Pedersen v Young

[1964] HCA 28

HIGH COURT OF AUSTRALIA

Kitto, Taylor, Menzies, Windeyer and Owen JJ.

PEDERSEN v. YOUNG

(1964) 110 CLR 162

11 May 1964

High Court

High Court—Practice—Action—Between residents of different States—Commenced in New South Wales Registry—Cause of action arising in Queensland—Queensland statute of limitation—Whether bar to maintenance of action—The Constitution (63 &64 Vict. c. 12), s. 118—Judiciary Act 1903-1960 (Cth), ss. 79, 80—The Law Reform (Limitation of Actions) Act of 1956 (Q.), s. 5.*

Decisions

May 11.
The following written judgments were delivered:-
KITTO J. This is a demurrer in an action pending in the High Court. The action is for damages for personal injuries which the plaintiff alleges he sustained by the negligence of the defendant in a road accident in Queensland. It is brought in this Court as an action between residents of different States: The Constitution, s. 75 (iv.). (at p164)

2. The action was commenced in the New South Wales Registry of the Court more than three years after the date alleged in the statement of claim as the date of the injury. The defendant by his defence sets up this fact as an answer to the action, relying upon the provisions of The Law Reform (Limitation of Actions) Act of 1956 of the State of Queensland. The relevant provision is in s. 5 and so far as material is in these terms: "Notwithstanding anything contained in any other Act or law or rule of law to the contrary, actions for damages for negligence . . . where damages claimed by the plaintiff for the negligence . . . consist of or include damages in respect of personal injury to any person shall be commenced within three years after the cause of such actions arose, but not after". The plaintiff demurs, contending that the statute affords no defence to the action. (at p165)

3. Upon ordinary principles of statutory interpretation it is necessary to understand s. 5 as limited to prescribing a time limit for the commencement of actions in Queensland. A faint attempt was made to attribute to it a wider operation, by force of s. 118 of the Constitution, which requires full faith and credit to be given throughout the Commonwealth to the laws of every State. But that section takes State laws as it finds them. It obviously does not give a Queensland law relating to the commencement of actions in Queensland an application in New South Wales to the commencement of actions there. (at p165)

4. The defendant's main argument, however, depended upon ss. 79 and 80 of the Judiciary Act 1903-1960 (Cth). It is obvious that the Queensland enactment could not of its own force limit the time within which an action may be commenced in this Court, but the provisions of the Judiciary Act were relied upon for the proposition that at least if the present action should come to be tried in Queensland, where the cause of action is alleged to have arisen, the Queensland law as to limitation of actions would have to be applied. It is, I think, in accordance with the received opinion as to the operation of ss. 79 and 80 to hold that, subject to the Constitution and to the laws of the Commonwealth, all Queensland laws must be treated as binding in this Court, as federal law if not by their own force, whenever the Court is exercising jurisdiction in Queensland: Cohen v. Cohen (1929) 42 CLR 91, at p 99 ; see also Musgrave v. The Commonwealth (1937) 57 CLR 514, at pp 531, 532, 547 ; Bainbridge-Hawker v. The Minister of State for Trade and Customs (1958) 99 CLR 521, at p 537 . But in my opinion the defendant's reliance upon s. 5 of the Queensland Act would necessarily fail even if the action were to be tried and decided in Queensland, because 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. (at p166)

5. It was said for the defendant that s. 5 operates to create a substantive defence in Queensland to a claim for damages for personal injury where the cause of action arose in Queensland, and that for that reason it provides the defendant with a good defence to the present action. It is the established doctrine of English law, however, that statutes of limitation expressed to relate to the institution of proceedings do not provide substantive defences. They "affect procedure, not substance": Cheshire, Private International Law, 6th ed. (1961) p. 686. Cases such as Huber v. Steiner (1835) 2 Bing (NC) 202 (132 ER 80) , Harris v. Quine (1869) LR 4 QB 653 and Alliance Bank of Simla v. Carey (1880) 5 CPD 429 are conclusive of the point. (at p166)

6. I would allow the demurrer. (at p166)

TAYLOR J. I agree that the demurrer should be upheld. But I would uphold it on the simple ground that s. 5 of The Law Reform (Limitation of Actions) Act of 1956 of the State of Queensland has no application to actions properly commenced in this Court in a State other than Queensland. How far the problem would be effected by s. 79 of the Judiciary Act 1903-1960 if the action had been commenced in this Court in Queensland I find it unnecessary to answer and I prefer to leave that question unanswered in view of the uncertainty attending the meaning and operation of that section which, I think, is disclosed by consideration of the observations in Alexander's Case (1912) 15 CLR 308 ; Lady Carrington Steamship Co. Ltd v. The Commonwealth (1921) 29 CLR 596 ; Cohen v. Cohen (1929) 42 CLR 91 ; Musgrave v. The Commonwealth (1937) 57 CLR 514 and Deputy Federal Commissioner of Taxation v. Brown (1958) 100 CLR 32 . (at p166)

