Brisbane City Council v Amos

[2018] HCATrans 186

[2018] HCATrans 186

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B8 of 2018

B e t w e e n -

BRISBANE CITY COUNCIL

Applicant

and

EDWARD AMOS

Respondent

Application for special leave to appeal

GAGELER J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 14 SEPTEMBER 2018, AT 10.25 AM

Copyright in the High Court of Australia

MR P.A. LOONEY, QC:   May it please the Court, I appear with MS A.L. WHEATLEY of counsel for the applicant.  (instructed by City Legal, Brisbane City Council)

MR F.L. HARRISON, QC:   If the Court pleases, I appear with MR P.G. JEFFERY for the respondent.  (instructed by Keller Nall & Brown Solicitors)

GAGELER J:   Yes, Mr Looney.

MR LOONEY:   Your Honours, a grant of special leave will enable this Court to address the proper approach to the application of limitation provisions where more than one provision is said to apply to an action.  The relevant special leave questions are set out in the application book at page 70.  The first of those special leave questions expands upon the summary that I have just identified.  As your Honours will see from page 70, there are three alternatives that are identified in paragraph 4 as to the special leave questions.  The first is:

is it necessary to apply both provisions so that the whole of the action is barred once any shorter period has expired –

We would identify that as being the majority’s decision below.  The second is:

does each provision apply according to its terms to that claim which directly falls within its terms but not otherwise –

That is what we identify as being the applicant’s preferred correct approach.  The third is:

is the right approach to identify the provision which applies to the exclusion of the other, to the plaintiff’s claims -

We put that as the alternative correct approach and the one adopted by Justice Fraser below in the dissenting opinion. 

GAGELER J:   You point to a two/two split in the Supreme Court.  You point to inconsistency of the majority with the earlier dicta of Justice McPherson.

MR LOONEY:   Yes.

GAGELER J:   What else do you point to to justify the grant of special leave?

MR LOONEY:   Aside from the error, the width of the application of this issue goes to, firstly, within Queensland, to all of the relevant local authorities.

KEANE J:   But more broadly the point is that this approach to construction of the Limitation Act has the consequence that if the Limitation Act can apply to a particular claim in more than one respect, the stronger aspect of the claim may be statute barred, even though it is given a longer period of limitation. 

MR LOONEY:   Whether or not it is the stronger – it may be the stronger – it is simply a question of ‑ ‑ ‑

KEANE J:   It would be in cases of mortgages.

MR LOONEY:   Potentially so, and that is the second and wider aspect.  It does not just apply necessarily in Queensland and it does not just necessarily apply to local government.  Obviously, in other States, some of the potential conflict is resolved by statutory provision.  Therefore the wider question that would be before the Court on a grant of special leave here might not be applicable to every State, but it is also a question of being inconsistent with the High Court’s approach in the decision of Williams v Milotin.  In that case there was a clear, different approach to the assessment of which provision will apply where there were two causes of action identified.

GAGELER J:   I think we would be assisted by hearing from Mr Harrison at this stage.  Thank you.

MR LOONEY:   Thank you, your Honour.

MR HARRISON:   If the Court pleases.  Might I hand up three cases and one text?  If I may refer to Barnes v Glenton [1899] 1 QB 885 ‑ ‑ ‑

GAGELER J:   So the burden of your argument is that the decision of the majority is clearly right?

MR HARRISON:   Yes, your Honour.  If I could just run through these because I want to mention the fourth of them which is not before your Honour:  Equuscorp Pty Ltd v Lloyd [1999] 1 VR 854; Purcell v Electricity Commission of New South Wales (1985) 60 ALR 652 at 657 line 40, and that is also in 59 ALJR 689 at 692, column 1, FG; and an extract from Fisher and Lightwood’s Law of Mortgage, 3rd Australian edition at 210.  What is handed up is the entire section of Fisher and Lightwood dealing with limitation of actions, but I am seeking to refer only to page 434 in which the learned authors treat Barnes v Glenton as governing the law in, among other States, Queensland.

Your Honour, our principal approach, as your Honour foreshadowed, is that we support the reasons of Justice Dalton and submit that they accord with both Barnes v Glenton and with Equuscorp v Lloyd, which is a decision of the Victorian Supreme Court.  We would add, which we have not said in our written submissions, that as it was put in Equuscorp at 856, paragraph 11, it is to be presumed that in enacting the current provisions the legislature was aware of and had adopted the interpretation in Barnes v Glenton. 

Your Honours, that is our principal submission.  I turn now to deal with the various points that the applicant has made in its written submissions but which it has not addressed here.  The first argument that we would seek to address is the argument in which the applicant frames the matter as involving two causes of action by analogy with cases such as contract and tort where there are clearly two causes of action. 

