Peverill v Health Insurance Commission; Georgiadis v Australian and Overseas Telecommunications Corporatiion

[1993] HCATrans 54

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S21 of 1992

B e t w e e n -

RICHARD EDWIN PEVERILL

Applicant

and

HEALTH INSURANCE COMMISSION

Respondent

Cause removed pursuant to

section 40 of the Judiciary Act

1903

Office of the Registry

Sydney No S77 of 1992

B e t w e e n -

CONSTANTINOS GEORGIADIS

Applicant

and

AUSTRALIAN AND OVERSEAS

TELECOMMUNICATIONS CORPORATION

Respondent

Cause removed pursuant to

section 40 of the Judiciary

Act 1903

Peverill(2) 94 10/3/93

MASON CJ
BRENNAN J
DEANE J
DAWSON J
TOOHEY J
GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 10 MARCH 1993, AT 9.49 AM

(Continued from 9/3/93)

Copyright in the High Court of Australia

MASON CJ: Yes, Mr Spigelman.

MR SPIGELMAN:  Your Honour, yesterday during the course of

protect individuals from having to bear the burden

the Solicitor's submissions, Justice McHugh put to

the Solicitor-General that the principal purpose of

of public expenditure. As the Court has now

developed the doctrine, although not given a final

imprimatur to it, but Sl(xxxi) applies to

transactions between third parties, acquisition of

property not involving the Commonwealth; that is

too narrower basis for Sl(xxxi), and we would say
that the basic principle behind Sl(xxxi) is that

security of property is a fundamental value in a

free society, and so understood, it extends to

statutory entitlements; not just statutory

entitlements from Commonwealth legislation, but relevantly, statutory entitlements from State	legislation in a federal system, and one may be
able to contemplate federal legislation which has
some effect on State regulated industries. Clearly
one goes back to the Airlines case where this Court
found that parallel regulation was permissible and
if it led to a deadlock it lead to a deadlock; it
had to be resolved by a political process.

However, perhaps one could think of a

Commonwealth statute which says that a corporation

could not buy or sell a taxi licence for more than

$1000. The question is, is the State legislation

which establishes the taxi licence system not

property because of some, what we refer to in our

submissions as an, intrinsic infirmity by reason of

Peverill(2) 95 10/3/93

the power to retrospectively change that

legislation, and we say, not so.

McHUGH J: It is difficult to accept that freedom of

property is the basis though, is it not, because it

allows property to be acquired by whim or for

whatever reason; all it requires though is that he

be justly compensated?

MR SPIGELMAN: There is no doubt that there is an area in

which the authorities say that no sensible question

of acquisition of property on just terms arises,

the example of prohibitive imports, and we will

have some more to say about that. But Your Honour

used the term "freedom of property" we use the term

"security of property" and there may be a
difference, and by no means does section Sl(xxxi)
prevent the Commonwealth exercising what the

Americans call "eminent to main powers" but it imposes ·a condition on the exercise, and we think

that that is a valid condition in an area beyond

mere questions of public expenditure, and if it

extends to what I have referred to as third party

rights, the question before the Court in this case

is whether they encompass statutory entitlements.

At the beginning of this century if one had

asked the question rhetorically, "What is the most

important kind of property?" the answer would have

been "Real estate''. "What is the most important

source of weal th?", "Real estate". Today, if one

wanted to find a label for the most important

single source of wealth it would be statutory

entitlements. Government authorities to

permissions for exporting things or importing

things, for building things, for various kinds of
occupations, for various kinds of grants. Not all
of them are in the form of rights, particularly in

the welfare area, many are in the form of

discretion. This one is in the form of a right.

It is a legal entitlement.

DAWSON J:  What do you mean by security of property, I do

not understand that phrase. Do you mean that any

diminution in wealth is an acquisition of property

for the purposes of (xxxi)?

MR SPIGELMAN:  If Your Honour is drawing my attention to

what is property, it does not mean that

anything - - -

DAWSON J:  No, no, no, what you mean by the phrase security

of property?

MR SPIGELMAN: In terms of what the principle is, the

principle is that in a free society which is based

on the autonomy of individual citizens, they are

Peverill(2) 96 10/3/93

entitled to retain their property and not be

deprived of their property without just

compensation.

DAWSON J: Retain the value of the property you must mean?

MR SPIGELMAN:  They are entitled to retain their property

without just compensation excepting that there are

circumstances in which the State has eminent domain

powers.

DAWSON J:  No, but you gave the example of the taxi licence

which is reduced in value by the provision you have

referred to, and that must - if you say that is an

acquisition property, you must really mean that any

diminishing in value of the property, by reason of

legislation, is an acquisition of property.

MR SPIGELMAN:  The diminution of value, we would say, goes

to the-just term component - - -

DAWSON J:  No, in that case you say there was an acquisition

of property, do you not?

MR SPIGELMAN:  We say the first step, Your Honour, is that

the taxi licence is property.

DAWSON J: Yes.

MR SPIGELMAN:  The next step is that there is, in effect, an

acquisition. There is a law with respect to the acquisition, but it is not an acquisition by the

Commonwealth - - -

DAWSON J:  But the law was saying that it could not be

transferred except $1000.

MR SPIGELMAN: Yes. It is not a law, with respect to the

acquisition by the Commonwealth, it is a law with

respect to the acquisition between the parties to

the transfer. If Sl(xxxi) extends to that, then

this is a Commonwealth law.

DAWSON J:  The only effect of a law of that sort is to diminish the value of the asset.

MR SPIGELMAN: Yes, it is a law with respect to the transfer

of a taxi licence from one person to another, and

by reason of the price being $1000 instead of

market value of $100,000, or whatever it is, is on

other than just terms.

DAWSON J:  But it is an acquisition of property, you are saying.

Peverill(2) 97 10/3/93

MR SPIGELMAN:  It is an acquisition by the person buying the

taxi licence from the vendor of the taxi licence.

It is not an acquisition by the Commonwealth.

DAWSON J:	The law is not a law with respect to the - - -?
MR SPIGELMAN:	The law is with respect to an acquisition

between other parties, and that is within Sl(xxxi).

Now, there may be other grounds for questioning the

constitutional validity of legislation of that
character, but the question is whether Sl(xxxi) is

available as an alternative. We say it should be.

The reason I choose a State Act is because one

approaches legislation and the repeal of

legislation and its amendment on the basis - - -

DAWSON J: Sorry, I just want to get this straight. We are

talking about acquisition for the purposes of the

Commonwealth, are we not?

MR SPIGELMAN:  For a purpose for which the Commonwealth has

power to make laws. Sl(xxxi) is not for the

purpose of the Commonwealth. That is why I say a

corporation - one could think of other examples,

using the corporations power as a shorthand. My

basic submission is directed to the proposition

that if one can set aside the question of

parliamentary supremacy or parliamentary
sovereignty at a Commonwealth level, because there

are statutory entitlements, and the question I am

seeking to address is that those statutory

entitlements are property, despite the fact that
they have an intrinsic infirmity from the power of

the legislature to repeal with retrospective

effect. They are property and we submit that at

both levels they operate to - at both levels being

State and federal - they would be within the

protection of Sl(xxxi).

McHUGH J: But supposing the Commonwealth grants mining or

oil leases, offshore leases, to a company and then

at a later stage grants more leases in the same area, is that an acquisition of property by the

Commonwealth?

MR SPIGELMAN:	The act of granting the leases?
McHUGH J: Yes.
MR SPIGELMAN:	The hypothesis is they are in the same area?
McHUGH J:	Same area, yes.
MR SPIGELMAN:	It is likely that 109 would sort that problem

out, but I am not sure that it is an acquisition of
property by the Commonwealth. If there is an

inconsistency of that character -

Peverill(2) 98 10/3/93

McHUGH J:  But really because the Commonwealth diminishes

the value of a statutory entitlement from the

Commonwealth cannot constitute an acquisition of

property, can it?

MR SPIGELMAN: That law is not a law with respect to the

acquisition of property, either by - I do not think

it is, by the Commonwealth, but it is definitely

not between third parties in the sense of the taxi

licence price restriction type example. But one

would have thought that if the Commonwealth and the

States have jurisdiction over matters of that

character and there is a plain inconsistency, the

question would not really arise in terms of an

acquisition power problem.

McHUGH J: What I was thinking, really, was the Commonwealth

offshore leases, but it does not matter.

MR SPIGELMAN:  If Your Honour pleases. Your Honours have

been taken, most recently in Mutual Pools, to the

cases which say how wide a term "property" is and I

do not propose to take Your Honours to that, but I

would wish to take Your Honours to the Constitution

and direct your attention, as we have in our

written submissions but more directly, to the

provisions of Sl(xxxiii) which we say is another

acquisition power. This is a matter that perhaps

has not received any attention in terms of this
Court's Sl(xxxi) jurisprudence.

If one looks at a Sl(xxxiii) - (xxxii) just

talks about control of railways for naval and
military purposes - and then it goes on to give the

Commonwealth another acquisition power which refers to:

with the consent of a State, of any railways

of the State on terms arranged between the

Commonwealth and the State:

Now, the terms "arranged between the Commonwealth

and the State" has the same function in (xxxiii) as

the reference to "just terms" has in (xxxi).	The
reference to "any railways" is indicative, we
submit, of the breadth of the idea of property,
that when one acquires railways it is just not

physical track and matters of that character, one

also acquires the whole bundle of contractual

rights and obligations and intangibles and debts

and various other things.

It is indicative of that, but it is also

indicative for present purposes of the relevance of

statutory entitlements because many of the things

that State railways would have acquired by 1900

would have been based on State statutes. In some

Peverill(2) 99 10/3/93

way or another the statutory entitlements under the

State statutes, where they have got property and

easements and all sorts of things, would have had

to be transferred to the Commonwealth pursuant to

some arrangement between them. Sl(xxxiii) just has

not featured in Sl(xxxi) cases, but it is another

acquisition power and is in some respects a

parallel power.

BRENNAN J: But you are seeking to draw a dichotomy, are you

not, of saying statutory rights are property - - -

MR SPIGELMAN:	Yes.
BRENNAN J:	- - - and nothing other than property,

therefore, if you have got security of property you

cannot change the statute retrospectively without

compensation.

MR SPIGELMAN: Statutory rights can be property; not all

statutory rights are property. Statutory rights

can be property, and in so far as they are properly

characterizable as property they are subject to

51 ( xxxi) .

BRENNAN J:  The question is whether they are property of a

particular kind, namely property so long as the

statute stands on a statute book.

MR SPIGELMAN: That is the first proposition we advanced

just before stumps yesterday, which was confessing

to a certain chicken and egg question. We say that

the constitutional guarantee answers the question

of what comes first, namely the second statute

cannot infringe a constitutional guarantee.

BRENNAN J: Well, that is opting for one or the other -

MR SPIGELMAN: If Your Honour pleases.

BRENNAN J:  - - - because you only attract the

constitutional guarantee on the hypothesis that the

property is there.

MR SPIGELMAN:  Yes, Your Honour, but we say that the

constitutional guarantee is of the character that

it operates as a qualification on the legislative

power and therefore -

BRENNAN J: Right, so that the argument is that Sl(xxxi)

operates as a qualification on legislative power to

amend any law which creates property, or provides

for the creation of property.

MR SPIGELMAN: It operates as a qualification on any law

which affects or effects an acquisition of

Peverill(2) 100 10/3/93

property, including ones of the character to which

Your Honour refers.

BRENNAN J: Well, if it is property, ex hypothesi, in a

sense it must affect its acquisition, that being of

the nature of property. But if that is so,

Sl(xxxi) drives a horse and cart through

legislative power.

MR SPIGELMAN:  When you say a "horse and cart", it means

that prior to the Parliament creating statutory
entitlements, it must understand that subsequent

legislation, which operates with retrospective

effect, is restricted by the overriding provisions

of Sl(xxxi), as it is restricted by other

constitutional guarantees in the Constitution. It

may be easier today than it was 100 years ago to

recognize the significance of government regulation

as a form of property, but these days it should be

so recognized. That is a policy issue which has

not arisen in the Court before, but we say it is

proper to recognize it as such.

McHUGH J: But it may be that it is inherent in the nature

of this class of property that it can be terminated

by the very legislation which gives rise to it. So

that it is not as though it continues on in some

sense.

MR SPIGELMAN: It can be terminated on just terms by

subsequent retrospective legislation.

McHUGH J: Just by an exercise of the legislative power

which created it?

MR SPIGELMAN:  Yes. The legislative power that - we are

dealing with a situation where a subsequent statute

operates with retrospective effect and only such a

situation. We are not dealing with a situation where some sort of continuing rights to receive

government, what my friend refers to sneeringly as

"gratuities", exists; we are talking about

retrospectively taking it away. Now that, we say,

that subsequent legislation, must comply with all

constitutional guarantees, including this one. It

is the nature of the constitutional guarantee to

have the effect of restraining the freedom of the

legislature to either enact legislation or to amend
legislation, and such a restriction on enacting is

no different in principle from amending.

In this case the pleadings before the Court,

to which we have referred in our outline, indicate

that - sorry, before I get to that, could I say

something about the United States taking cases.

They are more than usually irrelevant in this case on the first basic submission we make to the Court

Peverill(2) 101 10/3/93

about the third party acquisition, because in that
case the United States takings clause is about
takings for a public purpose; it does not extend to
acquisitions other than by the federal government
or on its behalf.

So the first way we put the case, really, the takings, it is as basic a distinction as the

distinction that Your Honours directed attention to

in Tasmanian Dams, but they talk about takings and

not acquisitions. They are just saying nothing

about third party takings and the problem with all

this line of the United States authority, as the
cases my friend relied upon showed, is the
different provisions of the American Constitution
overlap in their effects; there is the contracts
clause, which has some work to do in this
territory; there is the due process clause. Until

1937 there was what they called substantive due

process,- which is not true apparently subsequently

in terms of economic rights, at any rate, but then

there is the Fourteenth Amendment provision against

ex post facto laws of the States. In any American

case these matters overlap in a way which, quite

frankly, makes their line of authority very

difficult of application to our less complicated

set of provisions.

In the present case, in terms of - my friend

has spent some time making references to what one

might regard as merits. He started off by saying

that every sentence of the second reading speech

was a fact and seemed to invite the Court to remit
those in due course apparently in the words that
they were uttered in the second reading speech and

the explanatory memorandum, and he picked up the

words like "windfall gains'' and "complete windfall

out of the public purse'' and "$7 million for

nothing" and "$100 million here", and the other one

was "prevent windfall payments to undeserving

beneficiaries".

Your Honours, I must say something about that.

The first thing we say is that that entire analysis is irrelevant to any matter before the Court, but I

cannot ignore it. On the pleadings before the

Court there is a pleading to which we referred in

our written submissions that until the end of 1986,

for about the first year or two of the new system,

my client continued to make claims on the basis of

the directives, which were subsequently

acknowledged to be invalid.

However, from the end of 1986 he did in fact assert the invalidity of the directives and he was

entitled to conduct his affairs on that basis and

he was entitled to be paid in accordance with law

Peverill(2) 102 10/3/93

and he was entitled to assume that he would be so

paid in making decisions as to whether or not to

accept an assignment from a patient and give up any
right he might have to make any additional charge

on that patient, and he was entitled to do so in

making decisions about investment in the new

equipment, because the whole case is about new
equipment, of this ELISA technique. It is what I refuse to accept as an adjective the reference to investment-backed expectations; we are in that line
of territory. In terms of all of those matters, we

say that the Court will determine the matter in

accordance with the law as it stood and will not be

affected by the numbers that my friend found

occasion to make frequent reference to.

Your Honour Justice Brennan made reference to the appropriation power. We just simply wish to

say we agree with the Solicitor-General that that

is not-a problem. There is a standing

appropriation. If the subsequent legislation

offends the constitutional guarantee and is

invalid, then the amounts we seek to claim below

are appropriated by section 125.

BRENNAN J: Is that because the amending Act has no effect

at all?

MR SPIGELMAN:  The amending Act may have had some effect. I

do not think this Court has ever determined,

outside the section 109 territory, what the precise

effect of constitutional invalidity is, but it is a

question of power. This Court's approach to

section Sl(xxxi) as shown in, most recently in

Bourke v State Bank picking up Schmidt; was that

Sl(xxxi) is the sole head of power form passing laws with respect to the acquisition of property.

So when one looks at section 20A, and Your Honours seemed familiar with it yesterday and I have not

taken Your Honours to it, the head of power that	justifies section 20A is Sl(xxxi). It is not found
in the medical and social welfare provisions. 20A is about the acquisition of property by the doctor
from the patient. The only basis on which the
Commonwealth can pass laws with respect to
acquisition of property is Sl(xxxi) and 20A is such
a law.

BRENNAN J: That assumes acquisition is the equivalent of

transfer?

MR SPIGELMAN: If Your Honour pleases, yes.

BRENNAN J: Is there any authority that says that?

