Mobil Oil Aust v State of Vic & Anor
[2002] HCATrans 6
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M141 of 2000
B e t w e e n -
MOBIL OIL AUSTRALIA PTY LTD
Plaintiff
and
THE STATE OF VICTORIA
First Defendant
TASFAST AIR FREIGHT PTY LTD
Second Defendant
Demurrer
GLEESON CJ
GAUDRON J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON WEDNESDAY, 6 FEBRUARY 2002, AT 10.19 AM
(Continued from 5/2/02)
Copyright in the High Court of Australia
GLEESON CJ: Yes, Mr Solicitor.
MR BENNETT: If the Court pleases, I propose to do four things this morning. First, to give your Honours some references which were not given yesterday; secondly, to answer two questions that were asked yesterday; thirdly, to deal very briefly with the Pfeiffer point; and, fourthly, to deal very briefly with the section 73(ii) point. The references are these: first, I refer to the Australian Workers’ Union Case. That is 72 CLR 575 and the passage saying that an unwilling co‑creditor can be joined as plaintiff are in Justice Starke at 586, Justice Dixon, as he then was, at page 589, with a statement to the contrary by Justice Williams at page 593.
The two Justices who said that one could do it were accepted in two recent cases: Wallace v Project Interiors (1965) NSWR 1069 at 1070, that is the Butterworth series, and Bacich v ABC (1992) 29 NSWLR 1 at 14. Secondly, I referred to Grace Bros (1946) 72 CLR 269 at 292. Thirdly, I referred to the Australian Law Journal article about limitation actions being told by a proceeding that was discontinued. That is (2001) 75 ALJ 727.
Finally, when I referred to lump sum damages and the section which provides that one cannot use lump sum damages in a case like this where the damages are independent, the section is section 33Z(3) which prohibits a lump sum overall unless one sort of adds up the members first. The lump sum provision is only for cases like unit trusts or companies where there is a lump sum and one then has to divide it. It simply has nothing to do with a case like this.
Now, your Honour Justice Callinan asked yesterday about the court acting of its own motion under section 33KA. We simply point out that there are many cases where courts do act of their own motion in procedural areas, for example, refusing adjournments where both parties request it or matters of that sort, and there are many instances in rules of court where courts act procedurally.
CALLINAN J: Well, is that of the court acting of its own motion? Parties have applied for an adjournment, there is a decision to be made. It may be that the parties are in heated agreement, but there is still an issue presented to the court, for the court to decide.
MR BENNETT: Yes, that is so, your Honour, but there are other cases. When one looks at rules of court today, there are many procedural issues where courts are empowered to act of their own motion.
CALLINAN J: Well, I wonder about some of them frankly, Mr Solicitor, whether that involves an exercise of judicial power.
MR BENNETT: Your Honour, they are procedural, they are matters concerning the day‑to‑day administration of actions in relation to which the extent to which pure judicial power is applied in relation to many procedural decisions is questionable. Many of them could be made by registrars, for example.
CALLINAN J: Well, it might be all right in the Supreme Court, in the State courts. I wonder whether some of them are necessarily truly an exercise of federal power when there is very intensive case management, but that is not an issue in this case.
MR BENNETT: No, it is not an issue. Registrars in this Court set matters down without Judges hearing parties’ argument on dates. There are all sorts of things that are done.
CALLINAN J: Parties all want their cases put down, Mr Solicitor. They are anxious to get them heard.
MR BENNETT: They are, your Honour.
KIRBY J: Not always. We have had some Solicitors-General resisting it, and I think they have a right under the rule, but we have a power to remit.
MR BENNETT: The power to remit is another example, of course, in this Court.
KIRBY J: I think you gave that yesterday.
MR BENNETT: Yes. Your Honour Justice Callinan also asked a question about the provision in section 33KA(2), the reference to Australia rather than Victoria. In addition to what my learned friend the Solicitor for Victoria said about the general power in section 33N, there is also a general power which could be used in relation to someone elsewhere in Australia under section 33KA(2)(b), and of course there is the limitation in the Victorian Constitution in section 85. We would submit the provision your Honour refers to gives rise to no expressio unius.
Turning to the issue of Pfeiffer and the question of whether the rule of private international law there or any other rules of conflict of laws are constitutionally mandated, may I simply make three very short submissions. The first is the one that has been made to your Honours before, that in the law of torts itself there are a number of possible rules the court could have adopted. Indeed, there are rules which it adopted before. More importantly, the universe of actions does not consist solely of torts. There are private international law rules governing not only torts and contracts but
also such areas as trusts, quasi contract, quantum merit, tracing and numerous other areas of law.
