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

[2002] HCATrans 411

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 TUESDAY, 22 OCTOBER 2002, AT 3.47 PM

Copyright in the High Court of Australia

MR N.C. HUTLEY, SC:   If the Court pleases, I appear with my learned friend, MR N.PERRAM for the appellant. (instructed by Clayton Utz)

MR R.J. MEADOWS, QC, Solicitor-General for the State of Western Australia:   May it please the Court, I appear with my learned friend, MR R.M. MITCHELL for the respondent. (instructed by Crown Solicitor for the State of Western Australia)

MR D.M.J. BENNETT, QC, Solicitor-General of the Commonwealth:   May it please the Court, I appear with my learned friends, MR A.R. BEECH and MR G.A. HILL, for the Attorney-General of the Commonwealth, intervening as of right, partially supporting the appellant and partially supporting the respondents, but wholly opposing the submissions of South Australia.  (instructed by the Australian Government Solicitor)

MR B.M. SELWAY, QC, Solicitor‑General for the State of South Australia:   May it please the Court, I appear with my learned friend, MS J.C. COX, for the Attorney-General for South Australia, intervening wholly in support of Western Australia.  (instructed by the Crown Solicitor for the State of South Australia)

MR M.G. SEXTON, SC, Solicitor‑General for the State of New South Wales:   If the Court pleases, I appear with my learned friend, MR J.K. KIRK, for the Attorneys-General for New South Wales and Victoria who intervene in the proceedings.  (instructed by the Crown Solicitor for the State of New South Wales and instructed by the Victorian Government Solicitor)

GLEESON CJ:   Yes, Mr Hutley.

MR HUTLEY:   If your Honours please, one matter perhaps on housekeeping, but the appellant has changed its name to British American Tobacco Australia Limited.

Your Honours, if I could firstly state the propositions for which the appellant contends: firstly, that the claim in the proceedings of the appellant arises at common law; next, that the claim is one which was at all times in federal jurisdiction as it arose relevantly under the Constitution.

McHUGH J:   Well, that is conceded, is it not?

MR HUTLEY:   Yes.

KIRBY J:   Well, South Australia says it will assume that it is right rather ‑ ‑ ‑

MR HUTLEY:   Yes.  I think the same position is New South Wales makes that assumption, but other than that all parties concede.

McHUGH J:   But it is a pretty poor state of affairs when the courts below are never told by counsel that they are in federal jurisdiction.  This is the second time in recent months that this has happened in the courts of Western Australia.  The legal profession has really to get its house in order and help the courts on these difficult questions.  You come up here now and you want to raise this point.  We have no assistance from the judges below on it.

MR HUTLEY:   If your Honour please.  The next point, the third, section 64 of the Judiciary Act conferred upon the plaintiff a right to proceed in relation to the cause of action. The next proposition, four: sections 5 and 6(1), or probably sufficient 6(1), of the Crown Suits Act Western Australia were not picked up by section 79 of the Judiciary Act, as section 64 otherwise provided.

GUMMOW J:   Well, is that right?

MR HUTLEY:   Your Honour, when your Honour says, “is that right”, in one sense it is possible that section 5 and 6 merely never spoke to the question in issue and section 64 conferred the right to proceed. The next proposition: section 64 equated the position of Western Australia to a subject where there is no notice requirement and the appeal should be allowed. The next proposition arises that the Commonwealth seeks leave to reargue the Commonwealth v Evans Deakin Industries Ltd. That is opposed. However, if the Court is minded to allow this and overturns the decision, the appellant would submit that it succeeds under section 58 of the Judiciary Act, which would confer a right to proceed in contract, which, relevantly, at 1903, connoted the claim for restitution of the appellant and that under section 79, section 58 would thus otherwise provide in relation to section 5 and 6 of the Crown Suits Act.

Finally, further, the Commonwealth submits that the plaintiff’s right to proceed arises from the Constitution. If that be right, and can only be regulated by the Commonwealth, it has been under section 64 and not by the States with the identical effect on sections 5 and 6 of the Crown Suits Act as submitted above.

Can I then turn to a description of the proceedings.

McHUGH J:   Is this last submission of yours based on some implied constitutional right, such as the Americans have developed in Bivens and six unnamed agents, that you have a constitutional right to damages?

