Brisbane City Council v Amos

[2019] HCATrans 66

[2019] HCATrans 066

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B47 of 2018

B e t w e e n -

BRISBANE CITY COUNCIL

Appellant

and

EDWARD AMOS

Respondent

KIEFEL CJ
GAGELER J
KEANE J
NETTLE J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON TUESDAY, 9 APRIL 2019, AT 10.16 AM

Copyright in the High Court of Australia

MR S.L. DOYLE, QC:   If it please the Court, I appear with MS A.L. WHEATLEY for the appellant.  (instructed by Brisbane City Council)

MR F.L. HARRISON, QC:   May it please the Court, I appear with my learned friend, MR P.G. JEFFERY, for the respondent.  (instructed by Keller Nall & Brown Solicitors)

KIEFEL CJ:   Yes, Mr Doyle.

MR DOYLE:   Your Honours, this appeal concerns the proper construction of the Limitation of Actions Act (Qld) and in particular sections 10(1)(d) and 26. Section 10(1)(d) provides for a six‑year limitation for commencement of proceedings to recover a sum recoverable by virtue of an enactment, and 26(1) provides a 12‑year limitation for commencement of proceedings:

to recover a principal sum of money secured by a mortgage or other charge on property –

and a shorter period of six years for interest charged on that money.  In the present case the appellant levied rates and charges on land owned by the respondent.  They are of course recoverable pursuant to an enactment, the City of Brisbane Act, and so fall within the language of section 10(1)(d). But as they remained unpaid, the rates, charges and interest became themselves a charge on the land after 30 days and so there was a principal sum of money secured by a charge on land within the meaning of section 26(1).

The appellant commenced its proceedings outside the six‑year period for some part of its claim, but within 12 years for the whole of its claim, thus the limitation question arose. The majority of the Court of Appeal held that where proceedings can be said to fall within the language of both of those sections they both apply and the effect of the application of section 10(1)(d) was to bar all actions to recover the rates because it provided the shorter periods.

The majority, it is fair to say, placed significance upon a decision from the late 1800s of Barnes v Glenton which was identified by the majority as being the start of a unanimous judicial opinion, as they describe it, supporting the approach taken in that case and by extension the approach taken by the majority.  Even if one were to accept the reasoning in Barnes v Glenton, which we do not, as we will come back to, it was concerned with an entirely different statutory context and the question in that case was whether an 1874 statutory provision could be understood to repeal a 1623 statutory provision, that is, two Acts rather than two provisions of the one statute.

The majority’s construction which I will take you to shortly is, in our submission, the wrong approach.  There are, we accept, two provisions which can literally be said to operate according to their terms and for different periods of limitation.  The orthodox approach is to construe the Act as a whole and if at all possible to give each provision some sensible operation according to its terms or, if that is not possible, to see if it is possible to identify one as the specific provision which Parliament is to be taken to have intended to apply to the exclusion of the other. 

We address those approaches in our submissions and I do so today but they both, in our submission, end up with the limitation period relevantly being that provided by section 26. It is possible to give the sections harmonious operation according to their terms by viewing each as providing a limitation defence only to an action of a particular description or kind to which it refers and not to actions of a kind or description to which other sections refer.

So a defence arises to a claim under a simple contract, to take an example away from the facts of this case, after six years from when the cause of action arose, pursuant to section 10(1)(a). But it would be wrong to turn that into a defence to proceedings where the proceedings are to seek to recover a principal sum of money secured by a mortgage on property. For such a defence to arise, the defendant has to wait 12 years. That reasoning applies equally to the other provisions of section 10 to which I will take you and, in particular, to section 10(1)(d), which is relevant to these proceedings.

If, on the other hand, one cannot make the sections operate harmoniously according to the terms in the way I have described them, the specific provision which operates to bar proceedings to recover a principal sum of money charged on land is section 26 and it ought to be applied in preference to or to the exclusion of section 10.

Can we ask your Honours to take up the Act at least briefly for the moment? It is in the joint book of authorities at volume 1, tab 3. If your Honours turn to page 18, Part 2 starts with section 9 which cross‑refers to that part being “subject to part 3”, which your Honours can ignore. Part 3 is concerned with limited circumstances not relevant to today’s purposes in which limitation periods can be extended. Then if you turn to section 10(1) - these provisions I am sure are all very familiar to your Honours – you will note that 10(1) provides that:

The following actions shall not be brought after the expiration of 6 years from the date on which the cause of action arose –

and then (a) deals with an action founded on various things, and (d), the one most directly relevant: 

an action to recover a sum recoverable by virtue of any enactment -

and (3), it is a longer period, but:

An action upon a specialty shall not be brought after the expiration of 12 years from the date on which the cause of action accrued.

I will come back to take you to some other provisions later on, but your Honours will note that to some extent at least, section 10 differentiates between “actions” and “causes of action”. An action is defined in section 5 on page 13 of that volume as including “any proceeding in a court of law”. So that ultimately we will be urging that the section selects actions of a particular description as the gateway for their operation and then uses the date when the cause of action arises generally as the start for the limitation period to commence to run.

So that the initial focus of the language is identifying the kind of proceeding which meets the description of gateway I have described and then having identified that, to select the relevant six or 12‑year period, depending upon which of these sections it falls within. If you turn then to page 28, you see section 26(1). Again, it uses the language of action:

An action –

which your Honours recall, is described as any proceeding in a court of law:

shall not be brought to recover a principal sum of money secured by a mortgage or other charge on property whether real or personal . . . after the expiration of 12 years from the date on which the right to receive the money accrued.

Whilst there, if your Honours can note subsection (5), which provides the shorter period for interest. We note in respect to section 26 that it operates by reference to “actions” and it does not use the expression “cause of action” at all. So that it seeks - consistent with the construction we urge it identifies the requirements – sorry, to identify an action of a particular description, really independently of the nature of the underlying cause of action which may give rise to that action.