Many of these areas have particular rules of private international law and in many of them, when one looks at Dicey and Morris, the rules are not settled. Bankruptcy is another example, the question of if you have an Australian bankruptcy and a creditor received a preference overseas, the extent to which the Australian court can set aside the preference and then enforce it if the creditor comes to Australia. There are all sorts of issues like that which have to be decided.
One cannot assume that in every one of those cases there is somewhere in gremio a fixed constitutional rule. That becomes more important when one looks at institutions such as the Hague conference on private international law which is constantly reaching – well not constantly, but from time to time – agreement on matters affecting private international law. Australia ought not to be an international cripple which approaches the Hague saying, “We can’t agree to any rule because our High Court says there is a fixed constitutional rule we have to apply”. The States should be able to have uniform legislation if they wish, laying down any appropriate private international law rule, both between themselves and in relation to overseas. In my respectful submission, it would be highly undesirable for rules of the type developed in Pfeiffer, which we submit is the development of a common law rule, to be regarded as fixed and constitutionally mandated.
Finally, may I just say a couple of things about section 73(ii). We adopt the submission of Western Australia in paragraphs 8 to 18 and I simply wanted to remind your Honours in relation to the suggestion that a State Supreme Court is bound by, for example, the concept of “matter” or by the separation of powers type rules, that in Kable itself we have set out in footnote 60 passages in each of the judgments which are inconsistent with that. Again, that is a matter which probably does not arise at the end of the day in this case. May it please the Court.
GLEESON CJ: Mr Jackson.
MR JACKSON: Your Honours, may I deal first with the aspect with which my learned friend was last dealing and I wanted to refer particularly to a decision your Honour Justice Gummow mentioned, Holmes v Angwin, 4 CLR 297. In that case the matter at issue was in relation to electoral questions and, whilst those electoral questions were submitted by the Parliament to the Supreme Court for decision, the proceedings did not result in something which was intended to be a judgment in the curial sense. Your Honours will see that referred to first at page 308 in Justice Barton, about two‑thirds of the way down the page where his Honour says:
Thus the Act of this State makes provisions as to the effect to be given to the decision of the Court, but it does not make the decision of the Court enforceable in the ordinary way as a judgment.
He goes on to deal with that aspect to the same effect, your Honours, at page 310, a little past halfway down the page, in the judgment of Justice Higgins.
Now, your Honours, in the present case, the situation is rather the opposite. If one looks at the terms of Part 4A, it is manifest, particularly from sections 33Z and 33ZB that what is to be the consequence of the proceedings is to be a judgment in the ordinary sense of the term. Now, if one stays with Holmes v Angwin for a moment, if the operation of the Act is to produce something which is intended to be a judgment of the Supreme Court, but it is not a judgment which can be the subject of an appeal to this Court, then, in our submission, one goes beyond the situation that obtained in Holmes v Angwin to a situation where the law which brings about that result is one which is outside power.
Your Honours will see, if one goes to Chief Justice Griffith in Holmes v Angwin at page 302, where, about 10 lines from the bottom of the page, having referred to section 73, he goes on to say:
This is an absolute right of appeal given to suitors, and no State legislation can deprive them of that right.
That meaning having the consequence or that intended to convey, we would submit, that legislation which would have that effect would be outside State power.
Could I mention, secondly, in relation to Mellifont v Attorney‑General (Queensland) (1991) 173 CLR 289, my learned friend for Western Australia quite correctly pointed out that I was in error in saying that the basis upon which the Court acted was that there might be further proceedings. The basis of the decision, as appears from page 305, was the relationship of the proceeding, the question of there being error of law, to the earlier proceedings.
Your Honours will see that at page 305. Could I turn then to the question of the ambit of legislative power in the State of Victoria. The suggestion ‑ ‑ ‑
KIRBY J: I am sorry, could I just go back to the first point that you have mentioned. There would be a right but not a duty to appeal and if the person up in Kununurra became aware of the judgment and did so within time, would he or she have the right under the legislation to appeal or to seek exclusion?
MR JACKSON: Your Honour will see appeals within the Victorian court are dealt with by section 33ZC. Your Honours will see from subsection (1) of that that:
the parties to the appeal are the plaintiff, as the representative of the group members, and the defendant.
This is the plaintiff’s appeal. Then, if one goes to subsection (2) there can be an appeal by a person who is the subgroup representative in relation, in effect, to that part of the proceedings. The parties then:
are the sub‑group representative party, as the representative of the sub‑group members, and the defendant.
Your Honours will see then that the appeal by the defendant is subsection (3). The parties are, in effect, the same as in the two preceding subsections. Your Honours will then see in subsection (4) that if there is a question on appeal that relates only to one group member, then that group member is a party on that side.
