Cwealth of Aus v Mewett, Rock & Brandon

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S33 of 1996

B e t w e e n -
COMMONWEALTH OF AUSTRALIA
Appellant
and
ROBERT JOHN MEWETT

Respondent

Office of the Registry
Sydney No S34 of 1996

B e t w e e n -
COMMONWEALTH OF AUSTRALIA
Appellant
and
MICHAEL JOHN ROCK

Respondent

Office of the Registry
Sydney No S35 of 1996

B e t w e e n -
COMMONWEALTH OF AUSTRALIA
Appellant
and
MARK JOHN BRANDON

Respondent

BRENNAN CJ
DAWSON
TOOHEY J
GAUDRON J
McHUGH J
GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 12 FEBRUARY 1997, AT 10.06 AM

(Continued from 11/2/97)

_________________________

BRENNAN CJ: Have you anything to add, Mr Gageler?

MR GAGELER: Your Honours, there are just three short matters. The first is that at page 82 of the transcript, Justice Gummow asked me about the date of commencement of the Choice of Law (Limitation Periods) Act of New South Wales. That is a matter that is dealt with in footnote 78 at page 30 of our written submissions. The second is that at page 102 of the transcript, I mentioned the Federal Court decision in Manfal. The citation for that is Trade Practices Commission v Manfal Pty Limited (1990) 97 ALR 231, with relevant discussion occurring at pages 243 to 245 in the judgment of Mr Justice Wilcox, and 261 to 263 in the judgment of Mr Justice French.

GUMMOW J: It is also in 27 FCR 22.

MR GAGELER: Thank you, your Honour. The index to the Federal Court Reports is not entirely accurate. The final matter concerns the exchange I had with your Honour the Chief Justice at pages 107 to 109 of the transcript. May I return to my answers there very briefly? Your Honours, the constitutional question, “What is property?”, in our submission, has to be answered as a matter of substance having regard to legal form, but not bound by legal form.

As a matter of legal form a cause of action which is barred by a traditional limitation statute continues to exist, and I did not wish anything put in my submissions to contradict that proposition. However, as a matter of substance a right that can be met by a complete legal defence which can be pleaded or not pleaded at the discretion of the defendant against whom the right is asserted is no right at all. That is the point that is made in the references in footnote 93 of our submissions.

To say that a statute barred cause of action will furnish consideration for an agreement to settle a plaintiff’s claim, as your Honour the Chief Justice put to me, is of course correct as a legal proposition but, in our submission, does not assist in the present inquiry. Any bona fide claim can furnish consideration for the settlement of dispute whether or not the claim discloses a good cause of action. It was so held, for example, in Cook v Wright, (1861) 121 ER 822, and there is a line of authority that continues from that case including in this Court Wigan v Edwards (1973) 1 ALR 497 at 512 to 513. In Cummings v Claremont Petroleum (1996) 70 ALJR 616 the majority of this Court recently held that a right to appeal against a money judgment was not the property of a judgment debtor for the purposes of section 58 of the Bankruptcy Act.

That was held not to be property. However, your Honours, there would be no doubt, in our submission, that an appeal could be constituted as of right and if constituted, or even if not constituted, would have provided consideration for a settlement. Those are our submissions, your Honours.

BRENNAN CJ: Thank you. Mr Gyles.

MR GYLES: Your Honours, may I deal with matters in the following order: first of all, to put arguments as to why Georgiadis should not be reopened; then go to the question as to whether there was any limitation period applying; thirdly, to put the argument that Georgiadis is correct in any event; and then, your Honours, come to the issues which arise, assuming the corretness of Georgiadis and the application of that decision. Your Honours, as with my learned friends, we have, as your Honours know, filed full submissions and, therefore, your Honours will take those submissions into account and I will not reproduce all of them in my oral submissions.

The question of the reopening of Georgiadis is dealt with at pages 15 to 17 of our submissions. Your Honours, we draw attention to the following features in particular. The first is the circumstances under which the intention to make the application to review Georgiadis. Your Honours, may recall that it arose - it was not a point reserved below, it did not form any part of the application for or the grant of special leave. It arose when, from the Bench, questions arose as to what basis is there for saying that there was any limitation provision applying at all. So we would suggest that the application is belated and was, in a sense, a tit for tat application.

The basis for reopening, which was put in the written submissions, here was the reasoning of one judge out of seven on a point which was considered and rejected by the majority. To make sure there is no misunderstanding, your Honours, we did not understand there to be any application by the Commonwealth to reopen Georgiadis to argue the acquisition point which formed the basis of decision of Justice Dawson and Justice Toohey. We were left in some doubt by what was said by the Solicitor-General yesterday, but we were not conscious of any argument having been addressed by him to that point.

DAWSON J: If it were reopened you would not expect us to change our mind, would you?

MR GYLES: Your Honour, no.

DAWSON J: Or to be bound by anything.

MR GYLES: No, your Honour, I am simply putting that that was not the basis upon which the Commonwealth has sought to reopen.

DAWSON J: Yes, I understand that.

MR GYLES: Your Honours, there is no - thus, one has a recent and reasoned decision with no event or circumstances which have changed. The only thing that has changed is the personnel of the Court and we submit that that would not be a sound basis for a decision to reopen.

DAWSON J: I do not understand that because when cases have been overruled it has almost invariably been a changed Bench, and that is the reason for it being overruled. If you take the most recent example, or recent in this Court’s mind, Cigamatic.

GUMMOW J: The Engineers’ Case is another one.

DAWSON J: I just do not understand that line of reasoning.

MR GYLES: Your Honours, it would almost always be so that there would be different personnel and ‑ ‑ ‑

DAWSON J: And the reason for the previous case being overruled would be the different personnel.

MR GYLES: No doubt, your Honour, but ‑ ‑ ‑

BRENNAN CJ: It might be that there is a perception that there has been some error, and that perception might come more easily to different minds.

MR GYLES: Indeed, your Honour.

BRENNAN CJ: But thus far, the authority of this Court has never accepted that personnel in themselves are the grounds of overruling.

MR GYLES: Yes. Your Honour, that is my simple proposition.

DAWSON J: That puts much better what I was trying to say.

MR GYLES: Yes, and it is what I was trying to say, your Honour, that the change of personnel as such is not a basis for overruling, although it may mean that in a particular case it would lead to a result that favoured overruling. Your Honours, the difference between the minority on the point and the majority in Georgiadis was not as to principle but as to its application in the particular case. Could I take your Honours to Georgiadis 179 CLR to illustrate that proposition, and if your Honours go to 305 to 6, your Honours will see that at the foot of page 305 it is said, after reference to extinguishment and the cause of action arising out of the general law:

The position may be different in a case involving the extinguishment or modification of a right that has no existence apart from statute. That is because, prima facie at least and in the absence of a recognized legal relationship giving rise to some like right, a right which has no existence apart from statute is one that, of its nature, is susceptible of modification or extinguishment.

And your Honours go on. So the point was very clearly recognised in that reasoning. At page 308, your Honours will see that a reservation was made:

It may well be that if s. 44 appeared in legislation establishing a compensation scheme -

et cetera. So that, there is no doubt, with respect, that the majority had well in mind the argument that appealed to Justice McHugh. Then if your Honours go to 312 in the judgment of the present Chief Justice, the application of 51(xxxi):

Assuming, without deciding, that the Commonwealth’s liability in tort is dependent on laws of the Commonwealth, that liability is not the creature of statute. The liability is created by the common law and, provided the corresponding common law cause of action is vested, the person in whom it is vested is entitled to the protection of s. 51(xxxi).

So, again, the point was very present to the present Chief Justice in his decision. Your Honours, that, of course, is not surprising, because the judgment was one of four judgments delivered on the same day, all relating to 51(xxxi) of the Constitution, and one of which - Peverill - was a direct application of the same principle, or the principle as now appealed to, but, interestingly, with members of the majority in Georgiadis taking a different view on the application of the principle in Peverill. So that we respectfully submit that this was, as I put, not a disagreement as to the principle to be applied, but as to its application in the particular circumstances.

McHUGH J: It does not concern a constitutional principle so much as what was the basis of the common law immunity. I took the view that if the King can do no wrong, then there was no common law obligation and there was no common law cause of action against the King, and that was it. Other members of the Court took the opposite view.

MR GYLES: And if your Honour’s view is correct, then of course it is in every sense a creature of statute. That is the point of distinction.

McHUGH J: Yes.

MR GYLES: Your Honours, the submission by the learned Solicitor‑General that the decision has not been acted upon simply cannot be sustained. No evidence has been tendered, even if it were admissible, to establish that proposition and it is not a matter which can be assumed. On the contrary, it can be assumed that settlements have ensued and cases conducted, expenses incurred and the lives of victims ordered on that basis for over two years. In our respectful submission, to reopen this decision now would, first of all, be likely to lead to arbitrary discrimination between victims and, secondly, to lead to the personal and financial disturbance of the very type referred to in Verwayen and very recently in this Court in the case of Queensland v J.L. Holdings - 14 January 1997 the date of the reasons for judgment - the amendment case in which reference was made by Judges on either side of the decision to what has now become known as the Ketteman principle, that justice cannot be measured in terms of money and that the strain of litigation upon litigants, particularly personal litigants of the type which were there spelt out, is a legitimate consideration. We submit it is legitimate here as in issues such as amendment.

Then your Honours will appreciate that, whilst I do not wish to of course underplay the significance of the decision to those who may be caught by it or take advantage of it, it does relate to a closed period. It relates only to pre‑1988 injuries and in which to be successful a party has to satisfy a court as to the merits of an application to extend or, in the Victorian case, of the existence of the circumstances which give rise to the, as it were, automatic extension. Lastly, your Honours, we submit that the reasoning which forms the basis of the application to reopen did not for relevant purposes apply to contract and that there are contract counts in each case here, and thus reopening would not avail the defendants.

McHUGH J: Mr Gyles, does your argument accept that Georgiadis would not or at least necessarily govern a case where, say, a Commonwealth employees compensation statute was repealed?

MR GYLES: Yes, your Honour. It is a limited case, I would respectfully submit, particularly in relation to the point from which the reopening is sought to be based. That debate may be a very different debate. I am just thinking of Peverill as an example. Of course, your Honours, we submit that in any event it is right, or, that is what we say. Right or wrong, it is not a case for disturbance. Your Honours, can I then move to the question as to whether there is any relevant statute of limitation which governs in a particular case. That is a point which is dealt with at pages 18 to 21 of our submissions. There are some aspects of that which I do wish to develop.

By way of preamble I take this point next because, if correct, it is another and more direct path to the result in Georgiadis, and is an answer to the point sought to be relied upon in the reopening of Georgiadis. In other words if there is no relevant limitation period, then this is an a fortiori Georgiadis case, that is because there is no barrier to the cause of action and the cause of action is undoubtedly removed, and if the reasoning of the majority in Georgiadis is correct then it follows that there was the impermissible acquisition. I remind your Honours that this was not a point argued in Georgiadis and it is a bare question of law involving the Constitution which directly arises in the case and of which adequate notice has been given and we wish to put the argument that there is no relevant limitation statute. The point having been raised we wish to take that side of the argument.

Your Honours, there is no doubt it does involve a fundamental rethink concerning the application of the Judiciary Act and, in particular, as to the place of sections 79 and 80 in that Act in so far as they relate to actions against the Commonwealth. We submit that that is a fundamental rethink which should take place because now with the creation of the Federal Court and the nasture of the jurisdiction which it exercises, the practice of remitting to that Court and the High Court Act, the significant amendments to the High Court Act which were made in 1979, all have now given the Court sufficient experience of seeing how the federal judicial system is working to appreciate that if there has been an error in application of the Judiciary Act it is time now to sort it out. There are many inconveniences and greater than inconveniences, which are occasioned by the present received wisdom, which we would respectfully submit should be now reconsidered.

McHUGH J: Mr Gyles, does not your argument lead to the difficulty, though, that one has to distinguish between invested federal jurisdiction in State courts and jurisdiction in the Federal Court?

MR GYLES: Yes, that is so. I mean, there is no solution to this problem which does involve some anomalies, and whether one calls it an anomaly, that is the situation, your Honour. Of course, as we move to a more complete federal system, judicial system, so that will, or may, become less and less important. Perhaps when the argument is developed, your Honours, I can more simply answer those issues. Your Honours, we have a bundle of supplementary material which goes to these arguments, which I would seek to hand up now, and I will refer to it as we come to it.

Your Honours, there will be some overlap between the argument on the limitation point and the argument as to the correctness of Georgiadis, in particular the issue as to whether or not - or the place of section 75 of the Constitution. So that much of what I am now going to put I will incorporate by reference in my later submission on that issue. Your Honours, the position pre-Federation is of significance and your Honours will find amongst the material I have just handed upan extract from “Liability of the Crown” second edition by Hogg, because we submit that the basis for the immunity of the Crown is of significance in resolving the issue, and Justice McHugh has already pointed that out.

