KUJUNDZIC v MAS National - [2013] FMCA 8

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KUJUNDZIC v MAS NATIONAL & ORS

[2013] FMCA 8

HUMAN RIGHTS – When a cause of action for unlawful discrimination accrues – time within which actions for unlawful discrimination may be commenced.

STATUTES OF LIMITATION – Applicability of State statutes of limitation to federal proceedings by virtue of ss.79 and 80 of the Judiciary Act 1903.

STATUTORY INTERPRETATION – Section 14(1) of the Limitation Act 1969(NSW) inconsistent with s.46PO(2) of the Australian Human Rights Commission Act 1986 and invalid to the extent of that inconsistency.

Constitution, s.109
Racial Discrimination Act 1975
Sex Discrimination Act 1984, s.110
Disability Discrimination Act 1992, s.125
Judiciary Act 1903, ss.79, 80
Limitation Act 1969 (NSW), s.14, 78
Australian Human Rights Commission Act 1986, s.3, 4, 46PO
Age Discrimination Act 2004, s.59
Retail Leases Act 2003 (Vic)
Limitation of Actions Act 1958 (Vic)
Limitation Act 1935 (WA)
Limitation of Actions Act 1936 (SA), s.37
Limitation of Actions Act 1974 (Qld)

Laing v Victoria (2005) 144 FCR 462
Inspector-General in Bankruptcy v Bradshaw (2005) 144 FCR 64
Ardeshirian v Robe River Iron Associates (1993) 43 FCR 475
John Robertson & Co Ltd (in liq) v Ferguson Transformers Pty Ltd (1973) 129 CLR 65
Baird v Queensland (2005) 146 FCR 571
Gama v Qantas Airways Ltd (2006) 195 FLR 475
Artinos v Stuart Reid Pty Ltd [2007] FMCA 1141
Baird v Queensland (No 1) (2005) 224 ALR 541
Baird v Queensland (2006) 236 ALR 272
Obieta v Human Rights & Equal Opportunity Commission (2007) 94 ALD 117
Rispoli v Merck Sharpe & Dohme (Australia) Pty Ltd [2003] FMCA 160
Qantas Airways Ltd v Gama (2008) 167 FCR 537
Production Spray Painting & Panel Beating Pty Ltd v Newnham (No 2) (1992) 27 NSWLR 659
Bropho v Western Australia [2004] FCA 1209
Torrens Aloha Pty Ltd v Citibank NA (1997) 72 FCR 581
John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503
Blunden v Commonwealth (2003) 218 CLR 330
R v The Credit Tribunal; Ex parte General Motors Acceptance Corporation, Australia (1977) 137 CLR 545
University of Wollongong v Metwally (1984) 158 CLR 447
R v Loewenthal; Ex parte Blacklock (1974) 131 CLR 338
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1
SZQGE v Minister for Immigration & Citizenship [2011] FCA 1018
Fair Work Ombudsman v Toyota Material Handling (NSW) Pty Ltd [2012] FCAFC 193

Applicant:

JOKA KUJUNDZIC

First Respondent:

MAS NATIONAL ABN 51 946 054 070

Second Respondent:

INNER NORTHERN GROUP TRAINING LTD ACN 006 162 152

Third Respondent:

WPC GROUP LTD ACN 006 070 846

File Number:

SYG 968 of 2012

Judgment of:

Cameron FM

Hearing date:

13 December 2012

Date of Last Submission:

13 December 2012

Delivered at:

Sydney

Delivered on:

11 January 2013

REPRESENTATION

Counsel for the Applicant:

Ms K. Edwards

Solicitors for the Applicant:

Bull, Son & Schmidt

Counsel for the First & Second Respondents:

Mr P. Nugent

Solicitors for the First & Second Respondents:

McKean Park

The Third Respondent did not appear.

