Bowtell v The Commonwealth of Australia

[1989] HCATrans 119

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IN THE HIGH COURT OF AUSTRALIA

Registry No Cl of 1988

B e t w e e n -

CLIFFORD JOHN BOWTELL

Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

Defendant

Application for remitter

TOOHEY J

(In Chambers)

Bowtell

TRANSCRIPT QF PROCEEDINGS

AT CANBERRA ON TUESDAY, 30 MAY 1989, AT 8.58 AM

Copyright in the High Court of Australia

C3Tl/l/RB 1 30/5/89

MR S.D. RAPOPORT: If Your Honour pleases, I appear for the

plaintfff applicant. (instructed by Crossin and Co.)

MR C.M. ERSKINE: If it please the Court, I appear for the

defendant. (instructed by the Australian Government

Solicitor)

HIS HONOUR:  Yes, Mr Rapoport.

MR RAPOPORT:  Thank you, Your Honour. I have an outline of

submissions, if I may hand that up to you.

HIS HONOUR:	Yes, thank you.	Yes, Mr Rapoport.
MR RAPOPORT:	Thank you, Your Honour.	I do not know that my

friend is disputing the proposition stated in

paragraph 1, but if Your Honour wishes me to address

you further on that I would be happy to, but it seems

a fairly straightforward application of the six-year

rule there. The six years applies by reason of

section llof the A.C.T. LIMITATION ACT together with

section 2 which, in fact, repeals the application

of the 1623 IMPERIAL ACT which is referred to in

WILLIAMS V MILOTIN. Section 4, I might add, does

not seem to add anything further because that says

that nothing in the ordinance will affect the

position of the Crown if there is another statute

specially to that effect. I have been unable to

find anything special about that so, in my submission,

the six-year provision would apply.

HIS HONOUR:	Yes, very well.
MR RAPOPORT:	So if we can move to the number 2 point which,

I understand, is much more contentious as far as

my learned friend is concerned. Your Honour, the

argument really is as to what section 44(2A)

particularly covers. There is no doubt that it

may have been seen to cover the gap that was left

which was referred to by Chief Justice Gibbs in

the STATE BANK case. If I can take Your Honour to

th,at.

~~

HIS HONOUR: -Just before you get to that, Mr Rapoport, there

seems to be no objection on the part of either

party to a remitter to the Supreme Court of

Queensland save for the slight cloud that appears

to be hanging over the applicability of the limitation

period.

MR RAPOPORT:  That is on the one part, Your Honour. The other

aspect is the aspect of the balance of convenience which

Your Honour recently referred to in that matter

which I have listed here.

C3Tl/2/VH	2	30/5/89
Bowtell

HIS HONOUR:  The balance of convenience - let me put it

in the form of a question: is there anything
in the balance of convenience that would point

to the action being remitted to the Federal

Court in Canberra?

MR RAPOPORT:	No, certainly not.
HIS HONOUR:	If anything, it would seem to point in the opposite direction.
MR RAPOPORT:	I cannot dispute that proposition,

Your Honour, no. So far as the venue is

concerned Brisbane is certainly the chosen

venue, subject only to the question of the cloud

that Your Honour mentioned.

HIS HONOUR:  I described it as a cloud; that may be too

strong a term.

MR RAPOPORT:	It could be just the glimmer of a shadow.
HIS HONOUR:	Reading the papers, Mr Rapoport, it seems to

me there is a certain amount of shadow-sparring

which I wonder if it is possible to come to

grips with the real issue to see whether in

fact there is a true area of disagreement between

the parties. As I understand it, and correct me

if I am wrong, but reading the papers it appears

to me that you would be quite content to have

a remitter to the Supreme Court of Queensland

if you were as.sured beyond doubt that the

defendant would not plead the q·

LIMITATION ACT.

MR RAPOPORT: That puts my position very accurately, thank

you, Your Honour.

HIS HONOUR:  The Crown appears to go so far as to say

~hat the authorities are against such a plea

·· ·]1eing available to it but stops short of giving

some undertaking not to plead that defence.

If you had an undertaking or an assurance would there be anything left to argue about,

except possibly this question of how long it would

take to get on in the Federal Court in Brisbane

and how long it would take to get on in the

supreme court?

MR RAPOPORT:  No, Your Honour has again accurately summed up my position, yes.

HIS HONOUR: Let me just .ask Mr Erskine: what are we

arguing about, Mr Erskine?

C3T2/l/JM	3	RAPOPORT	30/5/89
Bowtell

MR ERSKINE:  Your Honour, we are really only arguing, I

suppose, ·about the concern that my learned friend

has raised about the LIMITATION ACT.	As
Your Honour - - -

HIS HONOUR:	Has he any need to be concerned?
MR ERSKINE:	Not in our view, Your Honour, no.  I cannot

give you a formal undertaking because I have

no instructions to that effect and it will

take a little while to get them because of the

processes involved in getting an undertaking of

that kind from the Commonwealth. But leaving

that - - -

HIS HONOUR: This has been going on for months, this

correspondence back and forth, surely an

undertaking could have been obtained in the

meantime.

MR ERSKINE:  Your Honour, that also raises a question

whether it is appropriate to give an undertaking

in something that we could not, in our view,

do at law anyway. An undertaking is not

something that one waves an airy hand and

gives an undertaking.

HIS HONOUR:  Whether it be described as an undertaking

or whatever labels attach to it, can

Mr Rapoport, if the action is remitted to the

Supreme Court of Queensland, confidently proceed

on the basis that there will be no plea of

limitation based upon the Queensland legislation?

