R W Miller & Co (South Australia) Pty Limited v McKain

[1990] HCATrans 235

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S103 of 1990

B e t w e e n -

R W MILLER & CO (SOUTH

AUSTRALIA) PTY. LIMITED

Applicant

and

WILLIAM THOMAS McKAIN

Respondent

Application for removal of

cause pursuant to section 40(1)

of the Judiciary Act 1903

DEANE J

DAWSON J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 OCTOBER 1990, AT 10.15 AM

Copyright in the High Court of Australia

Miller 1 12/10/90

MR J.R. SACKAR, QC: In this matter, if the Court pleases, I

appear with my learned friend, MR G.O'L REYNOLDS,

for the applicant. (instructed by Ebsworth &

Ebsworth)

MR D.A. WHEELAHAN, QC: If the Court pleases, I appear with

my learned friend, MR N.F. FRANCEY, for the

respondent. (instructed by W.G. McNally & Co)

MR SACKAR:  May I just make reference to one matter in the

application book before I proceed? In the very

last page of it, page 15, paragraph 18 of the

statement of agreed facts, Your Honours will have

noticed that there are certain, if I may describe

them as minor matters which were said not to be in

agreement. May I indicate now to the Court I am

instructed we now agree to the paragraphs and I

would seek to have paragraph 18 deleted from that

statement.

DEANE J: Very well.

MR SACKAR: Your Honours, this is an application pursuant to

section 40 for the removal into this Court in the

exercise of its original jurisdiction of a case

which arises, as Your Honours will see from the

pleadings, in the State of New South Wales, the

Supreme Court, in an action for tort.

DEANE J:  Mr Sackar, you can assume we have read the papers.

You can also assume that we are conscious of the

fact that the point is not an unimportant one to

the extent that it is open. The real question, I

think, that you should be concerned with is whether

an order for removal should be made in a situation

where if the matter were dealt with as a

preliminary point by a judge sitting at first

instance the Court's experience is not only of much
greater order is introduced but also that the

possibilities of things going awry when the matter

actually comes on is much less.

MR SACKAR:  I am grateful to Your Honour. May I say this:

the trial judge in the State of New South Wales at

the moment or, indeed, the Court of Appeal in that

State, if faced with such a question, would be

confronted with Breavington. In Breavington three

Justices of this Court took the constitutional

route via section 118.

So far as the other four were concerned, there

is significant doubt, if I may put it that way,

amongst those four as to what the true state of the

common law position is so far as this country is

concerned. Was Koop v Bebb overruled in

Breavington or is Phillips v Eyre still the

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law? Breavington, of course, was a case dealt with

on the pleadings.

DEANE J:  Of course, that is a slightly double-edged sword,

is it not? I mean, we would at least have the

advantage of the trial judge telling us what we had

decided in - - -

MR SACKAR: Well, I would not submit that this Court,

bearing in mind the decision already in Byrnes v

Groote Eylandt Mining Co where the President of the

Court of Appeal has indicated on the common law

issue, for example, the section 118 point arguably

not arising there, being a territorial question,

indicated a preference for the Chief Justice's view

on the common law.

We would submit that here no assistance, if I may put it respectfully to those courts below,

would be given to this Court by four judges

surmising or speculating first, if I may put it
again what the ratio of Breavington is but, more

importantly, what truly is the full force and

effect of section 118. This Court is the court

which should clear the air and create the

uniformity and the certainty so as to avoid the

very injustice which all members of the Court in

Breavington had in mind, the underlying notion of

the same result occurring wherever the case is

heard in this country.

DEANE J: It would not necessarily be four Judges.

MR SACKAR: They may sit more.

DEANE J: No, it could be one.

MR SACKAR: Well, that is true.

DEANE J: Sorting out everything and identifying the issues

and identifying the authorities and

expressing - - -

MR SACKAR:  May I put it this way: first, my submission is

that such facts that this Court would need, and we

submit it does not need any - it could deal with it

as it did in Breavington on the pleadings - are

agreed and in the back of the book. If there were a factual matter which this Court thought might be

relevant then it could remit that fact or those

factual matters to the supreme court - - -

DAWSON J: But it is already isolated as a question on the

pleadings, is it not?

