not been successful or is of opinion that the nature of the matter is such that it should be referred to the Commission, the Commissioner is required to refer the matter together with a report relating to any inquiries made by the Commissioner into the matter. Division 3 of Pt. III sets up the framework for inquiries to be conducted by the Human Rights and Equal Opportunities Commission into complaints of unlawful conduct within the meaning of the Racial Discrimination Act. Section 25Z of the Act, as introduced in the 1986 amendment, provided:

"25Z.(1) After holding an inquiry, the Commission may-

(a) dismiss the complaint the subject of the inquiry; or

(b) find the complaint substantiated and make a determination, which may include any one or more of the following:

(i) a declaration that the respondent has engaged in conduct rendered unlawful by this Act and should not repeat or continue such unlawful conduct;

(ii) a declaration that the respondent should perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant;

(iii) a declaration that the respondent should employ or re-employ the

complainant;

(iv) except where the

complaint was dealt with as a representative complaint - a declaration that the respondent should pay to the

complainant damages by way of compensation for any loss or damage suffered by reason of the conduct of the respondent;

(v) a declaration that the respondent should promote the complainant;

(vi) a declaration that the termination of a contract or agreement should be varied to redress any loss or damage suffered by the complainant;

(vii) a declaration that it would be inappropriate for any further action to be taken in the matter.

(2) A determination of the Commission under sub-section (1) is not binding or conclusive between any of the parties to the determination.

(3) The Commission may, in the making of a determination under sub-section (1), state any findings of fact upon which the determination is based.

(4) The damage referred to in paragraph (1)(b) includes injury to the complainant's feelings or humiliation suffered by the complainant."

Section 25ZA allowed for enforcement of determinations in the Federal Court in the following terms:

"25ZA.(1) The Commission or complainant may institute

a proceeding in the Federal Court for an order to enforce a determination made pursuant to sub-section 25Y(1) or 25Z(1).

(2) Where the Federal Court is satisfied that the respondent has engaged in conduct or committed an act that is unlawful under this Act, the Federal Court may make such orders (including a declaration of right) as the Federal Court thinks fit.

(3) Orders made by the Federal Court under sub-section (2) may give effect to a determination of the Commission."

Some of the provisions of Pt. III were amended by the Statute Law (Miscellaneous Provisions) Act 1988 (No. 38 of 1988) but the amendments which affected ss. 24 and 25Z are not material for present purposes.

1. Sub-section 25ZA(1) was amended by the Law and Justice Legislation Amendment Act (No. 3) 1992 (No. 165 of 1992) to read:
   "25ZA(1) The Commission or complainant may institute a
   

proceeding in the Federal Court for an order to enforce a determination made pursuant to s.24AB or sub-section 25Y(1) or 25Z(1)."

Sections 24AA and 24AB enacted by the same amending legislation provide for the President of the Commission to review the decision of a Commissioner not to inquire into an act (s.24AA) and for an interim determination pending the completion of such a review (s.24AB).

1. By the Sex Discrimination and other Legislation Amendment Act 1992 (No. 179 of 1992) extensive amendments were effected to Pt III. Provision was made for representative complaints to be heard and determined and s.25Z was amended accordingly but otherwise remained unchanged. Section 25ZA, however, was repealed and substituted by new ss.25ZA, 25ZAA, 25ZAB and 25ZAC. The amendments establish a time frame within which determinations of the Commission are to be enforced. Section 25ZAA provides:
   "25ZAA(1) This section applies to a determination made
   

under section 25Y or 25Z, except where the respondent is a Commonwealth agency or the principal executive of a Commonwealth agency.

(2) As soon as practicable after the determination is made, the Commission must lodge the determination in a Registry of the Federal Court.

(3) Upon lodgment of the determination, a Registrar must register the determination. In this subsection, 'Registrar' has the same meaning as in section 35A of the Federal Court of Australia Act 1976.

(4) Within 7 days after the determination is registered, the Commission must give written notice of the registration to the complainant and respondent to the determination. The notice must specify the date of registration and must include a copy of the determination."