MR ERSKINE:  Your Honour, the extent of my instructions

on that point at this stage is this: I can

tell Your Honour, as is perfectly clear from the

correspondence, that on our view of the authorities

as they presently stand we would not be able to

plead the STATUTE OF LIMITATIONS and therefore

would not do so.
_	_:,_/

HIS HONOUR:0 That is perhaps not quite as far as

Mr Rapoport would wish you to go. I am not

suggesting that it is for the Court to adopt

a position in that matter, but it just seems

to me to be a pity if we spend the next hour

or so debating something which is really of

no practical importance whatsoever.

MR ERSKINE:	Your Honour, I have discussed that very point with my learned friend and it seems the stumbling
block remains the question really of whether it
is appropriate for the responden4 or the defendant, to be giving an undertaking as to something which
it says at law it cannot do and that really seems
to be the only point at which we are at odds. In all other respects my learned friend has been

C3T2/2/JM	4	30/5/89
Bowtell

given an assurance that the way the authorities

currently stand we would not be doing that.

HIS HONOUR:. .• It would be a pity, again, if the matter

bogged down over another label, such as

an undertaking, but if the defendant said
to the plaintiff, "We do not propose to plead
the relevant section of the LIMITATION ACT",
that in an exchange of correspondence between

solicitors for the parties would, I thought,

have been the end of it.

MR ERSKINE:  Your Honour, I would have thought, with great

respect, that that has already been done.

It is made abundantly clear by the defendant

in all the correspondence.

(Continued on page 6)

C3T2/3/JM	5	30/5/89
Bowtell

HIS HONOUR:  Well, there is a certain equivocation in the

correspondence, I think, Mr Erskine, in the sense

that what your client has said is that, as the

authorities stand, this plea is not available to us.

Well, I suppose that leaves open the possibility that the Court might be asked to take some different

view of the authorities, and it would be in no-one's

interest, I imagine, that the matter go forward with any

uncertainty about the matter - about that aspect.

But surely if the defendant were to say, not by

reference to the authorities, or even in terms of an

undertaking as such, but ''We have no intention of

pleading the relevant section of the LIMITATION ACT",
if the defendant, for any particular reason, sought

to resile from that matter, well, I suppose all

sorts of questions could arise, including estoppel.

But, cannot that be done and an end be put to this,

what I would describe as shadow sparring.

MR ERSKINE: Well, Your Honour, has just expressed it in a form

that comes very close to what has already been said in

the correspondence.

HIS HONOUR:	I thought it went a little further.
MR ERSKINE:	It goes a little further.  The only matter,

Your Honour, in which there is a stumbling block,

perhaps temporarily, from my client's side, is that

were, through some stroke of ill fortune, the

interpretation to change of the LIMITATION ACT, or if

a .new LIMITATION ACT were to come in, the

present state of my instructions is that I cannot bind

my client, now, to say that we would not in the

future raise an issue were it suddenly to become open

again.

All we can say at the moment is a very clear

assurance that on the present state of the authorities

there is no way that we could plead the STATUTE OF

LIMITATIONS and we would not do so.

;:J

HIS HONOUR: -And what was the last remark?

MR ERSKINE:	And we would not do so on the present state of the authorities, and there is no indication that the
authorities will change in the near future.

HIS HONOUR: Well, that comes fairly close to an undertaking.

At least, as the authorities stand, and subject to

any relevant change in the law, the defendant will

not rely on upon the QUeensl&nd LIMITATION ACT.

MR ERSKINE:  Indeed, Your Honour. Thank you.

HIS HONOUR:	Mr Rapoport, do you need any more than that?
MR RAPOPORT:	Your Honour has expressed the equivocation that

has been troubling me throughout and I really cannot

C3T3/1/FK 30/5/89

6

Bowtell

put it any better than that. That is the very

nub of the matter. My doubts, if I may express them

personally, were exacerbated by reading the divided, really, in its views on the subject, and

this Court, unfortunately or fortunately, as the

case may be, passed no comment about the merits of

the situation, but special leave was refused in that

matter for other reasons. So that that was not an

opportunity to clear up the situation in which we

now find ourselves.

And, of cours~ as my learned friend has mentioned about the so-called undertaking, he has

not taken into account the position with VERWAYEN' s case,

w~h is presently reserved as I understand it, in

this Court, and that is a case where his client

chose to change his position very drastically. So

that all these comments, including the situation that

occurred in the CROUCH matter, with which Your Honour

dealt so very recently, that raised my worries

to a higher level even, because I notice. that in

that case an undertaking was received from the

defendant that the limitation would not be raised.

Now that brings about the situation where, if

it were as clear as my friend would have us

believe, and I must confess_ I used to think that but

I do not any more since the COMMONWEALTH V DIXON,

that there would be no need for such an undertaking

if it is as clear as all that. And that is not the only

case in which it happened. It happened in

FIELDING V DORAN as well, and that raises further

issues.

The point about it, Your Honour, is that,

so far as the Commonwealth is concerned as a party,

since MAGUIRE V SIMPSON, there has not been, as I

can see it, through the authorities, a case where

the statute has been raised in a situation where

the Commonwealth is the defendant.