So that this section is intended to operate to proceedings of which meet a particular kind, seeking a particular kind of relief, whatever the cause of action.  I will come back, if I may, to the language of the Act later on, but can I take you then to the reasoning of the Court of Appeal.  In the core appeal book - and if we start, please, in the reasons on Justice Dalton at page – her Honour’s reasons start at page 57. 

There were a great many issues raised in the appeal which do not arise today. If your Honours turn to paragraph [64] on page 58 you will see that her Honour held that the expression in section 26 “or other charge on property” was wide enough to refer to a charge created under the City of Brisbane Act in respect of rates and charges, and that is not controversial in this appeal. 

At paragraph [73], her Honour held that the expression “principal sum secured” extended to rates and charges, rejecting an argument which the respondent here had advanced below that the section was concerned only with moneys lent and that, too, is not controversial in this appeal. There had been attempts in earlier cases to limit section 26 to recovery out of the proceeds of the sale of land or out of rents and that, too, has been rejected. That is not controversial in this appeal.

If you then go to paragraph [74]of her Honour’s reasons which – can we ask your Honours to read, please.  You will see her Honour has reached the point she says where both sections apply and goes on to discuss the outcome of that.  If you turn then, to paragraph [78], please, and read that.  Her Honour then undertook analysis of the “History:  Statute, Case Law and Textbooks” to which I will return later.  But, we would then ask you to go to paragraph [90] of her reasons which seems, with respect, to set out the core rationale of the approach her Honour has taken.  Can we ask your Honours to read that? 

So, in substance, her Honour’s reasons supported, as she asserts, by authority, is that we have two provisions applying.  They both apply.  Taking into account the two principles, if you like, or the two considerations she identifies:

the limitation periods establish prohibitions –

not rights and:

the prohibition is in favour of the debtor –

with the result that, inevitably, if two provisions apply, it is the shorter one that will be operative and the longer one not.  That is, ultimately, the outcome of which the majority contends in this case.  It is fair to say that in the summary that follows, her Honour placed a great deal of reliance upon parts of that to which we will return.

If your Honours then turn to paragraph [109] of her Honour’s reasons, you will see that her Honour considers the submission that was made below that section 26 is the specific or special provision which ought to be applied derogating the operation of section 10. Her Honour rejected that contention. Can we trouble you to read paragraph [111] and then, please, your Honours, [115] and [116] and her conclusion at [119]. It is not necessary to read the extract from Wilkinson v West Bromwich.  You will see in the middle part of that passage, her Honour says: 

At a point six years after the right to recover the statutory sum accrued, s 10(1)(d) gave the appellant a good defence to any action which the Council then began.

Justice Philippides agreed in the result with Justice Dalton.  Justice Fraser dissented on this limitations issue.  Can we ask your Honours to go back to his reasons commencing relevantly at page 48.  In paragraph [28], his Honour starts really from the same position the majority did, that is, that the language of both sections was capable of applying.  His Honour then considered some authorities to which we will come later on. 

Then, if you turn please to paragraph [30].  I should say, one of those decisions is a decision of the Full Court of Queensland in ANZ v Douglas Morris, where the judgment is delivered by Justice McPherson.  So in paragraph [30] his Honour records that the appellant – that is, the respondent here – argued:

that McPherson J was wrong in considering that the correct approach is to identify a limitation provision which applies to the exclusion of another limitation provision –

If you read on you will see that the:

Different, applicable provisions are capable of concurrent application, with the result that an action governed by both of them could not be brought after the expiration of the shorter of the two limitation periods.

That is the contention being advanced by the appellant below and by the respondent here, which His Honour then goes on to consider.  If you turn to paragraph [34] his Honour starts to deal with Barnes v Glenton and I will not trouble you with that now.  If you turn to paragraph [38], to the very bottom of page 51, you see a sentence commencing:

So far the research conducted by myself and the parties has –

If your Honours could read the rest of that paragraph.  Apart from this case, that remains the case.  There is no Australian superior court decision which has applied Barnes v Glenton.

Can we ask your Honours, then, to go to paragraph [40] where Justice Fraser makes a significant point that the statutory context in Barnes v Glenton was very different from the subject context.  The point his Honour makes is an obvious one, that Barnes v Glenton concerns two different statutes and the question was whether a later one appealed the earlier, whereas the topic before his Honour was the reconciliation of two provisions within the same statute in respect of which he said that involves a different statutory context.

GAGELER J:   How is it different?  I mean, what difference of principle does it give rise to?

MR DOYLE:   Because Parliament has spoken in one voice in one statute intending to give each – it probably should not make any difference to the outcome.  But it is a different context because in one case the court is being asked the question does a later statute, should it be understood as repealing rights conferred under an earlier one?  Where it is both in the one statute, one has to approach it to construe it as a whole giving the whole harmonious operation as much as one can.

KIEFEL CJ:   But you also construe it by reference to its history?

MR DOYLE:   You do.

KIEFEL CJ:   Legislative history.  So you end up in the same position, do you not?

MR DOYLE:   If the history were identical, I suppose we might.  It is not, as I will take you to.  This is not a great point, but I should say, it is a point that - even the majority accepted there were different considerations applied to approaching a construction where the question is whether one statute repeals another on the one hand, compared with construing two provisions of the one statute.  They did not seem to carry that into their analysis and explain why that was not relevant in this case.  The majority’s touching upon that is in paragraph [114] of Justice Dalton’s reasons. 

Your Honours, back then to Justice Fraser, to paragraph [44], his Honour concludes that section 26 is the more specific provision to be applied, making the point that I have already touched upon that that is a section which operates not by reference to specific causes of action, but by reference to the description of the relief sought in the action.

GAGELER J:   What makes it more specific?

MR DOYLE:   Can I come to it?  There are many things that make it more specific.  But in summary, Parliament has recognised, Parliament must have recognised, that a sum of money, a principal sum of money charged by mortgage or charged on land, is more than likely always going to arise in one of three ways:  by contract – I said, “more than likely always” - is most likely, in the majority of cases, to arise pursuant to contract, specialty or statute and Parliament will know that there are provisions which deal with the general limitations which apply to those species of causes of action.

