Rothmans of Pall Mall (Aust) v State of Western Australia & Anor

[2002] HCATrans 428

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P62 of 2002

B e t w e e n -

ROTHMANS OF PALL MALL (AUSTRALIA) LTD

Appellant

and

STATE OF WESTERN AUSTRALIA

First Respondent

THE COMMISSIONER OF STATE TAXATION (WESTERN AUSTRALIA)

Second Respondent

GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 24 OCTOBER 2002, AT 10.16 AM

(Continued from 23/10/02)

Copyright in the High Court of Australia

GLEESON CJ:   Yes, Mr Solicitor.

MR BENNETT:   Your Honours, I was dealing yesterday with the issues arising out of Kruger. Your Honours recall that we submit that there is an implication in the Constitution which effectively removes the immunity and gives a right to proceed, on Marbury v Madison principles, but that the Constitution does not create a cause of action. In Kruger three of the six Justices who sat in that case specifically decided that the Constitution did not create a cause of action and, indeed, that appears in the Court’s answer to question 2 which specifically asked that question. The other three justices found it unnecessary to answer that question, that is Justices Dawson, McHugh and Gummow.

The passages ‑ I will simply give your Honours the references – are the Chief Justice at page 46 point 6 of volume 190, Justice Gaudron at pages 125 to 126 and Justice Toohey at page 93. The point made in each case is that because there are rights already there in all situations where there is going to be a breach of the Constitution, certainly in the case before the Court, there was no need to do more than remove the immunity.

Now, I was asked yesterday about cases such as Mason v New South Wales.  What was suggested to me was that at least before the decision of this Court in Commonwealth Savings Bank v David Securities there was a clear right of action for money paid under a mistake of law.  There might have been such a necessity in cases such as this.  My answer to that is twofold.  First, that the common law cases on exactions colore officii had probably gone far enough in most cases, in almost all cases, to allow the recovery; notwithstanding some of the remarks in Mason.

Secondly, even if that is not so, there is no longer a problem.  The common law, because of David Securities, has, by coincidence perhaps, come into line with the constitutional requirement.  There is no need to say, “Well, because once there might have been a need to create a cause of action we should imply a constitutional cause of action for that purpose”.  So for both reasons we submit one does not need to go that far.  The United States case of Bivens v Six Unknown Agents (1971) 403 US page 388 was an unlawful search and seizure case. 

GUMMOW J:   In what State did this happen, Bivens.  It was in the south, was it not?

MR BENNETT:   It was the Second Circuit, your Honour, so that would have made it New York, I would think.  I will ask my learned junior to check it, but it is from the second circuit, so I think that is only New York.  Maybe it is New York and one other State, because the First Circuit is New England and the Third Circuit is New Jersey.

McHUGH J:   Pennsylvania is Third Circuit.

MR BENNETT:   Yes.  I am not sure if it included one other State.  It is certainly primarily New York.  The decision in that case turns on a number of features of American law including the extensive use in America of sovereign immunity to a far greater extent than we are used to.  The action was against the agents.  The name of it:  Bivens v Six Unknown Agents.  It might be interesting levying execution on the judgment in that case.  Part of the reasoning which is given is that the extent of the tort committed by the agents is more serious because it involves constitutional violations, and they discussed the question of whether the general law would be adequate to deal with that in questions of damages and the like.  It is a majority decision of course, it is a 6:3 decision.  Certainly, particularly when your Honours read the dissenting judgment of the Chief Justice, your Honours will see that the sort of consideration the courts were looking at are very different to most of the considerations that would be involved in an Australian case.  Yes, it was New York, your Honour.

Now, the next matter concerns the right to proceed. I think I have dealt with that sufficiently. Our submission is that the Commonwealth can regulate the way in which constitutional cases are brought in the same way as it can regulate cases involving the right to proceed under section 78, and a Commonwealth regulation that can include picking up State laws under section 79. Now, we submit it is not, contrary to the Constitution, to pick up section 6 because the only reason section 6 cannot apply of its own force ‑ subject to section 64 which I am coming to ‑ is because constitutional cases are in federal jurisdiction, and in federal jurisdiction of course only the Commonwealth can regulate. It is not because it is a constitutional suit that it would not apply. It is simply because it is in federal jurisdiction. Section 79 can, indeed must apply, State laws where the only reason the State law cannot apply is that it is in federal jurisdiction, and that is of course Edensor v John Robertson.  The constitutional cases of course are always federal jurisdiction because of section 39(1) and section 76.