_;_5

;:.;f (Continued on page 8)

C3T3/2/FK	7 '	30/5/89
Bowtell

MR RAPOPORT (continuing): There have been a number of cases,

including-CROUCH'S CASE, Your Honour, where the

individuals have been plaintiff and defendant

but the Connnonwealth has not been involved. And

because of the decision in MAGUIRE reinforced by
the EVANS DEACON CASE, that iris section 64 which is

the source of the jurisdictional and procedural

law, there is now almost a new situation which is

mentioned and touched on in the judgment,

particularly of the Justice of Appeal Mahoney in DIXON'S matter, which leaves me very uneasy so

far as my client is concerned, and if the

Connnonwealth's position is as unambiguous as it

appears, but in fact on the face of the documents

is clouded by that little bit of uncertainty,

then there should not be any difficulty with an

undertaking, but my friend seems to be saying that

they cannot give such an undertaking.	I do not
know what to make of that Your Honour.

There may be a statutory basis for saying you

cannot give an undertaking if you are acting on

behalf of the Connnonwealth. If there is, well then

may be my friend can point to that and I certainly

could not press the point with him.

HIS HONOUR:  I thought it was rather put in terms of the

pointlessness of an undertaking not to do something

which is not available to you anyhow, but I am not

particularly persuaded by that,in the sense that I

see no reason why in any situation a defendant Cclnnot

simply write to a plaintiff and say that we do

not intend to plead this particular defence,

whatever it might be.

MR RAPOPORT:  That is my position entirelY, Your Honour.

Your Honour the other side of the -

HIS HONOUR:  Can I just add this. You can see perhaps, Mr

Rapoport, that .;. well perhaps I could put it to you

in another way, clearly I am required to act in

,accordance with the authorities as they now stand,

~in anything that I do in relation to this application .

If you were to indicate that there are certain doubts

that may now exist , I am not sure what I could do

by reason of that, when clearly I have to take the

authorities as they stand.

(Continued on page g)

C3T4/l/CM	8	30/5/89
Bowtell

MR RAPOPORT.:  But really the point I think I am making is that

there is not an authority that I "icnow of, maybe I
am wrong about that, that says that in a case where

t;,he Commonwealth is involved, and following

MAGUIRE V SIMPSON, that it is in fact precluded from

pleading the statute in the circumstance in which

we find ourselves. For example, in PEDERSEN V YOUNG
which is really the fons et origo of this whole

business, at that time, for example, there was no

power in this Court to remit.

And that was a point between two private

individuals. So we have a quite different situation

there. And the other point that is raised which is

a new, quite different view, as I said DIXON's

matter raised some doubts in my mind that I did not

have previously. For example, if the matter were
remitted in the standard form of order, which was

made in DIXON's matter by Justice Dawson, it was
argued, and I notice one of the Justices of Appeal

seemed to accept the proposition - maybe I

misunderstood him - that because the matter was

remitted as if all steps had been taken in the

New South Wales ~ourt that the matter was deemed to

have commenced there and therefore the New South

Wales STATUTE OF LIMITATION applied to it.

Now that was dismissed by two other justices

but that still left a shadow over it again.	So
that if Your Honour made the standard form of

remitter order, if I may use that phrase loosely,

then again it would present a problem, but that

is capable of being got around by the form of the

order, with respect, such as one suggested by

I think it was Justice of Appeal Mahoney that - or it may have been Justice of Appeal Hope who said

that the order could be that it was deemed to have

commenced in the High Court, for example, and the

proceedings continued.

HIS HONOUR:  Your minute of consent seeks to go further than

-- giat - - -

MR RAPOPORT: Yes.

HIS HONOUR:  - - - and asks fran. this Court a direction that

the limitation provision is not available.

MR RAPOPORT:  Yes, Your Honour.

HIS HONOUR: Well that is a fairly big step to take by way of

direction when a matter is being remitted to a

supreme court, or Federal Court for that matter,

for this Court then, and particularly a single

Justice of this Court, to include by way of direction

something which really is a decision on a substantive

question of law.

C3T5/l/DR	9	30/5/89
Bowtell

MR RAPOPORT:  I agree entirely with Your Honour. My own view on

the form of consent has now changed quite substantially

and it is really much too late in the piece to have

submitted a further form of consent, but it is only

since I have really focused on this case in the recent

past that I have looked at alternatives, particularly

the one suggested in DIXON's matter. The difficulty

could be got round by doing one of two things.
For example, I notice in BARGEN's case

Chief Justice Barwick in fact remitted the hearing of the questions of liability and quantum to the Queensland Supreme Court but let the rest of the

matter remain in this Court, so that it had a

residual control in the sense of being instituted

here and continued here, but the hearing of the facts

and what have you, were dealt with in the Supreme

Court.

That is one attitude which was adopted in that

matter and that would be unexceptionable from the
plaintiff's point of view; and the other one would be
a quite different direction that the matter be deemed

to have been commenced in this Court and continued in

that sense. So that, again, the difficulty of saying·

that it has been remitted and deemed to have

commenced in the Queensland court could not arise,

which would not be as strong a direction but would

satisfy the plaintiff as best one can within the

present authorities, your Honour.

HIS HONOUR:  Perhaps I had better let you just present your

submissions, Mr Rapoport, if it does not seem that
the parties are able to arrive at some formula

which is acceptable to both of them; but the matter have finessed itself to the point that it is a matter

for decision as to whether it should be remitted to

the Federal Court sitting in Brisbane or the

Supreme Court of Queensland.

MR RAPOPORT:	Yes.
HIS HONOUR:~t

I take it, without pre-empting your argument, that

you would accept that in terms of the ordinary balance

of convenience everything would point to - perhaps not -

I was going to say everything would point to

Queensland, obviously, but query whether it points to the Federal Court or the Supreme Court.