But Parliament has chosen section 26 to deal not with the species of cause of action, but with an action or a kind of relief that is sought. The kind of relief is recovery of a principal sum of money charged on land, and has dealt with that kind of relief especially. Now that, in our submission, makes it a special provision which relates to actions for the recovery of a principal sum of money charged on land because that is the very thing it is directed to.

EDELMAN J: Are you assuming then that in section 26 there is no difference or underlying difference between an action to recover money in personam and an action effectively in rem?

MR DOYLE:   Yes.

EDELMAN J:   For example, in Levy v Williams, Sir Leo Cussen accepted the submission by Sir Owen Dixon that a provision in the nature of section 26 could apply to a remedy against the land itself, by order for sale or mortgage or for receipt of rents.

MR DOYLE:   Yes.

EDELMAN J:   That is a very different type of action, is it not?

MR DOYLE: It is. But it is not – sorry, it is not in issue in this proceeding, nor in a number of cases to which I will take you, that the remedy to recover a judgment for money is one to which section 26 applies. Indeed, it speaks of an action to recover a principal sum of money and the action is described as proceedings on foot. Now, there was an attempt in the 1800s to limit it to actions out of the recovery by selling land, and that has failed and that is not being urged today, it is not the foundation of the reasons below.

EDELMAN J:   This is the pre‑Sutton v Sutton type cases?

MR DOYLE:   Correct.  So that it ought to be accepted that it extends at least to actions in court to recover a judgment for money.  The language itself has suggested that that being what it is directed to, even if it captures other things.

EDELMAN J: But once you accept that that is encompassed within section 26, even though those type of in rem actions are not exhaustive of section 26, does that not mean that section 26 is not the special type of provision for dealing with the personal action?

MR DOYLE: It is the special type of provision that deals with the relief being sought. The kind of relief being sought is the recovery of a sum of money charged on land. The means by which that occurs might depend upon the nature of the action you pursue. But the thing which section 26 seeks to deal with is confined to actions for the recovery of a sum charged on land by whatever means and, the point we emphasise, pursuant to whatever cause of action whereas each of sections 10(1)(a), (d) and (3) are concerned with the nature of the underlying cause of action – they are general.

They apply to all contract claims, all tort claims, all specialty claims and all enactment claims. The one thing I can say about section 26 is Parliament has chosen as the thing which it operates upon as being the identification of the action of a particular kind and that is what makes it the specific thing dealing with an action of that particular kind, in our submission.

KIEFEL CJ:   Characterised by reference to the land, the challenge or security.

MR DOYLE:   That is so, characterised by reference to it being an action to recover a sum of money charged – mortgaged or charged – on something.  Historically, it was confined to land that has been extended to other property.

KIEFEL CJ:   We do not have the pleadings here but the primary judge, at paragraph [7], identifies the action as in the nature of recovery of a debt.  It is just a simple proceeding for debt.

MR DOYLE:   Yes, and your Honours do not have the pleading.  It refers to the fact of the charge on the land, but it is action for a money sum rather than for end of possession and sell the land.  That is true.

KIEFEL CJ:   Yes.

GAGELER J: You do not go so far as to say that the subject matter of section 26 is a subset of the subject matter of section10, do you?

MR DOYLE:   No, but it is likely to overlap to such – could I approach it this way.  Our learned friends have hinted in their submissions that there might be some things where there is money charged upon land which does not arise by virtue of contract, specialty or statute and that is possible.  So it is not entirely a subset.  But for the vast bulk of the circumstances, certainly for the entirety of the circumstances in which reported cases have been concerned, it has been a subset because the nature of the entitlement to the money, which is itself a charge on the land, has been pursuant to contract, specialty or statute.  I hope I have answered your Honour’s question.

GAGELER J:   Yes. 

MR DOYLE:   I am sorry, I should still finish with Justice Fraser.

KEANE J:   Statutory debt secured on land would be a subset of statutory debts.

MR DOYLE:   Yes, that is so, as would a contract debt secured on land be a subset of contract, claim and a speciality and so on.  In each case a small portion of the entirety of the relief that might arise under contract, under speciality or under statute and recognising there might be some scope for operation outside for charges which arise independently of any of those things.

Your Honours understand ‑ I am going to move from the judgment now to our submission about the construction. I will repeat myself, if I may, that our submission is that the sections operate to give rise to defence only to an action of a particular kind, that is, an action of the kind identified in subsection 10(1)(a) or 10(1)(b) or 10(3), and not to an action of the kind identified in 26. That follows from the words, which I will take you to. An alternative approach which also follows from the language of the statute is that section 26 is the specific provision which would operate to such an action as we have here so as to displace the operation of section 10. In our submission, those conclusions are supported by the language and by authority and are necessary really to give some sense of operation to section 26.

In terms of the language, can we ask you to go back to the Act, please, in volume 1 of the joint book of authorities, at tab 3. There are, it is fair to say, a small number of indications which we will take you to. The first I have already mentioned and that is that a great many of these sections focus upon as the gateway as an indication of an action of a particular kind. So they are taking section 10(1) as an example. It is an action of a particular kind being one founded upon a civil contract or one founded upon quasi contract and so on. So that the Parliament has selected as the gateway for the operation of this section the identification of the proceedings as being of a particular kind and that is true of virtually all of the subsections of section 10. It is also true of 10AA and of course 26.

A limitation period is defined by reference to when the cause of action arises but you have to ask and answer the anterior question: what is the nature of the action which the section seeks to capture? Section 26 in particular, as we have said, does not refer to causes of action at all but requires a characterisation of the nature of the proceedings as being a claim for a particular kind of relief and these kinds of provisions have traditionally been construed as not extinguishing the cause of action but as amounting to a bar upon the remedy. And that, too, is a recognition of the distinction between a proceedings and an action of a particular kind and the underlying cause of action.