ORDERS

The second respondent’s application in a case filed on 28 November 2012 be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 968 of 2012

JOKA KUJUNDZIC

Applicant

And

MAS NATIONAL ABN 51 946 054 070

First Respondent

INNER NORTHERN GROUP TRAINING LTD ACN 006 162 152

Second Respondent

WPC GROUP LTD ACN 006 070 846

Third Respondent

REASONS FOR JUDGMENT

Introduction

These reasons concern the second respondent’s interlocutory application for the summary dismissal of this proceeding.
Although nothing has yet been proved, for present purposes I accept the following as facts: that in 2003 the applicant commenced work with MAS National (“MAS”); that MAS was a joint venture operated by the second and third respondents; that in February 2006 the applicant lodged a worker’s compensation claim which was settled on 4 March 2011; that the applicant was made redundant by MAS in mid-2006; that on 9 August 2011 the applicant lodged a complaint with the Australian Human Rights Commission (“Commission”) alleging disability discrimination, sexual harassment and racial discrimination on the part of the respondents; that on 12 April 2012 the applicant’s complaint to the Commission was terminated on the basis that it had been lodged more than twelve months after the alleged unlawful discrimination took place and that on 3 May 2012 the applicant commenced this proceeding.
It is also relevant that this proceeding was commenced and remains in the Sydney registry of the Court.
The matter has been listed in June 2013 for the hearing of particular questions concerning the respondents’ possible liability to the applicant for the breaches of the Racial Discrimination Act 1975, the Sex Discrimination Act 1984 and the Disability Discrimination Act 1992 which she alleges against them. However, when identifying the questions to be considered on that occasion it became apparent that two issues might usefully be determined discretely and in advance. Those matters were set out in items 5 and 6 of the second respondent’s proposed questions for separate determination, namely:
Question 5:
(a) On what date did the Applicant’s causes of action, as pleaded in her Points of Claim filed on 5 July 2012, accrue?
(b)Are the causes of action pleaded in the Points of Claim, filed on 5 July 2012, statute barred by reason of section 14(1) of the Limitation Act 1969 (NSW) Act [sic]?
Question 6:
Is [the] Applicant, by reason of the Certificate of Determination – Consent Orders made by the Workers Compensation Commission on 4 March 2011, now precluded from making any and if so which claims in this proceeding?
On 14 November 2012 I ordered that these two issues be determined at an early stage and on 28 November 2012 the second respondent filed the present application in a case in which it seeks the following orders:
(a)There be judgment for the Second Respondent on the grounds that the causes of action pleaded in the Points of Claim, filed on 5 July 2012, are statue barred by reason of section 14(1) of the Limitation Act 1969 (NSW).
(b)There be judgment for the Second Respondent on the grounds that the Applicant is estopped from bringing this proceeding as a consequence of the Certificate of Determination – Consent Orders, made by the Workers Compensation Commission on 4 March 2011.
At the hearing of this interlocutory application, the second respondent indicated that it would not be pressing for the second order but, if unsuccessful on the limitation question, would wish to argue “at trial” that as a consequence of the settlement of the worker’s compensation claim, any injury which was the subject of compensation thereby could not be the subject of further compensation under a different statute.
The third respondent did not appear at the hearing of the interlocutory application and indicated, through the second respondent, that it adopted the latter’s submissions. The first respondent is in the process of being removed from the proceeding and did not play an active part in this aspect of it.
For the reasons which follow, the application in a case will be dismissed.

Legislation

Sections 79 and 80 of the Judiciary Act 1903 relevantly provide:
79 State or Territory laws to govern where applicable
(1)The laws of each State or Territory, 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 or Territory in all cases to which they are applicable.
…
80 Common law to govern
So far as the laws of the Commonwealth are not applicable or so far as their provisions are insufficient to carry them into effect, or to provide adequate remedies or punishment, the common law in Australia as modified by the Constitution and by the statute law in force in the State or Territory in which the Court in which the jurisdiction is exercised is held shall, so far as it is applicable and not inconsistent with the Constitution and the laws of the Commonwealth, govern all Courts exercising federal jurisdiction in the exercise of their jurisdiction in civil and criminal matters.
Section 14(1) of the Limitation Act 1969 (NSW) (“Limitation Act”) provides:
14 General
(1)An action on any of the following causes of action is not maintainable if brought after the expiration of a limitation period of six years running from the date on which the cause of action first accrues to the plaintiff or to a person through whom the plaintiff claims:
(a)a cause of action founded on contract (including quasi contract) not being a cause of action founded on a deed,
(b)a cause of action founded on tort, including a cause of action for damages for breach of statutory duty,
(c)a cause of action to enforce a recognizance,
(d)a cause of action to recover money recoverable by virtue of an enactment, other than a penalty or forfeiture or sum by way of penalty or forfeiture.
Section 46PO of the Australian Human Rights Commission Act 1986 (“AHRC Act”) relevantly provides:
46PO Application to court if complaint is terminated
(1) If:
(a)a complaint has been terminated by the President under section 46PE or 46PH; and
(b the President has given a notice to any person under subsection 46PH(2) in relation to the termination;
any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Magistrates Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint.
(2)The application must be made within 60 days after the date of issue of the notice under subsection 46PH(2), or within such further time as the court concerned allows.
(3)The unlawful discrimination alleged in the application:
(a) must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or
(b) must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.
(4)If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect:
(a)an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination;
(b)an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant;
(c)an order requiring a respondent to employ or re-employ an applicant;
(d)an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent;
(e)an order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant;
(f)an order declaring that it would be inappropriate for any further action to be taken in the matter.
Section 3(1) of the AHRC Act defines “unlawful discrimination” to include sexual harassment.
Section 109 of the Constitution provides that when a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail and the former shall, to the extent of the inconsistency, be invalid.
Section 4(1) of the AHRC Act provides that the AHRC Act is not intended to exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with it.

