Mason v Murray's Charter Coaches and Travel Services

[1999] HCATrans 429

IN THE HIGH COURT OF AUSTRALIA

Registry  No C21 of 1998

B e t w e e n -

GRAEME MASON

Applicant

and

MURRAY’S CHARTER COACHES AND TRAVEL SERVICES PTY LTD

Respondent

Application for special leave to appeal

GLEESON CJ
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 30 NOVEMBER 1999, AT 12.30 PM

Copyright in the High Court of Australia

MR G.J.D. RICHARDSON, SC:   May it please the Court, I appear with my learned friend, MR D.J.C. MOSSOP, for the applicant.  (instructed by Messrs Higgins Solicitors)

MR A.J.L. BANNON, SC:   If it please the Court, I appear with my learned friend, MR G.P. McNALLY, for the respondent.  (instructed by Hunt & Hunt)

GLEESON CJ:   Yes, Mr Richardson.

MR RICHARDSON:   This is the application, your Honours, which we say raises an important question about the uniform legislative scheme which deems the limitation laws of other jurisdictions to be substantive rather than procedural for the purposes of choice of law rules.  The Court will note that the decision in the Federal Court was by a majority and the majority in the Federal Court held that a court in considering the exercise of discretion to grant an extension in relation to an event which took place in another jurisdiction should fail because the court of a locus, to use the words of Justice Sackville of the majority at page 64 of the application book, would find that “to extend time would be largely futile”.  The effect of the majority decision is therefore to require the discretion to be exercised on what we say is an essentially false premise, namely, that if the extension of time were granted, the damages would be limited by the laws of the locus, whereas the reality is that if extension were granted, they would be assessed by the court in which the matter would proceed – in this case pursuant to full common law assessment of damages.

The decision of the majority would have this effect:  on the last day of the limitation period of the law of the locus, the applicant has an absolute right to commence proceedings in the ACT court and, subject to a cross‑vesting order which would not apply here, at least according to one of the judges because of sufficient connection with the ACT, have his damages assessed according to the full common law.  But the very next day, the Full Court would have it, he is absolutely prevented from commencing proceedings because an application for extension of time made even one day late would necessarily fail on the principle that they expounded.

Our submission is that this was clearly not the intention of the legislature, or any of the legislatures, in enacting the amendment to the ACT Limitation Act or their equivalents.  The intention was to ensure two things:  the period of limitation and the approach to discretion would be the same as in the lex locus fori.  The intention, it is conceded, was to prevent forum shopping but forum shopping in relation only to limitation periods.  The intention of the legislature was to enact a specific measure in relation to limitation periods.

The amending legislation was introduced and passed in the various jurisdictions in late 1993 and 1994 which was not only after McKain v Miller (1991) 174 CLR 1, which of course was the decision which referred to limitation periods - that is the case to which second reading speeches refer, I concede – but the legislation was introduced and passed well after the decision of this Court in Stevens v Head (1993) 176 CLR 433, judgment in which was given on 18 March 1993.

GLEESON CJ:   Mr Richardson, could I interrupt you to ask:  did not the actual decision in this case turn on the application of the discretionary considerations that are referred to at pages 63 and 64 of the application book?

MR RICHARDSON:   No, your Honour, in the technical sense the decision of the court turned on the exercise of the discretion but only in the most technical sense.  The judges in the Full Court, even the majority judges, one of them clearly and one of them not so clearly, found that but for this principle the discretion would be exercised in favour of the applicant.  What they said was that the effect of the section was such that they had to approach their discretion in precisely the same way as it would have been approached by the court in New South Wales, assuming the case had been brought in New South Wales, and the New South Wales court would inevitably have dismissed the application because of the restrictive provisions in the New South Wales legislation on the assessment of damages which would have had the effect that the damages would have not been greater than the amounts available to the plaintiff in any event under the workers compensation legislation in New South Wales.

But those restrictions, because of the effect of Stevens v Head, it was accepted by the court, would not apply if the matter were to proceed in the ACT Supreme Court.  So at the end of the day the majority judges say that it is not just.  Technically they should not exercise their discretion in favour of the applicant but for that narrow reason.

GLEESON CJ:   That is the second factor referred to on page 64, is it?