MR SPIGELMAN:  Yes. We say that what is involved in the

chose in action, the patient's chose in action,

Peverill(2) 103 10/3/93

against the Commonwealth is property and this is a

scheme of statutory assignment, which we say is

relevantly an acquisition.

McHUGH J:	But the argument is also circular, is it not?
MR SPIGELMAN:	In what respect, Your Honour?

McHUGH J: It assumes that it is an acquisition. If it is

not an acquisition then it would be covered by the

welfare power, would it not?

MR SPIGELMAN:  I am sorry, the argument is circular, yes, we

say an assignment is an acquisition. If it is not

an acquisition it would be covered by the welfare

power. We do not say that the Commonwealth has no

power to pass it, we say it is an acquisition of

property, is a reference from acquisition of property, if so then the only power that the

Commonwe·a1 th has to pass it is 51 ( xxxi) .

DAWSON J:	You are going to deal with the problem that extinction is not acquisition?
MR SPIGELMAN:	Yes, Your Honour.
DAWSON J:	And that, therefore, this is not a law with

respect to acquisition. It does not matter how the

doctor got his right, we assume he got his right,

but that is brought to an end and it goes to no one

and, therefore, there is no acquisition, it is not

a law with respect to the acquisition of property.

MR SPIGELMAN:  I am not sure if Your Honour is putting that

to me on the first - we say that problem does not

arise on the first way we put the case. We say

that there is an acquisition of property and it

happened in the past on the first way.

DAWSON J:	One can assume that, one can assume - - -
MR SPIGELMAN:	That is 20A. we acknowledge that it raises the question of is an	The second way we put the case,

extinction an acquisition, and that was the way

that found favour with His Honour below.

Yesterday, when Your Honour asked me about this, I

mentioned that there may be some examples in the

bills of exchange area and the one I had in mind

was this: if an acceptor of a bill of exchange

becomes the holder, it is extinct, it is

extinguished, it is terminated, it disappears as a
property.

However, the process by which he becomes the

holder is an acquisition of property, even though
the consequence is that it extinguishes the
property. At the end of the day, we say, in an

Peverill(2) 104 10/3/93

example like that, he has acquired property though,

as Your Honour put to me yesterday, the

Commonwealth must still have it. We say, the

Commonwealth must not still have it because you can

have an acquisition of property which has the

consequence of the extinction of an obligation by

that person. It was property until it came into

his hands, once it came into his hands it ceased to

exist, by reason of the fact that it was his

obligation.

DAWSON J:  By reason of the fact he acquired it, but there

is also another way of doing it; that is just

putting an end to it.

MR SPIGELMAN:  If Your Honour pleases. I do not think I can

put our proposition on this better than this, that

we say that the legislation, in substance, is a

step which is like the negotiation of the bill to

an acquisition with a consequence.

DAWSON J: Well, the result is the same, the method is

different.

MR SPIGELMAN:  I am sorry, Your Honour?

DAWSON J:  I put that as a proposition to you. The result

is the same, but the method is different.

MR SPIGELMAN: If Your Honours please, if I cannot convince

Your Honour that in substance what the Commonwealth

has done is acquire a right against itself and

cancelled it, if that not is the substance of what

it has done, than I cannot win on this way of

putting the case.

DAWSON J: Well, you see, that is the question: it did not

acquire a right and cancel it, it just cancelled

it.

MR SPIGELMAN:  What it did do was insert into the

legislation certain terms, namely the dates at

which certain things are deemed to operate which

had the effect of cancellation.

DAWSON J:  Or modification, yes.

MR SPIGELMAN:  If Your Honour pleases. I do not think there

is anything else I can say about that, Your Honour.

DAWSON J: Well, I follow the point.

BRENNAN J:  Mr Spigelman, could I just interrupt you to take

you back to the question of section 125. Would it

be within parliamentary competence to amend

section 125 so as to limit the appropriation

excluding the entitlements of your client?

Peverill(2) 105 10/3/93

MR SPIGELMAN:  I think consistently with what I have been

putting, the answer to that would be no. I think I

would have to say that I am probably driven to

that. It is one step further removed but I cannot
think that the principle that I am putting to the

Court would not be equally - - -

BRENNAN J: Whatever the answer is, it may not answer your

argument at all, but it seems to me that it

requires some consideration in the case of a

statute creating what is said to be property when

that property consists of no more than a claim

against Treasury - a voluntary claim against the

Treasury.

MR SPIGELMAN: It consists of more in this sense, that in

the past there have been transactions by other

parties based on the existence of that promise, if
you like, and in that respect the - one hesitates

to use_the word "expectations" in yet another area

of the law, but there are expectations - - -

BRENNAN J:  A kind of constitutional estoppel.

MR SPIGELMAN: Yes. Well I have resisted using the word

"legitimate" in front of it, Your Honours, but

there are expectations and they are created in a

manner which, if Parliament does not wish to have

that effect it does not create rights, it creates

discretions. Much welfare legislation is in the

form of a discretion, but this one was not and the

Parliament expressly contemplated third party

transactions occurring on the faith of the

legislation as it stood - and appropriated - with a

standing appropriation.

Your Honours, my friend spent some time

referring to gratuities and curative legislation

and we think this is just some labels that he has

adopted for what was his basis proposition. At

some point in his argument he said this, "If there

is a clear public interest in divesting a person of

his property at less than market value that can be

regarded as just". Now, the Court will have no

truck with that proposition; that writes 51 (xxxi)

out of the Constitution. To attach to something

the label of gratuity or that it is merely curative

is, we think, saying - some time in his submissions

he used words like "confiscatory" which is saying

that this area is in the same area as those

recognized - they are not exceptions - matters to

which Sl(xxxi) does not apply: taxation, prohibited

imports, enemy property, penalties, matters of that
character, confiscation of property used in

criminal transactions, matters of that character.

Peverill(2) 106 10/3/93

In Tooth, and I think my friend referred the

Court to Mr Justice Gibbs saying that there has

been no clear answer given in this Court to what it

might be that underlies, as a matter of principle,

the various exceptions that he acknowledged in

Tooth - and we have given the references to Tooth

in our outline - we would like to propose one, but first I think we need to say that there are really two areas: one is taxation, which stands on its

own, it really is an acknowledged separate head

with its own incidence and many of the - - -

DAWSON J:	Why does· it stand on its own?
MR SPIGELMAN:	We think that in terms - we do not think it

has got anything in common with questions like

prohibited imports and endangered species or -

DAWSON J:  The proposition has been put in the cases that

it does ·not involve the acquisition of property.

MR SPIGELMAN: That is so.

DAWSON J: But that is not the basis on which you put it.

MR SPIGELMAN:  I am sorry, we accept that it does not

involve - no, we have a principle to explain, we

think, the other cases, including perhaps taxation,

but the principle which we wish to put probably

does not extend to taxation. And what we are

saying is that we think we have got a principle for

the other cases. Taxation also does not involve an

acquisition of property, but that is for different

reasons, of the nature of government revenue

raising over the centuries; the other matters like

prohibited imports and the like.

DAWSON J: Well, the view that is put is that it does not

involve the acquisition of property because it

merely involves the creation of a debt and the	satisfaction of the debt does not involve
acquisition of property, and that is why you can
say that (xxxi) extracts from all the other heads
of power acquisition of property, as you put it, and puts it in (xxxi). You are not troubled, on
that analysis, by taxation powers.

MR SPIGELMAN: If that is the reason for taxation being

separate, then - - -

DAWSON J:  I am asking you: do you accept that reason?

MR SPIGELMAN: Actually, we would think that the history of - I am sorry. It is inherent in a sovereign

government - - -

Peverill(2) 107 10/3/93

DAWSON J:  I know you put it that way, but I am asking you:

do you accept that, for that reason, that is that

taxing involves no acquisition of property, that

you are not concerned with the taxing power at all?

MR SPIGELMAN:  We accept that you are not concerned with the

taxing power but not for that reason, for a broader

reason which encompasses that reason in the sense

that -

DAWSON J:  I do not understand that. Either you accept that

reason or you do not, and if you do, you are not

troubled by anything else for that reason.

MR SPIGELMAN:  No, we are not troubled by it, and it does

not arise in this case, although it does

arise - - -

DAWSON J: Yes, but it has a bearing on how you approach the

analysis of this case.

MR SPIGELMAN:	If Your Honour pleases. What we say is the taxation power is a right inherent in the
sovereignty of a political system and that that is
reason to the exclusion - - -
DAWSON J:	I know you say that, but do you also say that

taxing does not involve the acquisition of

property?

MR SPIGELMAN:  We say taxing does not involve - is not

within the acquisition power.

DAWSON J:  I know you said that, but is it not within the

existing power because it does not involve the

acquisition of property? Do you accept that?

MR SPIGELMAN:  When we come to our section 55 way of putting

the case we are going to say this is a tax,

Your Honour.

DAWSON J:  No, no, it is a simple enough proposition, that

when you tax someone you create a debt, and the

satisfaction of the debt does not involve the

acquisition of property by the Commonwealth who is

taxing it. Do you accept that or not?

MR SPIGELMAN:	Your Honour, we think that the State would have power to tax in kind.
McHUGH J:	What do you mean by "in kind"?

MR SPIGELMAN: That if the State appropriates to itself some

sort of property for some other reason one could

characterize it as a tax. In the old days I guess

it was a tithe of the wheat or something, rather

than any - we have a monetary economy now.

Peverill(2) 108 10/3/93

DAWSON J: Let us not talk about tithing, just where the

exercise of the taxing power creates a debt and the

satisfaction of the debt is the payment of

taxation, does that constitute an acquisition of

property on your argument?

MR SPIGELMAN:  The act of taxing does not constitute, we

would accept - we would accept that the process of

constituting a debt, or as Your Honour put it -

DAWSON J:	Or a satisfaction of that debt.
MR SPIGELMAN:	Or the satisfaction of a debt or a chose in action is not itself an acquisition, as Your Honour
put to my friend yesterday.  We get around that in
the first way we put the case by saying there is an
acquisition by the assignment.
DAWSON J:	But you accept that proposition, very well.
MR SPIGELMAN:	Bu·t in the present case, in looking for a

principle within which one can try and put the
various examples of prohibitive imports and matters

of that character, we find the taxation cases to be

a little sui generis in the sense that they operate

with their own structure and history. The

proposition that we would find - we have referred

Your Honours to what the Americans sometimes call

the police power exception to the takings area -

the proposition that we find and which we will put

to the Court is the underlining principle of that

area is that property rights may not be used to

injure other citizens.

That is why there are cases like prohibited

imports, endangered species, enemy property,
sequestration - matters of that character - which
fall outside the area of acquisition of property
for different reasons than the taxation line of

territory falls outside it.	We think there is an
underlying principle and it is the one we put -

that property rights may not be used to injure

other citizens - and so it does not make sense to

talk about an acquisition of property on just terms

in the context of prohibitive imports and matters

of that character. If that is the principle, we
are outside it here.

What my friend seeks to do is to say that in addition to the others that have been considered in

Tooth and other cases and which in that case

Justice Aickin refused to categorize as exceptions

to the acquisition basis and they just do not

properly fall within them at all, gratuities and

curative legislation is not of that ilk. Many of

the cases that my friend relied on were in fact

taxation cases, fixing up past cases. I do not

Peverill(2) 109 10/3/93

remember the name of the Bottom of the Harbour case

in this Court, but of course the Court dealt with

that principle in that case. We say that all of

that has no effect on what might be regarded as
third parties, namely in this case patient and
doctor assignment, if that be an acquisition.

Perhaps the other way of looking at these

cases of prohibitive imports, and we do not put
this as the right way, but perhaps the other way of
looking at all those cases is that in all of the

circumstances the acquisition in those - even of a

confiscatory character is just. That has not been put and we do not put it, but we mention that as a

possible unifying factor.

McHUGH J: It is a fairly dangerous principle you are

espousing, is it not?

MR SPIGELMAN:  I ·am not espousing that principle; I am just

referring to it.

McHUGH J:  You are putting it forward as the rationale.

Does that mean if I have got a property that is

infested with rabbits which are causing a lot of

damage and - - -

MR SPIGELMAN:  I am sorry, the one I do put - yes,

Your Honour.

McHUGH J:  You can acquire my property?

MR SPIGELMAN: For the purpose of preventing - not for the

purpose of using it to breed goats, Your Honour,

but for the purpose of preventing it affecting the

neighbours' land and matters of that character. It

is not impossible. When you say acquire property,

if one simply acquired it simply and then the

Commonwealth proceeded to use it for its own purposes, that would indicate that the purpose was

not the permitted purpose, but if a reasonable form

of regulation - if the only reasonable form of

regulation was abolition - I hate to refer to that.

Your Honours will recall that formula from the

Banking case exception that nationalization was the

only permissible - banning something was the only

permissible form of regulation, but it is the same

kind of question.

McHUGH J:  I think in the Northern Territory there is

legislation which enables in certain extreme

circumstances the Department of Agriculture or
somebody to come in and take control of your
property because there is some disease on it which

threatens the cattle. If the Commonwealth passed

similar legislation here, would that be an

acquisition of property?

Peverill(2) 110 10/3/93

MR SPIGELMAN:  We would say that is precisely the kind of

thing that the Americans talk about in terms of

police power, and we would say, no, it would not be

an acquisition of property; it would be outside

that area of the core and in the area of prohibited

imports, forfeiture of prohibited imports,

forfeiture of - where people lose property. I

mean, they lose totally their rights to property
and the question is, why are prohibited imports of
that character or enemy property of that character
or legislation of Bankruptcy Act or for

sequestration; why is that permissible, and we

would think that the example that Your Honour gives

is probably within the same principle. And the

important thing, of course, is it is a long way

from this case. That principle, if it is the

underlying principle, does not justify what

happened in this case.

Your Honours, I now wish to come to the question of just terms and the first proposition is

that the clear public interest test propounded on

behalf of the Attorney-General is not acceptable.

We have outlined the way we put our just terms

issue on the first way we would put the case in our

submissions at paragraphs 10 and 11 and they

basically pick up two points. This is there was a
past acquisition by means of the assignment under

20A. The first point is that it was on just terms

when it occurred because we had a choice whether to

accept the assignment on those terms. It is no

longer just by reason of the retrospective change

in the consideration for that assignment. We also

draw attention to what one might call the interest

point. This case is based on the assumption that

we were entitled to certain kind of payment for

periods up to five years. They say, no, at the
beginning of that period reasonable remuneration

was X - and I come to what they say about that in a

moment - and therefore we can pass a law in 1991

which says you should have only got X. Whilst the

law can have retrospective effect, it does not have

the Orwellian consequence of creating the situation
that we never had a legal entitlement; it does not

change the history. We did have a legal

entitlement; we were entitled to that money for

that period of time up to five years, and no
compensation is proffered on any view for the loss

of that funds.

In terms of the just terms debate, obviously

the way we put our first case and the way we put

our second case overlaps. Plainly we had the onus

of proving that the acquisition, if there was an

acquisition of property, was on other than just

terms, and we say we discharge that onus by saying

that it was confiscatory.

Peverill(2) 111 10/3/93

DEANE J: Mr Spigelman, I just do not understand the way you

put your first case. I just cannot fit it into

subsection	(xxxi).	I	am obviously missing
something.

MR SPIGELMAN: If Your Honour pleases. Could I take

Your Honour to section 20A, or does Your Honour

wish to ask - - -

DEANE J: Well, no, I can follow your saying that there was

an acquisition by the applicant but, of course,

that could only take place by agreement under
section 20A, but I just do not follow where it can

be argued that there was an absence of just terms

for that acquisition, where your client acquired

the property.

MR SPIGELMAN:  Our client acquired the property on terms, at

the date of the acquisition, that he would be

entitled to be paid roughly $30-odd by the

Commonwealth, less 85 per cent of $30-something

dollars. That was the situation at the date of the

acquisition. Subsequently, by reason of the 1991

Act, what he was entitled to receive as at the date

of the acquisition was reduced to $15-odd.

DAWSON J: That is like saying, "When I acquire property, a

law with respect to that property is a law with

respect to acquisition, because I acquired it."

MR SPIGELMAN:  We say that it was a law with respect to

acquisition, yes.

DEANE J: But the just terms for that acquisition were the

medical services that you provided because the

person who was deprived of property by that

acquisition was the patient. Well now, I just

cannot follow how the fact that what you acquired

is subsequently reduced in value brings in

subsection (xxxi) in terms of the acquisition in

paragraph 1 of your argument. I follow once you reach paragraph 2, but it

seems to me paragraph 1 somehow has set you off on

a completely irrelevant trail.

MR SPIGELMAN:  The property we acquired was the claim by the

patient on the Commonwealth. That was the chose in

action. We acquired that property. That property

bore with it, at the time we acquired it, a right

to payment in a certain amount.