MR SACKAR:  It is isolated as a question on the pleadings.

For more abundant caution we moved to secure or

Miller 12/10/90

attempt to secure the agreement on all of the

relevant factual issues which we could imagine

might touch upon it if that arose. But we would

submit that a single judge would or may approach it
as five members of this Court approached it in

Breavington without reference to fact at all.

It is only in the case of the Chief Justice's

view, perhaps, or Your Honour Justice Deane's view,

that the formula, for example, in Your Honour's

case of the most real and substantial connection

may have factual issues to be determined. The

other five Judges of the Court either in applying alternative, as Your Honour Justice Toohey preferred, it appears, Lord Wilberforce in Chaplin

v Boys, they are legal questions which will

determine by analysis the lex causi. We submit,

therefore, that there are no reasons here why the

matter would assist this Court for the reasons I

have put. A single judge could not, we would

submit with the greatest of respect to him or her,

enlighten the High Court as to what the High Court

truly means in respect of its varying views in

Breavington.

Now, in Breavington, as Your Honours will

recall, Your Honour Justice Deane took the view

that section 118 was the answer. The notional

concept was the most real and substantial
connection. Their Honours Justices Gaudron and

Wilson took the view that section 118 was a complete answer and there was an analogous common law principle to deal with territories.

Your Honour Justice Toohey preferred not to deal

conclusively with section 118; the remaining

members of the Court taking different views on the

common law but rejecting section 118.

With the very greatest of respect, there is no

possible assistance that could be offered to this

Court on this very important issue for this

Federation bearing in mind, as I have said, its

susceptibility to be determined in any event on the

pleadings, for the reasons I have put, as was

Breavington. In any event, the significant agreement already advanced, and if there were

possibly a question of fact upon which - - -

DAWSON J:  My point is it has to be determined as a question

on the pleadings, perhaps, in the context of agreed

facts anyway.

MR SACKAR: Exactly. The trial judge, I would submit with

the greatest of respect, would not be troubled, I

would submit, to determine the issues that we want

to agitate by any factual consideration. So, for

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those reasons we would submit that it is more than

desirable in the current state of authority, it is
extremely important for this country that this

issue be determined both as to the section 118

point and really what I am asking is that the
separate trial be removed - one would use the old
description of "demurrer" - because within the

separate trial issue necessarily one looks to - and

I am not being exhaustive - such issues as the

state of the common law for this country. That is

a necessary parallel consideration, at least, in

terms of looking at the full blown effect of

section 118. Not irrelevant is the question also

of substance and procedure of a limitation statute.

Now, here, if I may simply say no more on that

issue - if section 118 has its full blown effect,

the distinction between substance and procedure on

one view will become irrelevant. And, in any

event, here this particular section which is now

pleaded, section 36 of the South Australian

Limitation Act, is possibly procedural. It is a

pure - if I can use that description - Limitation

Act as opposed to the statute which was looked at

in Byrnes v Groote Eylandt which, clearly on its

face, or on its proper construction was substantive
and therefore this raises the very issue, we would

submit, in its best form to be determined.

Unless the Court would wish me to address any

other issues, they are the submissions we have to

make.

DEANE J: Thank you, Mr Sackar. What have you got to say,

Mr Wheelahan?

MR WHEELAHAN:  Very little, Your Honour. Our position is

one of concerned neutrality. We see considerable force in the arguments of the applicant but we do

not wish to put any submissions to you.

DEANE J:  Very well. The Court makes an order for removal

pursuant to section 40(1) of the Judiciary Act in

the terms of that asked for in the notice of

motion.

MR SACKAR: If the Court pleases.

MR WHEELAHAN:  May it please the Court.

AT 10.28 AM THE MATTER WAS ADJOURNED SINE DIE

Miller 5 12/10/90