MR HUTLEY:   Our submission is that our right to proceed arises under section 64. The Commonwealth submits that our right to proceed, that is the Constitution confers a right to proceed in respect of a matter arising under the Constitution within 76(i). It is said to arise out of the combined operation of covering clause 5 and section 90, relevantly, but the Commonwealth goes on to submit that that can be regulated, as it has by section 6 of the Crown Suits Act Western Australia.  We depart upon the last step.

KIRBY J:   The first step was reserved, was it not, in Mewett by Justice Gummow and me?

MR HUTLEY:   Your Honours in Mewett did not directly address the possibility of section 76(i) conferring such a right to proceed. However, your Honours addressed the question as whether, as a result of the operation of section 75, particularly, the relevant shield of the Crown was removed, having regard to the nature of the Constitution, at least so far as the Commonwealth is involved and your Honours did not address the question in relation to the States.

KIRBY J:   Well at some stage you will explain to me how a State Act dealing with the Crown can say anything in respect of the constitutional notion of a State, which derives its character and constitutional status from the Constitution, not from the Crown.

MR HUTLEY:   Your Honour, our primary position, as I have indicated, is section 64. We would adopt the position of your Honour that if there be such a right against a State by operation of the Constitution or otherwise, it certainly cannot be regulated by section 6 of the Crown Suits Act.

KIRBY J:   There has just been this terrible confusion, it seems to me with respect, for a long while between the constitutional notion of a State and of the Commonwealth and the position of the Crown.  It just was overtaken by history.

MR HUTLEY:   Yes, covering clauses 3 and 4, particularly, in our respectful submission, in the nature of the Commonwealth.

KIRBY J:   But one is made to stop and think one is wrong on that, because so many clever lawyers have not seen the point, but it may be that the insight comes with the passing of time.

MR HUTLEY:   If your Honour please.  Just to shortly explain the history of the proceedings:  by two writs filed respectively on 14 April 1998 and 14 July 1998, the former being at appeal book 1, the latter being annexed to our submissions, it for some reason not having entered the appeal books.  Each was filed endorsed with a statement of claim and each pleading was identical save as to paragraph 11, the second limited the claim to payments made in the year preceding the date of the writ and that was as a result of the operation of section 37A of the Western Australian Limitation Act, which is at tab 5 of the bundle of legislation.

GUMMOW J:   Could you say that again, Mr Hutley?  What was the result of 37A?

MR HUTLEY:   That there was a limitation applied upon the capacity to reclaim the money. 

GUMMOW J:   It is a claim of federal jurisdiction.  The State Limitation Act could say nothing to it.  That is as plain as a pikestaff, I would have thought, by endless decisions in this Court.  It is a question of whether there is some federal law otherwise in federal jurisdiction.

MR HUTLEY:   I appreciate ‑ your Honour, I was using it elliptically in the sense that section 79 ‑ ‑ ‑

GUMMOW J:   It is not a good idea to use it elliptically.

MR HUTLEY:   Thank you, your Honour.

GUMMOW J:   These are the sort of error that Justice Kirby has been pointing to.

MR HUTLEY:   Section 79 picked it up and applied it as surrogate federal law. The proceedings were consolidated and the action 1759 of 1998 became the lead action. That is at appeal book 65, line 40, as required by Order 83 of the Supreme Court Rules. Application was brought for summary judgment and to strike out the statement of claim on the ground that the appellant had no right of action by reason of a failure to comply with section 6(1) of the Crown Suits Act and no application had been made under section 6 for leave to bring the action. The application was dismissed by the Master, and that is at appeal book 73. An appeal with leave to the Full Court was upheld, and that is at appeal book 81.

The appellant accepts that unless it is successful in its submission that section 6(1) does not affect its right to proceed against Western Australia. The appeal should be dismissed on the grounds that it did not “as soon as practicable” or within three months after the cause of action accrued, give the notice specified in the section. Special leave to appeal was granted on 31 May 2001 and the leave extended to all grounds specified in the notice of appeal at appeal book 97 to 99. The appellant is confining its submissions to ground 2.8. It follows from that that the appeal would be dismissed against the second respondent, it being accepted that irrespective of the outcome of the appeal on ground 2.8, the second respondent was a mere conduit as found by the Full Court.

KIRBY J:   Do you somewhere conveniently collect the common ground, because there is quite a bit of it?

MR HUTLEY:   Your Honour, from the submissions of the respondents, all that I have just said, your Honour, is common ground.