DEANE J: Well, I will not take time, but there is no

acquisition from you in relation to - - -

MR SPIGELMAN:  No. I am sorry, no, we do the acquiring. We

acquire a property and we say that a law - it may

Peverill(2) 112 10/3/93

boil down to a question of scope of "with respect

to", a law with respect to the acquisition affects
the person doing the acquiring as much as it does -

the transferor as much as the transferee.

DEANE J:  But your argument then is: an acquisition of

property which is not as valuable as you thought it

would be is an acquisition of property which is

relevantly on other than just terms.

MR SPIGELMAN: Well, what we say is that there is an

acquisition of property and the step by which the

property is reduced in value constitutes the

original acquisition as being on other than just

terms, and it is on the BMA principle where it was

found not to be within the formula about civil

conscription so long as the doctor had a right to

choose, namely he could provide the service or not

at the fixed rate, and that is the principle that

we would bring into this area, of saying, "Well, we

had a right to choose at that time and on that

circumstance the terms on which we did the

acquiring were just, however, the subsequent

legislation has altered the terms on which we did

the acquiring and, because we had no right to

choose, they are other than just".

Other than that on just terms, we say that our

basic proposition is that a confiscatory law is

presumptively not on just terms and that the

argument against that is that - it seems to be

put - the other schedule of fees was itself

reasonable. Now there is no evidence of that

before this Court, nor has the Court been proffered

any evidence that if the matter were remitted there

would be such evidence. All that is offered to

this Court, and all that was offered below, is a

sentence in the second reading speech that it was

reasonable remuneration, which is an expression of

the Minister's opinion and is not capable of being

proof of the fact, and the fact that most other

medical practitioners accepted the lower rate, from

which my friend assumes that the only proper

inference is that everyone regarded it as

reasonable.

My client has been challenging this

legislation for about five years now, or the
validity of all this for about five years now, and

we are still not there. There are other inferences

open, than an assumption of reasonableness, as to

why other medical practitioners did not challenge

the validity of the directives.

My friend also said that it had to be

reasonable because it was fixed by an expert

committee. Well, it was fixed by a committee with

Peverill(2) 113 10/3/93

representatives of the medical profession on it.

What, if any, relevant expertise they had is an open question and we just simply say it is just

irrelevant to consider that other pathologists were

not prepared to challenge this matter. It is also

a bit difficult to know what it is my friend wants

the Court to do in terms of remitting if this

question - and I anticipate this is the only real

question which could be remitted, namely: is, as a

matter of fact, the other schedule reasonable

remuneration.

We say that the Attorney was served with a 78B

notice below; he did not appear. He comes here as

an intervener and what the state of the evidence is

is none of his business. The Health Insurance

Commission cannot say that they want leave to

reopen because we have fought a case and the

evidence is in. We have handed up to Your

Honours -- we have taken no objection to the

material handed to Your Honours for Your Honours to

refer to, but we say that there is no proper

inference available from any of that material that,

as a matter of objective fact, the alternative

schedule of fees constitutes reasonable

remuneration.

This is a case, Your Honours, where the

principle discussed in Gerhardy v Brown,

particularly in Your Honour Justice Brennan's

judgment, of the ability of the Court to inform

itself as best it can and that it is not bound, in

a constitutional validity question, by the evidence

inter partes.	We do not doubt that a principle
like that exists.	The way it is to be used,

particularly in lower courts, is an issue in these

proceedings and now that judges at first instance

are doing more constitutional cases than they may

have in the past this may be an occasion for

Your Honours to say something about the matter so

we have taken the opportunity of doing a list of	references on that point, which we could hand up
and along the bar table. I do not propose to take
Your Honours to any of those in terms of the
authorities, it is just a list of references.

In the present case, what we would say is that

the principle - Your Honour referred as an open

question in Gerhardy v Brown to the principle of

whether or not this other material had to be

"public and authoritative". We would have to say

that it has to be authoritative and that rhetorical

flourishes such as exist in the second reading

speech about "windfall gains" and "serious damage

to the revenues" and "reasonable remuneration" are

not of that character and that they are not in a

form proper for the Court to say, as a matter of

Peverill(2) 114 10/3/93

objective fact, assuming we have discharged our

basic onus on just terms, which we acknowledge we

have, assuming it was not for us to prove that it

was otherwise than reasonable because we did not

seek to do so and did not do so. But we say that

there is no evidence before the Court that would

enable the Court to draw that conclusion as an

objective fact. It can draw the conclusion that

some people thought it was, but my client would not

be here if he did.

Your Honour, there was some talk about -

during the course of my friend's submissions he

said at certain times that the effect of this

legislation was to increase the fee. Now, the way

this works, as we apprehend it, is this: in the

list there was the old - what was a 2294 item in

schedule l(a), the item denoted 2294, which was an

amount _of $4.60 and my friend made reference to that. Then there was the 1345 item on which we

rely in the proceedings below, and then there was

this new item which is inserted with retrospective

effect as 2293 and 2294. The 1345 was $30-odd and

this one $15-odd and it increased over time.

As we apprehend what my friend says was that,

"Well we increased the legal entitlement from the

$4.60 to the $15". That is precisely what we

litigated in the case of Peverill v Meir and won,

that in this area 1345 does apply and 2294, the

$4.60, never did apply, and in the pleadings here

we have said that constitutes a res judicata

between us. It appears from what my friend said

that he continues to say that there is no res

judicata because that was just an administrative

law question, and that is why what we thought was a

test case is not a test case, and instead of having

one rubella case we now have to sue, as we are

doing in the proceedings in this Court, for every

single service. First; could I take Your Honours to the 1991

Act, and this is, I think, my final submission on

just terms, and invite Your Honours' attention to

section 4(l)(a) and (b), and 5(l)(a) and (b) is in

relevantly identical terms. Section 4(1)(a) and

(b) are completely retrospective, they do not

validate any directive, and the evidence below said

that 4(l)(c) and following constitute the

directives which put into the legislation for the

first time what the Commonwealth had tried to do

administratively and had done invalidly. But

4(l)(a) and (b) are new, they were never part of

any directive. So in this respect the legislation

is completely retrospective.

Peverill(2) 115 10/3/93

In so far as 4(l)(a) and (b) apply to

anything, no one has ever said it is reasonable remuneration. It is not like the enzyme-linked immunosorbent assay or known as ELISA technique to

which (c) and following apply. What 4(l)(a) does

is, you cannot get payment under 1345 or 1346 for

anything that is a microbiological antibody

relevantly. And then under (b), if you could fall

within one and within the other, then you fall

within the lowest.

Now could I take Your Honours to the pleadings

just to indicate the retrospective effect of the

legislation in a manner which is not anticipated in

any way by directives and not validated. There is

nothing curative about this, this is new.

The pleadings are in parallel form, and I take

Your Honours to G688 which appears at page 10 of

the cauae removed book. It is about rubella

testing. The reason it is separate proceedings is

because it was in this case that we claim a res

judicata, because rubella was an issue in the

Peverill v Meir proceedings. Paragraphs 1, 2, 3,

4, 5, 6 and 7 are all admitted on the pleadings and

they indicate the basic structure of my client's

laboratories. They go throughout Queensland and

the Northern Territory. Then over to 12(a), that

is also admitted on the pleadings:

Each of the pathology services ..... were

performed using procedures known as

"fluorescent immunoassay" or "enzyme

immunoassay" -

It is to the latter, enzyme immunoassay, that the directives relate. That is what summarized as the

ELISA technique. Fluorescent immunoassay was not a

part of these directives. Paragraph 13 is also

admitted on the pleadings:

The Fluorescent Immunoassay technique was

employed -

from certain dates -

to quantify the Rubella IgG antibody -

and then enzyme took over in the plaintiff's

laboratories from 25 May 1987, although it had been

used for rubella IgM antibodies for some time

before that. That is also admitted on the

pleadings. Paragraph 14 refers to requests,

Your Honours do not need to see those. If we go

through to 16, we say these were the services we

provided:

Peverill(2) 116 10/3/93

Each of the pathology

services ..... quantitatively estimated a

substance.

They are the words of item No 1345, namely, if you

can get a quantitative estimation of a substance,

you are entitled to payment under 1345. That was

the principal factual issue between the parties in

Peverill v Meir, namely:  was immunoassay a

quantitative estimation or was it something else?

Your Honours need to know no more than that.	17 is
admitted.

The way the defence treats these matters is - I should take Your Honours first to page 40, other than the admissions which are earlier. At page 40 in paragraph 15, there is a reference to

fluorescent immunoassay which says it was under

another item number, and there is an issue between the parties as to whether that item number applied to the kind of tests involved in rubella, the other

matters.

But then when one goes to the pleading of the

statute, that appears on page 42. When I say the

statute, the statute in question, the 1991

Amendment Act. That appears, and by reason of the

fact that it was an amendment, it appears

underlined in paragraphs 21, 22 and 23. In 2l(a)

the pleading is that:

Each of the substances referred to in

paragraph 16 of the Amended Statement of Claim

is a microbiological antibody.

That picks up the words of the 1991 Amendment Act.

Your Honours will recall 1345 is a quantitative

estimation "(other than a microbiological

antibody)". It is in that way that 1345 is on

these pleadings - and we think it is right -

pleaded in defence to both the enzyme immunoassay

technique and the fluorescent immunoassay

technique. It goes on to give in 2l(b) the effect,

it is excluded from item 1345, not liable to pay,

then goes on in paragraph 22 to pick up the rest of

the 1991 Act, namely:

As to such of the pathology services referred

to in paragraph 15 ..... as were performed using

the procedure known as "enzyme immunoassay" -

they have got another defence, which is that the

subsequent paragraphs of 4(l)(c), (d) and (e) and

S(l)(c) have the effect that with respect to that

technique, we are only entitled to claim in accordance with the legislatively validated

directives. The purpose of this exercise was to

Peverill(2) 117 10/3/93

show that the legislation goes beyond the

validation of those directives. It goes to strike

down a technique of a different character to which

the directives did not speak at the relevant date.

And that we say is a crucial question if

Your Honours get to the point of looking at the

question of just terms. We say you do not really

get to that point because it is a confiscatory law

and the circumstances or the principles are such

that it is not the right kind of territory for

that.

If Your Honour pleases, the section 55 point,

we accept that what we are asking the Court to do

is to take the definition of tax a little further

than earlier decisions of the Court have done. We

say, as we have put in our submissions, that this

is a fixed liquidated claim. If the Commonwealth

cancels_ _its fixed liquidated claim on it or amends
it, reduces it in some way, and we gave the example
of Commonwealth cheques - an Act simply saying that

all Commonwealth cheques can be honoured on

presentation at 90 per cent of their face value -

that that is in substance a tax. The Court has

considered what is a tax on many occasions; they

are in numerous formulae; we say in substance that

is a tax. My friend says that even if so, the Air

Caledonie line of territory does not apply because

at the time that the Act was amended to insert the,

what we say is a tax, namely the references to the

past dates, which has the consequence we attribute

to it of being a tax, that at that point as it

were, eo instanti, became irrelevant because it had

done its work, because it operated in the past. We

say that, nevertheless within section 55, the Act

as amended still, and the words are, deals with

taxation. It is still there even though it has had

the requisite effect at some prior date. And in

that respect, the Air Caledonie line of authorities

applies.

Unless I can assist the Court in any way, Your Honours, they are our submissions.

MASON CJ:  Thank you, Mr Spigelman. Mr Solicitor. I take it

you are replying on behalf of the respondent?

MR GRIFFITH: Yes, Your Honour. If the Court pleases, on my

learned friend's reference to the circumstance that
the Attorney did not interfere or intervene at the

trial of the matter, Your Honour, we would refer to

what Your Honour Justice Brennan said in

Gerhardy v Brown, 159 CLR 142, and it has been said

in other places, starting at the foot of page 141

where Your Honour said:

Peverill(2) 118 GRIFFITH, 10/3/93

The validity and scope of a law cannot be made

to depend on the course of private litigation.

The legislative will is not surrendered into

the hands of the litigants.

And further down the page, after referring to that commonly cited citation of the Chief Justice in

Breen v Sneddon, said:

The court may, of course, invite and receive

assistance from the parties to ascertain the

statutory facts, but it is free also to inform

itself from other sources. Perhaps those

sources should be public or authoritative -

and then you referred to the possibility that:

parties should be at liberty to supplement or

controvert any factual material -

and in the last paragraph of that page Your Honour

referred to material such as:

Ministerial speeches in the Parliament -

as being appropriate. But, of course, Your

Honours, Justice Jacobs, to similar effect, referred to this issue in North Eastern Dairy v

Dairy Industry Authority of New South Wales,

134 CLR 559 at page 622. I will not read that

citation to the Court, but the position must

remain, we submit, that when a constitutional

matter is before this Court, then the Court has its

constitutional duty to determine any issue of

relevant constitutional fact; indeed, the Court

could not be shut out from that by any agreement

between the parties, and I remember Your Honour

Justice Brennan raised that issue in course of

arguments over the Blank Tape case, where there was

agreed facts between the parties and we, of course,

accepted Your Honour's observation that whatever	the parties agreed to, from the point of view of
constitutional validity, was by the by; it was for
the Court to be satisfied as to the circumstances.

And the Attorney, we would submit at any time,

is entitled to come to this Court when he defends

the validity of legislation and to refer to facts

which he submits are relevant to that

determination. If the Court regards those facts as

irrelevant, well that would be by the by, but if

they are facts which are arguably relevant, we
submit the Court is in the position of having to
consider the manner in which the facts should

either be before it or identified as issues
subsequently to be resolved if that becomes a

determinative factor to determine relevance.

Peverill(2) 119 GRIFFITH, 10/3/93

Your Honours, the applicant's primary argument would seem to be, on my learned friend's submission

yesterday and this morning, to be the alternative

argument which was not dealt with by His Honour

Justice Burchett below.

In our submission, the voluntary assignment

from the patient to the pathologist under

section 20A is a false starting point for my

learned friend's argument. We submit that the

acquisitions power refers to acquisitions by

requisition, not a voluntary transfer between third parties. Of course, this is far away from anything

that we would submit might have been in

contemplation of those who introduced the

acquisitions clause into our Constitution in 1898.

But, it is perhaps sufficient for our purposes to

refer to what His Honour Justice Stephen said in

the Tooth case, 142 CLR 416 to 417. His Honour

said in -the last paragraph at page 416:

The reference to "just terms" throws light

upon the particular meaning of "acquisition"

in the placitum. Despite early dicta to the

contrary it is now well established that

pl (xxxi) contemplates acquisition by "the

method of requisition", not by "the method of

agreement" -

And there follows relevant citations and he refers

to the British Medical Association v The

Commonwealth where Justice Dixon "contrasted

acquisition under pl (xxxi) with the case of a

voluntary sale", speaking of the former as

involving the taking of property from him against

his will without just compensation.

So, similarly we would say when one is dealing

with the contrast with the question of acquisition

by agreement from the States, there is a

distinction there between agreed terms and

acquisition by requisition which involves the

concept of just terms. So, in our submission,

section 20A certainly is not a section supported

merely by the acquisitions power. It is directly

at the power under section Sl(xxxiiiA) .

MASON CJ:  What is the source of the Commonwealth's power

with respect to voluntary acquisition if it is not

compulsory.

MR GRIFFITH: Well, Your Honour, in the case of voluntary

acquisitions, one must look to the question of

whether the Commonwealth is acting within its

constitutional purposes, and if the Commonwealth is

acting by reference to a relevant head of power, be

it under placitum (51) or the executive power or if

Peverill(2) 120 10/3/93

one likes, even the parliamentary power,

Your Honour, and what is incidental thereto, we

would submit then the Commonwealth is in a position

by agreement and can make what arrangement it

wishes. In that case we say there is not an
acquisition, Your Honour, but there is an agreement

which is within power. If it were put that the

agreement, although satisfactory to the parties

were beyond power, that would be an issue of real

constitutional power, but we would submit not

derived in any way by reference to assistance from
the construction of the acquisitions power.

We submit there is no reason whatsoever to construe the acquisitions power, even if one

accepts, as we have, that it does apply to

acquisitions by others than the Commonwealth, as

dealing in cases of voluntary assignments by

agreement, even if that context of the assignment

is one-recognized by a statute.

If section 5l(xxxi) did have an extended

application, well then the acquisitions law would

apply to a vast array of legislative applications

dealing with ordinary transactions as they may be

regulated by Commonwealth law, and we submit that

it cannot be the case that Commonwealth regulation,

for example, as effected by the

Trade Practice's Act, is something which can - only

in each case as it affects a private agreement, and

any goods or tangible or intangible which may be

dealt with under private agreements may only be

regulated on terms that the Commonwealth is liable

for just terms in whatever statutory framework

which it does apply.

For that reason, in our submission, it is not

possible for the applicant to come within the

acquisitions power on its alternative and before

the Court the preferred argument and we would

submit then that the matter comes to be one which

is tested on the basis of the analysis which we

made in our submissions by reference to the

acquisition alleged by analysis that there has been

a cancellation of the right which was held to exist

under item 1345 and substitution of the right
provided in the 1991 Act.

