Commonwealth of Australia v Dixon

[1988] HCATrans 330

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S98 of 1988

B e t w e e n -

COMMONWEALTH OF AUSTRALIA

Applicant

and

COLIN BERTRAM DIXON

Respondent

Application for special

leave to appeal

MASON CJ

WILSON J TOOHEY J

Dixon

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 9 DECEMBER 1988, AT 10.44 AM

Copyright in the High Court of Australia

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MR P.C.B. SEMMLER:  May it please the Court, I appear for

the applicant in this matter. (instructed by the

Australian Government Solicitor)

MR. B.K. THOMSON, QC:  May it please the Court, I appear

with my learned friend, MR G.J. HATCHER, for the

respondent. (instructed by David Bullard)

MASON CJ:	Yes, Mr Semmler.
MR SEMMLER:	Your Honours, although the decision of the

Court of Appeal in this matter was in relation
to a matter which was, on its face, interlocutory,
it is submitted that the effect of the Court of
Appeal's decision is to deprive the applicant of
its ability to rely upon a substantive defence

to the respondent's whole action under section 63

of the New South Wales' LIMITATION ACT and

that -

MASON CJ:	Mr Semmler, can I just explore with you for a moment what would happen if you were granted
special leave to appeal? Almost certainly, I suppose, there would be a cross-appeal in relation
to the procedural defences - - -
MR SEMMLER:	Yes, Your Honour, I would expect so.
MASON CJ:	- - - Under the New South Wales Act and the Victorian
Act.

MR SEM1LER: Yes.

MASON CJ:	So the Court would then be seized of the three
suggested defences.  But the problem would be that
in our consideration of the two defences which
you do not seek to agitate at the present time the Court would be handicapped in its consideration
of them by reference to, as it were, the difficulty
that confronts an applicant in striking out, namely, that the defences have to be shown to be untenable
and it was on that footing, of course, that the
Commonwealth did not succeed before the Court of
Appeal.

MR SEMMLER:  Yes, Your Honour. In relation to that, Your Honour,

could I say that if, in that event, Your Honours

were considering all three defences, Your Honours

certainly would be considering a matter of some

considerable importance in relation to whether or

not a defendant in the position of the Commonwealth

is deprived of its ability to rely upon any

LIMITATION ACT in proceedings commenced in the High

Court in one State out of time and then remitted

for hearing to another State. And, Your Honours,

it would be my submission that to clarify that particular problem it would be appropriate for

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Your Honours to deal with the matter, if Your Honours

were disposed to grant special leave to appeal, as a

substantive question of law rather than, simply, as a

strike out application.

MASON CJ:	But how can we do that, having regard to the way in
which this application was constituted as an
application to strike out? It was not a demurrer.
It was not brought up as a point of law to be
argued.  We would still be, as it were, hobbled
by the procedure.

MR SEMMLER:  Your Honours, I appreciate that. The Court of

Appeal elected to deal with it only as a strike out

application. There was no application by the

plaintiff, at first instance, to have the matter

dealt with as a point of law, and that is unfortunate,

Your Honours. But, at least, even if Your Honours

were dealing, in effect, with a strike out application
as a full appeal, what Your Honours had to say in

respect of those, what I would suggest,were very

important matters of general application, would

constitute authoritative guidance for other courts

and, indeed, for the court hearing this proceeding

at first instance.

MASON CJ:	But what you are really suggesting to us is that
we should depart from the accepted procedures and
that is what the Court is very loath to do.

MR SEMMLER:  Your Honours, if my friends were prepared

to consent to have the matter dealt with as a

substantive question of law by Your Honours, then

the problem that has arisen, that is, that at this

stage the matter is, on its face, an interlocutory

matter, would not apply because the further

problem is if Your Honours do not grant special

leave, the matter is heard at first instance,

it may well be that when the trial judge ultimately

decides that one or other of the defences does not or

does apply, that the parties will go through this

process again of having the courts, the Court of

Appeal and possibly this Court, determine the

questions which are at present before Your Honours.