The registered determination has effect as if it were an order of the Federal Court. There is, however, provision in s.25ZAC for review by the Court of the determination on all issues of fact and law (s.25ZAC(4)). A registered determination cannot be enforced before the end of the review period (s.25ZAB(3)). The respondent to the determination may apply for a review within twenty eight days after registration. The review period is that period of 28 days or, if application for review is made, the period from the date of registration to completion or termination of the proceedings. It can be seen that these amendments, which commenced on 14 January 1993, introduced a program for enforcement of determinations under which the situation that has arisen in this case could not arise again. Further, the new provisions cast the onus upon the respondent to an adverse determination to apply to the Federal Court for review of the determination. Absent such an application, the determination can be enforced as an order of the Court without a rehearing of the case. For present purposes, however, it is to be noted that by s.4(1)(a) of the Sex Discrimination and Other Legislation Amendment Act 1992 the amendments do not apply to determinations made before the commencement of the amendment.

The Limitation Act 1935-1978 (WA)

The Limitation Act 1935-1978 (WA) provides in s.38:

"38(1) Subject to the preceding sections of this Act

and as hereinafter provided, actions, suits, or other proceedings as herein set out shall and may be commenced within the time herein expressed after the cause of such actions, suits, or other proceedings respectively:-

(a) (i) Actions for penalties, damages, or sums given by any enactment to the party grieved;

(ii) Actions for slander, when the words are actionable per se:

Two years.

.

.

.

(c) (vii) All other actions in the nature of actions on the case:

Six years.

.

.

.

(3) In this section the word "actions" means such actions as are in the nature of actions at common law, but in reference to this section contained in the succeeding sections of this Act, the word "action" shall be construed as including "actions" or "actions and suits" or "actions, suits, and other proceedings" where any of such meanings is necessary in order to give a complete reference to the matters set out in subsection (1) of this section.

(4) This section shall not apply to any action, suit, or other proceeding the time for commencing which is limited by the preceding sections of this Act."

The definition of "actions" in sub-s. 38(3) can and should be read with the general definition of the word "Action" in s.3 which relevantly provides:

"3. In this Act unless inconsistent with the context

or subject matter -

"Action" means a civil proceeding commenced, in the Supreme Court by writ or in such other manner as may be prescribed by Rules of Court, or in a Local Court or other inferior court in the manner prescribed by or under the Act conferring jurisdiction on such court." Judiciary Act 1903 (Cth) Also material for present purposes is s.79 of the Judiciary Act 1903:

"79. The laws of each State and Territory, including

the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable."

The Contentions
9. Robe River Iron Associates submits that by virtue of s.79 of the Judiciary Act 1903, s.38(1)(a)(i) of the Limitation Act 1935-1978 (WA) applies to the effect that there is a two year limitation period on the time within which proceedings may be brought in this Court under s.25ZA(1) of the Racial Discrimination Act 1975 to enforce a declaration under s.25Z(1). The jurisdiction invoked by proceedings under s.25ZA(1) of the Racial Discrimination Act is federal jurisdiction for the purposes of s.79. There is nothing, it is said, "otherwise" provided by the constitution or laws of the Commonwealth which prevents the application of s.38(1)(a)(i) of the Limitation Act. The Court is exercising its jurisdiction in Western Australia. The Limitation Act, it is said, is a law relating to procedure and so falls within the range of laws picked up by s.79.

