Goryl v Greyhound Australia Pty Limited

[1993] HCATrans 302

•

4

'I'

IN THE HIGH COURT OF AUSTRALIA	•
Office of the Registry

Brisbane No B61 of 1992

B e t w e e n -

MARGARET ROSE GORYL

'

Applicant

and

GREYHOUND AUSTRALIA PTY LIMITED

First Respondent

and

SUNCORP INSURANCE AND FINANCE

Second Respondent

Cause Removed

MASON CJ
BRENNAN J
DEANE J
DAWSON J

Goryl(4) 1 12/10/93

TOOHEY J
GAUDRON J

MCHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 12 OCTOBER 1993, AT 10.18 AM

Copyright in the High Court of Australia

MR D.M.J. BENNETT, QC:  May it please the Court, I appear

with my learned friend, MR P.J. HAYES, for the

applicant. (instructed by Hayes & Company)

MR W. SOFRONOFF, QC:  May it please the Court, I appear with

my learned friend, MR P.L. O'SHEA, for the

respondents.	(instructed by Quinlan Millar &
Treston)

MR G. GRIFFITH, QC, Solicitor-General for the Commonwealth:

If the Court pleases, I appear with my learned friend, MR S.J. GAGELER, intervening for the

Attorney-General of the Commonwealth. (instructed

by the Australian Government Solicitor)

We intervene on the issue of the construction of section 117 of the Constitution, and our

submissions will be, if the Court pleases, that

section 20 would contravene section 117, but we are

unsure if the issue under section 16 arises. If it

does, we would incline to the view it is near the

borderline but could be justified.

MR J.J. DOYLE, QC, Solicitor-General for South Australia:

If the Court pleases, I appear with MS G.L. EBBECK, for the Attorney-General for the State of South

Australia, to intervene on behalf of that State on

the same issue as was referred to by the Solicitor

for the Commonwealth, and our submissions will be,

in effect, the same, that section 20 is

inapplicable, and that section 16, if it arises,

may be sustainable. (instructed by the Crown

Solicitor for South Australia)

MR K. MASON, QC, Solicitor-General for New South Wales: If

the Court pleases, I appear with my learned

friends, MR A.W. STREET and MR A.J.L. OGBORNE, for

the Attorney-General for New South Wales

intervening. (instructed by the Crown Solicitor

for New South Wales) We are of the same effect as the two previous

interveners. I do not think there would be

anything I would be saying about section 20, but we

would be arguing in support of section 16 and its

applicability.

MR B.T. DUNPHY:  May it please the Court, I appear on behalf

of the Attorney-General for the State of that section 117 of the Constitution is not applicable to either section 16(b) or section 20 of the Motor Vehicles Insurance Act 1936. (instructed

by the Crown Solicitor for Queensland)

Goryl(4) 12/10/93

Your Honours, I would also seek to read two

affidavits which have been filed in this matter,

being an affidavit of Owen Sydney Fisher, and a

second affidavit of a Jenny McDonald, both filed on

6 October 1993.

MR BENNETT:	We oppose that course, Your Honour.
MASON CJ:	Mr Sofronoff, do you have anything to say about

the affidavits?

MR SOFRONOFF:	We support their admission, Your Honour.
MASON CJ: Yes.
MR SOFRONOFF:	We have an outline of argument on the

evidentiary point.

MASON CJ: Well, yes. Do you want to say anything about the

objection?

MR BENNETT:  Yes, Your Honour.

MASON CJ: Yes, Mr Bennett.

MR BENNETT:  Your Honour, these proceedings are brought by a

stated case. The appropriate means of proving

relevant constitutional facts is to seek agreement

on them and have them included in the stated case.

There are matters stated which go, for example, to government policy, pleaded in the affidavits, which

are simply impossible for us to deal with. It is not practical for us to cross-examine in front of the Full Court. In our respectful submission, the

appropriate course is that evidence introduced, at this stage in this type of matter, ought not to be received.

MASON CJ:	Mr Sofronoff?
MR SOFRONOFF:	Your Honours, I am content to rely upon

Mr Dunphy's submission in support.

MASON CJ:  Yes. What do you say in response, Mr Dunphy?

MR DUNPHY:	Your Honours, I have an outline covering the relevant submissions that we wish to make.	May I
hand that up?

MASON CJ: Well, do they deal with this question of the

admissibility of the affidavits?

MR DUNPHY:  Yes, Your Honour, they do.

MASON CJ: Yes.

Goryl ( 4)	12/10/93
MR BENNETT:	I make it clear, Your Honours, that I do not

challenge their relevance. That is not the purport

of my submission.

MASON CJ:  Now, Mr Dunphy, I think I ought to ask Mr Bennett

this question: are there any problems, from your

point of view, in leaving the disposition of this
question to the end of the arguments, so we can see
more clearly what the impact of the submissions

are?

MR BENNETT:  No, Your Honour, no problems with that.

MASON CJ: Would you be at any disadvantage if we dealt with

it in that way?

MR BENNETT:  No, Your Honour.

MASON CJ:  I think that is the course we will pursue. Yes,

Mr Bennett.

MR BENNETT:  Have Your Honours been handed my outline?

MASON CJ: Yes, I have it, Mr Bennett, and I imagine

everyone else has.

MR BENNETT:  And a single page that has the sections on it.

Do Your Honours have that page?

MASON CJ:  We do not appear to have that. We have the

outline. Yes, we have the statute commencing with

section 9. Is that the document?

MR BENNETT:  Yes, if Your Honour pleases.

MASON CJ: Yes.

MR BENNETT: If Your Honours please. The starting point of

this case is the decision in	Breavington which, as
Your Honours are aware, made	the lex loci delicti
commissi, the relevant law. Following the decision in Breavington and	before the decision of this Court in Stevens v
Head, the present legislation was enacted. This
case, in a sense, is a little bit analogous to
Yuill's case in that one is dealing with
legislation passed after one decision of this Court
and before a further decision of this Court, which
dealt with similar issues.

I have summarized the effects of the

amendments in paragraph 3. It may be convenient

just to take Your Honours to the single page

document and show Your Honours how the sections

work.

Goryl(4) 4 12/10/93

The section with which we are primarily

concerned, and may, as Your Honours will see, be

solely concerned is section 20, and that is an

extremely broad section. It provides that:

No person is entitled to recover by

action under the law of Queensland, by way of

damages for accidental bodily injury ..... to

any person caused by, through or in connection

with a motor vehicle

just stopping there, that is wherever the accident

takes place and whatever State the driver is a

resident of, and wherever the vehicle is

registered. It is any accident -

an amount greater than that which he might

have recovered by action or other process

under the law of the State or Territory of the

Commonwealth in which the injured person has

or had ..... his principal place of residence -

in the case of an accident caused in like

circumstances -

in connection with a motor vehicle in that

State or Territory.

So that if a Sydney resident goes to Queensland and

is knocked down crossing the road in Brisbane by a

Brisbane car driven by a Brisbane driver, his

damages, unlike the damages of the Queenslander who is crossing the road with him, are cut down and are

limited to the New South Wales measure. Even more

extremely, a Northern Territory visitor to Brisbane

will not get anything in Queensland. Although

identical accident, the Queensland resident would

recover in full.

It extends, of course, to accidents outside

Queensland. It extends to accidents anywhere and

car, the insurance of the car, the ownership of the	it has nothing to do with the registration of the
car, the driver of the car, which is the offending party, nor anything to do with anything except the principal place of residence of the plaintiff. It
is a discrimination which would make, by
comparison, the draftsman of the offending
regulations in Street's case look like a
as is apparent from the response of the various
centralist. In my respectful submission there is, about it in its defence, and almost nothing more
that I need to say about it.

I will, however, take Your Honours very

briefly, and this will conclude my submissions on

Goryl(4) 12/10/93

the main part of the case, to a number of passages
in the judgments of each of Your Honours in

Street's case just to demonstrate the tests and to show that, really, whatever tests one applies, and however liberal a test one applies, this sort of

provision just cannot get by. It cannot be a

provision which represents any of the possible

exceptions in Street's case.

Street's case is reported in 168 CLR 461.

Your Honour the Chief Justice, at page 489,

point 7, put the matter this way:

Accordingly, I would apply the principle, along the lines mentioned above, thats. 117

renders a disability or discrimination invalid

if the notional fact of residence within the

legislating State would effectively remove the

disability or discrimination or substantially

deprive it of its onerous nature.

On the following page, at point 7 again,

Your Honour said:

It remains to consider whether the

disability or discrimination imposed on

Mr Street is of a kind contemplated as falling

within the proscription in section 117.

And then Your Honour cited Mr Justice O'Connor in

Davies and Jones that the section:

"does not prohibit a State from conferring

special privileges upon those of its own

people who, in addition to residence within

the State, fulfill some other substantial
condition or requirement". It is implicit in
that statement that a privilege granted upon

the basis of residence alone may offend

section 117. Even if one were minded to draw

a distinction between the imposition of a

word "discrimination" is wide enough to cover disability and the denial of a privilege, the the denial of a privilege in appropriate
cases.

So that the result on that view, we would submit,

is very clear. This is a removal of common law

rights in relation only to residents, having no

relation to any of the other relevant features of a

motor vehicle accident.

Your Honour Justice Brennan at page 507, in

the long paragraph in the middle of the page, said

this:

Goryl(4) 6 12/10/93

The descriptive clause in section 117

does not directly identify the comparison

which "discrimination" imports. Strictly

speaking, to say of discrimination that a

protected person would not be equally

subjected to it if that person were a resident

in another State says nothing directly about

the comparison which might establish

discrimination. Discrimination against a

person is not established by showing that that
person is treated differently in different

situations. Nevertheless, the comparison needed to establish discrimination in the

relevant sense must correspond with the

qualification which the descriptive clause

applies to "disability". Just as it is
necessary to compare the position of a

protected person who is subjected to a

disability with her or his position if she or

he were resident in the State in which the

disability applies in order to determine
whether the disability attracts the operation
of section 117, so it is necessary to compare
the position of the protected person (who, ex

hypothesi, is not resident in the State in

which the discrimination applies) with the

position of another notional person who,

though resident in that State, is otherwise in
the same position ..... Such a comparison is

required because section 117 is concerned only

with discrimination to which the protected

person would not be "equally" subject if that
person were a resident in the relevant State.

To apply that test, the notional person must

be in the same position as the protected
person in all respects save residence in the
relevant State. Subject to an exception of

necessity, presently to be examined, when a

law or governmental act withholds a benefit

from a subject of the Queen resident in

another State or imposes a burden on that

person which would not be withheld from or

imposed on an in-State resident in the same

position as the protected person,

discrimination is established for the purposes

of section 117.

Again, we would submit, Your Honours' test is

clearly satisfied.

Your Honour Justice Deane dealt with the matter at page 528. At point 3 Your Honour said:

The words of s 117 must, of course, be

construed in their context in a constitution

which is founded upon the existence of the

various States as distinct entities under the

Goryl(4) 12/10/93

federation. So construed, s 117 does not

require that no distinction at all be drawn in

a State between non-resident. Section 117

only applies when a non-resident is "subject

to ..... disability or discrimination".

Then Your Honour's ratio is the next sentence:

Those words, construed in their constitutional

context, convey the notion of some

superimposed incapacity or disadvantage in the

sense that the incapacity or disadvantage,

regardless of whether it be direct or

indirect, does not flow naturally from the

structure of the particular State, the limited

scope of its legislative powers or the nature
of the particular right, privilege, immunity

or other advantage or power to which it

relates.

Your Honour then gives the example of elections,

and then after giving that example, five lines from

the bottom Your Honour says:

Again, State financial assistance to a

particular class of its residents (e.g. a

rental subsidy to disadvantaged tenants) could

place an ineligible visitor who was resident

(and a tenant) in another State at a

comparable disadvantage if that other State

provided no such subsidy. The disadvantage

would, however, not flow from the subjection

of the non-resident to a disability or
discrimination. It would flow naturally from

the nature of the subsidy and the scope of

State powers.

That clearly is a very different sort of exception

to this one, and it cannot be called in aid here.

Yet again, a requirement that a person who

lacks the requisite intrastate qualifications

have certain extrastate

qualifications ..... before holding himself or

herself as qualified -

that is the barrister example -

will not involve subjecting a non-resident to

disability -

et cetera. But in the present case nothing

suggesting any exception could come anywhere near

section 20.

Your Honour Justice Dawson took the broadest

view of the exception. At page 546 at about

Goryl(4) 12/10/93

point 8 in the middle of the paragraph, after

referring to the judgments in Henry v Boehm and

some examples given there, Your Honour said against

the words "residential qualification" in the

left-hand margin:

Another example is the right to participate in

a State welfare scheme, particularly one

financed by State taxes -

this scheme, of course, is not in that category.

The section 17 scheme which I will come to may be.
None of the others are -

where residential qualification is reasonable and its imposition does nothing to impede the

essential purpose of the section.

Your Honour returned to the point after going

through some authorities on page 548. Your Honour

dealt with elections in the first full paragraph of

the page, the very nature of the subject-matter,

and then in the second full paragraph on the page

starting at point 5, Your Honour said:

No doubt there will be cases in which it

will be more difficult to determine whether

differential treatment amounts to a disability

or discrimination within the meaning of s 117

and guidance must then be found in the purpose

of the section. But it should be borne in

mind that that purpose does not deny the

the uniformity of laws throughout the land.
separate responsibilities of the States which,
together with the Commonwealth, make up the

It does, however, require the States, and

perhaps the Commonwealth, to recognize in the
discharge of their responsibilities that there

is but one nation and that the citizens of

that nation carry their citizenship with them

from State to State.

Your Honour's ratio is the next sentence:

To this end, s 117 does not permit a citizen

to be subjected in a State to any disability

or discrimination the basis of which is, not
the ordinary and proper administration of the
affairs of that State, but his residence in

another State. In other words, in order to

escapes 117, the true purpose and effect of

differential treatment must be capable of

being seen as other than to impose a

disability upon the residents of other States

or to subject them to discrimination. There

can, I think, be no more precise expression of

Goryl(4) 9 12/10/93

the limits of s 117 and the adoption of one

formula or another in the end only poses the

same question. No doubt the limits will

properly emerge with greater precision upon a

case by case basis.

We would submit that even on that test, which

is the highest of the tests, section 20 would not

survive. This is not a case where the ordinary and

proper administration of the affairs of that State

is the basis of what is done here. What is done

here is to say that dealing with common law

damages, you get one lot of common law damages if you are a resident, and another lot, a lower lot, if you are a non-resident and your State happens to

have some restriction.

Your Honour Justice Toohey dealt with the matter at page 559, point 9, where Your Honour

referred again to Henry v Boehm and the election

example and then said, five lines from the bottom:

To say this, however, is not to indicate the

limits of s. 117. The circumstances of the

case now before the Court do not require that

these limits be spelt out and it would be

unwise to attempt such an exercise. But

underlying the section is the notion to which

reference has already been made that Australia

is a commonwealth and its laws are to equally

to all its citizens. The section operates by

force of its terms; its limits are to be found

in the implications to be drawn from the

Constitution, in particular the capacity of the States to regulate their own affairs within a federal system.

And that seems to be the extent of the limitation.

Some laws will of necessity affect those who

reside in a State differently from the way

they affect those who reside elsewhere. It

does not follow that there is a disability or discrimination withins. 117, particularly if the difference is a natural consequence of

legislation aimed at protecting the legitimate

interests of the "State community". Time will

see the working out of the limits of the

section.

That, we submit again, does not assist my learned

friends. The reference to the capacity of the

States to regulate their own affairs within a federal system cannot extent to a discrimination as

direct as this one.

Goryl(4) 10 12/10/93

Your Honour Justice Gaudron dealt with the matter at page 573, point 5, and Your Honour dealt

in that passage with some of the difficulties found

by the Supreme Court of the United States and:

The question whether different treatment

assigned by reason of a relevant difference is appropriate to that difference is one which is

peculiarly apt to attract different answers
according to the alternatives available at

different times.

Your Honour referred to burdens and, about six

lines from the bottom, said this:

The question of appropriateness may be

answered by reference to the test applied to

determine the validity of legislation enacted

to secure a constitutional purpose, namely,

whether it is reasonably capable of being seen
as appropriate and adapted to that purpose.

For present purposes the issue may be

expressed as whether the different treatment

is reasonably capable of being seen as

appropriate and adapted to a relevant

difference.

Well, what relevant difference is there, one asks,

between two people who are injured in a car

accident anywhere, one of whom is a resident of

Queensland and one of whom is not.

Finally, Your Honour Justice McHugh, at

page 582, in the middle of the page, posed the

question:

But what is "discrimination" for the purpose

of s. 117? The concept frequently involves

the notion of unjustified differentiation:

He referred to some cases.

which is based on or is the result of	On this view a justifiable differentiation	interstate residence would not be
"discrimination". Ins. 117, however, "discrimination" seems to mean the act of distinguishing or treating differently irrespective of whether the distinction or
different treatment can be justified.

Your Honour then refers to some considerations

which point to that conclusion. And the exceptions

Your Honour refers to at page 584, where at

point 2, Your Honour says:

Goryl(4) 11 12/10/93

Matters which are the concern only of a

State and its people and are not within the

scope of s 117 would seem to include the
franchise, the qualifications and conditions
for holding public office in the State, and

conduct which threatens the safety of the

State or its people. No doubt there are other

subject-matters which are also outside the
reach of s 117. But since all exceptions to
the terms of that section arise by necessary
implication from the assumptions and structure

of the Constitution, they must be confined to

the extent of the need for them. The question

is not whether a particular subject-matter

serves the object of s 117; it is whether, by

necessary implication, the matter is so

exclusively the concern of the State and its

people that an interstate resident is not

entitled to equality of treatment in respect

of it.

I do not need to say to Your Honours that in

Australia today road transport is an extensive

means by which people in this country travel from one State to another; that road accidents with an

interstate element are a very important aspect of

the life of the country and that for those reasons

none of those formulations would justify

section 20.

Now, in order to consider the question whether

I need to say anything more at all, I should just

very briefly first show Your Honours how the other
question arises and then indicate to Your Honours

the way in which it may arise in this case.

Your Honours can then decide whether it is

necessary to stop me or not on the other issues.

If Your Honours go to the single page

Your Honours will see section 16. What section 16

does is confer a benefit on certain classes of
persons directly against licensed insurers.	Now,
under this Act otherwise there is the normal

structure. One sues the owner of the vehicle who

is rendered absolutely liable, even where it is

driven by a thief, and that owner has the right,

under section 3, to indemnity against his or her

insurer.

