John Robertson & Co Ltd v Ferguson Transformers Pty Ltd

[1973] HCA 21

HIGH COURT OF AUSTRALIA

. McTiernan A.C.J., Menzies, Walsh, Gibbs and Mason JJ.

JOHN ROBERTSON &CO. LTD. v. FERGUSON TRANSFORMERS PTY. LTD.

(1973) 129 CLR 65

7 August 1973

Restraint of Trade—High Court

Restraint of Trade—Statute prohibiting contract or combination in relation to trade and commerce among States in restraint of or with intention to restrain such trade or commerce—Action by person injured by act in contravention of prohibit ion—Right to recover treble damages—Consent of Attorney-General to commencement of action—Further consent to joinder of substituted defendant—Whether consent to institution of proceedings against substituted defendant—Australian Industries Preservation Act 1906-1950 (Cth), ss. 11, 14*. High Court—Practice—Original jurisdiction—Action—Writ issued out of South Australian Registry—South Australian Statute of Limitations—Whether bar to action maintainable only in High Court—Action for treble damages under Australian Industries Preservation Act 1906-1950 (Cth)—Whether action for penalties, damages or sums of money given by statute—Judiciary Act 1903-1969 (Cth), s. 79**—Limitation of Actions Act, 1936 (S.A.), s. 37***. * Section 11 (1) of the Australian Industries Preservation Act 1906-1950 (Cth) provides: "Any person who is injured in his person or property by any other person, by reason of any act or thing done by that other person in contravention of this Part of this Act, or by reason of any act or thing done in contravention of any injunction granted under this Part of this Act, may, in the High Court, before a Justice without a jury, sue for and recover treble damages for the injury." Section 14 provides: "(1) No proceeding for an indictable offence or for the recovery of penalties shall be instituted under this Part except by the Attorney-General or some person authorised by him. (2) No other proceeding shall be instituted under this Part without the written consent of the Attorney-General." ** Section 79 of the Judiciary Act 1903-1969 (Cth) provides: "The laws of each State, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all courts exercising federal jurisdiction in that State in all cases to which they are applicable." *** Section 37 of the Limitation of Actions Act, 1936 (S.A.) provides: "All actions for slander and all actions for penalties damages or sums of money given to any party by any statute in force at or after the commencement of this Act shall be commenced within two years next after the cause of action accrued, but not after."

Decisions

1973, August 7.
The following written judgments were delivered:-
McTIERNAN A.C.J. This action is brought in the original jurisdiction of the High Court in pursuance of s. 11 (1) of the Australian Industries Preservation Act 1906-1950 (Cth). This section, which is in Pt II of the Act, provides that any person who is injured in his person or property by any other person, by reason of any act or thing done by that other person in contravention of this Part of this Act, or by reason of any act or thing done in contravention of any injunction granted under this Part of this Act, may, in the High Court, before a Justice without a jury, sue for and recover treble damages for the injury. Section 3 of the Act provides that "person" includes corporation. Section 14, which is in Pt II, provides, by sub-s. (1), that no proceeding for an indictable offence or for the recovery of penalties shall be instituted under this Part except by the Attorney-General or some person authorized by him, and, by sub-s. (2), that no other proceeding shall be instituted under this Part without the written consent of the Attorney-General. (at p69)

2. The action is a proceeding to which s. 14 (2) is applicable, because it is not a proceeding which falls within s. 14 (1). The action was commenced by a writ of summons which was issued on 27th January 1967 from the Adelaide Registry of the High Court. The writ was issued at the instance of John Robertson &Co. Ltd. (In liquidation), the plaintiff, against five defendants, which included a defendant of the name of Philips Electrical Pty. Ltd., but not of the name of Philips Industries Pty. Ltd. An endorsement was made on the writ before it was issued. The endorsement was made pursuant to O. 2 r. 1. The endorsement read thus:

"The plaintiff claims - Under the provisions of s. 11 of the Australian Industries Preservation Act 1906-1950 and the exercise of the jurisdiction thereby conferred on this Honourable Court that this Honourable Court award to it the sum of $76,361.25 being treble damages for the injury done to it by reason of the acts of the defendants and each of them in refusing to supply or sell to it fluorescent lamp ballasts or alternatively such ballasts of the type known as 'code ballasts' from 20th November 1961 and thereafter at any prices other than the prices fixed by the defendants - (a) pursuant to a contract entered into among themselves the defendants were and continued to be members and in which each of the defendants was and continued to be engaged which contract and combination were in relation to trade and commerce among the States of the Commonwealth of Australia and were in restraint of trade and commerce or alternatively were made entered into and engaged in and continued so to be with intent to restrain trade and commerce in contravention of the provisions of Pt. II of the Australian Industries Preservation Act 1906-1950 and in particular of the provisions of s. 4 thereof and (b) by reason of the defendants and each of them monopolizing or alternatively attempting to monopolize and combining and conspiring with each other to monopolize part of trade and commerce among the said States namely trade and commerce with respect to the sale of fluorescent ballasts or alternatively the sale of such ballasts of the type known as code ballasts in contravention of the said Pt II of the said Australian Industries Preservation Act and in particular s. 7 thereof. The Attorney-General has pursuant to s. 14 of the said Act given written consent to the institution of these proceedings. AND THE PLAINTIFF CLAIMS treble damages. In pursuance of s. 14 of the Australian Industries Preservation Act 1606-1950 I NIGEL BOWEN, M.P. the Attorney-General of the Commonwealth of Australia hereby consent to the institution of an action in the High Court of Australia by the within Writ of Summons."

The plaintiff delivered a statement of claim in which the plaintiff's claim is fully pleaded, but there is no allegation altering the nature of the claim endorsed on the writ. (at p70)

3. On 30th September 1971 the High Court made an order providing that "pursuant to O. 16 r. 4 Philips Electrical Pty. Ltd. be struck out as a party improperly joined and that the name of Philips Industries Pty. Ltd. be added as a party defendant in the cause". The writ and statement of claim were amended in accordance with this order. The amended writ and statement of claim purport to be sealed with the seal of the High Court Adelaide Registry (see High Court Procedure Act 1903-1950, s. 3 (4)). Before the amended writ and statement of claim were sealed the Attorney-General gave his consent pursuant to s. 14 to the joinder of Philips Industries Pty. Ltd. as a defendant in the action. The form in which the consent was given is endorsed on the amended writ. The endorsement is as follows: "In pursuance of s. 14 of the Australian Industries Preservation Act 1906-1950, I IVOR JOHN GREENWOOD, the Attorney-General of the Commonwealth of Australia, hereby consent to the institution of an action in the High Court of Australia by the within writ of summons against Philips Industries Pty. Ltd." Philips Industries Pty. Ltd. entered an appearance in the action on 24th April 1972 in the Adelaide Registry and filed a statement of defence for itself. (at p71)

4. The plaintiff demurred to a number of paragraphs in the statement of defence filed by Philips Industries and also filed a reply. Philips Industries demurred to a paragraph of the plaintiff's reply. The demurrers of the plaintiff were set down before the Full Court and copies of the amended statement of claim, the statement of defence filed by Philips Industries, the plaintiff's reply, and the demurrer of Philips Industries are before us. Paragraph 26 of the defence of Philips Industries is the subject of the plaintiff's first demurrer. This paragraph is pleaded to par. 25 of the amended statement of claim. The only amendment made to the original statement of claim is that the name of Philips Electrical Industries Pty. Ltd. is replaced by the name of Philips Industries Pty. Ltd. The latter is the defendant to which I have referred by the name, Philips Industries, and to which I shall continue to refer. Paragraph 25 of the amended statement of claim is in these terms: "The Attorney-General has pursuant to the s. 14 of the said Act, given written consent to the institution of these proceedings." The reason why the plaintiff pleads this paragraph is that the Attorney-General's consent is by reason of s. 14 (2) a statutory condition precedent to any action by a plaintiff in the High Court claiming treble damages in pursuance of s. 11 (1). Paragraph 26 of the statement of defence of Philips Industries is a challenge only to the satisfaction of this condition precedent by the consent given by the Attorney-General to the institution of the action against this defendant. The material matter alleged by par. 26 of the defence of Philips Industries is the following: "... this suit is a proceeding within the meaning of s. 14 (2) of the Australian Industries Preservation Act 1906 (as amended) and was instituted within the meaning of the said sub-section on 27th January 1967 and the Attorney-General did not consent in writing to the institution of proceedings against the defendant (Philips Industries Pty. Ltd.) before such institution of the said suit". The 2nd par. of the plaintiff's reply to par. 26 of the defence of Philips Industries is the subject of a demurrer on the part of this defendant. This paragraph consists of three sub-pars., (a), (b) and (c). Sub-paragraph (a) refers to the order made by this Court on 30th September 1971; sub-par. (b) says in substance that the consent of the Attorney-General endorsed on the writ after the order was made fulfils the condition precedent enacted by s. 14 (2), so far as the "institution of proceedings" against Philips Industries is concerned and further says that the consent was given on 24th January 1972; sub-par. (c) says that Philips Industries was added as a party to the action on 1st March 1972 when the seal of the High Court was affixed to the amended writ and statement of claim. The demurrer of Philips Industries is confined to sub-par. (b) of the 2nd par. of the plaintiff's reply. It is said in the demurrer that this sub-paragraph "does not answer the defence raised under par. 26 of the statement of defence to which it is pleaded in that the proceeding herein was instituted on 27th January 1967" and the said sub-par. (b) of the 2nd par. of the plaintiff's reply "does not allege that the Attorney-General of the Commonwealth of Australia gave his written consent to the institution of any proceedings against the defendant Philips Industries Pty. Ltd. on or before that date". (at p72)