Now, often that may not matter, but it matters here because section 26 is not dependent upon the identification of a particular underlying cause of action. So an action of the kind within section 26, we would submit, is available even if an action of the kind under section 10(1)(a) is barred because there is no extinguishment of the cause of action.

The second thing we point to – and it is an obvious point – is that there is, plainly, going to be overlap between various of these sections.  There has always been recognised overlap between claims for breach of contract and tort.  And it has never been the case that someone whose action for breach of contract is barred but their action for breach of ‑ for a tort is also barred merely because the earlier has expired and often the contract claim is the earlier in time.

Now, for those, we recognise there is the added complication, because there are different causes of action – this is a point that our friends urge ‑ but that is not the only overlap, the overlap as I have identified relevant to our proceedings is with section 26 which does not identify – it is agnostic as to the cause of action.

And Parliament, in our submission, must have appreciated there would be an overlap between sections 26 and 10, and must have intended the difference to have some meaning. That is, section 10 which talks about actions of a particular kind which can be tied to a nature of a cause of action, and section 26 which talks about actions of a particular kind that is agnostic as to the cause of action but describes the relief you seek. And the way we urge it enables those two sections to be given a harmonious operation, but the way it was decided below fails to do that.

The third matter of language we point to is in section 10. Your Honours will note section 10(3), which is the specialty provision, and then section 10(3A), which says ‑ as your Honours can read. So this is an instance where Parliament has explicitly said that the 12‑year limit for actions upon a speciality does not affect the shorter period prescribed by another provision. There are, in fact, shorter periods prescribed by the provisions. One, for example, is section 25. And another, which deals with actions to recover rent. And one may in fact be section 26(5), which deals with interest.

Now, on the core reasoning of the majority, a Court would reason that limitation periods establish prohibitions and not rights, that prohibition is in favour of a debtor, and when it arises first it gives rise to a statutory defence, so that basically section 10(3A) was unnecessary. As the longer provision, it will never affect the shorter one.

Now, that is a view which Parliament cannot be taken to have endorsed because it saw fit to introduce section 10(3A). The same point, we would submit, arises from the opening words of section 10(1)(a), where it says, “subject to section 10AA” which gives a shorter period for defamation proceedings and also from the opening words of section 10A, which is on page 19 of the book.

GAGELER J: Was section 10(3A) inserted by amendment?

MR DOYLE:   It was, yes.

GAGELER J:   Is there any relevant history to that amendment?

MR DOYLE: No, not that I have been able to detect, I am sorry, your Honour. So the same point arises with respect to the opening words of 10A(1). It is not so much how they operate that matters, it is the fact that Parliament has chosen to introduce them is an indication that Parliament did not view the Act as operating in the way in which the majority, at least, found it is to apply. And the final point, which I have probably laboured sufficiently, is that section 26 on the construction adopted by the majority, is robbed of its evident intended operation.

EDELMAN J: Would you accept that if your client had attempted to appoint a receiver or had attempted to sell – have the land sold, that that would be caught by section 26 and not by section 10?

MR DOYLE:   Yes, that is if – do you mean by court process sought to have a receiver appointed?

EDELMAN J:   Or by contract. 

MR DOYLE:   Well, if it is by contract it is not caught by the section at all.  We are only concerned with proceedings ‑ ‑ ‑

EDELMAN J:   Yes, yes.  Yes, by court process. 

MR DOYLE:   Probably.  The difficulty might be in describing it as an action to recover a principal sum of money, but one expects that the point of persuading a court to appoint a receiver is to realise by sale to recover.

EDELMAN J:   Well, before Sutton v Sutton, that was the only operation of provisions like section 26, was is not?

MR DOYLE:   That was said to be the only operation.

EDELMAN J:   Yes.

MR DOYLE:   Sutton v Sutton changed that, that is true. Of course, if it is under contract or specialty, possibly under statute, the likelihood of having to come to court for those things is very remote; it happens I suppose. It cannot really be thought that, in our submission, that Parliament intended section 26 to have such a narrow scope. The language is inapt to have it limited to such things.

That is the point we are now making. I have already mentioned it, that all of the cases that I will be taking you to, and I think all those that our friends take you to, are cases where the charge is said to arise either under contract, under specialty or under statute, and that amounts fall…..common experience would be for the vast bulk of the circumstances in which section 26 could have operation and which are already covered by specific provisions – other provisions in section 10.

Justice Fraser, in the passage I think I have asked you to read, made the point that on the approach being urged on him and, indeed, on the approach adopted by the majority, there would be no meaningful operation – occasion for the operation of section 26, except in most unusual situations. You will find no discussion in the reasons of the majority as to that question, that is, how to deal with the circumstance that on the construction adopted, section 26 is robbed of either all, or substantially all, operation.

EDELMAN J:   That is what I do not really understand.  If you have a charge over the land and your six years expires, you can apply to – you can bring an action for the appointment of a receiver in the sale of the land. 

MR DOYLE:   Yes. 

EDELMAN J: So, there is no real prejudice and section 26 ensures that there is a long stop for those type of actions.

MR DOYLE:   If one is to construe – to arrive – I will start again if I may. In the environment in which section 26 has been understood as to be concerned only with realisation out of the proceeds of land in some way, in the pre‑Sutton v Sutton environment, one would read section 26(1) as being concerned with proprietary remedies to effect sale or to take possession and receive the rents. But that is not the way the section has been understood to operate now for a very long time, and it is not urged as its operation now.

Now, we do not say that it cannot operate in those circumstances, as plainly it can, but it is a narrow aperture for its operation because it is concerned with actions and most occasions the appointment of receivers would be things occurring outside the scope of court process. 

EDELMAN J: The broader operation makes a lot more sense if one were to see the practical working out of the operation of these two sections as being a circumstance where one party claims a debt, the other party then has to decide whether they are going to rely upon section 10 limitation period. If there is a seven‑year time period that has expired, there might be a lot of sense in not relying upon the section 10 limitation period if they are going to be immediately met with the appointment of a receiver.