KIRBY J:   Right.  Well we will just have to take it from the transcript.

MR HUTLEY:   But, your Honour, in our written submissions we have set out in detail the course of the proceedings and none of those are disputed; they are all agreed.

KIRBY J:   What is the stake; how much is involved in the claim?

MR HUTLEY:   The precise figure, your Honour, is something over $7 million.

KIRBY J:   You are confining yourself only to the last payment.

MR HUTLEY:   Your Honour, the payments were made from time to time in accordance with ‑ ‑ ‑

KIRBY J:   Yes, but over many years billions of dollars ‑ ‑ ‑

MR HUTLEY:   Of course, your Honour.  As it were, surrogate federal law, section 37A, places a time limitation in respect of such claims to one year ‑ ‑ ‑

KIRBY J:   The so-called surrogate federal law, if you pick it up, talks of the Crown in right of Western Australia.  It does not say anything about the State of Western Australia.

MR HUTLEY:   No, your Honour, this is section 37A of the Limitation Act, I am talking about, your Honour.

KIRBY J:   All right, I will just have to look at that.

MR HUTLEY:   The figure, your Honour, to be precise, is $6,957,000,000 and that appears in the third writ, which is annexed to our written submissions in paragraph 11.  That, of course, reflects a series of bi‑monthly payments under the licensing regime, which operated prior to this Court’s decision in Ha.

GLEESON CJ:   Section 37A talks about recovering from the Crown or the Government or the State.

MR HUTLEY:   Yes.

KIRBY J:   Yes.

GUMMOW J:   Anyhow, you accept that 37A translated in to the federal sphere applies to this case?

MR HUTLEY:   Yes, your Honour.

GUMMOW J:   Hence the 12 months, is it not?

MR HUTLEY:   Yes, your Honour.  I will come to explain the regime, unlike in Ha, this was a bi-monthly payment regime.

KIRBY J:   And applies even if the source of the right against the State is that which is implied in the Constitution itself.

MR HUTLEY:   Yes, your Honour; we do not contest that the Limitation Act would apply to this case by the process that Justice Gummow referred to.

GUMMOW J:   You would have to say, section 79 is within power and section 79 is to be read as a federal law, which writes all this out and is valid.  That is how it works, is it not?

MR HUTLEY:   Can I take your Honours shortly to the statement of claim and, before I do, if I could explain the route by which the licence fees, if I can use that word neutrally, were paid. The claim is for the recovery of money paid to Western Australia and collected by the Commissioner of State Taxation under sections 10 and 12B of the Business Franchise (Tobacco) Act 1975, as amended by the Business Franchise (Tobacco) Amendment Act 1993. Your Honours, there was no consolidated Act between 1975 and 1993 and the operative provision determining the fees - your Honour, I misled your Honour in one respect. It converted at a point to monthly fees. I have just had that checked. Section 10 provided for the payment of fees. From 1993 that fee was an amount equal to 100 per cent of the value of the tobacco sold in the preceding relevant period which, as I indicated, I mislad, your Honours, is, in effect, on a monthly basis.

Your Honour, the relevant provision of section 10, your Honours will find behind tab 8 in the legislation. If I could take your Honours shortly behind tab 7 and if I could take your Honours – in this legislation there is numbering at the top; your Honour will find it at 222, in the top right‑hand corner. That is section 10 as it was as at 1975:

The fees to be paid for licences issued under this Act shall be as follows –

If your Honours can then go to tab 8, your Honours will see that section 3 of that Act amended section 10 by deleting the amounts and then replacing it by certain other provisions, which required 100 per cent fee in respect of wholesalers.

If I could return then shortly, your Honour, to the Act behind tab 7 and take your Honours to page 219, your Honours will see the requirement for:

A person shall not carry on tobacco wholesaling except under and in accordance with a wholesale tobacco merchant’s licence or a group tobacco licence.

The structure of the legislation was to all intents and purposes on all fours with that considered.  The New South Wales Act, being the Business Franchise (Tobacco) Act of 1987, which was held, or relevant provisions of which were held, to infringe section 90 in Ha in New South Wales in (1997) 189 CLR 465, the relevant provisions, which your Honours will see are substantially identical, appear at pages 485 to 486 of the report.