If your Honours go to page 3 in the extract, the “Origin of petition of right”, the author suggests, at the foot of the page:

In the middle ages the reason why the King could not be sued in the royal court was the feudal principle that a lord could not be sued in his own court.

We submit that really is the fundamental basis. It was said:

But the King was not regarded as above the law; on the contrary, he was regarded as under a duty - an unenforceable duty, to be sure - to give the same redress to a subject whom he had wronged as his subjects were bound to give to each other.

And then the author goes on to develop that thought. Then on page 5, under the heading of “Contract and tort”, the history is set out with the reform of the petition of right procedure simplified in 1860. As a matter of fact, my learned friend handed me this morning a bundle of materials on that point. I do not know whether - yes, the Court has them - and the Petition of Right Act is included in that material also. There is reference to Thomas v The Queen as to contract. On page 6 the author says this:

With respect to tort, however, the answer was no: the courts refused to extend the petition of right to torts. The courts quoted the old maxim that “the King can do no wrong”, and they concluded that he could neither commit nor authorize the commission of a tort. In fact this maxim had been used in the middle ages to produce virtually the contrary result, namely, that when the King infringed the law he should give redress to an aggrieved subject. The courts were also wrong in supposing that the imposition on the King of vicarious liability in tort necessarily involved imputing to him the commission or the authorization of the tort. This error was understandable at the time, but it is now obvious that vicarious liability does not need to rest on any such fiction.
The exclusion of tort claims from the petition of right procedure immunized the Crown from liability in tort, because no other remedy was available for the purpose.

Your Honours, in a sense it does not now perhaps matter particularly whether the 19th century decisions were right or wrong in the way they understood the phrase “the King can do no wrong”.

Our basic submission is that the barrier to tort liability was procedural. It lay in the difficulty of the King being sued in his own court and it lay in the understanding of the court in the 19th century of the lack of a respondeat superior mechanism.

McHUGH J: I must say I took the Court in Georgiadis and the other members of the Court as at least impliedly rejecting the 19th century case.

MR GYLES: Yes, your Honour. Your Honour, that is, in a sense, the starting point. What we have also done is to extract for your Honours some parts of the Ehrlich’s proceedings against the Crown section of Oxford Studies in Social and Legal History. I do not propose to read that to your Honours, but it is an interesting historical account of what Hogg would describe as, in effect, the heresy about the King - misunderstanding as to the aphorism, “the King can do no wrong”.

BRENNAN CJ: Can you give us at least a pointer to the pages so that we do not have to read the ‑ ‑ ‑

MR GYLES: Your Honour, we have simply copied those pages which - perhaps I can give your Honours. Footnote 10 in Hogg, your Honour, refers particularly to 42 and 127. Your Honours, the next thing I would like to do is to take your Honours to the Constitution itself. We wish to put the submission that the Commonwealth is a juristic entity established by the Imperial Act and an entity which is able to sue and liable to be sued and that any notion of the Crown and Crown immunity is misplaced once that is appreciated.

I will have to deal with that submission with the matter put to my learned friend by Justice Dawson yesterday, but I will come to that in due course. I also wish, in addition to making that submission, to take your Honours of course to the text of Chapter III to see how that works.

TOOHEY J: Mr Gyles, when you put that submission, are you saying that the Commonwealth is a juristic entity liable to sue and be sued independently of any particular provision of the Constitution?

MR GYLES: No, your Honour. It is an entity under the Constitution and, therefore, one would see what it may do, or be liable to be done to it from the Constitution. But, nonetheless, it is an entity.

DAWSON J: What do you mean by “it”?

MR GYLES: The Commonwealth, your Honour. The Commonwealth is a juristic entity. That is my submission.

TOOHEY J: I understood you to be saying that, as a juristic entity, it was brought into existence by the imperial legislation.

MR GYLES: Yes.

TOOHEY J: But you do not appear to be saying that that legislation, of itself, rendered this new entity liable to sue or be sued; you appear to be saying that its capacity to sue, and its liability to be sued, must be found in the Constitution itself.

MR GYLES: Yes, that would be our primary submission, your Honour. Can I take your Honours to the covering clauses and the ‑ ‑ ‑

DAWSON J: Can I just clarify it? When you say “it”, the Commonwealth is the entity.

MR GYLES: Yes.

DAWSON J: What does the entity comprise?

MR GYLES: It comprises, your Honour, the - if I can pick up the words “the people of New South Wales” - perhaps I can take your Honour to the ‑ ‑ ‑

DAWSON J: I mean, the point is the Commonwealth is used in various ways; it is used as a geographic entity, it is used as a synonym for “government”, which must be the executive, it is used as a synonym for “Parliament”, and to say “it is an entity” really does not tell you very much. You have got to say what “it” is.

MR GYLES: When, in the course of these submissions, I use that, I mean the entity established by clause 4 of the Commonwealth of Australia Constitution Act. I do not use it in any of the looser senses to which your Honour was referring.

DAWSON J: That seems to me to be a loose sense, because that is meaningless. You mean the government?

MR GYLES: No, your Honour, I do not.

DAWSON J: Do you include in it Parliament?

MR GYLES: Parliament is part, your Honour, of the Commonwealth.

DAWSON J: The other way of approaching it is to say, well, you certainly can sue the Commonwealth in the name of the Commonwealth, but what you are really suing is that aspect of the Commonwealth which is relevant for the purposes of the action, and that will mostly be the executive, the government. Because you are not suing Parliament.

MR GYLES: That is one way of putting it, your Honour. It is not the way we would prefer to put it.

DAWSON J: No, I know it is not.

TOOHEY J: Well , covering clause 3 suggests that by the proclamation, the people of the States there named, and Western Australia once it agreed to join:

shall be united in a Federal Commonwealth under the name of the Commonwealth of Australia.

MR GYLES: Yes. I was going to read that, your Honour, in answer to his Honour’s question, and then to ‑ ‑ ‑

TOOHEY J: Because covering clause 4 really seems to then go on on the assumption that the Commonwealth is established to say when the Constitution takes effect, rather than covering clause 4 establishes the Commonwealth.

MR GYLES: Yes, your Honour. Certainly covering clause 3 describes the Commonwealth. That tells us what the Commonwealth is. Indeed, as your Honour points out, it provides a proclamation which does the work.

DAWSON J: It also provides it under the Crown.

MR GYLES: Yes, your Honour.

DAWSON J: Which carries you back to what I was saying: the Crown, therefore, can do things in the name of the Commonwealth.

MR GYLES: Well, that is a separate issue, if I may respectfully say so.

DAWSON J: No, it is not, it is central to it, because when you are suing in contract or in tort you are suing for something that government has done.

MR GYLES: Your Honour, I will need to deal with that argument. It is not one that we embrace. We respectfully submit that the recital “under the Crown of the United Kingdom and under the Constitution hereby established” is a recital.

DAWSON J: But there cannot be any question that it was under the Crown. That was the whole conception of the thing.

MR GYLES: I am not quarrelling with that, your Honour, but it is a recital. The question is: what does the statute provide? The statute provides in covering clauses 3 and 4 what we suggest are Acts which have legal significance and juristic significance. The Commonwealth is established as it says under the Crown and under the Constitution, maybe, but it is not the Crown as such. It is incorrect to think of the Commonwealth as being a synonym for the Crown.

DAWSON J: But it is the Crown when it is doing things which constitute the exercise of executive power.

MR GYLES: Your Honour, if I may respectfully submit, that is because of section 61, not for any other reason.

DAWSON J: Yes, it may be.

MR GYLES: With respect, that is a significant point as to whether or not section 61 has that effect because, if it is the Constitution which so provides, then the Crown comes in, as it were, at that level, at that point.

DAWSON J: But the Crown comes in as the Crown, comes in fully clothed with all the attributes of the Crown.

MR GYLES: Indeed, your Honour.

DAWSON J: And the attributes of the Crown of the United Kingdom, what is more.

MR GYLES: The Crown has more to do than simply the executive government, I appreciate that. It forms part of the legislature but we say that where the Crown has a role, it is spelt out either in the ‑ ‑ ‑

DAWSON J: Or the prerogative.

MR GYLES: Or in the Constitution itself.

McHUGH J: It is a curious conception that the Constitution, at least impliedly, treated political entities such as the Commonwealth and the States as persons who could sue or be sued. One does not sue the United Kingdom; one sues the Crown.

MR GYLES: Yes. Your Honour, we say it not just a curiosity; it is a fundamental part of the compact. Perhaps for too long the thinking on the topic has been overlaid with the 19th century understanding about that.

BRENNAN CJ: Mr Gyles, just one proposition. The “Crown” that is referred to in the preamble, as Justice Dawson has pointed out, is the Crown of the United Kingdom. Whatever “Crown” is imported by section 61 is surely the Crown in right of Australia.

MR GYLES: Now, your Honour, one would ‑ ‑ ‑

DAWSON J: But then, like “Commonwealth”, the word “Crown” has many heads. What that must mean is the Crown who is the Crown of the United Kingdom, and undoubtedly that is so. It was Queen Victoria, was it not?

MR GYLES: Your Honours appreciate that the wording in 61 is Queen, actually. I am not sure where that leads us.

DAWSON J: That is a reference to the person, but the person comes with certain actions. I did not think there was any dispute in that that all the prerogatives of the Crown other than some which were exercised by the Imperial Crown, and for that you have to look to section 2 of the Constitution, all the prerogatives other than the Imperial prerogatives were vested in the Crown in right of Australia and the right of the Commonwealth via section 61. That is not in dispute, is it?

MR GYLES: No, your Honour.

DAWSON J: No.

GUMMOW J: The reference to the Queen is to covering clause 2, I suppose. The reference at 61 is that person who answers the description in clause 2 which in itself is not an entirely apt description. There is no United Kingdom of Great Britain and Ireland. There has not been since 1949.

MR GYLES: No.

GUMMOW J: It is the Untied Kingdom of Great Britain and Northern Ireland.

MR GYLES: Yes.

DAWSON J: But it is identifying the person, and one could say the same of the covering clause, but the attributes of that person are attributes which are brought in by section 61.

MR GYLES: Well, your Honour, let that be so for the purposes of argument.

DAWSON J: Section 2, just to complete it, really has no operation now because that would cover such things as treaty making powers and so on, and history has overtaken it.

MR GYLES: The covering clause 2 is only ‑ ‑ ‑

DAWSON J: No, no, I meant section 2 of the Constitution.

MR GYLES: I am sorry, your Honour.

DAWSON J: There is a dilemma because the prerogatives came in via section 61 and one wonders what section 2 meant when it says that Her Majesty may assign such powers as she is pleased to do to the Governor‑General. That must mean Imperial powers, powers which are exercised by the Queen and do not come in via section 61. That is the accepted theory, I think.

MR GYLES: I suppose, your Honours, it had vestiges of, or was related to, the practice of having colonial governors given particular powers and functions, but be that as it may. May I anticipate by putting the submission which is relevant to what has just been put to me. We submit that the so‑called immunity of the Crown from suit in tort is not a prerogative of the Crown and should not be so regarded. It is not something which you transfer to the Commonwealth, in particular, and perhaps my submission is sufficient if I put that that notion, even if it be a prerogative of the Crown, has nothing to say about the liability of the suit of the Commonwealth of Australia.

KIRBY J: Is there any analogy that you have studied in relation, say, to the United States of America or the Dominion of Canada or the Union of India? Is there anything to be found in comparative law about the way the successor to the Imperial Crown has been regarded as liable to be sued?

MR GYLES: Your Honour, I have not closely studied that. The history of the United States is quite different, we would submit.

KIRBY J: India is not. The Dominion of Canada may itself - that very word may indicate that it was in a different relationship to the Crown than the Commonwealth of Australia. I do not know. The Union of India may be in a more interesting analogous position. But you will be aware of the decisions in this Court that suggest that the fundamental basis of the Constitution is now to be seen as the people of Australia not the Imperial Act, and it may be that what we are doing now is looking at the words of the Constitution with the eyes of 1997 and that the historical past principles and perhaps the understandings at the time may be different from those which are apt today.

MR GYLES: That may be so, your Honour. I am, I hope, seeking to draw attention to the terms of covering clause 3, which ‑ ‑ ‑

KIRBY J: Yes, but that is part of the Imperial Act. I am not pressing any view on the matter, but there are some observations in the Court of late which suggest that that, in a sense, is spent and that the true foundation of the Constitution, given the provisions of section 128, must now be seen as the people of Australia.

MR GYLES: Your Honour, my point is that covering clause 3 says just that.