Second respondent’s submissions

The second respondent submitted that a cause of action for unlawful discrimination accrues when a person engages in relevantly proscribed conduct. It argued that the requirement in s.46PO that before bringing proceedings a claimant must have made a complaint to the Commission which the Commission has terminated was no more than a procedural restriction on commencing litigation in respect of causes of action arising out of and accruing upon breaches of the Racial Discrimination Act, the Sex Discrimination Act, the Disability Discrimination Act or the Age Discrimination Act 2004 (“Commonwealth Anti-Discrimination Acts”). The second respondent drew an analogy between s.46PO and examples of procedural restraints on the pursuit of accrued causes of action such as Scott v Avery clauses, pt.10 of the Retail Leases Act 2003 (Vic) and the inability of solicitors to sue for their fees immediately upon issuing a memorandum of those fees. It referred to the fact that the Commonwealth Anti-Discrimination Acts make no reference to the termination of complaints to the Commission and submitted that the issuing of a termination notice is not an element of causes of action based on unlawful discrimination.
The second respondent further submitted that in this case the limitation period for the commencement of proceedings was provided by s.14(1) of the Limitation Act. In this connection the second respondent noted that in Laing v Victoria (2005) 144 FCR 462 and in Inspector-General in Bankruptcy v Bradshaw (2005) 144 FCR 64 it had been common ground between the parties, and accepted for the purposes of those proceedings, that to the extent to which it was relevant the Limitation of Actions Act 1958 (Vic) applied to those proceedings by virtue of s.79 of the Judiciary Act. The second respondent also referred to Ardeshirian v Robe River Iron Associates (1993) 43 FCR 475 where French J said at 487 that although it was not necessary to answer the question definitively, it seemed probable that s.79 of the Judiciary Act would operate to apply the Limitation Act 1935 (WA) to some classes of action instituted in the Federal Court.
The second respondent also referred to John Robertson & Co Ltd (in liq) v Ferguson Transformers Pty Ltd (1973) 129 CLR 65. One issue in that case was whether s.37 of the Limitation of Actions Act 1936 (SA) applied to matters in the High Court when that court sat in South Australia. Section 37 of the Limitation of Actions Act 1936 (SA) provided:
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.
On that subject Mason J said:
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.
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 95)
Menzies J agreed with Mason J and also said:
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. (at 80)
Further on this point, the second respondent submitted that the proper approach to the application of s.79 was that unless it was demonstrated that the Constitution or the laws of the Commonwealth provided otherwise, a State’s procedural laws would apply to proceedings in a federal court sitting in that State. It submitted that no contrary provision applied in the present case.
The second respondent also referred to a number of cases where consideration had been given to the possible application of a state limitation statute to a proceeding alleging contraventions of the Commonwealth Anti-Discrimination Acts. The most significant of those were Baird v Queensland (2005) 146 FCR 571 (“second Baird reasons”), Gama v Qantas Airways Ltd (2006) 195 FLR 475 and Artinos v Stuart Reid Pty Ltd [2007] FMCA 1141.
In the second Baird reasons, Dowsett J assumed without deciding that the Limitation of Actions Act 1974 (Qld) applied to claims made under Commonwealth legislation. The second Baird reasons were supplementary and subsequent to his Honour’s reasons in Baird v Queensland (No 1) (2005) 224 ALR 541 (“first Baird reasons”). The issue dealt with in the second Baird reasons had not been addressed in the first Baird reasons.
In Gama, Raphael FM held at first instance that s.14(1)(b) of the Limitation Act applied to claims of racial discrimination and disability discrimination under the relevant Commonwealth Acts saying:
The nature of the rights and duties contained in the Commonwealth Anti-Discrimination Acts and the form of relief which may be granted under s 46PO(4) of the HREOCA [Human Rights and Equal Opportunity Commission Act 1986] are to my mind easily included within the definition of an action for damages for breach of statutory duty. (at 478-479 [6])
In Artinos, Driver FM held that s.46PO(2) provided the only relevant limitation period in relation to proceedings under what is now the AHRC Act.
The second respondent submitted that although the President of the Commission could terminate a complaint brought more than twelve months after the events which gave rise to it, there was no time limit on the making of such complaints. It submitted that unless s.14(1) of the Limitation Act applied to proceedings alleging unlawful discrimination, a proceeding based on events dating from as early as the commencement of the various Commonwealth Anti-Discrimination Acts could be maintained if made within sixty days of the issue of a notice of termination. It was submitted that this could lead to grave injustice if, in the period following the alleged unlawful discrimination, memories had faded or important documents had been lost or destroyed.