5. The demurrer of the plaintiff to par. 26 of the defence of Philips Industries (the words of this paragraph are set out above) is put on the ground that "the allegations therein do not disclose a good defence to the plaintiff's claim". (at p72)

6. I have arrived at the conclusion that the demurrer of Philips Industries to sub-par. (b) of the 2nd par. of the plaintiff's reply ought to be overruled and the demurrer of the plaintiff to par. 26 of the defence filed by this defendant ought to be allowed. (at p72)

7. As regards the demurrer by Philips Industries: for the purposes of this demurrer, it is necessary to assume that the matters set out in the 2nd par. of the plaintiff's reply are admitted by Philips Industries. In the first place it is clear that on these admitted facts the Attorney-General gave his consent pursuant to s. 14 to the instituting of the present action against Philips Industries. In order to uphold the demurrer by this defendant it would be necessary to decide that after the commencement, with the consent of the Attorney-General, of an action under s. 11 (1) or of any proceeding to which s. 14 (2) is applicable, no party not joined as a defendant at the time of the commencement of such action or proceeding could be lawfully added, by reason of s. 14 (2), as a party to the cause, even though the Attorney-General purported to consent pursuant to that sub-section to the instituting of the action or proceeding against such proposed party. In my opinion, to decide in this way would attribute more to the consent of the Attorney-General than s. 14 (2) intends. The sub-section enacts only that a proceeding to which it applies shall not be instituted without the written consent of the Attorney-General. In my opinion the effect of the Attorney-General's consent intended by the sub-section is to make the plaintiff competent under s. 14 (2) to initiate the proceeding - in other words to set it on foot. Where the Attorney-General has given his consent pursuant to the sub-section such consent does not operate to restrict a right of the plaintiff to join a party as a defendant, if the Attorney-General has consented to his doing so. The joinder of a party in conformity with the procedure of the Court may be properly described as instituting the proceeding against such party. There is no question that the consent of the Attorney-General first endorsed on the writ by which the proceeding was commenced remains effective for the purposes of s. 14 (2). In my opinion, the Attorney-General properly applied this sub-section by giving his consent, when he did so, to instituting the present action against Philips Industries. I would for these reasons allow the plaintiff's demurrer to par. 26 of the statement of defence of Philips Industries and disallow the latter's demurrer to sub-par. (b) of the 2nd par. of the plaintiff's reply to the said par. 26. (at p73)

8. By par. 27 of its statement of defence Philips Industries pleaded the following: "In further answer to the whole of the statement of claim this is an action for penalties, damages or sums of money given to the plaintiff by a statute in force at the commencement of the Limitation of Actions Act of 1936 and the said action was not commenced against the defendant within two years next after the alleged cause of action accrued." The statute to which this paragraph refers is the Limitation of Actions Act, 1936 (S.A.). By s. 37 it is provided that all actions for slander and all actions for penalties damages or sums of money given to any party by any statute in force at or after the commencement of this Act shall be commenced within two years next after the cause of action accrued, but not after. The present action was commenced within the State of South Australia and is pending in the Adelaide Registry of the High Court. Section 37 is pleaded as a bar to the action on the footing that it is a law of South Australia which is applicable to this case by virtue of s. 79 of the Judiciary Act 1903-1966 (Cth). This section provides that the laws of each State, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State in all cases to which they are applicable. The plaintiff demurred to par. 27 of the statement of defence of Philips Industries on the ground that s. 37 does not apply to proceedings instituted under the Australian Industries Preservation Act 1906-1950 (Cth) and "as a consequence" the allegations contained in par. 27 of the said statement of defence "do not disclose a good defence to the plaintiff's claim". I think that the preliminary question is whether a proceeding under s. 11 (1) of the Australian Industries Preservation Act 1906-1950 (Cth) falls within the following words of s. 37 of the Limitation of Actions Act, 1936 (S.A.), namely, "all actions for penalties damages or sums of money given to any party by any statute". This Act is, according to its long title, "An Act to consolidate the Acts relating to the limitation of actions and other legal proceedings". One of the Acts of which this Act is a consolidation is the Limitation of Suits and Actions Act, 1866-1867 (S.A.). Section 37 of the Limitations of Actions Act, 1936 (S.A.) is in the same terms as s. 38 of the former Act. In Mort v. Bradley (1916) SALR 129 , in which a petitioner claimed damages against the co-respondent under the Matrimonial Causes Act, 1867 (S.A.), Gordon J. decided that the word "damages" in s. 38 of the Limitation of Suits and Actions Act, 1866-1867 (S.A.) means damages in the nature of penalties, and does not extend to damages against a co-respondent guilty of adultery. This was a case referred for argument before the Full Court of the Supreme Court of South Australia. Gordon J. was guided by the decision of the Court of Appeal in Thomson v. Lord Clanmorris (1900) 1 Ch 718 on s. 3 of the Civil Procedure Act, 1833 (3 &4 Will. 4, c. 42). This section provided, inter alia, that "all actions for penalties, damages or sums of money given to the party grieved by any statute" must be brought within two years after the cause of action. The Court of Appeal decided that the section refers to actions for penalties or damages or sums of money in the nature of penalties. That case was an action by a shareholder in a company under s. 3 of the Directors Liability Act, 1890 (53 &54 Vict. c. 64) to recover from the directors of the company compensation for loss or damage sustained by the shareholder by reason of untrue statements in the prospectus of the company on the faith of which he subscribed for the shares. The Court of Appeal decided that s. 3 did not apply to the action. The Court of Appeal affirmed the decision of the trial judge, who said in the course of his judgment (1899) 2 Ch 523, at p 528 , "although the words 'damages or sums of money given to the party grieved' occur in the statute, yet they are connected with a reference to actions for 'penalties,' and I think that this part of the section is aimed at actions for penalties, and means damages or sums of money in the nature of penalties, and not sums of money such as we are dealing with here, representing compensation for loss suffered by persons who have subscribed for shares on the faith of untrue statements in a prospectus". It was decided on appeal that the actions referred to in the part of s. 3 under consideration were penal actions. Section 37 contains no words that should lead to the conclusion that the actions for penalties, "damages or sums of money" to which the section refers are not all penal actions. I do not think it would be a correct construction of s. 37 to imply that what are called penalties or damages or sums of money have to be assessed with the view of compensating plaintiffs rather than punishing defendants. The only ground on which it is said that s. 11 (1) is within s. 37 of the Limitation of Actions Act, 1936 (S.A.) is that s. 11 (1) gives a right to sue for treble damages. This is not, in my opinion, within the class of action which was contemplated by s. 37. Section 11 (2) provides that no person shall, in any proceeding under this section, be excused from answering any question put either viva voce or by interrogatory, or from making any discovery of documents, on the ground that the answer or discovery may criminate or tend to criminate him; but his answer shall not be admissible in evidence against him in any criminal proceeding other than a prosecution for perjury. Section 11 (2) supports the view that a proceeding under s. 11 (1) is not a penal action. Whereas s. 11 (1) provides for the recovery by the person injured, of treble damages by a civil action, s. 13 (1) provides for the recovery of pecuniary penalties for offences against the same Part of the Act by way of civil action. There is, therefore, on the face of the Act, a distinction between "treble damages" and pecuniary penalty. In Redfern v. Dunlop Rubber Australia Ltd. (1964) 110 CLR 194 , the nature and purpose of the remedy of treble damages provided by s. 11 (1) was examined. Dixon C.J. said (1964) 110 CLR, at p 209 that "the theory" must be that a person injured by a contravention of the Act "might hesitate to sue if he had not the incentive of recovering three times his loss". Menzies J. (1964) 110 CLR, at p 223 expressed the view that treble damages are provided "for the compensation of those injured" by a contravention of the Act. Nothing is said in the case which could support the view that a proceeding under s. 11 (1) is a penal action. In my opinion, the present action is not within the class of actions contemplated by s. 37 of the Limitation of Actions Act, 1936 (S.A.). Section 37 may be described as a law relating to procedure. However, s. 79 of the Judiciary Act 1903-1966 (Cth) does not enable a defendant in the present case to plead that the present action is barred by s. 37 because on the true construction of s. 37 it is not applicable to a proceeding under s. 11 (1). I would accordingly uphold the plaintiff's demurrer to par. 27 of the statement of defence filed on behalf of Philips Industries. The plaintiff demurred also to par. 28 of the statement of defence of Philips Industries. This paragraph sets out in extenso what is alleged in the statement of claim in an action brought on 31st May 1962 by the present plaintiff against Philips Industries (then known as Philips Electrical Industries Pty. Ltd.) and in the subsequent pleadings, namely, statement of defence and reply. The paragraph concludes by alleging that the action was tried and that the Court awarded the plaintiff damages of 1,500 pounds. Paragraph 28 alleges that the action was brought to recover damages for breach of a contract dated 28th March 1961 to sell certain electrical ballasts by the defendant (Philips Electrical Industries Pty. Ltd.) to the present plaintiff. It is in effect alleged by par. 28 that an issue-estoppel arose from the adjudication of the Court awarding 1,500 pounds damages to the plaintiff. The estoppel is put by par. 28 in this way: "the plaintiff ought not to be admitted to say in par. 23 of the (amended) statement of claim and by the matters set out in the ... specific particulars of damage that it has been injured in its property by the defendants and each of them." The reason pleaded is that the plaintiff brought the previous action and was awarded damages as set out above. The estoppel is alleged to be raised in respect of each of the five defendants in this action. Paragraph 23 of the present amended statement of claim alleges that by reason of the acts alleged in previous paragraphs to have been done by the defendants, including Philips Industries, the plaintiff has been injured in its property by the defendants and each of such acts were alleged contraventions of s. 4 and s. 7 of the Australian Industries Preservation Act 1906-1950 (Cth). Each of these sections creates an offence. These sections define the defences that may be pleaded in proceedings under those sections. In my opinion the reason alleged in par. 28 of the defence of Philips Industries for claiming that the plaintiff is estopped from alleging it was injured in its property by reason of the acts mentioned in such paragraph is bad in substance and in law. I am also of opinion that the adjudication of the Court in the previous action awarding the plaintiff 1,500 pounds does not raise an estoppel against the assessment of an amount in excess of that sum. The plaintiff was not entitled in that action to sue to recover treble damages for breach of contract. The present action is brought to recover damages for injury caused by acts and things which are offences against the Australian Industries Preservation Act 1906-1950 (Cth). Compensation for injury, to which s. 11 (1) is applicable, was not assessable in the previous action. In my opinion it does not appear on the face of the pleadings in the present action that the plaintiff is suing for damages resulting merely from the breach of contract found in the previous action. Indeed, as it seems to me, the contrary is true. For the plaintiff makes allegations on which it sues for much larger damages, but gives credit in respect of 1,500 pounds. In my opinion, nothing is pleaded by par. 28 of the defence of Philips Industries in respect of any finding as to the quantum of damages at issue in the previous action which is a bar to the claim for treble damages in the present proceedings (cf. Crumbie v. Wallsend Local Board (1891) 1 QB 503, at p 508 ). (at p77)