1. The judgments of Menzies and Mason JJ in John Robertson and Co. Ltd (In Liq) v. Ferguson Transformers Pty Ltd (1973) 129 CLR 65 are invoked to support the proposition that s.79 would pick up a State Limitation Act and apply it to an action brought under the statute law of the Commonwealth. That case concerned s.37 of the Limitation of Actions Act 1936 (SA) which refers to "actions for penalties, damages or sums of money given to any party by any statute in force at or after the commencement of this Act". The equivalent provision of the Limitation Act 1935 (WA) uses the word "enactment" instead of "statute" and the word "enactment" is defined in s.5 of the Interpretation Act 1984 (WA) to mean "a written law or any portion of a written law". "Written law" is in turn defined by reference to "Acts...in force" and "Act" is defined as meaning "any Act or Ordinance passed by the Parliament of Western Australia, or by any Council previously having authority or power to pass laws in Western Australia, such Act or Ordinance having been assented to by or on behalf of Her Majesty". Despite differences between the South Australian and Western Australian Acts, it is submitted that the views of Menzies J in John Robertson (supra) should be adopted so that s.38 picks up actions under Commonwealth law. Otherwise, it was submitted, the Limitation Act 1935 would not be applicable in State Courts when exercising federal jurisdiction. And although the word "Action" in the Limitation Act 1935 (WA) is defined by reference to civil proceedings commenced in State Courts, similar reasoning should operate to apply it to an action of the appropriate class brought under Federal law. The classification "actions for penalties, damages or sums given by any enactment" applies, it was said, to recovery under s.25ZA of the Racial Discrimination Act 1975. For although compensatory, the compensation is in the nature of a penalty. The statutory ancestors of s.38 are referred to, especially s.3 of the Civil Procedure Act 1833 and the Common Informers Act 1588 (31 Eliz C.5). In John Robertson (supra) there was, it is said, support for the proposition that statutory damages could be caught by the section. A person bringing action for such damages is a "party grieved" for the purposes of the section. It is submitted that the limitation period if applicable in this case would run from the date of the determination namely, 18 May 1990. The period limited would have expired on 18 May 1992. In the alternative, the limitation period ran from the date upon which Mr Ardeshirian was dismissed, that is 3 May 1986. Policy reasons are also advanced for the application of the limitations period. Emphasis is placed on the fact that proceedings to enforce a determination of the Commission in this Court are by way of hearing de novo. Questions of credibility and the recollection of events many years ago are involved. Absent the application of the Limitation Act 1935 (WA) no limitation period would apply in such a case .

2. On behalf of Mr Ardeshirian it is submitted that the argument put for Robe River Iron Associates proceeds on the assumption that the Racial Discrimination Act 1975 will bear the imposition of an external limitation period because it embodies no limitation period in its own terms. The scheme of the Act and the procedure prescribed in relation to the determination of complaints suggest as a parliamentary intention not to impose any limitation period. The Act is contrasted in this respect with other Commonwealth statutes which do impose time limits such as the Trade Practices Act 1974 - ss.74J and 82, the Navigation Act s.396. No limitations are imposed in respect of claims under the Commonwealth Employees Rehabilitation and Compensation Act 1988 or the Sex Discrimination Act 1984. It is submitted that the decision of the majority in the John Robertson case was that s.37 of the Limitation of Actions Act 1936 (SA) would not apply to an action commenced in the High Court for damages under s.11 of the Australian Industries Preservation Act 1906-1950 (Cth). The term "enactment" in the Limitation Act 1935 (WA) and the confinement of "actions" in s.38 to actions at common law preclude the translation of the section to proceedings under the Racial Discrimination Act 1975. In any event, s.38 is confined to actions for recovery of penalties whereas s.25ZA is remedial. Reliance is placed upon Thomson v. Lord Clanmorris (1900) 1 Ch 718 and State Government Insurance Commission v. Teal (1989-90) 2 WAR 105.

The Nature of the Court's Jurisdiction
Under Section 25ZA of the Racial Discrimination Act 1975 (Cth)
12. The terms of s.25ZA as enacted in 1986 were identical to those of s.82 of the Sex Discrimination Act 1984 (Cth). In an application under s.82 to enforce a determination of the Human Rights and Equal Opportunity Commission under the Sex Discrimination Act 1984, Spender J held that the Commission's determination was not conclusive or binding and that the Court was required to decide the issues of fact for itself unless these could be agreed by the parties. Absent agreement, this would have to be done on oral evidence admitted in accordance with the rules of evidence. No particular weight was to be attributed to the findings of the Commission in that event - Aldridge v. Booth (1988) 80 ALR 1. In Maynard v. Neilson (unrep. Fed. Ct. 27/5/88 Wilcox J) Wilcox J considered the operation of the corresponding provisions of the Racial Discrimination Act 1975, noting that the course adopted by the Act of making the Commission's determination not binding upon the parties was "no doubt ordained by the constitutional need to avoid conferring upon a non-judicial body a part of the judicial power of the Commonwealth". His Honour proceeded on the basis that the Act required a hearing de novo by the Federal Court.