McHUGH J: This whole notion may have fundamental consequences for even the interpretation of the Constitution. It may no longer be proper to look at the Constitution as a British statute. It may be that since the Australia Act we should look at it as a compact between the peoples of Australia, which is in effect renewed from day to day, and the authority of the Constitution rests on some such ‑ ‑ ‑

MR GYLES: Your Honour, we certainly, for the purpose of this argument, put the submission that that is a correct analysis. But for the purposes of this case I can achieve the same result from the springboard of covering clauses 3 and 4 and, indeed, when we come to it, the terms of Chapter III.

DAWSON J: But what you are saying really is that the Commonwealth of Australia is a corporate entity and that is what the Constitution does not say.

MR GYLES: A juristic entity. An entity known to the law.

DAWSON J: Yes. But of itself the word “Commonwealth of Australia” denotes a corporate entity, a being.

MR GYLES: Yes, that is so, your Honour.

KIRBY J: The problem for you, though, is that it is an entity which was created at a time when similar juristic entities performing similar functions, such as the Crown, the United Kingdom and, I would think, the Dominion of Canada and elsewhere were regarded as immune unless by their own Act they rendered themselves liable in courts.

MR GYLES: Again, your Honour, I do not have to go very far with this because the Constitution, we say, did that very thing in Chapter III.

KIRBY J: It does not say it in those time-honoured words, “It shall be liable to sue and to be sued in the Court.” They are pretty well-known words and they have been around for a long while.

MR GYLES: Your Honour, may I come to that point in a moment? I have, I think sufficiently, touched on the covering clauses and we say that they should be given effect according to their terms. If they ‑ ‑ ‑

McHUGH J: The question is why is the Constitution binding on the people today? Until the Australia Act one could say it was the product of a British statute and, therefore, it had a force of the statute. Since the Australia Act the British Parliament has washed its hands. So what is the basis? Why is it binding on the Parliament of the Commonwealth? Why is it binding on the Parliaments of the States? I do not know that there is any clear answer to it but I am not sure that we can go on treating it as if it was a British statute.

DAWSON J: That is just surely to turn your face against history. It is and was a British statute and it is there. It may be that its force is spent and now that the existence of the Commonwealth is dependent upon the acceptance of the people, in the same sense as any government is ultimately dependent upon the acceptance of people, that you have a grundnorm, if you like to use that term, but to say that is not to say anything very illuminating.

BRENNAN CJ: We have covered Rosseau and Kelsen so far as I can see, and Hohfeld as well.

MR GYLES: Your Honours, we, for the purposes of this argument, embrace both positions, your Honour, or either position.

BRENNAN CJ: How far do you wish to development your argument on it? Have you taken it as far as you want to take it on clauses (iii) and (iv)?

MR GYLES: Yes, your Honour, I have.

GUMMOW J: Do you rely on what Sir Owen Dixon said in the Bank Case 76 CLR 363? His Honour said:

The Constitution sweeps aside the difficulties which might be thought to arise in a federation from the traditional distinction between, on the one hand the position of the Sovereign as the representative of the State in a monarchy, and the other hand the State as a legal person in other forms of government and goes directly to the conceptions of ordinary life. From beginning to end it treats the Commonwealth and the States as organizations or institutions of government possessing distinct individualities.

MR GYLES: Your Honour, that puts it far more felicitously than I have, and I do rely upon it.

KIRBY J: If you are leaving this subject, if your researchers do turn up anything in relation to Canada and the Union of India and perhaps the Union of South Africa, that would be helpful to me.

MR GYLES: Yes, thank you, your Honour. May I then go, your Honours, to Chapter III, section 71:

The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction. The High Court shall consist of a Chief Justice, and so many other Justices, not less than two, as the Parliament prescribes.

And then your Honours are familiar with 72 and it is our submission that so far as 71 and 72 are concerned, the establishment of this Court did not depend upon the High Court Act. It was established by the Constitution. True it is that at a practical level, Parliament had to prescribe the number of Justices and provide for payment and all the rest of it, but the ‑ ‑ ‑

GUMMOW J: In a lighter moment yesterday, the Solicitor-General seemed to be suggesting the Court be repealed.

MR GYLES: That is why I went back to look at it, your Honour, and it is simply not possible. We of course draw the analogy between 71 and 72 on the one hand and the issue which directly arises here on the other. You simply cannot pretend that section 71 does not establish the High Court.

McHUGH J: What about the Inter-State Commission? Section 103 says that there shall be an Inter-State Commission, does it not? That is section 101. It is gone.

MR GYLES: Your Honour, that raises a question of remedy. The fact that there may be a breach of the Constitution is interesting, but it does not really lead us anywhere. It may just show that the executive government has been in default of the Constitution, but there is perhaps no remedy which can be addressed to that problem. It does not mean that the Constitution does not so provide.

KIRBY J: Purportedly gone.

MR GYLES: Yes, purportedly gone, that is right. Your Honours, then may I go to 75:

In all matters -

and then five particular matters are set out -

the High Court shall have original jurisdiction.

If I am correct in submissions that the High Court was, in the real sense, established by the Constitution, then so it is that its original jurisdiction is fixed by the Constitution in those five respects. For present purposes, (iii) is the relevant head:

In which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party:

But, of course, to take (v), nobody has ever suggested that you need some sort of Act to give effect to (v). People simply bring writs of mandamus or prohibition. Why, because 75(v) makes provision for it.

Similarly 75(iv) is just applied. Why is (iii) different? No reason why it is different. There are all sorts of practical reasons why it is sensible to have the Judiciary Act or its equivalent but ‑ ‑ ‑

GUMMOW J: The first two words of 75(iv), perhaps if not understood in the way you would have them understood, would mean that the Crown was suing themselves in a somewhat metaphysical operation.

MR GYLES: Quite. And, indeed, the basis for the decision in New South Wales v Commonwealth - one of the bases - was to point that out; that you have got to provide for the notion of Federation involved, with divided powers, and with a court to resolve them. It cannot be done by applying the traditional theory of the Crown and its indivisibility, or its divisibility, or any of those notions; it really is, when one gets down to it, provided for ‑ ‑ ‑

DAWSON J: What are the powers of the Commonwealth, in your sense?

MR GYLES: The powers of the Commonwealth, your Honour. The powers of the Commonwealth are as laid down by the Constitution and bearing ‑ ‑ ‑

DAWSON J: Yes, and it breaks it up into Parliament, the judiciary and the executive, and each one of them can be termed “the Commonwealth” when performing its particular function. But if you say it is a particular entity by itself that does things, and draw that just because it can be sued in the name of the Commonwealth, you have to say what the powers of that entity are, and immediately you come back to the division which the Constitution establishes, and that includes the Crown.

MR GYLES: That is not, with respect, your Honour - one would not lead from there to a proposition that the executive, or the judiciary, or the Parliament are, in any sense, an agent of the Commonwealth.

DAWSON J: No, they are the Commonwealth, for that purpose. Just as the word “Commonwealth” can mean the physical entity, if you like. It has different meanings. But I press the question, what are the powers of the body you see as a separate juristic person?

MR GYLES: For present purposes, your Honour, the ‑ ‑ ‑

DAWSON J: No, in general.

MR GYLES: Well, your Honour, they are the powers provided by the Constitution which are manifold for present purposes ‑ ‑ ‑

DAWSON J: And which are exercisable by various manifestations of the Commonwealth.

MR GYLES: No doubt, your Honour. No doubt.

DAWSON J: Yes, and that carries it back to that.

MR GYLES: But, your Honour, for present purposes, suffice to say that the Commonwealth as an entity may be sued.

DAWSON J: No one disputes that.

MR GYLES: Indeed, your Honour. But that is the relevant characteristic of the entity which we are focusing on in our ‑ ‑ ‑

DAWSON J: But what is the Commonwealth that is being sued? It is not Parliament.

MR GYLES: It is not the executive.

DAWSON J: It is not the court.

MR GYLES: Well, it is not the executive, your Honour.

DAWSON J: That is all you are left with - the government.

MR GYLES: Your Honour, in my submission, that is not a correct analysis. That which is sued is the Commonwealth established under the Constitution.

DAWSON J: It is not the people.

MR GYLES: No, your Honour, but it is not the executive. It is not any particular ‑ ‑ ‑

DAWSON J: It is.

MR GYLES: It is not the case of suing an agent.

DAWSON J: You sue the government.

MR GYLES: With respect, your Honour, that is a synonym.

DAWSON J: Anyway, you appreciate the difficulties I am attempting to put in your way, Mr Gyles.

MR GYLES: Indeed, your Honour. It is hard to do more than submit that section 61 does not create, as it were, an agent to be sued in the name of the Commonwealth, which is, in our submission, the notion which lies behind ‑ ‑ ‑

DAWSON J: It is the Crown which represents the Commonwealth for these purposes, is the personification of the Commonwealth.

MR GYLES: Section 76 has its own significance by way of contrast with section 75:

The Parliament may make laws conferring original jurisdiction on the High Court in any matter.

Now, the description of this as additional original jurisdiction is thus accurate. Additional to what? Additional to that which is granted by section 75, and the particular topics in 76 are additional to those in 75 and assume that the High Court does have that original jurisdiction. Then, your Honour, 77 provides:

With respect to any of the matters mentioned in the last two sections the Parliament may make laws ‑

(I)       Defining the jurisdiction of any federal court other than the High Court.
(ii)      Defining the extent to which the jurisdiction of any federal court shall be exclusive of that which belongs to or is invested in the courts of the States.
(iii)     Investing any court of a State with federal jurisdiction.

So, again, your Honours, we submit that section 77 is framed upon the assumption that the High Court already has original jurisdiction and there is no need to have any further legislation on that point. And, 78:

The Parliament may make laws conferring rights to proceed against the Commonwealth or a State in respect of matters within the limits of the judicial power.

In our submission that is properly regarded as a machinery provision building upon and assuming the vesting of the jurisdiction which is in 75.

GUMMOW J: Do you say 78 would or would not authorise the federal limitation statute?

MR GYLES: It would, your Honour, it would.

GUMMOW J: Yes.

MR GYLES: One imagines that is the sort of thing that might have been picked up and was not. Your Honours, can I go then back to 61 to put the submission which has already, I think, been put in answer to questions from the Bench, that the vesting of the executive power in the Commonwealth and the Queen exercisable by the Governor‑General does not substitute the Queen as the person in whom the executive power is vested. It does not substitute the Queen for the Commonwealth as the party to be sued.

DAWSON J: No, because the Queen is the Commonwealth for those purposes.

MR GYLES: Nonetheless, you do not sue the Queen.

DAWSON J: You can.

MR GYLES: Well, might, but, your Honour, we do not. We do not, we sue the Commonwealth.

DAWSON J: You can, you can - - -

KIRBY J: You say that the structure of section 61 posits the existence of the Commonwealth separate from the Queen?

MR GYLES: Yes.

KIRBY J: It simply vests the executive power of the Commonwealth in the Queen.

MR GYLES: Yes, of the Commonwealth. Questions of appropriation and money and so on are beside the point. That does not affect the basic proposition for which we contend. Your Honours, the next step along the way is to have a look at the 1902 Act which is, I think, also part of the material handed to your Honours which is the Claims Against the Commonwealth Act, No 21 of 1902. Now, it provides:

2.-(1.) Any person making any claim in contract or in tort against the Commonwealth may set out the particulars of the claim in a petition to the Governor‑General praying him to appoint a nominal defendant on behalf of the Commonwealth in the matter of the claim.
(2.) The Governor‑General may if he thinks fit appoint any person.....
3.-(1.) The petitioner may in respect of the claim bring against the nominal defendant an action or suit at law or in equity in the Supreme Court of the State in which the claim arose.
(2.) The rights of parties in the action or suit shall as nearly as possible be the same, and judgment may be given and costs awarded on either side, as in an ordinary case between subject and subject.
4. The nominal defendant shall not be individually liable -

and there is a statutory authority for payment of an appropriation of the moneys necessary to meet any order. In section 6:

The Supreme Court of each State is hereby invested with federal jurisdiction for the purpose of hearing and determining actions and suits brought under this Act, and shall have that jurisdiction as a Court invested with federal jurisdiction and not otherwise.

There is a sunset provision, your Honours, the Act expiring on 31 December 1903. So that what this Act does is to provide for a petition of right procedure enforceable or exercisable in the State courts.

KIRBY J: On your theory that was not necessary.

MR GYLES: For the State courts it was because, if your Honour goes back to the Constitution, the High Court was invested with jurisdiction in section 75 but section 77 contemplated ‑ ‑ ‑

KIRBY J: But section 2(1) is not expressed as limited to State courts; it is generally if you want to bring an action in tort or contract against the Commonwealth - presumably also in this Court.