9. I would allow the plaintiff's demurrer to par. 26 of the statement of defence of the defendant Philips Industries and disallow this defendant's demurrer to par. 2 (b) of the plaintiff's reply; and would allow the plaintiff's demurrer to pars. 27 and 28 respectively of the said defendant's statement of defence. (at p77)

MENZIES J. This action was commenced on 27th January 1967, against a number of defendants, including Philips Electrical Pty. Ltd. A number of interlocutory steps were taken. On 26th June 1969, the solicitors for Philips Electrical Pty. Ltd. then saw fit to inform the solicitors for the plaintiff of what had been known earlier, i.e. that it was not Philips Electrical Pty. Ltd. that was involved in the matters in issue, but a related company, Philips Industries Pty. Ltd. Two applications were then made. The plaintiff sought leave to substitute Philips Industries Pty. Ltd. for Philips Electrical Pty. Ltd. as a defendant, and Philips Electrical Pty. Ltd. applied to be dismissed from the action. The applications were heard by Walsh J. who ordered that leave to amend the writ and statement of claim be given by striking out the word "Electrical" in the name of the fourth-named defendant and inserting in its place the word "Industries". Appeals from this order were allowed. The Full Court ordered that Philips Electrical Pty. Ltd. be struck out as a party improperly joined and that Philips Industries Pty. Ltd. be added as a defendant. Philips Industries Pty. Ltd. delivered a defence to which the plaintiff replied and demurred. Leave was granted during the hearing by this Court for the plaintiff to amend its reply and for Philips Industries Pty. Ltd. to demur to it. (at p77)

2. The matters which have been raised by the demurrers now to be decided (i.e. the requirement of the written consent of the Attorney-General to proceedings against Philips Industries Pty. Ltd., and whether any cause of action against that company had already been statute barred) were not adverted to by the Full Court upon these earlier proceedings. I have to consider, therefore, whether the order of the Full Court that Philips Industries Pty. Ltd. be added as a defendant and the joinder pursuant thereto (see High Court Rules O. 16 r. 15) precludes the objections now made by the defendant, Philips Industries Pty. Ltd., to the action proceeding with it as a party thereto. The High Court Rules provide that when a new defendant is added the "proceedings shall be continued as if the new defendant had originally been made a defendant". Order 16 r. 4 (3) provides, however, that proceedings against an added party who has been served "shall be deemed to have begun only on the service of the writ". It is clear, therefore, that the addition of the defendant does not have the effect of making that defendant a party as from the date of the commencement of the action. Having regard to the facts stated, the rules referred to, and to general principles in relation to the effect of time limitations upon actions, the conclusion which I have found myself compelled to reach is that the earlier order and the proceedings pursuant thereto do not preclude the defendant from now relying upon s. 37 of the Limitations of Actions Act 1936 (S.A.), and s. 79 of the Judiciary Act to constitute a defence to the action. (at p78)

3. The first matter argued was whether the plaintiff's action against Philips Industries Pty. Ltd. fails because, contrary to the provisions of s. 14 of the Australian Industries Preservation Act 1906-1950 (Cth), it was instituted against the defendant in question without the prior consent in writing of the Attorney-General. (at p78)

4. The action against the defendants other than Philips Industries Pty. Ltd. was instituted with the consent of the Attorney-General on 27th January 1967. Subsequent to the order of the Full Court already referred to, the defendant, Philips Industries Pty. Ltd., was added as a party. It seems that a new, unsealed writ with an amended writ showing Philips Industries Pty. Ltd. as a party was submitted to the Attorney-General on 24th January 1972, who consented to the institution of the action in accordance with the writ. Then there was an unusual step which was described as the renewal of the writ on amendment pursuant to the order of the Full Court. This took place on 1st March 1972. The defendant, Philips Industries Pty. Ltd., was subsequently served with this amended writ with a statement of claim endorsed thereon alleging that "The Attorney-General has pursuant to s. 14 of the said Act given written consent to the institution of these proceedings." This allegation was denied. The plaintiff replied alleging what had happened as already set out and the defendant, Philips Industries Pty. Ltd., demurred to submit that the consent to the institution of the proceedings against it had not been given, notwithstanding that on 24th January 1972, the Attorney-General had purported to consent as aforesaid. What I have related shows that before the action was instituted, the Attorney-General consented and before the proceedings were amended to join Philips Industries Pty. Ltd., the Attorney-General consented to an action against that defendant. Because of the unusual course followed it may not be certain just when Philips Industries Pty. Ltd. was added as a defendant in accordance with O. 16 rr. 4 and 15 of the Rules of the High Court but it would seem that, in accordance with r. 4, proceedings against it must be deemed to have begun upon the date of service of the amended writ. In all these circumstances the defendant has not satisfied me that the action against the present parties was instituted without the consent in writing of the Attorney-General. The defendant's demurrer to the reply therefore fails. (at p79)

5. Next the defendant, Philips Industries Pty. Ltd., contended that the action against it was out of time. The action which was originally instituted was commenced in the South Australia Registry of the Court. The cause of action occurred prior to 1967. Philips Industries Pty. Ltd. did not become a party until after the service of the amended writ in 1972. There was, therefore, more than two years between the accrual of the cause of action and the commencement of the proceedings. The defendant accordingly contends that the action against it was barred by the operation of s. 37 of the Limitations of Actions Act or by the joint operation of that section and s. 79 of the Judiciary Act. The South Australian section is as follows:

"All actions for slander and all actions for penalties damages or sums of money given to any party by any statute in force at or after the commencement of this Act shall be commenced within two years next after the cause of action accrued, but not after."