Section 16 is correctly entitled "Additional

obligation of insurers", and it imposes a new cause

of action directly against the insurer which may be

additional to whatever other actions the injured

person has against the defendant, or the defendant

against the insurer. It says:

Goryl(4) 12 12/10/93

the obligation of the Office or a licensed

insurer under a contract of insurance made in

accordance with section 3(1} includes an
obligation to pay compensation for accidental

bodily injury (fatal or non-fatal} to -

I stress the word "to" -

any person caused by, through or in connection

with with motor vehicle to which the contract

relates in a State, other than

Queensland ..... where -

(a} the person was an occupant of that motor

vehicle;
(b) the person's principal place of residence

was in Queensland at the time of the accident;

and

(c) had the accident occurred in Queensland, a

contract of insurance would have provided for

indemnity -

So this additional right is given to any person,

any Queensland resident, who is an occupant of a

vehicle registered in Queensland and injured by the

use of that vehicle.	Now, of course, that is what
occurred in this case.

BRENNAN J:  What was the right previously conferred upon an

injured plaintiff to recover directly against a

licensed insurer?

MR BENNETT:	None relevant, Your Honour. There are specific rights and specific narrow types of case but,
basically, where there is insolvency and where
there is absconding defendants and unknown
defendants and matters of that sort - - -

BRENNAN J:  I did not think it was as narrow as that. It

may have been under regulation 11, I am not sure.

Section 4A provides a liability of insurers.

MR BENNETT: Section 3 provides for compulsory insurance

against liability of an insured person to pay
certain damages in subsection (l); subsection (3)

has the minimum amount; subsection (4) makes it

irrevocable. Then section 4A provides:

Where accidental bodily injury ..... has

been caused by, through, or in connection with

a motor vehicle insured under this Act but the

insured person -

cannot be found, there are certain matters laid

down. But, the general assumption, as I understand

it, is that the actions against the defendant.

Goryl(4) 13 12/10/93

There is, I should say, a procedural right of the insurer which was exercised in this case to

become a defendant by election, and that right, I

am told, is normally exercised.

BRENNAN J: Yes, my recollection may relate to

against the insurer. non-satisfaction of the judgment rather than action

MR BENNETT: But, for present purposes, the only point I

wish to make about section 16 is that where a

Queensland resident is a passenger in a Queensland

vehicle and injured outside Queensland, there is

this special additional right to recover, what we

might call, the full Queensland damages. The

quantum is set out by section 19. All section 19

does is say:  (a) if it is in a Northern Territory

type of place, where there is no right to damages,

then you get the full damages under this section;

and (b) says if it is a New South Wales type place,

where you get some reduced amount of damages, then

you get the increment, bringing you up to normal

damages. So it seems - - -

BRENNAN J:  Am I right in thinking that Part VI was enacted

on the footing that if there was an accident in New

South Wales involving a plaintiff who sued in

Queensland that the damages would, in any event, have been limited to what could be recovered in New

South Wales?

MR BENNETT:  Yes, Your Honour, that is the point I intended

to make by referring to Yuill's case.

BRENNAN J: Yes.

MR BENNETT:  These sections were added after Breavington and

before Stevens, and they made the assumption to

which Your Honour refers.

BRENNAN J: Yes, well that would produce a uniformity of

operation in that case?

MR BENNETT:  Yes, it would, Your Honour. It is a very

limited section, although it would, but for my

client's residence, apply in this case because what

my client did was buy a bus ticket from Greyhound,

a Queensland company, in Queensland. She travelled

from Brisbane to New South Wales in a bus

registered in Queensland and was injured on the

hypothesis, we are assuming, by the driver's
negligence in an accident near Coffs Harbour. All

the elements of section 16 except residence are
present. She was a passenger in a Queensland

registered vehicle and injured due to the

negligence of the driver in New South Wales.

Goryl(4) 14 12/10/93

Indeed there is the added little factor, which

is not referred to anywhere in these sections and

perhaps has more moral force than legal force, that

she paid for her ticket in Queensland to a

Queensland company, the Queensland company which,

of course, paid the premium. So that is section 16

and section 19 then, as I say, provides full

recovery if there is no recovery interstate and top

up recovery if there is partial recovery

interstate.

Section 17, which does not arise in this case

at all on any view of it, but one needs to refer to

it for completeness to see the legislative scheme,

is a very wide bounty. That says:

Where accidental bodily injury (fatal or non-

fatal) to any person has been caused in a

State, other than Queensland, or Territory of the Commonwealth by, through or in connection

with a motor vehicle, being injury such that, had it been caused in Queensland, a claim for

damages for such injury could have been made -

then you can sue the Nominal Defendant and get

section 19 top up or damages. Now, can I just show

Your Honours the effect of that: if a Queensland

resident travels to Sydney on holidays and I knock

that resident down in my motor vehicle due to my

negligence and there is no Queensland element in

that case whatsoever, except the residence of the

plaintiff, the plaintiff can sue me in

New South Wales and recover the New South Wales'

damages and then he is given the right to sue the

Nominal Defendant in Queensland for the top up, to

bring her or him up to full Queensland or common

law damages. Even more Draconianly, if that

happens in Darwin, if the Queensland resident

travels to Darwin and is knocked down there, the

Queensland resident gets full damages against the

Nominal Defendant in Queensland.	And section 18
then provides that the normal right of recovery,

which the Nominal Defendant has against the

tortfeasor is excluded. They make the slightly

sardonic comment in the submissions that one

wonders what would have happened if there would

have been an attempt to enforce it, but for that

provision, but the Court does not need to consider

that interesting question.

So, that is the effect of section 17; it

confers a very broad right on Queensland residence.

Now it does not arise in this case because one of

the proscribed conditions in subsection (2), is
that the case not be one to which section 16

applies and this, but for residence, is a case to

Goryl(4) 15 12/10/93

which section 16 would apply. So the section 17

does not have any direct application.

Now the only ways in which these provisions are relevant in this case are these. There are two

ways in which they may be relevant. The first way

is this: on the view taken by Your Honours

Justice Deane and Justice Gaudron in the earlier

cases in relation to section 118, the invalidation

of section 20 would not assist my client because,

on that view, although one would exclude

section 20, the section 118 would require the

application of the New South Wales limitation,

because the accident occurred in New South Wales.

On Your Honours' view therefore, the only way

in which my client can recover is if we can succeed
in submitting that paragraph 16(b) is an invalid

exclusion and should be excised from section 16.

BRENNAN J:  Does section 16 say anything about the injured

plaintiff's right?

MR BENNETT:  Yes, Your Honour, by virtue of section 19.

Section 16 provides that the obligation of the

insurer includes "an obligation to pay

compensation" to any person injured.

BRENNAN J: But that is an obligation owed under the policy,

is it not?

MR BENNETT:  Your Honour, one would have thought that, but

for the preamble to section 19, which says that:

The amount to which a claimant is

entitled upon a claim for damage or

compensation under section 16 or 17 -

So, it assumes that - the draftsmanship is not

perfect, Your Honour, but the assumption in

section 19 seems to be that section 16 creates an

obligation enforceable by a person described as the
claimant, who must be the injured plaintiff.

The reason for the diffidence expressed by the various Solicitors-General to Your Honours a few

minutes ago really is this, that the effect of what

I have just said is that if Your Honours, other

than Justices Deane and Gaudron, are divided 3:2 on

section 20, then I need to persuade Your Honours

Justices Deane and Gaudron in relation to the

invalidity of paragraph 16(b). If the others of

Your Honours were in my favour by 4:1 or 5, then
that would not be a necessary part of these
proceedings. So, in a sense, it depends on the

views of the other members of the Court.

Goryl(4) 16 12/10/93

The second way in which the issue could conceivably arise, although it is remote, but I

need to exclude it, is this: that if section 20

were held to be invalid, my submission at trial or

the submission of counsel for my client at the

trial, would be that because section 16 is merely

an additional obligation imposed on the insurer,

there is simply no need for her to rely on that

section. All she has to do is claim ordinary

damages in Queensland under the principles of the

majority in Stevens v Head, which would of course

be Queensland damages, not New South Wales damages.

For what it is worth, though that may not be of

great relevance where one has a solvent defendant

as here, the first defendant would then be entitled

to full indemnity from its insurer under section 3.

The additional obligation referred to in section 16 and 19 would simply not be necessary or

arise. It, as Your Honour Justice Brennan pointed

out, assumes Stevens v Head is not there.

The contrary argument which concerns me is, it

might be submitted at trial that there is an

implication from the scheme of section 16 to 19, by

analogy to Yuill's case, which requires the Court

to look at the situation as if Stevens v Head had
not been passed in construing the legislation, and

therefore to imply that there is some restriction

on my client's right to recover damages,

notwithstanding the invalidation of section 20. It

is a remote argument, but it is one which does

necessitate my dealing with the sections unless it

is eschewed.

I raised the matter with my learned friend,

Mr Sofronoff, this morning. Unfortunately I did

not raise it with him before this morning. He has

indicated that he would not be submitting to this

Court that the proposition I have just put is

arguable, but he is not able to give undertakings

on behalf of his clients, and in that situation,

unless it is made clear by this Court, or by

concession by my friend, that at trial no such

point would be taken, it is necessary for me either

to submit that point or to submit that

section 16(b) should be excised.

MASON CJ:	Mr Bennett, I think you ought to proceed on the basis that you might be confronted with this
situation.  I am not indicating that that is a
likelihood but, at this stage, it is not possible
for the Court to exclude that as a possibility.
MR BENNETT:	Yes, if Your Honours please. Well, the

submission is still a very short one and it appears

on page 5 of my submissions;· under paragraph ( g).

Goryl(4) 17 12/10/93

It may not be as short from everyone else.	The
submission is that section 16, perhaps unlike
section 17, is not a State welfare provision

dealing with some supposed exception where a State

raises money from its own residents and wishes to

spend it on its own residents.

Now, there is a serious and difficult

constitutional question as to whether a State is

entitled, under the various qualifications which I

have read to Your Honours from Street's case, to

say, "We will raise money from people resident in

this State by some form of State taxation, and that

money will be spent on providing some benefit which

is exclusive to residents of this State". The

example, I suppose, might be with the police force. Suppose a State law were to say, "If an interstate

resident requires the assistance or services of the

police, it shall be provided, but at a cost, based

on the time costing of the police officers

involved, recoverable from that interstate

resident".

Now, such a provision, we would submit, would be invalid. But that is the highest to which any

welfare exception could go. It does not really

arise in Australia in relation to medical benefits

because, of course, they are provided,

substantially, at Commonwealth cost. But if - - -

DEANE J:  Mr Bennett, can I just interrupt you? I am having

a bit of trouble with these sections. How much

does your client, "much" in terms of basis rather

than figure, claim to be entitled to recovering

this action? The excess of the Queensland amount

over New South Wales amount, or the whole amount?

MR BENNETT:  Our primary submission, Your Honour, is that we

are entitled simply to recover the full amount

against the first defendant, Greyhound, the owners

of the bus, on the simple basis that there was a

tort committed and, under Queensland law, we are

entitled to recover damages. Section 20 is

eliminated and -

DEANE J: Sections 16 and 19 are irrelevant?

MR BENNETT:	Yes, and Stevens v Head says that one applies the Queensland provisions. That is the first and
simple basis on which we put our case. The second
and alternative basis is that if, for one of the
two reasons I have given, Your Honours' views under
section 118 on the one hand, or the argument from
implication in Yuill's case on the other, that
there is an answer to that claim based on
implication from sections 16 to 19 or, for that matter, based on section llS in the New South Wales

Goryl(4) 18 12/10/93

provisions, then we say, we want the benefit of

section 16 which entitles me to recover against the

second respondent, Suncorp, the insurer, the

increment under section 19(b) and the primary

damages, only, against Greyhound under the general

law.

DEANE J: So, on your argument, is this right, that sections

16 and 19 would only apply in a case where you had

taken proceedings and recovered damage in New South

Wales to enable you to overcome a plea when you

sought to recover the additional amount?

MR BENNETT:  No, Your Honour, one can do it in a Queensland

action heard at the same time, which is what is

happening here, because the two actions are

obviously part of the one action. It would simply

be that, as against the first defendant, we are limited by either Your Honours' judgment or the construction argument to the New South Wales

damages. As against the second defendant, we claim

the benefit of sections 16 and 19(b) without the

residence exclusion, which gives us the increment.

DEANE J: Well, I may not have put it correctly. If your

argument is fully correct and accepted, would

sections 16 and 19 still apply to the case where

you would sue and recover damages in New South

Wales?

MR BENNETT: Yes, Your Honour.

DEANE J: So, it would have that residual operation.

MR BENNETT:  To top up the damages to the Queensland level,

yes. Section 19(b) appears to contemplate even the

situation, which must be very difficult in

practice, where the New South Wales action has not

been brought yet. What the Queensland court has to

do is assess what the New South Wales damages would

be and then provide the increment. In practice, of

course, one would always try and do it in the on

action to avoid that sort of problem, but the New South Wales action could be before, after, at the

same time, or never. It is an independent and

separate cause of action against a different person
providing an increment.

So, we would submit, first of all, that the

exceptions in Street's case do not permit some sort
of general welfare exception of the type I have

indicated. One could not say, "Because Queensland

racetracks, or hospitals or police forces, or

anything else, are financed by general general

Queensland taxes, therefore we will charge

non-residents a fee for their use and make them

Goryl(4) 19 12/10/93

available free to Queenslanders." That is a very

broad question which Your Honours would probably

not find it necessary to decide in this case,

because the second aspect of that submission is

that even if there were some such - I use the word

welfare in the general sense - welfare exception,

that would not apply here.

It might apply to section 17. Section 17

consists of funds raised by a levy on registered

motor vehicles and that levy is applied - - -

DEANE J:  Mr Bennett, I should ask you, rather than the

Chief Justice: why do you exclude the

Chief Justice from what you say about

Justice Gaudron and myself? Why is section 16 not

relevant on the approach His Honour adopted?

MR BENNETT:	Because as I understand that approach in McKain v Miller and Stevens v Head, that approach does not
directly - and there may be an error in
this - involve the section 118 approach. It
involves rather a - - -
MASON CJ:	No, it does not involve 118.

MR BENNETT: It involves a distinction between the

procedural and the substantive and the nature of

that distinction.

DEANE J:  But would not His Honour say that your claim under

section 20 was limited to New South Wales damages?

Where do you get the Queensland damages?

MR BENNETT:  Yes, Your Honour is correct in that. fact, a 4:3 problem, not a 5:2 problem. It is, in

I

apologize for that. That is so. I had mentally

put it in a different category, but what

Your Honour says is perfectly correct.

Even if there is some such welfare exception

it may apply to section 17 where there is a tax

levied on people who register Queensland motor

vehicles used to give a specific benefit. One

might well be of the view that the nature of

interstate travel is such that there is still not

sufficient real nexus with Queensland in relation

to damages of this sort, because motor accidents

are more a problem of where they occur and

indemnifying defendants than the problem of the

residence of the injured plaintiff.

But assuming against me that I could not

remove the exclusion in 17(2)(a), that does not

apply to section 16. Section 16 is concerned with

a right given which is paid for by premiums paid on

motor vehicle insurance. Those sums are paid, and

Goryl(4) 20 12/10/93

they are paid compulsorily, of course, but they are
paid for the purpose of securing indemnity. At

least one of the relevant interests of the State

sought to be protected by this legislation is the

interest of the States that drivers should not be

bankrupted or ruined by substantial damages ordered

against them, particularly, of course, if the car

is being driven by a thief or some person having no

relationship to the owner of the vehicle. That
objective is achieved by the compulsory insurance

and the means of it being paid.

The true nexus of section 16 with the State arises in relation to that. It is concerned with

the obligation of a licensed insurer, and the fees

are raised from insurance premiums. This is where

the relevance of my friend's affidavits may appear

because those affidavits suggest that there is a

substantial, but not complete, identity between

Queensland residents and persons registered as owners of Queensland motor vehicles.

It is for that reason that I have objected to

those affidavits, although even there there is not

a complete identity; the suggestion in the

affidavits, I think, is 99.3 per cent, and

.7 per cent are non-resident. But, in any event,

the fallacy of that approach is well illustrated by the present case, where my client sues, among other things in contract and paid her contractual

liability, the amount of her fare, to a Queensland

company in Queensland into its general funds, which

general funds were used to pay the premium.

DEANE J:  Why should you be bothered about a fight on the

facts. I mean, would we not assume, as a matter of

common sense, that the overwhelming proportion of

the owners of Queensland registered motor vehicles

were residents of Queensland?

MR BENNETT: That involves, I suppose, the question of

inferences that can be drawn from the stated case

and the controversy on that issue, but probably one
would draw that, Your Honour, whether .....

overwhelming majority or - - -

DEANE J: Well I mean, I am just trying to avoid having, in

effect, to look at a mini case at the end of the

argument on something which, for my part, I would

assume anyway.

MR BENNETT:  But it is an issue which is raised against me;

it may provide one plank on one argument in my

friend's case, it was not conceded in the stated

case or put to us in the stated case, but I

appreciate the force of what Your Honour puts to

me.

Goryl(4) 21 12/10/93

DEANE J: Could you not over lunch reach agreement that the

overwhelming proportion of owners of motor vehicles
registered in Queensland are Queensland residents

and take this complication away from us?

MR BENNETT:  Your Honour, it is not a matter which is of

great significance in the case; as I say, I

appreciate the force of what Your Honour puts to me

and perhaps I will obtain further instructions.

BRENNAN J:	How does this issue arise? In the context of sections 17 and 18?
MR BENNETT:	Yes, Your Honour; sections 16 and 17, yes.

BRENNAN J: Section 16, I see.

MR BENNETT:  Because the levy under section 17 is on people

who register motor vehicles and any amount which is
passed on in premiums under section 16 is on those

who register motor vehicles in Queensland, so in

each case it is that group which provides directly
or indirectly the funds which are available.

BRENNAN J:	Does section 16 apply to an accident involving a New South Wales' car?
MR BENNETT:	No.
DEANE J:	You would be much more worried about it if the

evidence was that just about everyone who is

injured in a Queensland car outside of Queensland

was a resident of Queensland; that would really

raise the problem, but nobody could assume that or

prove it.

MR BENNETT:  It would, Your Honour, but my learned friend

has not suggested the Queensland motorist, as a

class, is so unkind to hitchhikers in other States.