MR DOYLE:   Your Honour, in a sense, if the appointment of a receiver remains the viable alternative and if that is necessary to come to court to achieve, why bother reading section 26 down in the way the majority does? What is the utility in saying you cannot – doing what the Act actually says:

An action shall not be brought to recover a principal sum –

It sounds like an action to recover money but let us read it a being limited in some way to an action to do so by pursuing the land. 

What is the point of reading it that way if the answer is the one your Honour has just put to me, that a mortgagee, confronted with such an intention would say, “Bad luck, I am going to sell it.  Do not worry about giving me the money, I am going to sell your land”.  And it is that sort of lack of utility of the construction which the majority adopts, which we would urge being against the adoption of it. 

EDELMAN J: I think the point I am putting to you is more the opposite, that section 26 in practice is really the only provision that is likely to have any operation in circumstances where there is a charge over the land, either in a contract case or in a case involving an enactment, because in practice the only limitation period either on a personal action or on the in rem action that is going to matter is the 26 limitation period.

MR DOYLE:   If I have understood you correctly, we would adopt that.  That is, the approach which found favour with Justice Fraser and with Justice McPherson in the Douglas Morris Case is to say this is a special provision that does apply to the exclusion of section 10.

So where you are seeking to recover money charged on land by court action, be it judgment or order for possession or whatever it turned out to be, it is to be done by section 26. That reflects in part the law’s historical favouring, if you like, of the position of someone who was owed money but charged on land. There is reference to passages of that in ‑ ‑ ‑

EDELMAN J: Your client never turned around and said, “Well, if you are going to rely on your section 10 shorter limitation period then we will seek to have a receiver appointed”.

MR DOYLE:   No, because my client – well, I am not sure whether my client did or did not say that, your Honour.  But in terms of the conduct of this proceeding, my client said you do not have that limitation offence to our claim to recover a sum of money charged on the land.  I am now dealing with why that is so, but recognising that whilst in our written submissions we put forward the proposition that 26 should be rendered wholly otiose, that is probably not right because there are arguably some circumstances in which charges can arise outside contractual relationships or outside specialties or statute and it is possibly also there are enforcement processes which are not for the recovery of the sum of money, and one need not dwell on that.

The one thing that the language of section 26, in our submission, has been understood uncontroversially to capture is an action to recover the principal sum if it is a sum charged on land, including an action to recover a judgment, a money sum. The contrary was not asserted below. It is not asserted here, in fact. So it is accepted that 26 captures that. The language of the section itself would seem to be directed to such a thing, even if it also captures some other kinds of remedy like the court process.

We would urge the plain intention of Parliament when enacting section 26, it must have recognised that there is going to be scope for a very large overlap with other provisions ‑ section 10 in its various subsections. The majority does not confront how you deal with that because the process the majority has employed leads to really taking that very large scope out of the operation of section 26 because of the shorter periods described in the contract or for enactment or about the same period for the speciality, in which case why bother if section 26 does not add anything. That is the proposition. As we said, you will not find in the majority any discussion of how to resolve that topic.

We did want to mention that the law has, at least historically, treated principal sums of money due under a mortgage as a sort of special case because of its being treated in effect as recovery out of the land, and Justice Dalton touches upon that in paragraph [69] of her reasons, which we would ask your Honours to read.  That is at page 59 of the core appeal book.  Also in paragraph [106] at page 67 her Honour sets out some extracts from the United Kingdom Law Reform Committee dealing with the similar topic.  Can we ask you to read paragraph 3.66.  That special or preferential historical treatment is something which we would submit needs to be recognised, and the construction which we urge does that, but the majority does the reverse.

It has been suggested, as you would have seen in the respondent’s submissions, that section 26 does have residual operation because of the possibility – I will do my friends some misjustice – but the possibility of there being charges which arise independently of contract, statute or specialty. We accept there are such things. There is – well, not wholly independently of contract, but a vendor – sorry, a purchaser’s lien to secure payment to the purchaser for which a payment has been made but the transfer has not been effected. But as to that, can we ask your Honours to go to section 10(6)(b). It is provided in 10(6):

This section—

(b)does not apply to a claim for specific performance . . . or other equitable relief, save so far as any provision thereof may be applied by the court by analogy –

and so on. So that, even as to the kind of charge that our friend, we anticipate, has in mind, section 10(6)(b) does apply to it. It tells you that the other time limits of section 10 do not apply except by way of analogy, so that whatever work remains to be given to section 26 is very narrow. It is really only against the possibility of the analogy not being employed. Now, we recognise it is a theoretical possibility but, again, it cannot be contended that is the intention Parliament had in mind when enacting section 26.

Other kinds of charge so‑called may arise.  The vendor’s unpaid lien, in our submission, would arise under the contract; the vendor’s right to be paid will arise contractually.  So that is not an example that our friends can rely upon.  Things like solicitors’ liens, pawnbrokers’ liens, other possessory liens, again they are all likely to arise contractually.  So it might not be right to submit that 26 is completely otiose but, nonetheless, the ultimate question must be what is Parliament’s intention.

Even if there is some scope for obscure or minor operation of section 26, it cannot be consistent ‑ that that was the intention of Parliament cannot be consistent with the language used, which is expressed far more broadly. The language of mortgage or charge on property is not so narrow as to be limited to charges imposed by operation of law, and it has never been held to be so. So that the substance of the submission we make is that the majority approach really robs 26 of its intended operation and leaves it with very little work to do, contrary to what we would urge to be the evident intention of Parliament.

Can we take you then to some authorities? The weight of the authority, we would submit, supports the appellant’s approach. We have dealt with, in our written submissions, a number of Australian and United Kingdom authorities and none of them deal directly with section 10(1)(d), which is the enactment – the limitation in relation to enactments. They all concern either section 10(1)(a) – the 10(1)(a) contract, or (3), which is specialities, and 26. But, they are, in our submission, instructive as to the correct approach.

