RW Miller & Co (South Australia) Pty Limited v McKain

[1991] HCATrans 91

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl03 of 1990

B e t w e e n -

R W MILLER & CO (SOUTH

AUSTRALIA) PTY. LIMITED

Applicant (Defendant)

and

WILLIAM THOMAS McKAIN

Respondent (Plaintiff)

Removal of cause pursuant to

section 40(1) of the

Judiciary Act 1903

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

McHUGH J

Miller(2) 190 11/4/91

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 11 APRIL 1991, AT 10.17 AM

(Continued from 10/4/91)

Copyright in the High Court of Australia

MASON CJ: Yes, Mr Solicitor?

MR GRIFFITH: If I may answer, in a supplemental way, the

question of Your Honour Justice McHugh yesterday

with respect to the source of power for section 79.

We would rely on section 5l(xxv) but, on

reflection, Your Honour, we would also call in the

incidental power as being incidental to Chapter III

and, Your Honour, there seems to be no authority

bearing on the point strangely enough but perhaps

as a matter of principle the answer is clear, we

would submit, because if federal jurisdiction is

enlivened the Court should be able to dispose of
the whole matter and, we would submit, it is

obviously incidental to this to provide that the

law of the jurisdiction applies including, as has

been held by this Court, of course, the whole of

the law of the State including choice of law rules.

And on that aspect of including choice of law rules

could I refer to Musgrave v The Commonwealth,

57 CLR 514, particularly at pages 532, 543, 547

and 548 and Deputy Commissioner of Taxation

v Brown, 100 CLR 32, at page 35.

Perhaps while we refer to this aspect, may I

comment on paragraph 3(c)(iv) of my learned friend,

the Solicitor-General of New South Wales

contentions. We would note that Swift v Tyson

which is referred to by way of, more or less,

footnote in that paragraph, the 1842 decision, in

referring to the doctrine of federal common law

referred only to such doctrine when it existed as

applying in federal jurisdictions. Of course that

was overruled in Erie v Tompkins in 1938 as is

noted in that paragraph 3(c)(iv) by my learned

friend, Mr Mason, but we note that it was never

accepted that there was a unified common law in the

United States.

And indeed one might suppose that that is

impossible given the separate State jurisdictions,

but in a real sense we would submit that after Erie

v Tompkins one has a result which is very similar

to operation as we have under section 79 of the

Judiciary Act, so that the rationale would seem to

be that you should not be in a better or worse, or

indeed you should not be in a different position,

bringing an action in a State, whether it be in

State or federal jurisdiction, although you can be

in a different position if you bring an action in

New York, rather than, say, New Jersey.

I was about to refer in passing to

Quick v Garran, which is extracted in the

supplementary materials page 24 to 28. I will not

take the Court in detail to what is stated in those

few pages of Quick v Garran extracted, but what we

Miller(2) 191 11/4/91

note is that the authors do give section 118 a

limited substantive subject-matter and we would

embrace that approach and emphasize the important,

but nevertheless federal purpose of section 118.

They emphasize that symmetry with section 117,

rather than section 109, and also the plenary
nature of the power contained in section 5l(xxv),

and we note in passing that the extract of Harrison

Moore, which appears on pages 29 to 32 of our

materials, would similarly seem to adopt the

American position as it was then understood.

Turning to the position under Article IV

section 1 United States Constitution which is

raised in paragraph 7 of our contentions, we submit

that the view that full faith and credit merely

articulates what would otherwise be an implied

constitutional requirement that the substantive

rules applicable to determine the legal

consequences of conduct be the same irrespective of

where litigation occurs, is in fact the precise

view which was at one time championed in the United

States Supreme Court, particularly by

Justice Jackson, and we submit that this approach

has been now decisively rejected in the

United States as both inappropriate and unworkable.

In First National Bank of Chicago v United

Airlines, 342 US 400, Justice Jackson said:

For the essence of the Full Faith and Credit

Clause is that certain transactions, wherever

in the United States they may be litigated,

shall have the same legal consequences as they

would have in the place where they occurred.

That statement reflected, we submit, an

interpretation of the full faith and credit clause,

which first emerged during the second and third

decades of this century, but which could not in

1951, when Justice Jackson stated, as mentioned in

the First National Bank of Chicago case, a view

which was a prevailing view at that time in 1951.