This section cannot of its own force apply to proceedings in the High Court. There are, therefore, two matters to be decided in relation to it: namely, first, whether an action for damages given by a Commonwealth statute, if commenced in the Supreme Court of South Australia, would fall within its terms; and secondly, if so, whether s. 79 of the Judiciary Act makes the section applicable to this action commenced in this Court in South Australia. (at p79)

6. The plaintiff's claim is for treble damages pursuant to s. 11 of the Australian Industries Preservation Act. It seems to me that, despite some authorities which support a reading down of the words "damages or sums of money", the action here is one for damages given to the plaintiff by statute. The action for treble damages is entirely the creature of the statute and it cannot be described in language which would take it outside the section. Moreover, it is not insignificant that the action which the section gives is for treble damages. The further question of construction then is whether the word "statute" in s. 37 should be construed so as not to cover a Commonwealth statute. To my mind it is not so restricted. A statute of the Commonwealth by virtue of the Commonwealth Constitution is just as truly a statute for the purposes of the law of South Australia as is a statute of the Parliament of the State. It is a statute in force in South Australia. I have found no satisfactory reason for limiting the meaning of the words in the section "any statute in force" to statutes of the State Parliament in force in the State. Of course, the provisions of the section would yield to the provisions of Commonwealth law in the event of inconsistencies between it and the Commonwealth law, but that is another matter which has no bearing upon the problem of the construction of a State law applying of its own force to proceedings in State courts only. Therefore, I regard s. 37 as a provision expressed in language wide enough to apply to laws of the Commonwealth and if the present action could have been and had been commenced in the Supreme Court of South Australia, s. 37 would have applied to it. (at p80)

7. Whether s. 37 applies to the commencement in South Australia of the action in the High Court by virtue of s. 79 of the Judiciary Act is, I think, like the problem which I touched upon in Pedersen v. Young (1964) 110 CLR 162, at pp 167, 168 , a difficult question. It is, however, a question of the application of s. 79 not the construction of s. 37 of the State Act. My decision here upon the application of s. 79 is in accordance with my observations in Pedersen's Case (1964) 110 CLR 162, at pp 167, 168 . Section 37, which is a law of the State of South Australia relating to procedure, is binding on this Court in South Australia in any case to which it is applicable. The cases to which it is applicable are not cases where it applies of its own force because no State law can of its own force apply to proceedings in the High Court. The words "in all cases to which they are applicable" in s. 79 must mean, therefore, cases in which this Court is exercising federal jurisdiction in the State and to which the State law would in terms apply were it not that the proceedings are in the High Court. I have had the advantage of reading the judgment of Mason J. and I agree with what he has written in fuller explication of the function of s. 79 of the Judiciary Act. This action, for the reasons stated, does fall within the terms of s. 37, and s. 79 accordingly makes it applicable to the action in this Court. I consider, therefore, that the action instituted by the plaintiff against Philips Industries Pty. Ltd. was out of time and that the plaintiff's demurrer to par. 27 of the defence should be overruled. (at p81)

8. I agree with Mason J. for the reasons which he gives that the plaintiff's demurrer to par. 28 of the defence should be upheld. (at p81)

9. In my judgment - (1) the plaintiff's demurrer to par. 27 of the defence should be overruled; (2) the plaintiff's demurrer to par. 28 of the defence should be upheld;
(3) the defendant's demurrer to par. 2 (b) of the plaintiff's reply should be overruled. (at p81)

WALSH J. I have had the advantage of reading the reasons for judgment prepared by Mason J. in which an account is given of the pleadings in the action and of the questions that have been raised by the demurrers which are now before the Court. (at p81)

2. I agree with his Honour's conclusions that the demurrer of the defendant to par. 2 (b) of the plaintiff's amended reply should be overruled and that the plaintiff's demurrer to par. 28 of the defence should be upheld. I do not wish to add anything to the reasons which Mason J. gives for those conclusions. (at p81)

3. There remains for consideration the demurrer of the plaintiff to par. 27 of the defence. The question is whether or not s. 37 of the Limitation of Actions Act, 1936 (S.A.) applies to this action. If it does apply, I am of opinion that this must be because of the operation of s. 79 of the Judiciary Act (Cth), as amended. I am of opinion that s. 80 of that Act does not make that provision of the South Australian Act, which limits the time within which an action may be commenced, applicable to an action brought in accordance with s. 11 of the Australian Industries Preservation Act 1906-1950 (Cth). (at p81)

4. Part II of the latter Act has the heading "Repression of Monopolies". It consists in large measure of provisions prohibiting certain dealings and practices operating in restraint of trade and to the detriment of fair competition and declaring those who engage in them to be guilty of penal offences. But it includes s. 11 which, by sub-s. (1), gives to a person injured in his person or property by any other person by reason of any act or thing done by that other person in contravention of Pt II or by reason of any act or thing done in contravention of any injunction granted under that Part, a right to sue for and recover treble damages for the injury. But that right to sue for and recover treble damages is limited in a way which is, in my opinion, of great importance in the consideration of the question whether s. 37 of the State Act applies. The right given by s. 11 is not conferred by creating a statutory cause of action enforceable in any court possessing the appropriate general jurisdiction for the hearing of such an action. The right is limited to a right to sue in the High Court before a Justice without a jury. (at p82)

5. The nature of the remedy thus given was considered in Redfern v. Dunlop Rubber Australia Ltd. (1964) 110 CLR 194 . Dixon C.J., after pointing out that in part the section entitles an injured person to recover compensation for the injury, said (1964) 110 CLR, at p 209 :

"But the remedy given, while it may be said to include reparation, goes far beyond reparation; the remedy gives three times the amount of reparation and therefore it cannot be supported at all events in whole as a remedy compensating for injury done by the defendant's violation of federal law. The treble damages can be supported only as a means of enforcing or inducing compliance with federal law." (at p82)

6. With the foregoing considerations in mind I turn to consider the question of the applicability in this case of s. 37 of the Limitation of Actions Act, 1936 (S.A.). In my opinion, that question is not necessarily answered merely by considering whether or not as a matter of construction the words "any statute" are capable of including an Act passed by the Parliament of the Commonwealth. The forerunner of the provision was enacted long before federation and so could not have been intended to refer to a Commonwealth Act. But it may be that, as enacted in 1936, the provision could extend to such an Act. But assuming that to be so, in my opinion its meaning would even then extend no further than providing that any action of the described kind given to a party by any statute (including a Commonwealth statute), commenced in a court of the State of South Australia, should be commenced within two years after the cause of action arose. Accordingly, the only actions for penalties etc. given by a Commonwealth Act which could fall within its meaning (on the assumption now being made) would be, in my opinion, actions capable of being brought in a court of the State of South Australia. It would not include an action given by a Commonwealth Act which could never be commenced in any court of that State. To an action which was incapable of ever being brought in a South Australian court the provision could not have been intended, in my opinion, to extend. (at p82)