The applicant's argument here is one where the

applicant does not attempt to support the justice
of the terms by reference to the value of the
services rendered by him. We submit that the

argument that it cannot be just because the Act has

intruded into a voluntary transaction, is just not

the relevant inquiry. The Antill Ranger case is

referred by my learned friend in his submissions

Peverill(2) 121 10/3/93

and we submit that that does not assist the

applicant in the way that he relies upon it.

The law in that case was one involving

infringement of section 92 and the point of the case, in our submission, was that the rights to recover the money were extinguished in such a way

that the same position were reached, as if the

original Act which admittedly contravened

section 92 had been held valid. So, in effect, the

Antill Ranger case was dealing with a case where,

in substance, the Act offended against section 92

itself, and we regard that as illustrating the

difference between something which retrospectively

validating something which could have been done

validly at time was not; an attempt to validate

something which could never have been validly done.

My learned friend refers to the case of R v Brown ±n his outline, paragraph 5, concerning a

case of a chose based on contract but, in our

submission, where a chose is purely statutory in

nature, whether it is assignable, depends upon the

true construction of the statute. In this Act we

submit that the right of the practitioner under

section 20A is one which, in the practitioner is

personal and unassignable and this creates a

special limited form of assignment, excluding other

assignments, and we refer to section 20A(5).

Dealing with my learned friend's reference to

the failure to provide for interest: in our
submission, the applicant, and the other
pathologists who accepted assignments, received

remuneration under the operation of the procedures

as they operated at the time, and as validated by

the 1991 Act, in accordance with the fee levels

which applied at the time the relevant applications

were lodged.

So, in our submission, the effect of the 1991

Act in its, if one likes, curative form, is to

establish the right to be paid, what we have at
length submitted was, the appropriate and

reasonable sum, and in those circumstances -

BRENNAN J: Well, that might be an interesting point, may it

not? If one treats the right to payment as a chose

in action, and it is a chose in action which the

doctor can acquire only by giving consideration for

it, why is it that the legislation, as distinct

from the quantum meruit assessment, should not

determine what is just terms if you take that

right, as it then existed, away from him.

MR GRIFFITH: Well, Your Honour, in our submission that

really involves rehearsing our submissions of

Peverill(2) 122 10/3/93

yesterday. What we say is that the scheme of the

Act is one which is intended to provide reasonable

remuneration.

BRENNAN J:  I appreciate the way in which you put the

argument yesterday. My question really is,

however, if there be a cause of action sounding in

the terms of the original Act, and you take that

cause of action away by the 1991 Act, one can
understand how that can happen if the original

cause of action was no more than a voluntary gift

by the Commonwealth to, for example, the patient.

But if the cause of action is one which was

acquired only by the giving of consideration, why

is it that the Parliament should have the power to

fix the just terms for that acquisition as distinct

from a quantum meruit assessment?

MR GRIFFITH: Yesterday we made submissions, Your Honour, as

to why-the operation of section 20A should not be regarded as giving rise to a contractual right to

the payment of that sum. We also, Your Honour,

made the submission that the effect of the

legislation is to provide, by its curative form,

what was intended to be the operation of the law

throughout and that that, we submitted, is

sufficient in itself to constitute either the

matter not an acquisition or, if it is an

acquisition, one that is on just terms.

We say that it is of the essence of that

analysis of what is just and what is not just to

have regard to the value of the service which is

supplied, not have regard to the aspect of

administrative error and windfall consequence that

we have referred to as the reference point by which

to test whether or not what is paid - - -

BRENNAN J: But your argument goes to the extent of saying

that the value of the service is as specified in

the 1991 Act.

MR GRIFFITH:  Your Honour, we say that that is what the

legislature has fixed as the value of the service.

BRENNAN J: That is right. Why should the legislature have

the power to fix the just terms?

MR GRIFFITH: Well, Your Honour, in effect we say - this

really gets back to our gratuity argument in one

way, Your Honour. We say the whole structure of

the legislation is to provide, by way of a

voluntary payment by the revenue, a sum which

represents a reasonable payment towards the cost of

these services, and we have identified the nature

in which the scheme operates. Perhaps,

Your Honour, we are getting a little bit to the

Peverill(2) 123 10/3/93

circle that my friend opened up on the chicken and
the egg, but if one takes as a reference point that

there is an unconditional obligation based in

contract, if you like, to pay the sum of money and

a lesser sum is substituted, then that would seem

to be an acquisition unless one can - of course, it

assumes the extension argument, which I leave to

one side at the moment, but if one gets to the

point where one says, "Well, that must be an

acquisition because you owed $30 and you only have

paid at the time $15", we say that really goes to

identify the point at which our argument attaches

rather than to demonstrate the error of our

argument. But it is difficult to really say

anything much further about the point; the

difference between $15 and $30 is $15, that is just

an arithmetical fact, as an isolated analysis of

the circumstances.

Our submission is one looks at the entirety of

the legislative scheme to reach the point, on our
preferred submissions, that the acquisitions power

does not attach, but within the acquisitions power, if one moves through the extinction argument to the

point which we make, as we indicated yesterday, as

our final point, that none the less in the

circumstances we submit it is not unjust and, as

our last submission, we said the applicant has not

shown that it is unjust in his circumstances. My

learned friend did make the point that, I think for

some three years of the period up to 1987, was it,

or 1986, the applicant himself applied at the lower

rate under the different item number, the 1294

item.

But on the point of interest, we would submit

that if it was just for this sum intended to be

fixed under 1294 has now been in legal form fixed

and that payment was one administered and paid

during the course of the administration of the Act
now validated.	The question of interest cannot be
relevant - interest on nothing is nothing.	We say

that there was full discharge by payment at the

time and one cannot construct an absence of just

terms by claiming interest on a sum which we say is

not lawfully payable in any event.

The argument of my learned friend referring to

the construction of the Act does, in our
submission, seem to go behind my learned friend's

submissions to the Court on removal.	But there was
no issue of fact involved on this removal.	My

learned friend has referred to pleadings dealing

with the item under 1793, as distinct from 1345.

In our submission, firstly, it does not matter for

the purposes of argument before the Court as to the

validity of this Act whether or not some section of

Peverill(2) 124 10/3/93

the Act deals with cases other than the ELISA test.

Of course, the way the matter was removed and

argument conducted hitherto in this Court, the

issue of non-ELISA testing has not been a matter of

relevant consideration.

Even if the Act does make some provision

beyond ELISA testing, in our submission that does

not alter in any way the application of the

arguments we have made as to the operation of the

Act and its characterization. When one looks at

the pleadings there is an issue of fact between the

parties as to whether or not the immunoassay test

falls within 1793 or 1345. That is a matter of

fact which is raised by the pleadings and has not

yet been determined.

If, of course, it falls within 1793 well,

then, the Act in Schedule I has not affected the result_other than to confirm what already is the case. If Schedule I has had an effect of shutting

off an alternative approach which has not been

determined that the item 1345 is a relevant item, we submit our arguments of yesterday still apply.

In relation to the question of whether or not

one can say as to the certainty engendered by the

operation of subsection (1) of section 4 in

relation to this other item is itself curative

depends on matters of fact which are in no way

before the Court. We would, where that became a

fact to issue - which perhaps it would if the trial

goes on before the trial judge - wish also to

produce evidence as to factual material to show

that the Act reinstates the position which was
thought to apply in result of these tests also.

But our submission is that that is a matter which

is not something with which the Court is concerned

in determining the validity of this Act by

reference to the issues which are before the Court

and which are capable of being before the Court in the form that the case has been removed.

My learned friend put this argument as somehow

as being relevant to his just terms argument. In our submission it has no relevance to just terms.

If there is a part of the Act which in an obviously severable way applies to another item, the issue of

whether or not the acquisitions power arguably

applies by reference to particular facts and

whether it was just terms are matters for another

day. Of course, one would expect on that other day

the answer to those issues could be guided by the

Court in its judgment in this case.

As to my learned friend's argument in reliance

upon the taxation power, it is sufficient for the

Peverill(2) 125 10/3/93

purposes of our reply if we refer the Court to our submissions, which were sufficiently extensive, as

handed up to Your Honours yesterday, as answering

the two points my learned friend made briefly at

the close of his argument. If the Court pleases,

they are our submissions. I am asked by my learned

friends, who are not involved in the next case,

whether they may be excused from the hearing of

that case?

MASON CJ: Yes, certainly. The Court will consider its

decision in this matter.

Are you commencing, Mr Solicitor?

MR GRIFFITH:  I am sorry, Your Honour, I was not intending

to commence.

MASON CJ:  I see.

MR GRIFFITH: This is an argument about constitutional

validity. In our position: all laws are valid

until the Court holds they are invalid.

MASON CJ: Yes. Mr Adams?

MR ADAMS:  If the Court pleases, I have some notes of

submissions.

MASON CJ: Yes, Mr Adams?

MR ADAMS:  Thank you, Your Honour. This case raises, in the

starkest possible form, the problem of what is

meant by extinction, in the circumstances where the

Commonwealth obtains a direct and tangible advantage peculiar to it from the circumstances of the extinction.

In this particular case Mr Georgiadis, who was

a labourer for Telecom, injured his back. At the

time that he injured his back he had an action against the Commonwealth for damages, amongst other
things, in respect of permanent incapacity and pain

and suffering. The Commonwealth took his right to

sue away from him and substituted nothing in its

place. If he had been injured after the 1988 Act

had come into force he would have been entitled to

a lump sum, and he would also be entitled, where

appropriate, to a payment in respect of pain and

suffering although there were upper limits set on

those sums, upper limits which we would concede, I
think, he would not have reached in the

circumstances of this case. That does not appear

on the pleadings.

However, because his injuries occurred before

1988, he fell outside the scope of compensation for

Peverill(2) 126 10/3/93

lump sum impairment and non-economic loss provided

for in the 1988 Act. It is our submission that in

substance this amounted to an expropriation by the

Commonwealth of his right of action against the

Commonwealth.

This is not a case, we submit, like Iago's

honour which is valuable to him but not valuable to

the person who takes it away. This is a case where

what is taken from him brings tangible and direct

advantage to the Commonwealth and raises, if I may

say so with respect, in the starkest way the

appropriateness of the analysis of His Honour

Justice Deane in the Dam's case.

The difficulty always is to appropriately

categorize what it was that the Commonwealth got.
We submit, with respect, that to find out what the

Commonwealth got, you look at what Mr Georgiadis

lost .. The Commonwealth obtained an advantage. We

say that it was in the nature of property, either

because that is what it took from Mr Georgiadis in

order to get that advantage, or because, we say,

its financial advantage, that is a reduction in its
liabilities inter alia to Mr Georgiadis, fell

within the description of innominate and anomalous

interest which is part of the wide description of

property appropriate to section Sl(xxxi).

TOOHEY J:	Mr Adams, what was it that stood in the way of the applicant receiving a lump sum for impairment
to his back?  I appreciate you take us to
section 124(3) of the Compensation Act, but how did
that operate so as to preclude such a claim?
MR ADAMS:	Because, Your Honour, under the 1971 Act no lump

sum for permanent impairment to the back was

provided in the table of maims. The table of

maims, if I may use that expression, in the 1988

Act was expanded to include such a category.	I
think it is section 39 of the 1971 Act which

contains the relevant table, and he could get no
lump sum. In other words, the nature of his

incapacity, he was either going to, under the 1971

Act, get weekly payments and medical expenses, or

he had to sue in common law.

Those are the only ways by which he could get

an amount of damages or an amount of compensation

that directed itself to non-economic loss and the

extent of his incapacity. That is why under this

Act he loses out entirely. Indeed, as we make the observation, this seems rather to be an oversight. It is difficult to understand the policy reasons

why this should be so.

BRENNAN J: Is this sections 44 and 45 that deal with it?

Peverill(2) 127 10/3/93

MR ADAMS:  Your Honour, section 44 is the section that

removes the common law action.

BRENNAN J: That is subject to section 45.

MR ADAMS: It is, Your Honour, but section 45 gives him

rights only where:

compensation is payable under section 24, 25

or 27.

What section 45 does is permit "non-economic loss"

in certain circumstances.

BRENNAN J:  Was your client excluded from any compensation under 24, 25 and 27?

MR ADAMS:  Yes, Your Honour. Your Honours, the effect of

section 45 was to permit an employee to sue for

non-economic loss:

Where:

(a) compensation is payable under section 24,

25 or 27 -

and he would be entitled to damages had it not been

for section 44 and he elects to institute an action
for damages before he is paid any compensation

under sections 24, 25 or 27.

BRENNAN J: He can bring an action. It does not say, does

it, that the action is limited to non-economic

loss? In fact, subsection (4) rather suggests it

may not be.

MR ADAMS: Subsection 45(4)?

BRENNAN J: Subsection 45(4).

MR ADAMS:  Yes, Your Honour, but he cannot get the advantage

of section 45 unless he would otherwise be

precluded - unless he would be entitled to damages

had it not been for section 44, and he then elects

to institute the action.

BRENNAN J: Well, is it the fact that it excludes your

client because he was not entitled to compensation

us 24, 25 or 27?

MR ADAMS: That is so, Your Honour, yes.

BRENNAN J:	None at all?
MR ADAMS:	That is so.

Peverill(2) 128 10/3/93

TOOHEY J:  Why was that? Was it because the claim was in

respect of non-economic loss?

MR ADAMS:  No, Your Honour. The difficulty with section 45

is that it is circular. The two requirements that

must be satisfied are subparagraph (a) and

subparagraph (b). He must get both - be entitled

to both - damages under 24, 25 and 27 and where,

but for 44, he would be liable for damages for any

non-economic loss, but he would not be entitled to

damages to compensation because of section 124(3),

which limits - section 124(3) says:

A person is not entitled to compensation under

section 24 or 25 in respect of a permanent

impairment, or under section 17 in respect of

the death of an employee ..... if -

and if we go to paragraph (iii) -

under the 1971 Act as in force when the

impairment or death occurred.

So that the compensation - he cannot get

compensation for the permanent impairment to his

back.

OOHEY J:  You mean he cannot get any compensation, or he

cannot get it under some table?

MR ADAMS:  No, Your Honour, he cannot get it under the 1988

Act because the table does not apply to him. He

cannot get it under the 1971 Act because the table

did not contain the impairment. He can get weekly

payments.

DEANE J:  I seem to recall - and you will know a lot more

about it than I would - that on the leave

application the critical thing was that he had

accepted some amounts by way of compensation and

that precluded him from making the election under

section 45.

MR ADAMS:	He had accepted some amount, yes, Your Honour.
DEANE J:	Was that not why it was said he could not bring an

action now?

MR ADAMS:  Your Honour, that was one of the reasons but, in

our submission, he cannot get the benefit of

section 45 in relation to non-economic loss because

of the effect of 124(3). He cannot get

compensation under 24 or 25 in respect of a

permanent impairment.

TOOHEY J:  You mean he cannot get it for the non-economic

consequences of a permanent impairment.

Peverill(2) 129 10/3/93

MR ADAMS:	Quite.
TOOHEY J:	He could get it presumably by way of weekly payments.
MR ADAMS:	Yes, Your Honour.
TOOHEY J:	Redemption of weekly payments, possibly?
MR ADAMS:	Your Honour, I think that redemption is not an

alternative permitted to him under the Act.

TOOHEY: That is not available.

DAWSON J:  Where does the entitlement to weekly payments

arise?

MR ADAMS:  Your Honour, weekly payments arises under 132.

DAWSON J: Presumably a continuation of his right to weekly

payments under the old Act, is it?

MR ADAMS:  No, Your Honour, the weekly payments are actually

payable under the new Act which applies - it
abolishes the old Act, but it permits, in relation

to him, the payment of weekly payments.

DAWSON J:	As a continuation of the entitlement.
MR ADAMS:	Yes, that is so, Your Honour.
DAWSON J:	The section is?

MR ADAMS: Section 132, Your Honour.

TOOHEY J:  Your proposition appears to be, Mr Adams, that

for loss of earning capacity the 1988 Act does not

affect what would otherwise be his entitlement or,

if it does, it substitutes a satisfactory

entitlement in its place. It is only for the

non-economic consequences of the back injury for

which he could have sued at common law, but he is

precluded from now recovering.

MR ADAMS: That, Your Honour, but he cannot obtain any

compensation for the - it may be that permanent

incapacity has an element of economic measure. It

is part of general damages but it has an element

that relates to his value, as it were, as an

employee, and his ability to obtain an income that

is expressed as a limit to his capacity.

The point is that he cannot get what is

generally known as ''general damages" at all. That

is what is taken from him. What is given to him

is, his medical expenses and a proportion of his

Peverill(2) 130 10/3/93

normal weekly wage. That is what he gets, and he

loses general damages.