KIRBY J: So that implies that that one group member can appeal?
MR JACKSON: Yes, your Honour. I was going to say subsection (5) goes on to say:
If the plaintiff or the sub‑group representative party does not commence an appeal within the time provided ‑
then another member can commence the appeal within a further 21 days but as representative of the group.
KIRBY J: Now, why does that not, therefore, cover the case and provide for appeals by all persons? Of course there is the question of whether they know about it and whether they get to know about it in time before the final judgment is entered that picks up the constitutional instruction, but there is at least a provision that if they do get to know about an Act within time that they can appeal and, therefore, it seems to engage the constitutional right to appeal.
MR JACKSON: Your Honour, what I was seeking to say was that under section 73 the situation is, as appears from the opening words of the provision before the subparagraphs, that there is an ability to “determine appeals from all judgments, decrees, orders and sentences” of the Supreme Court. Now, your Honour, there may be a difference as between the position of an appeal to this Court from the appeal, on the one hand, and an appeal to this Court from the decision at first instance.
Now, of course, as a matter of practice these days, one would not get special leave to appeal directly from the decision at first instance, but the Constitution contemplates that there is the ability to do so. If the position is, as we would submit it is, that the effect of the enactment is that the decision at first instance is, by the statute, cloaked in the garb of a decision of a judgment of a court but because of its nature is not something that falls within the description of “judgment, decree, order or sentence” in section 73, then the Act is invalid because it does that.
GLEESON CJ: What is there about its nature that deprives it of that character?
MR JACKSON: Your Honour, what it does is to provide for proceedings in which a person is bound by an order, purporting to be judicial in nature, when the person has not instituted the proceedings and may not even know about them.
GLEESON CJ: Now, what is the difference between that and representative proceedings of the familiar kind?
MR JACKSON: Well, your Honour, in relation to representative proceedings, your Honours, the issue of the ability of a jurisdiction to have that effect in relation to persons outside the jurisdiction, having no other connection with it in terms, for example, of subject matter, is a matter that does not appear to have been the subject of decision.
GLEESON CJ: They say if there is a resident of the United Kingdom, who is a beneficiary or a possible beneficiary under a trust and that person is caught up in proceedings for the construction of a trust instrument and is the subject of some representative order, there may be a doubt about the validity of the legislation which empowers the Supreme Court to entertain proceedings of that kind.
MR JACKSON: Yes, your Honour, it may well be that there is some other suitable connection, but it may not be, and there is a doubt, in our submission, about the validity of that. Now it may be, of course, that can be cured, but ‑ ‑ ‑
GLEESON CJ: And, in the case of New South Wales the same doubt would apply if the person is a resident, not of the United Kingdom, but of the Australian Capital Territory?
MR JACKSON: Well, your Honour, it is possible, yes.
KIRBY J: But is not the problem for you that section 73 does not say any person affected by a judgment shall have the right to appeal. It simply says:
The High Court shall have jurisdiction . . . to hear and determine appeals from all judgments, decrees, orders, and sentences . . .
(ii) . . . of the Supreme Court of any State ‑ ‑ ‑
and there is no doubt that we have the jurisdiction to hear and determine an appeal brought from the judgment or order of the Supreme Court of the State, it being a judgment or order that affects, as you put it, strangers who may be ignorant of the fact that there has been any litigation. You have got to read more into it.
MR JACKSON: Well, your Honour, all I am reading into it is to say that there has to be a judgment.
HAYNE J: If then the question of sufficiency of connection were to be resolved against you, what separate life would this section 73 point have? How does it arise, except if you first get home on the submission that the State has no power to enact a procedure which affects someone having no territorial connection with the State concerned?
MR JACKSON: Your Honour, the two are related. In order for the second submission, and by that I mean the section 73 issue to arise, the situation which has to emerge is, first of all, as a question of construction perhaps first of all of Part 4A. In relation to Part 4A, if it has the effect that persons are bound then, your Honours, we would say section 73 itself operates as a limitation on the power of the Victorian Parliament or any other Parliament. So that it does not really derive from the territorial notion, in a sense, it derives from section 73.
Your Honours, I was going to deal next with the question whether there is a difference between the legislative power of Victoria, on the one hand, and that of other States, on the other. The contention that there is some difference does not really seem to have any support in previous decisions of the Court but if the words “in and for Victoria” do produce a different result from “peace, order and good government” or “peace, welfare and good government” of the relevant territory, then our submission would be that perhaps they are narrower.
