Georgiadis v Australian and Overseas Telecommunications Corporation

[1994] HCA 6

HIGH COURT OF AUSTRALIA

MASON CJ, BRENNAN, DEANE, DAWSON, TOOHEY, GAUDRON AND McHUGH JJ

GEORGIADIS v AUSTRALIAN AND OVERSEAS TELECOMMUNICATIONS CORPORATION

(1994) 179 CLR 297

9 March 1994

Constitutional Law (Cth)

Constitutional Law (Cth)—Powers of Commonwealth Parliament—Acquisition on just terms—Commonwealth employees—Injured worker entitled to compensation and tight of action for damages at common law—Statutory removal of right of action—Whether acquisition of property other than on just terms—The Constitution (63 and 64 Vict. c. 12), s. 51(xxxi)—Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth), s. 44.

Orders

Answer the question stated to the Full Court as follows:
Question: On the basis of the facts alleged in the statement of claim herein, is s.44 (of the Safety Rehabilitation and Compensation Act 1988 (Cth)) invalid in its application to the plaintiff?
Answer: As to a cause of action that was not statute barred before his action was commenced, s.44 is invalid in its application to the plaintiff. As to a cause of action that was statute barred, unnecessary to answer at this stage.

Order that the defendant pay the plaintiff's costs of the question stated.

Remit the matter to the Supreme Court of New South Wales for determination in accordance with this judgment.

Decisions

MASON CJ, DEANE AND GAUDRON JJ Speaking generally, a person employed by the Commonwealth or one of its agencies who suffered an employment injury was, until 1988, entitled to workers' compensation payments in accordance with the Compensation (Commonwealth Employees) Act 1971 (Cth) ((1) There was an earlier scheme which commenced with
the Commonwealth Employees' Compensation Act 1930 (Cth) and continued in various forms until 1971.) and, assuming negligence, was also entitled to maintain an action for damages at common law ((2) Note, however, that s.99 prevented any overlap in compensation and damages payments.). The common law action might become barred in accordance with a State limitation law if made applicable by s.79 of the Judiciary Act 1903 (Cth) ((3) See Barton v. Commissioner for Motor Transport (1957) 97 CLR 633 at 650; John Robertson and Co. Ltd. v. Ferguson Transformers Pty. Ltd. (1973) 129 CLR 65 at 88-89, 93-95; Maguire v. Simpson (1977) 139 CLR 362 at 376-377.).

2. A new scheme of compensation began on 1 December 1988 when the substantive provisions of the Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth) ("the Act") ((4) The Act is now known as the Safety Rehabilitation and Compensation Act 1988 (Cth). See the Commonwealth Employees' Rehabilitation and Compensation Amendment Act 1992 (Cth), s.4.) came into force. Sections 1 and 2 of the Act commenced operation on 24 June 1988. The Act continues the compensation entitlement of workers who were injured before the scheme began ((5) See s.124. Note, however, that this entitlement may be restricted, depending on entitlement under previous legislation.), but, in some cases, it purports to extinguish the right to sue for common law damages.

3. The plaintiff, Mr Constantinos Georgiadis, suffered injury in the course of his employment with the Australian and Overseas Telecommunications Corporation Limited ("Telecom") on five occasions before the new compensation scheme came into effect. The last two injuries occurred on 7 May 1985 and 4 March 1986. He brought an action for damages in the Supreme Court of New South Wales in respect of all five injuries, but not before the new scheme began.

4. It would seem that the time for bringing proceedings with respect to the first three injuries had expired well before Mr Georgiadis commenced his action. For the moment, those injuries can be put to one side and, unless otherwise indicated, what follows is concerned only with the causes of action based on the injuries sustained on 7 May 1985 and 4 March 1986. For convenience, those causes of action are referred to as though they constitute a single cause. It is common ground that, unless the Act validly provides otherwise, it is a live cause of action.

5. By its defence, Telecom pleaded that Mr Georgiadis' cause of
action was barred by s.44 of the Act. That section provides:

"(1) Subject to section 45, an action or other proceeding for damages does not lie against the Commonwealth, a Commonwealth authority or an employee in respect of: (a) an injury sustained by an employee in the course
of his or her employment, being an injury in
respect of which the Commonwealth or Commonwealth authority would, but for this subsection, be liable (whether vicariously or otherwise) for damages; ... whether that injury ... occurred before or after the
commencement of this section. (2) Subsection (1) does not apply in relation to an action or proceeding instituted before the commencement of this section."

6. Section 45 of the Act allows an employee who elects to that effect before any compensation is paid to bring proceedings for damages for non-economic loss, but only if compensation is payable under s.24, 25 or 27. Compensation is payable under s.27 only if it is also payable under s.24. By s.124(3), a person is not entitled to compensation under s.24 or 25 and, hence, not entitled under s.27, in respect of a permanent impairment that occurred before the scheme came into effect, unless he or she was also entitled to a lump sum under the scheme which applied when the injury was sustained. It is common ground that Mr Georgiadis was not so entitled.

7. By his reply, Mr Georgiadis asserted that the Act is invalid by reason that it effects an acquisition of property, namely, his right to bring an action for damages, other than on just terms as required by s.51(xxxi) of the Constitution. After his reply was filed, the proceedings were removed into this Court under s.40 of the Judiciary Act. When the matter came on for hearing, the Chief Justice stated the following question for the consideration of the Full Court:

"(O)n the basis of the facts alleged in the statement of claim ..., is s.44 (of the Act) invalid in its application to the plaintiff?"

8. It is well established that s.51(xxxi) operates as a constitutional guarantee and that, for that reason, "acquisition"
and "property" as used in that paragraph are to be construed
liberally ((6) Bank of N.S.W. v. The Commonwealth ("the Bank Nationalization Case") (1948) 76 CLR 1 at 349-350; Attorney-General (Cth) v. Schmidt (1961) 105 CLR 361 at 370-371; Clunies-Ross v. The
Commonwealth (1984) 155 CLR 193 at 201-202; Australian Tape Manufacturers Association Ltd. v. The Commonwealth (1993) 176 CLR 480 at 509.). In particular, s.51(xxxi) is "not to be confined pedantically to the taking of title ... to some specific estate or interest in land recognized at law or in equity ... but ... extends to innominate and anomalous interests" ((7) Bank Nationalization Case
(1948) 76 CLR at 349 per Dixon J). And "property" as used in s.51(xxxi) extends to "every species of valuable right and interest including ... choses in action" ((8) Minister of State for the Army v. Dalziel (1944) 68 CLR 261 at 290 per Starke J; see also at 285, 295.), "money and the right to receive a payment of money" ((9) Australian Tape Manufacturers Association Ltd. v. The Commonwealth (1993) 176 CLR at 509; Mutual Pools and Staff Pty. Ltd. v. The Commonwealth, unreported, High Court of Australia, 9 March 1994 at 10 per Mason CJ, 23 per Deane and Gaudron JJ). Clearly, a right to bring an action for damages for negligence is a valuable right ((10) See, as to the value of a cause of action for personal injuries which is lost in consequence of negligence on the part of a solicitor, Johnson v. Perez (1988) 166 CLR 351; Nikolaou v. Papasavas, Phillips and Co. (1989) 166 CLR 394; Kitchen v. Royal Air Force Association (1958) 1 WLR 563.). Thus, the question in this case is whether s.44 is a law with respect to the acquisition of that right for a purpose in respect of which the Parliament has power to make laws within s.51(xxxi).

9. Telecom and the Commonwealth, intervening, resisted the claim that s.44 involves an acquisition of property within s.51(xxxi) in two ways. First, they argued that, so far as the issue in this case is concerned, s.44 does no more than extinguish a cause of action which was not sued upon before the new compensation scheme came into effect. In this context, it was pointed out that, whatever else happened, neither Telecom nor any one else acquired the cause of action which Mr Georgiadis lost. The second argument was that s.44 did no more than modify the limitation period applicable to a cause of action which vested before the new scheme came into operation.