Now, if he had been injured when the 1988 Act

came into effect, he would have had the benefit of

the alternative proceedings under section 45, but

if he decided not to take those, he would have the

benefit of a lump sum, providing his incapacity was

greater than 10 per cent - on the table the maximum

is over $100,000 - and he would be able to get an

a.mount for pain and suffering. But, as his

particular impairment was not listed in the 1971

table, he loses that.

This is not a case of substituting one scheme

of general compensation, which we might call,

"the common law scheme", for a statutory scheme of

general compensation in his case. In his case, a

substantial degree of damages otherwise available

to him·is lost by virtue of section 44.

We submit, with respect, that that amounts to

an expropriation of his chose in action against the

Commonwealth; that he got nothing for it, because

what he got under the new scheme he was anyway

entitled to though, in a different form at common

law, that he was entitled to the present day value

of his loss of income, and he was entitled to a

lump sum in relation to his medical expenses, and

all that happened was, that because workers in his

position are not regarded by the Commonwealth as

sufficiently compos mentis to manage their affairs,

he must get it weekly instead of in a lump sum.

That continues, but the other rights that he had he lost, and he lost it, not because of

anything that was rationally attached to his injury

but because, in terms of chronology, he was

unfortunate enough to have his accident before the

1988 Act came into effect.

MR ADAMS:  Now, we submit in these circumstances, this is

not, if I may use the phrase used by Justice Deane

in Tasmanian Dams, a case of mere extinction. This

is a case where rights where extinguished in the

circumstance where the Commonwealth obtained a

tangible, though uncertain or indefinite in terms

of a.mount, advantage from so doing, and we submit

that the mode of extinction in this case, where you

can identify a corresponding advantage that exactly

mirrors what was taken, is, even if it were not

directly an acquisition, a device by which the

substantive protection provided for by

section Sl(xxxi) is overcome. We submit that -

DAWSON J: Well, it is the acquisition of an advantage; it

is an advantage of property.

Peverill(2) 131 10/3/93

MR ADAMS:	Of a proper proprietorial kind.
DAWSON J:	The next question is is it of a proprietorial

kind?

MR ADAMS:  That is exactly the problem. We say,

Your Honour, you solve that problem, with respect,

by looking at two combined elements in his case:

the first is, you look at what was taken from him -

it was unquestionable a property right - and you

ask yourself, was the affect of taking that right

to give a tangible and direct advantage to the

Commonwealth, and we submit that, if one can

identify such a tangible and direct advantage, it

is either because it is in the nature of a

reduction of liabilities of the Commonwealth,

proprietorial in an innominate or perhaps anomalous

sense - to use the phrase from His Honour

Justice Dixon as he then was, in the Banking case -

or, if-not, that is, if you do not concern yourself

with the ultimate effect, that is, the effect on
the liabilities of the Commonwealth to identify the

character of the circumstance; that is, the

circumstance that he lost his property and the

Commonwealth had its obligations reduced, we

submit, just looking at that circumstance enables

you to say that they acquired his proprietorial

interest, the effect of which was to reduce their

obligations and we submit that that is what

occurred in substance, and that simply by, as it
were, moving without the middle step, moving

through the stage of obtaining the assignment from

him of his chose in action - there is no question

he had the power to assign to the Commonwealth, if

appropriate - avoiding that step and moving to the

end result, namely, that they have no liability in

respect of it, they disguised the fact or avoided the issue of the assignment, of the taking of his

chose in action for their benefit, and we say that

that is a device which is impermissible, having

regard to the protective purpose of

section Sl(xxxi).

DAWSON J: But, if the payment of a chose in action, which

would consist of a debt, does not involve the
passing of property, nevertheless a chose in action

is extinguished once the is paid, why does simple

extinction of the chose in action involve the

passing of property?

MR ADAMS:  We submit, Your Honour, that this is not simple

extinction.

DAWSON J: No, but what I am putting to you - - -

Peverill(2) 132 10/3/93

MR ADAMS:  If it were extinction with no more, that is to

say if the form and the substance were precisely

coincidental - - -

DAWSON J:  I have not made myself clear. If you owe me

money, that is a chose in action, and you pay the
money, the chose in action disappears, is

extinguished. There is no acquisition of property

by me. You paid me by cheque, let us say, that is

the easiest way. Property when the cheque passes,

we are not talking about that.

MR ADAMS:  Your Honour, you acquire a chose in action by the

cheque, but the question is whether you have

acquired the original chose in action.

DAWSON J:	Once the debt is paid, yes.
MR ADAMS:	Yes, Your Honour.  In that circumstance, there is

no acquisition.

DAWSON J:  And the chose in action is extinguished. So what

I am saying to you is you can extinguish a chose in

action without an acquisition of property.

MR ADAMS:  Quite, Your Honour. My assertion is not that

every extinction of a chose in action is an

acquisition of property. My submission is that

this extinction of the chose in action is an

acquisition of property within Sl(xxxi).

DAWSON J: Because it was to the advantage of the

Commonwealth to do so.

MR ADAMS:  Not because it was to the advantage generally,

Your Honour, but that they obtained a direct and

tangible advantage from doing so by a mode that

attempted in form to avoid what they really did, which was to take his right and take it to their

benefit.

McHUGH J: Supposing the Commonwealth passed a general Act

which prohibited the awarding of interest in

Federal Courts. Would that be an acquisition of

property in cases where the Commonwealth was an

existing defendant in actions?

MR ADAMS: It might be, Your Honour. It may depend upon

whether the interest was vested. If the better

view were that the interest was vested, the answer

would have to be yes.

McHUGH J:  May not the distinction between the acquisition

cases and what Mr Spigelman called the police

powers case be that if the legislation has some

object in mind other than the acquisition of

property but the legislation incidentally affects

Peverill(2) 133 10/3/93

property or the value of property, that is not

within Sl(xxxi).

MR ADAMS: 

Your Honour, except that the history of these

cases in Australia has been that if the property is
acquired, the mere fact that it is acquired

incidentally is not to the point, leaving aside
that category of case which is not altogether easy

to define, such as taxation and so on.

McHUGH J:  What about the proceeds of crime legislation? I

mean that is a straight out expropriation of

property.	Now, why does it not fall within
Sl(xxxi)?

MR ADAMS:  Your Honour, the explanations are, as I apprehend

them, that they are incidental to the power of the

Commonwealth in relation to crime, and that the
very power in relation to the crime requires -

involv~s in itself the power to deter and the power

to punish, and that if you apply the acquisitions

power so as to render that power meaningless, or

substantially meaningless, then that is not an

appropriate interpretation or application of

section Sl(xxxi). But suppose there were another

circumstance where a third party had entirely

innocently and for value acquired the proceeds of

crime, it would be, we would submit, quite outside

the proper exercise of its powers in respect of

crime to acquire that.

McHUGH J: Is not Burton v Honan against you on that point?

That was a case of property that had been brought

in without custom - - -

MR ADAMS:  I am sorry, Your Honour, that is a customs - - -

McHUGH J: But it had been sold to a third party, or a third

party had taken hold of the vehicle.

MR ADAMS:  Your Honour, I am sorry, that was in relation to

customs and not in relation to proceeds of crime.

McHUGH J:  I appreciate that, but it is the same principle,

is it not?

MR ADAMS:  I would submit, no, Your Honour. But the

exception that such a case provides is the

difficulty to section Sl(xxxi), and as His Honour

Mr Justice Gibbs, I think, said in Tooth it is

difficult to categorize these cases, except in a

sense, ostensively, that is, that there is no real

underlying and universal principle that applies to

them, but that one sees that in relation to

enforcing customs legislation it is necessary that

there be a power to deter all persons who might be

involved in, however unintentionally, the

Peverill(2) 134 10/3/93

importation of a prohibited import. But,

Your Honour, I would submit that they are anomalous

cases.

But the difficulty here is that there is no

discernible policy, there is no discernible subject

of a common law purpose that could justify taking

away this man's rights. As I have said, if the

accident had happened, if the injury had occurred

in 1988 he would have got a lump sum amount. For

him it was not the substitution of one set of

rights for another set of rights, it simply took

away rights and gave him nothing in circumstances

which had nothing to do with him and nothing to do

with his situation. And the submission that we

make in our written submissions is that if there is

no underlying principle, and it is not easy to

discern one in these exceptional cases - bankruptcy

is a circumstance where, at all events, his debts

are greater than his liabilities, so that one could

understand he does not have much of an interest in

the property that is sequestrated, but those

situations are at least to some degree anomalous,

that is, it is not altogether easy to fit them

neatly into a pattern that gives section Sl(xxxi)

its full application. But this is not a case in

which one should set about creating yet another

anomalous situation.

Now, the answer to that is, "It's not really

an anomalous situation because it's not an

acquisition and therefore falls without the power

anyway". That is to say, it is more like taxation

than perhaps like expropriating the proceeds of

crime. Our only answer - - -

DAWSON J:  What would you say if you had a statute of

limitations - not a statute of limitations, a

limitation newly imposed by statute, at all events,

one which extinguished the cause of action, that

would be a law with respect to the acquisition of

property, would it not? It must be, on your

argument.

MR ADAMS: Well, Your Honour, if the statute of limitations extinguished the right, the answer is plainly yes;

if it did not, then it is a somewhat more difficult

question.

DAWSON J: But taking a broad view of the acquisitions

power, then that would be an acquisition too.

MR ADAMS:  Your Honour, we would say no. I would submit no,

because this is not a question of absolute lines,

this is a question of substance against form and,

looking at the substance of such a law, it is for

the regulation of actions and, in the end, bringing

Peverill(2) 135 10/3/93

them to an end if they are not pressed. So I would

concede in such a case that that was not an

acquisition, even if it destroyed the right.

DAWSON J: It must be an acquisition on your argument.

MR ADAMS: Well, with respect, no, the - I am prepared to

take that argument - I mean to accept to accept the
proposition, if it necessary as a result of my

submission, but the imposition of limitations on choses in action, has always been accepted as an

incident of a chose in action.

Now, I would submit that it is simply an

incident of the property right, and in this

particular case - - -

McHUGH J:  But a true statute of limitation bars the remedy

but not the right.

MR ADAMS:  That is so, Your Honour, but His Honour

Justice Dawson was putting to me the case, what if

it barred the right as well. Now, undoubtedly, this bars the right. With respect, there is no

question here, of it so doing. Even so, with

respect, if it barred the remedy it might as well

bar the right if one is looking at substance, not

form. So whilst I am anxious to take the rope that

Your Honour throws to me I am not sure it gets me out of the water.

McHUGH J:  The Commonwealth may not repeat it as in

Verwayen.

MR ADAMS:  I would submit that the answer - that once one

looks at the substance, then it is necessary to

carefully assess the nature of the law, its actual
application and what are the usual matters that

attend the existence of that right at all events.

One can think of many such cases. What about

an Act which prevented you from suing to eject

someone who entered into possession of your

premises? It would be a question of looking at the

nature of possession and the nature of the legal

rights given to vindicate it, and we would say,

with respect, in relation to choses in action, that
a limitation period is an ordinary incident of the

nature of the chose in action which you possess.

And therefore, variations in the statute - in the

limitation period, even if they took away your

right at the end of the day, would not be an

acquisition. whereas, abolishing it, would be.

Your Honours, one can gather a pastiche of propositions from the cases that relate to

expropriation. The fact of the matter - - -

Peverill(2) 136 10/3/93

MASON CJ:	Do not do that.
MR ADAMS:	No, Your Honour, I was going to say that it is a

waste of time.

We submit this is essentially a new problem.

It is not a new problem simply because property has been, or the phrase "acquisition of property", has been narrowly defined but the kinds of problems

that the Courts have been faced with have usually
involved tangible property relating to apples,

pears, real estate, possession of real estate and

so on, and not property of this kind. But choses

in action 'have always been specified in the general

descriptions of property to which section Sl(xxxi)

refers as being a species of property to which

section Sl(xxxi) does relate.

As it happens, as we see it, there is no

authority on this Court that deals with quite this

proble~.· So that the statements requiring the

acquisition of a proprietary interest that are made in the context of, shall we say the Dam's case that dealt with land and rights relating to land, are no more helpful, if I may say that with the greatest

respect, than simply quoting the subsection of the

paragraph of section 51 itself. The Court's

attention in those cases is related precisely to

those problems and it is much much easier to

determine in those cases whether or not a

proprietary interest is acquired.

Although, we would submit, even in those matters the Court has consistently taken a generous

view and has accepted that it may be that you can
acquire property by degrees and that, as I have

said, anomalous and innominate forms of property

are protected by the - sorry - that property within
the meaning of Sl(xxxi), that is that which is

acquired, may in the end be unable to be precisely

defined, it may actually be innominate. We say it

may be this is such a case. But the simpler

solution is to look at what was taken, see that by

what was taken the Commonwealth acquired a tangible

and direct advantage or benefit and therefore what

it took was the chose in action and what it

acquired was the chose in action.	Those are our
submissions, with respect.

MR GRIFFITH: If the Court pleases, may I hand to the Court

our contentions. If I could briefly first take the

Court to the chain of legislation which seems to
deal with the issue of the plaintiff's right to sue
the defendant in this case. Before the

commencement of the Safety, Rehabilitation and

Compensation Act, which was formerly known, of

course, as the Commonwealth Employees

Peverill(2) 137 10/3/93

Rehabilitation and Compensation Act 1988, the plaintiff had a right to sue the Australian

Telecommunications Commission for damages if,

indeed, the facts supported that right.

That right arose under the Judiciary Act,

sections 56 and 64, and from the existence of the
Australian Telecommunications Commission as a

statutory body corporate under the

Telecommunications Act 1975, sections 4 and 21.

That right included the right to sue the Commission

in against the Australian Telecommunications

as an employer respect of work-related injuries.

Commission would have been a liability of the

Australian Telecommunications Corporation after the

commencement of the Telecommunications Amendment

Act 1988 and therefore would have become a

liability of the defendant under section 11 of the

Australian and Overseas Telecommunications

Corporation Act 1991.

Any right then of the plaintiff would now be

maintainable pursuant to the same two sections of
the Judiciary Act and section 11 of the AOTC Act I
have just referred to, together with sections 12
and 13 of the Australian Telecommunications
Corporation Act 1989 and section 6 of the

Telecommunications Amendment Act 1988 and section 4 of the Telecommunications Act 1975 as it existed

prior to repeal and re-enactment by the 1988

amendments. I apologize to the Court for that

chain of legislation, but that seems to be the
description as to the mechanism whereby the

plaintiff otherwise has a cause of action or had

one and would have been able to have exercised that

cause of action against the defendant in this

action.

The Safety, Rehabilitation and Compensation

Act was assented to on 24 June 1988 and if I could

hand the Court firstly a copy of the second reading
speech, which I think is referred to in my learned

friend's contentions, but the Court perhaps does

not as yet have a copy.

BRENNAN J:  What for, Mr Solicitor?

MR GRIFFITH: For the purpose, Your Honour, of identifying

some pertinent aspects of the legislative scheme

embraced by the 1988 Act.

BRENNAN J: Is this to assist in the construction of it?

MR GRIFFITH: It is to assist, Your Honour, on the issue of

whether or not there has been an acquisition or an

acquisition on just terms.

Peverill(2) 138 10/3/93

BRENNAN J:  How does the second reading speech become

relevant to that?

MR GRIFFITH:  Your Honour, it indicates, in a summary form,

Your Honour, the structure of the scheme to provide

a new mechanism for workers compensation, based on
a system which is designed to promote

rehabilitation rather than to promote the pursuit

of claims for compensation by way of lump sum,

either under the Act or at common law.	And, as the
Court has seen from our submissions - - -

BRENNAN J:  So it is given to us as a guide through the Act

rather than as an assistance to the construction of

the Act.

MR GRIFFITH:  Your Honour, it is very useful for giving an

outline of the structure of the Act, but the second

aspect, Your Honour, is that the Court will see

from ou~ contentions, we say that all that has

happened in this case is there has been a

shortening of a relevant limitation period which

was already in place.

BRENNAN J: That is a question of statutory reconstruction,

is it not?

MR GRIFFITH: 

Yes, Your Honour, but we say, in the

circumstances, on any view, that is not unjust and
we rely upon the circumstances of the Act
establishing this scheme in the public interest to

promote rehabilitation, rather than what might be

put as compensation neurosis, as an aspect
justifying a shortening of what would be the

pre-existing limitation period of six years.

BRENNAN J: Is this the proposition that any law which is a

reasonable law having regard to the objects which

it seeks to achieve and which, incidentally

extinguishes a cause of action, is an acquisition

on just terms?

MR GRIFFITH: Well, Your Honour, we have got the different

proposition, of course, of extinguishment, that we

must deal with, Your Honour, but what we say is, if

it comes to a question of whether something is just

or unjust, one has regard to the interests of the

community as a whole, and it may well be regarded

as just, or not unjust, Your Honour, in the
circumstances, what otherwise would have been the

relevant limitation period is abridged.