MR GYLES: Your Honour, I must admit I had not read the section in that way. I had read it that the temporary procedure envisaged was ‑ ‑ ‑

KIRBY J: This does not necessarily destroy your argument. We look at the Commonwealth and the Constitution with 1997 eyes but certainly I think it is pretty hard to put forward an argument that with 1902 eyes they did not look on the Commonwealth as needing the same sort of petition of right procedure - nominal defendants including in this Court. That was the way historically it was regarded.

MR GYLES: But, your Honour, it was not done in 1903 when the Judiciary Act came in. I submit that understanding history, so far as the State courts were concerned, what the Commonwealth did was to bring in in relation to State courts the same procedure which the State courts were familiar with.

DAWSON J: You immediately get into difficulties there. Why could not, if the Commonwealth is this independent entity, be sued in a State court without any Act such as that? It is not the Crown and apart from the Crown.

MR GYLES: It may be, your Honour, it may be that is correct.

DAWSON J: That must be part of your argument that it is so.

MR GYLES: It may be that is correct, your Honour.

DAWSON J: It was never understood to be so because in fact, in being sued, it was the Crown being sued. That is the reason.

t19md
BRENNAN CJ: Or because it was federal jurisdiction which had not been invested.

DAWSON J: But it would not need to be federal jurisdiction. It is an entity which can be sued, just as the States now can be sued.

MR GYLES: Your Honour, I think what my answer earlier was - and I maintain it - that the entity - it is like incorporating an entity but you ‑ ‑ ‑

DAWSON J: Exactly. Once you have an entity that is a corporate entity you can sue it.

MR GYLES: But only if the statute, or whatever governs it, so provides. This is a ‑ ‑ ‑

DAWSON J: It does so provide it to be sued, yes.

MR GYLES: We submit that that is the effect of the Constitution, your Honour, and because of the Constitution, not because of any pre-existing notion of Crown. On the contrary, the Crown was not theoretically able to be sued in its Court without its own consent, even under the petition of right procedure. That is why we submit that section 75 is not, to that extent, a radical departure from that which had gone before it and that the 1902 temporary Act first of all invested State courts for the first time with this jurisdiction and called it federal jurisdiction, limited it to that and provided a procedure which was the same procedure as the State courts applied in dealing with claims against the State Crowns which they would understand.

It may be that, as his Honour Justice Kirby said, section 2 had a wider effect; that does not trouble our argument, your Honour. Certainly it is the first exercise of the legislative power granted by section 77. Then, Your Honours, the Judiciary Act 1903 provided in Part IX for “Suits By and Against the Commonwealth and the States”. Your Honours will appreciate that from section 56 to 67 there are a series of provisions which deal with that topic. In understanding the place of section 56 and 64, on the one hand, and 79 and 80 on the other, it is necessary to understand how all of these provisions fit together, or fitted together at the time, and, of course, still do.

Section 56, dealing with suits against the Commonwealth in contract or tort invests jurisdiction in State courts in (b) and (c). (a) is simply declaratory. In our submission, it recognises that the claim may of course be brought in the High Court but it needs to be - it is sensible to set out the various alternatives, but then invests the State courts with that power.

TOOHEY J: Are you saying, Mr Gyles, that if it were not for section 77(iii) section 56(b) - let me put it another way - that section 56(b) is passed in exercise of the power conferred by 77(iii).

MR GYLES: Yes, your Honour, that is our submission. They had done the same thing the previous year, but in the temporary Act, but in a different form.

We submit that is what section 56 does; it invests federal jurisdiction in the State courts to determine claims against the Commonwealth in contract or in tort.

BRENNAN CJ: Mr Gyles, in response to Justice Toohey you attributed 56 to 77(iii). What about 78?

MR GYLES: Your Honour, 78 is also a source of power in relation to this topic which deals with claims against the Commonwealth. Yes, with respect, that must be so.

TOOHEY J: Except that it depends how you read 78, I suppose.

MR GYLES: Yes.

TOOHEY J: But it may not be wide enough to be a jurisdiction-conferring provision.

MR GYLES: Yes, quite. But the two together, your Honours, are a sound foundation for what is done, and perhaps it is not necessary to decide or debate whether 78 on its own might have had that effect.

GUMMOW J: Well, the reference to courts in a territory is a problem, of course. But we do not need to get into that, I hope.

MR GYLES: No, your Honour, that is a different point.

GUMMOW J: Yes, that can be quarantined.

MR GYLES: Yes. Then, your Honours, the statute goes on to deal with suits by a State against the Commonwealth, suits against a State in matters of federal jurisdiction, suit between States, injunction against a State and its officers, suits by the Commonwealth and suits by a State, service of process, rights of the parties - section 64, to which I will come back - no execution against the Commonwealth or a State, performance by the Commonwealth or State - that is, payment of the judgment - and execution by the Commonwealth or a State.

Now, your Honours, in our respectful submission, there is no vestige of Crown procedure, or proceedings against the Crown, to be found in Part IX of the Judiciary Act, then or now. It assumes the juristic entities, Commonwealth and States, may litigate, sue and be sued, either private citizens or other members of the compact, the States, States between themselves, States against the Commonwealth, Commonwealth against the States, without any vestige of the proceedings against the Crown as would then have been understood. We respectfully submit that that is significant in resolving the issue which is before this Court now. Of all of those provisions, section 64 is the provision which theoretically could pick up limitations.

DAWSON J: How do you fit Cigamatic into all of this?

MR GYLES: Your Honour, Cigamatic is really ‑ ‑ ‑

DAWSON J: If the Commonwealth is a completely separate entity and its rights are not dependent - or immunity is not dependent on the rights of immunities of the Crown, then Cigamatic is wrong.

MR GYLES: Your Honour, first of all, it may be, your Honour. But my argument does not depend upon Cigamatic being wrong, because the issue as to ‑ ‑ ‑

DAWSON J: You say that as a litigant the Commonwealth is not subjected to the disabilities, immunities, privileges of the Crown. It is separate. That is what you say.

MR GYLES: What I am saying, your Honour, is that as a litigant the way it litigates is governed by the Judiciary Act and by the ‑ ‑ ‑

DAWSON J: Well, it may be but that is the result of what you say. You say that as a litigant the Commonwealth is a separate entity which is not subjected or does not have the privilege of the rights and obligations of the Crown, do you not?

MR GYLES: Your Honour, yes and no I think is the correct answer. My submission does not grapple with the question, “What about the prerogatives of the Crown and how are they ‑ ‑ ‑

DAWSON J: It does not matter whether they are prerogatives or not - the characteristics of the Crown, if you like.

MR GYLES: I would submit that it only becomes relevant if you are talking about prerogatives of the Crown which are introduced into, carried by the Crown as the executive government. As your Honour puts to me, it may well be that there are prerogatives imported by section 61.

DAWSON J: Let us get down to tin tacks. You say that the Commonwealth is not immune from suit because it is a separate entity whereas, if it were the Crown, it would be, absent legislation.

MR GYLES: Yes, that is correct, your Honour.

DAWSON J: You say that this entity, as it were, extracts itself and becomes something separate. Then you cannot live with Cigamatic.

MR GYLES: I submit we can, your Honour. Cigamatic dealt with on one view what was a prerogative of the Crown which would be imported by, for example, section 61.

DAWSON J: But it was the Commonwealth which was claiming the immunity which you say ‑ ‑ ‑

McHUGH J: It was a debt owing to the Commonwealth entitled to priority in a winding up, statute apart.

MR GYLES: Well, your Honour, that is the Cigamatic question.

McHUGH J: I know it is but you have to face up to it.

MR GYLES: Your Honour, certainly it would be easier for me to say that Cigamatic is wrong in that respect.

McHUGH J: It does not matter if Cigamatic was right or wrong.

MR GYLES: I do not need to get ‑ ‑ ‑

GUMMOW J: Why? Cigamatic just comes out of the federal structure.

GAUDRON J: And it is why you need section 77 in the Constitution.

MR GYLES: Yes.

GAUDRON J: It is not inconsistent with your argument.

DAWSON J: Well, I think it is.

MR GYLES: Your Honours, there are two views about that at least.

DAWSON J: And there is a right and a wrong one.

MR GYLES: That is so, your Honour. If Cigamatic is correct, in my submission, all that touches is a decision as to what prerogatives are carried by the Crown into its role under the Constitution. That would say nothing as to the questions which are here before the Court dealing with the Commonwealth as a litigant in other circumstances. If Cigamatic is incorrect, then it does not even need to be discussed.

GUMMOW J: They had these Cigamatic problems in the United States with not a Crown in sight.

MR GYLES: Yes, and there are always questions as to what are, as it were, those things inherently going with executive power and with maintaining a Constitution. That arises in all sorts of contexts, as your Honours know, from the Australian Assistance Plan Case downwards. There are many things which governments may do which you cannot find written out, but that ‑ ‑ ‑

DAWSON J: This Court did not tell us what it could or could not do in the Australian Assistance Plan Case.

MR GYLES: I agree with that, with respect, your Honour, but, nonetheless, it did grapple with the issue. For my purposes, the notion of the Crown as a litigant is not imported into the Constitution and not imported into the Judiciary Act, in my respectful submission. As far as section 64 is concerned, as the appellant concedes or says, whatever section 64 may mean, it is inappropriate to pick up a Limitation Act defence by the Commonwealth.

McHUGH J: Does not section 64 deny your basic thesis, because if your argument was right it would not be necessary, would it?

MR GYLES: No, that is not inconsistent with my basic thesis. My basic thesis is that the Commonwealth is an entity and by the Constitution is given - Chapter III defines what flows from that in terms of litigation. Section 64 deals, your Honour, with the issue as to, I suppose you could say a Cigamatic problem, perhaps. I mean, the Commonwealth may, as a litigant, carry with it powers and rights which the ordinary party does not have.

McHUGH J: And immunities.

MR GYLES: I beg your pardon, your Honour?

McHUGH J: And immunities, powerless rights.

MR GYLES: It may well, your Honour, it may well.

BRENNAN CJ: Is this the proposition: the Commonwealth as an entity is capable of suing and being sued under the Constitution, but in determining what its rights, liabilities, privileges and powers may be if the Commonwealth is being sued in respect of matters falling within section 61 it is entitled to be powers, privileges, rights and immunities of the Crown?

MR GYLES: Your Honour, I do not need to say yes or no to that. I mean, they carry - section 61 operates as section 61. If that means that you have all the prerogatives of the Crown then so be it.

BRENNAN CJ: You do not have to take it to the second point?

MR GYLES: No.

BRENNAN CJ: You stop at the first point and say that the Commonwealth is susceptible of suit and that is the end of the point that you have to make?

MR GYLES: Yes.

BRENNAN CJ: What rights and liabilities the Commonwealth has if one says that it is a Crown question is a matter that does not concern you?

MR GYLES: Yes.

BRENNAN CJ: Is that what you are saying?

MR GYLES: That is what we say, your Honour.

BRENNAN CJ: Yes.

MR GYLES: Section 64 is to be seen in that light also. It has its place and an important place to play because it may be that that is the section which denies to the Commonwealth any special advantages.

GUMMOW J: Immunity from discovery would be one, I suppose.

MR GYLES: Possibly so, your Honour, yes.

GAUDRON J: Anything that might flow from the Cigamatic doctrine?

MR GYLES: Yes. That may be an excellent example.

DAWSON J: Why should that flow to your independent entity?

MR GYLES: Because this section 64 relates to the Commonwealth and ‑ ‑ ‑

DAWSON J: Mr Gyles, really, what is the Commonwealth there?

MR GYLES: It is the party to this case relevantly.

DAWSON J: Yes. You keep saying that it is independent entity, but it is not the Commonwealth under section 61 so you say.

MR GYLES: Your Honour, it is the Commonwealth - in whatever guise, it is the Commonwealth.

DAWSON J: Yes, to determine what guise it is in, it is essential to determine whether, through section 61, there are these rights, privileges, immunities and so on.

MR GYLES: And, your Honour, if there are ‑ ‑ ‑

DAWSON J: No, but you have to say which guise?

MR GYLES: I submit not and, your Honour, in any event - and this perhaps gets back to my submission about section 64 - its place is to deal, under the authority of section 78 of the Constitution, with the very problem, and it says, “You shan’t have the advantages which you may carry with you”. That may have its implications for Cigamatic, your Honour, but we submit that is the fundamental point about section 64 and it is inapt to pick up a limitation statute which the Commonwealth may plead. I do not want to say too much about section 64, your Honour, because it is not put against me on this issue, but that is our rationale for section 64. It is not really appropriate and, as my learned friends put, there is no choice of law provision in section 64. It really does not help them in this case.

Then, your Honours, we turn to the other likely candidates, which are 79 and 80. Perhaps I should say before passing from section 64 of the Judiciary Act that Maguire v Simpson, which says that you pick up State limitation statutes in a case in a State court pleading limitation against the Commonwealth is not inconsistent with my main thesis.

GUMMOW J: Why is that, Mr Gyles? Why is it not?