10. It is clear that "not every compulsory divesting of property is an acquisition within s.51(xxxi)" ((11) Trade Practices Commission v. Tooth and Co. Ltd. (1979) 142 CLR 397 at 408 per Gibbs J; The Commonwealth v. Tasmania. (The Tasmanian Dam Case) (1983) 158 CLR 1 at 247 per Brennan J). And as Mason J pointed out in The Tasmanian Dam Case ((12) (1983) 158 CLR at 145.), there is a distinction between a taking, which is the subject of the Fifth Amendment to the United States Constitution and an acquisition, with which s.51(xxxi) is concerned. His Honour went on to say that to constitute an acquisition within s.51(xxxi) "it is not enough that (the) legislation adversely affects or terminates a pre-existing right that an owner enjoys in relation to his property; there must be an acquisition whereby the Commonwealth or another acquires an interest in property, however slight or insubstantial it may be" ((13) ibid. at 145.).

11. There is another aspect of the distinction between a taking and an acquisition which is significant in the present case. "Taking" directs attention to whether there has been a divesting, a question which is answered by looking to the position of the person who claims that he has been deprived of his property. On the other hand, "acquisition" directs attention to whether something is or will be received. If there is a receipt, there is no reason why it should correspond precisely with what was taken. That is particularly so with "innominate and anomalous interests" ((14) Bank Nationalization Case (1948) 76 CLR at 349.). Thus, the fact that neither Telecom nor any one else now has the cause of action which was previously vested in Mr Georgiadis is not conclusive of the question whether there has been an acquisition of property for the purposes of par.(xxxi).

12. Telecom and the Commonwealth relied on the difference between a taking and an acquisition to argue that the extinguishment of a cause of action cannot constitute an acquisition. Of course, it will often be the case that it does not, as, for example, where the cause of action is extinguished by judgment or by the effluxion of time ((15) Note, this will only occur if there is legislation which bars the action rather than the remedy. See, on this general question, The Commonwealth v. Verwayen (1990) 170 CLR 394 at 405, 456, 473, 486-487, 497.). But the position may well be different in other circumstances.

13. It is often said in relation to constitutional guarantees and prohibitions that "you cannot do indirectly what you are forbidden to do directly" ((16) Wragg v. State of New South Wales (1953) 88 CLR 353 at 387-388. See, with respect to s.51(xxxi), Bank Nationalization Case (1948) 76 CLR at 349-350; Attorney-General (Cth) v. Schmidt (1961) 105 CLR at 371. See, generally, Grannall v. Marrickville Margarine Pty. Ltd. (1955) 93 CLR 55 at 78; Caltex Oil (Aust.) Pty. Ltd. v. Best (1990) 170 CLR 516 at 522-523.). That maxim is, in fact, an important guide to construction, indicating that guarantees and prohibitions are concerned with substance not form. Within that context, it is relevant to consider, by way of example, a vested cause of action against the Commonwealth for goods sold and delivered. If legislation extinguished that cause of action, it would, in substance, effect its acquisition ((17) See Mutual Pools and Staff Pty. Ltd. v. The Commonwealth unreported, High Court of Australia, 9 March 1994 at 10 per Mason CJ, 24 per Deane and Gaudron JJ; see also at 61 per McHugh J), for the Commonwealth, having obtained the goods in exchange for its promise to pay, would be freed from its liability on that promise. Accordingly, "acquisition" in s.51(xxxi) extends to the extinguishment of a vested cause of action, at least where the extinguishment results in a direct benefit or financial gain (which, of course, includes liability being brought to an end without payment or other satisfaction) and the cause of action is one that arises under 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. There is no acquisition of property involved in the modification or extinguishment of a right which has no basis in the general law and which, of its nature, is susceptible to that course. A law which effected the modification or extinguishment of a right of that kind would not have the character of a law with respect to the acquisition of property within s.51(xxxi) of the Constitution ((18) See Health Insurance Commission v. Peverill, unreported, High Court of
Australia, 9 March 1994 per Mason CJ, Deane and Gaudron JJ).

14. So far as the issues in this case are concerned, the effect of s.44, if valid, is to extinguish a vested cause of action that arose under the general law. That is so even if the right to proceed against the Commonwealth is properly identified as a statutory right. And its effect is to confer a distinct financial benefit on the Commonwealth and its agencies in respect of their pre-existing liability for employment injuries falling outside s.45 of the Act. In our view, the position is no different from that involved in the extinguishment of a vested cause of action against the Commonwealth for goods sold and delivered. Doubtless, Mr Georgiadis and other workers provided their skill and labour on the basis that they were entitled to damages at common law as well as workers' compensation benefits if injured as a result of Telecom's negligence. In that context, the right to damages can realistically be seen as part of the overall quid pro quo for the work performed. Thus and so far as it bears on the issues in this case, s.44 is, in substance, if not in form, a law for the acquisition of causes of action against the Commonwealth and its agencies which vested in employees before s.44 came into operation but which now fall outside s.45 of the Act.

15. Not every Commonwealth law with respect to the acquisition of property falls within s.51(xxxi) of the Constitution. It may be outside that paragraph because, although it effects an acquisition of property, it is a law of a kind that is clearly within some other head of legislative power ((19) As to why this is so, see Mutual Pools and Staff Pty. Ltd. v. The Commonwealth, unreported, High Court of Australia, 9 March 1994 at 7-9 per Mason CJ, 25-26 per Deane and Gaudron JJ). That is the case with a law imposing taxation or a law providing for the sequestration of the estate of a bankrupt. Or it may be outside s.51(xxxi) because it effects an acquisition of a kind that does not permit of just terms, as in the case of a law imposing a penalty by way of forfeiture ((20) See Director of Public Prosecutions v. Lawler, unreported, High Court of Australia, 9 March 1994 at 2-3 per
Mason CJ, 13-14 per Deane and Gaudron JJ). And, it may fall outside s.51(xxxi) because it cannot fairly be characterized as a law for the acquisition of property for a purpose in respect of which the Parliament has power to make laws. That will generally be the case with laws directed to resolving competing claims or providing for "the creation, modification, extinguishment or transfer of rights and liabilities as an incident of, or a means for enforcing, some general regulation of the conduct, rights and obligations of citizens in relationships or areas which need to be regulated in the common interest" ((21) Mutual Pools and Staff Pty. Ltd. v. The Commonwealth, unreported, High Court of Australia, 9 March 1994 at 28 per Deane and Gaudron JJ; see also at 9 per Mason CJ).

16. It cannot be said that a law extinguishing a cause of action for damages for employment injuries sustained as the result of the negligence of the Commonwealth or its agencies is so clearly within some other head of legislative power that it falls outside s.51(xxxi), as is the case with a law imposing taxation. Nor does s.44 of the Act effect an acquisition of a kind that does not permit of just terms, as is the case with a law imposing a penalty by way of forfeiture.
However, the argument that s.44 does no more than modify the limitation period applicable to a cause of action which vested before the new scheme began is, in effect, an argument that s.44 is not fairly characterized as a law with respect to the acquisition of property within s.51(xxxi).

17. However, it is by no means accurate to describe s.44 as a law modifying the limitation period applicable to causes of action with respect to injuries sustained by Commonwealth employees before the new scheme came into effect. Subject to s.45, which does not apply in the present case, s.44 puts an end to a cause of action against the Commonwealth or its agencies if it was not sued upon before it, s.44, came into effect. Section 44 operated once and for all as a final measure terminating those causes of action which fall outside s.45, not as a measure prescribing the time in which
proceedings were to be commenced. Moreover, even if s.44 is characterized as a law with respect to the rights and liabilities of Commonwealth employees, on the one hand, and the Commonwealth and its agencies, on the other, in relation to employment injuries, it does not follow that it lacks the character of a law with respect to the acquisition of property for a purpose for which the Parliament has power to make laws ((22) See, as to the laws which bear more than one character, Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v. Dignan (1931) 46 CLR 73 at 103-104; Crowe v. The
Commonwealth (1935) 54 CLR 69 at 94; Herald and Weekly Times Ltd. v. The Commonwealth (1966) 115 CLR 418 at 434; Murphyores Incorporated Pty. Ltd. v. The Commonwealth (1976) 136 CLR 1 at 8, 20-21; Mutual Pools and Staff Pty. Ltd. v. The Commonwealth,
unreported, High Court of Australia, 9 March 1994 at 27 per Deane and Gaudron JJ).