BRENNAN J: Well, that will be an interesting proposition

when you come to it.

Perhaps if I could, as it were, put the second

reading speech out of the way by briefly referring

Peverill(2) 139 10/3/93

to the parts which we desire to refer to. In the

left-hand column, page 2191, the first page, the

relevant minister indicates the expenditure on

workers compensation rehabilitation, and the

proposal of the scheme which one sees in the first

paragraph on the right-hand column is to, the

second sentence:

The Bill will also provide incentives for injured employees to return to work as soon as possible.

On page 2193 in the left-hand column, the third

full paragraph beginning, "A significant factor",

describes the intention of the Act to promote

"speedy" and "effective rehabilitation", as

distinct from open-ended compensation and lump sum

payments dependent upon establishing permanent disability. And then on page 2194 there is an

expression of the operation of section 44 of the

Act, if I could take the Court to that paragraph,

and the minister says:

It is clear to this Government that the common

law negligence action which bases its

entitlement on proof of fault is a costly,

inefficient and inappropriate mechanism for

compensating injured workers. Delays in

settling these actions act as a positive

disincentive for employees to return to work

and encourage them to maximise the extent and

durations of their injuries. The provision of

an adequate level of weekly income,

substantially increased lump sum payments on

death or impairment, payments for additional

expenses for medical costs, aids -

et cetera -

make redundant any need for redress to the

courts. Accordingly, it will no longer be	possible for an employee to sue the
Commonwealth or a fellow employee. Actions
against third parties will also be
discouraged.

And I would observe to the Court that the date of

this second reading speech is 27 April 1988. I

mentioned that the Act itself was assented to on

24 June 1988, but by operation of section 2(2) the

bulk of the Act, including section 44, was

expressed to come into effect on a date to be fixed

by proclamation, and that proclamation is contained

in the Gazette, which I have already handed up to

the Court, providing for an effective date of

1 December 1988. So, it is from not the date of

assent or the date of the second reading speech for

Peverill(2) 140 10/3/93

that matter, but from the commencement date of

1 December that section 44 barred the plaintiff

from instituting proceedings against the

defendant's predecessor, in relation to the

injuries which are alleged.

So that, in our submission, the essence of

what has occurred here is that there has been an

operation of section 44 to abridge the unexpired

time of any existing limitation period to a period

ending 1 December 1988.

If I could take the Court briefly to page 3 of

the cause removed book, one sees there allegations

of injuries at approximately four years intervals,

going back to 1974. Looking at the dates pleaded

there, it would seem that the plaintiff's claims

tested by what would otherwise be the six year

limitation period, would be limited to the claims

alleged -to have occurred from incidents on

7 May 1985 and 4 March 1986, so that there were,

one would infer from that, arguably two claims

which were not statute barred at the time of the

coming into force or at the time of assent of the

SRC Act on 24 June 1988. And, as at 24 June 1988,

those several periods, in effect, in our

submission, were abridged to the date on which the

section 44 came into effect, namely

1 December 1988.

BRENNAN J:  But does not section 44 extinguish the cause of

action?

MR GRIFFITH: Well, it does, Your Honour, but only in

respect of actions that have not been commenced.

So that if an action - - -

BRENNAN J:  You are saying that, because it extinguishes it,

it is therefore a limitation statute.

MR GRIFFITH:  Your Honour, the effect of the proclamation to

come into effect on 1 December 1988 is that the

person in the position of the plaintiff, we submit,

Your Honour, lost nothing except by his own choice;

he was perfectly free, Your Honour, up to the

coming into force of section 44 to issue any writ

which he chose to issue.

BRENNAN J:  The day on which this came into force, he lost a

cause of action.

MR GRIFFITH:  He lost it then, Your Honour, but we say he

lost it by standing by until that date and choosing

not to issue a writ.

BRENNAN	J:	Why?
Peverill(2)	141	10/3/93

McHUGH J: That does not matter, does it?

MR GRIFFITH: Well, in our submission, one is considering

what is the position in respect of the plaintiff,

whether or not this is unjust in respect of him.

Your Honour, the plaintiff at all time had a choice

as to whether or not to pursue the rights under the

Act to weekly payments, which is a choice that the

plaintiff in this case has actively exercised over

the years or, Your Honour, to pursue common law

rights on the basis that if those common law rights

resulted in any award of damages, then the amounts

paid by way of payments under the Act were recouped

against any damages recovered.

BRENNAN J: Well that may be so, but his common law right of

action was extinguished by operation of section 44

on the day on which it came into operation.

MR GRIFFITH:	Yes, Your Honour, but we say in the circumstances, in our submission, it cannot be said
that anything that happened to the plaintiff was a
matter of a circumstance which was unjust within the meaning of the acquisitions power.

BRENNAN J: That is rather like the Saracen saying it is

your fault that your head is chopped off because

you did not duck.

MR GRIFFITH:  Your Honour, we would seek to distinguish that

example from the example of the plaintiff in this

case.

Your Honour, if we point out from paragraph 3

of the cause removed book, that there were injuries

going back to 1978, now we say at least the first

two statutory barred before the coming into force

of the Act, and we seek then to rely upon the
matters referred to in the second reading speech as

indicating that there is an expression in the

mechanisms of this Act, including section 44, of a	policy in the interests of the community to ensure
that there is a compensation scheme which is
generous and fair and appropriate, and which
encourages rehabilitation, rather than encouraging
the opposite of rehabilitation, if there are to be delays in settling of lump sum claims and, in
particular, there should be delays in connection
with the pursuit of common law claims.

So that there is incentive under the schemes

of compensation to maximize the extent and duration

of injuries and losses to the community thereby

caused, rather than an incentive to provide

appropriate compensation, but to ensure speedy

rehabilitation.

Peverill(2) 142 10/3/93

Now, the Act, as referred to its terms and as

is summarized in the second reading speech,

indicates the purpose and structure to have that effect, and, as is indicated by the Minister, in

his second reading speech, it was regarded as

essential to this scheme that liability in tort be

abolished, and a class of potential plaintiffs be

closed.

Now, there could have been various mechanisms

to provide for this abolition. One mechanism would

be to say that any person injured from the date of

assent of the Act would not be entitled to bring

any common law claims. Our submission is, there

could be no difficulty about the validity of a

provision such as that.

Another provision, we say, which is

appropriate, is to ensure that, of this closed

class of potential plaintiffs, those who have, it

is alleged, suffered injury prior to the coming

into force of the Act, but who have not yet

instituted damages, should be required to indicate

whether or not they desire to pursue their common

law rights or not. In essence, in our submission,
the effect of postponing the corning into force of
section 44 until some five months after the assent
of the Act, is a capacity directed then to those
persons in this class, to choose whether or not to

exercise the right to issue a writ, and thereby not

suffer the extinguishment effected by section 44 on

its coming into force on 1 December 1988. This was

a matter which was publicized, and which, of

course, did result in writs being issued by

plaintiffs desiring to ensure the continuance of

their common law right, after the coming into force

of section 44.

Indeed, I understand there is a subsidiary industry now of actions taken against solicitors

who have failed to issue within that period, by persons who claim that their legal advisers have	acted in breach of obligation to them in not taking
such proceedings.

In that context, we would wish to refer again

to our general submissions with respect to the

acquisitions power which we sufficiently made

submissions to the Court yesterday and I will not rehearse anything which I did submit to the Court

yesterday save as to pick it up by reference in

dealing with these issues here. But our submission

is that an Act extinguishing a cause of action for

damages cannot be subject to a just terms

requirement. Unless the action is pursued to

judgment there is no way of assessing what are just

terms for its acquisition.

Peverill(2) 143 10/3/93

If just terms requires, except in rare cases,

compensation equivalent for any property taken,

then if you apply a just terms requirement to the

extinction of causes of action against the

Commonwealth that effectively could prevent the

extinction of that claim because one gives rise to

a claim of equal value. We submit that there is

power within the Commonwealth to provide by its

laws for its own rights and liability, including

liability in respect of persons who claim causes of

action sounding in damages for injuries arising in

the course of employment by the Commonwealth.

BRENNAN J: 

Does that mean the Commonwealth can pass a law which says that the contract price to be paid by

the Commonwealth under any contract of purchase of

land shall not be paid?

MR GRIFFITH: 

Your Honour, with respect, we are dealing here

not with the issue of contractual rights, we are
dealing with the issue of causes of action in tort.

BRENNAN J: Well then, the distinction is between a cause of

action in debt and a cause of action for damages

that are unliquidated. Is that the basis?

MR GRIFFITH: It may be, Your Honour, that if the

Commonwealth has agreed to buy goods and then

purports to extinguish - or land for that matter, Your Honour - the right to payment, that, in law,

would be regarded in substance as a law which

provides for the compulsory acquisition of that

land.

BRENNAN J:  But any claim which sounds only in damages can

be extinguished without compensation?

MR GRIFFITH:  Your Honour, perhaps it is not necessary for

our submissions to say any claim sounding in

damages but, in our submission, the right in this

case to sue in respect of a claim for personal	injuries arising out of employment only arises
under Commonwealth law. That right, in our
submission, can be defined by the Commonwealth law.

BRENNAN J: It arises under the common law, does it not, to

which the Commonwealth Act subjects the

Commonwealth?

MR GRIFFITH:  Your Honour expresses it more accurately than

I did, but it is the Commonwealth Act that subjects the Commonwealth. In our submission, without

impinging on the acquisitions power, the

Commonwealth Act which does make the Commonwealth

liable to that liability can in turn be repealed to

make the Commonwealth not liable to that liability.

Peverill(2) 144 10/3/93

BRENNAN J:  Would that argument not run in relation to

causes of action sounding in liquidated damages?

MR GRIFFITH:  Your Honour, it might depend what the claim

is. If in fact the claim was one whereby the
effect of Commonwealth action is to remove the

liability in respect of, for example, the example

Your Honour gave me of the contract to purchase

land, we admit that in those circumstances it may

be that on proper analysis one could say that there

has been acquisition of the property for a nil

consideration, therefore it is not on just terms.

But our submission is, Your Honour, in respect

of matters such as the cause of action against the
Commonwealth here, one is merely dealing with a

claim, the definition of which involves reliance

upon the same provision of the Commonwealth law

which we say can withdraw the liability which it

has self-imposed upon the Commonwealth.

BRENNAN J:  So the Commonwealth can thereby confer upon

itself an immunity from any claim in tort.

MR GRIFFITH:  Your Honour, we would submit that it could,

because the Commonwealth only is subject to claims

in tort because it subjects itself to it. Absent

any legislation such as in the Judiciary Act,

Your Honour, one would be left in the position

which, for example, existed in the State of to take action against the State, sue the Queen in

the right of the State and act upon, as it were,

grace and favour provisions of procedure which

enable you to serve that action on the

Attorney-General who would appear on behalf of the

Queen in the right of the State.

Your Honour, we submit that it is only by

reason of Commonwealth laws that what otherwise is

the position in respect of stated liability does

not apply in respect of the Commonwealth. But of

course the Judiciary Act does do that.

DEANE J: That is a rather large question though, is it not?

MR GRIFFITH:  I did not really intend to get into it here,

Your Honour.

DEANE J: In other words, the proposition that the

Commonwealth repealed the Judiciary Act, the

Commonwealth would then be under no liability for

its tortious acts, has historical validity. It

seems to me to be rather remote from the practical

reality.

Peverill(2) 145 10/3/93

MR GRIFFITH:  Your Honour, of course, it is so far remote

from practical reality that it is difficult to

thread through the consequences of if that was

asserted, but - - -

DEANE J:  And one would look rather closely at some other

provisions of the Constitution.

MR GRIFFITH:  Your Honour, possibly one would. Your Honour,

we would say that that is not - the inquiry is not occasioned by the submission here dealing with the

subjection of the Commonwealth for liability and

unliquidated damages in respect of personal

injuries by an employee.

DEANE J: Except it is implicit in your characterization of

any action against the Commonwealth in this sort of

area that is arising from tort or what have you as

being essentially gratuitous.

MR GRIFFITH:  We do say that in respect of this tortious

liability it purely arises from the Judiciary Act

provisions, and our submission is they could,

although one would not expect them to be repealed,

and then one would be left in the position of

perhaps equivalent to the position the State of

Victoria as it was, perhaps assisted by some

reference to various other parts of the

Constitution, but Your Honour, we would say that

would be a matter of anxious examination on another

day. Probably that suffices for this aspect of our

submissions, and I should now move on.

BRENNAN J: For myself, I do not see any escape from the

proposition, on the broad picture that you have
painted, if your argument on this case is to
prevail. In other words, I do not see any stopping

point of principle.

Your Honours, the difficulties, of course, if

one does move from the specific, which is here, to	the whole canvas of the general, to then deal with
a proposition such as the one we make in a
satisfactory manner but, Your Honour, we would
prefer to confine it to the issue of the imposition of liability in respect of claims for personal
injuries arising out of employment.

BRENNAN J: Well, can you confine it by reference to any

principle?

MR GRIFFITH: Well, Your Honour, we would say, if nothing

else, the Commonwealth is able, by appropriate

amendment to the Judiciary Act, to lift that

liability, which we say here arises only by

operation of the Judiciary Act, and I think we

would prefer, Your Honour, on the broader issues,

Peverill(2) 146 10/3/93

to say, well, one must look at the particular

circumstance - absent some provisions to the

Judiciary Act which would provide jurisdiction in
this or in any other Court - to see whether or not
one can spell out of the Constitution, absent the
Judiciary Act, that the relevant submissions of the

Commonwealth to jurisdiction to enable actions to

proceed.

But, Your Honour, governments do not act in

this way. They act rationally and one has the

Judiciary Act from 1903 forming a mechanism of appropriate and fair provision, enabling Australian

citizens to take action against their Government.

So that we are dealing with a hypothetical

situation to some degree in looking at the wider

issues but, of course, here, Your Honour, there is

a particular one that says section 44 says, "After

a certain date, there is no cause of action". But

we say.it is in the context of this legislative

scheme in the interests of the community, which

provides for an appropriate mechanism and we say, in the circumstances of the plaintiff - it is the

plaintiff's claim which is made here - in fact,

enabled the plaintiff, at any time between 7 May

1985 up till 1 December 1988, to institute this

common law proceeding if he wanted to. And we say

the fact that after 1 December he is now able to do
it is not, in all the circumstances of the

provisions of this legislation, a matter which

should be regarded as firstly acquiring any

property from him, but secondly of acquiring

anything on terms which were other than just in the

circumstances, having regard, as we referred to

yesterday, to matters of the interest of the

community generally.

But, in our submission, the plaintiff has lost

nothing except by his own choice, namely his own

choice not to issue the writ when a law introduced

in Parliament, assented to, came into force, after

due notice, some five months after assent.	And,
although the Court is not able to refer

particularly to the facts in detail, which only

appear just in outline in the very small cause

removed book, which is before the Court, it is a

circumstance in this matter that there was a
determination on 24 August 1990 ceasing payments of

compensation to the applicant on the basis that his

injuries were not related to his work under the

relevant tests of the Act, that is the previous

Act, which tests continue to apply, and it was on

17 September, just some three weeks later, that

this writ issued.

So that one could say that the difficulty here

for the plaintiff is not so much that the effect of

Peverill(2) 147 10/3/93

the 1988 Act meant that he could no longer

institute his proceedings, but because of the

continuation of his choice, when he had the choice

up to 1 December 1988, to rely upon his entitlement

under the 1971 Act continued by operation of the

1988 Act - - -

BRENNAN J:	Mr Solicitor, how is it that those factual matters to which you have. just referred cast the
slightest light upon the validity of the
legislation with which we are concerned?
MR GRIFFITH:	Your Honour, our submission is that the question here ia as to whether the plaintiff has
had anything in substance acquired from him and if he has, Your Honour, whether it can be
characterized as unjust.

BRENNAN J: Whether the plaintiff has had anything in his

individual case?

MR GRIFFITH: Yes, that is how it is put, Your Honour, as we

understand it. See, Your Honour, it is put that -

BRENNAN J:	We do not have to look at the terms of the pleadings in order to discover what it is that is
in issue?
MR GRIFFITH:	You do not have to look at the terms -
BRENNAN J:	Is that the proposition? We look to the facts

behind it.

MR GRIFFITH: Well, Your Honour, this case is a very

difficult case in its form before the Court in any event. Could I take the Court to the order, which

appears on page 1. I will not take the Court to

the transcript removal, but the matter was put on

removal merely that this raised the same point

which is in the Peverill case, that is appropriate

for them to be heard together, so that my learned

friend, Mr Adams, could chance his arm on behalf of the plaintiff on the basis that it was a same issue

concern. Now, having been removed, it is our

submission that different issues do arise in this

case and the preceding case, but the order of the
Court merely orders the removal of the notice of appeal and the notice of contention into this

Court. Now, we have taken it that the purpose of

this general order of removing the whole matter at

a preliminary stage - well, my learned friend says

that there is no notice of appeal, and that is what

worries us. All we have got is the pleadings and a

notice of contention.