GUMMOW J:   So do you say that the Commonwealth itself could have legislated in terms of section 6?

MR BENNETT:   Yes, your Honour. That brings me to the three reasons why we submit section 64 does not apply, notwithstanding all that I have said thus far. The first reason is the words “in any suit”, and this is the other part of the answer to the question your Honour Justice Gummow asked me at the beginning of my submissions. The other reasons I need to ask the Court to overrule Evans Deakin is that we respectfully adopt the judgment of Justice Brennan in Evans Deakin emphasising the words “in any suit”.  Now, there is, as Justice McHugh has pointed out, a paradox involved here because obviously if one has some removal of a right one can still bring the suit but one is going to lose.  We submit there is nevertheless, although it may be metaphysical in some cases, a distinction between provisions which merely mean that one loses and provisions which take away the right to bring the suit.  That is referred to in a number of places.  Perhaps one of the clearest statements is in the judgment of Justice Brennan in Mewett 191 CLR 471. The reference is at page 492 point 2, where his Honour draws the distinction at the top of page 492. He says:

Where a State statute of limitations bars the remedy but does not extinguish the right of action, the prescribed limitations apply to any suit to which the Commonwealth is a party in a court exercising its federal jurisdiction in that State either by operation of s 64 or by operation of s 79 of the Judiciary Act 1903 (Cth). As at present advised, I would not ascribe any operation to s 64 in respect of a State statute of limitations which extinguishes the right when it bars the remedy. The reasons for doubting whether s 64 has any operation in that context can be gleaned from my judgment in The Commonwealth v Evans Deakin Industries Ltd ‑

Now, the submission I am putting involves a fine line. Section 64 covers adjectival matters, and a statute of ‑ ‑ ‑

GUMMOW J:   What do you mean by adjectival?

MR BENNETT:   Incidental, your Honour. Is incidental to the exercise of the judicial power of the Commonwealth. I have submitted that section 64 applies to incidental or adjectival matters, and clearly that would include a statute of limitations which bars the right rather than the remedy. But when a distinction becomes important, as in the other aspect of section 64 which is the words “in any suit” and those words do require the drawing of the distinction referred to by Justice Brennan in the paragraph to which I have just taken the Court. When one applies that to section 6, the easiest way to demonstrate the way it applies is to take your Honours to the decision of the Supreme Court of Western Australia in State Energy Commission v Alcoa (1995) 17 WAR 131.

In the judgment of Justice Rowland at page 149 there is a short passage which makes the distinction clear.  His Honour says at 149E:

The time limits for taking action against public authorities and other persons with s 47A(1) of the Limitation Act are procedural rather than substantive in the sense that non‑compliance does not invalidate: cf s 6 of the Crown Suits Act 1947 (WA) which provides that “no right of action lies” with s 47A(1) of the Limitation Act which provides that “no action shall be brought” and see the discussion by Windeyer J in Australian Iron & Steel Ltd v Hoogland ‑

So, it is a fine distinction but it is one which has been laid down and which has the effect in this case that a condition precedent is not satisfied and therefore is not in any suit.

The second reason ‑ I will not spend any time on ‑ is dealt with in paragraphs 16 to 19 of our submissions.  It simply is the proposition that the Commonwealth can regulate, and this is a mere regulation, and we do make the point that the 1898 Crown Suits Act had similar provisions to section 64 side by side with similar provisions to section 6. They were not seen as inconsistent; they coexisted then, and we submit they can still coexist in the federal and State sphere.

The third reason that section 64 does not apply in this case, we submit, lies in the words “as nearly as possible”. This has been extensively dealt with by my learned friend the Solicitor for Western Australia and by my learned friend the Solicitor for New South Wales, and I do not propose to spend any time on it, beyond making this short point. That the words “as nearly as possible” are not directed to physical or practical possibility of applying the provision. The provision can always be applied in one sense, as a matter of practicality. What they are concerned with is the unavailability of a comparator. If there is no available comparator then it is not possible. If there is only a remote comparator, one has to say, “Is it as nearly as possible a comparator that one can use?”.

GLEESON CJ:   Does it mean as nearly as reasonable?