MR RICHARDSON:   If your Honour goes back to page 63, “Factors Against an Extension of Time”, it says:

If prejudice were the only issue to consider, I would conclude that a court exercising the discretion conferred…..would do so in favour of the appellant.

Justice Sackville then proceeds to say ‑ ‑ ‑

GLEESON CJ:   What you have just been talking about is what he is referring to on page 64 in the first complete paragraph, is it not?

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

KIRBY J:   It is an odd result, is it not?

MR RICHARDSON:   Yes, your Honour.

KIRBY J:   I am saying what you have attempted to do is not odd - would have an odd result and would be the very sort of forum shopping that you concede that the statute is designed to discourage because the slip occurs in the shower in New South Wales, the tort is complete in New South Wales and, if you hunt around and find jurisdiction and you bring your proceedings there, I mean, it may be what the law permits but it is an odd result.

MR RICHARDSON:   It is not an odd result if one looks at it this way.  First of all, your Honour, one has to bear in mind that this was a contract of employment for driving buses between the ACT and New South Wales.  It had an ACT connection and the accident happened in the – the ACT contract of employment I think was made in the ACT.  The accident – and, true, the tort was completed in the New South Wales premises of the employer but, if there is an oddness about the result, of course it can be dealt with by appropriate orders under the cross‑vesting legislation.  As one of the judges in this case indicated, that would – because of the connection with the ACT ‑ ‑ ‑

KIRBY J:   Does that still live?

MR RICHARDSON:   It does, I think, as between the ACT and New South Wales, your Honour.

KIRBY J:   I think that is very doubtful.

MR RICHARDSON:   I see.

KIRBY J:   I do not know.  But is there not a constitutional problem?

MR RICHARDSON:   As I have pointed out already, your Honour, the last day, the third anniversary of the accident, the plaintiff could have an absolute right to commence proceedings in the ACT Supreme Court.  It is an odd result that the very next day there is an absolute bar when the legislation uniformly gives to the courts a discretion as to whether proceedings can proceed or not.  The court has dealt with forum shopping in relation to limitation periods but only in relation to limitation periods.  It would be open to the legislature of each State and Territory to pass, if you like, equivalent legislation to deal with what flows from Stevens v Head, to deal with the assessment of damages.

GLEESON CJ:   What, if any, connection does this matter have with the case of John Pfeiffer v Rogerson that we are hearing tomorrow?

MR RICHARDSON:   Your Honour, it has this connection, that if John Pfeiffer v Rogerson reverses Stevens v Head, then my application would be futile but, so long as Stevens v Head remains a statement of the common law, then my application is an important one.

KIRBY J:   May it not have been wise for you to have applied for this matter to be adjourned until after the Court’s decision in that case was available?

MR RICHARDSON:   I could glare at my opponents while I answer this, your Honour.  That suggestion was made but did not receive favour.

GLEESON CJ:   Yes, so the case was rushed on to a hearing 13 months after the judgment in respect of which you are seeking special leave to appeal?  We are sitting here on 30 November 1999 hearing an application for special leave to appeal against a decision given on 2 November 1998.

MR RICHARDSON:   I personally cannot help your Honour with the history of the matter at all but I can make ‑ ‑ ‑

GLEESON CJ:   Well, I can.  The applicant’s summary of argument in this matter was filed on 18 December 1998.  In due course I will ask Mr Bannon why the respondent’s summary of argument was not filed until 1 April 1999.  However that may be, we do not seem to be involved in a rush to justice.

MR RICHARDSON:   No, your Honour.  My instructions are that one of the factors has been an attempt to have this matter heard in the Australian Capital Territory where the decision relates to, and that for some reason has not been possible.

KIRBY J:   What, the application for special leave could not be heard in the seat of the court?  I find that very hard to accept.

MR RICHARDSON:   My instructions have certainly been prior to today – I can check on the detail, your Honour – that there were real efforts made on our client’s behalf to have the matter heard in the ACT.  We did not want to incur the additional expense of coming to Sydney and that did not receive favour with those who make the decisions.

KIRBY J:   I am just concerned that we will be making a decision today that may be affected by what happens in argument and subsequently after the case tomorrow.

MR RICHARDSON:   I was alive to that problem, your Honour.

GLEESON CJ:   But just let us work out how it works.  If Pfeiffer v Rogerson goes one way, you are finished in this case.

MR RICHARDSON:   Correct, your Honour.