MR GYLES: Because, your Honour, section 64 is effectively stripping away, I would submit, the advantages which a sovereign body may have in litigation against the individual. It is not there to erect or pick up some State statute, and Maguire v Simpson was in a State court, your Honour.

GUMMOW J: Yes.

MR GYLES: Section 79 and 80 it will be observed, your Honours, appear in a separate part of the Act, Supplementary Provisions. It is not part of the Act which deals with suits by and against the Commonwealth. My submission, your Honours, is that section 79 relates only to State courts exercising federal jurisdiction. We put that for more than one reason. The first reason is that is what the words are most apt to pick up because it has never been correct, we would submit, to suggest that the High Court exercises federal jurisdiction in any particular State or Territory. That is certainly a course, we submit, now clear under the 1979 Act, but it has always, in our submission, not been appropriate or sensible to speak of the High Court exercising federal jurisdiction in a particular place.

In the cases to which my learned friends have referred and which Justices of the Court have wondered about, it is delivering judgment in one place and sitting in another and so on, are a very pale reflection of the myriad of problems the way in which the Federal Court now operates in particular are caused by any other view than the one I am putting.

So first of all we submit that the language “all courts exercising federal jurisdiction in that State or Territory”, the language is apt to make the point.

TOOHEY J: Is it apt to include the Federal Court?

MR GYLES: No, your Honour, not in section 79.

TOOHEY J: Right. In speaking of section 79 you put the Federal Court in the same position as the High Court for the purposes of this Act?

MR GYLES: I do, your Honour. I do, because the Federal Court, since its inception, has never had a locality-based jurisdiction; it has always been an Australia-wide jurisdiction.

GAUDRON J: What about the old Bankruptcy Court; did it not only operate in some States with federal jurisdiction invested in State courts in other States?

MR GYLES: Yes, your Honour, and I think the family law was in a similar situation in Western Australia too.

GAUDRON J: It is conceivable that there might be a Federal Court ‑ ‑ ‑

MR GYLES: Which was limited, yes.

GAUDRON J: Yes. I think the Bankruptcy Court was.

MR GYLES: Yes, that may be so, your Honour. When answering the question I had in mind the present Federal Court of Australia and I should ‑ ‑ ‑

GUMMOW J: But that territorial limitation would be part of the definition of the jurisdiction of the Federal Court under 77(i), I suppose.

MR GYLES: It would have to be, your Honour; it would have to be. Your Honours, why is 79 there? The answer is, that it is to make clear - the Judiciary Act, for the first time in permanent form, invested State courts with federal jurisdiction and it had never happened before. Section 79 makes it clear that you take the Court as you find it subject to contrary laws of the Commonwealth or contrary provisions in the Constitution. Unless there is a necessary collision between the two you take the Court as you find it.

In one sense - and Chief Justice Griffith, who was the author of the Act, said this may be declaratory. The effect of it is to say, “You take that Court as you find it,” otherwise, an argument would have arisen as to by what laws and what procedure would a State court operate when exercising federal jurisdiction. This gives the answer, and it is a very straightforward and simple situation. Your Honours, of course, I accept immediately that, if this submission be right, a number of cases in this Court and elsewhere have proceeded upon a false analysis of section 79. Of course, we recognise that is - and a number of have been picked up by my learned friends in their submissions.

We submit that that being so does not now mean that the section will be not read as it ought to be read and as it was understood, in my submission, when it was inserted, and is now all the more appropriate for it to be read in that fashion. Section 80, your Honours, is - and, with respect, there has been very little analysis in the cases of the difference between section 79 and section 80 and to work out what part one plays against the other. Section 80, in our submission, deals not with the problems of investing State courts with federal jurisdiction, which is the section 79 problem, it deals with the common law of the Commonwealth.

GAUDRON J: But it did not originally, did it?

GUMMOW J: It said “common law of England” originally.

MR GYLES: Yes, I am using that in a descriptive sense, your Honour, to deal with the issue as to what law is to be applied where the Commonwealth statutes do not provide the answer or where they do not cover the topic. Something had to be decided as to what law you would then apply. The answer is the common law as modified appropriately. If it were not for section 80, you would have no answer to the question. There are some indications in the provision that it is not limited to State courts because the phrase which is used to describe the courts there is: “govern all Courts exercising federal jurisdiction in the exercise of their jurisdiction in civil and criminal matters”. It is a gap‑filling section.

GUMMOW J: It does have the phrase “in which the jurisdiction is exercised” though: “State or Territory in which”.

MR GYLES: Yes, “is held” is the - we still have, your Honour - I put alternate submissions. For the purposes of this case, suffice to say that section 80, no matter what its - whether it applies to Federal Courts or only to State courts does not matter from my point of view. All we want to establish is that section 80 is a gap‑filling procedure which nominates the common law as modified. It is not there to pick up every piece of statute law in the State or place, if your Honours take my point.

BRENNAN CJ: Well, I do not.

MR GYLES: Let me try and expand, your Honour, explain. The common law is - and this was discussed to some extent in the Native Title Case but the common law is a body of law which exists and is evolving which may be affected or modified by statute. In one sense of course, every statute modifies the common law because from then on it governs its own field, but that is not the sense in which I submit that is used.

BRENNAN CJ: Why not?

MR GYLES: Well, your Honour, because why would you not otherwise say “all of the laws of the State” as is done in 79. There is a distinction, your Honour, between all the laws operating in a State on the one hand and the common law on the other. To take a simple example, we would say the abolition of common employment doctrine is a modification of the common law but a statute of limitation is not. That is a procedural provision which stands alone or it may be a substantive provision standing alone depending on how it is framed. That does not modify the common law in that sense.

BRENNAN CJ: The common law says that you can bring an action in a court of competent jurisdiction to enforce a cause of action. The statute of limitations says you cannot.

MR GYLES: Well, your Honour, I submit that is not a correct analysis. The common law adverts to that body of judge‑made law which, for relevant purposes, establishes the causes of action. It does not deal with barriers. I mean, if you have got a - that is my submission, your Honour.

BRENNAN CJ: Yes.

MR GYLES: Section 80, I think it is fair to say, has not hitherto been seen as a source of picking up a limitation statute. Of course, your Honours, our further submission about section 80 is the submission that the preferred view is that it does only relate to State courts, if your Honours are against me on the place that section 80 plays so far as limitation statutes are concerned. Now, furthermore, your Honour, the purpose of section 80 is to provide adequate remedies or punishment, and that limit to section 80 would not encompass picking up a statute of limitations, it is to provide remedies or punishment. Picking up a limitation statute is the very antithesis of that.

Your Honours, my learned friend has provided the Court with some of the debates concerning section 78, and I do not know whether your Honours have access to those at the moment, but at page 1677 of the debates there was a statement by Mr Barton which, having noted the difference of opinion between himself, Mr Symon and Mr Isaacs, said:

This proposition is really made as a matter of safety. It will be a very awkward thing if it is discovered years after the Constitution is framed, instead of being discovered now, that where a subject has a valid right of action, except for the maxim that a king can do no wrong, he is precluded by the operation of that maxim under this Constitution.

The clause which was being there considered, your Honours, is set out at 1653:

Proceedings may be taken against the Commonwealth or a State in all cases, within the limits of the judicial power, in which a claim against a subject might be maintained.

I do not think my learned friend drew attention to the fact that Mr Barton was really putting this forward as a matter of safety. Now, your Honours, the debate on 75 was - by then there had been an amended version, which roughly corresponds with 78 of the Constitution. The debate on 75, in its then form, was a much shorter debate and is to be found amongst the documents I handed up this morning. It is page 320, 31 January 1898 and, as with much that comes from going back to the debates, it is a teasing contribution where Mr Glynn raises the very point:

I.....ask for a consideration of the points whether it gives any right or action in substitution of a petition of right against the Commonwealth?

Your Honour will see the subsection which is being referred to:

If it does not, what does it mean? The Commonwealth will under this provision take the place of the Crown. In parts of the Bill the term “Crown” is used in contradistinction to the word “Commonwealth,” but in other parts of the Bill the terms are synonymous. You cannot abrogate the laws as to a petition of right by implication. I would ask whether, under this provision, an action for torts or contract might be maintained against the Commonwealth without a petition of right?

Now, nobody gave the answer. We would say yes. Your Honours, Alexander’s Case was referred to by my learned friend in his argument yesterday in the note they did about the US cases, a passage from Mr Justice Isaacs. Now, your Honours, first of all we say in relation to the US cases that that is a very slippery slope in relation to this topic. The Judiciary Act equivalent is in different terms to ours and has had a very different history. In Alexander’s Case - and I think I handed up with the material this morning just a couple of pages from that decision - Chief Justice Griffith, who is acknowledged as the author of the Judiciary Act said some things which we submit are useful. The question arose in this way: section 68 of the Commonwealth Conciliation and Arbitration Act provided a right to a union “to recover from one of its members levies and dues which had become payable”. The proceedings were instituted in the special Magistrates Court of South Australia and the question was whether the South Australian Limitation Act applied to those proceedings. Chief Justice Griffith, at pages 312 to 313, refers, first of all, to:

Sec. 39 of the Judiciary Act 1903 provides that the several Courts of the States shall “within the limits of their several jurisdictions, whether such limits are as to locality, subject matter, or otherwise be invested with federal jurisdiction” in certain cases. I think that this provision must be construed as relating to matters arising under federal Statutes, and being of a nature analogous to those over which such Courts respectively have jurisdiction under State laws, and as also including any other matters in respect of which jurisdiction is conferred by a federal Statute, but so that in all respects other than subject matter the provisions of the State laws as to Courts of summary jurisdiction shall prevail. It cannot be disputed that if the complaint in this case arose under a State law the objection would be fatal. See in particular, the case of Tottenham Local Board of Health v Rowell (1) before the Court of Appeal -

et cetera:

The respondent also relies on sec. 79 of the Judiciary Act which expressly provides (perhaps only by way of declaration) that the laws of each State shall except as otherwise provided by the Constitution or the laws of the Commonwealth be binding on all Courts exercising federal jurisdiction in that State in all causes to which they are applicable. He contends that the Court of summary jurisdiction was therefore bound to give effect, as it did, to the provisions of section 10 of the Act of 1850.

The statement that “perhaps only by way of declaration” is of significance. His Honour then looks to see whether section 68 of the Commonwealth Conciliation and Arbitration Act otherwise provided, and concluded at 313, towards the foot:

In my opinion, words so obviously necessary for that purpose cannot fairly be construed either as conferring an entirely new jurisdiction upon the Court free from limits as to time, or as creating an exception within the meaning of sec. 79 of the Judiciary Act. I think that when the Federal Parliament confers a new jurisdiction upon an existing State Court it take the Court as it finds it, with all its limitations as to jurisdiction, unless otherwise expressly declared.

I submit that that is a firm foundation for the proper understanding of the place of section 79.

Your Honours, the only other authority that I should take your Honours to on this issue is New South Wales v The Commonwealth 32 CLR 201, and picking up, your Honours, the joint judgment at 210:

Applying now the same method of interpretation, by allowing the words of the Constitution to speak for themselves, it is difficult to see how any real doubt can exist. Sec. 75 of the Constitution is explicit: It says: - “In all matters -

and they are set out. What can be plainer:

“In all matters -

and this is (1), in which the Commonwealth is a party - and this is such a matter:

the High Court shall have original jurisdiction.”.....How, without direct violence to these explicit words, can it be contended then that this Court has not in this case “original jurisdiction”? We put aside for reasons already given the contentions as to “foreign sovereign,” and “sovereign States,” and take up the other grounds of contest. Sec. 78 says: “The Parliament may make laws conferring rights to proceed against the Commonwealth or a State in respect of matters of matters within the limits of the judicial power.” The exercise of that power, it is said, is a condition precedent to the suability of a State in the High Court in original jurisdiction. That is an error which it is not difficult to detect. There is undoubtedly in our common law a principle that the Sovereign cannot be sued in his own Courts.