We propose taking your Honours to six cases. The first three, we accept, do not involve a consideration of section 26 at all in its relationship with section 10 but do reflect the characterisation approach that we urge my gateway proposition as I advanced earlier as illustrative of the approach that we urge. The second three all concern the operation of section 26 with some part of section 10 or its interstate or international analogue.

Can we ask you to take up volume 2 of the joint book of authorities to Williams v Milotin in this Court.  It is at tab 46.  The plaintiff was injured in a road accident.  A limitations issue arose in a somewhat unusual way.  In the headnote, could we ask your Honours to read sections 35 and 36 which are extracted there?  So, section 35 provided a six‑year limitation for an action:

which formerly might have been brought in the form of actions called actions on the case –

And, section 36 set a three‑year limitation period for:

All actions for assault trespass to the person –

The Court held, at page 470 of the judgment, in the paragraph commencing, “At that time” – the Court held really that the action could have been framed as trespass to the person or called an action on the case or trespass on the case.  So, it could have fallen in both of those provisions.  There was an argument about whether the words in section 35:

save as otherwise provided in this Act –

the material, and that was rejected for reasons we need not trouble your Honours with.  So, this is a case where the proceedings fell within both sections.  The limitations point was taken against the plaintiff – his proceeding only being commenced more than three years but less than six years after the accident.  The approach of the Court was to read the two provisions together and construe the shorter period as applying only to the particular action to which it referred and not affecting the alternative way that the action could have been framed and that is, as I have said, notwithstanding that it could have fallen in both. 

Can I ask your Honours to go to page 473 of the judgment and read the bottom paragraph of that page and across to about point 2 on the next page?  Then on page 474 from about halfway down there is a sentence commencing “It happens in this case”, we would ask you to read to the end of that page.  We recognise, of course, that the reasoning includes referring to there being two causes of action.  And, the respondent contends this is the reason to distinguish the case.  We would urge it is not. 

The fact that there were two causes of action, one covered by each section, is not in principle distinguishable from the situation here where one action of a certain description is covered by one section and an action seeking relief of another kind – there is another action of another particular description – is covered by section 26. In Milotin, the actions fell within each of two sections.  The Court rejected the construction that you apply both and that all actions were barred when the first period expired. 

Can we move to the next decision, which is in tab 43 of that bundle.  It is a Court of Appeal decision in Victoria of Slaveska v State of Victoria.  Mrs Slaveska commenced proceedings against a number of police officers alleging assault, false imprisonment, malicious prosecution, negligence and a raft of other causes of action.

The limitation issue arose in relation to her claim.  The relevant provisions were in Part IIA of the ACT.  If your Honours go to paragraph 58 of the reasons, that is page 147 of the reasons, you will see section 27B(1):

This part applies to a cause of action for damages that relate to the death of or personal injury to a person, regardless of whether the action for damages is founded in tort, in contract, under statute or otherwise.

And then back to section 27D, which is on page 145, there was a three‑year limitation for actions for personal injury. And there was in section 5(1)(a) ‑ I will not take you to it ‑ the usual six‑year limitation for other tortious actions. The defendant argued that Part IIA applied because it was a cause of action for damages that related to personal injuries and so it was said it fell within section 27D, and not the more general six‑year period that applied under section 5(1)(a), which is the equivalent of our section 10(1)(a).

It was held as to each cause of action, the proper way to construe the two sets of provisions together was consistent with the approach in Milotin.  The shorter limitation period only operated to an action insofar as it sought relief for being damages for personal injury and not otherwise.  Your Honours, turn in the reasons to paragraph 107, and if you read the first sentence which sets out Mrs Slaveska’s, that is the plaintiff’s, contention.

Then we would propose asking your Honours to read paragraph 109 and 110 on page 159.  In the quote from the decision of Zhang to which their Honours refer, if you go over the page to page 160, it is the passage in the middle “In the result”, could we ask you to read that paragraph, please.  Then their Honours, the reasons in paragraph 111, I would ask you to read.  Then after a reference to Williams v Milotin in 112, could we trouble you to read paragraph 113.

GAGELER J:   So what are we getting out of this, for present purposes?

MR DOYLE:   It is the same characterisation approach that we urge.  That there was an action, which was a number of different causes of action, but each one of them was susceptible of being described as relating to personal injuries, but also relating to other things, so that for each one cause of action, it fell within two sections.  The court approached it on the basis that you cannot – the operation of the shorter limitation period only applies to the action which meets the description of that shorter limitation period, and not the action which meets the description of the longer limitation period, even if it is the same cause of action.

GAGELER J:   As I understand the first way you put your case, it relies on there being a single characterisation of any given action.  Is that right?

MR DOYLE: It relies upon Parliament selecting a single characterisation of a proceeding if it is to be statute barred under section 10(1)(a).

GAGELER J:   Does this case you have just taken us to assist in establishing that even the Victorian Parliament chose a single characterisation approach?

MR DOYLE:   Yes, your Honour, because if Ms Slaveska is suing for assault – it does not matter ‑ all of her different causes of action contain an element that relates to damages for personal injury and some other things that she wished to agitate.  It is only one cause of action.  The argument was that you fall within two provisions but the limitation defence arises once the first one has been satisfied, the three years one.  The court said that is not the right way to approach the construction of the limitation.  The limitation provision applies only to an action insofar as it meets the description of the shorter limitation period.  That is consistent with what we are urging.  Parliament chooses the kind of proceedings which it says cannot be commenced after a certain time and it chooses – it does not say as a result the whole cause of action goes.  You can still bring a proceeding which falls within a later description, a description allowing a longer period despite the expiration of the earlier.

We have taken you to this because it follows the approach we would urge in Milotin but does so in respect of a case where it cannot be distinguished on the basis of there being different causes of action because the reasoning employed by the court applied to each cause of action.  Yes, there were multiple causes of action, but the reasoning applied to every one of them and it is, in our submission, consistent with what we urge.  So I hope I have answered your Honour.  But we do not say that Parliament has set out to characterise all actions in a particular way.