DEANE J: Well, it is not hitchhikers, I - - -
MR BENNETT:	No, it could be other people, but that has not been suggested. Well, the problem arises, perhaps
more vividly, in practice in relation to companies
such as Avis and Hertz where cars, as I understand
it, are indiscriminately registered throughout the
six States and transported by hirers around Australia, and one can rent a car from one of those
companies in any Australian place which is
registered anywhere else in Australia, and those
cars can then be driven by people who can cause
injury. So, in that sense the problem arises in far more types of case than the simple classic cases of travelling Queenslanders or travelling New
South Welshmen.

Goryl(4) 22 12/10/93

The point we make is that section 16, unlike

section 17, involves far more connection with
Queensland. It requires a Queensland motor

vehicle, an interstate accident, and a Queensland

resident who is a passenger in that motor vehicle,

and it is really, we would submit, part of the

general insurance scheme which this Act sets up.

It is no part of the policy of that general

insurance scheme, ignoring these sections, to

favour Queensland residents. These sections create
and impose that.

The general insurance scheme has the

objectives - the twin objectives perhaps - of
protecting Queensland insured defendants, who are
the owners of motor vehicles against ruinous
verdicts and providing, in a general sense,
compensation to persons who are injured and who are

able to sue a person who has a Queensland

registered vehicle and recover damages under the

law of Queensland. Those are general requirements,

not requirements based on the residency of the

victim, and the requirements based on the residency
of the victim are introduced only by

sections 16, 17 and, of course, 20.

BRENNAN J: Mr Bennett, I do not think I am following this

properly, but is this a cause of action against

Queensland licensed insurers?

MR BENNETT:  Yes, Your Honour.

BRENNAN J: Let us assume the accident involved a New South

Wales car; the action was brought in Queensland?

MR BENNETT: Section 16 would not apply, Your Honour.

BRENNAN J:	Would not apply?
MR BENNETT:	No, Your Honour.

BRENNAN J: So, that there is no cause of action conferred

against insurers from other States?

MR BENNETT:  No, Your Honour, that is correct.

BRENNAN J: So, the question really is whether there is

impermissible discrimination in conferring a cause

of action on Queensland residents against

Queensland insurers, though no such cause of action

is conferred against out-of-State insurers, or in

favour of out-of-State residents?

MR BENNETT:  Yes. The Queensland insurer may, of course,

not be a Queensland resident. The insurer may be a

general insurer in Australia, licensed to insure in

Queensland.

Goryl(4) 23 12/10/93

BRENNAN J: Yes, well, an insurer would be carrying on

business on Queensland.

MR BENNETT:  Yes, Your Honour.

BRENNAN J: So, it is a question of those who are carrying

on business insuring Queensland cars?

MR BENNETT: 

Yes, Your Honour, and the question is, can

by the general insurance premiums paid on

Queensland, in creating a liability which is funded premiums, matters of that sort, can Queensland say

that that will be used for the benefit of persons

who are injured in interstate car accidents
involving Queensland cars, but only if they are
Queensland residents? That is the issue.

So that if this bus is carrying a Queensland

resident and a New South Wales resident and it has

the accident in New South Wales, the Queensland

resident recovers in full and the New South Wales

resident is restricted to New South Wales damages,

and the same applies to hitch hikers or anyone else

who happens to be in the vehicle, and that is - - -

BRENNAN J: If the following bus is a New South Wales bus

nobody gets anything?

MR BENNETT:  No, Your Honour. In relation to the New South

Wales bus, Queensland residents will recover under

under section 17 against the Nominal Defendant in

Queensland.

DAWSON J: They could recover it under section 16, too,

could they not?

MR BENNETT:  No, Your Honour, because the preamble to

section 16 refers to:

accidental bodily injury ..... to any person

includes an obligation to pay compensation for

caused by ..... the motor vehicle to which the

contract relates -

DAWSON J: Well, assuming the bus is covered by Queensland

insurance.

MR BENNETT:  Oh yes, if it is a Queensland vehicle - - -

DAWSON J: Yes, and then they would not come within 17?

MR BENNETT: That is so, Your Honour.

DAWSON J: Yes.

Goryl(4) 24 12/10/93

MR BENNETT:  But the example that was just put to me was the

example of a New South Wales bus which collides

with it and in that case the Queensland resident

claims damages under section 17, or top up damages.

BRENNAN J:  Why does it have a cause of action against the

Nominal Defendant?

MR BENNETT:	Because section 17 provides an action to any Queensland resident who is injured in another State
or Territory, whether or not the vehicle is a Queensland vehicle, whether or not the defendant is
a Queensland resident, and it is simply a broad
provision.

BRENNAN J: But does it not have to be a claim that could

have been made against Nominal Defendant if the

accident occurred in Queensland?

MR BENNETT:  No, Your Honour, that is what is not in

section 17.	I will just take Your Honour through
it:

Where accidental bodily injury (fatal or

non-fatal) to any person has been caused in a State, other than Queensland, or Territory of

the Commonwealth by, through or in connection

with a motor vehicle -

and there is no definition limiting that to

Queensland -

being injury such that, had it been caused in

Queensland -

not by anyone -

a claim for damages for such injury could have

been made, a claim for damages for such injury

may be made to The Nominal Defendant -

et cetera.

BRENNAN J: I see. Yes, I was misreading it.

MR BENNETT:	And then Your Honours see the three prescribed conditions are that the plaintiff is resident in
Queensland; section 16 does not apply and:

had the accident occurred in Queensland, a

contract of insurance made in accordance with

section 3(1) (assuming such a contract to

exist where one does not exist in

fact) ..... would provide for indemnity.

Goryl(4) 25 12/10/93

So, as long as it is a normal motor accident under

which a normal Queensland policy would have insured

a Queensland car, the Nominal Defendant is liable.

DAWSON J:  I am not entirely clear why you needed section 16

in those circumstances. Section 17 is broader and

would cover it.

MR BENNETT:  It comes from a different source, Your Honour.

Section 17 is a liability of the Nominal Defendant

which is raised by means of a levy.

DAWSON J: Yes.

MR BENNETT: Section 16 creates a liability of the licensed

insurer.

DAWSON J:  It probably comes to the same in the end, but I

see the difference, yes.

MR BENNETT: It probably does, Your Honour. There is a

difference in the source of funds.

DEANE J: But there is a difference in the nature.

Section 17 is a welfare provision. Section 16

regulates contracts and gives an advantage to

residents of Queensland.

MR BENNETT:  Yes, that is so, Your Honour. Without making

the full concession about section 17, that appears

to be so, Your Honour, yes. That distinction

certainly appears in the two sections.

GAUDRON J: 

Why, however, would one approach section 16,

assuming it is discriminatory, on the basis that
one excises the condition of Queensland residents,

rather than the whole section?

MR BENNETT: 

Your Honour, partly because a section which

Your Honours do not have, section 13 I think it is, of the Act, has a standard clause dealing with

severance.

GAUDRON J: But it depends on what aspect you view as the

discrimination. You can view as discrimination

excluding the New South Welsh person, say, or you

can view as the discrimination giving an advantage

to the Queensland person. It is just which angle

you come at the section from.

MR BENNETT:  Your Honour, one may need to look at the

relative significance of the two aspects, and that

may come out differently under section 17 - - -

GAUDRON J:  And if, of course, you take a view about

section 118 - - -

Goryl(4) 26 12/10/93

MR BENNETT: That is another issue.

GAUDRON J:  - - - the striking out of the whole section has

considerably more appeal.

MR BENNETT:  I am going to have something to say about

section 118 in a moment, Your Honour, but may I

just say - - -

GAUDRON J:  The real question is, does section 118 tell you

anything about the nature of discrimination in

these circumstances, I suppose.

MR BENNETT:  Yes, but may I just say this in answer to

Your Honour's question; section 13 is a standard

reading down section which says that one should

sever to the extent that one can. In relation to

section 16, one would have thought the cases

involving the Queensland element are likely to be a

very substantial majority of the cases under the

section. So that the excising of the minor

provision about residents is unlikely to have a

dramatic effect on the fund overall, in the

circumstances.	Under section 17, however, that is
not the case.

If one were to excise from section 17 the reference to residents, one would have the

incredible consequence that any New South Welshman

injured in New South Wales by a New South Wales

car, or by any car, in circumstances having no

connection of any kind whatsoever with Queensland,

would be entitled to sue the Nominal Defendant of

Queensland in Queensland, and recover top up

damages. Now, that is such a dramatic consequence,

and would have such a dramatic effect on any view

in relation to the matters involved, that one could

not imagine any legislature passing such a

provision. So, I would have to concede that if

section 17 were the section we were dealing with,

there could be no severance. The whole nature of

the provision would become totally different and it

would become a bizarre provision.

BRENNAN J:  Mr Bennett, if one casts one's mind back to the

time when this Act was brought into force and

remembered that a Queenslander who went south of

the border and was injured, had no course of action

under New South Wales law, nor any right to any compensation out of any fund in New South Wales, 16(b) was obviously designed to produce some

protection for Queenslanders travelling south.	To
say that one would let 16 stand with (b) elided

seems to me to postulate the proposition that the

Queensland Parliament would have been minded to

pass such a provision, denuded of paragraph (b),

Goryl(4) 27 12/10/93

when the whole purpose of it was to give the right

to the Queensland residents.

MR BENNETT: Well, Your Honour, may I just this: section 16

only applies to a passenger in a Queensland

vehicle. Now, again one is hypothesizing and

drawing inferences, but one would have thought, in

most cases, such passengers would be Queensland residents. There would be some cases where the

passengers are not. That being so, it may also

have been not an irrational intention of the

legislature to say, "We will accept responsibility

for our vehicles. If a Queensland vehicle is

driven negligently outside Queensland and it

injures someone, that person will have the same

rights as the person would have had in Queensland

because we consider that we take responsibility for

our vehicles". That would be a perfectly rational

result. It would not be rational, however, under
section 17, for Queensland to say, "Well, if anyone
anywhere in Australia does not get full Queensland

damages in a motor accident, we are going to top it up out of our funds, even if there is no connection with Queensland".

I should, perhaps, add this: the forum non

conveniens aspect does not come into this because

the action is an action directly against the
nominal defendant, or directly against the

Queensland insurer. Otherwise one might have the even more bizarre situation where Voth might solve

some of the problems by enabling one to say that it

would be irrational to permit action in Queensland

where there is not sufficient connection and one

would then have the problem, I suppose, of the New

South Wales accident, with the Queensland bus

driving past at the time and 32 witnesses resident

in Queensland who all saw the accident on that bus.

And Voth would say one could bring the action in

Queensland because the balance of convenience is there even though there is no other connection, as

long as one can sue the defendant in Queensland.

But we do not need to get into that because these

actions are not actions against the defendant who

was negligent. They are actions against Queensland

instrumentalities, and there are statutory courses

of action against those instrumentalities, or

insurers.

So, we would submit that when one looks at

section 16 and one applies the reading down

required by section 13, the section still stands as

a rational exercise of legislative power, if one

excises the requirement which is only going to be a

limiting requirement in a minority of cases. That

does not apply, as I say, in section 17. Once one

does that, my client would be entitled, if excluded

Goryl(4) 28 12/10/93

in one of the three ways I have suggested, to rely

on section 16. But I do stress, that only arises

on three contingencies. It arises on the

section 118 review of Your Honours Justices Deane

and Gaudron; it arises on the procedural

substantive distinction excluding damages on the

view expressed by Your Honour the Chief Justice,

and it arises if a construction argument based on

Yuill's case can be made to the effect that there

is an implication in sections 16 to 19 reducing an

entitlement my client would otherwise have.

If all of those three are rejected and the

argument on section 20 succeeds, then the argument

on section 16 does not arise.

The final submission is a very brief one and

it is addressed solely to Your Honours

Justices Deane and Gaudron - it is addressed to the

Court, I suppose, if any of the Court changed their

views - and the submission is this: that on the

view that section 118 applies in the present case,

or would otherwise apply, we would submit section

118 cannot be applied to create ipso facto a breach

of section 117. In other words, if a State's own

law is a law which is disadvantageous to a class of

persons, one cannot by applying section 118 make

that applicable merely to residents of that State
so as to discriminate between residents of the
State which has that law and residents which do

not. In other words, section 118 must be subject to section 117. There are no real internal clues

which affect that; section 117 appears earlier.

The two sections are adjacent, but we would submit

that it was not the intention of full faith and

credit to enable one State to use a provision of

another State, to use its recognition of another

State's laws, to create a discrimination. After

all, in the present case, the New South Wales

statute does not discriminate against

New South Wales residents and it is merely the

application of it to New South Wales residents

which gives rise to that discrimination.	May it
please the Court.

MASON CJ: Yes, thank you, Mr Bennett. Mr Solicitor for the

Commonwealth.

MR GRIFFITH: Your Honour, subject to the Court's direction,

we were not intending to make submissions with

respect to section 20 other than saying it was

plainly bad, and our submission is more directed to

appropriate tests which could lead to support of

section 16 if that arose. So it may be that us and

the other interveners, Your Honour, more

appropriately should go after the respondents, but

we are in the Court ' s hands_._

Goryl(4) 29 12/10/93

MASON CJ: Yes, I was only concerned to ensure that

Mr Sofronoff would have an opportunity to respond

to any submissions that -

MR GRIFFITH: Well, Your Honour, I have said almost all I am

going to say on section 20, and I would be happy if

he reserved his right to come back if there was

anything.

MASON CJ:  Very well. Mr Solicitor for South Australia.

MR DOYLE:  If the Court pleases, we are really in the same

position as the Solicitor for the Commonwealth, and

it may be more convenient perhaps likewise if he is

to put his submissions later, we will. But it is a

matter of what is more convenient to the Court.

MASON CJ: Logically, I would have thought we should be

hearing what you have to say before we hear

Mr Sofronoff.

MR DOYLE:  If the Court pleases. The Court has our outline?

MASON CJ: Yes.

MR DOYLE:  Could I just make two preliminary points,

Your Honours. Your Honour Justice Brennan, in the

course of Mr Bennett's submissions, referred to the

position as it was under Transcover - if a

Queensland resident went south, as Your Honour put

it, and I understood Your Honour to say that in

that situation, a Queensland resident would not be

entitled to benefits under the Transcover scheme.

Your Honour may have been content to put it

generally, but as we understand it the position was

a little more narrow than that. It was if a

Queensland resident was injured in New South Wales

in an accident not involving a vehicle registered

in New South Wales, or not involving an

unidentified vehicle, or not involving a public

transport vehicle.	So Queensland residents did not
miss out altogether. It was only in certain

situations that they would not receive benefits,

and the sections, Your Honours, are in the now
repealed, I think, Transport Accidents Compensation

Act 1987, sections 33(l)(b) and 4(1).

BRENNAN J: This was the basis of the New South Wales Bar

Association's challenge to the Transcover scheme,

was it not?

MR DOYLE:  Yes, Your Honour, which terminated, I think,

perhaps the day before it was due to be heard in

this Court.

The other point, Your Honours, I would make

apropos of another point Mr Bennett made, was he

Goryl(4) 30 12/10/93

said that section 118 could not be applied so as to
bring about a contravention of section 117. That

may well be but, in our respectful submission,

there is nothing about New South Wales law as it

now stands that would seem to produce that

situation. There may be something we are missing,

but on our understanding of the position it in no

way discriminates, as things stand now, between

residents of different States.

One other final preliminary point, apropos

again of something Your Honour Justice Brennan

said, it is perhaps understandable in the context
in which the Queensland legislation was enacted,

that it was sought to protect Queensland residents.

However, in our respectful submission, the primary

thing to consider is whether the Transcover scheme

was itself valid. In other words, an Australian

legislature, in our submission, could not respond

to something in breach of section 117 by itself

enacting something in breach of section 117, and if

the New South Wales scheme was invalid under

section 117 or in some way affected by it, then

that surely is the remedy. If it is valid in its

entirety, notwithstanding section 117 then, in our

respectful submission, one cannot, as it were,

start by saying, "Well, we've got a special basis

for legislation here", because if it is not

offensive to section 117 there is nothing, as it

were, to attract what one might call special

legislation.

Your Honours, turning then to our submissions,

I will not go over the submissions as to

construction because, as I understand Mr Bennett's

submissions, we agree in all respects on issues of

construction. I will just make one small point.

As to section 16, it does seem at least to

contemplate the possibility that a person could

recover damages in Queensland relying on Stevens v

Head and then also claim compensation under

section 19(b) saying, "Well, if I sued in New South

Wales I would get less than in Queensland and so I

also want the top up amount." Now, I only make

that point to make the point that the interaction

between sections 16, 19 and the common law is a
somewhat complex one. Presumably, one would think,

that sections 16 and 19 have to be construed in

some way so as not to allow that to happen, but it

is an oddity of the section to which we refer in

paragraph 4 of our outline.

As to section 20, could I just make this

point, Your Honours - two things. First of all -

and I will come to this a bit later, although

briefly - in our submission, it is not the choice

of law section. If it were·a true choice of law

Goryl(4) 31 12/10/93

section there would seem to be no reason to

criticize it. In other words, if it said that in

Queensland damages for personal injury sustained in

a motor vehicle accident are to be determined in

accordance with the law of the person's principal

place of residence. That, in our respectful

submission, would seem to be a valid choice of law

rule.

The significant thing about section 20 is that

it is simply a cap on damages. The choice of law

rule is the ordinary choice of law rule, as it

were, by assumption, namely that Queensland law

under Stevens v Head. What section 20 does is then

to cap the damages which a person can recover, and

the only thing it can do, effectively, is to reduce

damages which can be recovered by a person who does

not come from Queensland. That is all it can do

because, as for a Queenslander it, in a sense, goes

around in a circle and just brings you back to

Queensland law.

As to other people, if you come from a State

where damages would be higher, you will still only

get damages according to Queensland law, not

because of the operation of section 20, but because

your damages come under Queensland law, applying

Stevens v Head. But, if you happen to come from

another State, and a State where damages would have

been lower, then, for you, damages will be held

down if section 20 is valid. So, that is why, in

our respectful submission, it is, first of all, not

a choice of law provision, it is a cap, and that

is, secondly, why we submit, the only effective

thing it can do - - -

DAWSON J: But you achieve the same object, could you, by

making it a choice of law provision?

MR DOYLE: Well, you would not achieve quite the same

object, Your Honour, because then what you would do

is you would enable a person who comes from what I

call "a higher damages State" to recover the higher
damages. Now, I do not pretend to understand the

policy behind section 20 but one perhaps surmises

that for some reason it was not desirable to do

that, at least in the mind of the legislator. But,

if you made it a choice of law provision it would

then operate differently in that respect.

So, it is, in that sense, a peculiar provision

and, in our submission, can only disadvantage a

non-Queenslander who comes from what I call "a

lower damages State".