Which is interestingly Hogg’s rationale for the point:

A tort by the Sovereign is impossible at common law; the fault, if any, being attributed to the subject who actually committed or authorized it - the Sovereign being assumed never to authorize a breach of the law. A contract or deprivation of property is open to redress by means of a petition of right, when, by consent of the Sovereign, justice is done. But there is also another principle in our common law, that the Sovereign may always sue in his own Courts. Even apart from statute the Crown may in some instances sue in one right and defend in another. Obviously the matter was one to be dealt with by the Constitution, which created mutual rights and obligations between Commonwealth and States and foresaw the necessity of some tribunal, not the judicial organ of any one State exclusively, to determine or finally determine possible disputes between Commonwealth and States, and between different States, and between States and residents of other States. As to these the Constitution at once enacted sec. 75 as a self-executing provision in the terms mentioned. The words “in all matters” are the widest that can be used to signify the subject matter of the Courts jurisdiction in the specified cases. “Matters” read with the context and in relation to “judicial power” are limited by the inherent sense of matters which a Court of law can properly determine, that is, by some legal standard. In the Boundary Case this point was fully expounded. The word “matters” is certainly wide enough to include the words which formed the basis of the decision in Farnell v Bowman. The Privy Council referring to the words in sec. 2 of the Act 39 Vict. No. 38, namely, “Any person having or deeming himself to have any just claim or demand whatever against the Government.” say (3): “These words are amply sufficient to include a claim for damages for a tort committed by the local Government by their servants.” Their Lordships made some valuable observations showing why they considered those earlier words should not be restricted by the maxim, “The King can do no wrong.” They referred to the circumstances of local Governments as pioneers of improvements, and to the consequential difference of circumstances when compared with those in England, and to the “greater hardship” that would arise here from the strict application of the maxim. Again, reference is made to a recital as to the reasons inducing the Legislature to pass the earlier Act afterwards amended, and their Lordships say (4): - “It could not, therefore, have been intended to limit the operation of the Act to cases in which the subject had a remedy by petition of right. The very object of the Act was to give a remedy in cases to which a petition of right did not extend. Why, then, should it be supposed that the Legislature intended to exclude cases of tort? Justice requires that the subject should have relief against the colonial Governments for torts as well as in cases of breach of contract or the detention of property wrongfully seized into the hands of the Crown. And when it is found that the Act uses words sufficient to embrace new remedies, it is hard to see why full effect should be denied to them.” It is true that their Lordships went on to state further reasons confirming the conclusion just stated; and those further reasons included a reference to sec. 3 in which the rights of the parties were declared to be as between subject and subject. But the earlier reasons are the broad main reasons, and are sufficient in themselves. They amount to saying that, notwithstanding the common law maxim, plain words of a statute expressly dealing with actions against the Crown are not to be cut down from their full singification where the nature of the statute requires for its proper and just effect that their full sense should be retained. Applying that principle, is it not obvious that the Constitution would fail greatly in effect if the word “matters” were not considered to include even “torts,” in other words, if it were not considered to include all claims for infringements of legal rights of every kind - all claims referable to a legal standard of right? The word would, without question, include a claim for breach of contract. Why should it not include a breach of some constitutional declaration of right or duty created by the very instrument containing sec. 75? For instance, sec. 90, forbidding States imposing customs laws or granting bounties on the production or export of goods after uniform customs duties were imposed by the Commonwealth. Suppose a State proceeded to raise a military force, contrary to sec. 114, or suppose the Commonwealth imposed a tax on the property of a State, or suppose the Commonwealth proceeded to make a railway in a State without that State’s consent: in any of those cases is it possible to think that sec. 75 of the Constitution was not intended to enable the complaining party - whether Commonwealth or State - to approach the High Court for redress? And if so, where is the room for the maxim at all in sec. 75 in view of this new Constitutional situation? The truth is that the King in his Imperial Parliament in passing the Constitution not only preserved the doctrine of the indivisibility of the Crown that applies throughout his dominions, but also recognized the divisibility of the powers of the Crown in respect of self-governing units of the Empire. In distributing powers, and providing for their respective spheres of application, and the effect of possible conflict, specific provision was also made by means of sec. 75 for the royal power of administering justice through the High Court in the cases mentioned, so that the new political relations established for Australians should in case of controversy be effectively determined. In a much higher degree and with a vastly greater force can these considerations be applied to sec. 75 so as to preserve the full meaning of the word “matters” in sec. 75, than could the important but less far-reaching considerations mentioned in Farnell v Bowman be applied to the phrase there in question. Further, if the word “matters” does not include torts, then nowhere is it included. If it be said that it does include torts but that torts have to be additionally dealt with, the question at once arises: Under what provision of the Constitution can a State be made liable for torts? It is, of course, unthinkable that a State can defeat sec. 75 by declining to be liable for its torts against the Commonwealth or another State.

And, your Honours, the joint judgment goes on to analyse the matter further and usefully, but that, perhaps, is sufficient for my purposes. We submit that the reasoning reflected in the judgment, which has never been overruled, is still the law and, furthermore, in my submission, correctly states the principles which are as valid now as they were then and, indeed, having in mind the practical problems that have been already mentioned in argument, a review of the position would indicate that this rethink having taken place the Commonwealth has not taken the course of legislating, as it might, a limitation appropriate to be applied in actions against it in the Federal Courts and that your Honours should say so. If that is the case, then of course Georgiadis would apply.

Your Honours, we submit that the analysis that I have just entered upon is also relevant to the submission that Georgiadis is correct. I might say, your Honours, we deal with that submission in our written submissions between pages 5 and 14. But if my analysis of the role of the Commonwealth is correct and the effect of section 75(iii) is correct, then the analysis which underlay much of the reasoning of Justice McHugh in Georgiadis would not, in our submission, be apt to describe the new situation upon Federation. The notion of Crown immunity as such became irrelevant at that point and it remained irrelevant thereafter, both by virtue of the Constitution and by virtue of the subsequent Commonwealth legislation.

That being the case it gives special force to the argument that you are dealing with an underlying cause of action not a statutory cause of action. It may be that the Constitution itself and the Imperial statute, if it remains of significance, and the Judiciary Act, if need be, enabled that position to be uncovered as it were. Your Honours will have noticed in that passage I read from the joint judgment in New South Wales v The Commonwealth, that it is described as the tort liability which is to be then enforced. That assumes that one can properly talk about tort liability and, of course, that means enforcing the common law of tort against the government.

That is what we seek to do here, common law, modified perhaps in some respects by statute, but basically that is what we are endeavouring to do; therefore, the underpinning, in my submission, of the majority judgment is all the stronger if that analysis be correct. Here, we are simply seeking to apply ordinary master/servant liability to the Commonwealth and that, whilst it may be enabled by statute, is not a statutory right in the sense dealt with in Peverill and by the principle. There is no new right created in that special sense, in our respectful submission.

May I then, your Honours, turn to the application of Georgiadis in the present circumstances, assuming it to be correct. May I firstly take the New South Wales case because that has taken up most of the argument. My learned friend indicated that his argument in relation to Victoria was more difficult than that in relation to New South Wales. When the matter is properly analysed, however, your Honours may think that is perhaps not correct. May I go firstly to the question which has been reserved. If I can ask your Honours to go to pages 395 to 396 of volume 2. There your Honours will see the notice of appeal which was permitted on the special leave application. The ground is:

The Full Court of the Federal Court erred in holding that the application of s 44(1).....to a cause of action.....constitutes an acquisition of property -

The orders sought in 3.3 are:

(i) that the question reserved pursuant to s 35(6).....to a Full Court for determination be answered “no” -

If your Honours go back then to page 380, your Honours will see the question set out:

“Whether section 44(1) of the Safety Rehabilitation and Compensation Act.....is invalid in its application to these proceedings as pleaded by the applicant in paragraph 4 of the Reply to the Commonwealth’s Defence paragraph 8.”

If your Honours would then take volume 1 and go to page 13, your Honours will see the statement of claim and, although the statement of claim is not directly relevant to this point, it is the start of the pleadings. May I point out that the pleading of the case does not plead any statutory right. It recites the original jurisdiction under 75(iii) but then simply pleads a common law case. The defence is at page 160 in which in paragraphs 6 and 7 the New South Wales Limitation Acts are pleaded. Paragraph 8:

Further and in the alterative the respondent states that the action is barred by ss 44 and 45 of the Safety Rehabilitation and Compensation Act (1988).

Your Honours, the reliance on section 45 has been abandoned. The reply is at page 168.

Now, in relation to the pleading of the Limitation Act, there are special replies to those pleadings. And then:

in reply to paragraph 8 of the Respondent’s defence, the Applicant denies that the cause of action is barred by sections 44 and 45.....and further denies the application of those sections because of the majority decision in Georgiadis v APTC, having regard to the facts and circumstances of the subject cause of action.

Thus, your Honours, the reserved question was the validity of the reply to the defence, which I have identified for your Honours, and that is firmly limited to, and relates only to, the validity of section 44, because that is what Georgiadis decided. It does not, in any sense, deal with the limitation defences as limitation defences to the action.

The limitation defences are, of course, relevant, because you come into the invalidity through the existence or non‑existence of the cause of action. But this is not a case about the application of those provisions. Of course, if it were, we have a very ready answer; we have the ability to have the time extended. Now, your Honours, I take that time to remind your Honours of the actual question so that we do not veer off into a discussion about how these Limitation Act provisions apply as an exercise in itself. Now, your Honours, I might also say that, of course, in relation to ‑ ‑ ‑

BRENNAN CJ: I am not sure how you are putting this, Mr Gyles, but, I mean, the argument that is put against is that once the Limitation Act provision bites, then there is nothing on which 51(xxxi) can fasten.

MR GYLES: Your Honour, I am not going to avoid the problem, but I am just ensuring that the focus is on the correct question, that is, the validity of section 44, not upon ‑ ‑ ‑

TOOHEY J: Well, except that paragraph 2 of your reply on page 169 joins issue with the extinguishment.

MR GYLES: Yes, quite so, your Honour, but that is not the question reserved in this case. I am not suggesting it has any great substantive effect, your Honours, it is just a circumstance which should not be lost sight of. Now, so far as the New South Wales cases are concerned, your Honours, the injury took place in October 1985. The Commonwealth Act came into force on 1 December 1988. That means, in our submission, that those two plaintiffs, Rock and Brandon, are in precisely the same position as in Georgiadis; there is no relevant distinction.

Inherent in that submission is of course the proposition that the Commonwealth statute spoke once and for all about past events. It is not correct to speak of it having an ambulatory operation, as my learned friend said. It is a difficult concept, the ambulatory operation, and may mask various correct analyses but what of course it means is that from then on the statute stands in the way of any contrary provision. But in relation to past accidents it operates as at 1 December 1988. That is our first answer and, we submit, a short and sound answer to the propositions put against us in relation to these cases. At the time of the Commonwealth Act coming into force there were still three years in which to bring the action and thus there was the extant cause of action in precisely the same way as there was in Georgiadis.

Your Honours, alternatively, if one looks at the defence, that only has relevance if an extension is granted. If there is no extension granted we have no case. By virtue of section 61 of the New South Wales Act, once that extension is granted, there can be no doubt, in conformity with the New South Wales decisions, that it is the same cause of action and it does not much matter how you analyse the position in the intervening period. That is an interesting question but it is irrelevant to the resolution of this case.

TOOHEY J: But the notice of appeal, if you look at page 388 in the matter of Mewett, contends that:

The Full Court of the Federal Court erred in holding that the application of -

the Act -

to a cause of action which is statute barred constitutes an acquisition of property -

On your argument the words “which is statute barred” really are superfluous.

MR GYLES: Otiose, yes, or superfluous. Your Honour, the order which is sought of course, your Honour sees at 3.3 on page 389, 3.3(i) is pinned back to the question reserved which is not put in those terms, if I could put it that way.

TOOHEY J: I am confusing myself perhaps, but would it then follow in terms of 3.3 that the order sought by (iii) that the whole of the proceedings be struck out be an appropriate order?

MR GYLES: No, indeed, your Honour, they would simply fail in that - that order - the only issue which by special leave was brought to the Court was the issue on the reserved question. If the reserved question were answered their way, then the result would be that the action should be stayed or struck out. I think that was accepted, I would imagine, your Honour, because it would be a total barrier to the action and may as well be got rid of.

If, however, they do not succeed in getting a correct answer to the question - they failed to get the right answer so far as they were concerned to the question reserved. If that is the case then there is no foundation for order (iii).

McHUGH J: Your argument is a very simple one. You say that the acquisition of property took place, if there was one, through the Act in December 1988. At that stage you had cause of action and that is the beginning and end of the case.

MR GYLES: That is it.

McHUGH J: It is just Georgiadis.

MR GYLES: It is Georgiadis, full stop.

McHUGH J: The fact that your cause of action may have expired three years later, if they had not purported to acquire it, decided it.

MR GYLES: That may leave limitation matters to be argued. In the event we say it will have no relevance at all because unless we get an extension from the Court we will not have a case at all.

GUMMOW J: That is a question that has not yet been decided.

MR GYLES: That has not yet been decided. If we do get an extension then section 61, so far as the New South Wales Act is concerned, has the express provision that ‑ ‑ ‑

DAWSON J: Do you not look at the present position to determine the value of the right that you say was acquired?

MR GYLES: We say it has gone, your Honour. If section 44 purported to do what it did in 1988, and that is ‑ ‑ ‑

DAWSON J: So you say you look at 1988 to determine its value?

MR GYLES: Yes, quite.

BRENNAN CJ: What was then acquired?

MR GYLES: In 1988?

BRENNAN CJ: Yes.