The second respondent further submitted that the time limit for the commencement of proceedings provided by s.46PO(2) does not exclude the operation of s.14(1) of the Limitation Act because s.4(1) of the AHRC Act provides that the AHRC Act is not intended to exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with it. It was submitted that s.14(1) of the Limitation Act is capable of operating concurrently with s.46PO(2) of the AHRC Act.
The second respondent argued that with the exception of that part of the applicant’s claim based on the termination of her employment with MAS, the conduct she relied on to bring this proceeding occurred more than six years before the proceeding was commenced and to that extent was not maintainable by virtue of s.14(1) of the Limitation Act.

Applicant’s submissions

The applicant relied heavily on Dowsett J’s second Baird reasons where his Honour observed that although the Racial Discrimination Act made discriminatory conduct based on race unlawful, the right to redress for such conduct was not found in that Act but in s.46PO of what is now the AHRC Act. His Honour found that the AHRC Act does not suggest that prior to the termination of a complaint to the Commission any right to relief exists for, relevantly, conduct said to have contravened the Racial Discrimination Act. Rather, his Honour said, the cause of action for such conduct accrues when the complaint to the Commission is terminated.
The applicant submitted that the second Baird reasons had not been overturned by the subsequent appeal decision of the Full Court of the Federal Court in Baird v Queensland (2006) 236 ALR 272 and were binding on this Court. Alternatively it was submitted that even if the second Baird reasons were not binding they expressed the correct approach and in any event should be followed unless demonstrated to be “wrong in some respect”. The applicant submitted that although the Commonwealth Anti-Discrimination Acts provide the substantive legislation for determining whether relevant proscribed conduct has occurred, it is the AHRC Act which provides the framework for how complaints regarding such conduct are to be dealt with and how such complaints may become proceedings.
Citing Obieta v Human Rights & Equal Opportunity Commission (2007) 94 ALD 117 at 125-126 [48]-[51] and Rispoli v Merck Sharpe & Dohme (Australia) Pty Ltd [2003] FMCA 160 at [69], the applicant submitted that the Court’s jurisdiction to make orders under s.46PO depends on the termination of a complaint to the Commission. She submitted that in order to commence proceedings in the Court:
a)the President of the Commission must have terminated a complaint;
b)the President must have given notice of that termination;
c)the proceedings must be commenced within sixty days of the date of issue of the notice of termination or within such further time as the Court might allow; and
d)the application before the Court must reflect, in particular and defined ways, the complaint made to the Commission.
The applicant submitted that these four matters were jurisdictional facts, all of which had to exist for the Court to have jurisdiction to consider and determine an application alleging unlawful discrimination.
The applicant further submitted that it was important that, as well as providing the Court with power to make orders with regard to compensation, s.46PO(4) provides the Court with power to make orders which are wholly non-compensatory in nature. It was said that this was important when “considering whether the kind of power exercised by the Courts in this jurisdiction is of a kind defined in the Limitation Act 1969 (NSW)”.
In relation to Raphael FM’s statement concerning s.14(1) of the Limitation Act in the first instance decision in Gama’s case, the applicant referred to the decision of the Full Court of the Federal Court on appeal in Qantas Airways Ltd v Gama (2008) 167 FCR 537 where their Honours expressly distanced themselves from Raphael FM’s finding that s.14(1) applied in that case. Although their Honours did not set aside Raphael FM’s order that Qantas pay damages to Mr Gama, French and Jacobson JJ said, Branson J agreeing:
Nothing that we say in this judgment should be taken as agreeing with his Honour’s opinion about the application of the Limitation Act. (at 541 [18])
The applicant submitted that the members of the Full Court made it clear that they did not agree with Raphael FM that the Limitation Act imposed a time limit on the bringing of proceedings alleging unlawful discrimination.
The applicant additionally submitted that Ardeshirian’s case was determined when what is now the AHRC Act was in a very different form and the Racial Discrimination Act, which was the relevant underlying legislation in that case, contained no limitation period.
The applicant’s final submission concerning whether s.14 of the Limitation Act applies to proceedings alleging unlawful discrimination was that a time-based limitation of that sort contravenes Australia’s obligations under the international instruments which are the bases of the Commonwealth Anti-Discrimination Acts. It was argued:
Australia’s obligations under those Conventions are not close[d] or limited my [sic] any six-year period but run from the time Australia signed the Convention. Further, each Convention contains provision allowing for international review of Australian compliance with the Convention, again, not bound by any limitation period. Consistently, there is nothing in the legislation (DDA, RDA or ADA) limiting the operation of those acts to any time period except the period the legislation was first enacted. As noted above, the only limitation is that found in section 46PO.
Quite simply, the imposition of the LA would be inconsistent with Australia’s international obligations under the Conventions; it is also therefore inconsistent with the federal discrimination regime which was enacted to give effect to those international obligations. Therefore the LA cannot apply as a matter of Constitutional law.