MENZIES J. It is a well-established principle that statutes of limitation, except where title is affected, are rules of procedure only and form part of the lex fori. The reason why such statutes are so regarded is that they relate to the remedy and not the right. Since 21 Jac. I c. 16 the usual form of a statute of limitation has been to provide that an action shall not be brought except within the time stated after the cause of action arose. 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 p167)

2. It follows that a Queensland statute of limitation, The Law Reform (Limitation of Actions) Act of 1956, which is in common form, must be read as applying only to the commencement of proceedings in courts subject to the legislative power of the Parliament of Queensland. The statute cannot, therefore, of its own force apply to the commencement of proceedings in the High Court of Australia whether in Queensland or elsewhere. If the Queensland Parliament were to attempt to govern proceedings in this Court, the law so doing would to that extent be invalid. (at p167)

3. In the action with which we are here concerned, a writ was issued out of the New South Wales Registry of the High Court by a resident of the State of New South Wales against a resident of the State of Queensland. The cause of action, viz. damages for negligence, arose in Queensland. The defendant, by an amended plea, set up the Queensland statute of limitations as a defence to the plaintiff's claim. It is pleaded "the said action was not commenced within three years after the cause of action arose but later than that date contrary to the provisions of The Law Reform (Limitation of Actions) Act of 1956 whereby the plaintiff may not recover in this action". To this plaintiff has demurred. The demurrer must succeed unless the Constitution itself or some Commonwealth law has made the Queensland statute applicable. (at p167)

4. Jurisdiction is given to this Court to hear the action in question by the Constitution (s. 75(iv.)) but the Constitution does not of itself make applicable the Queensland statute of limitations to an action in the High Court in respect of a cause of action arising in Queensland. The only laws of the Commonwealth upon which it was possible for the defendant to rely in support of his plea are ss. 79 and 80 of the Judiciary Act but, whatever these sections mean, they have not made applicable the procedural laws of Queensland to an action commenced and pending in the New South Wales Registry of this Court. (at p167)

5. If it should happen that the action is heard and determined in Queensland, this Court will then be exercising its jurisdiction there and such laws of that State as are applicable will apply (Judiciary Act, ss. 79 and 80). 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 168, at p 170 . Thus in relation to the Victorian Supreme Court Act 1915 (which was then the Victorian statute of limitations) Dixon J. (as he then was) in Cohen v. Cohen (1929) 42 CLR 91 said: "I assume that in some way the law which in England results from 21 Jac. I c. 16, Lord Tenterden's Act (9 Geo. IV c. 14) and s. 9 of the Mercantile Law Amendment Act (19 &20 Vic. c. 97) is in force in relation to an action heard in this Court. If it had not been for the doubts expressed in Lady Carrington Steamship Co. v. The Commonwealth (1921) 29 CLR 596 , I should have supposed that ss. 79 and 80 of the Judiciary Act 1903-1927 operated in such a way that a suit in this Court heard in Victoria was affected by ss. 79 and 85 of the Victorian Supreme Court Act 1915, which enacts this law for Victoria, as well as by s. 57 (2) of the same Act" (1929) 42 CLR, at p 99 . (The doubts about the application of ss. 79 and 80 of the Judiciary Act to which his Honour there referred have since been set at rest: see Musgrave v. The Commonwealth (1937) 57 CLR 514 ). Notwithstanding what I regard as the possibility of applying in this Court, by virtue of ss. 79 and 80 of the Judiciary Act, some statutes of a State which, upon their true construction, apply only to the courts of the State, it may well be impossible to apply the Queensland statute of limitations in this action even if it were to be heard and determined in Queensland but this point I do not find it necessary to decide here. The position as I see it at the present stage of the action is that the Queensland statute pleaded cannot apply if the action is heard in the registry in which it now is. In these circumstances the defendant's plea is demurrable if for no other reason than that it omits - and I think necessarily omits - the allegation without which the statute pleaded cannot possibly be an answer to the plaintiff's claim, viz. that in the hearing and determination of this action the Court will be exercising its jurisdiction in Queensland. (at p168)