MR RAPOPORT:  Your Honour, because I practise so much in the

Supreme Court in Brisbane, I can tell Your Honour that

the estimate of the shortness of time - and it may

sound a long time, 18 months to two years which is in

the affidavit material before Your Honour - surprisingly

beeause I understand from my own experience that it is no longer.

So that is really a very brief time compared to the true

position.

C3T6/l/HS	30/5/89
Bowtell	10
MR RAPOPORT (continuing):	From that point of view, the

Federal Court in Brisbane is much better

situated to deal with the matter speedily and

the matter has already acquired quite a lot of

age because of the time since the accident.

.HIS HONOUR:  But if the matter is one that ordinarily

would have been brought in the Supreme Court of

Queensland, because in this case the Federal

Court would not have had jurisdiction,

shortness or length of hearing times is not

an overwhelming consideration, is it?

MR RAFO PORT:  Certainly not, no.

HIS HONOUR: When in CROUCH we were dealing with a

situation of two i<.1preme Courts, one of	which
certainly would have had jurisdiction.	Well, I
will let you present your submissions,
Mr Rapoport.

MR RAPOPORT:	Yes, thank you, Your Honour.
HIS HONOUR:	Can I just say this? You know that I am

sitting as part of the Full Court at 10.15 am

and if we do not finish, if it is convenient to

counsel, I will continue when we rise at 12.45 pm.

MR RAPOPORT:  Yes, thank you, Your Honour. I was trying

to avoid that by having these written

submissions but I do not know what my learned

friend's attitude is to the suggestion I just

made to Your Honour a moment ago, such as the

order made by Chief Justice Barwick in BARGEN's

matter; whether that is aceeptable to his client.

HIS HONOUR:  Do you have that form of order innnediately

available, Mr Rapoport?

MR RAFOPORT:  I do not have it innnediately available,

___ :-Your Honour, no.	But, the order is actually set
~out in the - - -

HIS HONOUR:  Well, I mean in the authority itself, what

is the reference?

MR RAFDPORT:	It is 154 CLR, at the bottom of page 318 and the beginning of page 319.
HIS HONOUR:	And where is the form of order, at the end

of the judgment?

MR RAPOPORT:  At the very bottom of page 318, Your Honour.

It begins on the second last line.

HIS HONOUR:	But, 318 is the first page of the judgment.
C3T7/l/JH	30/5/89
Bowtell	11

MR RAPO.PORT: Yes, it is, Your Honour. It is actually in

the facts, just underneath the word "summons"

in the second-last line and begins there.

HIS HONOURi I see what you mean:

On 29 August 1979, Barwick C.J. in chambers

directed that the issues of liability and

the assessment of damages be remitted to
the Supreme Court of Queensland and that

the remainder of the cause be retained in

the High Court.

MR RAPOPORT:	Yes, Your Honour.
HIS HONOUR:	Was that done to cope with the situation similar

to the one that has arisen here?

MR RAPO.PORT:  Your Honour, I really cannot answer that

except that the statute of limitations was an

issue in that case, of course.

HIS HONOUR:	Well, I do not know what Mr Erskine's response to that is. It is a form of order which clearly
would only be used if there were some fairly
compelling reason why this Court should retain
some control over the matter.
MR RAPO.PORT:	I really was not putting that forward,

Your Honour, as the ideal alternative because I understand the difficulty it raises because it means the matter really has to be remitted back for final decision here and I do not see the need for that nor the need for the expense

or the encumbering of this Court's work with

that sort of situation. I was hoping that maybe

Your Honour would consider the alternative situation

which is suggested by Justice of Appeal Hope

in DIXON's matter.

HIS HONOUR:. Let me have the reference to that, please?

MR RAPOP~R.f:' That, Your Honour, is (1988) 13 NSWR 608,

between the letters F and G, Your Honour, at

the bottom of page 608. If I could just find

the particular passage that I am after,

Your Honour - it really starts at page 607B.

(Continued on page 13)

C3T8/l/SDL	12	30/5/89
Botwell

:MR RAPOPORT:  Yes, it really starts at the letter Bat page 607,

Your Honour.

HIS HONOUR: .Did DIXON's case turn upon the question of

whether the documents simply met requirements as

to filing? That seems to be what Mr Justice Hope

is adverting to in the passage that you have just

referred me to.

:MR RAPOPORT:  Yes. Well, it seems that that was an issue that

was argued because it was submitted from each side

that a different effect would flow from the fact

of the documents having been issued in the

High Court registry on the one hand and the fact
that it was remitted to the New South Wales

Supreme Court on the other.

HIS HONOUR: Well, what are you suggesting be the form of an

order that is in conformity with Mr Justice Hope's

judgment in DIXON?

:MR RAPOPORT: Well, Your Honour, I think it is really found

at	the letter D, where he says:
What it could do was what in my opinion what Justice Dawson did do, namely, direct
that the documents filed in the Melbourne
registry of the High Court should be deemed
to satisfy the requirements of the
New South Wales Supreme Court in relation
to the filing of those documents, and that
no new of substituted documents need be
filed. The proceedings were to continue
in the New South Wales court as if its procedural requirements up to the time of
remission had he-en satisfied by what had
been done in the High Court registry.