18. One consequence of s.51(xxxi)'s operation through characterization and concern with substance is that there will inevitably be borderline cases in which the question whether a law bears the distinct character of a law with respect to the acquisition of property for a s.51(xxxi) purpose is finely balanced. The present is such a case. On balance, we have reached the conclusion that s.44 does possess such a distinct character.

19. It may well be that, if s.44 appeared in legislation establishing a compensation scheme applying to employers and employees generally (assuming power to enact a scheme of that kind), it would not fairly be characterized as a law for the acquisition of property for a purpose for which the Parliament has power to make laws. But when s.44 is viewed in the context of a scheme which applies only to Commonwealth employees, it may be fairly characterized as a law for the acquisition of the causes of action which vested in those
employees prior to the commencement of the new scheme. That acquisition is for the purposes of that scheme, that is to say, it is for a purpose for which the Parliament has power to make laws. It is true that s.44 may be susceptible of other characterizations for other purposes. For the purposes of s.51(xxxi) of the Constitution, however, it bears a distinct character as a law with respect to the acquisition of property within that paragraph ((23) See, generally, Mutual Pools and Staff Pty. Ltd. v. The Commonwealth, unreported, High Court of Australia, 9 March 1994 at 8-9 per Mason CJ, 27 per Deane and Gaudron JJ).

20. The Act provides no compensation whatsoever with respect to the causes of action which vested before the new scheme commenced and which, being outside s.45, are, in substance, acquired by s.44. Accordingly, s.44 is invalid to that extent by reason that it effects an acquisition of property other than on just terms as required by s.51(xxxi) of the Constitution.

21. As noted earlier, what has been said thus far concerns only the two causes of action which were not statute barred before these proceedings were commenced. The position with respect to a statute- barred cause of action was not explored in argument. It is arguable that a cause of action that is statute barred, whether it is the action or the remedy that is barred, is not a valuable right and, thus, not property for the purposes of s.51(xxxi). Whatever the position, the reserved question, as it bears on a statute-barred cause of action, is largely, if not entirely, academic. It does not require an answer at this stage. We would answer the question reserved as follows:

As to a cause of action that was not statute barred before his action was commenced, s.44 is invalid in its application to the plaintiff. As to a cause of action that was statute barred, unnecessary to answer at this stage.

BRENNAN J The plaintiff, Mr Georgiadis, had a claim for damages for negligence occasioning personal injuries against his employer, the Australian Telecommunications Commission. By successive legislative provisions ((24) Telecommunications Act 1975 (Cth), ss.4, 4A (inserted by Telecommunications Amendment Act 1988 (Cth), s.6); Australian
Telecommunications Corporation Act 1989 (Cth), ss.12, 13; Australian and Overseas Telecommunications Corporation Act 1991 (Cth), s.11(b).), the Commission's liability became the liability of the defendant Corporation. On 17 September 1990 the plaintiff commenced proceedings in the Supreme Court of New South Wales to enforce his claim. His statement of claim alleges a series of incapacitating accidents and it may be that some of his claims or part of his claim would be barred by operation of the general statute of limitations. Section 44 of the Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth) ("the 1988 Act") ((25) Now called the Safety Rehabilitation and Compensation Act 1988 (Cth).) was pleaded as a bar to the whole of the plaintiff's action. The matter was removed into this Court in order to determine the constitutional validity of s.44 in its application to the plaintiff's claim. It is unnecessary to consider whether s.44 had any effect on the plaintiff's "stale" claims. The validity of s.44 can be tested by reference to its effect on claims which, s.44 apart, are enforceable against the defendant. Section 44(1) reads as follows:

" Subject to section 45, an action or other proceeding for damages does not lie against the Commonwealth, a Commonwealth authority or an employee in respect of: (a) an injury sustained by an employee in the course of his or her employment, being an injury in respect of which the Commonwealth or Commonwealth authority would, but for this subsection, be liable (whether vicariously or otherwise) for damages; or (b) the loss of, or damage to, property used by an employee resulting from such an injury; whether that injury, loss or damage occurred before or
after the commencement of this section."

It is common ground that s.45 has no application to the plaintiff's claims.

2. The question is whether the extinguishment of the plaintiff's cause of action is an "acquisition of property on just terms from any ... person for any purpose in respect of which the Parliament has power to make laws" within the meaning of that text quoted from s.51(xxxi) of the Constitution.
Just terms

3. The Commonwealth submitted that, if the extinguishment of the plaintiff's cause of action amounts to an acquisition of property, s.44 provides just terms for the acquisition "taking into account the interests of the community". It was submitted that the plaintiff could have brought his action after s.44 was enacted but before it was proclaimed to come into force on 1 December 1988 and that the 1988 Act merely shortened the limitation period. But it is erroneous to regard s.44(1) as operating simply to shorten a period of limitation: in terms it extinguished the causes of action to which it refers that were in existence when s.44(1) was proclaimed to commence under s.2(2) of the 1988 Act. The validity of a law must be tested by reference to its legal operation on proprietary rights ((26) Fairfax v. Federal Commissioner of Taxation (1965) 114 CLR 1 at 7; Actors and Announcers Equity Association v. Fontana Films Pty. Ltd. (1982) 150 CLR 169 at 216.). If it imposes a burden which is otherwise invalid, it does not acquire validity merely because an affected person could have acted to avoid the burden before the law came into force. Further, it was submitted that the legislative scheme which then came into force provided monetary and other benefits without proof of negligence and provided for speedy rehabilitation for injured workers and incentives for their early return to work. The benefits provided by the 1988 Act do not provide just terms for the extinguishment of a cause of action vested in an injured worker. If a worker is entitled at common law to a lump sum award in damages, it is not within the power of the Commonwealth under s.51(xxxi) to limit the amount which it or a statutory authority may have to pay the worker ((27) Johnston Fear and Kingham and The Offset Printing Co. Pty. Ltd. v. The Commonwealth (1943) 67 CLR 314 at 322, 327.) or to delay the worker's entitlement to payment ((28) The Commonwealth v. Tasmania (the Tasmanian Dam Case) (1983) 158 CLR 1 at 291.). In determining the issue of just terms, the Court does not attempt a balancing of the interests of the dispossessed owner against the interests of the community at large. The purpose of the guarantee of just terms is to ensure that the owners of property compulsorily acquired by government presumably in the interests of the community at large are not required to sacrifice their property for less than its worth. Unless it be shown that what is gained is full compensation for what is lost, the terms cannot be found to be just. Section 44 purports to extinguish a plaintiff's cause of action without compensation; it does not provide just terms for the extinguishment.

Is the plaintiff's claim "property"?

4. The validity of s.44 therefore depends on whether s.44 provides for an acquisition of property. For reasons which I have given in Mutual Pools and Staff Pty. Ltd. v. The Commonwealth ((29) Unreported, 9 March 1994.), I would hold that, if the plaintiff's rights against the Commonwealth were proprietary in nature, the extinguishment of those rights by s.44 would amount to an acquisition of property. The Corporation acquired a release from liability in damages to the plaintiff and as that liability was the correlative of the plaintiff's claim, the release acquired is of the same nature as the claim extinguished. What, then, is the nature of a claim in negligence for
damages for personal injury?

5. A plaintiff's claim in negligence causing personal injuries is a chose in action, as the Court of Appeal decided in Curtis v. Wilcox ((30) (1948) 2 KB 474.). In that case it was held that a wife's claim for damages for pre-nuptial negligence was part of her property ((31) By s.24 of the Married Women's Property Act 1882 (U.K.), "property" was defined to include a thing in action.) for which she was entitled to sue her husband pursuant to the Married
Women's Property Act. Although such a cause of action is not assignable, their Lordships rejected the argument that assignability is the test of whether a claim in negligence was a chose in action ((32) (1948) 2 KB at 481.) and, in my respectful opinion, rightly so. It is not by reason of its nature that such a claim is not assignable; it is for reasons of public policy that the courts have held that such a claim is not assignable ((33) Trendtex Trading v. Credit Suisse (1982) AC 679 at 703 per Lord Roskill.), thereby avoiding the evils of champerty ((34) ibid.; see also per Lord Denning MR in the Court of Appeal: (1980) QB 629 at 656.). And, as Mason J pointed out in Reg. v. Toohey; Ex parte Meneling Station Pty. Ltd. ((35) (1982) 158 CLR 327 at 342-343; see also Australian Capital Television Pty. Ltd. v. The Commonwealth (1992) 177 CLR 106 at 165-166.): "Assignability is not in all circumstances an essential characteristic of a right of property." It needs no extension of the meaning of "property" in s.51(xxxi) to comprehend a chose in action for damages for negligence causing personal injury. That paragraph, which is construed liberally as befits a constitutional guarantee of just terms ((36) Australian Tape Manufacturers Association Ltd. v. The Commonwealth (1993) 176 CLR 480 at 509.), protects common law choses in action which are vested in an individual ((37) Minister of State for the Army v. Dalziel (1944) 68 CLR 261 at 285, 290, 295.).