What it has done is provide limitations by reference to proceedings of a particular kind and not of other kinds. So that I would be overstating it to say that section 10(1)(a) would say an action for a debt on a simple contract cannot be brought after six years, but an action for recovery of a sum of money charged on land can be brought for another six years. That is the effect of the construction we contend, because that is the characterisation of the operation which Parliament gives to those respective sections, and consistent with its reasoning.

We were going to take you to her Honour Justice Schmidt’s reasons in Zhang.  I will not bother troubling your Honours with it.  It is very similar to the approach taken in Slaveska, so I will move on if I may.  That was the third of the three non‑directly applicable cases I was going to take you to.

Can I move to the three more directly relevant, the first of which is Wilkinson v West Bromwich Building Society. It is still in volume 2 at tab 45. In that case, your Honours, the Wilkinsons borrowed money from the building society. It granted it a mortgage – or sorry, they granted it a mortgage over their property. They defaulted. The building society entered possession and some years later sold the house and there was a shortfall. The building society sued for the shortfall and the issue concerned whether the claim was statute‑barred. The borrowers relied upon the equivalent of our section 26, strangely enough. They contended that the right to receive the money, which is the trigger in section 26, accrued when they defaulted, and that had occurred more than 12 years earlier.

The building society contended that the section did not apply because when it sued nothing was secured by mortgage on property and it contended that the equivalent of our section 10(3) ‑ the specialty provision ‑ applied which gave it 12 years, it said, from the date when the shortfall was quantified; that is, upon sale. The matter ultimately found its way to the House of Lords. If your Honours go to paragraph 6 of the reasons his Lordship, Lord Hoffmann, starts by saying:

It might appear to make little difference –

He says that because the 12‑year period applies both under section 26 and under section 10(3). Can we ask your Honours to read that paragraph. And then, in paragraph 7, you will see his Lordship says:

The appeal therefore gives rise to two questions.  One is a general question of law.  Does section –

26 – that is our equivalent:

apply in a case in which an advance is originally secured by a mortgage but the security is realised (or released) before proceedings are commenced?

And the second one we need not trouble you with.  And if your Honours could read paragraph 8 and then paragraph 10.  His Lordship says:

I think that the Bristol and West case [2003] 1 WLR 284 was rightly decided.

We will be taking your Honours to that shortly.  If your Honours would then read the balance of 10.  His Lordship there uses the language of “classification”, “designation” and “appropriate rule”, which, we would urge, is the kind of language employed when a court is seeking to reconcile the two, possibly, different operating provisions rather than the approach taken here, which was to say both apply.  That is, by here, I mean in this case.

And if your Honours would then turn to paragraph 21 his Lordship went on to consider the alternative question but he says:

That means that even if the appropriate limitation period had been the 12 years prescribed by [the specialty provision] the cause of action would have arisen more than 12 years –

later. So that on either event it was barred, but what is plain, in our submission, is that his Lordship is not applying both provisions and saying that the shorter one operates but is determining because it was an issue in the proceedings whether section 26 was the appropriate rule and made a decision about that but went on to consider even if it had been section 8 the result would be no different.

This is the first of the decisions where the question was in relation to a judgment seeking a money sum where the contest was between the operation of section 26 and 10(3) the House of Lords asked the question: what is the right characterisation of the appropriate rule and relied upon section 26. I am putting it in that, the numbers of our section rather than the section used in the case. They relied upon the operation of section 26 and not section 10(3), which is plainly inconsistent with the approach of the majority below.

The second case we want to take you to is the Bristol and West plc v Bartlett, which is in volume 1 of the joint book of authorities, tab 33.  The facts, your Honours, were essentially the same as in the Wilkinson Case.  The borrowers had borrowed money secured by mortgage.  The bank had defaulted – sorry, they defaulted.  The bank had taken possession, sold the property for a shortfall and sued for the shortfall.

A limitations issue was raised and in paragraph 4 of their Lordships’ reasons you will see set out the various provisions. Section 5 is the analogue of our section 10(1)(a). Section 8 is the analogue of our section 10(3) and 20 is the analogue of our section 26.

The borrowers contended that, because the land had been sold, the debt was a simple contract debt and so subject to the six‑year provision of section 5 and that was rejected for reasons I will not trouble you with.  The court held it did not cease to be at least a specialty debt merely because the land had been realised.  The lenders urge that it was a specialty and subject to a 10‑year limitation under section 8.

We would ask you to go to paragraph 26 of the reasons.  You will see, in the third sentence, it says “Mr Grant”, who appeared for himself, as it turns out:

pointed out that the claim contained a large sum by way of interest accruing –

between certain dates:

If, therefore, section 20(5) –

that is our section 26(5):

applied rather than section 8, most of that claim would be time‑barred.

So that the issue of whether to apply our section 26 or section 10(3) was relevant and because it affected a large part of the claim for interest.

We ask your Honours then to read paragraph 27, please. The respondents in their submissions dismiss this case on the basis that the point that I am now addressing was academic and that, of course, misstates the approach taken by the members of the court. It was academic as to the principal, but it was far from academic with respect to the interest. And the disposition of the interest turned upon whether section 26 applied or section 10 applied. And it was resolved and held in this case that section 26 applied because it was money secured under a mortgage, which meant the characterisation or description of section 26. That provision took precedence over – that is the language used by members of the court – over the general specialty provision. And it is plain it is not a case where both provisions were applied in the way in which the majority here approached the matters.

NETTLE J:   The reasoning is in paragraph 30, that:

“any principal sum of money secured by a mortgage” ‑

questions that refer:

only to a principal sum secured by a mortgage at the time when action is brought –

or when the cause of action accrued.  That is the ratio of the decision.

MR DOYLE:   That is why it is still captured within 26.

NETTLE J:   I understand.  So how does that help in the construction of the provisions with which we are concerned?