The contrary view was forcibly expressed in

the opinion of Justice Stone in Pacific Employers

Insurance Co v Industrial Accident

Commission, 306 US 493, and particularly at

page 501 to 502. If I could take the Court briefly

to that passage in 306 US 501 to 502; there

Justice Stone said:

While the purpose of that provision was

to preserve rights acquired or confirmed under
the public acts and judicial proceedings of

one state by requiring recognition of their

Miller(2) 192 11/4/91

validity in other states, the very nature of
the federal union of states, to which are
reserved some of the attributes of
sovereignty, precludes resort to the full

faith and credit clause as the means for

compelling a state to substitute the statutes

of other states for its own statutes dealing with a subject matter concerning which it is

competent to legislate.

And then he refers to the Alaska Packers case,

which is a quotation which is recited by

Your Honour the Chief Justice at page 82 in

Breavington.	I will not reread that passage for
that reason.	I think Your Honour, in the extract

in Breavington, extracted somewhat more of that

passage. He and goes on:

And in the cases like the present it would create an impasse which would often leave the

employee remediless ..... It has often been

recognized by this Court that there are some

limitations upon the extent to which a state

may be required by the full faith and credit

clause to enforce even the judgment of another

state in contravention of its own statutes or

policy. And in the case of statutes, the

extra-state effect of which Congress has not

prescribed, as it may under the constitutional

provision, we thi~ the conclusion is

unavoidable that tne full faith and credit

clause does not require one state to
substitute for its own statute, applicable to

persons and events within it, the conflicting

statute of another state, even though that

statute is of controlling force in the courts of the state of its enactment with respect to the same persons and events.

The more recent pronouncement of the Supreme Court

is in Allstate Insurance Co. v Hague, (1981) 449 US
302.	We submit that this makes clear that the full

faith and credit clause goes no further than

expressing a requirement for a forum State

substantive law to be selected in a

constitutionally permissible manner, that the State

have sufficient contacts creating State interests

such that choice of law is neither arbitrary nor

fundamentally unfair. This formulation may itself

be a reflection of due process as much as full

faith and credit, but what is significant, in our

submission, for present purposes, is the

acknowledgement in the opinion of Justice Brennan

at page 307 in Allstate, where he said:

Implicit in this inquiry is the.recognition,

long accepted by this Court, that a set of

Miller(2) 193 11/4/91

facts giving rise to a lawsuit, or a
particular issue within a lawsuit, may
justify, in constitutional terms, application

of the law of more than one jurisdiction.

The discussion of full faith and credit in the

separate opinion of Justice Stevens at pages

322-323, is an attempt to define the ambit of full

faith and credit divorced from due process. Its identification of the purposes of the full faith

and credit clause is essentially the approach which

we urge the Court to adopt in relation to the

Australian provision. So for that reason, may I

take the Court briefly to page 322 and page 323.

The Full Faith and Credit Clause is one

of several provisions in the Federal
Constitution designed to transform the several

States from independent sovereignties into a single, unified Nation. The Full Faith and

Credit Clause implements this design by

directing that a State, when acting as the

forum for litigation having multistate aspects

or implications, respect the legitimate

interests of other States and avoid

infringement upon their sovereignty. The

Clause does not, however, rigidly require the forum State to apply foreign law whenever

another State has a valid interest in the

litigation. On the contrary, in view of the fact that the forum State is also a sovereign

in its own right, in appropriate cases it may

attach paramount importance to its own

legitimate interests. Accordingly, the fact

that a choice-of-law decision may be unsound

as a matter of conflicts law does not

necessarily implicate the federal concerns

embodied in the Full Faith and Credit Clause.

Rather, in my opinion, the Clause should not

invalidate a state court's choice of forum law

unless that choice threatens the federal	interest in national unity by unjustifiably	infringing upon the legitimate interests of
another State.

The decision of - - -

BRENNAN J: Looking at footnote No 9 how does that sit with

the judgment of this Court in Merwin Pastoral?