Your Honours, going then to the question of the validity of these two provisions, in our

Goryl(4) 32 12/10/93

respectful submission the issue is whether some

basis exists for treating either section as

operating in an area in which section 117 does not

reach. In our respectful submission, it would seem

pointless to attempt an exhaustive statement of the limits to section 117, in particular because common

sense and the American experience suggests it would

be very much a case by case approach.

We submit that the basis issue here is the question of what limits to section 117 are

necessarily implicit in the structure or framework

of the Federation and, in approaching the limits of

section 117, we submit that is the primary focus;

that although the purpose of the section is

relevant - that is 117 - and provides considerable
guidance, it is necessary to be cautious in relying
on the purpose of the section in this area because

the purpose tends to be rather more open textured,

and in our respectful submission, in the end, the

essential process is one of what arises as a matter

of necessary implication.

Could I just say, in that context,

Your Honours, that, in our respectful submission,

the Commonwealth submission goes too far in the

sense of being too generous to the States -

Your Honours will see it in due course - but rather

similar to the American approach, it allows the

court to identify what is a legitimate State

objective, and if the law is proportionate to that,

then to uphold it. In our respectful submission

that is to move into what, we would submit, is the

relatively dangerous area of starting to work by

notions of purpose, rather than by what is

necessarily implicit in the constitutional

structure.

Your Honours, the Court in Street canvassed

the various possible limits to section 117 and we,

with respect, would generally adopt them and

without, in any sense, contradicting what I said in

attempting an encyclopaedic survey, could I

endeavour to put them under four heads as a

preliminary then to relating the particular

sections here to those four heads.

As we understood it, Your Honours, in Street,

first of all the Court identified two aspects of

the limit to section 117 which could be said to

arise from the constitutional structure. First of

all, the structure of the Federation itself, what

it requires in the notion of separate States and

distinct governmental units, and the most obvious

example of that was laws providing for separate

electoral systems.

Goryl(4) 33 12/10/93

The second limit to section 117, arising from

the Constitution, in our submission, is under this

head, that the powers and responsibilities of the

States are primarily linked to an area of

territory, although not exclusively so, and the
correlative is, they are primarily not responsible
for things outside their territory, and again, that
implication from the Constitution indicates an area

of limits to section 117.

Then, in our respectful submission, there are

two aspects of what one might call the process of

government which are relevant, and they give rise,

first of all, to this third area of limit to
section 117. But in the nature of things some
rights or powers or obligations will have either a

natural or an inevitable link to an aspect

involving residents in a State. The link may

require demonstration and justification, but in the
nature of things, sometimes the subject-matter of

the law will have a natural or inevitable link to

residents and that will again indicate an area of
limit to section 117.

And then the fourth area which we draw from what the court said in Street is that some

subject-matters may be exclusively the concern of

the legislating State and its people, such that either the law or some executive act can fix on

residence as a criterion or, to put it differently,

can fix on membership of the State community as a

valid criterion. We do however submit that in that

fourth area particular care is required so that the

notion of exclusive concern does not become, as it

were, a basis for an almost subjective judgment and

again become a substitute for the words of

section 117. But, in our respectful submission,

one can, understanding our Constitution and what is

implicit in it, identify that as another area where

potentially limits to section 117 will emerge.

DAWSON J:  Can you give an example of the fourth category?

MR DOYLE: Well, in our respectful submission, section 16 is

itself an example - I am jumping ahead, but to just

make the example good. In our submission,

section 16 can be viewed as the conferral of a

benefit on a Queensland resident, who is injured in

an accident involving a Queensland vehicle, it

happened out of the State and so not being in the

State is not something where one would say, "Well,

prima facie for a start, Queensland law should be

treating everyone equally" and the benefit is

conferred on the Queenslander, without imposing any

burden on a non-Queenslander and without depriving

any non-Queenslander of any right which that

non-Queenslander would otherwise have. And so when

Goryl(4) 34 12/10/93

you look at all the factors together, in our

respectful submission, it is quite arguable that

one can say, "Well this is a matter of exclusive

concern to the Queenslanders", but we do recognize

readily that this is an area where one has to be

careful and not drift into really saying, "Well,

why should we fuss about it", because section 117

is quite strict in its terms and, in our

submission, one has to be particularly cautious in

this area, but nevertheless, that is the head under

which we would put section 16.

Could I perhaps add that, in our submission,

those four categories which we have put would seem

to embrace what all of Your Honours said in Street,

except Your Honour Justice Gaudron who, of course,

took a different approach based more closely on the

notion of what is discrimination. However, our

category four would seem to come closest to what

Your Honour said. I should add, Your Honours, that

in our respectful submission, and it is pertinent

to this case, it is not appropriate to rely on what

I might call a source of funds argument. In our

respectful submission, it is not appropriate in the

context of section 117 to say, "It is our money",

that is, our State's money or the money of the

people of our State, "therefore we can be

selective". In our respectful submission, the

problem with that is, in a sense it proves too much

because, as Mr Bennett illustrated, if that were

true, you could be selective in making available
the services of police, fire brigades and hospitals

and to avoid that, in our respectful submission, be

driven then, perhaps down the American path, of

distinguishing between certain rights which were

fundamental rights of Statehood and certain rights

which were not, so that in the "our money" area you :ould start to differentiate between headings where

the fact that it was our money was relevant and the

fact that it was not relevant.

In our respectful submission, it is safer to

confine oneself to the exclusive concern notion and the source of the money may, on occasions, indicate that the matter is a matter of exclusive concern,

but in our submission, that is really what you are

looking for, the notion of exclusive concern, and

the mere fact that you can identify the source of the money with a particular State is of itself of

no particular significance.

I think Your Honours are probably all well familiar with the American approach, but could I

just give a reference for convenience to Tribe's

book on constitutional law at page 539 - it is on

our list of authorities, and I do not propose to

read from it - where the text and the footnotes

Goryl(4) 35 12/10/93

indicate the difficulties the Americans have got

into in this area. So that, for instance, free

education is something where you can be selective

as between your residents and others, medical

treatment it seems, is not, and in our respectful

submission, that highlights the problems which

arise when one goes down this track focusing on the

source of the money.

McHUGH J: What about a scholarship to study overseas

confined to Queensland residents?

MR DOYLE:  Your Honour, in our submission, that probably

would be valid but, again, a lot might turn upon

the precise terms. Could I give a slightly

different example to illustrate my point and also

the notion of exclusive concern. Assume that the

South Australian Government provided by law that

any parent with a child attending a fee-paying

school could claim a rebate of $100 per annum.	In
our respectful submission, section 117 would

require that rebate to be made available regardless of the residence of the parent as long as the child

was attending a school in South Australia. But let

us assume that the next provision in this Act

provided that, in the case of South Australian
parents, the rebate could be claimed even if the

child was attending a fee-paying school interstate.

In our respectful submission, what that is throwing

up is that you can legitimately say, "Well, while

within South Australia when we talk of rebates in
respect of fee paying education, equality is

required". If you want to reach to events outside

your State, you can now say, "Well, it is

exclusively our concern if we want to confer this

extra benefit, having in respect of our area of

responsibility, that is within our State, treated

everyone equally, now we want to confer this extra

benefit, and as to that, we will confine it to our
people." So, in each case, the money is coming

from the same source but, in our submission - there

way in which one can say it is very much a matter	is an element of intuition in it - but one sees the
for the South Australian Government if it wants to confer that extra benefit.

So, provided there were no, as it were, hidden

extras in Your Honour's example, that meant that it

could in fact work in respect of events within the

State in a discriminatory fashion, in our respectful submission, it would be valid. Not

because it was Queensland money but because one
could legitimately say that was a matter
exclusively concerned to Queenslanders.

On that broad approach, when one comes to the sections in question, in our submission, first of

Goryl(4) 36 12/10/93

all as to sections 16 and 20, one could not say

that either of them fell in what I have called

category one. That is, what the structure our

Federation requires in terms of separate States and

distinct governmental units.

Could I then deal separately for the next two

or three points with section 16? In our

submission, it does not seem to fall in

category two, that is, the powers and

responsibilities of the States being linked to an

area of territory because, ex hypothesi, it is dealing with something outside the area of the

territory. Nor, in our submission, if you describe

the relevant matter fairly broadly, as we do in

paragraph 17 of our outline, would one say that is

exclusively a matter of Queensland concern, moving

to heading 4, that is, compensating persons injured

outside Queensland by vehicles insured in

Queensland.

In paragraph 18 we identify the matter in

somewhat narrower and more precise terms and, in

our respectful submission, identified that way, it

may be seen as a matter of exclusive concern to

Queensland and the community of Queensland, namely, it is compensation under Queensland law.

For Queensland residents who are injured outside

Queensland by a Queensland vehicle, they are to be
compensated as if the events happened in

Queensland, and this is done without imposing any

burden on a person other than a person who is

either an insurer of vehicles in Queensland, or who

seeks to insure a vehicle in Queensland.

Obviously, as Mr Bennett pointed out, the insurer

may also carry on business in other States and,
likewise, the person who seeks to insure the

vehicle in Queensland may be a resident of another

state. But, by and large, one can see this is very

much a matter of extra benefits and closely tied

into Queensland links.

So, in our respectful submission, in this case

one could say that, as described in paragraph 18 of our outline, the matter is one of exclusive concern to Queenslanders, or Queensland, and therefore not

offensive to section 117. I gave Your Honours the
example of school fees as another way of

illustrating the same point.

One other example I might give which, in our

respectful submission, tends to illustrate this

notion of exclusive concern is, if one assumed a
nationwide transport strike affecting, let us say,

air flights, railways and interstate buses, but

assume the South Australian Government got some

State transport vehicles an~ despatched fleets of

Goryl(4) 37 12/10/93

them to various capital cities, and offered to

South Australian residents only free passage back to South Australia and excluded even people from

other States who could say, "Look, I am not asking

the bus to divert one inch, I merely want to get

off along the way back to South Australia", again,

in our respectful submission, surely one would

think that could be done, as an executive act,
without offending section 117, and surely the
answer is, again, that in this respect it is a
matter of purely South Australian concern, that is,

to get the South Australian people back home, and

it is something in respect of which the State would

not be acting contrary to section 117.

DEANE J: But is not conferring additional private rights on

a citizen of Queensland in Queensland courts always

a matter of exclusive concern to Queensland? I

mean, say Mr Bennett's client had her twin sister

travelling with her on the bus and they both sued

in the Supreme Court of Queensland, you can

obviously say, "Well, it is of exclusive concern to

Queensland that Mr Bennett's client gets all her

damages and the twin sister, being from

New South Wales, only gets half her damages", but

it is a rather strange way of looking at it, is it

not?

MR DOYLE:	To say it is matter of exclusive concern?
DEANE J:	To Queensland, unless your exclusive concern

effectively negates section 117 of the

Constitution?

MR DOYLE:  No, Your Honour, and as Your Honour knows I said

at the outset, except in this area, one has to be

particularly careful.

DEANE J: Well, I am just directing to this very case, and

add Mr Bennett's twin sister. The Queensland court

will say, "Yes, Mr Bennett's client gets a full

verdict but, sorry, the insurer is a New South

Wales company, you are from New South Wales, it is

of exclusive concern to Queensland because you are

suing in a Queensland court, therefore you will

only get half".

MR DOYLE:  Well, Your Honour, I do not seek to justify this

provision on quite the narrow basis Your Honour

does saying merely, this is a Queensland court, we

are looking at a Queenslander. I look at all - - -

DEANE J: Well, you are seeking to justify the distinction

though, or the discrimination?

MR DOYLE:  Yes, I accept that, Your Honour. Well, in our submission, the significant-·things are that it is

Goryl(4) 38 12/10/93

an added benefit - could I perhaps come at it

slightly differently? In terms of the accident in

New South Wales, and looking at our federal

structure, what complaint in a federal structure

does a New South Wales resident have, who has all

her ordinary common law rights, no burden is

imposed on her, she is not prevented from

exercising her common law rights in New South Wales

or Queensland, but the Queensland person sitting
alongside her can go back only to that person's

State, Queensland, and ask to be treated as if the event had happened there, and the burden of that is shouldered only by a defendant, an insurer, who

carries on business in Queensland. In our submission, I accept there is an

element of intuition at times in these situations

and that that can be dangerous, but that does seem

to be purely a Queensland concern. It takes

nothing away from anyone, nor is it in respect of

an event in Queensland where one would expect

Queensland law to treat everyone equally. It is

not dealing with an event in Queensland, except in

so far as the proceedings are brought there, and it

is - - -

DEANE J: What you say is right in one sense if you look at

Constitution,
the State solely from the view of the sisters, they have both been in Queensland, they
solely from the view of the legislative of the

have both bought their tickets in Queensland, they

both got on the bus in Queensland. The bus, say,

crashed at Tweed Heads, and they are both taken

back to the Brisbane General Hospital in the same

ambulance, and add to it that the insurer is a New

South Wales insurer - - -

MR DOYLE:	Yes.
DEANE J:	From the point of view of the Queensland sister,

it is going to be a little bit hollow to say,"Even

though your circumstances are, for practical

purposes, identical and the State of Queensland is

not contributing a penny to the compensation, the

fact that you come from New South Wales is a

disqualification which prevents you getting the

damages your twin sister is getting."

MR DOYLE:  Yes. Well, in my respectful submission, what

Your Honour in that example is tending to overlook

is that implicit in our federal structure is a

genuine notion of communities, and the notion of

community is based on the concept of residence.

What section 117 tells us is that, prima facie, we

must all be treated equally throughout the country

regardless of residence but,· nevertheless, in our

Goryl(4) 39 12/10/93

constitutional structure implicit is that notion of

communities, and it emerges in the exception, which

I think all Your Honours acknowledge must be made

for electoral laws, although much more obviously

but, in my submission, that notion of community
does also indicate that fourth area, namely, if you
can legitimately describe a matter as exclusively
the concern of a particular community because the
notion of community is really based on residence,

then you can say, "Well, in that situation,

residence will be a valid criterion,

notwithstanding section 117."

DEANE J: Well, if you can find liability to Queensland

residents, I can see you would have something to

talk about but when, as here, you do not confine

the liability to Queensland residents, I must

confess I just cannot go anywhere with it.

MR DOYLE:  Yes, well I understand Your Honour's point, and

obviously, the more one confines the relevant

elements to purely Queensland elements, the better

my argument gets, and the less, the weaker it gets.

I suppose it is a question of whether Your Honour

acknowledges there is anything in the argument at

all, in which event the real issue is the strength

of the link to Queensland, or whether Your Honour

is really saying that there is nothing in it, and

so you can make the links as strong as you like,

and you will not get off the ground.

But, in my respectful submission, if

Your Honour goes that far, then Your Honour really

is denying one of the things that is implicit in

our federal structure, the notion of distinct
communities with section 117 playing a vital role

but not in any sense denying the existence of those

distinct communities and, in our respectful

submission, one cannot go so far as to say the

notion of exclusive concern cannot be acknowledge

at all, and if one cannot, then it is a matter of

deciding on the particular facts of the case

whether it can be found or not.

In that respect, in my submission, the

American cases provide some guidance because while, of course, the provisions are different, in the end they serve a similar purpose, and it is, surely, of some significance that the American case law seems

to work towards much the same conclusion, that

there are some matters where one can say, having
regard to the subject-matter, well that is

exclusively a concern to the citizens of a

particular State, and so while equal protection

scrutiny will arise and due process, the immunities

and privileges scrutiny does not apply, and so, in

my submission, the Arnerican··experience is

Goryl(4) 40 12/10/93

instructive to that extent, that they appear to

have worked in a case law approach to a category

rather similar to what I have put as matters of

exclusive interest.

The other point I would make to Your Honour is

that if there is nothing at all in this fourth

category, then it would seem that presumably my example about rebates in respect of school fees could not stand for South Australian parents who

are sending their children to a school interstate.

And again, intuition is dangerous but, in my

respectful submission, common sense just suggests

that if a government want to do that they can do

it.

Now, Your Honour could say in that situation

we do not have, as it were, the twin sister to set

alongside the example to highlight the selective

workings of it.

DEANE J: Well, in that situation you have communal funds.

You have State funds being applied which of its
very nature - it is the nature of the right to

receive them that immediately becomes relevant.

MR DOYLE:  Yes. Although, Your Honour, without wanting to

be difficult, if we get down to it, where to State

funds come from? Largely from the residents but,

to some degree, from the Commonwealth and therefore

collected Australia-wide, and under our system of

Commonwealth grants, the smaller States get more

per capita than the larger States, and so one could
say, as we tend to say, "What really is there in

this point about the source of the money?",

because, if you really get down to it you tend to

get a different answer State by State about funds,

unless you confine your attention to the particular

State pocket from which the money came, as it were,

post-budget, where you can at least say, "Well it

is money allocated to education and now we can call

it State education money".

So, of course, Your Honours, it is a difficult

area but, in our submission, one can, in this

particular case, treat section 16 as a matter of exclusive concern. Could I say one other thing,

Your Honours, about that notion of communities and
residents? The court has accepted that States can

legislation extraterritorially and one of the most

common accepted nexi - if that is the right word -

is residents, and it is odd in a way if a State can validly legislate in respect of out-of-state events to impose burdens by reference to residents but, if

one were to say but it could never validly impose

benefits in respect of out of State events.

Goryl(4) 41 12/10/93

Again, it is only an analogy but it would seem

odd that "residence" is burdens, but gets you

nowhere in the face of section 117. Of course,

Your Honour Justice Deane may say, "Well you have

already indicated the answer, that section 117 is

there". And yet, in theory, section 117 could also

work on burdens, because if South Australia enacted

a law saying, "No South Australian shall gamble

anywhere in Australia", one could literally say,

"By south Australian law, that Australian is being

treated in New South Wales in a manner in which he

would not be treated were he a resident of New

South Wales", and yet it has never occurred to

anyone to say that section 117 has that sort of

operation to eliminate the burden, and we would, as

it were, ask rhetorically, "Why cannot, therefore,

residents, in particular in respect of out-of-State

events, sometimes be a valid criterion or basis,

notwithstanding section 117?"

So, in our submission, section 16 can be

justified on that basis. If, contrary to that, it

is found that section 16(b) is offensive to

section 117, then, in our respectful submission,

the better approach would be, as Your Honour

Justice Gaudron foreshadowed, to treat the whole section as inoperative or invalid rather than to

open up the benefit to all comers.