Consideration

Accrual of cause of action

A cause of action is a set of facts whose existence, if proved, entitles a person to obtain from the Court a remedy against another person: see the second Baird reasons at 572 [2]. In this case, I find that causes of action for contraventions of the Commonwealth Anti-Discrimination Acts accrue upon the Commission issuing a notice of termination of a complaint, not upon the commission of the allegedly contravening conduct, a conclusion reached by Dowsett J in the second Baird reasons.
The second respondent submitted that Dowsett J was functus officio at the time he published the second Baird reasons and that consequently this Court was not bound by those reasons. I do not need to express a view on that submission in order to conclude that what his Honour said in those reasons is not binding on me because, assuming that his Honour was not functus, the second Baird reasons were part of his Honour’s overall reasons for decision at first instance which ceased to have any binding effect once the first instance judgment was reversed on appeal: Production Spray Painting & Panel Beating Pty Ltd v Newnham (No 2) (1992) 27 NSWLR 659 at 661. But notwithstanding that they are not binding on me, I respectfully agree with Dowsett J’s reasons concerning when a cause of action for unlawful discrimination accrues.
Section 46PO provides that a person may only commence proceedings alleging unlawful discrimination if he or she has first made a complaint to the Commission which has been terminated and, further, that the only relief which they may seek or receive is that set out in s.46PO. That section provides the legal basis for causes of action based on contraventions of the Commonwealth Anti-Discrimination Acts and also identifies the elements of such causes of action. There is no cause of action independent of that section: see Bropho v Western Australia [2004] FCA 1209 at [52]-[53].
The conclusion that s.46PO is the source of the right to bring actions for contraventions of the Commonwealth Anti-Discrimination Acts is reinforced by the provisions of three of those four Acts. Section 110 of the Sex Discrimination Act, s.125 of the Disability Discrimination Act and s.59 of the Age Discrimination Act each states that their respective Acts do not confer any right of action for unlawful discrimination. The Racial Discrimination Act does not contain a provision of that sort but the terms of s.46PO are such that they impliedly exclude claims for breach of statutory duty under that Act: Bropho at [52]-[53]. A similar conclusion applies to the Sex Discrimination Act, the Disability Discrimination Act and the Age Discrimination Act although it is unnecessary to rely on it given what the provisions just cited provide.
As s.46PO sets out the elements of a cause of action based on unlawful discrimination there is no cause of action for unlawful discrimination except in accordance with its terms. Relevantly that means that if the present applicant has a cause of action based on alleged unlawful discrimination, it accrued when, according to s.46PO, the last fact necessary to make it out came into existence. That fact was the issuing by the Commission of the notice of termination on 12 April 2012.
The conclusion that the applicant’s cause of action, if there is one, accrued when the notice of termination was issued is unaffected by the situations referred to by the second respondent when submitting that s.46PO was only a procedural fetter on accrued causes of action: Scott v Avery clauses, the Retail Leases Act 2003 (Vic) and the inability of solicitors to sue on their memoranda of fees immediately upon issuing them. That situations exist where rights to litigate accrued causes of action are postponed says nothing about the proper interpretation of s.46PO.
In reaching the conclusion that there is no cause of action for unlawful discrimination except in accordance with the terms of s.46PO I have not overlooked the issue raised by the second respondent concerning the status of the Commission’s dealings with a complaint if no cause of action is in existence at that time. The answer to that question lies in the nature of the Commission’s powers. It can conciliate and endeavour to bring the parties to an agreement concerning the complaint but can impose nothing upon them. This is consistent with the Commission’s status as a non-judicial body but it also reflects the fact that no cause of action exists at that point.
Nor have I overlooked the applicant’s submission concerning jurisdictional facts. However, the question presently before the Court concerns the existence of a cause of action and what time limitations might affect it, not whether the Court has authority to decide particular disputes.
Having concluded that s.46PO governs the accrual of causes of action for unlawful discrimination, it is not necessary for me to consider the limitation of actions question because this proceeding was brought in time whether the limitation period was fixed by s.46PO(2) or s.14 of the Limitation Act. Nevertheless, in the event that my conclusion concerning when such causes of action accrue is incorrect, and also in deference to the detailed arguments advanced by the parties on the limitation question, I will now turn to it.