HIS HONOUR:  But how does the LIMITATION ACT involve procedural

requirements-in this sense? If a defendant does

not plead the LIMITATION ACT the question does

ni&t arise. (Continued on page 14)

C3T9/l/VH	13	30/5/89
Bowtell

MR RAPOPORT:  Of course, Your Honour. But we are faced here

with the prospect - - -

HIS HONOUR:· Yes, but how does a direction by this Court

in the matter with which we are presently

concerned directing that the proceedings
continue in, let us say, the Supreme Court of

Queensland as if its procedural requirements

up to the time of remission had been satisfied

meet any difficulty you might run into with

the LIMITATION ACT?

MR RAPOPORT:  Your Honour, I think I can say that what

my friend's position would be then, if I

understand what his situation has been all

along, is that PEDERSEN V YOUNG and the

other authorities say that the limitation

position would not be affected by proceedings

in Queensland after it had been instituted in this Court where the limitation period is six

years. That is really what PEDERSEN V YOUNG

says, that where the matter is instituted is

what governs the limitation period. So that

if we are remaining, somehow or other, in

this Court, at least so far as the filing of

of the LIMITATION ACT are, "shall not be brought 11 ,	the documents is concerned, because the words
and that has been interpreted - I hope correctly,
of course - as meaning shall not be commenced, not continue~ because some of the statutes of limitation of some of the other States use the
word "continued", or a variation of that word,
whereas in the Queensland Statute we are referring
to the word "brought" as the relevant word. So
if that is to be confined to its normal meaning,
as I understand the authorities, it shall not be brought; it means it has to be brought in
Queensland to be affected by it. If it is not
brought in Queensland, PEDERSEN V YOUNG says
it cannot be affected by that being applied at
j later stage, because what was sought to be done in PEDERSEN's case was to plead the statute after
the proceedings had been brought - I think it
may have been in the Melbourne registry of this
Court. It was then said that you could not
plead that statute in Queensland because it is
too late.

HIS HONOUR:  Yes, I understand, thank you.

MR RAPOPORT:  Your Honour, I think that really puts the

case. The form of order that I am seeking,

Your Honour, is really encompassed within those

two alternatives, so to speak, and that is

really the form of a direction which would be

much more acceptable, no doubt, to this Court.

C3Tl0 /1 /JM.	14	30/5/89
Bowtell

HIS HONOUR:	If you were to persuade me that that form of order was appropriate, do I take it that you
would be looking then for a remitter to the Supreme Court of Queensland and would not
be concerned with the remitter to the Federal Court?

(Continued on page 16)

C3T10/2/JM	15	30/5/89
Bowtell

MR RAPOPORT:  Your Honour, I can see the force of the

argument that would be raised that the supreme

court is a natural forum for this matter because

the Federal Court did not have original jurisdiction

in the first place. I can see the force of that

argument. I cannot argue against it. If there

is a discretion, ·which there undoubted is because

it has been said that section 44 has an

unfettered discretion attached to it, if there

is such an unfettered discretion it may be that,

as Your Honour said in CROUCH's case, the
balance of convenience argument may be met by
looking at the expedition of the matter rather

than the convenience of the parties, so to speak.

In other words, would the ends of justice

be served more rapidly and more efficiently and

maybe even more cheaply - who knows - if the

matter were remitted to the Federal Court? But,

really, that is not the nub of my argument.

My worry is, essentially, the limitation question.

The other is very much a subsidiary matter.

I was, maybe, thinking that if one was to accept

the argument that section 44(2A), in fact, covers
this question, it may be that there is not really

any room for the argument that the matter should

be going to the supreme court anyway because

it is beyond power. But that may be putting

it very highly, but essentially - - -

HIS HONOUR:  I think you had better tell me, in short compass

at any rate, what the submission is in regard

to paragraph 2 of the outline.

MR RAPOPORT:  Yes, we will come back to that - that is

the STATE BANK case, Your Honour, that is

154 CLR also. The nub of the argument, really,

Your Honour, is at page 583 about point 8 of

the page.

HIS HONOUR:  Yes, I have it, thank you.

(Continued on page 17)

C3T 11 /1 /ND-	16	30/5/89
Bowtel l

HIS HONOUR:  So, what is the suggestion, Mr Rapoport,

that perhaps paragraph (2A) overrides - - -

MR RAPORORT:	Paragraph (1).
HIS HONOUR:	Paragraph (1).
MR RAPOPORT:	In the particular circumstances of this case.

HIS HONOUR:  Well, now, when you say the particular

circumstances of this case - do you mean because
the Commonwealth is a defendant or for other

reasons as well?

MR RAPOPORT:  No, just that reason alone, because it is

a par excellence case where (2A) applies. It

is here only because the Commonwealth is a

defendant and, in my submission, that comes

so four-squarely within (2A) and that there is

not really any room for (1), but maybe I am

quite wrong about that. What I understand

Chief Justice Gibbs to be saying in this case

is that one should not be looking at (2A) to

see if it fulfils the policy objective which

the draftsman may have had in mind, that is to

give jurisdiction to remit in the circumstances

which are there indicated in His Honour's

judgment; but rather it should be given a wider

interpretation so that it is capable of extending

beyond the particular provisions there. That is,

38E and the AD(JR) ACT situation, which (2A)

covers.

HIS HONOUR:	If the Commonwealth was a defendant, are there any circumstances in which, on that
argument, subsection (2A) would not operate to require a remitter only to the Federal Court?
MR RAPOPORT:	I cannot think of any, Your Honour.
HIS HONO~:	I am thinking of MABO, for instance, in which

-- ~ Chief Justice Gibbs remitted, not the Act in its

- entirety, but questions of fact to the Supreme

Court of Queensland and in which, true, the

Commonwealth was only one of two parties.