GLEESON CJ:   But if it goes the other way, it does not assist you, does it?

MR RICHARDSON:   It does not assist me.  It leaves the common law where it is and I am left with the argument that I am now placing.

GLEESON CJ:   So Pfeiffer v Rogerson can only make your position worse; it cannot make it better?

MR RICHARDSON:   Correct, your Honour.

GLEESON CJ:   That is what I wanted to know.

MR RICHARDSON:   Correct.  The submission I was making was this, that the oddness to which your Honour has referred is a matter, we would say, to be dealt with by the legislation rather than by an interpretation of existing legislation which went to one point which gives, we would say, a wholly artificial result.  The relevant legislation is listed in the application book at page 77 in each of the jurisdictions.  They are substantially similar, we would say.  There are some slight variations in the wording and the South Australian legislation is perhaps the most different; it does not have the preceding section which appears in the ACT and New South Wales legislation.  The legislation is summarised by Justice Gaudron in The Commonwealth v Mewett (1997) 146 ALR 299 at page 324, note 108. That is referred to in the application book at page 48 in one of the judgments.

I was not proposing to take the Court to them, but reference is made to the second reaching speeches in both the ACT and New South Wales in the decision of the Federal Court.  As I have said, the speeches show that the intention was to prevent forum shopping but the speeches show that it was an intention to prevent forum shopping in relation to limitation periods and not in relation to any other broad aspect of what might be seen to be forum shopping, which can be dealt with by other legislative provisions in so far as that is appropriate.  There was no expressed intent to take any other procedural law such as that relating to assessment of damages and change its characterisation.  There is no reference to that in the section or in the speeches.

In any event, the section itself, section 57 of the Limitation Act 1985, as it is in the ACT, says this:

Where a court of the Territory exercises a discretion conferred under a limitation law of a place…..that discretion –

and I am emphasising –

as far as practicable, is to be exercised in the manner in which it is exercised in comparable cases by the courts of that place.

A comparable case, we would say, in this case is a case in which damages would be assessed according to the full common law, as they would have been if the case had proceeded.  A comparable case is not one in which the damages would be controlled by New South Wales legislation, which is not what would happen if the extension were granted.  The words “as far as practicable” in the section show and demonstrate, we say, that one ignores the literal unlikelihood of a New South Wales court on the same facts considering a case which would proceed to full common law assessment but approaches the case in the same discretionary manner in which the New South Wales court would do.

As I have said, your Honours, the principle is important because it directly impacts upon the application of similar legislation throughout Australia.  It is noticeable there was a dissenting judgment in the Federal Court and that that judge, Justice Higgins, had previously given judgment in the ACT, particularly in a matter of McIntosh v Southern Meats (1997) ATR 81-424 at 64,102, where he reviews the history of the legislation and the authorities and referring to Gardner v Wallace (1995) 184 CLR 95, a decision of Justice Dawson on the Victorian equivalent legislation, sitting as a single Judge. In reviewing that case Justice Higgins said:

Nevertheless, the intent of the Victorian Act, despite its apparently inappropriate drafting, was to prevent forum shopping to take advantage of the most favourable State or Territory limitation laws.

That is the view that he repeats in his dissenting judgment.  In our submission, this is an appropriate matter for special leave on an important point and this matter squarely raises the issue.

GLEESON CJ:   We do not need to hear you, Mr Bannon.

The Court is of the view that there is not sufficient reason to doubt the correctness of the construction adopted by the majority in the Full Court of the Federal Court in this matter to warrant the grant of special leave.  The application is refused with costs.

Now, what about that matter that I raised, Mr Bannon?

MR BANNON:   I am told that the delay was occasioned by the following:  the applicant’s outline was received on 21 December.  The intervention of Christmas and the holiday period meant that the reply was delayed.  It is accepted that that does not explain a delay until 1 April.  It was the beginning of a delay process which, regrettably, appeared to be self‑propetuating.

GLEESON CJ:   The times that are allowed by the Rules of this Court in special leave applications are not ungenerous by any means and they are expected to be strictly complied with.  We do not want to get into a situation where failure to comply with the Rules does not matter as long as the other side do not complain about it.  Thank you, Mr Bannon.

MR BANNON:   May it please the Court.

AT 12.51 PM THE MATTER WAS CONCLUDED