1. The nature of the like jurisdiction conferred by the Sex Discrimination Act 1984 was discussed by members of the Full Court which decided Hall v. A and A Sheiban Pty Ltd (1989) 20 FCR 217. Lockhart J saw the statutory scheme as embodying legislative recognition that the Commission does not exercise the judicial power of the Commonwealth which is to be exercised only when a matter comes before the Federal Court under s.82. In such a case the matter comes before the Federal Court in its original jurisdiction and involves a hearing de novo. In similar vein, Wilcox J at 262 said:
   "The jurisdictional basis of such a proceeding being
   

provided by the relevant determinations the way is open to each of the applicants, if she so wishes, to institute a fresh proceeding in this Court for an award of damages in her favour. At that proceeding the facts will be at large, for determination by the trial judge."

My characterisation of the scheme was expressed at p 286:

"... though that determination may be no more than a

non-binding declaration that the respondent has engaged in unlawful conduct, it confers standing upon the complainants and by force of s.82(2) jurisdiction on the Court to make its own decision on whether any unlawful conduct has been committed."

More recently in an ex tempore decision in White v. Gollan (unrep. Fed. Ct. 1/10/91 Pincus J) Pincus J said of the Racial Discrimination Act 1975:

"The scheme of the Act is that the applicants have no

right to have the decision of the Commission enforced - that is,

they cannot sue simply on the basis that the Commission has decided in their favour, and that the Court should then make the same order. It seems to me to be necessary, as I read the Act, for the complainants, now applicants, to prove their case all over again, and to satisfy this Court that the orders which they seek should be made." (p 2)

It is perhaps noteworthy that his Honour, while stressing that the Commission's determination was not binding on the Court, considered that it was proper to take it into account in determining what should be done.

1. Consistently with these authorities and having regard to the language of the Act as it stood when the determination in this case was made, in my opinion s.25ZA gives rise to a statutory entitlement to relief by way of damages, prohibitory or mandatory orders and orders varying or cancelling contracts. The entitlement depends upon proof of an act or acts which are unlawful under the Racial Discrimination Act 1975. It is conditioned upon the making of a prior determination by the Commission. The language of sub-s.25ZA(2) suggests that the relief which may be granted is not limited to that declared in the Commission's determination although, as sub-s.25ZA(3) makes clear, the Federal Court may "give effect" to the determination of the Commission. A determination in favour of a complainant once having been made, the jurisdiction of the Court is able to be invoked to obtain the relief sought. The relief which can be granted extends to an award of damages. Such damages can only be compensatory in character. Consistently with that restriction, aggravated damages can be awarded - Hall v. A. and A. Sheiban Pty Ltd (supra) at 238 (Lockhart J), 256 (Wilcox J), 281 (French J). I adhere to the view I expressed in that case, which is equally applicable to the Racial Discrimination Act 1975, that the damages recoverable are by way of compensation only and do not extend to exemplary or punitive damages. In my opinion none of the forms of relief for which the Act provides is of a penal character. The Act is essentially remedial.

2. Although it is not necessary to decide the point for present purposes, the possibility is at least arguable that s.25ZA of the Racial Discrimination Act 1975 gives rise to a cause of action properly characterised as a tort for the purposes of the Limitation Act 1935 (WA) and also possibly for the purpose of contribution legislation. In this regard, the discussion and authorities referred to in Campbell, Contribution, Contributory Negligence and Section 52 of the Trade Practices Act - Part 1 (1993) 67 ALJ 87 at pp 93-108 and Part II in (1993) 67 ALJ 177 at p 177 are of interest. The question that must next be considered is the proper construction of the relevant provisions of the Limitation Act 1935 (WA) and whether, if applicable by virtue of s.79 to proceedings in this Court, s.38(1)(a)(ii) can apply to the present claim.