MR RAPOPORT:  Well, that may have added a twist to it,

Your Honour. But this is a case where there is

only the Commonwealth as a party and it comes

so four-square within the language of (2A) that

I find it irresitable, personally, but it is just

really a matter of interpretation whether

section (1) also covers it. It seems otiose really to

say that (1) and (2A) cover the same ground; it

is a very strange sort of :interpretation, if I rmy put

it as high as that. There is no need tor (1), if

(2A) applies - maybe one can say that. Maybe it

C3Tl2/l/VH	30/5/89
Bowtell	17

is just a simple gap in the draftsman's

final result that the draftsman did not take into

account the possibility that (1) might be brought

into the picture, or else the draftsman thought

that (2A) was only going to achieve the result

which Chief Justice Gibbs referred to, that it
was going to be that very narrow little gap
which was missing. With respect, the draftsman

has not achieved that purpose because, as

His Honour points out, it has a much wider

meaning than that. But, it comes four-square

within the corners of this case; you cannot look

any further in my submission.

In other words, you have to sort of bypass

(2A) and say, "I do not care about that

subsection, I am going to look only at (1)".

And I do not know how one disregards (2A) in the

circumstances.

HIS HONOUR:  Or, alternatively, you treat (2A) as a

subsection that has come into operation because

the Federal Court itself has come into

operation and it provides another, as it were,

venue to which a remitter maybe made but only

in the situation where the Connnonwealth is a party.

MR RAPOPORT:  Well, with respect, Your Honour, section (1)

also does that because it deals with the Federal

Court in the alternative.

HIS HONOUR:  Well, it deals with a f'ederal court in

lower case, not with the Federal Court, being the

body constituted by the FEDERAL COURT OF AUSTRALIA.ACT.

MR RAPOPORT:	Yes, I can see that point, Your Honour.
HIS HONOUR:	Now, what difference that makes, again, is

a matter I may have to think about.

MR RAPOPORT:  I am sure that is so, Your Honour. It

·· ~icould well be that subsection (1) was, in fact,

~ written at a time when the Federal Court did not

exist, I do not think, if I have got my

history right.

HIS HONOUR:	Clearly, that is right.
MR RAPOPORT:	So  that may.be why. But, with respect,

again, I think the draftsman has failed to address

the question of a conflict that possibly arises

between (2A) and (1). So, that is really the

argument about (2A), Your Honour.

HIS HONOUR:	Yes, I understand that
MR RAPOPORT:	But I am not saying that is fundamental but, on

the other hand if it is beyond power,then it should

not be done obviously except if it be by consent.

C3Tl2/2/VH

Bowtell 18 30/5/89

Your Honour will also have noticed from the

papers that it was originally suggested by
plaintiff very early in the piece to the

defendant that we would discontinue these

proceedings in this court and begin again in the

Supreme Court to save costs - - -

HIS HONOUR:	Yes.
MR RAPOPORT:	- - - and to save encumbering this Court with extra problems by simply going to the
supreme court subject only to an undertaking
and that, again, was refused, so that at all
stages we have been willing to go, shall I say, to the supreme court, providing we were protected
from the possibility that now faces us.
HIS HONOUR:	Yes.

(Continued on page 20)

C3Tl2/3/VH	19	30/5/89
Bowtell

MR RAPOPORT:  It is also interesting that from the material

Your Honour may have noticed that the defendant's position in a very early letter was that the

Federal Court or the Supreme Court in Brisbane were

equally suitable venues.

HIS HONOUR:	Yes, I noticed that.
MR RAPOPORT:	That position seems to have changed,

imperceptibly, but changed nevertheless. Now the

position is it is to be the Supreme Court only.

I do not really know that there is very much more

I can assist Your Honour with.

HIS HONOUR:  Mr Rapoport, what you might just add before you

sit down so that the matter can be disposed of without

requiring further submissions from counsel is, what do

you say about the question of costs?

MR RAPOPORT:  Your Honour, my submission is that it was

necessary for us to come here to get a remitter order

in any event, subject only to the question which my

friend might wish to argue that it could have been de~lt

with on a consent basis, and that was attempted but

did not come to anything, and the situation was such

that there was so little certainty, as I hope I have

convinced Your Honour to that effect, that one could
not comfortably say, "We were mad to come here", or
"We were very foolish to come here", to try to argue

the case when it could have been dealt with with a

consent order; that would be my first point. The

second point I make, Your Honour, is that the

complexity of the matter, quite apart from the

difficulties, was such that it really needed argument

to resolve the issue.

Your Honour would be, in my submission, minded to

make an order that there be costs in the cause so that

if the plaintiff turns out to be unsuccessful then maybe they will obviously follow the event in that

C?Se. Alternatively Your Honour would,	maybe if you
(~ke the view that the plaintiff was quite right to

c~me here and the defendant should not have resisted -

I am not saying that Your Honour would come to that

view, but if Your Honour eame to that view, then it should

be that the defendant should pay the plaintiff's costs

in this Court of this part of the application.

HIS HONOUR:	Yes, thank you.
MR RAPOPORT:	I think I should also mention that, of course,

Your Honour might think of certifying for counsel. I

notice I have not specified that anywhere in the summons,

Your Honour.

HIS HONOUR:  Yes, thank you, Mr Rapoport. Mr Erskine.

MR ERSKINE:  Your Honour, the only matters that need to be addressed as ·a result of my friends submission are twofold.