MR BENNETT:   No, your Honour.  No, it means as nearly as possible, but in the grammatical sense of finding a comparator rather than in the physical sense of the section being able to apply.  That is why it is not an answer to my learned friend’s submissions to say, “Oh, why is it not possible or practical or reasonable to return moneys unlawfully exacted or to provide some notice requirement in relation to it?”.  That is not the issue.  The issue is whether there is an available comparator.  There has been submissions as to what the available comparator is and whether there is one.  But once one applies that test, we submit that it all falls into place.

If your Honours do take the other view, we would commend to your Honours the considerations taken into account in Air Canada v British Columbia and in the Antill Ranger Case in the judgment of the Chief Justice at page 100.  It is not always a simple matter of saying, “Money has been unlawfully taken, therefore there is no way one can limit or control the ability of the taxpayer to get it back.”  There are other considerations.  Suppose that it were to be held for some reason, for some technical reason, that the Income Tax Assessment Act was invalid.  Now, the Commonwealth must be entitled to protect itself from having to refund six years worth of income tax to every taxpayer in Australia who pays it.  What method was adopted to achieve that would depend on the limits laid down by cases such as Antill Ranger.  But there are considerations which do have to be borne in mind in these cases which weigh, to some extent, against the very attractive proposition that when governments unlawfully exact moneys they should return them.  Those considerations are set out very clearly both in Antill Ranger and in Air Canada.

Those three propositions were the fifth, sixth and seventh of my nine submissions. The eighth matter concerns section 6(1) and its independence from section 5. On that issue we adopt what has been said by Western Australia. We simply add this example. That is that if there were another Western Australian statute which independently of section 5 provided a right to sue the Crown or a right to sue the State of Western Australia, in particular circumstances, there is no reason why section 6 should not apply to it. It is very easy to use words like “intertwined” and “interrelated” and words of that sorts, as my learned friend, Mr Hutley does, but in reality the sections are not intertwined at all. They have a relationship, along with the rest of the Act having a relationship to section 5, namely that section 5 is subject to the Act. But that is the only interrelationship. It is nothing more than that. The sections happen to be adjacent for fairly obvious reasons. But the section is capable of working quite independently, and there is no reason why if a cause of action against ‑ if the right to proceed against the State is given by any other legislation, federal or State, that section 6 should not be able to pick it up.

The ninth and last matter is severability. The difficulty with severability is that there are a number of bases on which my learned friend, the Solicitor for South Australia suggests that section 64 is invalid, and the type of severance that needs to be applied may be different depending on which basis the Court were to accept, if it were to accept any of them. For example, one of his bases is he says, “Well, section 78 deals with the Commonwealth and the State as a defendant, the general powers under section 61 perhaps deal with the Commonwealth as plaintiff or as defendant, but nothing covers the State as plaintiff.” We say of course the State as plaintiff within federal jurisdiction is covered by the implied power to legislate in relation to matters incidental to federal jurisdiction.

If we are wrong on that, and if we can legislate as to the Commonwealth as plaintiff or defendant and as to the State as defendant but cannot legislate as to State as plaintiff, that is a very simple and very easy piece of severance.  One says there are the four corners of the square:  Commonwealth plaintiff, Commonwealth defendant, State plaintiff, State defendant, and the section applies to three of them.  That does not raise the sort of problem that is raised by Pidoto v Victoria. If, on the other hand, the other aspect of my learned friend’s argument is accepted, the argument where he says, “Well, section 78 only gives power in relation to rights to proceed and section 64 by going beyond rights to proceed is invalid”, then the sort of severance is different.

First of all, of course if he were right in that the logical steps in his argument are Evans Deakin says that section 64 is substantive and can create causes of action; two, that goes beyond section 78; three, therefore it is invalid. Again of course, we say that it is valid for the other reason, because of the implied scope of the judicial power. Also, we say it is incidental to section 78 to the conferral of judicial power. But if we are wrong in that, is not the answer to say, “Well, Evans Deakin shouldn’t stand” rather than to say, “the section is invalid”?  One would endeavour to construe so as to be constitutional.  If that argument were right, that would be the strongest argument for overruling Evans Deakin because in order to make the section constitutional one would need to overrule Evans Deakin.  But even there it would be possible to sever the section in a number of ways.

We have dealt with that in paragraph 34 of our submissions.  We used one word, which perhaps was not the best word to use in that paragraph which may have led to part of the problem.  Your Honours see in paragraph 34 in the second line we use the word “distributively”.  Now, that was not used, or not intended to be used, in the sense in which it was used in Pidoto v Victoria.