The Construction of The Limitation Act 1935-1978 (WA)
16. The Limitation Act 1935-1978 (WA) is something of a museum piece. As the Law Reform Commission of Western Australia stated in the opening paragraph of its Discussion Paper on Limitation and Notice of Actions published in February 1992:
"The Act has a number of specific defects, but the

heart of the problem is that the Act as a whole is out of date. It is a literal transcription of English Acts passed between 1623 and 1874, archaic in language and making reference to many concepts and categories that are now obsolete. In England, comprehensive reforms were recommended by the Law Revision Committee, under the chairmanship of Lord Wright, in 1936, and enacted in the Limitation Act 1939. Every other Australian jurisdiction except South Australia has adopted a modern Limitation Act based, directly or indirectly, on these recommendations, as have many other common law jurisdictions."

The Law Reform Commission has not finally reported on this subject.

1. The first appearance of the form of words used in s.38(1)(a)(i) was in s.3 of the Civil Procedure Act 1833 (UK) (3 and 4 Wm IV c.42). In Thomson v. Lord Clanmorris (1900) 1 Ch 718 at 725, Lindley MR (with whom Rigby and Vaughan Williams LLJ agreed) explained their origin:
   "In construing s.3 of the Act of 1833, as indeed in
   

construing any other statutory enactment, regard must be had not only to the words used, but to the history of the Act, and the reasons which led to its being passed. You must look at the mischief which had to be cured as well as at the cure provided. And when we look at the state of the law before the Act of 1833 we can see pretty plainly what was the mischief at which it was aimed. There were certain causes of action as to which there was no defined time of limitation. Some of them are enumerated in the earlier part of s.3; for instance, "actions of debt upon any bond or other speciality", and others which are there mentioned. They were not provided for by the then existing Statutes of Limitations, and they are brought in. That was the first defect. There was another class of actions as to which there was no definite limitation of time, namely, "actions for penalties, damages or sums of money given to the party grieved" by various Acts of Parliament, by way of penalty or punishment; not by way of compensation to the person injured, but where, as was pointed out by Lord Esher MR when commenting in Saunders v Wiel ((1892) 2 QB 321) upon Adams v. Batley (18 QBD 625), punishment was the object; and where the money to be paid, whether it was called penalty, or damage or sum of money, was not assessed with the view of compensating the plaintiff, although he might put some of it in his pocket. That is the class of action which was contemplated by the latter part of s.3. In other words, they were what are popularly called "penal actions." We arrive at this from the history of the Act, and from a knowledge of the then state of the law and the defect which was to be cured."

The Court held that an action by a company shareholder under s.3 of the Directors Liability Act 1890 to recover from the directors of the company compensation for loss or damage sustained by reason of untrue statements in a prospectus did not fall within s.3. Lindley MR said at 725-726:

"The Directors Liability Act does not in terms give an

action or damages or a penalty. Nothing is given by the Act. What you find in the Directors Liability Act is a liability imposed - a liability to make compensation - and the money payable is obviously a compensation to the plaintiff for the loss which he has sustained. It must be estimated and awarded with reference to that. It does not in the least resemble a "penalty, damages or sum of money" imposed by statute as a punishment without reference to the injury sustained by the person who sues for it. Therefore, whether you look at the language of the two Acts, or whether you look at the good sense of the thing and the history of the legislation, it seems to me plain (although I admit that at first sight there is a little difficulty in the language) that this is not an action "for a penalty, damages or sum of money" within s.3 of the Act of 1833."