Certainly, they convey a territorial notion a little more directly than the other provisions meaning the question would simply be, “Is it a law for Victoria?”. But, your Honours, we do not submit that there is any relevant difference. Could I just say, your Honours, as your Honour Justice Gummow observed yesterday, section 74 of the Constitution recognises there are some limitations on the constitutional powers of the States. Could we refer to the discussion in the judgments in State Authorities Superannuation Board v Commissioner of State Taxation 189 CLR 253 at 271 and 285 to 286.
Could I say something then on the question of territoriality and jurisdiction? Your Honours, reference has been made to the fact that if service is effected in Victoria, the Victorian court has jurisdiction to determine all personal claims whether they have a Victorian connection otherwise or not. That, in our submission, is a reflection rather than a rejection of the territorial aspect of jurisdiction. May I come back to that in just a moment?
Your Honours, the notion that a court has jurisdiction because of service within it is a notion developed in dealing with jurisdiction to determine claims brought against a person who at the time of service is subject to the laws of the jurisdiction. Here one is speaking relevantly not of persons sued but rather of the position of persons who have not sought to have their claims determined in the jurisdiction. The effect of the law is that their claims were adjudicated upon by the Victorian court, the only connection being that they could have started proceedings in Victoria and the result is a decision which is binding throughout Australia.
Could I say in passing, your Honours, just this. One cannot say that the question of the effect that might be given to the decision elsewhere in Australia is irrelevant in considering validity. It is not irrelevant because in Australia there is the presence of section 118 which itself gives an effect to judgments of courts.
KIRBY J: And there is the power on service and execution which has been effected by the Federal Parliament. There is the constitutional power to make laws on that subject but that power has been fully used. So, both of those are schemes contemplated by the Constitution, and there is the integrated judicature of the Commonwealth which itself is a symbol of the fact that we are ultimately one law area.
MR JACKSON: Yes, your Honour. Your Honour, I accept those things. May I come back to something I adverted to a moment ago and that is the submission that jurisdiction does have a territorial aspect. That is true, your Honours, both in relation to jurisdiction based on service within the jurisdiction, on the one hand, and jurisdiction based on provisions such as the present Order 7 and its predecessors. Could I deal briefly with the latter of those for a moment. I do not think I need to take your Honours to the various paragraphs of Order 7, apart from the last two paragraphs which deal with the situation in relation to some Commonwealth laws.
One sees that each of the provisions has a reference to a territorial basis. Each is based on there being some connection with Victoria. When one goes then to deal with the other aspect of it, that is jurisdiction based on service within it – may I take your Honours to the reasons of Chief Justice Dixon and Justices Williams and Webb in Laurie v Carroll 98 CLR 310. There is a discussion of the basis of jurisdiction which commences, relevantly, at page 322 and a little above halfway down that page their Honours said:
Primarily the question is one of jurisdiction. The action is in personam and it is transitory; and in such an action the jurisdiction of the Supreme Court of Victoria depends not in the least on subject matter but upon the amenability of the defendant to the writ expressing of the Sovereign’s command in right of the State of Victoria. The common law doctrine is that the writ does not run beyond the limits of the State.
Then, your Honours, there is a reference through much of the remainder of that page to the effect of the Service and Execution of Process Act and Order 11 of the then Rules of the Supreme Court. Then, at the bottom of that page, their Honours say:
For except for these extensions of the principle of the common law, it remains true that the writ issued out of the Supreme Court of Victoria does not run outside that State. And in actions in personam this must determine the jurisdiction of the court over the defendant.
I shall not read it out, but could we invite your Honours to look at, in effect, the top third of page 323, the reference to Viscount Haldane in John Russell & Co “The root principle” of the law. Then, the quotation from Justice Holmes in McDonald v Mabee. Your Honours will then see a reference to the fact that “the rule of the common law” – those more currently familiar with Latin than I pretend to be have not been able quite to get the full sense of that term, but it seems to mean something along the lines that one is not able to proceed without some warrant or authority.
KIRBY J: Why do you not say it?
MR JACKSON: Well, your Honour, I do so subject to errors and omissions ‑ ‑ ‑
KIRBY J: Some people like it.
MR JACKSON: Non potest quis sine brevi agere. That is the best I can do.
KIRBY J: Sounds pretty good. What is “agere”?
MR JACKSON: Sorry?
KIRBY J: What is “agere”, literally?
MR JACKSON: I think, to proceed or go ahead, your Honour. But the sense of it seems to be that there had to be the authority of the issue of the writ. Your Honours will then see, if I could go down a little further on the same page, their Honours said:
It is in this that the source is to be found of our conception of the foundation of the jurisdiction of our own courts in actions in personam and to that source both Viscount Haldane and Holmes J refer. The defendant must be amenable or answerable to the command of the writ. His amenability depended and still primarily depends upon nothing but presence within the jurisdiction.