GUMMOW J:   How would you rewrite it?

MR BENNETT:   It should be ‑ what we intended to say, your Honour, and what it does not say, is depending on which basis of invalidity is accepted section 64 should be read down appropriately to that basis of invalidity. That was what we meant to say and did not say. Although the second sentence, giving an example, and the footnote explain what I have just put to the Court. We certainly did not intend to suggest that one can apply the sort of distributive reading down of the type which was criticised in Pidoto where one just runs through section 51 and says, “Well, it’s valid as to lighthouses and valid as to bankruptcy and valid as to each of the traditions of section 51”. It is easy, if the problem is that section 78 does not justify substantive creating of a cause of action, to say section 64 does not have that reach. That, as I say, involves overriding Evans Deakin.

Finally, your Honours, can I just say this. We adopt the submissions of Western Australia in relation to section 47A and the way that can be used as a comparator. We also obviously repeat everything which is in our written submissions and which I have not expressly covered.

GUMMOW J:   Mr Solicitor, what significance if any does the existence of the Franchise Fees Windfall Tax (Collection) Act of the Commonwealth bear on these questions?

MR BENNETT:   Can I make a written submission on that?

GUMMOW J:   Yes, could you do that?

MR BENNETT:   Yes, certainly, your Honour.  We will have that done.  I apologise that my estimate of time was considerably under what I ‑ ‑ ‑

KIRBY J:   We were very quiet.

GLEESON CJ:   Yes, Mr Hutley.

MR HUTLEY:   By whichever route the right to proceed against Western Australia is derived, namely through either an implied constitutional right, conferral of jurisdiction under section 76(1) and section 77 of the Constitution or section 64 of the Judiciary Act, the result is the same, namely section 6 cannot be picked up, in our respectful submission, by section 79 as it is repugnant to that right and, therefore, would not be applied as surrogate federal law. This is so whether it be procedural or substantive in character on its true construction.

GUMMOW J:   Repugnant to what, Mr Hutley?

MR HUTLEY:   It is repugnant to the right under the Constitution or through jurisdiction. It is to be remembered that section 6 provides:

no right of action lies against the Crown unless ‑

It is not a case of regulating a right of action such as perhaps determining the circumstances in which it shall be made complete in some way or affecting it in that way, it provides, “no right of action against the Crown lies”.  There is a direct inconsistency.  True it is, there are a number of defeasing circumstances whereby the right of action ‑ I am making the assumption on its true construction it would refer to these federal rights of actions.  I made submissions in‑chief to the contrary.

GUMMOW J:   Now, section 79 is subject of Constitution.

MR HUTLEY:   Yes, your Honour.

GUMMOW J:   One way, as I understand it, you are now putting it is that reading this section 6 as this “no action lies” would fly in the face of what the Constitution would at least allow.

MR HUTLEY:   Precisely.

GUMMOW J:   Because it is not regulating.

MR HUTLEY:   Yes, your Honour.  Our primary submission in‑chief is ‑ ‑ ‑

GUMMOW J:   Therefore 79 cannot pick it up.

MR HUTLEY:   Precisely. Our primary submission is that section 6 has to be read with section 5. The contrary submission made is that section 6 is an independent substantive provision. Assuming that, that means that it is a binding norm, if picked up and applied, that “no right of action lies”. It runs straight into, in our respectful submission, the rights of action ‑ if there be them ‑ derived from the Constitution, the conferral of jurisdiction, or section 64. It is not a regulation of the right of action. Regulation assumes at least subsistence. It is a denial with a series of defeasing conditions to that denial, namely the notions provision, the discretion of the Attorney‑General under subsection (2), or leave from a court.

CALLINAN J:   It does not just add another element to the cause of action?

MR HUTLEY:   No, your Honour.  On this analysis it denies a constitutional ‑I will use “constitutional” as the first right of action ‑ and under certain circumstances you can get it back.

HAYNE J:   Is it then the same as saying that an element of your cause of action on this construction of section 6 would be proof of notice or consent?

MR HUTLEY:   It could be.  It would have to be, your Honour.  The submission put against this, it is a substantive element of the process ‑ ‑ ‑

GUMMOW J:   Not a defence.

MR HUTLEY:   Not a defence.