Applicable limitation period

The parties submitted that s.14(1) of the Limitation Act is a State law relating to procedure. If that were correct then s.79 of the Judiciary Act would make s.14(1) binding on the Court in this case: Torrens Aloha Pty Ltd v Citibank NA (1997) 72 FCR 581 at 592-593 per Sackville J, Foster and Lehane JJ agreeing. However, s.14(1) is not a State law relating to procedure. In John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at 544 [100], the High Court held that limitation periods provided by statutes of limitation are matters of substance not procedure. Also, s.78 of the Limitation Act relevantly provides:
78 Characterisation of limitation laws
(1) In this section:
limitation law means a law (including but not limited to this Act) that provides for the limitation or exclusion of any liability or the barring of a right of action in respect of a claim by reference to the time when a proceeding on, or the arbitration of, the claim is commenced.
(2)A limitation law of the State is to be regarded as part of the substantive law of the State. …
As s.14(1) is part of the substantive law of the State in which this matter is being heard, and also amends the common law, ss.79 and 80 of the Judiciary Act oblige the Court to apply it in this case unless it is inconsistent with, relevantly, the laws of the Commonwealth: John Pfeiffer Pty Limited v Rogerson at 529-532 [50]-[58]; Blunden v Commonwealth (2003) 218 CLR 330 at 347 [45]. I find that it is not applicable to this case because, regardless of whether the applicant’s alleged cause of action accrued when the allegedly discriminatory conduct occurred or when the Commission issued the notice of termination, it is inconsistent with the laws of the Commonwealth. If a cause of action for unlawful discrimination accrues upon the commission of contravening conduct, then an action is out of time under s.14(1) if the conduct occurred more than six years before proceedings are commenced but is not out of time under s.46PO(2) if, regardless of when the contravening conduct occurred, proceedings are brought within sixty days of the issuing of a notice of termination. If a cause of action accrues upon the issuing of a notice of termination then s.14(1) provides for a limitation period of six years, notwithstanding that s.46PO(2) of the AHRC Act provides for only a sixty day period, subject to the Court’s leave to commence later.
Further, and contrary to the second respondent’s submissions, s.4(1) of the AHRC Act does not prevent or eliminate the inconsistency between s.14(1) and s.46PO(2). In this connection, in R v The Credit Tribunal; Ex parte General Motors Acceptance Corporation, Australia (1977) 137 CLR 545 Mason J said, Barwick CJ, Gibbs, Stephen and Jacobs JJ agreeing:
... a Commonwealth law may provide that it is not intended to make exhaustive or exclusive provision with respect to the subject with which it deals, thereby enabling State laws, not inconsistent with Commonwealth law, to have an operation. Here again the Commonwealth law does not of its own force give State law a valid operation. All that it does is to make it clear that the Commonwealth law is not intended to cover the field, thereby leaving room for the operation of such State laws as do not conflict with Commonwealth law.
It is of course by now well established that a provision in a Commonwealth statute evincing an intention that the statute is not intended to cover the field cannot avoid or eliminate a case of direct inconsistency or collision, of the kind which arises, for example, when Commonwealth and State laws make contradictory provision upon the same topic, making it impossible for both laws to be obeyed. In Reg. v. Loewenthal; Ex parte Blacklock, I pointed out that such a provision in a Commonwealth law cannot displace the operation of s.109 in rendering the State law inoperative. But where there is no direct inconsistency, where inconsistency can only arise if the Commonwealth law is intended to be an exhaustive and exclusive law, a provision of the kind under consideration will be effective to avoid inconsistency by making it clear that the law is not intended to be exhaustive or exclusive. (at 563-564) (reference omitted)