C3Tl3/l/HS 20 30/5/89

Bowtell ERSKINE

MR ERSKINE:  The first is in relation, if I may take it in

this order, to section 44(2A). Your Honour,

it is suggested by my learned friend that

s-ection 44(2A) is an exclusive provision. Upon,

in my respectful submission, a proper reading

of the STATE BANK case, it is clear that

section 44(2A) is primarily concerned with a

gap in section 44(2). If Your Honour sees the

discussion that my learned friend has already

taken Your Honour to, by His Honour the former

Chief Justice, Your Honour will see that there the Chief Justice discusses the fact that not

everything that fell within the JUDICIARY ACT

could be remitted. There was a small class of

case which could not be remitted to any court

and had to be dealt with in the High Court.

It appears to be for that reason that section 44(2A)

was then inserted and it was inserted, if you

like, as an even more restrictive provision.

If one deals with them in sequence, one has section 44(1) which allows a wide range of

cases to be remitted to a wide range of courts;

section 44(2) then deals with a particular class

of case which may be remitted only to courts

which would not otherwise have had any kind of

jurisdiction in that sort of matter and then,

finally, one has this last group of cases where,

for reasons of policy, it has been thought necessary

that the only court to which they can be remitted

is the Federal Court of Australia. But one still

has to go back to the first provision because

the matter before Your Honour today falls squarely

within section 44(1) and that being so, on a

proper reading of the STATE BANK case, one really

starts with section 44(1) - one asks, "Is this a matter that falls within section 44(1)?'\ If

your answer to that is no, you can then pass

to section 44(2) because that is one of the options;

if it does not fall within that then, unless

tQe drafter has it totally wrong, there will

~ a small group that will fall only within

s-ection 44(2A).

Any matter that would fall within section 44(1)

or section 44(2) but which would also be caught by

section 44(2A), Your Honour then has a choice

as to under which subsection you remit.

HIS HONOUR:  Mr Erskine, would you illustrate a matter

in which the Commonwealth was a party, which would not fall within subsections (1) or (2)

but would fall within subsection (2A)?

C3Tl4/l / SDL _	21	ERSKINE	30/5/89
BowtelL

MR ERSKINE:  Not easily, Your Honour. The area in which we

are dealing with is a very narrow and sometimes

obscure area. If you take some of the illustrations

put up by His Honour the Chief Justice in the

STATE BANK case, one has various areas of administrative
law, for example, matters which do not normally fall
within the ADJR ACT because they are in the schedule

to the Act or there could be applications for

mandamus under 38(E) of the JUDICIARY ACT.	Those
matters are not caught by section 44(2).	Now,

arguably, you could say that the Commonwealth could
well end up being a party in one of those matters

in which case it could be remitted under 44(2A).

HIS HONOUR:	Thank you.
MR ERSKINE:	But from the defendant's side we would submit

that one starts really with 44(1) and 44(2A)

just simply is an addition to that to cover what

seemed to be a gap. It may have gone further than

was necessary to cover the gap, but that is what

its intention was and consequently, one does not

read 44(2A) as being exclusive of the other two

provisions where there is an overlap. Section 44(2A)

only becomes exclusive where neither of the other

two provisions applies, which is fairly self-evident,

of course.

Your Honour, the other matter that my learned

friend has raised is the question of the STATUTE OF

LIMITATIONS I need only refer really to the way

in which my learned friend has summarized the argument

I would have put to Your Honour. He has, with

great respect, summarized it quite accurately that,

under the authorities as they presently stand, it

would appear that a matter brought outside

Queensland could not· _ be the subject of the

Queensland LIMITATION ACT. That being so and this matter

having been brought outside Queensland, it does

not appear to be an impediment to the matter being

- remitted to either the Federal Court or the

of Queensland prescribes a shorter limitation period	Stlpreme Court in Queensland, that the LIMITATION ACT
because, on the authorities as they stand, the
LIMITATION ACT could not apply to a matter remitted to either of those courts sitting in Brisbane.

HIS HONOUR: Well, faced with a choice between the Federal Court

and the Supreme Court of Queensland and subsection (2A)
aside, what is the defendant's submission in regard

to the appropriate court?

C3Tl5/l/VH	22 MR ERSKINE	30/5/89
Bowtell

MR ERSKINE:  Your Honour, the preferred court would be the

supreme court for several reasons which have been

alluded to by my learned friend and they would

be principally that the supreme court is the one,

primarily, that has tbi.sjurisdiction in Queensland.

The Federal Court only gets jurisdiction over this kind of matter on the rare case that is remitted.

My office in Brisbane instructs me that the

Federal Court currently only has one such matter

in the registry there of this kind of case - a

personal injuries type case - that has been remitted,

whereas the Supreme Court of Queensland, of course,

has thousands of them.

So that if one deals with it principally on the basis that if it had been commenced in Queensland

within the limitation period it would have to have
gone to the supreme court. That is the preferred

place for it to go. Other than that there does not

seem to be terribly much to choose between them.

I accept my learned friend's proposition that the

Federal Court at the moment appears to have a shorter

gap between certificate of readiness and hearing
than does the supreme court.

May I also submit to Your Honour though that that situation could well change in the near future

because we are dealing with the sort of matter that

inevitably, in whatever court it is commenced,

is going to take some time to get to the point

where a certificate of readiness will be filed.	It
is an unfortunate - it appears to apply always to
cases of this kind that the pleadings programme

and the timetabling of medical appointments and the

like take such a long time that by the time one gets

to the point of the certificate of readiness it

could be 12, 18 months, it could even be two years,

before the matter is ready to be put into the call-over

list in either Court.