HAYNE J:   Not condition precedent to action?  That is, which would go without pleading.  You would have to plead as an element of your cause of action.

MR HUTLEY:   Under I think it is Order 20 rule 8 of the Western Australian Supreme Court rules provision is made for in effect not requiring to plead conditions precedent.

HAYNE J:   Just so.

MR HUTLEY:   Put on the spot I think, your Honour, it may be a condition precedent but minds could differ about it, because the character given to it by the section in the submissions by Western Australia is said to be substantive to the extent of being an essential element as it were of one’s cause of action.  It has really become intrinsic to one’s cause of action.  In our respectful submission, that is wrong and it is wrong for a number of reasons, namely it is not an extinguishing provision such as was considered by this Court in Georgiadis v AOTC.  It is a very different sort of provision.  It is a provision which does not, if satisfied, confer anything.  If satisfied one has to look elsewhere for one’s right to proceed.  So in effect it is of its character suspensory of something.

That is why we say, in essence, it is tied up with section 5, it is a suspending provision in relation to section 5. How it is sought to be put now is, in effect, as a binding norm. No action lies in the federal sphere per medium, section 79 which, if satisfied in some as yet unspecified way, leads to the re‑existence of the federal right to proceed or the federal denial of immunity. That is, as we understand it, how it is put.

HAYNE J:   There is at least this verbal difficulty in this understanding of section 6(1), that you then have to grapple with 6(1)(a) talking about the course of action accruing and 6(1)(a) contemplates that you have a course of action which has accrued.

MR HUTLEY:   Your Honour, that is why we say no right of action lies –can I answer the question this way.  Section 5 is expressed in the passive voice.

HAYNE J:   All the difficulties that then follow.

MR HUTLEY:   Exactly. It entails on the arisal the Crown may be sued, to use the Crown in the terms of the section, the corollary of that will be someone will have a right of action. That is really what is driving the language of section 6. It is speaking about the corollary of the exposure of the Crown to sue. It is saying, “Until you have done this the Crown may not be sued” and that is expressed as no right of action lies. That is why we say the two sections simply cannot be divorced, they are intimately connected and to take up shortly one submission of my learned friend, the Solicitor‑General for the Commonwealth, he referred to the use, as it were, picking up of section 6 through other means.

That, of course, ignores section 7.  Section 7 says, section 5 and 6 really have nothing to do with rights of action conferred elsewhere through statutory regimes or the like.  In effect, sections 5 and 6 are the States regime for removal of immunity in circumstances where that immunity has not otherwise been removed by particular legislation and the like.

GUMMOW J:   Yes, section 7(c) makes that pretty plain.

MR HUTLEY:   Yes, your Honour. Really, one has to, in effect, see sections 5 and 6 as an integrated mechanism for removing the immunity in the circumstances comprehended by those sections, nothing more. That is why we submit they should not be construed and would not be construed to, in effect, say anything to federal rights of action. Therefore, even if one “picked it up”, section 6, it would not be speaking to the same subject matter as our right to proceed under the three heads which I have referred to.

Just to finish that submission, your Honour, the character of the relieving circumstances, particularly subsection (2), which gives a relieving circumstance to the discretion of the Attorney‑General, points up that condition precedent nature, in our respectful submission. That can be given at any time. We submit, for example, one could bring a suit, have it dismissed because one had not satisfied section 6(1). The Attorney‑General could exercise his or her discretion, and you could bring another suit.

As to the re‑opening of Evans Deakin, in our respectful submission, leave should not be granted and the decision in any event is correct.  The difference texturally between section 3 of the Act considered in Farnell v Bowman, 12 AC 643, and section 64 are easily explained by the drafting decision to use the words “in any suit” rather than the prefatory words in that decision. Once that condition be satisfied the section applies. It is unnecessary to repeat the introductory words of section 3 because the section applies, that is section 64, to all rights and all rights must include a right to proceed.

Reference was made to the statement at page 264 in Evans Deakin and the reference there to jurisdiction of the Supreme Court by the combined effect of section 39(2) of the Judiciary Act and section 75(iii) of the Constitution and your Honours were taken to that. In our respectful submission, that was not made with the aim of showing that there was a right of action but rather as establishing that the Supreme Court had jurisdiction to entertain a suit to which the Commonwealth was a party.