7. When s. 79 applies it "does not purport to do more than pick up State laws with their meaning unchanged": see Pedersen v. Young (1964) 110 CLR 162, at p 165 , per Kitto J. The extent of the operation of State laws governed by s. 79 is, of course, changed. Its purpose is to extend their operation so that they apply in courts exercising federal jurisdiction in that State. If a State law imposes a time limit for the commencement of actions of a kind which may be heard by the court of that State, and if s. 79 is held by a court exercising federal jurisdiction in that State to apply, then the law of the State operates in the same way in whichever court the action comes on to be heard and whether the court hearing it is exercising federal or State jurisdiction. But in accordance with the terms of s. 79 itself, State laws are binding on the court exercising federal jurisdiction "in all cases to which they are applicable" and it is necessary first to determine whether a State law upon which reliance is placed is applicable. (at p83)

8. A law limiting the time within which an action may be commenced is regarded as a law relating to procedure. But it may have a far greater importance than other procedural laws and may affect more directly the substantive rights of the parties. The views that I am about to state should not be taken as necessarily applying to all procedural laws. They are concerned only with laws which limit the time for bringing an action. Such a law would ordinarily be construed, in my opinion, as intended to apply only to actions commenced in a court established by the State which enacts the law. Many laws of this kind relate to the commencement of actions which may be maintained by virtue of the general law of a State, whether derived from the common law or from the statutes of that State and in the hearing of which a court of that State exercises its ordinary jurisdiction as a State court. In relation to such an action, it may happen in a particular case that it is instituted and heard in the High Court in its original jurisdiction, although it might have been instituted and heard in a State court exercising its ordinary jurisdiction. An example is provided by Cohen v. Cohen (1929) 42 CLR 91 , in which the action might have been brought in a State court but was commenced in the High Court, the parties being residents of different States. Dixon J. was of opinion that the relevant statutes of limitation in force in the State where the action was heard would be applicable: see Cohen v. Cohen (1929) 42 CLR, at p 99 . (at p83)

9. A statute of limitations which does not relate to actions founded on the general law, but to actions which are the creatures of particular statutes conferring the right to bring them, gives rise, in my opinion, to a problem concerning the construction that should be placed upon it which is of a special character. If such a statute of limitations is expressed in general words wide enough to include actions founded on Acts of the Commonwealth Parliament, as well as Acts of the State, it may be argued, I think, that it ought to be construed as not intended to refer to actions based on Commonwealth Acts. Such actions could be instituted in the absence of any express contrary provision, in a court of a State, but that court in hearing the action would be exercising federal jurisdiction, because it would be dealing with a claim based directly on a law of the Commonwealth. Therefore, in my opinion, such a statute of limitations, as is here being considered, could never operate, in relation to an action based on a Commonwealth Act, directly and by its own force as a law of the State. This might be thought to be a reason for reading it as not being intended to apply to such an action. It might be considered that the State legislature would not intend to bring within the scope of its law a class of action which was by its nature incapable of being heard by a court of the State in the course of its exercise of its ordinary (non-federal) jurisdiction. On the other hand, the view might be taken that the law was intended to apply in actions commenced in and heard by a court of the State, whether in the exercise of federal or of non-federal jurisdiction. (at p84)

10. But, in my opinion, it is not necessary here to decide which of the views just suggested is correct. This is not a case in which a Commonwealth Act has given a right of action of a described kind and has left that remedy to be enforced in any of the courts of the States which have been invested with federal jurisdiction by and subject to the provisions of the Judiciary Act, s. 39. It has confined to the High Court the power to give effect to the remedy. The consequence is that an action under s. 11 of the Australian Industries Preservation Act is one which is not capable of being brought in a court of the State of South Australia. As I have already stated, I am of opinion that as a matter of construction, s. 37 of the Limitation of Actions Act, 1936 (S.A.) should be held not to include in the actions to which it relates an action which could never be brought in any court of that State. (at p84)

11. For the reasons stated, I am of opinion that s. 37 should be held to have no application to this action in which it has been pleaded as a defence. (at p84)

12. I may add that, whatever construction of s. 37 should be adopted, I should find difficulty in holding that it operates in this case. The remedy provided by s. 11 is given, without any express limitation of time, as a means for securing the enforcement of the substantive provisions of the Commonwealth Act. It seems unlikely that it was intended by that Act that the efficacy of this remedy, made enforceable only in the High Court, should vary from State to State, according to local laws governing limitations of time for commencing an action. (at p85)

13. I am of opinion that the plaintiff's demurrers to pars 27 and 28 of the defence should be upheld and that the defendant's demurrer to par. 2 (b) of the plaintiff's reply should be overruled. (at p85)

GIBBS J. The demurrer and cross-demurrer in this case raise three questions. The first, raised by the plaintiff's demurrer to par. 26 of the defence of the fourth defendant (to which I shall henceforth refer simply as "the defendant") and by the defendant's cross-demurrer to par. 2 (b) of the reply, is whether the proceedings against the defendant had been instituted without the written consent of the Attorney-General, contrary to s. 14 (2) of the Australian Industries Preservation Act 1906-1950 (Cth). I incline to the view that the alleged want of consent should not have been raised as a defence; the appropriate course would, I think, have been for the defendant to apply for a dismissal of the proceedings. It is unnecessary to decide whether, once the defendant had raised this matter by way of defence, it was appropriate for the plaintiff to demur in reply, or for the defendant to raise a cross-demurrer to the reply, for the parties wished the point to be disposed of on the demurrers and it is convenient so to dispose of it. (at p85)

2. The facts that emerge from the pleadings are that the action was instituted on 27th January 1967 with the prior written consent of the Attorney-General, that on 30th September 1971 the Court ordered that the defendant be added as a party and that the Attorney-General on 24th January 1972 consented to the institution of the action against the defendant. By par. 2 (c) of the reply it is alleged that "the defendant was added as a party to this cause on 1st March 1972 when the seal of this Honourable Court was affixed to the amended writ and statement of claim". The affixing of the seal to the amended writ does not in law determine the time at which the proceeding was instituted as against the defendant who was added as a party. Order 16 r. 4 (3) of the High Court Rules provides that a party whose name is added as a defendant shall be served with the amended writ or other originating process or notice thereof, as the case may be, in accordance with O. 16 or in such manner as is prescribed by a special order, "and the proceedings as against that party shall be deemed to have begun only on the service of the writ or other originating process or notice". It may have been assumed by those who drew the reply that the High Court Rules have a similar effect to the English Rules under which, as it was held in Seabridge v. H. Cox &Sons (Plant Hire) Ltd. (1968) 2 QB 46 , an amended writ takes effect against an added defendant at the moment when the amendment is filed and the amended writ is stamped. However, the English Rules there considered differ materially from the High Court Rules and it was pointed out in that case (1968) 2 QB, at p 51 that if the former English rule, O. 16 r. 11, had been in force, the proceedings against the added defendant would have begun only on the service of the amended writ. The concluding sentence of O. 16 r. 11 was in words to the same effect as those of O. 16 r. 4 (3). It is clear that the proceedings against the defendant were deemed to have begun only on the service of the amended writ on him. It is not alleged in the pleadings when the amended writ was served on the defendant, or that it was served before the Attorney-General gave his consent on 24th January 1972, but it was conceded by counsel for the defendant that the Court could safely infer that the amended writ was not served until after 1st March. The matter must therefore be considered on the footing that the consent of the Attorney-General to the institution of proceedings against the defendant was given before the proceedings were instituted against the defendant. However, it was contended on behalf of the defendant that this was not enough to satisfy s. 14 (2); it was said that s. 14 (2) required that the consent be given before the action was commenced against any defendant, and that the consent then given should extend to the institution of the action against the defendant who was afterwards added as a party. In effect the defendant's submission was that it would never be permissible to join a defendant to an action which required the written consent of the Attorney-General under s. 14 (2), unless the consent given by the Attorney-General before the action was commenced allowed the proceedings to be instituted against that defendant. This would mean that a defendant could never be added unless he had been mentioned in the original consent but had for some reason not been named in the writ when it was issued. In my judgment this is not the effect of s. 14 (2). All that the section requires in terms is that a proceeding under Pt II of the Australian Industries Preservation Act (other than a proceeding for an indictable offence or for the recovery of penalties) shall not be instituted without the written consent of the Attorney-General. A defendant who seeks dismissal of a proceeding on the ground that it was instituted without the consent which this section requires must show that at the time when the proceeding was instituted against him the Attorney-General had not given the requisite consent. That has not been shown by the defendant in the present case. The consent of the Attorney-General was given before the amended writ was served and therefore before the proceeding commenced against the defendant. It follows that the plaintiff's demurrer to par. 26 should be allowed and the defendant's cross-demurrer should be overruled. (at p87)

3. The second question, raised by par. 27 of the defence, is whether the action is barred because it was not commenced against the defendant within two years after the alleged cause of action accrued. The action is brought to recover treble damages under s. 11 of the Australian Industries Preservation Act. The defendant's contention was that it is barred by the lapse of time, by reason of the provisions of s. 37 of the Limitation of Actions Act 1936 (S.A.) which, it is said, are applicable by virtue of s. 79 of the Judiciary Act. (at p87)

4. Section 37 of the Limitation of Actions Act provides as follows:

"All actions for slander and all actions for penalties damages or sums of money given to any party by any statute in force at or after the commencement of this Act shall be commenced within two years next after the cause of action accrued, but not after."