·· zl	Now, in that time the situation may change quite
~amatically.	We are not dealing with something that

if it were remitted now it would be more or less

ready for hearing and the hearing time becomes

significant. To give Your Honour one indication, I

am told that there is a .bill before the Queensland

Parliament which may considerably enlarge the

jurisdiction of the District Court of Queensland

and if that is passed by the Queensland Parliament

it is understood that the hearing times in the

Queensland Supreme Court will change quite considerably,

or they may well,

HIS HONOUR:  There is another aspect of the matter and I am

certainly not inviting ~ounsel to address me on this,

but that is the implications of cross-vesting if

C3Tl6/l/DR	23	30/5/89
Bowtell

the matter were remitted to the Supreme Court of

Queensland.

MR ERSKINE:  Well if it were remitted to the Supreme Court of

·Queensland it would, with respect, be very hard to

mount an argument tliat itshould be cross-vested in

the Federal Court. You may well end up with the

situation, if it was remitted to the Federal Court, that

there could be qtite a strong argument for cross-vesting

it back to the supreme Court. ·

HIS HONOUR:  That is what I had in mind but I am certainly not

inviting counsel to enter that area in this Court.

(Continued on page 25)

C3Tl6/2/DR ·	24	30/5/89.
Bowtell

MR ERSKINE:  Well that would seem an unnecessarily complicated

way of getting it into the Supreme Court of

Queensland, if I may say so with respect Your

Honour. Your Honour,apart from that there really is

very little to choose between the courts and from

my client's point of view, while it would prefer

the supreme :~·ourt there is no particularly strong

objection to the Federal Court.	The one thing
that seems to be a quite	astonishing submission

is that it be sent to a court outside Queensland,

because every connection with the case - - -

HIS HONOUR:  Well I do not think you need trouble about that

aspect of it,Mr Erskine.

MR ERSKINE:	Your Honour, - - -
HIS HONOUR:	You might just tell me this, what do you say about the suggestion that the Court should include
in its remitter order, and this I take it would
apply on the plaintiff's approach whether the
remittal was to the Federal Court or the supreme
court' ~t· a direction that the LlME'!1-.1--"Bl;,ACT'
provisions·should not"'apply.  ·

MR ERSKINE:  The first difficulty I see with that,Your Honour,

is, with respect,· that it is hard to see how

such a direction cou~.1 be made in those terms,

because whether the LIMITATION ACT applies or

does not comes about by the force of the

JUDICTARY-:ACT- and not by force of, with respect,

any direction of this Court. It either does or

does not apply and that is a matter to be resolved.

There are no doubt various devices, some of which

my learned friend has suggested to Your Honour,
which may make it beyond doubt that the matter has

been started here and has only been remitted to

Queensland and that therefore the limitation

problem need not arise. There are various ways we

_could frame the order so that that happens, but

jpne of them would not be, with respect, making a

-direction in those terms.

HIS HONOUR: Do you raise any opposition to the suggestion by

Mr Rapeport that an order be made in terms that the

action is deemed to have connnenced in the High

Court in Canberra, so as to make it clear that the

action was initiated and for all purposes remains

initiated in Canberra rather than in Queensland.

MR ERSKINE:  No, Your Honour, I have no objection to the order

being framed in those terms.

C3Tl7/l/CM	25	30/5/89
Bowtell

MR ERSKINE:  Your Honour, in that case, the only last matter

is the question of costs. To some extent, the

parties do not know what Your Honour's order

ultimately will be but there are three possible

orders that Your Honour could make as to costs:

one which 1 would submit is not appropriate is that the plaintiff's costs be paid by the defendant because if one regards this as simply

part of the process by which, ultimately, a verdict

will be given in some court, whether it be this

Court or a court elsewhere, then this is part
of the initiating process and, at the very least,

the cost should be costs in the cause.

HIS HONOUR:  Mr Rapoport, I think, put costs in the cause

at the forefront of his submission on costs and in any event.

MR ERSKINE:  Your Honour, it does depend to some extent

on the order that Your Honour finally makes but

if Your Honour makes an order that is substantially

in the terms of the consent order that both parties

came within an ace of signing, at the end of

last year - I mean, we did both sign consent

orders that were very slightly different from

each other but there was no doubt of the intent

of both parties that it could almost have been

resolved to have the matter remitted to the Supreme

Court of Queensland.

If Your Honour were to make an order

substantially in that form then I would submit

that there is an appropriate case for considering

whether the costs of this hearing should be paid for by the plaintiff because it is a matter that

could have been resolved by consent, instead
of which we have an argument before Your Honour

which has involved the bringing of counsel for
both sides which could otherwise have been disposed

of on paper through the High Court Registry.

HIS HONOUR Yes, I understand that.

MR ERSKINE: It will depend, of course, on what order

Your Honour finally makes. Otherwise, it should

appropriately be costs in the cause.

HIS HONOUR: Thank you, Mr Erskine. Anything by way of

reply, Mr Rapoport?

MR RAPOPORT:  Not really, no, Your Honour. I do not want

to canvass old ground again, thank you.

HIS HONOUR:  I will consider my decision in this matter

and the Court will now adjourn.

AT 9.50 AM THE MATTER WAS ADJOURNED SINE DIE

C3Tl 8/1 /ND	26	30/5/89
Bowtell