They are our submissions as to section 16. As to section 20, Your Honours, we submit that it does

not fall within heading 1, as I have already

indicated, "The structure of Federation"; it does

not seem to have anything to do with the

territorial notion of powers and responsibilities,

so it does not fall under heading 2. We submit it

does not fall under heading 3, that is that the

right or power or obligation has a natural or

inevitable link to residents.

law rule, then it would fall under heading 3, Oddly enough, if it worked as a true choice of

because the choice of law rule would be phrased in

terms of residents; it would work equally for every

one and would fall under heading 3, but it is a cap

not a choice of law rule. And, finally, as to

section 20, in our respectful submission, it does

not seem in any sense to be a matter of exclusive

concern of Queensland to limit damages recoverable

in Queensland, regardless of where the accident

happened and regardless of the residence of the

defendant. So, in our respectful submission, for
those reasons, section 20 cannot be justified.

They are our submissions, if the Court pleases.

MASON CJ: Thank you, Mr Solicitor. Mr Solicitor for New

South Wales, do you wish to· ·go next?

Goryl(4) 42 12/10/93

MR MASON:  I am basically in the same position as Mr Doyle.

MASON CJ: Yes, but I think you ought to go before

Mr Sofronoff. I was only concerned really to

ascertain whether the Solicitor for the

Commonwealth might seek to address the Court at

this stage, but I gather not. He seems quiescent.

MR MASON:  He is happy to come after the States for a

change.	May I hand up an outline of our
submissions.	May I say he is happy to have

manoeuvred himself into a position to come after

the States for a change.

As Your Honours will see, there is nothing we

can usefully add on the question of section 20.	In
relation to section 16 - perhaps I will step back
one point.	The question arose whether section 16

could be struck down entirely, or whether

section 117 of the Constitution, if applicable,

could only apply to strike out paragraph (b). In

our submission, section 117 only allows the second

result, and that is what the Court, in effect, said

in its analysis in Street's case.

Section 117 provides, in effect, a key, a

passport, a personal immunity, to a class of

protected persons, to use I think the language of

Your Honour Justice Brennan, being those who are

subjects of the Queen and who are resident in a

State other than the enacting State. Except in the

perhaps impossible hypothetical situation where an

interstate law was so framed that it was confined

in its operation to the very subject-matter and

person who would qualify for the 117 immunity, the

result can never be that the legislation is struck

down entirely.

One can perhaps test it inter alia by looking

at section 16 and say, "Well, section 16, no matter

how broad the adverse impact of section 117 is

concerned, section 16 would still be valid with

respect to someone who is not a subject of the

Queen or with respect to someone who was not a

resident of a State."

Your Honours, my learned friend the

Solicitor-General from South Australia, posited
various categories of exception or qualification of

a literal interpretation of section 117 and his

broadest category of conceded exception, I think

with the exception of Justice Gaudron, was one that

focused on this notion of exclusive concern and it

was in that context that he said, "If that test is

kept, one can avoid questions about sources of

funds and one is not drawn into some of the

Goryl(4) 43 12/10/93

distinctions that the American case law has had to

cope with".

As we would read Street's case, the test of exclusive concern is enunciated by Your Honour

the Chief Justice at page 492 and Your Honour

Justice McHugh at pages 583 and 584, but not in

those terms by other of the judgments. We have
collected, I think, all of the pages where there is
discussion about what I will loosely call the
exceptions, in paragraph 4 of the outline; if one

could perhaps add page 546 as an additional

reference. But if one looks at the very example

that Your Honour the Chief Justice gave at page 492

in Street's case, 168 CLR, having stated a

reference to rights that are naturally and

exclusively associated with residence in a State,

Your Honour gave an example of:

the exclusion of out-of-State residents from the right to enjoy welfare benefits provided

by a State under a scheme to assist the

indigent, the aged or the ill.

The example given, we would respectfully suggest, shows how much judgment is ultimately involved in

this notion of exclusive concern. One is

ultimately driven to some decision as to what are

the appropriate matters for legislative concern for

State Parliaments before one can give effect to what must be a right of State Parliaments to draw some discrimination that is based in part upon

residence.

Certainly, if one looks at the American case

law, certain types of welfare benefits are said not

to be the exclusive concern of States because an

indigent person should not be deprived of the right

to travel from one State to another by a scheme

that says that he or she cannot qualify for

indigent relief until they have resided in that
other State for, say, 12 months.	As to, what are

referred to as the basic services, which would

include police, the example given by my friend,

Mr Bennett, and hospitals, which is the example

discussed in the Memorial Hospital case we cite in

paragraph 1, but not higher school education and

not university education, as to certain rights

which are discussed as basic necessities of life.

They, almost by their nature, are not capable of

being treated as the exclusive concern of a State.

A State, like a country, has a responsibility to

all within its bounds who have a certain class of

minimal or basic needs. The responsibility to

provide a justice system is a pre-eminent example.

Goryl(4) 44 12/10/93

The other Justices in Street's case did not

appear to state such a test or gave examples which,

if placed against such a test, show that there are

necessarily elements of judgment involved.

Your Honour Justice Deane at page 528 gave an

example at the bottom of the page of a:

(rental subsidy to disadvantaged tenants)

could place an ineligible visitor who was

resident (and a tenant) in another State at a

comparable disadvantage if that other State

provided no such subsidy.

But Your Honour contemplated that that would or

could be a valid discrimination. The notion of

rental subsidy and the reference to State financial

assistance shows that one cannot get away from the

idea of the funding, the "who pays?" idea in

informing some judgment as to what is either a

proportionate or relevant or reasonable State

concern, even one which has a very broad-based

notion of exclusivity.

DEANE J: But, is that not one of your problems here in

terms of your argument? I mean, take my example of

the twin sisters. It is an obvious fact that the

relevant insurance burden will be borne equally by

each in terms of the carrier's insurer is passed on

to the customers as a component of the ticket.

MR MASON:  The difference between the two was the residence of the sisters?

DEANE J: Yes, both buying their ticket in Brisbane, both in

the same bus, injured in Tweed Heads, taken back to

the Brisbane. The insurer, a New South Wales

insurer who, of course, who has charged the bus

proprietor, who has passed on the insurance cost

into the cost of the ticket. What relevant

distinction is there?

MR MASON: Well, the distinction may be that the Queensland

defendant, the Queensland insurer, would have paid

a higher premium.

DEANE J: It is a New South Wales insurer.

MR MASON:  I was looking at it in the context of section 16.

DEANE J: Yes, but in the example I gave, the bus is insured

by a New South Wales insurer carrying on business

in Queensland.

MR MASON:  Yes, well the example Your Honour gave, unless I

have misunderstood it, may have relevance to some

argument under section 20, but in the context of

section 16 the distinction,· ·or the applicable

Goryl(4) 12/10/93

distinction, would be a Queensland bus company and

a New south Wales bus company injuring these twin

sisters. The submission would be that the

Queensland bus company will have paid a higher

premium because it has taken out a policy that has

this added benefit, namely, the statutory benefit

under section 16 in favour of the Queensland

sister.

DEANE J:  And it has passed it on to its customers, which

means both ladies in buying their ticket at the

same price, have paid an equal contribution.

MR MASON:  That just happens to possibly be the case because

one is dealing with a bus ticket, but section 16

deals with a category of voluntary passengers.

DEANE J:  One just disregards the commercial element and

those who pay to ride in public transport?

MR MASON:  No, one does not do that, but when one is looking

at what I will loosely call the exceptions to

Street's case, one is looking at whether the State

legislation concerned which, on its face creates an

apparently invidious distinction, can nevertheless
find some proper relevant justification. And in
asking that question, one is driven back to look at

the general application and purpose of that State

legislation, and where the State legislation, as in

this case, in effect, imposes a compulsory levy

upon owners of vehicles in Queensland who are

residents in the large main - whether or not one

receives the affidavit one could accept, in my

submission, that fact - and creates a special

statutory right in favour of a Queensland resident

alone, then it is appropriate to look at the

mainstream situation to see whether the statutory

scheme of section 16 can find its justification

despite its facial discrimination. The mainstream

situation, in my submission, is not the bus with

the possible passing on of the added premium, but

the situation where residents generally of

Queensland are taxed.

McHUGH J: But does that not overlook the fact that

section 117 requires you to look at the

circumstances of each individual person affected?

MR MASON: Section 117 certainly does that, but - - -

McHUGH J: So, you may get a different result applying

section 16 to a commercial passenger than you can

to the person who was knocked over by a car?

MR MASON: Well, I certainly would have to concede that as a

theoretical situation, but that distinction between

the bus passenger and the car passenger would not

Goryl(4) 46 12/10/93

have any difference upon the premium that owners of

vehicles would pay in Queensland. They would all,

presumably, pay the same premium, which would be

higher than the New South Wales premium because of
the additional right conferred by section 16 and,
whilst it is true that the person who pays the
premium is the owner of the vehicle in Queensland
who, in the main, are residents, and the person who
gets the benefit of the section 16 right are
injured occupants, whether they be paying or

voluntary occupants, provided they are residents

and there is, to that extent, not a complete match.

What they have in common is this residence and

they are the obligees and beneficiaries of a State-

run compulsory scheme that provides a benefit - and

whether one calls it welfare benefit or not perhaps

does not matter - but a benefit which not only acts

in aid of the injured person but also acts to

relieve the Queensland community of the cost of

looking after that person when injured, and there

is that community interest, as it were, as well

that can be said to be a justification.

In my submission, one is entitled when one is

looking at whether this extracted premium is

capable of being seen as part of a State-run

welfare scheme to look at the main situation rather

than the particular category of the insured who

happens to cause the injury.

Justice Dawson, at page 546, gave some

examples of welfare schemes, or a reference to the welfare scheme, about 10 lines up from the bottom:

Another example is the right to participate in

a State welfare scheme, particular one

financed by State taxes, where a residential

qualification is reasonable and its imposition

does nothing to impede the essential purpose

of the section.

So Your Honour certainly saw relevance in the, as	it were, money flow. Justice Toohey, at 560, did
not, I think, give any example, but near the top of
the page, where Your Honour spoke, about six lines
down of:

It does not follow that there is a disability

or discrimination withins. 117, particularly if the difference is a natural consequence of the legislation aimed at protecting the

legitimate interests of the "State community".

The concept of legitimate interests necessarily

involves an element of judgment that goes -

Goryl(4) 47 12/10/93

certainly arguably, in my submission correctly -

beyond any narrow notion of exclusive concern.

Your Honours, in Street's case different

views were expressed by Your Honours about the

relevance of the American analogies. Perhaps I

could just give Your Honours the page references

where there is discussion:  Your Honour the Chief

Justice at 491 and 2, who saw some assistance in

the American cases; Justice Brennan at 514, who did

not; Justice Dawson at 541 and 546 to 8, who

appeared to see some relevance in them;

Justice Toohey at 560, contra; Justice Gaudron at

572 and 3, who applied the American cases, or drew

support form them; Justice McHugh at 584 to 6, who

did not see any assistance in the American cases.

With that qualification, may I nevertheless

refer you to the Memorial Hospital v Maricopa

County case, which is cited in paragraph 1 and I

have a copy of it.

MR BRENNAN:  Mr Solicitor, is there any part of a

constitutional text or any implication based on

constitutional text which admits this exception for

which you would contend?

MR MASON:  Yes - if I can answer partly by Your Honour's

analysis - Your Honour saw in the very nature of

concept of discrimination a capacity to draw

relevant distinctions and whilst Your Honour, at

the conclusion of your judgment, spoke about

throwing open the doors of universities and

hospitals, et cetera, and Your Honour spoke in

terms of a very narrow test of constitutional

necessity, at pages 510 and 511, in the context of

analysing the notion of discrimination and

discussing the Sikh turban cases, Your Honour would

appear to have seen within the concept of

discrimination, a capacity to draw appropriate

distinctions.

BRENNAN J: Where the basis of the discrimination has some

relevance, other than residence in different

States.

MR MASON:  Well that is so, and in the present case I would

say there is more than mere relevance in
section 16, because there is the funding and the

separate distinct right that is created, whereas,

section 20 does nothing more than take away an

existing legal right from those who happen to be

out of State residents, the matter of where the

locus of the accident is.

BRENNAN J: But the first part of my judgment to which you

have referred is there for the purpose of defining

Goryl(4) 48 12/10/93

what is meant by discrimination. I mean, your

argument has to be, if you wish to rely on that

part, that section 16 does not create any

discrimination.

MR MASON: Within the meaning of 117, yes.

BRENNAN J: Yes, and it does not create it because the

funding of the right thereby provided has its

source in Queensland funds in some way.

MR MASON:	And because one is dealing with an additional right that is not, what I will call, part of the
basic rights of any person resident in Queensland.
To pick up an American concept, just by analogy,
the idea of a basic necessity of life.
BRENNAN J:	You would say the same about a workers compensation entitlement, would you?
MR MASON:	It might be difficult in a modern context

to -

BRENNAN J: It would be very difficult.

MR MASON:  A workers compensation would be very close to a

general health care blanket that is part of modern,

civilized living, as it were. I would have

difficulty in putting it into that situation. But,

again, one cannot, in my submission, by the use of

words or any test, avoid drawing some of these hard

distinctions between what are appropriate points of

discrimination unless we are to become an entirely

unitary polity in Australia.

BRENNAN J: Can I will rephrase my question: assuming,

contrary to your submission, that section 16 does

answer the test of discrimination - that perhaps is

117 - is there any exception to the operation of

section 117 for which you would contend, based upon

a constitutional test?

MR MASON:	I think I have to say not from Your Honour's approach in Street's case and not, as I read it,
from Justice McHugh's approach in Street's case,
but I would submit nevertheless yes, and the - as
it were the constitutional peg upon which it flows
is that section 117 is but one section in a federal
constitutional document which establishes what my
learned friend, Mr Doyle, said were communities with obligations and responsibilities and powers
which, by their very nature in some cases, have to
be framed to have regard to those who are under the
proper protection of the State.  As to some
categories of welfare, everybody has to be
protected and legal services, police, et cetera,
Goryl(4)	12/10/93

would be within those. As to others, States should

be free to experiment to provide different

benefits, to raise the funding of them and to

confine the beneficiaries of those benefits to
those who are members of that community without

infringing the underlying purpose of section 117

which is to allow within certain limits a single

community, to allow freedom of entry, freedom of

access, absence of any discrimination properly

understood against interstate persons.

BRENNAN J:  I understand what is said, and I will just make

this observation in case you wish to respond to it

in any way, but I do not understand how, by

whatever words that proposition is dressed up, it

means anything else except that section 117 does

not apply if the Court does not want it to.

MR MASON:  The nature of all judicial decision making is an

exercise, ultimately, of choice based upon the

wording and the proper implications to be drawn

from the Constitution. In my submission, members of the Court should not feel concerned if they do

want to in an appropriate case, because the federal

nature of the Constitution permits it, indeed,

requires it, in my submission.

In the Maricopa County case, there is just a

couple of references to this American law. At 253

and 254, there is a discussion of the Shapiro case

which was a pure welfare case. The Maricopa County

case involved the invalidity of a statute from

Arizona which required a year's residence in a county as a condition to an indigent's receiving non-emergency hospitalization or medical care at the county's expense. That was struck down under the equal protection clause. At pages 258 and 259 there is a reference to some of the earlier cases

and the distinction that is drawn, see the top of

page 259, based upon basic necessities of life.

Footnote 12 cites a case dealing with higher

education which was not a basic necessity of life,

but in the Maricopa County case, the medical care

was held to be such, and therefore one could not

lose one's right to that by moving to another State

and being met by a residence requirement.

The particular application of those principles to funding schemes where special statutory rights

are given to residents and the costs are borne by

residents under some sort of statutory scheme is

noted in the two cases that are cited in paragraph

2, Holly v Maryland Automobile Insurance Fund and

Law v Maercklein, and I believe the Court has those

cases, they having been cited by other parties.

Gopryl(4) 50 12/10/93

In Holly's case, 349 A 2nd 670 - the outline

of submissions is incorrect it is 670, not 70 -

what was at issue was a right to recover against a

particular fund where there was an uninsured

motorist that caused injury where judgment was

obtained, at the top of page 672 in the judgment

one sees that the plaintiff got judgments, and then

petitioned for satisfaction thereof against the

unsatisfied claim and judgment fund law, and the

plaintiff's access to that fund was denied on the

basis that the plaintiff was not a resident of the

State of Maryland on the date of the accident, and the constitutionality of that Maryland statute was challenged and was ruled upon in the passage at 673

and 674. Reference is made to the Shapiro decision

and the Memorial Hospital v Maricopa decision and

the appropriateness of the governmental interest

which justified the confining of that benefit in

that situation.

To similar effect, and I will not take the

Court to it, is Law v Maercklein, the other case

that we have cited there in paragraph 2. It was a

different form of motor insurance scheme but,

again, the same analysis was applied. We would

submit that when one looks at the scheme of the

Motor Vehicles Insurance Act one way of properly

looking at it is a compulsory levy or tax upon

residents in Queensland who own motor vehicles, and

to the extent that that is used to provide the

additional benefits under section 16, then one can

say it is equivalent to a State funded benefit and

a compulosily levied benefit.

In paragraph 3 we refer - and I will not take the Court to it - to an American case which

suggests another way of looking at the, as it were,

the State interest in the matter, namely, a

relieving of the burden of the State to the extent

that section 16 passes that burden on to the owners

of vehicles and thereby relieves the State of the

burden of looking after Queensland residents who

are injured in the circumstances so as to attract a

claim under section 16.

The only other thing I would add is in relation to section 118. We would submit that the

whole Court should follow the majority judgment in

Stevens v Head and, whilst respectfully

acknowledging the force of the statements by

Your Honours Justices Deane and Gaudron as to the

constitutional imperative that you see in

section 118, in a situation where the very scheme

that has been involved is at issue, not to follow

stare decisis in this situation would put the

Queensland trial courts at an invidious and

difficult situation, and the matter should be free

Goryl(4) 51 12/10/93

to go back to trial on the basis that the

constitutional, as it were, inapplicability of the

New South Wales statute, via section 118, cannot be

made an issue either now or at a later stage should

this case, as it were, come back.

MASON CJ:  Thank you, Mr Solicitor. The Court will now

adjourn and resume at 2.15 pm

AT 12.49 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.17 PM:

MASON CJ:	Mr Solicitor for the Commonwealth.
MR GRIFFITH:	Your Honours, I might have given a false

impression this morning that I was manoeuvering on

behalf of myself; I had intended to manoeuvre on

behalf of all interveners, but if I could now

manoeuvre back again to resume order, if that is

the Court's convenience and the other parties are

content.

MASON CJ: Yes.

MR GRIFFITH:  May I hand the Court our submissions.

MASON CJ: Thank you.