It was conceded by the defendant that this section cannot of its own force apply to bar the present action. That concession was, in my opinion, correct. The legislature of South Australia has no constitutional power to prescribe a limit of time within which proceedings may be brought in this Court or in any other federal court, and a statute of limitations enacted by that legislature must be construed as applicable only to proceedings in courts subject to the legislative power of South Australia: Pedersen v. Young (1964) 110 CLR 162, at pp 165, 167 . However, the question arises whether s. 37 is made applicable in the present case by s. 79 of the Judiciary Act 1903-1969 (Cth), which provides as follows:

"The laws of each State, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all courts exercising federal jurisdiction in that State in all cases to which they are applicable." (at p87)

5. It may, I think, safely be taken as settled that this Court, at least when exercising original jurisdiction, is a court exercising federal jurisdiction within the meaning of s. 79: see Pedersen v. Young (1964) 110 CLR, at pp 165, 167-168 , and cases there cited. It is also settled that s. 79 does not give a new and more extensive meaning to State laws which it renders binding on a court exercising federal jurisdiction; it applies those laws with their meaning unchanged: Commissioner of Stamp Duties (N.S.W.) v. Owens (No. 2) (1953) 88 CLR 168 ; Pedersen v. Young (1964) 110 CLR, at pp 165-166 ; Re Young's Horsham Garage Pty. Ltd. (1969) VR 977, at p 979 . To that last proposition it is, however, necessary to add a qualification. Section 79 may render applicable in a court exercising federal jurisdiction a State statute which either by its express provisions or upon its proper construction is limited in its application to the courts of the State: see per Menzies J. in Pedersen v. Young (1964) 110 CLR, at pp 167-168 . If the laws of a State could not apply if, upon their true construction as State Acts, they related only to the courts of the State, it would seem impossible ever to find a State law relating to procedure, evidence or the competency of witnesses that could be rendered binding on courts exercising federal jurisdiction, because most, if not all, of such laws, upon their proper construction, would be intended to apply in courts exercising jurisdiction under State law. In spite of the doubts that have been expressed, I consider that s. 79 would require this Court, sitting in original jurisdiction in a State, to apply a State statute of limitations (Cohen v. Cohen (1929) 42 CLR 91, at p 99 ; Pedersen v. Young (1964) 110 CLR 162 ; cf. William Crosby &Co. Pty. Ltd. v. The Commonwealth (1963) 109 CLR 490, at p 494 ) or a State Act giving a court power to stay proceedings on the ground that the parties had agreed to submit the matter to arbitration (Huddard Parker Ltd. v. The Ship "Mill Hill" (1950) 81 CLR 502, at pp 507-508 ; cf. Lady Carrington Steamship Co. Ltd. v. The Commonwealth (1921) 29 CLR 596 ) or a State Act regulating procedure (Bainbridge-Hawker v. Minister of State for Trade and Customs (1958) 99 CLR 521, at pp 536-537 ), notwithstanding that those Acts, on their proper construction, were intended to apply only to the courts of the State, but provided that they were otherwise appropriate to the circumstances of the case. (at p88)

6. I therefore consider that the provisions of s. 37 will not be inapplicable simply because on their proper construction they were intended to be applied only in the courts of South Australia. The question, however, is whether the words of s. 37, construed as part of a State statute with its meaning unchanged, would refer to an action for treble damages under s. 11 of the Australian Industries Preservation Act. I am prepared to accept that such an action would be one "for penalties damages or sums of money given to any party by any statute in force", if the word "statute" included any Commonwealth statute having the force of law in South Australia. However, in my opinion the legislature of South Australia would not have power to legislate to provide a limitation period in respect of an action that was given by a Commonwealth statute and that could be brought only in the High Court. We are not concerned in the present case with the application in a State court of a State statute of limitations to an action brought under a Commonwealth statute - a question discussed in Federated Sawmill, Timberyard and General Woodworkers' Employes' Association (Adelaide Branch) v. Alexander (1912) 15 CLR 308 . If a State statute of limitations, enacted in general terms, would on its proper construction apply to an action brought under a Commonwealth statute in a State court, it would be applied by force of s. 79 if the action were brought in a court exercising federal jurisdiction. However, it would seem to me to be quite outside the competence of the State Parliament to impose a limitation period on an action which neither arose under the law of the State (including in that expression the common law) nor was enforceable in any court of the State. If the right owed nothing to State law, and the remedy could only be pursued in a federal court, the State Parliament could not legislate either to extinguish the right or bar the remedy. If the words "actions ... given ... by any statute" in s. 37 included an action given by a Commonwealth statute which could be brought only in the High Court, the section would exceed the legislative power of the State. The section must be given a construction that would avoid that consequence. In short, s. 37, standing alone, does not refer to actions brought under s. 11 of the Australian Industries Preservation Act and when applied by virtue of s. 79 of the Judiciary Act it does not get an extended meaning so as to include such actions. On this difficult question I have therefore come to the conclusion that the plaintiff's demurrer should be allowed. (at p89)

7. The third question, raised by the demurrer to par. 28 of the defence, is whether the judgment given in an action brought by the plaintiff against the defendant (under a former name) for breach of contract gives rise to an issue estoppel. On that question I am in agreement with the reasons given by my brother Mason, which I have had the advantage of reading, and do not desire to add anything to them. (at p89)

8. In my opinion, therefore, the plaintiff's demurrers to pars. 26, 27 and 28 of the defence should be allowed and the defendant's demurrer to par. 2 (b) of the plaintiff's reply should be overruled. (at p90)

MASON J. By a writ which was issued out of the South Australian Registry of this Court on 27th January 1967 the plaintiff commenced an action for treble damages against the defendants in the suit, other than the defendant Philips Industries Pty. Ltd., under s. 11 of the Australian Industries Preservation Act 1906-1950. There was endorsed on the writ when issued the consent of the then Attorney-General for the Commonwealth to the institution of the suit. The endorsement was in the following terms:

"In pursuance of s. 14 of the Australian Industries Preservation Act 1906-1950 I NIGEL BOWEN, M.P. the Attorney-General of the Commonwealth of Australia hereby consent to the institution of an action in the High Court of Australia by the within writ of summons."

By an order dated 30th September 1971 this Court ordered that the defendant Philips Industries Pty. Ltd. be added as a party to the suit. (at p90)

2. What then occurred is not entirely clear. But on 24th January 1972 the consent of the then Attorney-General for the Commonwealth was endorsed on the writ as follows:

"In pursuance of s. 14 of the Australian Industries Preservation Act 1906-1950 I IVOR JOHN GREENWOOD, the Attorney-General of the Commonwealth of Australia, hereby consent to the institution of an action in the High Court of Australia by the within writ of summons against Philips Industries Pty. Ltd."