MR GRIFFITH:  Your Honour, it may be a matter of degree, or

it may be a matter of difference between the

American position and here. Merwin Pastoral,

Your Honour, does provide that there is a

substantive operation to the extent of obliging the

forum State to not apply its own rule of public

policy. Your Honour, it would seem from this

Miller(2) 194 11/4/91

statement, and I think from the last reference I

read, that the American doctrine as presently

operates would not necessarily go that far.

Your Honour, perhaps it is difficult to be dogmatic about the operation of American doctrine

because it does have an element of degree in it,

the reference in the last two lines of the extract

in the main text I just read referring to

"unjustifiably infringing upon the legitimate

interests of another State".

BRENNAN J:  But is that not the litmus test of what the rule

must be. If the forum State has a right to decline

to apply the lex loci on the grounds of its own

public policy, that must be either because Merwin

Pastoral is right constitutionally, but Phillips v

Eyre is right in terms of common law, or because

Merwin Pastoral is wrong, and you must recognize,

as the Americans would, the right of the forum there is no such right.

MR GRIFFITH:  Yes. We are intervening on behalf of the

Commonwealth, Your Honour, and to some extent we

are in the unusual position of supporting State

power, not vis-a-vis the Commonwealth, but vis-a-

vis the other States. Now, in that context,

Your Honour, we perhaps have a limited interest in

arguing whether Merwin should be absolutely

accepted, or the Court could contemplate some

exegesis or even overall in Merwin, Your Honour,

but for our purposes we have regarded as

sufficient, Your Honour, to accept the Court's

authority so far as they have gone on section 118

and built our submissions upon them, but on the

other hand, Your Honour, we would not shirk from

embracing the Court reconsidering Merwin if the

Court regarded it as appropriate to do so to

vindicate that which we say is the basic principle.

Now, Your Honour, there could be different

approaches in dealing with Merwin. The Court might

take the view that there is a different principle
to apply when there is a statutory expression of

public policy in a State and we would submit, Your

Honour, that ordinarily one would expect that to

prevail. I think example was already given. If

there was a State law which said there could be no

recovery of damage in respect of any matter

pertaining to infections of AIDS, Your Honour, that

might be regarded as a matter of public policy

expressed in the State, but in a statutory form, which would be given effect in that State if it
were the forum State dealing with facts and

circumstances which arose in another State.

Miller(2) 195 11/4/91

Now, Your Honour, with respect to issues of

common law public policy, perhaps the matter is not

so clear but our submission would be that the

appropriate principle is to be vindicated and if

the Court is of the view that Merwin stands in the

way, well we would submit that Merwin should be

regarded as modified to that extent.

McHUGH J:  I am not quite following this and particularly

having regard to your reference to Allstate. Are

you contending that this Court should hold that the

application of a sister State statute in a State

should depend upon an evaluation of the competing

policies of the State and the sister State?

MR GRIFFITH:  No, Your Honour. What we say is in respect of

a State statute which applies. For example, Your

Honour, which makes it clear that this is the law

of the forum and applies to litigations in the

forum.	We submit, Your Honour, that will apply and
section 118 does not affect its operation.	The

solution for a problem, Your Honour, if there is

then inconsistent State legislation, is either to

accept that as an incidental part of the federal

system, as it is, we would submit, in the

United State, or, Your Honour, to contemplate that

any inconsistency will be resolved through co-
operation between the States, the Territories and
the Commonwealth; the sort of co-operation one sees

in the Law Reform Commission discussion paper, or

alternatively, Your Honour, by legislation under

placitum (xxv).

McHUGH J:  But that is not the way it is done in the

United States, is it?

MR GRIFFITH:  It could be done that way in the United

States, Your Honour.

McHUGH J: But United States doctrine requires, when there

is a question of conflicting statutes, an

evaluation of policies, does it not?

MR GRIFFITH: Well, Your Honour, a very limited one and,

Your Honour, it comes down to this issue of

unjustifiable infringement, that the local State

statute will prevail unless in a way it can be

characterized as predatory, something of that sort.

Now, Your Honour, that is a test which seems to be

workable in the United States and we suppose could

be applied here, Your Honour, but our primary

submission is, Your Honour, that it is appropriate

to operate under circumstances of certainty in the

contemplation, Your Honour, that the obvious

unsatisfactory and even in just and unjust aspects

of inconsistency can be resolved in the mechanisms

which are available, joint State, Territory,

Miller(2) 196 11/4/91

Commonwealth legislative activity, perhaps mutual

legislation if it is only a problem between two

State statutes or, alternatively, Your Honour, we

have, we submit, the overarching capacity for the

Commonwealth to make provision.