MR GYLES: The same topic as Georgiadis, your Honour.

BRENNAN CJ: Well, how do you describe it?

MR GYLES: The cause of action, your Honour, to sue the Commonwealth, the chose in action.

McHUGH J: Chose in action?

MR GYLES: Chose in action.

BRENNAN CJ: Was then acquired?

MR GYLES: Chose in action was acquired, if Georgiadis is correct.

BRENNAN CJ: How is it acquired in 1988?

MR GYLES: By the operation of the Act then.

BRENNAN CJ: But six years had not passed then.

MR GYLES: No, your Honour, but the Comcare Act ‑ ‑ ‑

BRENNAN CJ: Yes.

MR GYLES: It does not apply.

BRENNAN CJ: Yes, I see.

MR GYLES: That is why I took a little time just to distinguish the two points, your Honour. They are separate points.

BRENNAN CJ: Yes.

McHUGH J: Perhaps we should not have granted special leave in this case. Perhaps we should revoke it.

MR GYLES: That may be the correct result, your Honour. Your Honours might note that the judgments below of Justice Lindgren at 373 and onwards in Justice Cooper, 330 to 332, but I do not know that the position in its simplicity perhaps comes through those judgments, your Honours. In other words, we say there is no middle point: either we are correct in our basic submission that it happened in 1988; or the alternative is that you look at the position which will exist when the defence comes to be determined by the Court. In either event, we are secure.

I might remind your Honours in that respect of what was said by - my learned friends read, I think, yesterday parts of Merton and Dixon, both in 13 NSWLR. Could I take your Honours back to a couple of passages from those decisions. Merton, your Honours, is at page 454. If your Honours go to 457, their Honours are there speaking of the relationship between section 63 - which your Honours will recall is the extinguishment provision which has given rise to some of the difficulties - and 58 and conclude between C and D:

Whatever words are used, the result seems to us to be, once the order extending the limitation period has been made, that the person claiming to have a cause of action will be proceeding on the same cause of action he was in a position to claim on from the time it first accrued.

Your Honours, the same point appears in Dixon at 610 of the same volume, where, after referring to section 61 his Honour says, at B:

Anomalous though it may be, it is apparent that where the limitation period is extended by order made after the expiration of the limitation period the earlier extinguishment of the right is annulled, and the right is to be treated as though it had never been extinguished at some earlier point of time.

So that once that has happened, that is the result. We submit that the Court of Appeal is right in that analysis and that would be the end result.

Your Honours, I should also say that the Court has been provided, or was provided for the earlier hearing, with the two Law Reform of New South Wales Commission Reports into, first of all, the original section 63 ‑ or section 63 - and, also, as to section 68A, which came into force later and had the effect that you must plead the defence. Now, I do not want to weary your Honours by going through those reports as they touch on 63 and 68A, but we would submit that there is nothing in either report to indicate that the authors of the report, which were undoubtedly the foundation for the statute, were - that there was any policy desire to lead to a result in which a section 63 extinguishment would adversely affect anybody’s rights. That appears, your Honours, in particular from the consideration by the commission as to the question of whether the defence had to be pleaded.

Absent 68A, there was, of course, a question, does it mean that between the expiration of the period and the determination of any application to extend - what is the position? Does extinguishment mean that you do not have to plead it, it is just a statutory bar? A substantive statutory bar, not a procedural bar. And, in order to make clear that it was not intended to take away the rights, the section 68A coming into the Act made it clear that the effect, as far as the plaintiff was concerned - they were not intending to have any adverse effect upon the plaintiff.

In other words, the Georgiadis position remains. So long as the defendant must plead the defence, so long as it is open to the defendant not to plead the defence, it is impossible to say that the right has no value. Once one goes past the acquisition point upon which two of the Justices differed - once one goes past that, then the fact that the matter must be pleaded, in our submission, was in Georgiadis decisive, and remains decisive in all of these three cases. And the fact that 68A came into effect later does not matter in the circumstances, because the authors of the report which was the foundation for the original Act, and the drafting of 63, also make a report to say, “We really think section 68A is appropriate.”

Your Honours, I think the only authority which I - or two authorities which I would briefly refer your Honours to in this connection are Hoogland 108 CLR 471. If your Honours would firstly go to 476 in the judgment of the then Chief Justice, where, after reasoning the matter through, concludes at about point 5 of the page:

I retain the opinion that s. 63(3) is a provision controlling the exercise of a common law right of action and that the substantive right from which the controlled right of action springs continues to subsist. On the whole I think that the correct view to apply is that until the substantive right is completely lost by the final extinguishment of all remedy its subsistence should be recognized and the enlargement of the period of limitation upon the remedy treated as applicable to it. The consequence of course is that the limitation of time of twelve months for making an application for extension is carried forward so that it commences to run at the end of three years from the first payment of compensation.

And, your Honours, Mr Justice Windeyer at pages 488 to 490; if I could pick it up, your Honours, at 489 point 6:

What then were the rights of the parties in this case immediately before the amending Act was passed? For Hoogland, the prescribed period, then twelve months, within which he could have brought an action as of right had already passed; but he could still apply for an extension of the prescribed period, for twelve months from the end of that period had not yet passed. For the appellant, it could not be subjected to an action unless either it waived the defence that the prescribed period had expired, or that period was extended. So that at the time when the amendment came into force the respondent’s cause of action had not been extinguished, his remedy had not been finally barred, the appellant had not gained an absolute immunity from suit, and the respondent still could apply for an extension of time to put his cause of action in suit.

And at page 490, his Honour concludes, at point 4:

The respondent’s remedy had not been finally barred before the amending Act came into force. He still had a right to apply for an extension. It was this right that he sought to exercise, relying upon the extra time to do so that the amending Act gave.

Your Honours, the other short passage of which I would remind your Honours is in McKain v Miller 174 CLR 1, and the passage in the joint judgment to which I would refer is at page 44 where their Honours say:

The meaning and reality of the distinction can be perceived more clearly where the statute bars an action to enforce a contractual proprietary, or possessory, right than where it bars an action to enforce a claim for damages in tort. Nevertheless, there is a real distinction between a statute which extinguishes a right to damages and a statute which bars an action to enforce a right to damages, as a decision of this Court in The Commonwealth v Verwayen illustrates. At least the continued existence of a right to damages will furnish consideration for an agreement to settle the plaintiff’s claim. But, whether or not a distinction between a statute extinguishing a right and a statute barring an action to enforce the right be thought desirable it is firmly and clearly established as a principle of law. As the distinction has operated in practice free of injustice, there is no warrant for discarding it.

That is relevant, your Honours, to the question of value, in our respectful submission. So far as the argument - and this is an argument that applies both to - if it is relevant to look at the situation between 1988 and the present date, for New South Wales, and also relevant to the Victorian case to which I should now come. Our submissions as to - I am sorry, before doing that, your Honours, may I just put that submission. So far as the adoption of the New South Wales Limitation Act is concerned, it is simply not appropriate or possible, by whichever route that is done, to pick and choose bits of it. Either the New South Wales limitation regime applies or it does not. You simply cannot say, “I”ll take section 63 and use that and ignore section 61 and section 68A and ignore the possibilities of extension.

In our submission, your Honours, section 109 is a red herring. The question is whether or not you pick up the New South Wales regime, or not. If there is a contrary provision in the Commonwealth you may not, but you do not say, “I’ll decide it as a section 109 point.” With respect, there is no collision between the laws at all. You either pick it up as federal or you do not, and you do not pick it up piecemeal. Your Honours, the Victorian case of Mewett - our submissions are at page 31 to 34 of our submissions, and there is little I wish to elucidate on those further, your Honours. Section 5(1A) - and this has been spelt out, your Honours - has direct application to the present circumstances. It does not involve any element of discretion. It involves facts to be determined, and that is all.

Section 23A, given that this is clearly a procedural and not a substantive bar, must be taken into account when considering the nature of the rights or interests which the plaintiff had in 1988. By that time in this case, your Honours, the statute had expired so it is factually different from Georgiadis and from the other cases but, at the time - different in the sense that what might be called the initial period had expired, but the direct application of section 5(1A) means that in no sense can it be said that the limitation period has expired. It would be to pick on one aspect and not the whole picture.

We of course submit that even if we are dealing with section 23A, the right to seek an extension maintains value in the cause of action bearing in mind in particular that the defendant has to plead the defence.

TOOHEY J: On your approach, Mr Gyles, I take it that it does not matter whether the Limitation Act has an extension provision that depends upon objective facts or whether it provides for extinction after a period of a right to apply for an extension?

MR GYLES: Yes, that is my submission, your Honour. Looking at other contexts, other fields, that distinction between discretionary and, as it were, factual objective circumstances might be of some significance, but I submit not on the present field of discourse where, assuming Georgiadis to be correct and assuming it be right that the statute does not have to be pleaded and you may thus have consideration to support a settlement, there can be no doubt about the cause of action having a value. The assessment of it is a matter for debate. I suppose it would turn upon (a) the possibility of the defendant pleading or not pleading the statute; and (b) the chances of extension, whether discretionary or otherwise. But certainly section 5(1A) is of great assistance to us in our argument on this question, there being of course no equivalent of section 63 in the Victorian Acts.

Your Honours, much was made by my learned friend in his submissions as to the Ainsworth principle. Of course, that was dealt with in Georgiadis and I do not wish to remind your Honours of what was said about that point there. But your Honours will bear in mind that Ainsworth is merely perhaps a felicitous way of putting something that arises in quite a different statutory context and, indeed, a different context altogether.

It is deciding what was an overriding issue for the purposes of a Land Registration Act, which is a very different field of discourse to that in which we are operating here. Your Honours, I think amongst the material handed up this morning there were a couple of pages from Mathieson v Burton, 124 CLR 1. The passage I wish to remind your Honours was in the judgment of Justice Gibbs at 23, where in dealing with a particular provision his Honour said:

It is true that the right was both personal and temporary - it was not capable of assignment and endured only until representation of the estate of the deceased lessee should be granted or until a court of competent jurisdiction should make an order putting the respondent out of possession. However, to say, in the words of Sugarman P in Boyce v Hughes, that the right “is of a qualified, limited and transitory nature” is to define or explain the nature of the right but is not to deny its existence.

We would submit that those are the words which will be appropriate to your Honours’ examination of the point in issue here. Your Honours, I think I need not further trouble your Honours with an analysis of the argument which applies Georgiadis. We have endeavoured to spell that out in our written submissions and I hope that I have been able to isolate for your Honours those parts of the submissions which are crucial to our argument on that point.

Your Honours, may I just be given a moment to review some notes of matters raised by my learned friends to ensure that I have not overlooked something. I submit, your Honours, that section 6(c) of the Acts Interpretation Act does not assist in resolving this problem. First of all, it depends upon the context, of course, and when one reads that definition it does not really assist.

I think, your Honours, that the problems involved in the video links, remitters, joinder of the Commonwealth, cross‑vesting and the like have been sufficiently flagged during the course of argument. I do submit, your Honours, that just as section 109 has no application in the present circumstances, there is no implied repeal involved either. There is no contrariety between statutes which would lead to any implied repeal anywhere in this argument, in my submission. It should be noted, your Honour, that the relevant date for Brandon’s knowledge is May 1994, page 261. That was a miscellaneous point, your Honours.

KIRBY J: We have received a chronology from the Commonwealth. Did you have any comments? Rather, we have received a statement of facts and a purported chronology. The chronology does not give reference to transcript, as I think was contemplated, but do you have any comments on that document?

MR GYLES: No, your Honour. I may have added a couple of things during the course of oral argument. We have no quarrel with it.

BRENNAN CJ: Mr Gyles, have you anything to say about the question of costs?

MR GYLES: Yes, your Honour. I am instructed that an agreement was reached about the payment of costs. Rather than have a debate about what that means, your Honour, it may be better simply to order taxation and the parties, if they have got an agreement, can then give effect to it.

BRENNAN CJ: Mr Solicitor?

MR GRIFFITH: Your Honour, we have got no objection about a costs order . Mr Gageler will reply for the Attorney.

MR GAGELER: Your Honours, may I deal first with the questions last addressed, that is, the application of Georgiadis to the cases, first, of Rock and Brandon and then, secondly, of Mewett. Your Honours’ attention was drawn to the form of the question reserved. Your Honours’ attention should also be drawn to the significance of the fact that there was before the Federal Court, and before this Court also, a strike‑out application based on the operation of section 44 of the Commonwealth Act, it being common ground that in the cases of Rock and Brandon the primary limitation period under the New South Wales Act, section 14, had expired.

McHUGH J: But have you not put up a straw man, because if the statute constituted an acquisition of property, it did so on 1 December 1988 and, at that time, they had existing cause of action? True they had not instituted proceedings in courts, but they had causes of action.