The application of s.51(xxxi)

6. The Commonwealth, pointing to the common law immunity of the Crown from liability in tort, submitted that the right to sue the Commonwealth in tort is the creation of Commonwealth law (notably ss.56 and 64 of the Judiciary Act 1903 (Cth)) and that a cause of action that is seen to depend on a law of the Commonwealth is inherently liable to extinguishment by any subsequent law of the Commonwealth. 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). It may be - it is not necessary to decide - that the Commonwealth's immunity in tort was removed by laws of the Commonwealth but, so long as that immunity is removed, the causes of action created by the common law and vested in a person are protected by s.51(xxxi).

7. I would therefore hold that s.44(1) of the 1988 Act attracts the operation of s.51(xxxi) of the Constitution and, in relation to causes of action enforceable at the time when s.44(1) commenced, is invalid. I would answer the question reserved in the same terms as the answer
given by the Chief Justice, Deane and Gaudron JJ

DAWSON J The plaintiff, Mr Georgiadis, commenced an action in the Supreme Court of New South Wales against the defendant, a Commonwealth authority, claiming damages in negligence for personal injuries sustained in the course of his employment by the Australian Telecommunications Commission, whose assets and liabilities were transferred to the defendant. In addition to denying negligence, the defendant pleaded by way of defence that the plaintiff's claim is barred by s.44 of the Safety Rehabilitation and Compensation Act 1988 (Cth) ("the 1988 Act"). The plaintiff in his reply alleged that the 1988 Act is beyond the power of the Commonwealth Parliament by reason of s.51(xxxi) of the Constitution. Section 51(xxxi) provides that the Parliament may make laws with respect to the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws.

2. The matter was removed into this Court under s.40(1) of the Judiciary Act 1903 (Cth). During the course of proceedings in this Court the Chief Justice stated a question for the consideration of the Full Court, namely, whether, on the basis of the facts alleged in the statement of claim, the 1988 Act is invalid in its application to the plaintiff. Section 44 of the 1988 Act relevantly provides:

"(1) Subject to section 45, an action or other proceeding for damages does not lie against ... a Commonwealth authority ... in respect of: (a) an injury sustained by an employee in the course of his or her employment, being an injury in respect of which the ... Commonwealth authority would, but for this subsection, be liable (whether vicariously or otherwise) for damages; ...

whether that injury, loss or damage occurred before or after the commencement of this section."

Section 45 of the 1988 Act provides:

"(1) Where:

(a) compensation is payable under section 24, 25 or 27 in respect of an injury to an employee; and (b)... a Commonwealth authority ... would, but for subsection 44(1), be liable for damages for any non-economic loss suffered by the employee as a result of the injury;

the employee may, at any time before an amount of compensation is paid to the employee under section 24, 25 or 27 in respect of that injury, elect in writing to institute an action or proceeding against ... the Commonwealth authority ... for damages for that non-economic loss. (2) Where an employee makes an election:

(a) subsection 44(1) does not apply in relation to an action or other proceeding subsequently instituted by the employee against ... the Commonwealth authority ... for damages for the non-economic loss to which the election relates; and (b) compensation is not payable after the date of the election under section 24, 25 or 27 in respect of the injury. (3) An election is irrevocable.( (4) In any action or proceeding instituted as a result of an election made by an employee, the court shall not award the employee damages of an amount exceeding $110,000 for any non-economic loss suffered by the employee."

3. Thus s.44 of the 1988 Act removes the common law right of an employee to claim damages against a Commonwealth authority unless s.45 applies. Section 45 only applies if s.24, 25 or 27 applies ((38) Safety Rehabilitation and Compensation Act, s.45(1)(a).). Under s.124(3), ss.24 and 25 do not apply to a person injured before the 1988 Act commenced if "the person was not entitled to receive compensation of a lump sum in respect of that impairment ... under the (Compensation (Commonwealth Government Employees) Act 1971 (Cth) ("the 1971 Act")) as in force when the impairment ... occurred". Under the 1971 Act the plaintiff was entitled to weekly or other compensation and to pursue a claim for damages at common law ((39) See the 1971 Act, s.99, between its commencement on 1 September 1971 and its repeal on 1 December 1988.). However, he was not entitled to a lump sum. A lump sum was only payable to an employee under the 1971 Act for the incapacities set out in ss.39-42 of the 1971 Act, which do not include back injuries. The plaintiff's claim is in respect of a back injury. It follows that ss.24 and 25 of the 1988 Act do not apply to the plaintiff. Liability under s.27 of the 1988 Act is dependent upon liability under s.24 of the 1988 Act.

4. The result is that the plaintiff could, but for the 1988 Act, claim damages at common law. The 1988 Act purports to extinguish the plaintiff's claim for damages for his back injury, although it would allow a common law claim for damages for non-economic loss for a similar injury occurring after the commencement of the 1988 Act.

5. It may be assumed for the purpose of this decision that the right to maintain an action for the recovery of unliquidated damages for personal injury constitutes property for the purposes of s.51(xxxi), whilst recognizing that it is a personal right which is not capable of assignment at law or in equity and would, in other contexts, not be regarded as property ((40) See Poulton v. The Commonwealth (1953) 89 CLR 540 at 602; Hepples v. Federal Commissioner of Taxation (1990)
94 ALR 81 at 102-103.). Although I do not find it necessary in this case to decide whether the plaintiff's bare right of action constitutes property, it is appropriate to recognize that, because s.51(xxxi) forms a guarantee against unjust appropriation, the word "property" in that paragraph is to be given a generous interpretation. It extends to innominate and anomalous interests not recognized as proprietary either at law or in equity ((41) See Bank of N.S.W. v. The Commonwealth ("the Bank Nationalization Case") (1948) 76 CLR 1 at 349-350; The Commonwealth v. Tasmania (The Tasmanian Dam Case) (1983) 158 CLR 1 at 246-247.).

6. But having said that, it is also necessary to observe that s.51(xxxi) is concerned, not with the acquisition of financial benefit or advantage, but with the acquisition of property. Property's worth is not the same thing as property and the divesting of a proprietary right is not the same thing as acquiring it. The divesting of a proprietary right may amount to a taking, and were s.51(xxxi) to contain a prohibition against the taking of property without just compensation as does the Fifth Amendment in the United States, the situation would be different. But the emphasis in s.51(xxxi) is on acquisition and "there must be an acquisition whereby the Commonwealth or another acquires an interest in property however slight or insubstantial it may be" ((42) The Tasmanian Dam Case (1983) 158 CLR at 145 per Mason J See also Reg. v. Ludeke; Ex parte Australian Building Construction Employees' and Builders Labourers' Federation (1985) 159 CLR 636 at 653; Australian Capital Television Pty. Ltd. v. The Commonwealth (1992) 177 CLR 106 at 166, 198.).

7. The plaintiff's argument is that by extinguishing his right of action against the defendant, the defendant acquired a benefit in the form of the reduction of its liability to the plaintiff so that, in effect, it acquired the plaintiff's right of action. I am unable to accept that argument. For the reasons which Toohey J and I gave in Mutual Pools and Staff Pty. Ltd. v. The Commonwealth ((43) Unreported, 9 March 1994.), any benefit or financial advantage derived by the defendant was not in the form of property. The plaintiff's right of action was extinguished, not acquired.