But as to that, Your Honour, we do refer to the extracts of the Law Reform Commission paper

that we have extracted to indicate the great

difficulty in dealing with these problems in an

overarching way, although in Breavington in this
case we have a relatively simple fact situation of

personal injury occurring in one State and being

litigated in another.

It is not very difficult even in the realms of

tort, moving to economic torts, defamation and that

sort, even torts of personal injuries, problems

about product liability, to see the various fact

complication and then, in other issues of statutory

liability and breach of contract where the choice

of parties may be relevant and one sees in the
discussion paper, Your Honour, the great difficulty
in seeking to articulate a principle which will be

able, even co-operatively or by Commonwealth

legislation, to provide the result which, as a

matter of principle, earnestly should be attained,

namely, a uniformity of result. The articulation

of that is something which may be not attainable,

in a practical sense, and that the law reform

discussion paper is a very useful document to

indicate the practical difficulties in working

towards an object which, obviously, is a desirable

one in itself.

DAWSON J:  Mr Solicitor, I think you have made it clear but

your position is that the law which is being

enforced, notwithstanding it involves the
application of another State's law, is the law of

the forum?

MR GRIFFITH: Yes, Your Honour.
DAWSON J:	So that if the choice of law rules were changed

in the forum it might exclude the application of

another State's statute so as to give effect to a

statute of the forum?

MR GRIFFITH:  Yes. Your Honour, we would submit that the

State does have the capacity to change its choice

of law rules, yes.

DAWSON J: Yes.

MR GRIFFITH:  We do submit that.

Miller(2) 197 11/4/91

DAWSON J:  And it follows from that, and you have put this

in your argument, that if there is, for instance, a

limitation statute it may be confined to the place

of the wrong and, therefore, not be called upon to

be applied in the forum.

MR GRIFFITH: Yes, Your Honour.

DAWSON J:  Yes. And do you say it is implicit in the

argument that is put by Mr Ellicott that, in fact,

what he is suggesting is that you do not apply the

law of the forum, you apply via section 118 the law

of another State?

MR GRIFFITH: Well, Your Honour, I hesitate to say what was

implicit in my learned friend's argument, so wide

ranging as it was, and of course -

McHUGH J: Well, I think I put it to him in terms that he

was putting the vested rights theory.

MR GRIFFITH: Well, Your Honour, I do not know whether my

learned friend accepted that, but if Your Honour

put that and he accepted it, I would take issue

with him, Your Honour.

McHUGH J:  I do not know that he did. No, he would not

because that theory is denied, but that is what it

came to I thought.

MR GRIFFITH:	Your Honour, we would do nothing but to oppose any argument that gave further credence to that
exploded theory in any form.
DEANE J:	What if the State said that all questions of the

validity of the contract will be determined by

reference to the law of the forum, that is, the law

of this State in the courts of this State?

MR GRIFFITH: That is the forum where the action is being

heard?

DEANE J: Yes.

MR GRIFFITH: In that case, Your Honour, there may still be

an issue of choice of law as there is with

construing section 79, so there might be still a

way to incorporate choice of law issues.

DEANE J:  What if the law of the State said, "Every court of

this State in dealing with the matter of contract

will determine the validity of the contract by

applying the law of this State on the basis that

the contract was made in this State"?

MR GRIFFITH:  Your Honour, our basic submission is that law

would prevail.

Miller(2) 198 11/4/91

DEANE J:  Now, what if every other State said the same thing

and the requirements of validity were inconsistent

in each of the six States? Would they all still

operate, on your submission?

MR GRIFFITH: Well, Your Honour, it would depend in what

State you litigated as to what the outcome was on

that issue, and we say that is exactly the same in

America at the moment.

DEANE J:  I was not arguing. I was just asking you.

MR GRIFFITH: That is our submission, yes, Your Honour.

DEANE J:  So the position would be that if somebody said to

a lawyer, "I want to make a contract that would be

binding under Australian law throughout Australia",

the answer would be you cannot? You can make a

contract which will be invalid in five of the six

States.