MR GAGELER: Your Honour, that is the first of the ways in which the argument is now put against us, but the answer to that is that the Commonwealth statute did not speak once and for all on 1 December 1988, nor is the alternative that it has some ambulatory operation. The true position, in our submission, is that the Commonwealth statute spoke on and from 1 December 1988 speaking continuously in the present, and what it says continuously in the present is, “a cause of action shall not lie”. It said that on 1 December 1988 and the Court ‑ ‑ ‑

GUMMOW J: Is not that enough? That is what was put against you, was it not?

MR GAGELER: Your Honour, what the Court held in Georgiadis is that in so far as it said that in relation to existing causes of action on 1 December 1988 it was invalid. The Court did not say that in so far as it continues to speak in the present after 1 December 1988 in relation to a cause of action which has ceased to exist that it is invalid.

BRENNAN CJ: How do you make that last proposition work? On 1 December 1988, at least on 30 November 1988, the plaintiffs had a cause of action.

MR GAGELER: Yes.

BRENNAN CJ: According to your argument, on 1 December 1988 they had no cause of action.

MR GAGELER: No, that is precisely what my argument is not, your Honour. My argument is that on 22 October 1991, which was the date of the expiry of the six-year limitation period under the New South Wales Act, they ceased to have a cause of action. Section 44 of the Commonwealth Act was speaking ineffectively before that date.

GUMMOW J: Why?

MR GAGELER: Because before that date according to the majority in Georgiadis section 44 invalidly sought to effect an acquisition of property. On and from that date, 22 October 1991, section 44 continued to speak validly because it did not effect an acquisition of property. That is the argument, your Honour.

BRENNAN CJ: There was no property to acquire then?

MR GAGELER: Yes.

BRENNAN CJ: It had no effect, either, in 1988 or in 1991?

MR GAGELER: Your Honour, it was effective to say that a cause of action shall not lie.

BRENNAN CJ: There was none. It has no effect.

MR GAGELER: There was no cause of action.

BRENNAN CJ: It is irrelevant to these proceedings.

MR GAGELER: Then the question is, your Honour - the way in which it is now put, as I understand it, orally, is that there is, effectively, an abandonment of what I would call the suspended animation theory. That is that there was still something in existence on and from that date. What is now said is, as I understand it, that at the commencement of the action in the High Court and remitted to the Full Court that there was no cause of action under New South Wales law, but it is said that there is an opportunity to make an application under section 60G of the New South Wales Act and if there is such an application, and if it is successful, then that will result in section 61 of the New South Wales Act having its retrospective effect and the cause of action will spring back into existence, so the middle ground has been effectively abandoned.

What is being said is that it is accepted that there was no cause of action but that a cause of action may come into existence in the future. The answer to that, your Honour, is that a cause of action cannot come into existence in the future because section 44 of the Commonwealth Act can speak validly in the present and continuously to prevent such a cause of action coming into existence.

McHUGH J: This argument involves a question of construction of section 44 because section 44 is directed to actions. It says “no action or other proceeding for damages shall lie”.

MR GAGELER: Yes.

McHUGH J: So is your point that it has nothing to say about the chose in action itself except that you cannot bring a cause of action and that ‑ ‑ ‑

MR GAGELER: Exactly.

McHUGH J: ‑ ‑ ‑it could not validly operate in the period from 1 December 1988 until 1991 but after 1991 it is still operating?

MR GAGELER: That is exactly my point, your Honour, yes. That is the answer to the arguments ‑ ‑ ‑

McHUGH J: It rather underpins the point that Justice Toohey and Justice Dawson make in their judgment about acquisition.

MR GAGELER: Yes. Section 44 is invalid according to Georgiadis to the extent to which it affects an acquisition of property but not otherwise.

TOOHEY J: If it was not for section 51(xxxi), section 44 would just have its ordinary operation and render unmaintainable an action that was caught by it?

MR GAGELER: Exactly, yes. Your Honours, it is, in our submission, an error to focus unduly, as the Federal Court did and as our learned friend’s submissions do, on 1 December 1988 in relation to Rock and Brandon.

BRENNAN CJ: Is this the proposition, that we can take it that 51(xxxi) deprives the section of any force until the expiration of the time limited by the New South Wales Act?

MR GAGELER: For this part of the argument which involves an acceptance of the majority decision in Georgiadis, that is correct, your Honour.

GAUDRON J: I still have my same difficulty. You do not really get into the New South Wales Act until proceedings are commenced, on any view. You do not get into that until when; until it is pleaded? You just have no occasion to look to it unless you go back ‑ ‑ ‑

MR GAGELER: That is right, your Honour. We rely on section 44 to prevent us getting to that point.

GAUDRON J: But you have to get into the New South Wales Act to say it is statute barred, and you have no occasion to get into the Act until the proceedings commence.

MR GAGELER: There is a cause of action which under the New South Wales Act is said to be statute barred under section 14(1) by virtue of section 63. That cause of action ceases to exist. The fact that the bar or the defence or the extinguishment can be waived in proceedings makes no difference.

GAUDRON J: What I am putting to you is in the absence of any Commonwealth legislation barring an action, it is not barred until proceedings are commenced and the New South Wales Act is pleaded because no statute of limitations ever comes into operation as a picked-up law until the proceedings are commenced.

MR GAGELER: I think I understand your Honour’s question.

GAUDRON J: If the Commonwealth picks up a statute of limitations anywhere along the line as it may be able to do, it then only bars the action from that point at which the State law is picked up.

GUMMOW J: The State law is picked up when there is an action in the Federal Court et cetera. In other words, sections 79 and 80 are not Evans Deakinised.

MR GAGELER: I think the short answer to your Honour’s question is if that matters then the Commonwealth pleaded the Limitation Act in its defence. So that, at least from the date of that pleading being filed there is no reason why section 44 could not have operated.

There was reference to the decision of the Court in Hoogland. That case stands from the proposition that a cause of action which is statute barred in some circumstances may continue in existence. It does not say anything about the character of that cause of action as property, let alone property for constitutional purposes, nor was it concerned with the provision such as section 63 of the New South Wales Act.

Your Honours, going to Mewett, much was said about section 5(1A) of the Victorian Act. At the time of the commencement of the Commonwealth Act on 1 December 1988, and for some time thereafter, the six year limitation period imposed by section 5(1) of the Victorian Act had expired, and the events said to invoke the operation of section 5(1A) are not alleged to have accrued until August 1990. In our submission, there is no reason why section 44 of the Commonwealth Act should not have been given its full operation, and effective operation, during that interim period.

Your Honours, in relation to section 79, it was put to your Honours that that section of the Judiciary Act relates only to courts exercising federal jurisdiction - that is to State courts exercising federal jurisdiction. That is contrary to the provisions of section 26(b) and (c) of the Acts Interpretation Act which define a court exercising federal jurisdiction, the language used in section 79 and section 80, to mean any court when exercising federal jurisdiction and to include a federal court, and defined federal court to mean the High Court or any court created by the Parliament. That is a 1901 definition. It is contrary to that definition. It is also contrary to the historical precedent of the United States provisions to which reference was made in the note that was handed up. It would also produce an anomalous result that a cause of action commenced in a State court would be the subject, potentially, of a limitation period. The same cause of action commenced in a federal court or the High Court would not be. It is also contrary to a stream of authority in this Court, commencing with the decision of Justice Dixon in Cohen v Cohen.

A point was raised yesterday, I think, in a question from your Honour Justice Gummow about the operation of section 79 and section 11 of the Cross‑Vesting Acts. Your Honour, another way of answering your Honour’s query would be to say that section 79 picks up State law including section 11 of the State Cross‑Vesting Acts. Those are our submissions, your Honour.

BRENNAN CJ: Mr Gyles, Justice Gummow has one further question for you.

GUMMOW J: What is the response on your part to what Mr Gageler says as to the 1988 operation of section 44 and it continuing to speak at a later stage?

MR GYLES: Your Honour, it does involve to some extent construction of section 44.

GUMMOW J: Yes.

MR GYLES: Once that Act spoke, it operated. I mean, on the majority view in Georgiadis, at that point of time property was acquired, namely, the cause of action. It was acquired without just terms and was so invalid.

GUMMOW J: Yes, that is right, but, then, Mr Gageler says it has another bite later on.

MR GYLES: Well, our first answer is the answer I have given already, that once we have our extension of time granted the New South Wales provision means that the cause of action has always existed and, thus, is also acquired. At any time he cuts in, according to his argument, he would cut in on something. Either section 44 does work or it does not. If it does any work we say it acquires property according to the Georgiadis principle.

McHUGH J: Until Mr Gageler’s reply, I must say my prima facie view was that there was no ground for reopening Georgiadis but this point seems to raise the question as to whether the reasoning of Justices Dawson and Toohey is not quite compelling on this whole issue.

MR GYLES: Your Honour, that would be a very - your Honours, I take it that would not be done without giving us a fair ‑ ‑ ‑

McHUGH J: Yes. It has not been raised.

MR GYLES: It has not be raised, your Honour, and we have not really come prepared to meet that point. But as to the particular question, the first answer is, that you cannot - if you are picking up limitations at all you must pick up the whole New South Wales regime.

McHUGH J: I understand that, yes.

MR GYLES: And you cannot say, “Look at 63”, regardless of the fact of 61 and 68A in the Act. And that New South Wales regime has the effect, it is so held in the courts of New South Wales, and correctly held, that it is as if section 63 had no effect once that is granted. That is our first answer.

The second answer is that, in relation to past events, section 44 operates at the time it operates, your Honour. It is absurd to think of a springing use type operation of a section like this. It operates in the future as to events occurring in the future. As to the past, it speaks once and for all. Certainly, one does not have ambulatory operations for something which operates when it says it operates in relation to those things which have occurred to that stage.

So, in other words, to answer Justice McHugh, on a proper analysis you only ever get - I mean, if, as we say, we have a cause of action which is there at all times - and your Honours will, of course, appreciate our other answer is, you do not test the proposition by saying the Commonwealth has now pleaded the Act, when the nature of the acquisition is to be tested by saying, well, of course it was then valuable because it may not be pleaded against you. You do not say, well, ultimately it was pleaded, therefore, it was not valuable, looking back. We say that that Georgiadis principle would also have to be overturned to get my learned friend where he wants to go.

BRENNAN CJ: Have you anything to say in reply to that, Mr Gageler or Mr Solicitor?

MR GRIFFITH: Could I say something, your Honour? We wish to make it quite clear that implicit in the matters which we have raised and argued to the Court is the issue that we say the date of 22 October 1991 is the crucial date for Rock and Brandon. That is the chronology we put on page 2 and our argument has proceeded on this basis. So to us this is not a new point. We say that our whole Georgiadis point, when one looks at the chronology, depends on identifying the date - not the date of commencement but 22 October 1991 as the crucial date, so there is nothing new. So our submission is that that matter is there before the Court. I do not know whether my learned friend is reserving the position to say that if that is regarded as decisive in the minds of any of the Justices he should have a further right or the matter should be brought on. But ‑ ‑ ‑

GAUDRON J: The difficulty, though, is that Mr Gageler has conceded to me that it is a later date, or I understood him to so concede.

MR GRIFFITH: The date of expiry, I think, is ‑ ‑ ‑

GAUDRON J: No, perhaps the date of the commencement of the proceedings or perhaps the date of the filing of the defence.

MR GRIFFITH: Your Honour, we say it could be no later than that from the point of view of the application of section 79 on any view, but in our submission that would not put my learned friend’s position in any difficulty if one says that is a relevant date. We have no objection if the Court were to give my friend leave to put in submissions on that point as long as we have liberty to apply. We would say this is constituted in the matter before the Court on this appeal. That is the essence of our argument. We know that

the limitation period had not expired on the date of the coming into force of the Act in 1988. That is what the case is about.

Your Honours, could I also give a reference because it is useful to Paul Finn’s “Law and Government in Colonial Australia”, Chapter 6, “Claims Against the Government”. It is a useful chapter on the issue. Claims against the government from an Australian perspective.

GUMMOW J: Can we have copies?

MR GRIFFITH: We will give the Court copies, yes, your Honour. I never know nowadays whether it is given too much material to the Court to offer copies or not, but we will, your Honour.

GUMMOW J: It is not all that readily available, that text, actually.

MR GRIFFITH: I did not realise it was sold out out and it could not be obtained. Thank you.

MR GYLES: Your Honours, I just wish to make it clear; in answering the question earlier, and indeed, having mind what Mr Gageler said, we rely upon the judgments below and the arguments we have advanced in our written submissions as to the period between 88 and the case. We say that in New South Wales, as in Victoria, the ability to get an extension is probably during the whole of that period. I do not wish to be thought I do not adopt that argument, or put that argument.

BRENNAN CJ: The Court will consider its decision in this matter.

AT 1.01 PM THE MATTER WAS ADJOURNED

[1997] HCATrans 32

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