MR GRIFFITH: While Your Honours are reading those, may I

also hand a copy of the second reading speech,

which may be of some assistance to the Court.

MASON CJ: Thank you. Yes.
MR GRIFFITH:	Your Honours, as to the second reading speech,

it would seem succinctly stated on the second page

of the speech by the minister that there were two

purposes for this Act: firstly to ensure that

there was an entitlement to damages in Queensland

as injured in motor vehicle accidents in

New South Wales where there would not be Transcover cover; and secondly, one can see that there was an

opportunity to ensure that there was, in effect, a

top up in respect of Queenslanders injured outside of New South Wales. The reason for that of course

has now been somewhat overhauled after Stevens v

Head and the repeal of the Transcover legislation,

but that perhaps gives some assistance to the Court

in putting the amendments in context.

Goryl(4) 52 12/10/93

Your Honours, the difficulties for the

Attorney-General intervening is to draw together
the perceived differences that may be recognised in
respect of treatment of out of State residents as

compatible with section 117, having regard to the

different mechanisms and expressions adopted by

members of this Court in Street, with respect to

the operation of section 117, and in paragraph 1 of

our outline we attempt to set out a two-stage

analysis which we would somewhat diffidently

suggest is consistent as we read it with the
reasoning of all the members of the Court, with the
possible exception of Your Honour Justice McHugh.

I do not think it is really worthwhile to enlarge on that submission because it is always

rather uncomfortable to make submissions to

Your Honours as to what each of Your Honours meant

in your judgments, but there is some recognition of

the expressions used by Your Justice Brennan, at

page 511, in the formulation of the second stage of

our analysis.

Your Honour Justice Gaudron, of course,

suggested - and we would agree with that suggestion

- that there is some similarity to the United

States position and that although, of course, there

are obvious differences, we would submit that, in

substance, the American approach is not all that

different from that which we draw as a synthesis of

the various judgments of Your Honours in Street.

If I could refer to Your Honour Justice Gaudron's

judgment, at page 573, where Your Honour referred,

firstly, to Toomer v Witsell, and Your Honour

extracted a short extract but if I could read the

full paragraph in Toomer v Witsell, 334 US, 385, at

page 396, where it says:

Like many other constitutional provisions, the

privileges and immunities clause is not an

absolute. It does bar discrimination against

citizens of other States where there is no

substantial reason for the discrimination

beyond the mere fact that they are citizens of

other States. But it does not preclude

disparity of treatment in the many situations

where there are perfectly valid independent

reasons for it. Thus the inquiry in each case

must be concerned with whether such reasons do exist and whether the degree of discrimination

bears a close relation to them.

Then Your Honour sets out the extract of the judgment of Justice Powell in the New Hampshire v

Piper case, page 573, in the extract of

Your Honour's judgment, where Justice Powell said:

Goryl(4) 53 12/10/93

"(t)he Clause does not preclude discrimination

against nonresidents where: (i) there is a

substantial reason for the difference in

treatment; and (ii) the discrimination

practiced against nonresidents bears a

substantial relationship to the State's

objective" and added that "(i)n deciding

whether the discrimination bears a close or

substantial relationship to the State's

objective, the Court has considered the

availability of less restrictive means". Then Your Honour went on:

It may be observed of these passages that the word "discrimination" appears to be used to

signify different treatment, but the enquiry

directed is, in essence, an enquiry whether
different treatment is appropriate to an
identified and relevant difference.

It is our submission that although, of course, this is a somewhat open textured postulation of what is

the relevant enquiry, it is, we submit,

substantially the same as approaches of the Court

which have been adopted and developed by this Court

since the decision in Street. So, for example, we

would submit that this approach is consistent with

the approach in respect of section 92 expounded by
the Court in the Castlemaine Tooheys case. If I

give Your Honours references to volume 169 CLR 436,

firstly to five of Your Honours at pages 471 to

472, and secondly to Your Honours Justices Gaudron

and McHugh at page 480.

Of course, this approach, we would submit, is

similar to that taken by Your Honours, with

respect, to the implied guarantee of freedom of

communication in both Nationwide News, (1992)

66 ALJR 658 and the Australian Capital Television

case, in the same volume at page 695.

So that in our submission, although there is

an aspect of judgment in approaching this test,

there are reference points by which the Court is

able to have regard to the, one could put it, the

overriding, and Your Honour Justice Brennan at page

512 in Street referred to section 92 and section

117 as:

the constitutional pillars of the legal and

social unity of the Australian people -

In similar terms, Your Honour, the Chief Justice at

page 492 said, referring to the exclusion that

Your Honour referred to by way of example, he said

it:

Goryl(4) 54 12/10/93

would not seem to detract from

the ..... nationhood or national unity which it
is the object of the section to ensure -

So, in our submission, there are reference points which do enable the Court to determine

whether or not there is contravention of

section 117 in a specific way and within the ambit

of the obligation of the Court to determine the

operation of section 117 which does not leave it

open in the way that Your Honour Justice Brennan

referred to in a rhetorical question this morning,

of merely something to be expressed as the opinion
of the Court.

In our expression, there are strong points of reference but, nevertheless, there is a situation

where the Court must make a judgment as to whether

or not there is a permissible connection with what

is expressed in our formulation as some legitimate

State objective but one being consistent with the

overriding policy of section 117.

BRENNAN J:  Mr Solicitor, why do you restrict your first

question to burden or disadvantage, as distinct

from confer an advantage?

MR GRIFFITH:	Your Honour, perhaps because we approach the formulation, thinking it from one side of the coin
rather than the other - Your Honour having referred
to the other side we would accept that as also
being comprehended within the same approach; so I
am grateful for Your Honour for asking the question.

BRENNAN J: Well, it may have some effect on section 16, may

it not?

MR GRIFFITH:  Your Honour, can I deal with that when we get

to section 16?

BRENNAN J: Yes.

MR GRIFFITH: Dealing with, for a moment, the issue of

approach, Your Honour, which is the primary

interest of the Attorney intervening: on this

particular legislation the Attorney's interest is

limited to reference by way of example, rather than

having any particular interest, we would submit, to

carry the burden, as it were, for establishing

valid operation or restricted operation, and it

seems there are enough interveners before the Court

to engage in exhaustive discussion of that.

But there is another preliminary observation

to approach on these issues. We would accept very

Goryl(4) 55 12/10/93

much what Your Honours Justice Dawson, at page 548

and Justice Toohey at page 560 said in Street, and

that is, namely, that the section 117 limits cannot easily be reduced to any particular formula, and we

would agree with Your Honours' remarks to the

effect that they can be expected to emerge with any

degree of precision only as the law develops on a

case-by-case basis. And, of course, that is

perhaps confirmed by the fact that we are arguing,

in effect, the second substantial case on

section 117 as we approach the centenary of

Australia's Constitution. It is something which is, in our submission, very much appropriate to be

developed on a case-by-case basis.

So, with reference to the issues here before the Court, it would be our submission that

section 20 seems to be a plain case, and nothing

much more needs to be said about it. Section 16

would seem to us to be somewhat near the dividing

line; we would submit, falling at the side where
there is not contravention of section 117's
prohibitions.

We do submit that as in Street's case it would seem so here, one can do little more than usefully

determine the particular issue, and then use that

for the building block for further examination in

other contexts. Perhaps if I could pick up a

difficult example raised this morning, being

questions from Your Honours, if one had regard to

the question of workers compensation legislation

and a discriminatory provision only entitling

workers resident in a State to workers compensation

benefit, we would submit that a provision such as

that would be a matter of anxious consideration in
the particular circumstances where it arose. But
for the moment, we would submit it is sufficient to

point out some obvious differences with respect to

a workers compensation scheme from the situation

here.

In the case of a workers compensation scheme, one has, in effect, a premium paid with respect of

each worker as a worker irrespective of whether or

not that worker is a resident of a State or not,

and one is dealing with a situation where there is
a funded benefit arising from such mechanisms

operating within the State. One can see in that situation there most likely would be very strong reasons not to admit an exception on the basis that

there was a legitimate State objective to secure

that those benefits, where there was a premium paid

with respect to a worker irrespective of whether

that worker was resident in the State or not, to

limit benefits to only State resident workers.

Goryl(4) 56 12/10/93

The situation here, of course, is quite different because one has legislation, and one

picks up the reasons for it in the second reading

speech dealing with the question of whether or not

residents in Queensland, on one view .,ho would not

be entitled to recover damages in respect of

injuries caused in New South Wales by reason of the

then operation of the Transcover scheme, should be

entitled to some funded benefit under the

provisions of the Queensland law, funded by

reference to moneys arising from compulsory

insurance premiums paid in respect of vehicles

which are registered in Queensland, and one may

infer substantially in Queensland, although in this

case the vehicle was a bus engaged in interstate

transport.

We would submit the Court could act on the

assumption that most vehicles, almost all

registered in Queensland, by and large would be

based in Queensland and probably situated in

Queensland because, of course - and I think the

affidavit evidence which is still to be determined

as to whether or not it is admitted to the court -

does refer to the fact that if one takes a vehicle

to another State, then there is an obligation if it is, in effect, to be garaged indefinitely, or after

a three month period in another State, to register

in that State.

So, basically, one is dealing with, we would

submit, Queensland vehicles, by and large almost

exclusively owned by Queenslanders and, we would

submit, by and large, vehicles which are situated

in Queensland admitting that they may be used for

some interstate transport purposes.

We mention that example of workers compensation to indicate obvious differences which,

in our submission, make it appropriate for the

Court to elucidate section 117 by reference to the

particular legislation here, rather than by
reference to an attempt to articulate the relevant
extent, or limitations, of section 17 by reference

to some touchstone of expression to which reference

may be made for universal consideration of the

operation, or limitations, of section 117.

Having said that, as we have indicated, our submission is that section 20 seems to be a clear

case. It is a cap on common law damages,

recoverable in Queensland by a resident of another

State, irrespective of where the accident occurred,

and whether or not it involved a Queensland insured

driver and, of course, after Stevens v Head, it is
very much the case that litigation in respect of

interstate accidents may be conducted, as they are

Goryl(4) 57 12/10/93

in this case, by a plaintiff not resident in

Queensland, and entitled to argue that the damages

are to be ascertained by reference to the law of

Queensland.

We would see the only arguable justification

for section 20 is that it is designed to discourage

forum shopping by residents of other States where damages are lower. In our submission, that is an objective which is not one which can be

legitimately pursued by a State consistently with

section 117 of the Constitution. So the only

operation of this section is to subject an out of

State resident to a disability or a discrimination.

It gives rise to the fact, in our submission, that

its incompatibility with section 117 makes it

wholly invalid, and it is certainly, in our

submission, not severable in its operation with

respect to, say, residents of the Territories.

As to section 16, we would submit that

arguably it is capable of justification. It does
not in terms impose any limitation on the right of

an out-of-State resident to maintain an action at

common law against a Queensland insured driver,

either in an out-of-State jurisdiction or in

Queensland. The damages can be recovered by an

out-of-State resident and, of course, within the

ambit of a compulsory statutory insurance to give indemnity to that driver under the Queensland law

in the case of a Queensland insurance policy and
the obligation of the insurer to indemnify the

insured exists without any restriction; certainly

no restriction arising from section 16, which

operates to constitute an independent and primary

liability.

So that all section 16 seems to do in

conjunction with section 17 and section 19, is to

allow a Queensland resident, who is injured outside

Queensland, in an accident involving a Queensland

insured driver, to receive from a Queensland

insurer a sum which makes the total award of

compensation equal to that which any person could

recover if the accident had occurred in Queensland.

And, we would submit, that the protection of State residents in that matter may be regarded as a

legitimate State objective. Here when the sum is

payable for an insurance fund which is required

under Queensland legislation and which has

contributed to almost exclusively by Queensland

residents in respect of vehicles registered and
ordinarily situated in Queensland.

In that situation, our submission is that section 16 falls within the - perhaps narrowly, but

none the less does fall within the ambit of

Goryl(4) 58 12/10/93

legitimate State objective with the two limbs of

our formulation in paragraph 1, and therefore it is

the submission of the Attorney-General for the

Commonwealth intervening that section 16 is not

affected by the relevant operation of section 117.

Were section 16 to be affected, it would be

our submission that, as a consequence, it would not

be the case that section 16 should be regarded as

totally abrogated by operation of section 117. We

would submit that it would operate in this case to

the benefit of the plaintiff by enabling the

plaintiff to claim the benefit disregarding the

provisions of paragraph (b), requiring the
plaintiff to have a principal place of residence

within Queensland. If the Court pleases.

MASON CJ: Thank you, Mr Solicitor. Mr Sofronoff.

MR SOFRONOFF:  May it please the Court, I hand up a copy of

our outline.

MASON CJ:  Thank you. Did discussion at lunch-time yield

any agreed proposition?

MR SOFRONOFF:  It did, I understand, Your Honour. As I

understand it, the fact that 99.3 per cent of

registrants of Queensland residents is admitted,

and a similar fact in relation to the

Nominal Defendant has been admitted, and that is

sufficient for our purposes. Perhaps Mr Dunphy

could inform Your Honours of the precise terms of

the concession.

MASON CJ: Yes. Is Mr Dunphy able to do that now? Well,

you might come down here, I think, so that what you

say is recorded.

MR DUNPHY:	The position is, Your Honours, that in relation to the affidavit of Ms McDonald, paragraphs 1 and 2
have been agreed, and the entire affidavit of
Mr Fisher, including the exhibit, is admitted, as I
understand it.

MASON CJ: Thank you. Yes, Mr Sofronoff.

MR SOFRONOFF:  Your Honours, neither section 16 nor

section 17 have any operation except outside

Queensland. That is necessarily so because they

were introduced specifically to provide for, or to

augment, damages that might be recoverable by

actions brought by Queenslanders interstate.

Section 16 applies where a Queensland registered

car is involved. Section 17 applies where a car

registered in some other State, or not registered

at all, is involved.

Goryl(4) 59 12/10/93

If the qualification of residency required by

section 16 is inapplicable, then we would submit it

would be equally inapplicable in section 17. There

is no reason to distinguish between the two

sections in that respect. And so the two sections

would apply generally to any subject of the Queen

resident in any State who is involved in an

accident in any place outside Queensland, whether

or not the car was registered in Queensland or not.

The section 17 would then operate -

DEANE J: But does the Act define "principal place of

residence"?

MR SOFRONOFF:  No, Your Honour. I might have said that too

hastily, I will have that checked, but I

understand, not, Your Honour.

DEANE J: But it works on the income tax approach, does it,

that is, six months plus a day is principal place

of residence, or does it work on the biggest house?

MR SOFRONOFF:  No, Your Honour, I had read it on the basis

that it would be a matter for the plaintiff in each

case to establish residency to the satisfaction of
the court, whether or not there had been a period

of residency or not; that is to say whether there

had been six months or three months, or whether the
residency had just commenced.

DEANE J:  What about someone who lives seven months of the

year in Melbourne, and the five winter months on

the Gold Coast and keeps a car at the Gold Coast?

MR SOFRONOFF:  Then, arguably, that person would be resident

on the Gold Coast when he is resident there, and

resident in Melbourne when he is resident there.

DEANE J: What, principal adds nothing?

MR SOFRONOFF:  Which principal, Your Honour?

DEANE J: Is it not principal place of residence?

MR SOFRONOFF: Well, Your Honour, the distinction

Your Honour gave me was one where the only

difference between the two places of residence was

one was seven months and one was five months. One

could draw, for example, upon the fact that the

person lived in Melbourne for seven months because

the person worked there, and so one would point to

that as being the principal place of residence,

whereas Queensland was not the principal place

because no work was done, it was a place of

recreation, albeit for five months.

Goryl(4) 60 12/10/93

TOOHEY J: But, are you suggesting it is a shifting concept,

Mr Sofronoff? I mean, the words of "the time of

the accident" appear in section 16(b), but I would

have thought there was only one principal place of
residence?

MR SOFRONOFF:  Yes, in the example that I have posed, if a

person lived for seven months in Melbourne, and

worked there, and had a house there, and lived for

five months in Queensland for the purpose of

recreation, then the principal place of residence

would be Melbourne.

DEANE J:  You do come back to primarily the six months and a

day, do you?

MR SOFRONOFF:	No, Your Honour.
DEANE J:	What if he works six months and a day in Brisbane

and five days and 29 days in Melbourne?

MR SOFRONOFF:  Then he might be entitled to claim that he

has two principal places of residence, split

between the two.

DEANE J:  Have you anything that suggests that someone can

have two principal places of residence?

MR SOFRONOFF:	No, Your Honour, but if the person's intention was to split the time equally between two
States, to work in each, not intending to be
domiciled in either, then, in my submission, it
would be impossible to say that one was the
principal place of residence and the other was not.
DEANE J:	In that case he would not have any principal place

of residence.

MR SOFRONOFF:  That might be the conclusion. The

alternative would be that he had two.

DEANE J:	Thank you.
MR SOFRONOFF:	Your Honours, if the two sections were to

apply generally, no matter who the particular

plaintiff was, then section 17 would operate so

that a person injured anywhere in Australia could

make a claim upon the nominal defendant if the car

involved was not registered in Queensland, and

section 17 would fill the gap in the event that the
car was registered in Queensland. It would,

therefore, follow that Queensland motorists who

register their cars and pay the compulsory levy,
non-residents not having to insure in Queensland,

would subsidize injured plaintiffs wherever they

live, wherever they were injured, wherever they

sue, and whether the car involved was one that was

Goryl(4) 61 12/10/93

registered, and had to be registered, in Queensland

or not.

We submit that that sort of result is neither

necessary nor sensible. Nor, we submit, is it
required by section 117. It illustrates what we

submit is the lack of sense in that result;

illustrates the fact that although one can easily

accept the existence of a responsibility upon a

State to provide, by means of a co-operative

scheme, support for those members of its community

who are injured in motor accidents, and to provide the same kind of support for non-residents who are

injured in motor accidents in the State.

Section 117 does not require the State to

provide an extra degree of assistance to

non-residents. Nor does it require the State to

provide support for non-residents who are injured

other than in Queensland, relevantly.

BRENNAN J:  How far do you take that in terms of a person

who is injured in a Tweed Heads motor accident by a

New South Wales car being a New South Wales

resident, and the ambulance takes him to a

Queensland hospital? Is he entitled to admission?