8. The plaintiff placed reliance upon a passage in the judgment of Deane J in The Tasmanian Dam Case in which he said ((44) (1983) 158 CLR at 283.):

"Where, however, the effect of prohibition or regulation is to confer upon the Commonwealth or another an identifiable and measurable advantage or is akin to applying the property, either totally or partially, for a purpose of the Commonwealth, it is possible that an acquisition for the purposes of s.51(xxxi) is involved. The benefit of land can, in certain circumstances, be enjoyed without any active right in relation to the land being acquired or exercised: see, e.g., Council of the City of Newcastle v. Royal Newcastle Hospital ((45) (1957) 96 CLR 493; (1959) 100 CLR 1.). Thus, if the Parliament were to make a law prohibiting any presence upon land within a radius of 1 kilometre of any point on the boundary of a particular defence establishment and thereby obtain the benefit of a buffer zone, there would, in my view, be an effective confiscation or acquisition of the benefit of use of the land in its unoccupied state notwithstanding that neither the owner nor the Commonwealth possessed any right to go upon or actively to use the land affected."

But in that passage, as I understand it, his Honour is referring to an effective acquisition of the land or rights in the land, that is to say, the acquisition in effect of rights of a proprietary nature. I do not understand his Honour to be saying that the acquisition of a financial advantage equivalent to the worth of the land or the rights in it would be the same thing as the acquisition of the land or those rights for the purpose of s.51(xxxi).

9. For these reasons, I would hold that the 1988 Act is not invalid in its application to the plaintiff and would answer the question
raised in the negative.

TOOHEY J On 2 October 1992 there was an order for the removal into
the Court of:

"the cause constituted by the Notice of Appeal and the Notice of Contention in proceedings numbered 15392 of 1990 in the New South Wales Supreme Court, Common Law Division".

In the course of the hearing the Chief Justice stated a question for the consideration of the Full Court, namely, whether on the basis of the facts alleged in the statement of claim, s.44 of the Commonwealth

Employees' Rehabilitation and Compensation Act 1988 (Cth) ("the Act") ((46) The Act is now known as the Safety Rehabilitation and Compensation Act 1988 (Cth); see the Commonwealth Employees' Rehabilitation and Compensation Amendment Act 1992 (Cth).) is invalid in its application to the plaintiff.

2. The proceedings began with an action for damages for negligence by the plaintiff, Mr Georgiadis, against his employer, the Australian Telecommunications Corporation, a statutory body established by the Telecommunications Act 1975 (Cth) ((47) Prior to the enactment of the Telecommunications Amendment Act 1988 (Cth), the applicant was employed by the Australian Telecommunications Commission whose assets and liabilities were transferred to the Corporation upon the coming into operation of the amending Act. The Commission had assumed the relevant assets and liabilities of the Postmaster-General's Department on enactment of the Telecommunications Act 1975 (Cth).). It is alleged in the statement of claim that between 1974 and 1986 the plaintiff suffered personal injuries in the course of his employment. The defendant, which is the statutory successor to the employer including its liabilities ((48) See Australian Telecommunications Corporation Act 1989 (Cth); Australian and Overseas Telecommunications Corporation Act 1991 (Cth).), pleaded in its defence to the statement of claim that the plaintiff's claim "is barred by statute, to wit
Section 44 of the Commonwealth Employees Rehabilitation and Compensation Act 1988". Section 44 of the Act reads:

" (1) Subject to section 45, an action or other proceeding for damages does not lie against the Commonwealth, a Commonwealth authority or an employee in respect of: (a) an injury sustained by an employee in the course
of his or her employment, being an injury in
respect of which the Commonwealth or Commonwealth authority would, but for this subsection, be liable (whether vicariously or otherwise) for damages; or (b) the loss of, or damage to, property used by an employee resulting from such an injury; whether that injury, loss or damage occurred before or
after the commencement of this section. (2) Subsection (1) does not apply in relation to an action or proceeding instituted before the commencement of this section."

The plaintiff's action was not instituted before the commencement of s.44.

3. In lieu of an action for damages, the Act introduced a scheme of compensation providing weekly payments for incapacity ((49) s.19.) and, in relation to permanent impairment, lump sums ((50) s.24.), interim payments ((51) s.25.) and certain additional sums for non-economic loss ((52) s.27.).

4. Where compensation is payable for permanent impairment and but for s.44(1) there would be liability for non-economic loss, an employee may elect to institute an action against the Commonwealth for damages for that non-economic loss rather than be compensated pursuant to the statutory scheme. The election is irrevocable. Section 44(1) does not then apply in relation to that action; the damages which may be awarded by a court for non-economic loss are limited to $110,000 ((53) See generally s.45.).

5. But a person is not entitled to compensation in respect of a permanent impairment unless he or she was entitled to a lump sum in respect of that impairment "under the 1971 Act as in force when the impairment ... occurred" ((54) s.124(3)(b)(iii).). The "1971 Act" is a reference to the Compensation (Commonwealth Government Employees) Act 1971 (Cth) ((55) The 1971 Act was originally called the Compensation (Commonwealth Employees) Act. It became the Compensation (Australian Government Employees) Act upon enactment of an amending act of the same name in 1973. The present title was inserted by the Compensation
(Commonwealth Government Employees) Amendment Act 1976.) which the Act repealed. The plaintiff was not entitled to a lump sum for permanent impairment to his back under the 1971 Act. He was therefore not entitled to receive compensation of a lump sum for that impairment under the Act. Accordingly he was not entitled to compensation for non-economic loss, such compensation being available only where "an injury to an employee results in a permanent impairment
and compensation is payable in respect of the injury under section 24" ((56) s.27(1).). And because compensation is not payable for permanent impairment under the Act, the plaintiff may not elect to claim damages for non-economic loss pursuant to s.45 of the Act.

6. The plaintiff contends that the extinguishment of his common law action for damages for non-economic loss (and the deprivation of his entitlement to full recovery of economic loss, for he would only have been able to recover weekly payments of compensation and medical expenses) constitutes an acquisition of property from him
within the meaning of s.51(xxxi) of the Constitution, with a
consequent obligation for the payment of just terms for that acquisition. The scheme of compensation available to the plaintiff, it is said, does not amount to just terms.

7. It is accepted, for the purpose of resolving the constitutional issue, that immediately prior to the passing of the Act the plaintiff had a right of action against the defendant in respect of his injuries, including an entitlement to damages for non-economic loss. The capacity of a person to bring a suit against the Commonwealth, whether in contract or in tort, appears in s.56 of the Judiciary Act 1903 (Cth). Section 64 of the Judiciary Act ensures that in an action against the Commonwealth "the rights of parties shall as nearly as possible be the same ... as in a suit between subject and subject".
The Telecommunications Act established the Australian Telecommunications Corporation (and the Commission before it) as a body corporate, capable of being sued in its corporate name ((57) ss.4, 21.). The defendant was incorporated under the Corporations Law of the Australian Capital Territory ((58) Australian and Overseas Telecommunications Corporation Act 1991 (Cth).).

8. As the argument was presented, the first step must be to inquire whether in truth the right of action available to the plaintiff before the Act was property. Overshadowing this inquiry is the wider question whether the extinguishment of a right of action such as
existed here is within the general conspectus of s.51(xxxi).

9. As to the immediate inquiry, what the plaintiff had was a right of action in tort against the defendant. Such a right is regarded as a legal chose in action ((59) Halsbury's Laws of England, 4th ed., vol.6, par.8.). That a chose in action is ordinarily property is not debatable ((60) Minister of State for the Army v. Dalziel (1944) 68 CLR 261 at 285, 290, 295; Bank of N.S.W. v. The Commonwealth ("the Bank Nationalization Case") (1948) 76 CLR 1 at 349; The Commonwealth
v. Tasmania (The Tasmanian Dam Case) (1983) 158 CLR 1
at 246-247.). However, a right of action for the tort of conversion has been treated as "incapable of assignment either at law or in equity" ((61) Poulton v. The Commonwealth (1953) 89 CLR 540 at 602.). Lord Wilberforce observed in National Provincial Bank Ltd. v. Ainsworth ((62) (1965) AC 1175 at 1247-1248; see also The Queen v. Toohey; Ex parte Meneling Station Pty. Ltd. (1982) 158 CLR 327 at 342; Australian Capital Television Pty. Ltd. v. The Commonwealth (1992) 177 CLR 106 at 165-166.):

"Before a right or an interest can be admitted into the category of property, or of a right affecting property, it must be definable, identifiable by third parties, capable in its nature of assumption by third parties, and have some degree of permanence or stability."