MR GRIFFITH:  Your Honour, one would have to add several

postulations to your proposition to get to that

one, in our submission. Firstly, in contract law

the ordinary provision is the parties may within

limits provide for the governing law for their

contract. Now, if a State chose to have a rigid

law of the sort postulated, or all States,

Your Honour, and undermine those principles which

would affect the comity of Australia in so far as

its legal connection with the rest of the world was
concerned, one could only suppose that would

confirm our isolation as a trading organization and

would lead to great destruction of our economy.

DEANE J:  Mr Solicitor, I was not suggesting it would

happen. I was just interested to understand the

theory of it in terms of your submission.

DAWSON J: Could I put that in a theoretical way? What you

say is, if I understand it correctly, that an

individual State can change its choice of law rules

to exclude, for instance, the statute of another

State which would otherwise be applicable, and

there will be no denial of full faith and credit in

it so doing.

MR GRIFFITH: Yes, that is our proposition, Your Honour.

DAWSON J: Yes, I understand that.

MR GRIFFITH: Accepting that one could theoretically get

unsatisfactory results, we say the solution is the fact that States, territories and the Commonwealth

do work in co-operation. There is comity between

them to resolve these sort of issues in a practical

way. Secondly, we say that there is the power

Miller(2) 199 11/4/91

under paragraph (xxv) which can be enlivened to

ensure that there are satisfactory results at the

national level, and that is provided by the service and execution, evidence, formerly family

law, one could have differences between the States, whereas now we have or are moving towards a unified

system.

I am reminded, Justice Deane, that there already are choice of law provisions in contract

and consumer credit rules, so that already we do

have State participation in that area, and we say

the Court should not be concerned by the fact that
States have the capacity and do exercise that

capacity in appropriate circumstances which might produce a result, as Your Honour postulated, that

one could have a different result if litigating in

a different State.

It is probably unnecessary after strong

reference being made by almost all counsel to Sun Oil Company in various parts, including by myself

yesterday, to again refer to Sun Oil Company as

confirming, we submit, the submissions which we

have made as to the relevant position having regard

to Article IV section 1.

But could I say by way of another footnote in

referring to paragraph 3(b) of my learned friend,

Mr Mason's contentions, that we would say as to

that that we agree with what is put if that is read

words, if the proposition is to reflect the aspect of constitutional limitation that comity must be

as equivalent to footnote 3 at page 764 of the

observed we would accept the contention. But

having made that qualification to what were my

learned friend's written and oral submissions on

section 118 and with the comment as to

paragraph 3(c)(iv) I have already made, we would

respect to the American position and with respect adopt all that my learned friend had to say with to section 118.

If I may make some brief comments on

paragraph 8 of our contentions, we say that another

factor militating against the meaning contended for

by my learned friend, Mr Ellicott, is that choice

of law issues in Australia are not simple. They

are not capable of simplistic, generalized

solutions derived from consideration of relatively

uncomplicated fact situations. I have already

referred the Court more than once to the Australian

Law Reform Commission discussion paper which we say

very much makes this proposition that one cannot

easily articulate what is left as the open step

Miller(2) 200 11/4/91

after various of my learned friends' submissions

whereby they submit, in effect, we would submit,

that this issue should be escalated to one of a

constitutional issue which should have as its first

articulation a general statement that there should

be uniformity of result, and then leave it to

further circumstances, applications and

considerations to work that through in various fact

situations.

As I understand my learned friend, Mr Doyle, he very much invited the Court to confine its

articulation of the principle to personal injury
issues, but we would submit that the philosophical
attraction of apparent immediate neatness in

articulating such a principle is merely to elevate

and postpone what remains as the underlying

difficulty, namely to articulate rules which

provide appropriate results in the vast range of

complicated situations which may arise in

litigation in the federation in respect of torts,

contracts, statutory and non-statutory causes of

action.

Our submission is, as has been made abundantly

clear by my submissions hitherto, that there are

various levels on which these problems may be solved. We put at the highest level placitum

Sl(xxv). We put at the next level the sensible

exercise of co-operative federalism, such as we see

in the law reform discussion paper which is

proceeding. We put as another ingredient State

statutes, on the basis not that they deal with
issues in a way of confrontation but in a way of
co-operative resolution of problems including, if

necessary, modification of the common law rules.