MR SOFRONOFF:	Yes.
BRENNAN J:	Why?
MR SOFRONOFF:	As we say at the end of the outline, one

needs to recognize that there is a basic

responsibility upon a State to provide certain

services for all, but if the State were to provide,

for example, a physician of choice to its own

residents, and to provide a subsidy to allow that

person to be placed in a private room, then we

would submit that extra benefit, which the State

recognizes in itself an obligation to provide its

residents, is not one that it has to provide each

resident of the country. So with police services,

for example, we would submit that if police

services are to be offered at all they have to be

offered to everybody in the State, otherwise the

police service ceases to be an effective police

service.

The doors of the courts have to be open to

all, but the State does not have to provide the

same level of service with respect to a

co-operative fund to support its injured residents

to all, recognizing as we acknowledge, an

obligation to provide a level of support to each

person injured in Queensland, whatever the

residence. We submit that if an extra benefit is

Goryl(4) 62 12/10/93

provided, that benefit does not have to be provided

on condition, but it is given to everybody.

BRENNAN J:  So that a Queensland resident charged with a

criminal offence might be entitled to a QC, but

somebody from New South Wales would not, out of

legal aid.

MR SOFRONOFF:  Yes. And if there were a statute that

provided that each dux of a junior school should be

awarded a scholarship to a foreign university, then

we would submit that the State of Queensland could

offer that to the dux of Queensland State schools

without offering it to everybody. It provides

education to anyone who comes, resident or not, but

that which is solely provided by way of extra

benefit to its own citizens and is not so much a

part of the common wheel, can be provided

differentially. The alternative, Your Honour - - -

BRENNAN J:  And the criterion between those things which can

be provided differentially and those which cannot

is what?

MR SOFRONOFF:  We would refer to some of the dicta in Street

in which some of Your Honours said one has to

continue to recognize a continued existence of the

States. One has to recognize that the continued

existence of the States means there is a

relationship between the State and the members of

the community which are a part of the State. So

there will be necessarily a differential treatment

in some respects. The respect in which there is

differential treatment, we would submit, is in

those regards where there is no natural imperative

to provide the same degree of benefit or privilege

to each citizen no matter where that citizen

happens to live.

McHUGH J: That turns the Constitution on its head, does it

not? Surely the starting point is the words of

section 117 itself. They should be read down only

by necessary implication.	The Constitution
mandates that:

A subject of the Queen, resident in any State,

shall not be subject in any other State to any

disability or discrimination which would not

be equally applicable to him if he were a

subject of the Queen resident in such other

State.

MR SOFRONOFF:  Your Honour, if one were to read the words

absolutely in that fashion, then one would exclude
even those respects where a necessary implication
from the Constitution would dictate some exception,

the voting example.

Goryl(4) 63 12/10/93

McHUGH J: No, it is a provision. It has got to be read in

the context of the Constitution, and if there are

necessary implications to be derived from the

Constitution they cut down the words. But

otherwise it just seems to me that you just make up

the test as you go along.

MR SOFRONOFF:  Your Honour, we would submit that it is

implicit in the Constitution also that each State

bears certain responsibilities towards its own

residents, peculiar to the State. And, once one

admits of that, then one also admits of an

exception based on that and, although in any

particular case it may become a matter of

intuition, as my learned friend Mr Doyle put it, or

may involve an open textured analysis, as one of my

other learned friends put it, nevertheless, once

one admits of an exception, then there is an

exception for all purposes, although one might

argue the limit. Now the alternative - - -

BRENNAN J: If there is such an implied responsibility on

the States to look after their citizens, what does

that say about the Engineers case and the scope of

Commonwealth power?

MR SOFRONOFF: In what respect, Your Honour?

BRENNAN J:  Can Commonwealth power be truncated in order

that the States may discharge their constitutional

responsibilities?

MR SOFRONOFF:  We would submit that notwithstanding a

responsibility in the States to care in certain

respects for its citizens, and to care in a number

of respects for all citizens, wherever they are

resident, there is an area in which a State can be

seen to owe only a responsibility to its own

citizens.

BRENNAN J: Well, I think I have delayed you enough, but I

must say I would like to know what the method is by

which one can delineate this area?

MR SOFRONOFF:  Can I take Your Honour, in order to respond

to that, to Street's case, in no particular order

Your Honours, to page 528. At the foot of 528 and

over to 529, Justice Deane gives the example of
parental subsidy to disadvantaged tenants, which

would render ineligible a visitor who was resident

elsewhere. Now we would submit that the State has

a responsibility to care for its citizens and if it

chooses to manifest that care by providing a rent

subsidy to indigent residents, then it is not
obliged by section 117 to do so only on the

condition that it makes that benefit available to

Goryl(4) 64 12/10/93

every resident of the country in similar

circumstances.

McHUGH J:  Why does that not discriminate against the

out-of-State citizen? The interstate resident gets

the benefit; the out-of-State resident does not get

it.

MR SOFRONOFF: Because there is a relevant difference

between the two.

McHUGH J:  Where does the words "relevant difference" come

into the Constitution?	I cannot see anything about
"relevant difference".

MR SOFRONOFF:  Your Honour, I do not say that the words

appear there, but if one does not accord that kind

of limit to the operation of section 117, then one

is left with only a limit based upon the necessary

and continued existence of the States and their

necessary organs. Now, if one reads the

Constitution in that way and reads section 117 in that way, then our submissions fail; section 16

would be inapplicable to Mrs Goryl and section 20

would be inapplicable to her. Our submission is

that one does not read it in that fashion, because

the consequence of reading it in that strict

fashion would be to preclude a great deal that the

States naturally do for their citizens, that they

ought not by - what we would respectfully submit is

a sensible reading of the Constitution in

section 117, that they ought not be required to do

only on condition that they offer that benefit to

everybody.

McHUGH J: But is this not a return to pre-Engineers-type

doctrine, that one approaches the Constitution,

having regard to broad political principles?

MR SOFRONOFF:  Your Honour, we would submit that one ought not to approach the Constitution without having

regard to those broad concepts that we submit are

implicit in it.

The concepts reflected in the dicta of

Justice Deane are also reflected in the

Chief Justice's reasons at page 492, in the middle
of the page in the passage that has already been

read to Your Honours relating to welfare benefits.

I will not take Your Honours to it but, equally,

passages like that appear in Justice Toohey's
reasons at page 560 and Justice Dawson's reasons at

page 548, and together they perhaps echo a little

of what the US Supreme Court said in Baldwin v

Montana Fish and Game Commission, 436 US 371, at page 383. Could I take Your Honours to that?

Goryl(4) 65 12/10/93

Your Honours, we acknowledge that the clauses

are different and that the Court has said that
there is a limit that can be placed upon the

usefulness of the American authorities, and we do

not seek to base our case upon the American

authorities, but what we do use it for is to

demonstrate that the approach reflected in the

reasons of Your Honours that I referred to earlier

is not anything novel. The US courts, for better

or worse, have had to grapple with it and have

grappled with it.

Could I take Your Honours to the middle of

383, to the last paragraph beginning there:

It has not been suggested, however, that

state citizenship or residency may never be

used by a State to distinguish among persons.

They give the example of voting. Then, about two-

thirds of the way down:

Nor must a State always apply all its laws or

all its services equally to anyone, resident or nonresident, who may request it so to do.

And they cite a couple of cases.

Some distinctions between residents and

nonresidents merely reflect the fact that this

is a Nation composed of individual States, and

are permitted; other distinctions are
prohibited because they hinder the formation,

the purpose, or the development of a single

Union of those States.

Your Honours, that is not a great deal

different from the recognition accorded the

continued existence of the States in the dicta to
which I have referred Your Honours.	We submit that

the Motor Vehicles Insurance Act involves the

creation of a co-operative welfare scheme. It

bases itself upon the existence of a classical
policy of insurance but it is an insurance scheme

in name only in that the cover provided by the Act

is compulsory. Even if cover is not provided,

there is the corporation of Nominal Defendant to

stand instead of the insurer. There is no

possibility of contracting out of the right to

claim damages as plaintiff. The insurer, although

said to be an insurer, cannot rely upon any of the

normal defences available to insurers and must pay

irrespective of the existence of those kinds of

defences. If the person who would ordinarily be

sued, the person indemnified, is dead or cannot be

found then the insurer can be sued directly, and if

Goryl(4) 66 12/10/93

that person does not pay himself then the insurer

is obliged to pay itself.

Now, but for the fact that it adopts the

structure of accepting an insurance policy, it is anything but a regime for insurance of the driver or owner of the car and it is really very much a

matter of insuring the person who is going to be

the claimant against loss suffered by being a

victim in a car accident.

We submit that not every State is obliged to

view its responsibilities towards those kinds of

people in the same way, and they do not view it in
the same way. New South Wales offers its victims a

bit less, but that may be because services provided

in other respects are regarded by New South Wales

as more valuable, and is making up the gap.

Queensland offers its victims more, but perhaps

that is because Queensland then says, "We will

assess the extent to which you need medical
services, once and for all, and then do not come
back for any further support."

The Queensland Act does not deny a level of support to non-residents. It merely says,

"Although we recognize a basic responsibility to

any person injured in Queensland to pay, your

recourse is limited to that which your own State
thinks fit and adequate to constitute compensation

for the injuries of which you complain".

We submit that, firstly, the inclusion of a

limited number of people in a co-operative scheme is fundamental to the existence of a co-operative

scheme, and secondly - - -

BRENNAN J:  Why do you say there is a limited number of

people? The person who is injured in Victoria by a

Queensland car can claim under this scheme, can

they not?

MR SOFRONOFF: Yes, but the limit is based not upon the

right to sue, but upon the right to sue for the

maximum amount that a Queensland resident can sue

for.

BRENNAN J:	You are speaking only of this particular part of the Act, are you? Or, are you speaking of the Act
as a whole?
MR SOFRONOFF:	I speak of the Act as a whole, and relevantly

sections 16, 17 and 20 which - - -

BRENNAN J: Well, what of the case where you are not

concerned with 16, 17 or 20? Say a resident of

Melbourne sues in Victoria the owner/driver of a

Goryl(4) 67 12/10/93

Queensland car, and recovers damages in the

Victorian Supreme Court, can they get the claim

under this scheme?

MR SOFRONOFF:  The insurer would indemnify, yes, if it was a

Queensland car.

BRENNAN J: Yes. Without any reference to 16, 17 or 18?

MR SOFRONOFF:  Yes.

BRENNAN J: Well then, where is the closed class of

beneficiaries?

MR SOFRONOFF:  The closed class relates to limiting, in

Queensland, where most accidents involving

Queensland cars would happen, the right to claim

more than one can claim in one's home State. I

perhaps put it badly if I say the class is closed.

The class, of course, is unlimited, because what is proscribed by section 20 is not the right to sue, but the right to sue for more than one can get in one's home State, in Queensland.

Now, we submit that once one creates a scheme, one is entitled to discriminate between those who

are the natural beneficiary of it, and those who

are not. Queensland legislates to provide for

beneficiaries which include all residents, but

chooses to favour its own with extra benefits, and

to the extent that there is perfect reciprocity

between the Queensland level and that of another

State, residents of those other States as well.

We submit that the discrimination is due to a

natural connection and the nature of the

discrimination is perfectly proportional because it
does not deny the right to sue, but it denies the

right to recover more than a Queensland resident in

entitled to recover in their home State. that State, or that person himself/herself would be Your Honour Justice Deane this morning posed

the question of the two sisters, one resident in

Queensland and one in New South Wales, where

everything else was equal and if they sued in

Queensland the effect of this statute would be that

one would recover less. But that is not unusual.

If one of them sued in New South Wales and one sued

in Queensland there would be a different award of

damages, the accident having happened in

New South Wales. So the differential result

follows in any event, depending upon where those

two sisters choose to sue, and so it is not as

grotesque as it otherwise would have been for there

to be the same differential result by reason of the

statute if they both choose to sue in Sydney.

Goryl(4) 68 12/10/93

Your Honours, in summary, we make the

submission in paragraph 3 of our outline that the

exclusion of non-residents from the extra benefits

involves adverse treatment of them, but on a ground

which has a rational connection with an unrelated

objection, that is to say, unrelated to simple
discrimination, and the objective is, we submit, to
care for those of the members of the community of
the State who are injured elsewhere and who cannot

recover what this State sees as adequate

compensation. That is an objective that we submit

does not conflict with 117, even though that

benefit is not afforded those who are not resident
in Queensland.

Could I make one concession? With respect to section 20, to the extent that it operates upon a

person who sues in Queensland in respect of an

accident involving a New South Wales car, we cannot

point to any legitimate basis upon which to

preclude that person, the subject of the Queen,

resident in an Australian State recovering the full

amount. We cannot point to the need to conserve a

fund or to preclude an excess being recovered, the

recovery being from a fund formed in a different

State. To that extent, we acknowledge that in

respect of such a person involved in such a case,

the provisions of the Constitution would operate so

that the residency qualification in section 20

could not apply. But in so far as the claim for

damages is based upon the Queensland insured

vehicle, then we submit that there is both a

rational and a proportional connection of the kind

that we advance in our submissions.

DEANE J:  How would that work as a reading down proposition

on section 20?

MR SOFRONOFF:  We submit that one of the virtues of

section 117 is that instead of operating in its

terms to strike down legislation, it operates to

render a person immune from he operation of a

discriminatory law or executive act, and so the

person would simply be immune to the operation of

section 20.

DEANE J: But once you made those people immune

MR SOFRONOFF: In those accidents?

DEANE J: Yes, have you not got a problem about the New

South Wales driver? Is he not under a disadvantage in being liable to some and not to others? Or

rather, is he not under a disadvantage as distinct

from the Queensland driver?

MR SOFRONOFF:  Yes, but - - -

Goryl(4) 69 12/10/93

DEANE J: Will that not bring the whole house of cards down?

MR SOFRONOFF:  No, because the same reason that the

Queensland insurer is protected, provides the

rationale for the discrimination between the two.

The State seeks to protect drivers of its cars who

are insured by insurance companies conducting

Queensland insurance business relevantly and does

not seek to protect - - -

DEANE J:  In other words, you are saying that if the

Queensland law says a New South Wales driver will

be liable for more by way of damages to a

southerner than will a Queenslander, that that is

consistent with section 117?

MR SOFRONOFF: 

Your Honour, our submission proceeds on the

footing that the statute seeks to protect the co-
operative fund.

DEANE J:  I follow all that. I was just querying whether

your cutting out part of the coverage of section 20

to accommodate section 117 might not itself be

precluded by section 117?

MR SOFRONOFF:  We submit not, because the difference in

treatment of the New South Wales insured driver is

based upon a relevant difference; he is a driver

insured in New South Wales and the other case, the

person insured in Queensland, is insured under the

scheme which is the subject of the difference in

treatment.

DEANE J: Yes, I follow the way you put it.

MR SOFRONOFF:  We would be in a position to make a stronger

submission if section 20 operated on its terms to

preclude the recovery of full damages only in cases

where the nominal defendant or a Queensland insurer	were involved, but it is not put in those terms and
we have to acknowledge that, to the extent that a
non-Queensland insured driver is concerned, then it
can have no application to limit the damages
because there is just no justification for it.

Your Honours, we submit therefore that a State

does not bear the same responsibility to

non-residents in this area. It bears no

responsibility for non-residents injured outside

the State, but it bears a responsibility but a

lesser responsibility to non-residents injured in

the State or, to put it perhaps more attractively

from our point of view, if the State chooses to

shoulder a greater responsibility to those who are

a member of the community, then it does not

necessarily follow - it does not follow, that it

must therefore accord the same degree of treatment

Goryl(4) 70 12/10/93

at, I will call it, a luxury level, for all persons

wherever they are injured.

To the extent that the statute seeks to

measure the degree of recovery by the level of
compensation afforded by the State of the

non-resident, we submit there is perfect

proportionality of treatment.

Your Honours have been taken to the American

cases relating to recoveries of moneys from funds

set up under similar motivations to the insurance

funds in Australia. We submit that they can be

a State to give some form of extra support to

usefully looked at to afford examples of where the of

its own residents without any requirement that a

condition of that support be an equal degree of

support for each resident of a country.

In the last paragraph of our outline we deal with the essential services issue. I have

addressed that earlier in a question to Your Honour

Justice Brennan. But we would wish to add to that

by proposing some examples: if a State in

fulfilment of its obligation to house the members
of its community, decided to grant each disabled
war veteran, or disabled person for other deserving
reasons, a rental allowance or pension, for housing

then, in our submission, there is nothing inherent

in section 117 that would oblige that State to give

such a benefit to every single disabled war

veteran, wherever they live. Each State bears the

responsibility in that respect for its own
residents and the members of its community.

If, in addition to the basic level of health care that a State affords its citizens, a

particular State wished to provide special benefits

deserving residents, then we would submit equally	involving private health care, for certain of its
section 117 does not oblige that benefit to be
afforded to every resident of the country who
fulfils the other criteria. And the reason we
submit that that does not follow is the obligation
of the State is that of the State. Section 117 is part of a Constitution that accepts the continued existence of the States and section 117, we submit,
does not operate to augment the extent to which a
State is obliged to fulfil its responsibilities so that it has to fulfil those responsibilities in
these respects to everybody or nobody.
Your Honours, those are our submissions.

MASON CJ: Thank you, Mr Sofronoff. Yes, Mr Dunphy.

Goryl(4) 71 12/10/93

MR DUNPHY:  May it please the Court, I hand up a copy of my

outline of submissions. Your Honours, in

paragraph 2.l(a) of our outline we note the

proposition that section 117 of the Constitution is

focused upon the individual position, and looks at

the actual circumstances and position relating to

the person said to be subject to the disability or

burden.

Your Honours, in relation to the actual test

to be applied in considering the application of

section 117, in paragraph 2.2(b) of our outline we

have reproduced a statement from the decision in
Waters v Public Transport Corporation,

(1991) 173 CLR, and could I take Your Honours to a

passage from that decision, in particular to a

passage in the joint judgment of Your Honour the

Chief Justice and Justice Gaudron at page 364.

MASON CJ:  Was this on your list of authorities?

MR DUNPHY:  Your Honours, it was not. I am afraid I am in

default in that regard.

McHUGH J: But these arguments about rational and

proportionate connection with some legitimate

object, have they got anything to do when there is

this ex facie discrimination on the ground of

residence?

MR DUNPHY:  Your Honour, in our respectful submission, they

have in that that is a test which prescribes the

limitations in terms of section 117 of the

Constitution and its application in some circumstances.

McHUGH J: Let us take discrimination on the ground of sex.

Supposing somebody says, "Well, I discriminate against you on the ground of sex", that is the beginning and end of the matter, is it not? You do

not look to see whether there is some rational and

proportionate connection with some legitimate

object.