Pursuant to the order made on 30th September 1971 the defendant Philips Industries Pty. Ltd. was added as a party. (at p90)

3. The plaintiff has now demurred to three paragraphs in the defence of the new defendant. To appreciate the questions which thereby arise it is necessary that I should refer to the statement of claim and the cause of action which it pleads. (at p90)

4. The plaintiff alleges that at all material times it carried on the business of assembling and selling fluorescent lights and that an essential component in these lights was a ballast. The plaintiff further alleges that the defendants and each of them were at all material times engaged in the business of manufacturing or importing, and selling fluorescent ballasts across State borders in the Commonwealth of Australia and that they were in consequence at all material times engaged in trade and commerce among the States. (at p90)

5. The plaintiff then alleges that on or about 17th November 1961 the defendants and each of them entered into a contract among themselves and became members of and engaged in and thereafter continued to be members of and engage in a combination among themselves in respect of the sale and delivery of fluorescent ballasts. The plaintiff claims that the contract provided, or the objects of the combination were, that the defendants should fix the price at which ballasts, or alternatively code ballasts (being ballasts which complied with the requirements of the Standards Association of Australia), should be sold in Australia and that they and each of them should thereafter refuse to manufacture or sell sub code ballasts and that they should from 20th November 1961 refuse to sell ballasts, or alternatively code ballasts, other than at the price fixed by them. The plaintiff then claims that the contract and combination was a contract and combination in relation to trade and commerce among the State and that in pursuance of that contract and combination the defendants and each of them were unwilling to sell or deliver, and refused to sell or deliver, ballasts, or alternatively code ballasts, to the plaintiff at any price other than the price so fixed by them. (at p91)

6. The plaintiff claims that the contract was made and the combination engaged in in restraint of trade and commerce and that, in the alternative, the contract was made and the combination engaged in with intent to restrain trade and commerce within the meaning of s. 4 of the Australian Industries Preservation Act. (at p91)

7. In the alternative the plaintiff claims that by making the contract and by engaging in the combination the defendants and each of them were monopolizing, or alternatively attempting to monopolize, and combining and conspiring with each other to monopolize part of trade and commerce among the States. (at p91)

8. In the result, the plaintiff claims that the entry into the contract and combination and the acts done in pursuance thereof constituted contraventions of ss. 4 and 7 of the Act and that by reason thereof the plaintiff was injured in its property by the defendants and each of them, and the plaintiff claims treble damages in the sum of $76,361.25. (at p91)

9. A defence was entered by Philips Industries Pty. Ltd. By par. 26 the defendant pleaded that the suit was a suit within the meaning of s. 14 (2) of the Act, that it was instituted within the meaning of that sub-section on 27th January 1967 and that the Attorney-General did not consent in writing to the institution of proceedings against the defendant before such institution of the suit. (at p91)

10. The plaintiff demurred to the paragraph on the ground that it did not disclose a good defence to the plaintiff's cause of action. However, in the course of argument the plaintiff sought leave to amend its reply so that the question could be raised more appropriately by the defendant by way of demurrer to the plaintiff's reply. The Court granted leave to the parties to enable this course to be followed and I shall deal with this question after considering the demurrers to pars 27 and 28 of the defence. (at p92)

11. By par. 27 the defendant pleaded by way of answer to the whole of the statement of claim that the action was an action for penalties, damages or sums of money given to the plaintiff by a statute in force at the commencement of the Limitation of Actions Act, 1936 of the State of South Australia and that the said action was not commenced against the defendant within two years next after the alleged cause of action accrued. The defence was based upon the provisions of s. 37 of the Limitation of Actions Act, 1936 (S.A.), which provides as follows:

"All actions for slander and all actions for penalties damages or sums of money given to any party by any statute in force at or after the commencement of this Act shall be commenced within two years next after the cause of action accrued, but not after."

The plaintiff demurred on the ground that the provisions of the section do not apply to proceedings instituted under the Australian Industries Preservation Act and that, accordingly, the paragraph did not disclose a defence to the cause of action. The plaintiff submitted that on its true construction the provision did not apply to causes of action created by a law of the Commonwealth and enforceable by action in the High Court of Australia. The plaintiff further submitted that a proceeding under s. 11 of the Australian Industries Preservation Act is not an action for "penalties damages or sums of money" within the meaning of s. 37 of the South Australian Act. (at p92)

12. It was conceded for the defendant that s. 37 of the State Act did not and could not apply directly to an action under s. 11 of the Commonwealth Act. The defendant submitted, however, that the provisions of s. 37 applied to an action under s. 11 because they were made applicable by s. 79 of the Judiciary Act 1903-1966, a submission which was contested by counsel for the plaintiff. Before the meaning and application of s. 79 can be examined, it is necessary to state precisely why it is that s. 37 does not apply of its own force to the proceedings. (at p92)

13. The section of the South Australian Act is a provision which bars the remedy, not the right. It is therefore a rule of procedure only (see Harris v. Quine (1869) LR 4 QB 653 ; Alliance Bank of Simla v. Carey (1880) 5 CPD 429 ). As such it is a rule which applies to actions brought in the courts of South Australia and not elsewhere. In Pedersen v. Young (1964) 110 CLR 162, at p 167 , Menzies J., speaking with reference to a statutory provision expressed in the usual form of a statute of limitation, said:

"A statute in this form, notwithstanding any generality of expression, must of necessity be construed as applying to the commencement of actions in courts subject to the power of the legislature enacting it and to no other courts." (at p93)

14. For the plaintiff it was submitted that the reference to "statute" in s. 37 should be read as a reference to Acts of the Parliament of South Australia only, and that it had no application to actions based on Imperial or Commonwealth statutes or the statutes of other States. In my opinion this submission misconceived the true character of the provision. (at p93)

15. Had I not been persuaded by the very character of the provision to the conclusion that it applied to actions in South Australian courts only, I should in any event have arrived at the same conclusion by construing the section in the light of considerations of constitutional validity. I am unable to perceive any basis on which the Parliament of South Australia could validly prescribe a rule of procedure to be applied directly in actions in the High Court. That topic, so it seems to me, is one which falls within the legislative power of the Commonwealth Parliament (see Pedersen v. Young per Menzies J. (1964) 110 CLR 162, at p 167 ). (at p93)

16. I turn now to the provisions of s. 79 of the Judiciary Act. It was once thought that the exercise of original jurisdiction by the High Court was not an exercise of federal jurisdiction (see Lady Carrington Steamship Co. Ltd. v. The Commonwealth per Higgins J. (1921) 29 CLR 596, at pp 599, 601 ). But the weight of authority is now strongly against this view (see Alexander's Case per Isaacs J. (1912) 15 CLR 308, at p 321 ; Cohen v. Cohen per Dixon J. (1929) 42 CLR 91, at p 99 ; Musgrave v. The Commonwealth (1937) 57 CLR 514 ; Bainbridge-Hawker v. Minister of State for Trade and Customs (1958) 99 CLR 521, at p 536 ; Deputy Commissioner of Taxation v. Brown per Dixon C.J. (1958) 100 CLR 32, at p 39 ). (at p93)

17. In Commissioner of Stamp Duties (N.S.W.) v. Owens (No. 2) (1953) 88 CLR 168 , the Court rejected the suggestion that s. 79 of the Judiciary Act picked up s. 6 of the Suitors' Fund Act, 1951 (N.S.W.) and authorized the High Court to grant an indemnity certificate. The Court said (1953) 88 CLR, at p 170 :

"The purpose of that section" (that is, s. 79) "is to adopt the law of the State where federal jurisdiction is exercised as the law by which, except as the Constitution or federal law may otherwise provide, the rights of the parties to the lis are to be ascertained and matters of procedure are to be regulated."

Finally, in Pedersen v. Young (1964) 110 CLR 162 , all the members of the Court with the exception of Taylor J. accepted that the exercise of original jurisdiction by the High Court was an exercise of federal jurisdiction which brought into operation the provisions of s. 79. (at p94)

18. There nevertheless remains a difficulty in applying in accordance with the requirements of that section State laws in the exercise of federal jurisdiction by the High Court, a difficulty which has no counterpart in the application of State laws in the exercise of federal jurisdiction by State courts. Some State laws, in particular laws which prescribe and regulate the procedure to be followed in an action, are expressed so as to apply to proceedings in the courts of the States, or to particular State courts. Does s. 79 pick up these provisions and give them an operation different from, and larger than, the operation which they would have according to the terms in which they are expressed? (at p94)

19. This question was considered in Pedersen v. Young (1964) 110 CLR 162 . There the issue was whether s. 5 of The Law Reform (Limitation of Actions) Act of 1956 (Q.), a limitation provision, was an answer to an action for damages for negligence in respect of personal injuries brought in the High Court in a State other than Queensland. It was held to be no answer. Taylor, Windeyer and Owen JJ. were of opinion that, even if s. 79 picked up the Queensland provision, it did not make it applicable in an action in the High Court brought in New South Wales. Kitto J. said (1964) 110 CLR, at pp 165-166 :

"...the Judiciary Act does not purport to do more than pick up State laws with their meaning unchanged: Commissioner of Stamp Duties (N.S.W.) v. Owens (No. 2) (1953) 88 CLR 168 . It cannot give s. 5 a new meaning, converting it into a provision limiting the time for the commencement of actions outside Queensland; and for that reason, s. 5 does not, even by force of the Judiciary Act, afford a defence to an action commenced, as the present action was commenced, outside the time it allows but in New South Wales."