6. In my opinion the demurrer should be upheld. (at p168)

WINDEYER J. The argument in support of this demurrer was simple: an enactment of the Parliament of Queensland requiring that negligence actions in respect of personal injuries "shall be commenced within three years after the cause of such action arose, but not after" refers only to actions commenced in the courts of Queensland: that Parliament cannot directly prescribe the period within which an action must be commenced in this Court: it could indirectly do so only if its enactment became, by virtue of some Commonwealth enactment, a part of federal law governing the proceedings in this Court: the Judiciary Act does not have that result, except, it may be, when this Court is exercising its jurisdiction in Queensland. (at p169)

2. The main answer that the defendant sought to make to this was, as I understood it, that the tort sued upon was committed in Queensland, that the cause of action therefore arose under Queensland law, and that that law must determine and define the substance of the right asserted. But that does not really provide the answer. It is true enough that if the cause of action were the creature of the Queensland legislature, a provision that it could only be sued upon within a limited period might be regarded as an incident of the right that legislature had created, not merely as a barring of the remedy. Some time limits upon actions do extinguish existing rights. Others provide an element in a right newly created by statute. I collected some illustrations of this in what I wrote in Australian Iron &Steel Ltd. v. Hoogland (1962) 108 CLR 471, at p 488 . I shall not repeat them here, merely add Davis v. Mills (1904) 194 US 451 (48 Law Ed 1067) , as an illustration that would be apt if the defendant's argument on this point were sound. But I do not think that it is. The cause of action in this case no doubt arose in Queensland; but it arose from the common law. And it is the established doctrine of our law that statutes of limitations in the form of the Queensland statute here in question bar remedies but do not extinguish common law rights. (at p169)

3. Some matters of private international law were discussed in the argument. But it seems to me that merely resorting to the principles mentioned does not satisfactorily resolve the conflict of laws that can arise in actions brought in the original jurisdiction of this Court. When the Judiciary Act makes the law of a State binding upon courts exercising federal jurisdiction within the State, the law thus designated is, it has been held, the whole body of the law of the State including the rules of private international law so far as applicable. The States are separate countries in private international law, and are to be so regarded in relation to one another. In relation to the Commonwealth and to federal jurisdiction the position is, I think, very different. For the purposes of private international law, limitation provisions are, generally speaking, treated as procedural and are governed by the lex fori. That means the law of the country to which the court belongs, for it is only that country that can give the law to its court, can make it the lex fori. The procedural law of this Court must be found in federal enactments or in this Court's own established practice. There is nothing that makes the law of Queensland the lex fori for the purpose of the present proceedings before us. (at p170)

4. It is unnecessary to consider some of the curious, and by no means easy, hypothetical questions mentioned in the course of the argument. To some of them an answer that is logically satisfying is not readily apparent to me. But I think it is apparent that this demurrer should be upheld, simply because the Queensland enactment cannot of its own force put a limit upon the procedural law of this Court and I can find no federal law which attracts the Queensland statute to this case. (at p170)

OWEN J. The plaintiff, a resident of New South Wales, brought this action against the defendant, a resident of Queensland, to recover damages for personal injuries alleged to have been sustained by him as the result of the negligent driving by the defendant of a motor car. The writ of summons was issued out of the New South Wales Registry of this Court and the statement of claim alleged that the accident had occurred in Queensland. In his statement of defence, the defendant pleaded (inter alia) that "the action was not commenced within three years after the cause of action arose but later than that date contrary to the provisions of The Law Reform (Limitations of Actions) Act of 1956 whereby the plaintiff may not recover in this action". The Act in question is the Queensland Statute, 5 Eliz. II No. 19, which by s. 5 provides that "notwithstanding anything contained in any other Act or law or rule of law to the contrary, actions for damages for negligence . . . where damages claimed by the plaintiff for the negligence . . . consist of or include damages in respect of personal injury to any person shall be commenced within three years after the cause of such actions arose, but not after". To this defence the plaintiff demurred. (at p170)

2. For the purposes of the demurrer I will assume that had the action been commenced by a writ issued out of the Brisbane Registry, ss. 79 and 80 of the Judiciary Act would have had the effect of making available to the defendant a defence based upon s. 5 of the Queensland Act (see Cohen v. Cohen (1929) 42 CLR 91, at p 99 ) despite the fact that that section is directed and could only be directed to the barring by lapse of time of actions commenced in the courts of the State of Queensland. It is plain, however, that the only actions to which the section applies are those which are commenced in Queensland. This action was not so commenced and for this reason alone I am of opinion that the demurrer should be upheld. (at p171)

Orders

Demurrer allowed with costs.