The like provision in s.38 of the Limitation of Suits and Actions Act 1866-7 (SA) was considered and Thomson v. Lord Clanmorris (supra) followed by one of the members of the Full Court of the Supreme Court of South Australia in Mort v. Bradley (1916) SASR 129. Gordon J discussed the application of the section to a petition for damages for adultery. He referred to Thomson v. Clanmorris (supra) and, after quoting from the judgment of Lindley MR, said at 145:

"I can see nothing in the wording of s.38 of the

Limitation of Suits and Actions Act, which places actions for penalties, damages, or sums of money given to any party by any Statute in any other category than the exclusive category in which, by applying the ejusdem generis doctrine, the Court of Appeal have placed actions described in similar words under s.3 of the Civil Procedure Act."

Gordon J went on to hold that damages for adultery were by way of compensation and not penalty and therefore not within the section - see Keyse v. Keyse (1886) 11 PD 100. His acceptance and application of Thomson v. Clanmorris was approved in Carslake v. Guardian Assurance Co. (1977) 15 SASR 378 at 382 (Bray CJ, Walters J agreeing) and 391 (Zelling J). In Jarvis v. Surrey County Council (1925) 1 KB 554 Finlay J felt constrained by Thomson v. Lord Clanmorris (supra) to hold that a statutory entitlement to claim compensation under the Riot (Damages) Act 1886, not being by way of penal action, was not within s.3 of the Civil Procedure Act 1833. And in Pratt v. Cook, Son and Company (1938) 2 KB 51 a statutory right to claim unpaid wages was held to fall outside the section, being recoverable by way of compensation rather than as a penalty or punishment. In the Court of Appeal there were indications of support for the view expressed at first instance - (1939) 1 KB 364 at 379 Slesser LJ, 381 Finlay J). There was no departure from that view in the House of Lords - Pratt v. Cook, Son and Co. (1940) AC 437.

1. The High Court in John Robertson and Co. Ltd (In Liq) v. Ferguson Transformers Pty Ltd (supra) held that s.79 of the Judiciary Act did not operate to apply s.37 of the Limitation of Actions Act 1936 (SA) to a claim for treble damages under s.11 of the Australian Industries Preservation Act 1906-1950 (Cth). Section 37 provided:
   "All actions for slander and all actions for penalties
   

damages or sums of money given to any party by any statute in force at or after the commencement of this Act shall be commenced within 2 years next after the cause of action accrued, but not after."

On the construction of s.37 McTiernan ACJ seems to have accepted that the section referred only to penal actions but considered that the claim for treble damages did not fall within that category. Menzies J at pp 79-80 did not accept the proposition that s.37 should be read down to apply only to penal actions. Had the treble damages claim been commenced in the Supreme Court of South Australia s.37 would have applied to it. The action therefore fell within the terms of s.37 and s.79 applied the limitation in the High Court. Walsh J held that as a matter of construction s.37 did not apply to an action which could never be brought in any Court of the State. The question whether the section was to be limited in its application to penal actions was not addressed in that judgment. Gibbs J considered that s.37 must be construed to avoid the consequence that it extended to actions given by a Commonwealth statute which could be brought only in the High Court. Such a construction would exceed the legislative power of the State. On that basis s.37 standing alone did not refer to actions brought under s.11 of the Australian Industries Preservation Act and when applied by virtue of s.79 of the Judiciary Act 1903 did not acquire a meaning extended to include such actions. His Honour did not consider the question whether s.37 was to be limited to penal actions. Mason J at 96 accepted for the purposes of the case that s.37 should be construed in the same way as s.3 of the Civil Procedure Act 1833 "although the language of the provision provides no support for it...". The claim for treble damages was an action for penalties or damages in the nature of penalties and by virtue of s.79 the limitation provision applied. In summary two of the judges (Mason and McTiernan JJ) appear to have accepted that s.37 was limited to penal actions. Menzies J did not accept that it should be read down in that way.