MASON CJ:	But would there be any real difficulty in pursuing
that particular avenue? After all, if yourapplication is refused, having regard to the procedural difficulties in the case in terms of this Court
ultimately giving a substantial consideration to
the three suggested defences, you could have a trial
at first instance although, in effect, this defence
has been lost; the other defences are still available. Do they raise difference issues from this defence?
MR SEMMLER:	Yes, Your Honours, they do because they are

procedural and the whole question of the power of a

State LIMITATION ACT which is a procedural provision

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of a State LIMITATION ACT, to effect proceedings

remitted under section 44 of the JUDICIARY ACT

arises.

MASON CJ:	I follow that but I was rather interested in
issues of fact.
MR SEMMLER:	No, Your Honours, there are no issues of fact

which need to be determined here.

MASON CJ: Exactly.

MR SEMMLER:  Nor, in relation to any of the particular

provisions.

MASON CJ:	So that if the matter were to go to trial and the plaintiff were to succeed, you would have no
difficulty in arguing at first instance and on
appeal the three defences?
MR SEMMLER:	That is correct, Your Honour, yes.
MASON CJ:	And as far as an appeal to the Court of Appeal is concerned, unless other issues emerged as a
result of the trial, the matter could readily come to this Court. Indeed, it might be possible in
the circumstances to secure special leave to appeal
direct from the decision at first instance if no
other issues, as it were, clouded the case.
MR SEMMLER:	Yes, Your Honour, but the problem is that if

special leave is not granted in respect of the

section 63 defence, then that defence is lost

completely and there is no certainty that the

trial court would apply the other procedural

defences. Indeed, if Your Honours look at the

judgment of Mr Justice Hope in that respect, it

is quite clear that the Court of Appeal did not

conclude in unequivocal terms that those defences

were applicable, it simply took the view that they

were not so unarguable as to be worthy of being

struck out at that point. So that my submission

is that the importance of this particular

provision is that it is a substantive provision
which, if special leave is not granted in respect

of it, would have constituted the complete defence

to the respondent's action and will be effectively

and completely lost to the applicant.

MASON CJ:  Why? Why can you not appeal against the unfavourable

interlocutory decision depriving you of the defence as part of your appeal against an ultimate judgment against you?

MR SEMMLER:	Your Honour, certainly the applicant can do that but there are two problems: one is there would be a duplication of the proceedings which have caused
this matter to get to this stage but, secondly and

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more importantly, there are different questions of

law raised by the different provisions, and

Your Honours will see that from the - - -

MASON CJ: Yes.

MR SEMMLER:  There was certainly no great degree of unanimity

in the approach of the Court of Appeal to these

separate provisions. Mr Justice Hope took the view

that none of them was applicable; all of them

should be struck out. Mr Justice Mahoney took the

view that the Victorian provision was applicable

by reason of the effect of section 64 of the

JUDICIARY ACT in proceedings being heard in New

South Wales. And Mr Justice Samuels took the

view that although he agreed in respect of

section 63 that it was not applicable that,

by reason of the effect of the remitter order from

this Court, section 14 was applicable. And there

are separate legal issues attaching to each of the
three defences and it may well be that the only

defence which in the final analysis is appropriate

is that in respect of which special leave is being

sought today. So that I appreciate what Your Honour

says and it is unfortunate that the matter has reached

this stage as a strike-out application but the problem

that the applicant faces is that unless Your Honours

are prepared to grant special leave in respect of that

one defence, that is lost and the other defences may

not run. So that in the final analysis, a cause of

action which arose 23 years ago in this State does
not attract the LIMITATION provisions applicable
here and nor does it attract the LIMITATION ACT

provision applicable in Victoria where the action was

commenced.

MASON CJ: Yes, I follow all that but it still would be subject

to your right to come to this Court after the

determination - - -

MR SEMMLER:	Yes, I appreciate that, Your Honour, in respect of the other defences but all I can say in relation to
those is what I have already said, that there was
certainly no degree of unanimity in the Court of
Appeal as to their application.  The applicant cannot
be assured that he would succeed in respect of those
whereas the applicant may succeed in respect of the
section 63 defence which was struck out. My
submission is that that defence, when one analyses the law in relation to it, was not so clearly untenable as to have been worthy of being struck out by the Court of Appeal and yet, it having been struck
out, a complete defence to this action is denied to
the applicant.

Your Honours, if Your Honours take the view that

because the applicant still has rights or will

ultimately still have rights of appeal in respect

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of the other defences, then I shall not proceed

to - - -

MASON CJ: No, no, we have not taken that view as yet,

Mr Semmler. I was raising the matter with you

because it did seem to me to be a substantial

obstacle to the grant of special leave at this

time.