This statement must be read in light of the decision of the House of Lords in Trendtex Trading v. Credit Suisse ((63) (1982) AC 679.) where Lord Roskill (with whom Lord Edmund-Davies, Lord Fraser of Tullybelton and Lord Keith of Kinkel agreed), speaking of litigation in relation to failure to honour a letter of credit, said ((64) ibid. at 703.):

"The court should look at the totality of the transaction. If the assignment is of a property right or interest and the cause of action is ancillary to that right or interest, or if the assignee had a genuine commercial interest in taking the assignment and enforcing it for his own benefit, I see no reason why the assignment should be struck down as an assignment of a bare cause of action or as savouring of maintenance."

10. This dictum was applied by Needham J in Re Timothy's Pty. Ltd. and the Companies Act ((65) (1981) 2 NSWLR 706.) and was referred to by Young J in Beard v. Baulkham Hills Shire Council ((66) (1986) 7 NSWLR 273 at 281.). And it may be noted that in Compania Colombiana de Seguros v. Pacific Steam Navigation Co. ((67) (1965) 1 QB 101 at 121-122.) Roskill J, as his Lordship then was, saw no difficulty in upholding the assignment of a right of action in a personal injury case to an insurer.

11. However, the issues before the Court do not involve an assignment; assignability is relevant only for the light it throws on the concept of property. The plaintiff had a right to receive a payment of money by way of damages. The term "property" in s.51(xxxi)
"extends to innominate and anomalous interests" ((68) Bank Nationalization Case (1948) 76 CLR at 349 per Dixon J). Consistent with the view of the majority in Australian Tape Manufacturers Association Ltd. v. The Commonwealth ((69) (1993) 176 CLR 480 at 509.) , that right must be regarded as constituting "property" for the
purposes of s.51(xxxi). But it is the chose in action which constitutes property. Whether money answers that description does not arise in the present case. That matter is discussed in the judgment of Dawson J and myself in Mutual Pools and Staff Pty. Limited v. The Commonwealth ((70) Unreported, High Court of Australia, 9 March 1994.).

12. However, it does not follow that the defendant acquired that property from the plaintiff. It must be accepted that s.51(xxxi) is a constitutional guarantee of just terms and should be liberally
construed ((71) Dalziel (1944) 68 CLR at 276, 284-285; Attorney-General (Cth) v. Schmidt (1961) 105 CLR 361 at 370-372; Trade Practices Commission v. Tooth and Co. Ltd. (1979) 142 CLR 397 at 403; Clunies-Ross v. The Commonwealth (1984) 155 CLR 193 at 201-202; see also Street v. Queensland Bar Association (1989) 168 CLR 461 at 527.). And it must be accepted also that it is the substance not the form of the impugned law that is to be considered. A merely circuitous device to avoid the constitutional guarantee will not be upheld ((72) Bank Nationalization Case (1948) 76 CLR at 349-350; Trade Practices Commission v. Tooth and Co. Ltd. (1979) 142 CLR
at 407; Cole v. Whitfield (1988) 165 CLR 360 at 399-400; Hematite Petroleum Pty. Ltd. v. Victoria (1983) 151 CLR 599 at
633, 662-663; Philip Morris Ltd. v. Commissioner of Business Franchises (Vict.) (1989) 167 CLR 399 at 433.). Nevertheless, as Dawson J and I said in Australian Tape Manufacturers Association ((73) (1993) 176 CLR at 528.):

"(F)or the paragraph to apply it must be possible to identify an acquisition of something of a proprietary nature. The mere extinction or diminution of a proprietary right residing in one person does not necessarily result in the acquisition of a proprietary right by another ((74) A distinction between deprivation of property and acquisition of

property

was made by the Privy Council in Govt. of Malaysia v. Selangor Pilot Assoc. (1978) AC 337 especially at 347-348.). Giving full effect to these principles, the result is that there was no acquisition by the defendant of a proprietary right. It is unnecessary to consider those decisions in which a compulsory divesting of property has been held not to be an acquisition within s.51(xxxi) or to identify a principle which allows those cases to be distinguished from others in which a compulsory divesting has been held to have occurred ((75) See Trade Practices Commission v. Tooth and Co. Ltd. (1979) 142 CLR at 408.). The right to bring a suit against the Commonwealth in tort is conferred by Commonwealth legislation and it is hard to see how a law which affects that right, even a law diminishing or extinguishing it, can fall within

s.51(xxxi).

The Act effects no acquisition of property by the Commonwealth. As was said in The Queen v. Ludeke; Ex parte Australian Building Construction Employees' and Builders Labourers' Federation ((76) (1985) 159 CLR 636 at 653.): "there is nothing in the Act that provides for the acquisition of those rights - they may be extinguished, but not acquired".

13. No doubt the defendant has benefited from the operation of s.44 of the Act in that a person in the position of the plaintiff can no longer recover damages for non-economic loss. But that falls far short of saying that there was an acquisition of property by the defendant. The dichotomy between extinguishment and acquisition cannot be pressed too far; the two are not necessarily incompatible. But, in the end, as Mason J said in The Tasmanian Dam Case ((77) (1983) 158 CLR at 145.):

"To bring the constitutional provision into play ... there must be an acquisition whereby the Commonwealth or another acquires an interest in property, however slight or insubstantial it may be."

It is not possible to identify the acquisition of an interest in property by the defendant. What has happened is that a right which once existed no longer exists. It was said by the defendant that few persons stood to be affected by the provision. That may be so but it cannot be a touchstone by which to determine whether there has been an acquisition of property from the plaintiff. However, as I have concluded that there was no such acquisition it is unnecessary to dwell on this aspect.

14. It follows that s.44 of the Act is not invalid in its application
to the plaintiff.

McHUGH J This action was commenced in the Supreme Court of New South Wales but was removed into this Court under s.40(1) of the Judiciary Act 1903 (Cth). Pursuant to s.18 of that Act, Mason CJ has stated the following question for consideration by the Full Court: on the basis of the facts alleged in the statement of claim of the plaintiff is s.44 of the Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth) ("the 1988 Act") invalid in its application to the plaintiff? More specifically, the issue for determination is whether the 1988 Act acquired the property of the plaintiff contrary to s.51(xxxi) of the Constitution. That paragraph empowers the Parliament of the Commonwealth to make laws for the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws. The plaintiff alleges that the 1988 Act provided for the acquisition by the Commonwealth of the plaintiff's right to sue the defendant for damages for back injuries which he received during the course of his employment with the defendant's predecessor. If the predecessor of the defendant was liable to the plaintiff, that liability became a liability of the defendant by virtue of s.11 of the Australian and Overseas Telecommunications Corporation Act 1991 (Cth).

The nature of the issues 2. The plaintiff alleges that, during the period February 1974 to March 1986, he suffered five injuries to his back in the course of his employment. The last injury occurred on or about 4 March 1986. Weekly compensation payments in respect of those injuries were
received by the plaintiff pursuant to the provisions of the Compensation (Commonwealth Employees) Act 1971 (Cth) ("the 1971 Act"). On 17 September 1990, the plaintiff commenced a common law action for damages for negligence in respect of these injuries against the defendant's predecessor in the Supreme Court of New South Wales. The negligence relied on was a breach of the employer's common law duty to take reasonable care for the safety of its employees. If the facts in the statement of claim filed in that Court are true, they establish that, before the enactment of the 1988 Act, the plaintiff had a common law right of action for damages against the defendant's predecessor even if part of the cause of action was statute barred by operation of the Limitation Act 1969 (N.S.W.). In its statement of defence, however, the defendant alleges that the whole of the plaintiff's claim is barred by s.44 of the 1988 Act. The plaintiff has filed a reply which alleges that the 1988 Act is unconstitutional because it breaches the terms of s.51(xxxi) of the Constitution.