1. The history of s.38 and authorities relating to it were most recently considered in the judgment of Commissioner Williams QC in State Government Insurance Commission v. Teal (supra) at pp 110-114. There the compulsory insurer under the Motor Vehicle (Third Party Insurance) Act 1943 (WA) instituted proceedings against an insured driver to recover damages paid in respect of injury and death caused to third parties by the insured who had been drunk and in breach of his policy. The insurer sought recovery under s.7(5) of the Act. It was held, inter alia, applying Thomson v. Lord Clanmorris that the claim was not in the nature of a penalty action and did not therefore attract the application of s.38(1)(a)(i) of the Limitation Act 1935 (WA). In my opinion, the overwhelming weight of authority is in support of the view that s.38(1)(a)(i) of the Limitation Act 1935 (WA) is restricted in its application to penal actions and I so hold. Claims for damages by way of compensation are not caught by it.

Section 79 of the Judiciary Act 1903 (Cth)
20. It is clear that whatever construction is placed upon s.38(1)(a)(ii) of the Limitation Act 1935 (WA) it can have no direct application to proceedings in this Court nor to a State Court exercising federal jurisdiction - Commissioner of Stamp Duties (NSW) v. Owens (No. 2) (1953) 88 CLR 168; Pedersen v. Young (1964) 110 CLR 162 at 165 (Kitto J) and 167 (Menzies J); John Robertson and Co. Ltd (In Liq.) v. Ferguson Transformers Pty Ltd (supra); Commonwealth v. Anderson (1960) 105 CLR 303 at 313 (Fullagar J); L. Grollo and Co Pty Ltd v. Nu-Statt Decorating Pty Ltd (No. 2) (1980) 47 FLR 44 at 51 (Smithers J). If it applies to limit the time within which proceedings can be brought in this Court under the Racial Discrimination Act 1975 it can only do so by virtue of s.79 of the Judiciary Act 1903.

1. The principles governing the operation of s.79 can be briefly stated although they are not always easy to apply. The purpose of the section is to adopt the law of the State in which Federal jurisdiction is exercised as the law by which, except as the Constitution or federal law may otherwise provide, the rights of the parties to the lis are to be ascertained and matters of procedure are to be regulated. The section does not purport to do more than pick up State laws with their meaning unchanged. That proposition is qualified by the rationale of s.79 which is to apply rules of State law in cases to which they might otherwise be inapplicable. The section requires the assumption to be made that courts exercising federal jurisdiction are bound to apply the adopted rules of State law - see generally Commissioner of Stamp Duties (NSW) v. Owens (No. 2) (supra); Suehle v. The Commonwealth (1967) 116 CLR 353 at 356; Pedersen v. Young (supra) at 165; Re Youngs Horsham Garage Pty Ltd (In Liq) (1967) 17 FLR 410 at 413; John Robertson and Co. Ltd (In Liq) v. Ferguson Transformers Pty Ltd (supra) at 80, 83 and 88; Scotland v Bargen and Anor (1982) 41 ALR 65 at 67; Adams v. Anthony Bryant and Co. Pty Ltd (1986) 67 ALR 616 at 619.

2. Although it seems probable, in accordance with the preceding principles, that s.79 will operate to apply the Limitation Act 1935 (WA) to some classes of actions instituted in the Federal Court in Western Australia, it is not necessary definitively to answer that question at this stage. The respondent's motion is able to be determined by reference to the construction of s.38(1)(a)(i).

The Application of the Limitation Act 1935-1978 (WA) to the Present Claim
23. Assuming that it can be transmitted and applied by virtue of s.79 of the Judiciary Act 1903 to actions in this Court, s.38(1)(a)(i) of the Limitation Act 1935 (WA) must still be found to apply to the particular claim in issue. For the reasons outlined earlier this would require that the action to enforce the determination of the Human Rights and Equal Opportunity Commission be characterised as a penalty claim. In my opinion, for the reasons I have given already, the claim under the Racial Discrimination Act 1975 is for compensatory and remedial relief only. It is not a penalty action. The question whether s.79 operates to apply the Act or s.38 in this Court therefore does not arise. For even assuming their applicability to a cause of action brought in this Court under a Federal statute, the provisions of s.38(1)(a)(i) do not cover the present claim. The action is not statute barred and the respondent's motion will be dismissed with costs.