MR SEMMLER: Certainly, Your Honours, that is correct, but - - -

MASON CJ:	I was approaching it in my own mind on the footing
that you had a distinctly arguable question of
law which would, of course, be a question of general
importance. In other words, prima facie, until we
hear from Mr Thomson, I was inclined to think that
you had a point that would normally attract the
grant of special leave but for the procedural
difficulties in the case.

MR SEMMLER:  Yes. I am aware of the procedural difficulties,

Your Honour, but all I can say is that the

applicant's rights of appeal in respect of the

other matters are separate considerations, in my

submission, from this matter which is before

Your Honours and if Your Honours do not grant

special leave, the defendant's right in regard to

this particular provision are denied forever.

Your Honours, my submission in regard to the

section 63 defence - - -

WILSON J; Can I just clarify that, Mr Semmler? If it stays

at a procedural level then we are simply extending

the interlocutory interlude before a trial. It

will go to trial sooner or later and perhaps the

sooner the better.

MR SEMMLER: Yes, Your Honour.

WILSON J:	The section 63 point will not be foreclosed to you
should there be a judgment against you and you
seek to agitate the shutting you out from section 63
in the High Court. Is that not right?
MR SEMMLER:	Your Honours, the section 63 point will be

foreclosed to the applicant.

WILSON J:	It may be foreclosed to you in the trial but you
have told us that there would be no questions of
fact bearing on that. It is a pure question of
law.  The trial will elucidate all the issues of
fact that are germane either to that issue or any
of the section 14 issues.
MR SEMMLER:	Yes, indeed it is clear on the pleadings,

Your Honour.

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WILSON J:	So that it does not jeapardize your ultimate position
if one was to open the way for the trial to proceed
by refusing this application now?

MR SEMMLER: Well, it does in the sense that the one - there

are three separate defences, Your Honour, and if

Your Honours do not grant special leave at this

time, the section 63 defence has been struck out

by the Court of Appeal.

MASON CJ: Yes, so it is not an issue that arises or will arise

at the trial.

MR SEMMLER:  No, it is an issue that can be dealt with now

on the pleadings, Your Honour. The facts of this

matter do not - I think there is agreement as to
the facts which bear upon the application of

section 63.

MASON CJ: Yes, that is granted but what, in effect, Justice Wilson

and I are endeavouring to make plain is this: at
the trial, in accordance with the orders of the

Court of Appeal, the trial judge would not be able

to rule that you have a defence under section 63.

MR SEMMLER:	That is correct.
MASON CJ:	And to that extent you have lost the section 63
defence but in the event of your wishing to appeal
from a judgment for the plaintiff at the trial
there is no reason, is there, why you cannot raise
as one of the matters of the appeal the wrongful
striking out of the section 63 defence by the
Court of Appeal.
MR SEMMLER:	Yes, Your Honours, and in that sense it is - - -
MASON CJ:	I mean, in the same way as it is possible to appeal from an ultimate judgment and raise as part
of your appeal an adverse decision against you
that was taken on demurrer you could do the same
thing in relation to the striking out of the
section 63 defence.
MR SEMMLER:	Yes, Your Honour, there would be a reagitation

of all the issues that have -

MASON CJ: Yes, so I do not quite follow your repetition of

the statement, the section 63 defence is excluded and

lost to you. It is not lost to you forever.

MR SEMMLER: No, Your Honour. Ultimately, if the decision

is against the applicant in these proceedings, an

appeal could be brought in respect - - -

MASON CJ:  Yes.

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MR SEMMLER:  But the questions of law which have occupied

the courts, Mr Justice Mcinerney, and the Court of

Appeal, would then presumably be reagitated,

once again, in respect of all of the defences.

MASON CJ: There would be little point in their reagitation, I should have thought, again, before the Court of

Appeal. If you were to appeal through the hierarchy

of courts, an appeal to the Court of Appeal on those

points would be a mere formality. The Court of

Appeal would be bound, at least on section 63, to

give effect to the decision it has already made.

MR SEMMLER:  Yes.