Just before one departs the Acts, your Honours, if your Honours would go to the Act behind tab 7 and go to page 226, your Honours will see section 12B which provides that:

Fees payable under this Act for licences are debts due to Her Majesty and payable to the Commissioner.

For the purposes of an argument concerning the construction of section 47A, which arises in reply, section 47A of the Limitation Act Western Australia, which is behind tab 5, the appellant sent notices under section 78B of the Judiciary Act notifying a challenge to section 10 and 12 of the Business Franchise (Tobacco) Act.

Turning then to the claim, the claim is for money had and received.  The relevant principles governing such a claim were laid down by this Court in Mason v New South Wales, (1959) 102 CLR 108. The statement of principle is in the judgment of Chief Justice Dixon at page 117 which sets out the principles as to relating to the recovery of involuntary levied government charges and, relevantly, acquaints the principles to those which apply as between subject and subject. The facts in the case concerned a claim by Victorian residents against New South Wales for the recovery of fees paid to obtain permits issued under the StateTransport (Co-ordination) Act 1931.  The fees were paid prior to the decision of the Privy Council in Hughes and Vale Pty Ltd v State of New South Wales, which declared the Act invalid insofar as it applied to interstate persons.

Your Honours, apropos one of the points which may arise, it is to be noted that Mr Justice Kitto at page 124 considered that the claim under consideration to be won based on section 58 of the Judiciary Act, being a claim in contract.

GUMMOW J:   What does Daly v State of Victoria 28 CLR 395 say, do you know?

MR HUTLEY:   Your Honour, Daly, that was a case which involved the recovery of probate duty, which had been paid under protest and the issue was, in the case, whether that was a claim which arose at common law and the Court held that it did.  That is at page 399 of the report.

GUMMOW J:   For what purpose?

MR HUTLEY:   For the purpose, your Honour, of determining whether it fell within section 58 or whether the Crown Remedies and Liability Act Victoria should apply. Now, the money was paid on the basis, in our case, that it was a licence fee and the licence fee was essential to trade and I took your Honours to section 6 of the Act a moment ago, which required a wholesaler to be licensed.

GUMMOW J:   Is there not some question of compulsion being required?

MR HUTLEY:   Your Honour, in Mason the compulsion was found to be sufficient that one’s trade depended on the presence of a licence, which was only obtainable if one paid the fee. Here, our capacity to trade as a wholesaler was dependent upon maintaining a licence, maintaining a licence was dependent upon paying the fees calculated in accordance with section 10.

McHUGH J:   Well you could not recover if it was a voluntary payment, but what was voluntary had to be examined in the world of practical affairs and you really have no choice.

MR HUTLEY:   Your Honour, we are on all fours.

KIRBY J:   That is not disputed, I assume, is it, that you had to pay to keep your licence to keep in business and therefore you ‑ ‑ ‑

MR HUTLEY:   I cannot conceive that it was.  It is disputed.  This case falls squarely within Mason; it is literally factually on all fours.

HAYNE J:   Well, so in Mason there was payment under protest, was there not?

MR HUTLEY:   No, your Honour, there was not payment under protest – I will have that checked, your Honour.  In Daly there was payment under protest.

HAYNE J:   And Mason, I think.

McHUGH J:   Yes, certainly some of the payments; I am not sure all of them.

MR HUTLEY:   Yes, I think your Honour Justice McHugh is correct and that was the significance of the Privy Council’s decision in Hughes and Vale.  I will just have that checked, your Honour.  But the case did not turn as it appeared to have turned in Daly on the presence of a protest.

CALLINAN J:   But, Mr Hutley, do you have to have an awareness of at the time of the payment or at least a claim that it is illegal?

MR HUTLEY:   No, your Honour, in our respectful submission what you have to have is the prospect that if you do not pay your capacity to trade will be impinged upon.

CALLINAN J:   I was just looking at the passage that you referred us to and Chief Justice Dixon’s reasons at page 117 at about point 7:

It is enough if there be just and reasonable grounds for apprehending that unless payment be made an unlawful and injurious course will be taken by the defendant in violation of the plaintiffs’ actual rights.

MR HUTLEY:   You will lose your licence.

CALLINAN J:   Yes, but do you not have to understand or believe, at the time of payment, that the course that will be taken against you is or maybe unlawful and injurious?

MR HUTLEY:   Your Honour, I have not taken your Honours through all the passages in the judgment, because ‑ ‑ ‑

CALLINAN J:   You can see why I ask you the question?