MR DUNPHY:  Your Honour, in our respectful submission, in

relation to the operation of section 117, one also

must take into account the fact that Australia is a

federation consisting of a number of States and in

that regard there is a legitimate limit on the

operation of section 117, and that that formulation

is appropriate in the circumstances, and the point

we wish to make in relation to - - -

McHUGH J: But, accepting that that is so, the limitation

comes from outside the section. It has got nothing

to do with discrimination or that there is

discrimination or disability on the ground of

Goryl(4) 72 12/10/93

residence. That is the beginning and end of it, is

it not?

MR DUNPHY:  Your Honour, in our respectful submission, it is

a limitation that comes from implications from the
Constitution in relation to the fact that the

States have a role to play in terms of their residents, and in terms of the Federation.

The point we wish to make in relation to the statement in Waters v Public Transport Corporation

is simply that the test which has been suggested in

relation to the limits on section 117 are not

unknown to the Court in the sense that in essence

there are considerable similarities to the test as

posed in relation to section 92, and the statement

in Waters simply confirms that point.

Your Honours, the next point in our respectful

submission, is to note that section 117 generally

does not invalidate a law to which it applies.

Rather, it operates so as to remove as against the

individual in question the offending disability or

discrimination.

In the context of the statutory scheme under

consideration, paragraphs 3.4 and 3.5 of our

submissions confirm that there are very few

interstate residents who actually register motor

vehicles in Queensland.

As regards section 16(b) of the

Motor Vehicles Insurance Act, we respectfully adopt
the submissions made on behalf of the respondent
and would submit that the provision is outside the

operation of section 117.

As to section 20 of the Motor Vehicles

Insurance Act, in our respectful submission, in the

circumstances of this case, considering the

position of the applicant, section 117 does not

render that section inapplicable. In our
respectful submission there are a number of
relevant factors which should be considered in

applying the test which sets the limits of

section 117.

Firstly, Your Honours, there is the nature of

the third party compulsory insurance scheme,
established under the Motor Vehicles Insurance Act.

Secondly, in relation to that scheme, funding is almost exclusively provided by Queensland residents

and accordingly, in our respectful submission, it

is a scheme which can be characterized as a

welfare-type scheme which benefits Queensland

residents, whether they are the registered owners

Goryl(4) 73 12/10/93

of motor vehicles or not. The third relevant

factor is that section 20 does not deny or - - -

BRENNAN J:  How far does that take you? Does it mean, for

example, if there is free milk in State schools,

kids who come from New South Wales cannot have any?

MR DUNPHY:  Your Honour, are the children from interstate

resident in Queensland?

BRENNAN J: Non-residents, no, they are there for a time,

not their principal place of residence.	They are
there while their father is cane-cutting.

MR DUNPHY:  Your Honour, the question would then be whether

or not such discrimination, in that particular

instance, is reasonably appropriate and adapted, or

whether there is a rational connection, and it may

be that there is not, in that particular instance,

depending on the relevant factors applying to the
individual said to be affected by the disability or

discrimination.

BRENNAN J: But those are words, what does it mean when it

comes to a question of saying welfare schemes?	Do
you say some welfare schemes are all right, some are not?

MR DUNPHY:  Your Honour, the position is that if one accepts

that test in relation to section 117 that the Court

will be placed in the position, as it has often

found itself in relation to matters where the test

of reasonable proportionality is applied, that is,

looking at the relevant circumstances and, in the

context of section 117, at the purpose for the

discrimination or the legitimate objective.

BRENNAN J:  Now, I can understand proportionality when you

are dealing with a purpose that you can identify.
What is the purpose that you identify under 117?	I
mean, you have got the administrative scheme, no
milk.	What is the thing to which it is to be

reasonably proportionate?

MR DUNPHY:  Your Honour, it may be, in that factual

instance, that there is no legitimate basis, or

purpose, that can be considered as justifying that

kind of imposition of a disability or burden.

BRENNAN J:  Or under section 20 less damages; what is the

purpose to which it is to be proportionate.

MR DUNPHY:	In our respectful submission the approach is really to look at the individual circumstances when
one considers section 117. As was considered by
Mr Sofronoff, there may be some cases where
section 20 of the Motor Vehicles Insurance Act

Goryl(4) 74 12/10/93

cannot be justified in its application. In this

particular instance, on these facts, involving this

applicant, the Court must consider the relevant

factors and apply the limits to the test of

section 117 and the appropriate test in light

thereof.

BRENNAN J:  What is it? I mean, in this case, what do we

say?

MR DUNPHY:  Well the factors which, Your Honour, I have

already enumerated; the fact that - - -

BRENNAN J: So, because of those factors section 20 is all

right?

MR DUNPHY:  In relation to its application in this

particular instance, yes, because, in essence the

scheme which is established is of a type to be

categorized as a welfare scheme because of the way the statute is structured and funded together with the other factors that are relevant.

McHUGH J: In these days there would be few cases, would

there, where interstate residents would be entitled

to benefits under welfare schemes. Can New South

Wales say there are more law graduates in New South

Wales than places at the college of law, therefore

we will only take applications from residents of

New South Wales?

MR DUNPHY:  Your Honour, the approach in my respectful

submission would be to consider the circumstances

in relation to that scheme; the reasons advanced

for its justification and to then determine, in

light thereof, vis-a-vis a particular individual,

whether or not that imposition is appropriate in

the circumstances.

McHUGH J:

Queensland Government have said there is a great

If Mr Street had applied in 1993, and if the

shortage of work for barristers, we want to limit
the number of barristers practising in Queensland?

MR DUNPHY:  Your Honour, in our respectful submission, in

that position, there is a difference in the sense

that there is no welfare fund type scheme involved, which is really the factor that is relevant, in our

respectful submission, primarily in this case.

McHUGH J:	No, the State provides the funds which provides the courts which enable the barristers to earn
their living.  The legal profession has got a
vested interest in the amount of money that
governments spend in the justice system.

Goryl(4) 75 12/10/93

MR DUNPHY: In our respectful submission, Your Honour, there

is also to be balanced the right of the individual,

the right to practice and, in relation to the

scheme in question, there are other factors in this
particular scheme, quite apart from the fact that
it is, in our respectful submission, a welfare-type

scheme, there are factors, such as, that the

interstate resident, in this particular case, is

not denied all rights, the reduction is, in
essence, to a level of damages to be paid from the

State welfare fund scheme, equivalent to, what they

would have been entitled in their own home State,

and it is that combination of factors which must be

examined, in our respectful submission, in each

individual case.

Finally, Your Honours, there is the fact in relation to this particular application that the

accident in question occurred outside of Queensland and this issue may also be relevant in the analysis of this case. Could I refer Your Honours to the
decision of Breavington v Godleman, 169 CLR 41 and,

in particular, to a passage of Your Honour

the Chief Justice at page 78 at about point 5, the

second sentence, beginning:

Australia is one country and one nation. When

an Australian resident travels from one State

or Territory to another State or territory he does not enter a foreign jurisdiction. He is

conscious that he is moving from one legal

regime to another in the same country and that

there may be differences between the two which

will impinge in some way on his rights, duties

and liabilities so that his rights, duties and

liabilities will vary from place to place

within Australia. It may come as no surprise
to him to find that the local law governed his

rights and liabilities in respect of any wrong

he did or any wrong he suffered in a State or

Territory. He might be surprised if it were

otherwise.

Your Honours, we do not place enormous support on

that factor but, in our respectful submission, it

may be an additional factor to be considered in

considering the validity of section 20 in this particular individual case. May it please the

Court, those are our submissions.

MASON CJ: Yes, thank you, Mr Dunphy. Mr Bennett?

MR BENNETT:  Your Honours, my learned friend, Mr Doyle,

referred to, what might be called, counter

discrimination; a suggestion that, in the present case, the fact that the scheme was retaliatory in

Goryl(4) 76 12/10/93

relation to Transcover and its effect on

Queenslanders, in some way justified it.

In my respectful submission, that cannot be

so. If any part of the Transcover scheme was

invalid under section 117, so be it. If it was

not, it cannot justify counter discrimination.	May
I give this example? Let us suppose that Queensland decides that casinos are a wonderful

thing for the tourist industry - interstate and

overseas - but a danger to the financial health of

local residents, in whom it has an interest. It,

therefore, decrees that no Queensland resident may

enter a casino in Queensland. Now, such a law is

clearly valid because section 117 does not prevent

discrimination by a State against its own

residents.

But, now suppose that New South Wales says,

"We do not wish to undercut the Queensland

government scheme, and people are able to undercut

it by travelling to Tweed Heads, and gambling at

the clubs there, so what we will do is pass a law

which says, 'If any State prohibits its own

residents from gambling in that State, those

persons may not gamble in establishments in New

South Wales'.". Now that would clearly, in my

respectful submission, be invalid under

section 117. It would not be saved by the fact

that those against whom it discriminates suffer the

same discrimination in their home State. Nor would

it be saved by any basis which suggests, or because

the other State does it, we can do it.	It would
simply be invalid.

The second submission in reply is this: a

number of my learned friends have made submissions

based upon proportionality and the extent to which

there is in some way an overall scheme or welfare

scheme, the nature of which involves the

discrimination in this case.

We would put as our primary position that

adopted by Justice McHugh that a scheme of that

sort cannot justify what would otherwise be a

breach of section 117. But if the majority of

Your Honours are against me on that approach, we would submit that there must be, on any view of it,

if there is some requirement of that sort, a nexus.

There must be a nexus between the discrimination

sought to be imposed and the occasion for that

discrimination.

One can think of easy examples of such a

nexus.	One would be the publican who is required
to live over the pub.	If it is considered

essential to have a publican's licence live on the

Goryl(4) 77 12/10/93

premises, then clearly the fact that that

discriminates in favour of Queensland residents

against interstate residents does not matter, and

does not breach section 117. That is a classic

case of direct nexus. The other example, of

course, is the benefit for tenants who, because

they are residents, get that benefit.

This case is more like the example which was

always put by lecturers in equity, the example in

the law of charitable trusts, where one may have a

charitable trust for the building of a bridge; one

may have a charitable trust for the benefit of

impecunious methodists, but, the example said, one

could not have a charitable trust for the building
of a bridge solely for the use of impecunious

methodists. That was not permissible because there

was no nexus between being an impecunious methodist

and needing to cross the bridge.

And in very much to same way here, what is the

nexus, one asks, between being a person who claims

compensation because of injury in a motor accident,

and being a resident? None, except that it is the

desire of the State to benefit its residents in

respect of this area of law. That is simply not a

nexus. If that is a nexus, section 117 is

meaningless. There is no nexus.

Then it is said by a number of my friends,

"Well, maybe there is a nexus because there is this

class of people who contribute by paying premiums,

and that is sort of the same class and it is really

a co-operative scheme". Of course, it is nothing

of the sort. First of all, the class of those who

contribute includes companies which get no benefit

from this extra amount being paid, it includes

persons who own motor vehicles but never leave

their homes and cross roads or expose themselves to
the risk of motor accidents.	On the other hand,

there are people, and vast numbers of them, no

doubt, who are regularly pedestrians on Queensland

roads but who do not own motor vehicles.

So, how can one say this is some co-operative

scheme with some closed group and we are taking

from that group and giving back to that group.	It
is nothing of the sort. It is taking from one
group of people, giving to another as a matter of social policy, and then saying, "Well, because we

are Queensland, we would like to benefit Queensland

residents only". That is the very thing, in my

respectful submission, that section 117 strikes at in relation to this area.

and there is not, in this case, one skerrick of a
rational nexus if, contrary to the matters put by

Goryl(4) 78 12/10/93

Now the third matter I wish to put in reply is

this:  Your Honours will recall that in Street's

case Your Honours were asked to make an order

admitting Mr Street to the Queensland bar.

Your Honours declined to take that course. If

Your Honours go to page 592 of the report, which

sets out the orders, Your Honours will see that a

slightly unusual course was taken in the form of

order, and that course was taken, we respectfully

submit, for good reasons associated with the

wording of section 117.

Your Honours see that orders on the case

stated, at page 592:

Answer the questions in the stated case as

follows -

Question -

1. Are the Rules of the Court relating to the

admission of Barristers ..... invalid as being

contrary to s. 117.

That was the question. Your Honours did not answer

the question. What Your Honours said was:

Rules ..... are inapplicable to the plaintiff to the extent that they would require him ..... to

have an intention -

et cetera. It was not that it was invalid,

although that is clearly the purport of

Your Honours' judgments, all of them; that was not

the order, and the reason it was not the order, in

my respectful submission, was that section 117

speaks to the individual, not to the legislation as

a whole. Section 117 provides, as Your Honours

have no doubt heard many times, that:

A subject of the Queen ..... shall not be

subject in any other State to any disability -

et cetera. It relates to an individual person. That is why the arguments put by a number of

my learned friends, particularly the written

argument of my learned friend, Mr Dunphy, that this

is a case where it does not matter that Mrs Goryl

paid a fare to Greyhound, which went into its funds

which paid the premium. That does not matter

because she belongs to a broad class and that class

of interstate people in general do not contribute.

That does not matter. If that contribution is

something which is relevant to whether there is a
breach of section 117, if it is, then she is

entitled to win even if people who are not

Goryl(4) 79 12/10/93

passengers on Greyhound buses who paid fares in

Brisbane, lose. The section looks at the

individual and sees if there is discrimination in
the case of the individual. In her case, there is
very clear discrimination.

The fourth matter to note, and this is related to my second point of nexus, is that a number of

cases, particularly the passage which my learned

friend, Mr Dunphy just took the Court to from

Waters, and the passages from the judgment of the

Supreme Court of the United States in the Arizona

case in Memorial Hospital. Particularly those

passages, but one does not need cases for it, show

that interstate motor traffic is a major part of

modern communal activity. It is not as if the six

States exist in a vacuum. There is the occasional

person who dares to cross a State line and

therefore policies in relation to that person do

not really matter. Motor vehicle law is dealing,
in Australia today, with a large amorphous group of

people, many of whom are driving cars from

interstate or have come from interstate or have

other connections with other States, and one simply

cannot, in my submission, say, "Well, motor vehicle

insurance legislation is something that is really

internal to the State, it really only concerns the

State and therefore the nexus is established in

that way.

The test laid down by my learned friend, the Solicitor-General for the Commonwealth is, in my

respectful submission, far too wide. It does not
require any specific nexus and it really amounts to

saying, "Well, if the Court considers that

ultimately it is reasonable for a State to act in

this way, it can do so."

But to say that the Court needs to determine

the existence of any exceptions to section 117 on a
case-by-case basis is one thing.	To lay down as

amorphous a test as that, is quite another and, in

our respectful submission, it would not be

appropriate for the Court to do so.

Turning to the submissions of my learned

friend, Mr Sofronoff, for the respondents, he
submitted that there was no distinction between

section 16 and section 17. In my submission, there

is the clearest distinction - there are two

distinctions. Tthe first is that section 17

involves a tax - money raised by a tax. Section 16
involves merely the general fund raised by

insurance premiums; and, the second difference is

that in section 16 the proportion of cases affected

by the residence requirement is likely to be small.

Whereas in section 17 the proportion of cases

Goryl(4) 80 12/10/93

affected by the residence requirement is likely to

be large.

In section 17 it is probably 90 per cent of

cases because, as it has been pointed out, if one
took out the offending word from section 17, every

motor accident in Australia would result in damages

being recoverable in Queensland, even if there is

no connection, at all, of any person in Queensland.

So, clearly, in section 17 one has a very different

question of proportionality, and that goes to the

severability of the provision. But, under section

16 that simply does not exist, and it is a very

different sort of provision.

Now, my learned friend gave some examples -

well examples were put to him. The example of a

Queen's Counsel being given to Queensland defendants in legal aid cases and a junior being

given to interstate defendants; the example of a

private room being available in hospitals to

Queensland residents, and not to interstate

residents. Those, we would submit, are clear

discriminations.

The example of the dux of the Queensland

school, to whom there was an overseas scholarship,
depends upon the wording of the statute. If the

statute says, "the dux" or "the duces", I suppose,

"of Queensland schools will be eligible for

overseas scholarships" and does not offer it to

duces of New South Wales schools, there is no

problem. That is the category of something where

the nexus naturally follows from the nature of what

is being granted. But if it is said, "We will give

a scholarship to any child who is the dux of a

Queensland school, provided that that child is resident in Queensland", so that the Tweed Heads' child who crosses the border for school or the cane

cutter's child who is there for a few months cannot get it, then there is a discrimination and there is no nexus.

McHUGH J: But the difference between the two illustrations

is this, is it not: the last illustration is

ex facie discrimination; in the first illustration

it may have an indirect effect and then one can

look to determine whether or not it is seeking to

achieve some other object.

MR BENNETT:  Yes, precisely, Your Honour, and in looking at

indirect effects, questions of nexus are obviously

very relevant.

McHUGH J: It is like your illustration about the publican.

If you say, "Must live on the premises", that

indirectly discriminates on the ground of

Goryl(4) 81 12/10/93

residence, but if you say, "All publicans must be

resident in Queensland", there is surely no

question of looking at objectives or - - -

MR BENNETT: Yes, precisely. Perhaps I can refine that

slightly: if one said, "All publicans must live

within 400 yards of the premises", then that is

valid, even though there may be an indirect

discrimination. If one says, "All publicans must

live within 400 yards of the premises, provided

that they live in Queensland", so they cannot live

just across the border, if the hotel is on the

border, then there is an ex facie discrimination.

McHUGH J: In the first case it is not a discrimination on

the ground of residence, is it?

MR BENNETT:	No, that is how I submit, Your Honour.
BRENNAN J:	The real analysis of that is that there is no

discrimination.	You are treating different things
different ways.

MR BENNETT: Exactly, Your Honour, precisely. Yes, it is

submitted then by my learned friend, Mr Sofronoff,

that this is an insurance scheme. It is, of

course, to a large extent an insurance scheme, but

it is not merely a scheme for the protection of

injured plaintiffs. I do stress that one of the

purposes is the protection of insured defendants,

and that is a nexus which needs to be taken into

account in considering what the relevant nexus is.

For those reasons, it is our respectful

submission that this is a case in which the

discrimination under section 20 is clear, ex facie,

and indefensible, but in any event we would submit

that even if for one of the reasons I put in-chief, the removal of section 20 in its application to my

client does not produce the result, then we would

submit that we are entitled to remove from
section 16 the condition in relation to Queensland

residents, with the result that the section 16

benefit would be available to Mrs Goryl.	May it
please the Court.

MASON CJ: Thank you, Mr Bennett. The Court will consider

its decision in this matter.

AT 3.53 PM THE MATTER WAS ADJOURNED SINE DIE

Goryl(4) 82 12/10/93