Relevant legislative provisions

3. The 1988 Act extinguishes all rights to sue the Commonwealth or a Commonwealth authority for damages for injuries sustained in the course of employment with the Commonwealth or a Commonwealth authority. In place of those rights is substituted a statutory scheme of compensation which provides for lump sums for permanent impairment ((78) ss.24, 25.), weekly payments for incapacity ((79) s.19.), medical expenses ((80) s.16.) and sums for non-economic loss
((81) s.27.). According to the second reading speech ((82) Commonwealth, House of Representatives, Parliamentary Debates (Hansard), 27 April 1988 at 2191-2195.) explaining the Commonwealth Employees' Rehabilitation and Compensation Bill 1988, the purpose of the proposed Act was to "provide incentives for injured employees to return to work as soon as possible" and to "provide greater powers in relation to rehabilitation". These objectives were said to be the Commonwealth's response to a 700 per cent increase in government expenditure on workers' compensation over the decade between 1976 and 1986. The Minister attributed the increase to inefficiencies in the 1971 Act and to long delays in the court system in bringing negligence
actions on for hearing. Both factors were said to provide disincentives for injured workers to return to work and to encourage them to maximise the extent and duration of their injuries. The Minister stated that the new Act was an attempt to reverse this position by encouraging speedy rehabilitation.

4. The 1988 Act was assented to on 24 June 1988. By proclamation published on 1 July 1988, the commencement date for most provisions was fixed as 1 December 1988. The Act does not apply to any action instituted before the commencement date. But this does not assist the plaintiff - his action was commenced over 20 months after the Act became law. Section 44 provides:

"(1) Subject to section 45, an action or other proceeding for damages does not lie against the Commonwealth, a Commonwealth authority or an employee in respect of: (a) an injury sustained by an employee in the course
of his or her employment, being an injury in
respect of which the Commonwealth or Commonwealth authority would, but for this subsection, be liable (whether vicariously or otherwise) for damages; or (b) the loss of, or damage to, property used by an employee resulting from such an injury;

whether that injury, loss or damage occurred before or after the commencement of this section.

(2) Subsection (1) does not apply in relation to an action or proceeding instituted before the commencement of this section."

5. Section 45 provides for an employee to elect between compensation under the Act and damages at common law for non-economic loss. That section provides:

"(1) Where:

(a) compensation is payable under section 24, 25 or 27 in respect of an injury to an employee; and (b) the Commonwealth, a Commonwealth authority or another employee would, but for subsection 44(1), be liable for damages for any non-economic loss suffered by the employee as a result of the injury;

the employee may, at any time before an amount of compensation is paid to the employee under section 24, 25 or 27 in respect of that injury, elect in writing to institute an action or proceeding against the Commonwealth, the Commonwealth authority or other employee for damages for that non-economic loss.

(2) Where an employee makes an election:

(a) subsection 44(1) does not apply in relation to an action or other proceeding subsequently instituted by the employee against the Commonwealth, the Commonwealth authority or the other employee for damages for the non-economic loss to which the election relates; and (b) compensation is not payable after the date of the election under section 24, 25 or 27 in respect of the injury. (3) An election is irrevocable.

(4) In any action or proceeding instituted as a result of an election made by an employee, the court shall not award the employee damages of an amount exceeding $110,000 for any non-economic loss suffered by the employee."

Section 124 relevantly provides:

"(1) Subject to this Part, this Act applies in relation to an injury, loss or damage suffered by an employee, whether before or after the commencing day. ... (3) A person is not entitled to compensation under
section 24 or 25 in respect of a permanent impairment, or under section 17 in respect of the death of an employee, being an impairment or death that occurred before the commencing date, if: (b) the person was not entitled to receive compensation of a lump sum in respect of that impairment or death: ... (iii) in any other case - under the 1971 Act as in force when the impairment or death occurred."

6. The 1971 Act did not provide for a lump sum payment for permanent impairment to the back. Because the plaintiff's injuries were sustained before the commencing date of the 1988 Act and he was not entitled to a lump sum payment under the 1971 Act, he falls within s.124(3)(b)(iii). Thus, he has no right to sue at common law for damages for his injuries and no right to obtain a lump sum payment under the 1988 Act for his disabilities. In his case, s.45 does not qualify the operation of s.44. Consequently, he no longer has any right to sue the defendant at common law for damages in respect of his injuries. His remedies are confined to weekly payments for incapacity and medical expenses under the 1988 Act.

Section 51(xxxi) of the Constitution

7. In my opinion, s.44 of the Act in its application to the plaintiff was not a law with respect to the "acquisition of property from any ... person for any purpose in respect of which the Parliament has power to make laws" ((83) Constitution, s.51(xxxi).). This is so notwithstanding that the 1988 Act extinguished the liability of the defendant to pay damages to the plaintiff in respect of his injuries. It is true that, as a result of that Act the plaintiff has been deprived of a chose in action, and a chose in action is property for the purposes of s.51(xxxi) of the Constitution ((84) Minister of State for the Army v. Dalziel (1944) 68 CLR 261 at 290.). Furthermore, the defendant has gained a corresponding benefit of commensurate value. However, the Commonwealth authority has not acquired the property of the plaintiff. This is because the right of the plaintiff to bring his action was dependent upon federal law and was always liable to be
revoked by federal law. If a right is dependent upon a federal law enacted under a power other than s.51(xxxi), and can be extinguished under that power, then that extinguishment will not fall within the terms of s.51(xxxi). To use the words of Dixon CJ in Burton v. Honan ((85) (1952) 86 CLR 169 at 180.), "the whole matter lies outside the power given by s.51(xxxi)" of the Constitution.

The liability of the Commonwealth in tort

8. At common law the Crown was not liable to be sued in an action for tort ((86) Farnell v. Bowman (1887) 12 AC 643.). This was the consequence of the common law maxim that "the king can do no wrong" ((87) Quick and Garran, The Annotated Constitution of the Commonwealth, (1901) at 805.). Nor did a petition of right lie in respect of a claim for damages for personal injuries arising from a tort committed by the Crown or a Crown employee ((88) Attorney-General v. De Keyser's Royal Hotel (1920) AC 508 at 523; Viscount Canterbury v. The Queen
(1843) 4 State Tr NS 767 at 778.). In The Commonwealth v. New South Wales ((89) (1923) 32 CLR 200.), the Court held that s.75(iii) of the Constitution conferred jurisdiction on the Court to hear an action in tort against the Commonwealth. But the more widely accepted view is that the Commonwealth's liability in tort arises from s.64 and perhaps s.56 of the Judiciary Act ((90) See Maguire v. Simpson (1977) 139 CLR 362; The Commonwealth v. Evans Deakin Industries Ltd. (1986) 161 CLR 254 at 263-264; Breavington v. Godleman (1988) 169 CLR 41 at 68-69 per Mason CJ, 101-105 per Wilson and Gaudron JJ, 117-118 per Brennan J, 139-140 per Deane J, 151-153 per
Dawson J, 169 per Toohey J See also Cowen and Zines, Federal Jurisdiction in Australia, 2nd ed. (1978) at 35-38; Wynes, Legislative Executive and Judicial Powers in Australia, 5th ed. (1976) at 455-461.). At all events, I do not think that s.75(iii) of the Constitution is the source of the liability of the Commonwealth. I agree with the view of Dixon J in Werrin v. The Commonwealth ((91) (1938) 59 CLR 150 at 167.) "that the right of the subject to recover from the Crown in right of the Commonwealth, whether in contract or in tort, is the creature of the law which the Federal Parliament controls". If the Judiciary Act is the source of the Commonwealth's liability, then, in the light of s.78 of the Constitution, it is difficult to see why the Commonwealth cannot extinguish any accrued right of action in tort against itself. Section 78 provides that 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". If s.78 is the source of power to enact ss.56 and 64 of the Judiciary Act, as I think is the case ((92) cf. Maguire (1977) 139 CLR at 370, 404-405. I cannot accept the restrictive reading given to s.78 in The Commonwealth v. New South Wales (1923) 32 CLR 200.), it would also seem to authorise laws repealing or modifying laws conferring rights to proceed against the Commonwealth. It is hardly to be supposed that once the Parliament makes the Commonwealth liable to be sued for its conduct in any particular field, the Parliament has no power to abolish or modify the right to proceed against the Commonwealth in that field. Moreover, if s.78 is the source of ss.44, 45 and 124 of the 1988 Act, as I think
it is, no question of complying with s.51(xxxi) arises. That paragraph is conferred subject to the Constitution, including s.78.