MR HUTLEY:   Of course, your Honour.  I have not taken your Honours through all the passages of all the judgments, because all we wish to establish here is that our claim is a claim which arises at common law.  We do not seek to, in effect ‑ ‑ ‑

GUMMOW J:   Well, I am not so sure about the common law anyway.  Look what Sir Owen Dixon said at the top of 117.  We are not talking about England.  Look at line 3 at 117:

I have not been able completely to reconcile myself to the view –

et cetera.

MR HUTLEY:   Yes.

GUMMOW J:   It is the impact of section 92 and section 90 that is crucial.

MR HUTLEY:   Your Honour, I fully accept that.  The case is being made against us is that our claim ‑ as we understand it, is that our claim does not arise at common law.

GUMMOW J:   Well it is common law as informed by the Constitution.

MR HUTLEY:   Of course, your Honour. Your Honour, the question is, as we understand one of the submissions put, is because of our failure to comply with section 6(1), our cause of action has simply evaporated.

GUMMOW J:   Yes.

McHUGH J:   The other thing you have to remember about Mason is it was decided at a time when it was believed that money was not recoverable for money paid for a mistake of law and therefore it was sought to be recovered as money paid under a mistake of fact with all the problems that that ensured.

MR HUTLEY:   Your Honour, there may be a number of bases ‑ ‑ ‑

GUMMOW J:   It is important though, is it not?  Do you not know how David Securities ‑ ‑ ‑

MR HUTLEY:   Your Honour, I do not come here to see whether we win or not the ultimate case; it may be David Securities, this Court may be ‑ Woolwich may overcome all the necessity for any inquiries of this variety.  All I wish to establish is that I have a cause ‑ ‑ ‑

GUMMOW J:   Well, one is not informed by the Australian Constitution.

MR HUTLEY:   Your Honour, our submission is simply this:  we say we had a cause of action; no further than that.  The bases of it, at the moment, in our respectful submission ‑ the precise legal characterisation as to how it arises is not for determination in this Court.

GUMMOW J:   You say you had an action for money had not received. Which particular species does not greatly matter at the moment.

MR HUTLEY:   Precisely.

CALLINAN J:   And whether you can satisfy all of the elements, is it not for determination at this stage?

MR HUTLEY:   Quite.  Your Honours, Justice Gummow’s question in relation to Daly relieves me of the necessity to go further to that case.  That was also a case which established, in effect, a money had not received case, arose in those circumstances.  The only point we would make is that, parenthetically, in that case the Court considered that a Victorian statute, which dealt with claims against the Crown founded or arising under contract included a claim of the variety there under consideration.

There being no dispute as to the matter being in federal jurisdiction, could I proceed to the Crown Suits Act Western Australia.  Could I put that shortly in context.  Prior to 1947, suits were governed by the Crown Suits Act 1898, which your Honours will find at tab 1. The effect of that Act, in relation to claims as brought here was considered by the Court in the The Crown v Dalgety (1944) 69 CLR 18. The class of claims maintainable under that legislation was limited to those identified in section 33 of the Act and that did not include a claim for money had and received. The actual case concerned the receipt by the Treasury of Western Australia, the proceeds of cheques fraudulently obtained by an employee of the appellant’s suppliant, it being a petition of right, and applied by him in a repayment of moneys due under the War Services Homes Act 1918.  That money was paid to the State Treasury.

The Court held that on its true construction the 1898 abolished the common law right to proceed by petition of right and, your Honour, that appears in the judgment of the Chief Justice at pages 33 to 34, Justice Rich at page 37, Justice McTiernan and Justice Williams at pages 49 to 50.  However, the case held that the right to proceed against the Crown was codified by that legislation.  However, Chief Justice Latham at page 31 in the report clearly drew a distinction between that circumstance and the cause of action which existed, but was unenforceable because no right to proceed existed.  If I could take your Honours shortly to page 31 at about point 6, when his Honour was dealing with one of the sections, section 43, his Honour said:

The terms of the section strongly suggest that there is to be no right to proceed against the Crown except under the Act in other cases – i.e., in cases where the cause of action (as in the present case) arises after the Act.  Expressio unius –

et cetera.