MR DOYLE:   Because notwithstanding that it had been sold, the question of whether it was charged on land was to be judged at the time that the cause of action arose.  It would nonetheless be a sum due under a speciality, or a sum due to seek to recover a sum of money charged on land.  Your Honours had to answer the question, which of those two sections applies to the action to recover the interest component?

NETTLE J:   No, no, it does not.  What his Lordship asks is the question, is it:

more natural to read the subsection as applying to mortgages existing on the date on which such right accrued.

It is simply just a question of construction of the particular words of that provision.  It is not a contrast with another supposedly more general provision.

MR DOYLE:   That is true of that section, but perhaps only of that paragraph.

NETTLE J:   That is the decision, and that is what is cited by the House of Lords in a case that you previously took us to, West Bromwich, as to the authority of pronouncement on which their Lordships based the decision in that case.

MR DOYLE:   It is part of the decision. 

NETTLE J:   Right.

MR DOYLE: Could I put it differently. Had it been determined that it was not within the purview of section 26, because the question, is their money charged on land, needs to be decided at the time the proceedings have commenced.

NETTLE J:   Yes.

MR DOYLE: Let us assume that section 26 would not apply, because it had been sold by then. So they say, “No, it is at the time the cause of action arose”. And for that reason, the contention that 26 is incapable of applying is dismissed. But the remainder of the question of what happens to the interest? And in paragraphs 32 and 35, their Honours conclude that is to be determined by not section 10(3), but by section ‑ ‑ ‑

NETTLE J:   20.

MR DOYLE: ‑ ‑ ‑ 25 – that is, the application of the analogue of our section 26.

NETTLE J:   All right.

MR DOYLE: That topic is only relevant if one is choosing between the application of section 10(3) and the application of section 26 because as far as the principal is concerned ‑ ‑ ‑

NETTLE J: What we are driving at is this. The reason it was contended in this case that section 20 did not apply was because it was contended that the words “secured by a mortgage” referred to the date of the – rather than to the date on which the cause of action accrued, the date on which the proceeding was brought. Once it was resolved against that contention, then it was plain on the language of the section that it did apply. It was not a matter of contrasting it with the more general provisions of another section, as we are attempting to do.

MR DOYLE: With respect, it is doing that, it is doing two things. In our case, you accept from the outset that the action falls within two provisions, 10(1)(d) and 26. In this case, there was an anterior question, does it fall at all within section 26?

NETTLE J:   Yes.

MR DOYLE: Because the question was, is that to be judged at the time the action was commenced, or at the time the cause of action arose? And the members of the court decided it was the latter, at the time the cause of action arose. But there still remained a question which was academic as to the principal but relevant as to the interest, of whether the period of limitation was 12 years or six years. It is 12 years if you apply the specialty provision; it is six years if you apply section 26(5).

NETTLE J:   Yes.

MR DOYLE: Their Lordships go on to consider that question in 32 and 35, and resolve it in favour of that which we would contend for, namely, that 26 is the specific provision which takes precedence over the general provision, as apposite to actions of the kind described in section 26. Now, in that case, it ended up with a shorter limitation period applying but it was a choice between those two, not the application of both, but a choice between those two.

NETTLE J:   Yes, I see.  Thank you.

MR DOYLE:   As your Honour sees.

KEANE J:   In a sense it is sort of a fortiori, is it not?  As one sees from paragraph 32, that it is on the basis that section 21 continues to apply.

MR DOYLE:   Yes.

KEANE J:   So that here there is no question about the mortgage having been discharged, the security having been discharged.

MR DOYLE:   That is so.

KEANE J:   That is the point they are making, is it not?

MR DOYLE:   That is it.

KEANE J: That is the point of paragraph 32, as the conclusion to the question, section 8 or section 20?

MR DOYLE:   That is so, which, as your Honour understands our submission.  Now, can we ask you to take up our learned friend’s written outline.  That is not the short one, but the submissions they put in.

KIEFEL CJ:   Are you coming back to the Australian and New Zealand Banking Group Case?

MR DOYLE:   I shall be shortly.  To paragraph 60 of our learned friend’s submissions, where they say:

The authorities relied on by –

us, including the one I have just taken you to:

do not assist the Appellant for the following reasons:

(a)those authorities concerned mortgages ‑

It is not a basis for distinguishing them, because this – the section captures both mortgages and charges and this is a charge:

(b)the courts did not say that one provision applied to the exclusion of the other ‑

With respect, it did.  And it says: 

(c)to the contrary, in Bartlett’s case the Court of Appeal merely said that the “the specific limitation provisions relating to mortgages take precedence over ‑

Well, that is rather to the contrary.  We would urge that is the point of the decision:

(d)in any event, the approach to statutory constructed relied on is contrary to that now prescribed by the High Court ‑

We will deal with that in reply if we need to.  And then as it said in (e):

(e)Bartlett’s case was a case in which it made no difference which provision applied as far as the principal amount of the loan was concerned, so that the observations relied on by the Appellant described by the House of Lords . . . as being “academic”, were obiter.

Well, it is right to say that as far as the principle is concerned, it is obiter, but the ratio of the case relevant to this concerned the disposition of interest and that was not obiter for the reasons we have addressed. 

Can I ask you then to go to the ANZ v Douglas Morris decision which is in volume 1 at tab 28.  This was a decision of the Full Court.  The bank had taken some scrip liens over shares as third party security, and sums which may become due by a customer of the bank.  The customer defaulted.  The bank was owed $22 million as it turns out.  It made demand upon the grantor of the lien.  The shares were in a company which had been the subject of a takeover and those shares were replaced with substitute shares and some cash and the bank sought declarations as to its right to a lien over those.  A limitation issue arose - and if your Honours go to page 482 of the judgment, about line 19 you will see Justice McPherson says he is now passing to the question of whether:

KIEFEL CJ:   Yes, thank you.  The Court reserves its decision in this matter and adjourns until 9.30 am tomorrow for pronouncement of orders, and otherwise until 10.15 am.

AT 3.04 PM THE MATTER WAS ADJOURNED