Peverill(2) 148 10/3/93

Now, doing the best we can, we have come along here to defend section 44, but in the

circumstances, as in Peverill, where we were not
participating before the matter came on for hearing
today, and we are not in a position to make any

contribution as to would it not have been useful to

have had a chronology; would it not have been

useful to have had the two-inch proceedings which
are before the various bodies required under the

Act and the details of the proceedings currently

being pursued in the Administrative Appeals

Tribunal. My learned friend knows all about it,

the defendant knows all about it, the Court knows

nothing about it. So that - - -

DEANE J: Yes. Looking at it it seems to me that we should

probably have ordered that it be removed and listed
before a single Justice to give directions as to

where it went from there.

MR GRIFFITH:	Yes.
DEANE J:	One of the reasons, I suppose, that that was not

perceived was that the application for removal was

not opposed, and in that context direction tended

to be directed more to whether the order should be

made.

MR GRIFFITH:  Your Honour, I do not make any criticism of

the removal but -

DEANE J:  No, it seems to me that what you say, so far as it

implies a criticism, is probably quite justified.

MR GRIFFITH:  Your Honour, I just want to make the point -

and I think it is something my learned friend, Mr Spigelman, said, if I can mention it in his

absence - gives rise to it, is that the Attorney is

just not in the position to appear in every case

where a section 78B notice is given at first

instance to ensure that everything is in proper

form and, by and large, it is only when matters

present a problem because a decision is taken down

below in a constitutional matter whereby the

Attorney takes a view in the interests of the

Commonwealth that legislation should be supported,

or if the matter is at a court at a higher level,

particularly this Court, that the Attorney

considers whether or not it is appropriate to

intervene.

Now, by and large, in this Court, where there

is an allegation that a Commonwealth law is

invalid, the Attorney will intervene unless the

Commonwealth interest is already sufficiently

represented, and often it is not willing to

intervene even when the Commonwealth interest is

Peverill(2) 149 10/3/93

represented, to vindicate the interests of the

Constitution as a whole, as is within the ambit of

the Attorney-General's responsibilities.

So that even on applications for removal into

this Court, by and large the Attorney does not

appear separately and leaves that matter for the

parties to convince the Court and to make the

appropriate order. Now, it may well be, as

Your Honour Justice Deane points out, very useful

if that matter has come to the Court on a removal,
either as in the Peverill matter, from an appeal at

first instance, or in this matter on the pleadings,

were there to be such directions hearings because

then the Attorney, most likely, if he were to

intervene, would appear at that directions hearing

and, one would hope, be of some assistance in

making submissions about these matters.

TOOHEY J: Because it may not be possible on the present

state of the pleadings and papers to even advert to

the question of just terms. If your primary

argument that there is no acquisition is correct
and is upheld, it is perhaps not a problem, but if

it is not, how does one resolve the question of
just terms then, unless it is resolved on the very

simple basis that there was a cause of action which

no longer exists.	But that may not be the answer
to it.

MR GRIFFITH:  We have got a four page chronology here

indicating the history of this man's injuries and

how they have been treated under the Act and we

would have regarded all this as relevant, including
the various documents in support. But, of course,
the matter has come on here in this form and, doing
the best we can, we have sought to address the
issue in relation to the plaintiff by reference to

what we perceived as the argument for invalidity of

section 44.

One difficulty is the whole question of

looking at the possible value of the common law

action. I mean, if it is a fact that, applying the procedures of the Act which are under review in the Administrative Appeals Tribunal, it has been

determined that there is no causative connection

with the work, one would tend to think the common

law action is not worth very much. One would doubt

that it is worth as much as the moneys which have

already been paid which would necessarily have to

be recouped. But all these are matters arising out

of the circumstances of the plaintiff's claim. It

is the plaintiff's claim that has been removed to

this Court.

Peverill(2) 150 10/3/93

GAUDRON J:  Mr Solicitor, while you are interrupted, as it

were, the effect of your answer would seem to be

that one looked into the hands of the, as it were

here, the worker, to see what had been taken and

whether that was property. But, why does not one

look to see what is received in - what is in the

hands of the Commonwealth? Why does not one look

to see what it has, as a result of the legislation,

and ask is that property, so that if one came to

the conclusion here that what the Commonwealth had

received is a valuable immunity, why would not one

classLfy that as property?

MR GRIFFITH:  Your Honour, we would say, that - perhaps it

is a rolled-up view of it, but, Your Honour, we say

nothing is acquired.

GAUDRON J: Well, let us assume you acquire a valuable

immunity, if we could make that assumption.	I
mean, that may be debatable.

MR GRIFFITH:  We would submit we have not acquired that from

plaintiff. The plaintiff had a cause of action.

We have extinguished that.

GAUDRON J:  I mean, that is right, but that assumes that you

look entirely at what is in the hands of the person

who is complaining to determine what is property.

Whereas what I am putting to you is, why do you not

simply look at what is in the hands of the

Commonwealth or whoever else it might be.

MR GRIFFITH:  Your Honour, we say the requirement of the

acquisition power to have an acquisition of

property from the person who claims the entitlement

to just terms, and what is -

GAUDRON J: But it does not say that, does it? It says,

"the acquisition of property". Now, normally "acquire" is a verb in which, as it were, the

person acquires, not the person is taken from, as

it were.

MR GRIFFITH:  Your Honour, our salient point is to say that to extinguish the cause of action - - -

GAUDRON J: That is one way of putting it, but again that is

looking at what is in the hands of the complainer.

MR GRIFFITH:	Your Honour, we submit it is the essence of the acquisitions power to look at the complainer's
position, because that is the person who is
claiming the benefit of this constitutional
provision and claiming it in respect of that person there is other than just terms.

Peverill(2) 151 10/3/93

GAUDRON J: Ordinarily that would be so if you have concrete

property, but one goes back, for example, to the

notion of property in the Capital Gains Tax case

where you could have property created out of

nothing. Why does one not carry that over to look

towards the Commonwealth?

MR GRIFFITH:  Your Honour, this is a novel and new approach

to this analysis which we will seek to address in a

more detailed way within the structure of our

argument. But it is our submission that one looks

at these issues from the point of view of the

person who complains that there has been an

acquisition from them on other than just terms to

determine whether or not the constitutional

requirements have been satisfied, and that one

cannot construct an artificiality which does not

depend upon the property interest acquired from

that person as its source.

GAUDRON J: It is not necessarily accurate to say it does

not depend on the property acquired,	on the
property in the hands of the other.	It is just
that you look to see what is in fact	acquired
rather than what is in fact taken.

MR GRIFFITH:  Your Honour, it might end up at the end of the

day that what the Court desires is the work of the acquisitions power, because our submission is that

one can go one step and two steps but no further.

We say there must be property in a sense of having

what is identified as a property right within the

mechanisms of the definition of "property" which

has been elucidated by this Court. One, we say,

must have acquisition.

Our first proposition would be, if that was

still open for me to put, the acquisition by or on

behalf of the Commonwealth. But we must accept the

broader view that there can be acquisitions by

other persons as still constituting an acquisition.

We would say for the purposes of the Commonwealth, having got to that point, we submit that it is

appropriate then to consider having regard to

interests and not interests merely personal to the

person who alleges there has been such an ·

acquisition, whether in all the circumstances what

has occurred is on terms which are not just.

GAUDRON J: That is a different question. I am asking you

about the notion of property for the purposes of

section 51.

MR GRIFFITH: Yes. Your Honour, we would seek to hold the

line on property, Your Honour, by saying that we

have moved to the point beyond just the acquisition

of real estate and real property and the like,

Peverill(2) 152 10/3/93

which on one view might have been the intention of

this section when it went into the Constitution.

The line should be held, at least on the

requirement that there is to be acquisition of

property from the person and it is by reference to

acquisition of that property that one determines

whether or not the constitutional provision

attaches or whether one is outside it.

GAUDRON J: It does not seem to me, on reflection, to give

real effect to the word "acquisition".

MR GRIFFITH: Well, perhaps, Your Honour, it is a matter of

where one holds the mirror, I suppose, for the

purposes of the reflection. Our submission is that

the issue is to be determined by reference to the

terms of the acquisitions power and in a common

sense way by reference to analysis of what it is

that is acquired. My learned friend, in

submissions, made the submission that of course

this cause of action was assignable.

We would submit that it is not assignable and

that it does not come within the definition of

property from the point of view of the application

of the acquisitions power. We would say, for the

moment, authority would seem to be in our favour in

that view.

Your Honour, if the property is to be

redefined, not by reference to that which is taken, but by reference to what is perceived as a tangible or intangible benefit of necessarily uncertain and

perhaps completely incapable of being rationally

valued, one has then taken another step to broaden

the acquisition.

GAUDRON J:  I had thought that the legal process was one

directed to the rational valuation of those rights.

MR GRIFFITH: Yes, Your Honour, but could we test how that

would happen here, that there is an allegation that

there is a claim to, in effect, common law damages

in respect of these injuries. Some, obviously,

were statute barred, the last two apparently not.

There is the issue of, what would be the assessment

of those damages; what would be the cost of the

plaintiff pursuing that cause of action; would the

plaintiff win or lose that action; if the plaintiff

lost how much would the plaintiff receive; after

the plaintiff had paid all its costs would there be

anything over; there would have to be a recoupment

by the plaintiff of all amounts, in this case

upwards of $80,000 already paid to the plaintiff;

would there be anything over; could you say that

the plaintiff has suffered any loss. And all those

exercises would have to go through to provide the

Peverill(2) 153 10/3/93

just terms here, so that, in essence, one could not extinguish the cause of action because the trial on that issue would be exactly the same as letting the

cause of action proceed. In fact a little bit more

complicated because - - -

DAWSON J: That is not really what was being put to you.

Your reply to what was being put to you is that

property, whatever else it is, is something that

you own, and you cannot own an immunity.

MR GRIFFITH:  Your Honour, I am sorry that, once more, I

have failed to put lucidly what I was

intended - - -

DAWSON J: Ownership involves notions of transferability and

so on, .... held.

MR GRIFFITH:  Your Honour, I think I was trying to hold the

line in _saying that the plaintiff did not have the

immunity: Whilst the Commonwealth might get it, it

was not property taken from the plaintiff and I

obviously did not express myself as directly as I

should in seeking to say that.	Would this be an	~
appropriate time?

MASON CJ: Yes, it would be, Mr Solicitor. How long do you

anticipate the balance of your argument will take?

MR GRIFFITH:  I would think, most certainly, well under an

hour, Your Honour.

MASON CJ: Very well. We will adjourn until 2.15pm.

AT 12.44 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.19 PM:

MASON CJ:  Yes, Mr Solicitor?

MR GRIFFITH:  May I take the Court briefly back to page 1 of the cause removed book. I am indebted to my

learned friend for telling me that not only is

there no notice of appeal in this matter, there is

no notice of contention. So that it seems we need

a bit of restructuring on any view. What I was

going to suggest to the Court was that perhaps one

of Your Honours - we do not mind which one - could

state a question to the Full Court which can be now

dealt with, something along the lines: on the basis of the facts alleged in the statement of

Peverill(2) 154 10/3/93

claim herein, is section 44 invalid in its
application to the plaintiff? That is the sort of
issue that we came along prepared to argue, but
that is our suggestion, to identify the matter

before the Court.

MASON CJ:  On the face of it, that seems to be satisfactory.

We will hear what Mr Adams has to say about it in

due course.

MR GRIFFITH: Section 18 just says "a judge of the Court",

not the Full court, Your Honour, but we are not

concerned about the methodology. I think from what

my friend is saying sotto voce that if the Court

follows that course, that would be acceptable.

MASON CJ:	You would be content with that, Mr Adams?
MR ADAMS:	Yes, Your Honour, we would.
MASON CJ:	I would state a question in those terms now,

Mr Solicitor, and argument can proceed on that

footing. -:..

MR GRIFFITH: If I could adopt that which has gone before,

Your Honour, perhaps deleting one or two responses

to questions, and starting again on them.

Your Honour Justice McHugh did refer to the police

power which has been mentioned earlier. If I may,

for the assistance of the Court, hand up an extract

from Schwartz's commentary on the United States

Constitution on the police power which does, in our

view, have a useful summary and discussion of the

police power. I will not take the Court in detail

to it, but if I could indicate there seem to be

useful paragraphs in the middle of page 39, last

paragraph on page 41, last paragraph before No 274

on page 44 and also first paragraph on page 46 and

last paragraph on page 47.

We were not sure, Your Honour Justice McHugh,

whether in one of your observations this morning	dealing with the relationship between particular
powers and the acquisitions power, whether Your Honour had in mind something, or may be
assisted by - if we could give a passing reference
to Commissioner of Australian Federal Police v Cox,
70 ALR 509. That is not on our list of
authorities. At page 515, Justice Pincus said:

It is not at first sight clear how the process

of characterisation is to be carried out. It

may be able to be inferred from the

authorities relied on by the applicant that a

statute which in truth acquires property is

nevertheless not necessarily one with respect

to the acquisition of property because it is,

Peverill(2) 155 10/3/93

for example, a legitimate exercise of another

power.

And His Honour there refers to the judgment of the

Full Court in Reg v Smithers, 152 CLR 485. The

balance of the Smithers report in 152 CLR involves the consideration of validity of the provisions of the Customs Act requiring payment of a penalty, and

then goes on at pages 487 to 489, to conclude that the acquisitions power does not apply even though:

the application of the Customs Act involves

the passing of property to the Commonwealth.

It is set up by the entire bench that although

that:

involves the passing of property to the

Commonwealth it is not by 'acquisition' within

th~ meaning of that term -

within the acquisitions power.	And, possibly
Your Honour Justice Deane had a similar thought in	:.
mind, although he does not suggest that, in at page 282 where Your Honour said:

The second is that the proposition "does not

apply except with respect to the ground

actually covered by par. (xxxi)". Unless what

the law effects can properly be described as
an "acquisition of property", one will not

enter the area which has, subject to the first

limitation, been made the exclusive domain of

s. 51 ( xxxi) .

As my general submission with respect to the possible repeal of the Judiciary Act provisions did

seem to invoke some response from the Court, may I

give the Court a reference with respect to repeal

of Judiciary Act provisions, and that is the Deputy

Commissioner of Taxation v Moorebank Pty Ltd,

165 CLR 55, in particular - and this is a judgment

of the entire Court apart from Justice Brennan - at

pages 62 to 63, starting at the foot of page 62,

this is dealing with section 64.

Although, in some respects, s. 64 plays a

pivotal role in the federal legal system, it

is important to remember that the section

enjoys no special authority among the statutes
of the Commonwealth. It is neither a

constitutional provision nor an entrenched

law. Its authority is that of an Act of the

Parliament which can be expressly or impliedly amended or repealed, either wholly or in part,

by a subsequent Act and whose application or

Peverill(2) 156 10/3/93

operation to or with respect to cases falling

within the provisions of a subsequent Act will

be excluded to the extent that such

application or operation would be inconsistent

with those subsequent statutory provisions
e.g.Goodwin v Phillips

So that we would say, so too other provisions of the Judiciary Act.

In Peverill, of course, we argued that where

there is a gratuitous right conferred by some

statutory provision in the sense that it is not

something which may be supported by way of being a

contractual obligation, we say that such a right

may be extinguished or diminished by later

Commonwealth legislation, and it is our submission

that the same argument would apply in respect of

the right to proceed against the Commonwealth.

That has been conferred without anything in the

nature 6f consideration, and we say the possibility

of extinction of this right is an element of the

right from its inception. Of course, one would not

expect the general extinction of the right, but we

say that one may easily admit the circumstances

which have occurred here for what seems to be good

reason in the eyes of the Parliament, there is an

expression of extinction, we say extinction after

due notice.

But, in our submission, the entitlement to sue

is not a vested right, it is a right which is in

the same category of any other gratuitous

obligation or a liability undertaken by the

Commonwealth. There is no contractual promise and

no payments exacted from persons who exercise the

right why it exists. Also, we made the point in

Peverill that we submit it is fundamental to the

operation of democratic and responsible government

that laws which are made may be unmade and that

Parliament cannot bind their successors.

if, in the view of Parliament, it is appropriate to So that

recast the mechanism whereby tortious liability is

visited against the Commonwealth, in our

submission, that recasting can occur without one

categorizing what has occurred affecting property

rights within the acquisitions provision so that

those rights may only be altered on just terms.

This reasoning must, we say, apply to all

future rights and we say, for example, if one looks
at section 44, we would suppose my learned friend

does not suggest for a moment that section 44 on

its construction applies to affect any act of

injury or loss or damage which occurred after the

commencement of the section. So, as we understand

his submissions, in effect, his submission is that

Peverill(2) 157 10/3/93

in section 44(1) the invalid part is the expression

after paragraph (b):

whether that injury, loss or damage occurred

before or after the commencement of this

section.