Then their Honours refer, through the remainder of that page to the top of the next page, that, of course, jurisdiction, because it is jurisdiction in personam – based on that – will go wherever the defendant happens to be. That goes to the top of the next page, where their Honours say:
“In other words, the court has jurisdiction to entertain an action in personam against any defendant who is in England at the time of the service of the writ.”
GLEESON CJ: No matter how fleeting the presence might be.
MR JACKSON: Yes.
KIRBY J: It is interesting, not significant, that the headnote writer saw this as a case dealing with private international law, and no mention of the Constitution or setting. It may be that that simply is a reflection of earlier times.
MR JACKSON: Yes. Your Honour, the relevance of aspects of cases can vary from time to time. Your Honours will then see if one goes to page 328, about a quarter of the way down the page, a reference to some theories. A matter that arose was whether the time that the defendant had to be within the jurisdiction was necessarily only the time of actual service or could there be service if the defendant was in the jurisdiction at the time of the issue of the writ.
Your Honour, the point of it all, and I will not go into that aspect of it in detail, is it is perfectly apparent, in our submission, that what one is speaking of in terms of the jurisdiction acquired by, for example, service of the writ on a person within the jurisdiction, is something that is fundamentally territorially based, and one can see that also at page 331 in the passage commencing about three-quarters of the way down the page, going over to the top of the next page.
KIRBY J: But what do you seek to get from this case?
MR JACKSON: Your Honour, what I am seeking to get from it is this, that the notion that there is really no territorial aspect involved in jurisdiction, as such, is one that, in our submission, is incorrect and that fundamentally the question of jurisdiction is one which does have a territorial aspect. So that one is not talking about two different things when one speaks of legislative power and there being territorial limitations upon its exercise.
HAYNE J: But you shift attention from the location of the defendant, saying that that is either constitutionally irrelevant or at least constitutionally insufficient, and focus attention upon the location of the plaintiff. Why is it significant to look at the position of the plaintiff rather than the position of the defendant?
MR JACKSON: Well, your Honour, the feature of it is in relation to jurisdiction, because one is speaking of course about that concept, that the jurisdiction of a State, in our submission, is a jurisdiction in these classes of matters, if I can put it that way, brought about by either one of two things: one being the presence of a defendant within the jurisdiction; the other, there being some other connection.
When one speaks of jurisdiction, the jurisdiction is attracted by the institution of proceedings by someone seeking to either serve within the jurisdiction or have a situation where someone has consented to the exercise of the jurisdiction, but jurisdiction is not being spoken of as something in the abstract depending on simple presence. It is the presence plus the activation that one is speaking about. If what you have is activation by one person, then, no doubt, it is possible to say there is jurisdiction in relation to that person’s claim. But jurisdiction, in our submission, is not something that really exists in the abstract sense. Your Honours, what we would simply say is that the vice of the present law in that regard is that it compels people outside Victoria to be subject to the jurisdiction because someone else has chosen to invoke it.
Your Honours, could I say a couple of other things. My learned friend for the Commonwealth has referred to some occasions when there may be joinder of plaintiffs against their will, as the reference that he gave to Australian Workers Union v Bowen demonstrates. There are very limited classes of case where that is so, and it is for particular reasons apposite to that class of case.
Your Honours, could I say two other things. The first concerns the provision dealing with the limitation period. To be valid it has to be rather severely read down, in our submission. The second thing in relation to it is that in our written submissions we had referred to providing the Court with a table of relevant limitation periods. That has been provided to the Court and your Honours will have that.
The last thing I wanted to say, your Honours, is this. In connection with damages, my learned friend for the Commonwealth essayed a view as to the particular cases to which the damages provisions might apply. Our submission is that the provisions operate on their own terms. They do not contain any limitation as to particular classes of cases. Your Honours, those are our submissions.
KIRBY J: You will send in the little note on the Canadian and United States cases?
MR JACKSON: Yes, your Honour. I am sorry, I should have mentioned that. We will give your Honour something about that. Generally speaking, could I say in relation to Canada, we agree I think with the comment made by the Solicitor‑General for South Australia, that a feature of Canada is that the States have enumerated legislative powers, many of which contain within themselves a territorial limitation. So that is one of the differences. But we will do that, your Honour, yes, and perhaps if I could say we could do that in seven days.
GLEESON CJ: We will reserve our decision in this matter. We will adjourn for a few minutes to enable the people to make their arrangements for the next case.
AT 10.55 AM THE MATTER WAS ADJOURNED
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