Turning to section 64. My learned friend, the Solicitor‑General for Western Australia, would put a gloss on the words of section 64 by reference to what is called “a properly constituted suit”. The metes and bounds of that concept was never explained, it would appear that its only attribute is that one had to identify a right to proceed, that is, the denial of the immunity of the State or Crown from some other source. No textural support can be found for that unique exception.

The reference to the joint judgment of Justices Gummow and Kirby in the Commonwealth v Mewett 191 CLR at page 555, whilst that case of course determines the absence of that Commonwealth immunity, it has relevance to the subject under consideration, namely, the true construction of section 64 of the Judiciary Act.

McHUGH J: Would section 64 apply to a suit or an application for preliminary discovery, such as the…..of an officer?

MR HUTLEY:   Yes, and I think there is a Federal Court decision to that effect. That has been considered, not that section 64 ‑ but it has been found that that was a suit in federal jurisdiction in the Federal Court. In our respectful submission, it would be a suit. The words “any suit” in the Judiciary Act was intended of course to apply to suits in courts in which federal jurisdiction was invested so section 2 gives it a broad meaning and really one must turn to – Kirella v Hooper dealt with that.  We will get your Honours a reference and have it sent through.

GUMMOW J:   Suit is defined ‑ ‑ ‑

MR HUTLEY:   Yes, suit is defined as any proceeding, your Honour, in section 2.

GUMMOW J:   Between parties.

MR HUTLEY:   Between parties.  We say here a writ was filed with parties in conformity with the rules of the Supreme Court Act. I think section 4 defines “an action” as including any proceedings commenced by writ in the Western Australia Supreme Court Act.  We achieve that and we say that is the end of it.

CALLINAN J:   An application for discovery before action might be analogous to a suit or a bill of discovery in equity, of course.

MR HUTLEY:   Yes.  That is what they say in Kirella I am being told, that it has exactly that analogy.

GUMMOW J:   Mr Hutley, if section 6(1) were rewritten in a federal law but it still had the central notion that no right of action lay against a State or the Commonwealth or recovery of unconstitutional levying of taxes unless these steps were taken, as I understand it you say that would be invalid.

MR HUTLEY:   To the extent that the right derives from the Constitution, yes, in the sense that the right to derive from the conferral of jurisdiction under section 76(i). If it attempted to entrench upon the rights arising under section 75, such as 75(iv), a real question could arise as to its constitutional validity.

GUMMOW J:   You have to say that, do you not, otherwise you….. section 79 argument.

MR HUTLEY:   No, no, your Honour, I was just going through the various heads.  Yes, your Honour, one may accept that one can regulate it.  One cannot extinguish it no matter for how short a period of time.

Can I then turn to “as nearly as possible”. No submissions were actually addressed to this Court about the actual matter under consideration by the Court. In a matter there may be a number of issues as to whether the rights of the parties can as nearly as possible be the same as in a suit between subject and subject. The answer to each inquiry may be different depending upon the precise right involved and depending upon the precise character of the suit involved such that one may be able to achieve in a particular suit an equilibration of a number of rights but having regard to a particular right or interest which falls for consideration in the suit that the, as it were, effect of section 64 simply cannot be achieved.

GUMMOW J:   Are there any authorities ‑ I asked this but I did not get a straight answer ‑ actually applying those words to knock out a case?

MR HUTLEY:   Your Honour, there are I think in the judgment of Justice Stephen in Maguire.

GUMMOW J:   I do not mean just what particular Justices have said, I mean a decision ‑ ‑ ‑

MR HUTLEY:   No, your Honour, he there refers to a number of cases which have at first instance, not in this Court, dealt with matters such as the question of ‑ ‑ ‑

GUMMOW J:   I thought there was one in the Supreme Court of Victoria.

MR HUTLEY:   Yes.  A contempt.  Whether sequestration for contempt could take place.  It is in his judgment I think your Honour will find ‑ ‑ ‑

GUMMOW J:   In what case?

MR HUTLEY:   Maguire v Simpson.

Nothing was said by Your Honour Justice Gummow, nor in Commonwealth v Western Australia in the passage that the Court was taken to, nor in the joint judgment of Austral Pacific to the contrary. The subject matter here is the right to proceed and relevantly the requirement of notice. Nothing has been identified to show why the subject matter of section 6 is any way different from the position of subjects where no notice is required. This points out that the reference made by the Solicitor‑General for Western Australia to the appellant’s concession in respect of the application of section 37A of the Limitation Act to this suit is simply irrelevant to the inquiry that is called for by the Court.