But so far as future causes of action are concerned, we submit there can be no difficulty about those being abrogated by operation of the

provisions of this Act.

We submit, logically, in that circumstance, as

in our submissions in Peverill, that such a

position of extinction can apply to present

statutory rights to receive something in the future. For example, one perhaps could find examples in this Act if there is a present

entitlement to receive monthly payments in the

future, we submit, there can be no difficulty about

a law which extinguishes those present rights.

In our submission there is no difference in principle then between a present right to receive

something in the future and a right to payment

resulting from past events which has fallen due, or in respect of which a cause of action has come into

existence, which we have established will entitle

the person to recover, in this case a claim for

money. But, in our submission, that right owes its

existence to the statute which is always subject to

amendment, so that in a case of a cause of action in respect of liability and tort as pleaded here,

we say that it remains subject to statutory

amendment, at least till judgments have been

obtained. So, in effect, we recast for this

purpose our submissions already made in Peverill that this right which is created, we say, by the

Commonwealth statute is not property, or if it is

property the possibility of its extinction or

diminution is an element of the right from its

inception, and that extinction is therefore not

inconsistent with any property rights and cannot be

an acquisition of property.

Turning to section 44, we do submit that in

the circumstances here there is no acquisition of

property. Firstly, we say that the plaintiff's

cause of action is not in the nature of property as

that expression is used in the acquisitions power.

There is no occasion for me to take the Court

to the detail of our submissions as to the approach

of the Court in dealing with that issue before the

Court, but dealing with the question of

classification of a cause of action in tort, our

submission is that a bare right of action is not

Peverill(2) 158 10/3/93

regarded as property under the general law and, for

the purposes of general law, is unassignable.

If I could refer the Court firstly to the

judgment of Justices Williams, Webb and Kitto in

Poulton v The Commonwealth, 89 CLR 540 where, at

page 602, it is stated by Their Honours that one

cannot assign a right of action for tort.

Similarly, His Honour Justice Gummow, in the

decision of Hepples v Commissioner of Taxation,

22 FCR 1 at page 23, said:

Nor would the right to maintain an action for recovery of unliquidated damages in tort for personal injury -

be regarded as a form of incorporeal property. I

should mention that this point was not considered

by this Court on appeal in that case, reported

173 CLR_A92.

We say a right in action of this sort is not in the same class as a cause of action which is

rendered unassignable by statute. The right here

is personal to the plaintiff, it is not capable of

assumption by other persons.	We submit it does not
fall within the ordinary notion of property.	It is

not capable, we would say, of the nature of being
assumed by others and, ipso facto, we would say it

is not capable of acquisition in the ordinary

sense. And for that reason we submit it is a right

of a nature which just inherently does not appear

as the right of a kind to which the acquisition

power applies.

Your Honour the Chief Justice in the Toohey

case, Toohey ex parte Meneling Station Pty Ltd,

158 CLR 327 at 342, referred to Lord Wilberforce's

speech in National Provincial Bank Ltd v Ainsworth,

(1965) AC 1175 at 1247 to 1248 with approval, and

Your Honour's observations there were, in turn,

cited with approval by Your Honour Justice Brennan

in the Australian Capital Television case against

the Commonwealth, Political Broadcasts case, 108

ALR 577 at 615.

It is not altogether clear to us from the statement of claim which is in the cause removed

book, page 4 at line 20, whether the plaintiff also

alleges breach of contract here. In my learned

friend's written contentions, the opening statement

would indicate a claim in negligence but we are not

clear whether that position is maintained

throughout my learned friend's submissions.

In our submission, such a claim here also

would be barred by section 44, which refers simply

Peverill(2) 159 10/3/93

to an action for damages, and while the benefit of

a contract is normally assignable and might be

regarded as property, our submission is a cause of

action for breach of contract is like a cause of

action in tort, a personal right which is not

capable of being assigned. May I refer the Court -

these are not on our cited list before the Court,

but by way of authority for that proposition, May v

Lane, (1894) 64 LJQB 236; Tarkington v McGee,

(1902) 2 KB 427 to 434; and Meagher, Gummow and

Lehane's Equity Doctrines and Remedies, 2nd ed,

1984 - I apologize to any author present for citing

to the second rather than the third edition but it

was the only one available to me - page 695.

Turning to the next question beyond property

for the purpose of the acquisitions power, and that
is the issue of acquisition, in our submission the

Commonwealth has not acquired any interest in the

nature of property from the plaintiff by reason of

section-~4. We referred in our arguments to

Peverill, to our submission that the fastening on

the acquisition of property by the acquisitions

power distinguishes between the vesting of

particular proprietary interest and the general

enhancement for the Commonwealth or another

person's financial position.

We say that for the section to operate some

person must acquire a right from another and the

mere extinction of a right, even if it results in

equivalent benefit from another person, is not an

acquisition. I will not take the Court again to

the authorities previously cited for that
proposition, but we say here the Commonwealth and

its instrumentalities did not acquire any

proprietary interest from the extinction of the
plaintiff's cause of action. We would submit that - perhaps to pick up Your Honour Justice Gaudron's

enquiry of me this morning - immunity, even if it

be regarded as something which may be acquired,

which in our submission it is not, we would submit

cannot be regarded on any view as a proprietary

right.

An immunity is not a proprietary right, an immunity is, we would submit, merely an expression

that there is not a liability in respect of the

particular res or circumstance with which the

immunity is expressed or defined. We would submit

that at most, taking section 44 in isolation from

the benefits to employees which separately provided

under the Act, one can say that the defendant's

financial position might be enhanced in a general

and largely unquantifiable way by the removal of

all those potential liabilities. I will not refer

again to the difficulties we pointed out as to the

Peverill(2) 160 10/3/93

course necessary to be followed to answer the
question whether or not the position of the

plaintiff or of the defendant would be enhanced in

any way by coursing through consideration of

whether or not a particular monetary sum could be

put on the alleged cause of action.

But whatever the result of that exercise, our submission is that cannot constitute acquisition by

the circumstance of extinguishment of that right by

operation of the Commonwealth law. Of course, the

acquisitions power speaks of acquisition from a

State or other person, and we again submit that a

law which - this applies only to a law which

transfers an interest in property from one person

to another.

That is, we submit, that the acquirer must

obtain the same interest or at least an identical

interest of that taking from the person for whom it

is acquired. So that we say in this case there is

no transfer of any cause of action. There is

extinguishment of one. There is, one might say, an

enhancement of some sort of uncertain benefit as a -

result of that Act in another but, in our

submission, in those circumstances one does not

have the requisite element of acquisition.

So our submission is in this case, even

interpreting the acquisitions power broadly, it

should not be used to give the power a meaning its

words cannot ordinarily bear. The deprivation of

some interest, even if it is property, and the

acquisition of interest in another which is not
property, in our submission - or we would go

further and say not the same property interest -

cannot be in acquisition of property in its

ordinary sense and should not be regarded as

acquisition within the acquisitions power.

We confirm that submission by referring to the

difficulties if every statutory abolition or

diminution of a property right by reason of a

Commonwealth law results in an assertion that the

acquisitions power attaches and that there is

unlimited liability for the Commonwealth to grant just terms as the price of exercising its plenary

power to pass laws which are just rights between

persons, and of course it is common enough when

that adjustment of rights occurs that there may be

an upsetting of settled economic expectations which

might exist until that circumstance occurs.

We have referred initially in our submissions - we say looking at the substance of

what is achieved here, did not have the effect of

extinguishing the plaintiff's cause of action, but

Peverill(2) 161 10/3/93

rather we say in its operation to bring about a

shortening of the limitation period. Once the

proclamation was issued here on 1 July 1988, the

date by which proceedings had to be commenced was

known and the imminent extension of common law

claims was wildly publicized, and we say, taken as

a whole one can say that the operation of the Act

is not merely by its terms, as we accept from

Your Honour Justice Brennan's comments to me this

morning, by the form of the Act the expression of

prohibition is expressed. But we say, in its

operation, its operation in respect of the

plaintiff in his circumstances, what has occurred

is a shortening of the relevant unexpired

limitation period which otherwise might have
existed for a further period, but for the

shortening effected by the operation of section 44.

We would distinguish here the circumstances of

Barton v Commissioner of Motor Transport, (1957)
97 CLR 633. There the limitation period was

abridged to 12 months in the case of recovery of

would have resulted in the limitation period expiring. So, in effect, it would have barred

fees levied contrary to section 92 of the period

claims arising from the levies being held contrary

to section 92, and this Court, of course, had no

difficulty there, as in the Antill Ranger case, of

saying this was contrary to section 92 for the same

reason that the original fees had been. Here the

limitation period, in effect, is set from six

months from the date of enactment, certainly in its
operation, and secondly, there is no suggestion
that claims are being barred in order to preserve

the effect of invalid statute or otherwise retain

benefits of unconstitutional actions.

May I then lastly turn briefly to the question

of just terms. We have sufficiently discussed the

principle with respect to just terms in our

submissions in Peverill, and by reference to the

parts of the reading speech to which I took the

Court this morning, we submit that in the context

of the establishment of this generous and
appropriate statutory scheme, there is also a
strong public interest in limiting the exposure of

public authorities to open-ended common law claims.

The minister in the second reading speech gave some

indication of the extent of liabilities involved

and, in our submission, if it is not the case that

the Court is satisfied the public interest so
required it, at the very least it was reasonable

for the Parliament to have regard to the relevant

public interest. To take the view that action is

not already commenced should be barred at some time

as is provided by the provisions of the Act.

Peverill(2) 162 10/3/93

Had a person injured in 1988, say, immediately

before the coming into force of the Act which could

have been by operation of section 44 as late as

30 November 1988, permitted to bring an action

within the normal limitation period, that action

might not have been finalized to almost the end of

this century, so that it would be impossible for

the Commonwealth to know its financial liabilities,

and in as much as the new Act does seek to strike
an appropriate balance between this consideration

and the necessity to provide fair compensation, in
our submission, at the very least, the balancing

process which was taken by Parliament and resulting

in the limitation by extinguishrnent of section 44,
was one open to Parliament to take in the context
of the implementation of this scheme. For that

reason, we would submit that if all of the other

arguments which we say prevent one reaching the

point of just terms are determined against us, none the less, in the circumstances the Court is able to

say it is not shown that what has occurred in

respect of the plaintiffs, we say, a theoretical

cause of action is in the terms of the events that

have happened unjust. :.

I have already referred the Court to the terms

eliminating causes of action in respect of any injury, loss or damage occurring after the commencement of the section. In the event that the	of section 44 which have the effect, of course, of its operation to the plaintiff, we would submit
that the only consequence of that would be that, so
far as the plaintiff is concerned, the Act must be
regarded as reading without the words of suffix to subsection (1). But, possibly, there would be no
need for the Court to engage in any further reading
down process as part of answering the question. If the Court pleases.

MASON CJ:  Thank you, Mr Solicitor. Mr Adams?

MR ADAMS: Firstly, in relation to the question of

assignment, we submit that that is, in the
circumstances of this case, irrelevant. In

Meneling, Your Honour the Chief Justice observed,

though assignability was a good indicator of

property, it was not a vital indicator of property. that the chose of action was at least capable of

assignment to the Commonwealth. If I need any

authority for that - it is not on our list, and it

might be helpful since I have had them photocopied.

I just refer the Court and then pass on, to

Trendtex Trading Corporation v Credit Suisse bank,

(1982) AC 679, and the other is Brownton & Others

v Moore, (1985) 3 All ER 499. In both those cases

Peverill(2) 163 10/3/93

there are assignments of bare causes of action.

The reason for not permitting assignments in such

cases of common law rules against charnperty, and an
assignment is always capable of being made to

someone who has a direct interest in the case. In

this case, there could undoubtedly be an assignment

to the Commonwealth.

So even if assignment is a vital element of property, this was capable of being assigned, but

we submit that it is not; it is a mere useful

indicator. We submit that it is highly artificial to regard only part of the transaction, that is to

say, to look only at what the Commonwealth ended up

with and disregard what Mr Georgiadis had. If the

statements about looking at substance of

transactions be true and be effective, then one

must look at the whole of what this legislation

did, and it is therefore quite wrong, with respect, to look _at what the Commonwealth acquired entirely

in isolation. If one is to look at the question in

substance, one must look at also what Mr Georgiadis

lost and then I, if I may, commend to the Court

what I said earlier in that regard. ~

In relation to the significance of the word

"from", it may well require a transfer. One way of

looking at the problem is to say there is a

transfer, and we say there was a transfer here, a
transfer to the Commonwealth, in substance, of

Mr Georgiadis' chose in action. But at all events

"from" does not indicate transfer, we submit, but

the source of the property. We are here not

talking about every diminution, for example, of

property values. We are talking about vested

interests which the Commonwealth extinguishes or

destroys and, we submit, when it does that it has

to compensate, under the Constitution, the

individual whose property it extinguishes in

circumstances where it obtains an equivalent direct

benefit or value.

We are not talking about the mere adjustments

of rights between persons. In relation to what my

learned friend says about just terms: just terms

go to what is given in replacement for what is

taken. It does not refer to whether or not he got

fair notice that the Commonwealth proposed to

expropriate him. It has got nothing to do at all

with the said six months' delay. The fact is that

until proclaimed section 44 was not part of the

law. The Act left him with his rights. On

proclamation it removed those rights. It did not

merely bring forward a statute of limitations. denied him a remedy. That is, with respect, a

fundamental distinction and has been stated by this

Peverill(2) 164 10/3/93

Court as a fundamental distinction in Magee, a case

which we refer to in our list.

With respect, the suggestion of the

possibility of statutory amendment of rights,

really proves too much. The fact is that in our

democracy of, subject to constitutional questions,

the absolute sovereignty of Parliament, all

property rights are subject to change, variation,

diminution or extinction by the Parliament. There

is no reason to categorize differently a right

given by statute, and here the remedy is given by

the Judiciary Act, not the right itself, as was

pointed out by Mr Justice Brennan. But here,

assuming even it to be so, that this was a right

given, all rights in this society are subject to
interference by the Parliament, subject only to the

constitutional position.

So _it does not, with respect, advance the

Commonwealth's case any further by saying, "Well

look, it is inherent in the nature of this right that it is subject to amendment or diminution at

any time, but consequently you lose nothing when we~-

do it, and we gain nothing when we do it."

McHUGH J: But there may be a distinction between rights

created under Commonwealth statutory powers and

rights that exist at common law, or which are the

subject of State enactment.

MR ADAMS:  Well, it may be, Your Honour. They were all, of

course, subject to the same power, but at all

events, in this particular case, the right was

given by the common law, the remedy was provided

for by the Judiciary Act. What happened here was,

the right was taken away by section 44.

Your Honours, if I may just take up the point

in closing made by Mr Justice Brennan to the

Solicitor, concerning the difficulty in seeing any

line between this case and any other right of

action against the Commonwealth in tort. There is

no doubt that the Commonwealth has the right to

limit actions in futuro against itself, and no one

would suggest that section Sl(xxxi) has anything to

do with it, though a question as Justice Deane

mentioned might arise if there were such a general

abrogation or abolition of rights to sue the

Commonwealth as to whether some other more

fundamental right is given by the Constitution

itself.

But here, we are talking about only rights of action that have actually vested, and in our

submission, it is not to the point then to say,

"Oh, well, this limits to an untenable degree the

Peverill(2) 165 10/3/93

rights of the Commonwealth to amend legislation in

the public interest." We are talking about only

those rights that have actually vested.

It is ironic that my learned friend should say

that the new Act substitutes a just compensation

for the rights taking it away. The very

circumstances of this case show how capricious and
arbitrary it operates. It gives him his income and

takes away any right to compensation for pain and

suffering and lump sum benefit for the loss for a

permanent impairment, a right which it gives to

everybody who happened to be injured after 1988.

In this particular case, if his arm or leg had

been injured rather than his back, so that he got

compensation under the table of maims in the 1971

Act, he would get his percentage of lump sum

payment and he would get pain and suffering under

the ne~Act. It happens because there is a back.

My friend can say, "Well, that's just", but it is,

in our respectful submission, obviously capricious

and arbitrary. It could not conceivably be just

upon any rational basis of looking at this

legislation.

So we submit that the history of the

legislation that applies to him indicates how the

scheme has failed to take up what is said to be a

fair and reasonable compensation package in

relation to Mr Georgiadis, but instead, because he

happened to be injured in one part of his body

rather than another, removed those rights in
relation to injuries capable of being just as

devastating, just as painful and just as seriously

affecting his life.

Those are the submissions that we have.

MASON CJ:  Thank you, Mr Adams. The Court will consider its

decision in this matter.

AT 2.57 PM THE MATTER WAS ADJOURNED SINE DIE

Peverill(2) 166 10/3/93