The conditions of employment of the plaintiff

9. However, even if s.78 does not authorise the enactment of ss.44, 45 and 124 of the 1988 Act, the Parliament has power to regulate the conditions of employment of its employees and that includes the power without paying compensation to abolish or modify any accrued rights of its employees, as employees, to bring actions for damages against
the Commonwealth. The power of the Parliament to enact laws regulating the conditions of employment of Commonwealth employees and to legislate for a comprehensive scheme of injury compensation for Commonwealth employees is not open to doubt. Whether the source of the power is s.52(ii), or a combination of ss.51, 61, 78 and 51(xxxix), of the Constitution, the Parliament has power to enact such laws in substitution for or in addition to any common law rights or duties which might otherwise exist. The plenary power to legislate with respect to the conditions of employment of Commonwealth public servants carries with it the power to grant, withhold or abolish any condition or right otherwise arising out of the employment including any condition or right arising under the common law. Any such
condition or right may be altered prospectively or retrospectively ((93) R. v. Kidman (1915) 20 CLR 425; Polyukhovich v. The Commonwealth (1991) 172 CLR 501 at 714-715, 717-720.).

10. The obligation of the defendant's predecessor to take reasonable care for the safety of the plaintiff was one of the conditions of the employment contract between that authority and the plaintiff. Any breach of the condition gave rise to a breach of contract as well as a tort ((94) Jury v. Commissioner for Railways (N.S.W.) (1935) 53 CLR 273 at 290; Davie v. New Merton Board Mills Ltd. (1959) AC 604 at 619.). Indeed, the 1971 Act expressly recognised the right of an employee to take proceedings against the Commonwealth at common law ((95) s.99.). However, the right to take those proceedings arose from the operation of the Judiciary Act. Without that Act, the plaintiff had no cause of action against the Commonwealth. The Commonwealth can only be made liable in action for damages for personal injury if the Parliament has legislated to make it liable. Thus, the common law rights of the plaintiff against the defendant's predecessor were enforceable only as federal law and depended on the authority of the Parliament of the Commonwealth. Because under the Judiciary Act the rights of the Commonwealth and its employees "shall as nearly as possible be the same ... as in a suit between subject and subject" ((96) s.64.), the plaintiff had the right, before the 1988 Act was passed, to bring an action for damages in respect of his employment injuries at any time during the period of limitation in force in the place where the action was commenced. But this does not mean that the Parliament could not alter the right of the plaintiff to bring an action for damages for personal injury without complying with s.51(xxxi).

11. For the reasons which I gave in Health Insurance Commission v. Peverill ((97) Unreported, 9 March 1994.), it is clear that the Parliament could alter the conditions of employment of employees of the Commonwealth at any time. It could alter those rights even after an employee had fulfilled the conditions which gave rise to any particular right ((98) See Dodge v. Board of Education of Chicago (1937) 302 US
74; Peverill, unreported, 9 March 1994.). If the 1988 Act had abolished the rights to weekly payments and medical expenses conferred by the 1971 Act, no question of the acquisition of property for the purpose of s.51(xxxi) could have arisen. Participants in a field which is regulated by legislation have no constitutional right to the continuation of any legislative scheme or any part of it ((99) Lynch v. United States (1934) 292 US 571 at 577; F.H.A. v. The Darlington, Inc. (1958) 358 US 84 at 91; Connolly v. Pension Benefit Guaranty Corp. (1986) 475 US 211 at 227.). Parliament can alter or withdraw the rights in its discretion.

12. If the Commonwealth had retrospectively abolished the common law duty of care which it owed to its employees, it would be difficult to see how such legislation could amount to an acquisition of the property of the plaintiff for the purpose of s.51(xxxi) of the Constitution even though his right of action had accrued. Such a law would do no more than retrospectively change the duty of care of the Commonwealth. It would not be a law for the "acquisition of property ... for any purpose in respect of which the Parliament has power to make laws". Even on the most liberal construction of that paragraph, it is difficult to see how the retrospective abolition of an element of a cause of action can constitute an acquisition of property for the purpose of the paragraph. No doubt the law would have the effect that the plaintiff's chose in action - his right of action - had become worthless. But unless every extinguishment of a cause of action against the Commonwealth is to be regarded as an acquisition of property by the Commonwealth, I do not see how the law would attract the operation of s.51(xxxi). The Court must look at the substance of the matter to determine whether an extinguishment is in fact an acquisition. But, when that analysis is complete, the distinction between extinguishment and acquisition is a real distinction for the purpose of s.51(xxxi) ((100) The Commonwealth v. Tasmania (The Tasmanian Dam Case) (1983) 158 CLR 1 at 145; Reg. v. Ludeke; Ex parte Australian Building Construction Employees' and Builders Labourers' Federation (1985) 159 CLR 636 at 653.). If a right against the Commonwealth is subject to alteration or revocation, its alteration or extinguishment does not constitute an acquisition of property.

13. If the conclusion is correct that, under its power to regulate the employment of Commonwealth employees, Parliament can retrospectively abolish the Commonwealth's duty of care without complying with s.51(xxxi), even in a case where a plaintiff alleges a breach of that duty, it must follow that the Parliament can abolish a cause of action for breach of duty, accrued before the commencement of the 1988 Act, without complying with s.51(xxxi). The employee's right to bring an action for damages against the Commonwealth or a Commonwealth
authority in respect of an injury sustained in the course of employment before 1988 was not a right standing outside federal law. It derived, as I have said, from the Judiciary Act. It was not comparable to a right of action which a Commonwealth employee might have against a third party and which did not depend on federal law. What basis then is there for concluding that the Parliament could not modify the operation of the Judiciary Act by enacting ss.44, 45 and 124 of the 1988 Act? Even if s.78 of the Constitution did not authorise the enactment of those sections, the general power to make laws with respect to the employment of Commonwealth employees surely did so.

14. The right to bring an action against the Commonwealth or one of its authorities was as much a condition of employment as the duty of the Commonwealth or the authority to maintain a safe system of work. Furthermore, the right was one which arose from breach of another condition of employment - the right to have a safe system or place of work. Although, prior to the enactment of the 1988 Act, the Judiciary Act enabled employees of the Commonwealth to enjoy common law rights of action for employment injuries, those rights like other federal rights of employment could be recalled, prospectively or retrospectively. Once it is recognised that the Parliament may legislate retrospectively, it follows that the Parliament could abolish any accrued rights to sue for damages.

15. It may be, as counsel for the plaintiff suggested, that the extinguishment of the plaintiff's right of action was the result of a legislative oversight. But whether or not that suggestion is correct, what the Parliament has done was within its powers. The 1988 Act simply provides for a new and comprehensive scheme of compensation for employment injuries in substitution for the earlier scheme which depended on the interaction of the 1971 Act and the common law. The social philosophy of the 1988 Act is that a scheme of statutory compensation is more likely to promote the rehabilitation of injured employees than a scheme which involves an unlimited common law right of an action for damages for employment injury. To achieve that end, the 1988 Act places stringent conditions on the maintenance of common law actions and imposes a "cap" on the amount of damages that can be awarded for non-economic loss ((101) s.45(4).). In so far as injuries occurring before the commencement of the 1988 Act were concerned, the Act permits a common law action to be brought provided that the employee was entitled to a lump sum payment under the previous legislation in respect of the injury that was the subject of the action. However, actions in respect of pre-1988 Act injuries are also subjected to the "cap" of $110,000 for damages for non-economic loss.

16. No doubt the provisions of the 1988 Act are significantly different in material respects from the scheme which operated as the result of the 1971 Act and the common law right of action. But they simply substitute one legislative scheme for another. It may be that some, perhaps many, employees are worse off under the 1988 Act than they were under the 1971 Act and the common law. But that cannot affect the validity of the legislation. The 1988 Act in abolishing rights of action in respect of pre-Act injuries which had been commenced before 1 December 1988 did not acquire rights which were beyond the reach of the Parliament. It merely altered or extinguished rights which were conferred by the 1971 Act and the Judiciary Act. Altering or extinguishing those rights - even accrued rights - did not effect an acquisition of property for the purpose of s.51(xxxi) of the Constitution.

Order
17. The question in the case stated should be answered no.