Your Honours, the 1898 Act was replaced by the 1947 Act. The sections which are particularly relevant are sections 5 and 6. Your Honours, the 1947 Act, as originally enacted, is behind tab 2. Your Honour, section 6 of that Act was repealed and re-enacted by the Crown Suits Act Amendment Act 1954. Your Honours will find that Act behind tab 3. Section 6 of that Act enacted subsections (1) to (3) and they have had that form ever since.

GLEESON CJ:   So we can conveniently work from the consolidated Act that is behind tab 4?

MR HUTLEY:   Yes, but it is not fully consolidated, your Honour. I am just going to explain to your Honour the difficulty. Section 6(4) to (8) were added by the Acts Amendment Asbestosis-Related Diseases Act 1983 and section 7 of that Act.  Your Honours should find behind the reprint of the Crown Suits Act at 1971 the amending Act.  If your Honours go to section 7 thereof ‑ ‑ ‑

McHUGH J:   What tab, Mr Hutley?

MR HUTLEY:   It is behind tab 4, your Honour. Your Honour will find a 1971 consolidation. That has section 6(1) to (3) in their current form, but subsections (4) to (8) were added by section 7 of the Asbestos-related diseases amending Act and your Honour will find that behind that Act. There has been no consolidation or reprint since that time.

Your Honours, since all submissions, I think, are limited to references to section 6(1) through (3) and it is for practical purpose convenient to operate from the 1971 consolidation.

GUMMOW J:   Now, did section 6 have any progenitors?

MR HUTLEY:   No, your Honour. It replaced the 1898 Act. I am sorry. The original form of section 6 your Honours will find behind tab 2, being the 1947 Act.

GUMMOW J:   Yes.

MR HUTLEY:   That was repealed and re‑enacted.

GUMMOW J:   I know, but did the ‑ ‑ ‑

MR HUTLEY:   Your Honour, the Act preceding that was the 1898 Act which was the subject of consideration by this Court in Dalgety.

GUMMOW J:   I know.  In the 1898 Act, was there a notice before action requirement?

MR HUTLEY:   There is a requirement of notice, your Honour. It was section 36. It was in a very different structure to that which is found in section 6.

GUMMOW J:   Now, there was a British Act passed in the 1890s called the Public Authorities Protection Act 1893, which may be the origin of these notice before suit provisions.

McHUGH J:   It is a rather different form, that Public Authorities Protection Act.

MR HUTLEY:   Can I go to section 5 and 6, your Honours?

McHUGH J:   Yes.

MR HUTLEY:   Now, taking your Honours to section 5, it says:

Subject to this Act, the Crown may sue and be sued in any Court or otherwise competent jurisdiction in the same manner as a subject.

Subsection (2) provides for the entitlement. Section 6(1) provides:

Subject to the provisions of subsections (2) and (3) of this section, no right of action lies against the Crown unless‑

(a)  the party proposing to take action gives to the Crown Solicitor, as soon as practicable or within three months (whichever such periods is the longer), after the cause of action accrues ‑

we would note that ‑

notice in writing giving reasonable information of the circumstances upon which the proposed action will be based and the name and address ‑

et cetera, and:

(b)  the action is commenced before the expiration of one year from the date on which the cause of action accrued.

There is then a qualifying provision which deals with continuing causes of action and which, in effect, deems the cause of action to accrue at the expiry of the continuing cause, although permits action prior to that occurring.

KIRBY J:   Can I just ask you this.  There were three writs here, were there not, in the history of these proceedings?

MR HUTLEY:   Yes, your Honour.

KIRBY J:   And there is a difference between you and Western Australia as to when the cause of action accrued.  They say, as I understand it, it accrued when you paid the account.

MR HUTLEY:   We accept that, your Honour.

KIRBY J:   You accept that?

MR HUTLEY:   Yes, your Honour.

KIRBY J:   Now, was your third writ issued before the expiration of one year from that date?

MR HUTLEY:   Yes, your Honour.

KIRBY J:   So there is no problem on (b).

MR HUTLEY:   There is no problem; (b) is not engaged.  There may be an issue as to whether one can go back from the time of the second writ, but again that is not a question which really need concern your Honours.

GLEESON CJ:   Is that a convenient time, Mr Hutley?

MR HUTLEY:   Yes, your Honour.

GLEESON CJ:   We will adjourn until 10.15 tomorrow morning.

AT 4.29 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 23 OCTOBER 2002