MASON CJ: It may be different in relation to the other

defences because the decision in the Court of Appeal

at the moment hinges on the fact that there were not

untenable defences. Whereas, in an appeal from a

judgment for the plaintiff, the Court would naturally

be forced to rule on the questions without taking

into account the question of tenability.

MR SEMMLER:  Yes, Your Honour, but it would be my submission

that the matter would be more conveniently dealt

with, although still interlocutory, if Your Honours

were to grant special leave.

MASON CJ: Yes, I follow, yes. Mr Semmler, I think you have

probably said all you can say on this point that

is troubling us. We are, as I have indicated to

you, approaching it on the footing that the point

you seek to raise is certainly one which, in

appropriate circumstances, would warrant the grant

of special leave to appeal.

MR SEMMLER:  Yes, Your Honour.

MASON CJ:  Thank you. Now, what do you say, Mr Thomson, and if

you would direct your remarks to this question that

is troubling us principally?

MR THOMSON: 

Yes. With respect, we would suggest that the

suggestion falling from the Court is probably the
wisest one: have the trial and all the matters would

still be in issue at that stage and come and have an
ultimate decision on it. This way, there is no

guarantee, if special leave were granted now, that

there would necessarily be a cross appeal. I

can turn my mind to the problem and you would still

have your trial, in any event,  and it would

certainly be a more practical situation to have the

trial and then have the appeals then. Once the

Court has indicated that they regard it as a matter of importance which leave would normally be given,

I would submit that the correct way to do it would be

the way the Court suggests: refuse the application

at this stage or even adjourn it over until the trial
is finished or whatever it may be but let us get on

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with our trial and see how the issues do turn

out on these matters.

TOOHEY J:  Mr Thomson, as the pleadings stand -I do not think

we have them -	limitation questions aside, on what
matters do you	understand that the action would go
to trial? The	defendant, both as to negligence and
damages?

MR THOMSON:  Negligence and damages, yes.

TOOHEY J: Is it anticipated the trial will be a lengthy one?

MR THOMSON:  I suppose you would have to look at certainly

four or five days, because no doubt there would be a

more serious conflict of medical evidence than

in an ordinary running-down personal injury case

as on the questions of diagnosis and the like and

no doubt there would be a number of witnesses

on either side and experts in that field, because it is

ultimately a medical negligence case, one might say•

TOOHEY J: Yes, thank you.

MASON CJ: Yes, Mr Thomson?

MR THOMSON:  I have nothing further to add on that aspect if

the Court pleases.

MASON CJ: Thank you. Yes, Mr Semmler?

MR SEMMLER:  Your Honour, only in relation to the length of the

trial. Certainly it would take several days. It

will encompass issues that go back to 1965 and

it is quite possible that the case could take longer

than that so that that judicial time will be occupied

and then further judicial time occupied in relation

to any appeals that may arise in regard to these
matters and it is simply my submission that the

matter would be more conveniently dealt with at

this stage. That this Court is in a position to

give authoritative guidance in relation to the

matters that are raised, so that even though, on

its face, it is an interlocutory matter, the guidance
would be of assistance not only to the trial court
in this matter but to other courts in relation to
other matters involving the same issues. Those

are my submissions, Your Honours.

MASON CJ:	The question which the applicant seeks to raise in this case, the availability of section 63 of the
LIMITATION ACT 1969 of New South Wales, is an important
question which would, in appropriate circumstances,
warrant the grant of special leave to appeal. However,
the question arises in proceedings to strike out defences and it is associated with two other
statutory limitation defences which are available to
the applicant on the pleadings.

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In our opinion, the preferable course to granting

special leave is to allow the matter to go to trial.

In the event of the plaintiff obtaining judgment at the trial, it will still be possible for the present applicant to raise the availability of

section 63 as a substantive defence in proceedings

by way of appeal and in the event of any future

appeal raises only questions concerning the

availability of the three statutory defences which

have been considered by the Court of Appeal, it may

be possible for the applicant to appeal direct to

this Court.

In the circumstances, the application for special

leave to appeal is refused.

MR THOMSON:  I would make an application for costs, if the

Court pleases?

MASON CJ:	You cannot resist that, Mr Semmler?
MR SEMMLER:	I have nothing to say, Your Honour.
MASON CJ:	The application is refused with costs.

AT 11.09 AM THE MATTER WAS ADJOURNED SINE DIE

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