Menzies J. said (1964) 110 CLR, at pp 167-168 :

"As at present advised I do not think that the laws of a State relating to proceedings in State courts cannot apply in this Court by virtue of ss. 79 and 80 merely because, upon their true construction, as State Acts they relate only to the courts of the State. It may well be a part of the office of ss. 79 and 80 to make applicable in this Court some State statutes which, upon their true construction, apply of their own force only to courts governed by the laws of the State in which the court is exercising its federal jurisdiction although it is clear that some such statutes are outside the scope of these sections: Commissioner of Stamp Duties (N.S.W.) v. Owens (No. 2) (1953) 88 CLR, at p 170." (at p95)

20. The broad purpose of s. 79 is to ensure that the laws of the States are applied by courts in the exercise of federal jurisdiction. In general that purpose is achieved by the application of a State law according to its terms. Indeed, s. 79 contains no express provision which would enable a court exercising federal jurisdiction to alter the language of a State statute and apply it in that altered form. However, the presence of the words "including the laws relating to procedure evidence and the competency of witnesses" exhibits a clear intention that State laws relating to those topics should apply to federal jurisdiction. This purpose would fail partly in its objective if State laws on these topics are to be given a literal application under s. 79 by courts other than State courts. State laws dealing with matters of procedure, as the earlier consideration of s. 37 of the Limitation of Actions Act has shown, are often expressed so as to apply to State courts only, and in some instances they refer to particular State courts. (at p95)

21. To ensure that State laws dealing with the particular topics mentioned in the section are applied in the exercise of federal jurisdiction by courts other than State courts, it is necessary that State laws be applied according to the hypothesis that federal courts do not necessarily lie outside their field of application. Section 79 requires the assumption to be made that federal courts lie within the field of application of State laws on the topics to which it refers, at least in those cases in which the State laws are expressed to apply to courts generally. This departure from the general principle that the section requires a State law to be applied according to its terms is justified, indeed demanded, by the clear requirement that State laws on the topics mentioned are to be applied in federal jurisdiction. Whether that requirement supports the broader view that a similar approach is to be taken in applying s. 79 to substantive as well as procedural laws it is not now necessary to determine. (at p95)

22. The final question which arises on this aspect of the demurrer to par. 27 of the defence is whether the action is one which falls within the expression "all actions...for penalties damages or sums of money given to any party by any statute..." within the meaning of s. 37 of the Limitation of Actions Act. For the plaintiff it was argued that the words "damages or sums of money" should be construed ejusdem generis with "penalties". The reasoning of the Court of Appeal in its decision in Thomson v. Lord Clanmorris (1900) 1 Ch 718 was invoked in support of the submission. In that case it was held that s. 3 of the Civil Procedure Act 1833 (Eng.), which provided that "all actions for penalties, damages or sums of money given to the party grieved by any statute", did not apply to an action by a shareholder to recover from the directors of a company compensation for loss or damage sustained by him by reason of untrue statements in the prospectus of the company on the faith of which he subscribed for shares on the ground that actions for "damages or sums of money" should be read as actions for damages or sums of money in the nature of penalties. Accepting that for the purposes of this case a similar construction should be given to s. 37, although the language of the provision provides no support for it, I am unable to perceive that the present action falls outside the provisions of s. 37. (at p96)

23. An action under s. 11 of the Australian Industries Preservation Act is an action for treble damages. The plaintiff is not limited to the recovery of the damage which he has actually sustained. Under the statute he is entitled to recover three times the amount of his damage. The judgments of Dixon C.J. and Menzies J. in Redfern v. Dunlop Rubber Australia Ltd. (1964) 110 CLR 194, at pp 209, 223 make it clear that to give a person injured by the commission of an offence a right to recover treble damages from the wrongdoer is a device to ensure compliance with the law and to discourage disobedience to that law. The action is therefore an action for penalties or damages in the nature of penalties. (at p96)

24. I would therefore overrule the plaintiff's demurrer to par. 27 of the defence. (at p96)

25. Paragraph 28 of the defence was presented in argument as a plea of issue of estoppel the object of which was to preclude the plaintiff from recovering more than $6,000 by way of damages in the action. It was submitted that the question whether the plaintiff had been injured by the contraventions of the Act which it now relied on and the amount of damage which it thereby sustained had already been determined in an earlier action between the plaintiff and the defendant in the Supreme Court of South Australia in which the plaintiff had recovered on 27th May 1965 a judgment in the sum of $3,000 against the defendant for breach of a contract made on 28th March 1961 by which the defendant had promised, but nevertheless failed, to deliver ballasts to the plaintiff. It followed, so the argument ran, that in this action the plaintiff could recover no more than the difference between three times the amount of the damages as then ascertained, that is $9,000, and the amount then recovered, namely $3,000, that is $6,000. (at p97)

26. There are a number of reasons why the plaintiffs' demurrer to this part of the defence should be upheld. First, the defence as pleaded is inappropriately expressed. On examination it seems that the pleader was endeavouring to allege that the plaintiff at the commencement of this action had not sustained any damage in consequence of the defendant's contravention of the Act because the plaintiff had fully recovered the damage which it had suffered by means of the judgment recovered on 27th May 1965. Secondly, it does not appear from the defence that there is an exact or real co-extension between the contraventions of the Act sued upon by the plaintiff in this action, including the refusal to supply ballasts otherwise than under contract, and the breach of contract which was litigated in the earlier action in the Supreme Court. I would therefore uphold the plaintiff's demurrer to par. 28. (at p97)

27. There remains the question of the Attorney-General's consent. It is to be decided in the light of the pleadings. Paragraph 26 of the defence alleges that the suit is a proceeding within the meaning of s. 14 (2) of the Australian Industries Preservation Act and was instituted within the meaning of that sub-section on 27th January 1967 and that the Attorney-General did not consent in writing to the institution of proceedings against the defendant before the institution of the suit. By its reply, as amended, the plaintiff says that by order dated 30th September 1971 this Court ordered that the defendant be added as a party to the cause, that pursuant to s. 14 the Attorney-General gave his written consent in the form set out in the amended writ on 24th January 1972 and that the defendant was added as a party to the cause on 1st March 1972 when the seal of the Court was affixed to the amended writ and statement of claim. (at p97)

28. The defendant demurred to par. 2 (b) of the plaintiff's reply on the ground that

"it does not answer the defence raised under par. 26 of the statement of defence to which it has pleaded, in that the proceeding herein was instituted on 27th January 1967 and the said paragraph does not allege that the Attorney-General for the Commonwealth gave his written consent to the institution of any proceeding against the defendant Philips on or before that date." (at p97)

29. I confess that I find the defendant's argument in support of its demurrer somewhat elusive. The suit as originally constituted was commenced, it is concede, with the consent of the Attorney-General. It is also conceded that the subsequent amendment by which the defendant was joined as a party was made with the Attorney-General's consent having been previously obtained. Yet the defendant argues that the proceeding as it now stands must be regarded as having been instituted on 27th January 1967 and that at that stage the Attorney-General had not consented to the institution of a proceeding against a number of defendants including the defendant Philips Industries Pty. Ltd. The short answer to the demurrer is that the institution of the proceedings, as they now stand, was preceded by the consent required by s. 14 (2). A consent of the Attorney-General has antedated each relevant step in the proceedings. If it be correct to say, as the defendant would now have it, that the relevant proceeding is a proceeding against five defendants including the defendant Philips Industries Pty. Ltd., the proceeding in that form was not commenced until 1st March 1972, the consent of the Attorney-General was obtained immediately before the suit was amended pursuant to the order of the Court dated 30th September 1971 so as to take this form. (at p98)

30. In reaching this conclusion I should not wish to be taken as agreeing with the notion which seems to be implicit in the plaintiff's reply that an amendment is made when the Court's seal is affixed to the amendment. The provisions of O. 16 r. 15 dealing with amendment of the writ where a party is added as a defendant make no reference to the seal of the Court and indicate that the amendment is effective when it is made under the authority of the Court's order. However, this matter is not raised by the defendant's demurrer. (at p98)

31. I would therefore overrule the defendant's demurrer to par. 2 (b) of the plaintiff's reply. (at p98)

Orders

Plaintiff's demurrers to pars 26, 27 and 28 of the defence allowed and defendant's demurrer to par. 2 (b) of the plaintiff's reply overruled.

Defendant Philips Industries Pty. Ltd. to pay the costs of the demurrers.