But we would submit that section 26(1) is not concerned to identify a different cause of action but, rather, it identifies an additional feature of a cause of action, so the analogy with those cases is not helpful.  The applicant also seeks to draw comfort from the different terminology of “cause of action” in section 10 and “right to receive the money” in section 26(1) but gives no example of where the two would be different. 

It is submitted that it may be that the different terminology is to avoid argument about whether equitable claims fall within the expression “cause of action” which was used in section 10, whereas the right to receive a sum of money is used in section 26.  That explanation may be assisted by section 10(6)(b) which provides that section 10:

does not apply to a claim for specific performance of a contract or for an injunction or other equitable relief ‑

except where the limitation periods are provided by analogy, which suggests that section 26 may have been framed as a catch‑all for cases that are not caught by the specific provisions.  There is a hint of support for that, in our submission, in the judgment of Lord Justice Romer in Barnes v Glenton at page 890, where at point 6, Lord Justice Romer said:

The money sought to be recovered, though charged on land, could not be enforced, against the person who had undertaken to pay it, after the expiration of six years ; but the remedy against the land would not have been barred under that statute . . . That this was the position of things is clear from the cases of Toplis v. Baker and Brocklehurst v. Jessop.

The English report citations for those are respectively 30 ER 55 and 58 ER 906. They were concerned – not with anything analogous here – with lapsed legacies by a mortgagee to a mortgagor. His Lordship seems to be referring to the fact that, because the legacies had lapsed, the mortgages remained in force against the executor of the mortgagor notwithstanding the expiration of the personal cause of action. That is the only hint in Barnes v Glenton as to what the drafter was concerned with.

GAGELER J:   It is a very obscure hint from a very long time ago.

MR HARRISON:   It only goes to the extent of saying that there was something that needed to be remedied.  In any event, Justice McPherson in Australia and New Zealand Bank v Morris framed the test as choosing the more specific but it is submitted that that is not an accepted test of statutory interpretation; rather, the case is one first has to establish that the two provisions are inconsistent.  It is only when that happens that one makes a choice between which is the more specific and which is the less specific.  I have given authority for that – it is also mentioned in our written submissions – Purcell v Electricity Commission of New South Wales.

KEANE J:   Why is it not a matter of looking to the provision that applies specifically to the source of the right that is sought to be enforced?

MR HARRISON:   Because that does not take the case out of the other provisions.  Doing that is the equivalent, in our submission, of adding words such as, in the present case - as though the words “other than where the case comes with section 26(1)” were added to section 10.

KEANE J:   No, I am sorry, I was putting it to you on the footing that in terms of Justice McPherson’s approach to applying the specific provision - if one takes the approach where one looks at the provision which applies specifically to the particular case one can see that in that case there is a limitation period of 12 years.

MR HARRISON:   Yes, but Justice McPherson overlooks the way the section is framed being not “one may sue for a period of 12 years or 20 years” but, rather, that “one may not sue after” whatever number of years is specified.  In our submission, there is no occasion to look for a more specific provision because they are both capable of operating.

KEANE J:   Of course one can sue however long after the cause of action has arisen.  The question only arises when the defendant pleads the statute.

MR HARRISON:   Yes.

KEANE J:   It is then that one asks, “Is this a case within the prohibition?”  In relation to an action brought to recover a principal sum of money secured by a charge, the answer to that is you may not proceed with it, you may not bring it after the expiration of 12 years.

MR HARRISON:   But the answer is also, because there is no provision excluding section 10, you may not bring it after six years.

GAGELER J:   That is perhaps the question rather than the answer.

MR HARRISON:   Yes.  It may depend on the way one frames these questions intellectually.  If one looks at it in terms of Venn diagrams, one has intersecting circles.  There are cases that fall within one that may be cases that fall within the other provision, and cases that fall within both.  If they fall within both they are not taken out of the former; they fall within both.

The final matter that I would respectfully submit is that even if one adopted Justice McPherson’s approach it is far from clear that a provision providing for a 12‑year limitation for actions to recover a principal sum of money secured by a mortgage or other charge is more or less specific than a provision providing for a six‑year period for an action to recover a sum recoverable by virtue of an enactment.  They are the two that, in our submission, we have to compare here.  Each is very specific.  With respect, Justice Dalton was right in saying that one simply cannot tell which is the more specific.  In any event, those are our submissions, your Honours.

GAGELER J:   We do not need to hear from you, Mr Looney.  There will be a grant of special leave to appeal in this matter.  An estimate of one day would be appropriate, gentlemen?

MR LOONEY:   Yes, your Honour.

MR HARRISON:   Yes, your Honour.

GAGELER J:   Thank you.

AT 10.41 AM THE MATTER WAS CONCLUDED