Further, as Gibbs CJ said in University of Wollongong v Metwally (1984) 158 CLR 447 at 455-456:
If there were a direct conflict between a Commonwealth law and a State law as, for example, where one law forbids what the other commands, or one takes away a right which the other confers, an assertion in the Commonwealth law that it was not intended to be inconsistent with the State law would be meaningless and ineffective.
This is because it is s.109 of the Constitution which determines the consequences of inconsistency, not Acts of the parliament.
Here there is a direct conflict between s.49PO and s.14(1) but, in any event, it is not to be supposed that when it formulated in s.46PO the relevant rule of conduct in relation to the time within which actions alleging unlawful discrimination might be commenced, the parliament proceeded on the footing that rules of conduct different from the one in s.49PO might apply: cf. R v Loewenthal; Ex parte Blacklock (1974) 131 CLR 338 per Mason J at 347. Indeed, as the applicant pointed out, s.14(1) of the Limitation Act does not appear to cover all the actions which are available under the AHRC Act, which suggests that were the second respondent to be correct, some actions would be barred by s.14(1) and some would not. This inconsistent outcome supports the conclusion that only one time limitation was intended to apply to actions for unlawful discrimination, that being the one found in s.46PO(2).
For these reasons s.14(1) of the Limitation Act is invalid to the extent that it is inconsistent with s.46PO(2), which means that it does not apply in this case. For these reasons I also respectfully disagree with Raphael FM’s statement in Gama concerning the applicability of s.14(1) to actions alleging unlawful discrimination. I am fortified in this conclusion by the Full Court’s apparent disapproval of that statement.
The second respondent submitted that it would be unjust if actions alleging unlawful discrimination occurring more than six years earlier could be commenced without leave if filed within sixty days of a notice of termination being issued. However, considerations of that sort cannot alter the conclusion that s.46PO is inconsistent with, relevantly, s.14(1) of the Limitation Act and that s.4(1) of the AHRC Act does not prevent the invalidity of s.14(1) to the extent of that inconsistency.
The applicant submitted that acceptance of the second respondent’s arguments would amount in practice to contravention of Australia’s treaty obligations but that argument must also be rejected. The Crown’s participation in a treaty arrangement does not, without more, confer rights upon persons such as the applicant: Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 32-33 [99] per McHugh and Gummow JJ. Treaties are not part of Australian law except to the extent that they are incorporated by legislation: SZQGE v Minister for Immigration & Citizenship [2011] FCA 1018 at [13]. Such time limits as there are in matters associated with the Commonwealth Anti-Discrimination Acts are to be found in those Acts, not in international instruments.
Finally, since composing these reasons, my attention has been drawn to the recent decision of the Full Court of the Federal Court in Fair Work Ombudsman v Toyota Material Handling (NSW) Pty Ltd [2012] FCAFC 193. The Full Court’s reasons do not, in my view, lead to a decision on the limitation of actions question different from the one I have reached.

Conclusion

I find that the applicant’s cause of action, if there is one, accrued when the Commission issued the notice terminating her complaint to it. The present proceeding was commenced within sixty days of that date with the consequence that not only was it brought within the s.46PO(2) time limit but it was also well within the time limit found in s.14(1) of the Limitation Act, were it to apply.
Further, to the extent that s.14(1) of the Limitation Act purports to impose on the commencement of actions under the AHRC Act a time-based limitation which is different from the time limitation set out in s.46PO(2) of the AHRC Act, it is invalid.
The second respondent’s application in a case filed on 28 November 2012 will therefore be dismissed.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Cameron FM

Date: 11 January 2013