The available comparator is, in our respectful submission, the subject, that is, a suit between subject and subject.  It is not some conceivable subject who is in a similar position to the State by way of regulating tax.  The comparator is a suit between subject and subject.  One looks to the nature o the suit, this is a suit from money had and received, and the comparator becomes a suit between subject and subject.  If there be, as it were, incidents of the suit which the status of the State dictates that that position should not be achieved, the term “as nearly as possible” prevent them from being achieved.

I am sorry, your Honour, it may not have been actual cases.  It is at 394 and 395.

GUMMOW J:   All right then, then at 387 too, actually.

MR HUTLEY:   Yes, your Honour, and I am referred to Davidson v Walker (1901) 1 SR(NSW) 196, and Gibson v Young (1900) 21 NSWLR 7, and they are referred to in the joint judgment in the Asiatic Steam Navigation Co v Commonwealth 96 CLR 397 at 417.

GUMMOW J:   Thank you.

MR HUTLEY:   Turning then to section 47A of the Limitation Act.  For 47A to be of any relevance it must apply as surrogate federal law.  As such it will apply with its meaning unchanged.  The section in terms does not apply to the Crown.  It cannot apply.

Further, if that argument were not correct, it would effectively immunise Western Australia from the operation of section 64 in all circumstances because the State can but act by subjects and it would always in any suit between the State and the third person be capable of being conceived of as an action between a subject and a Crown servant and therefore the aim of section 64 could be frustrated with indecent ease.

GUMMOW J:   A reliance is placed on that admiralty case, the limitation suit under 503 of the 1894.

MR HUTLEY:   Yes, your Honour, the China Ocean ‑ ‑ ‑

GUMMOW J:   Yes.

MR HUTLEY:   Of course, there the determination was that one was not in federal jurisdiction because of the colonial law and admiralty and that is really what informed the whole debate.

GUMMOW J:   So that you say there is no section 79 there because it was imperial law.

MR HUTLEY:   Quite.

As to the validity of section 64, we have the Commonwealth submissions but will make one further submission. Once engaged, section 64 provides:

that the rights of the parties shall as nearly as possible be the same . . . as in a suit between subject and subject.

The principle submission is that as currently understood section 64 could either impose to confer or subject the State to substantive rights beyond rights to proceed in section 78 of the Constitution and therefore be constitutionally invalid. Such an operation, so it was said, being beyond the legislation power of the Commonwealth and section 64 not being severable or able to be read down, the section is wholly invalid.

Assuming the second proposition, that is, that it on its face would purport to go beyond the constitutional competence of the federal Parliament, vis-à-vis the States. It follows from that that the rights of the parties to such a suit could not be as nearly as possible the same as a suit between subject and subject. Section 64 simply would not operate in that fashion. In other words, as nearly as possible must involve as nearly as constitutionally possible. Thus, the question is properly to be addressed if it ever arises ‑ and it is now nearly 100 years since the Act was passed and it has yet to arise ‑ and if it be determined, other than perhaps in Peters where your Honour Justice Kirby was President but even there it was slightly different because of the involvement of section 75(iv) – if the problem ever arises the Act will not be invalid.  All that will happen is that the

equilibrating effect of the Act simply will not take place because, as it were, the highest possibility is constitution possibility.

Those are our submissions, if the Court pleases.

GUMMOW J:   Wait a minute.

HAYNE J:   Those are your submissions.

GUMMOW J:   There is just trivial matters.  We had better be supplied with that pleading rule in the Western Australian Supreme Court about conditions precedent.

MR HUTLEY:   Yes, your Honour.

GUMMOW J:   I have ended up with two copies of writ 1383 of 1998 but none of 1759 of 1998.

MR HUTLEY:   Your Honour, one is in the appeal book.

GUMMOW J:   Believe me that that is how I have ended up, so I need a copy of 1759 of 1998 as soon as possible.  I am not the only person lacking it either.

MR HUTLEY:   Should it be delivered to Canberra, your Honour.

GUMMOW J:   No, here, as soon as possible.

MR HUTLEY:   As your Honour pleases.  Those are our submissions.

GLEESON CJ:   Thank you.  We will reserve our decision in this matter and we will adjourn for a few minutes to reconstitute.

AT 11.08 AM THE MATTER WAS ADJOURNED