We would submit that the Phillips v Eyre doctrine

could be modified by State statute as much as it

may be modified by a decision of this Court. And

we also put, and rate very highly, particularly in default of activity on the other three levels, the

articulation of the common law by this Court. And

we would submit, Your Honour, that in this case it

is possible for the Court to express a result which

is perfectly appropriate, or is the most

appropriate, and just - certainly not unjust -

result in the particular circumstances of this

case.

My learned friend, Mr Ellicott, has said this

is a plain case of forum shopping, and we would
submit, Your Honour, that there are, on

conventional principles, absent the Constitution,

mechanisms readily available for the Court to,

perhaps by rearticulating the conventional
principles of conflicts of law, to obtain an

appropriate result which, absent some statutory

Miller(2) 201 11/4/91

interference by the States, Territories, or the

Commonwealth, will produce an operating basis,

accepting, as we submit is the case, that there may
be still occasion for disparity of result in

respect of litigation in various jurisdictions.

Of course, another mechanism which exists

which may reduce such disparities is the

availability of the cross-vesting legislation

because, of course, it is possible, if there is a

consequence arising from a matter proceeding in one

jurisdiction rather than another, for the matter to

be transmitted by order of the court to the other

jurisdiction and in that way, using section 11 of

the (Cross-Vesting) Act, some of the aspects of
operational difficulty with conflicts may be

resolved in a sensible and a just way.

There may be other mechanisms under the

(Cross-Vesting) Act available. For example, here

it has been suggested that there could be an

application for relevant extensions of time under

each of the limitation provisions, and it was

supposed that that might involve an application in

the South Australian courts. We would suppose that

it would be possible under the cross-vesting

legislation for such applications to be made in the

New South Wales Supreme Court. Not necessarily so.

That would be at the discretion of the New South

Wales court if the application were made, whether

to hear the application or to transfer that matter

over to the South Australian court.

So there are mechanisms and we submit they are

ones which, in a practical way, do go to solve some

of the operational difficulties and certainly do

not establish the case for the Constitution to

apply in terms, perhaps sufficiently summarized by

Your Honour the Chief Justice in your last two

pages of 82 and 83 of the report of the Breavington

decision, to substitute for this flexible dealing

of difficult problems in difficult areas a

strait-jacket solution applied by a constitutional

provision such as section 118.

McHUGH J:	Mr Solicitor, perhaps you could help me here. Section 118 must at least give effect to a federal
interest, namely that each State much respect the
sovereignty of every other State. Now, supposing
South Australia enacted a cause of action and said,
"No action shall be brought in respect of this cause of action unless it is done within two years", why does 118 not require every other State
throughout the Commonwealth to give effect to that
law of South Australia?

Miller(2) 202 11/4/91

MR GRIFFITH:  Your Honour, is that with respect to a matter occurring within the State?

McHUGH J: Yes, so for the purposes of an action brought in

New South Wales, why are the New South Wales courts

not required by 118 to give effect to - - -?

MR GRIFFITH: Well, Your Honour, we would submit there may

be various elements of policy involved in that

which reflect the aspects of sovereignty of the

States. I feel very uncomfortable arguing any

issue using the adjective, or the noun

"sovereignty" in respect of the States,

Your Honour, but we have had the examples, for

example, of a husband and wife driving to Adelaide,

driving back to Sydney and just in the

circumstances the accident occurs in South

Australia, and yet all the social loss and responsibility of that injury is something borne

wholly within the State of New South Wales, now, we

would submit, Your Honour, that it is clearly a

matter of State interest within New South Wales to

say that the damage being suffered there, as it is

under New South Wales doctrine on the basis that if

you continue to be injured that is where the

damaged suffers, all the circumstances other than

the accident of locus being connected with that

State, it is appropriate, Your Honour, to say that

as a matter of power within the State, State

legislation can provide for a remedy appropriate to

that circumstance which, as much in New South

Wales, perhaps even more than in South Australia,

has a real connection, so that we would submit,

Your Honour, to a considerable extent as a matter

of abstract principle it is an infringement on the

sovereignty of New South Wales.

McHUGH J: But 118 must have some effect in the sense that

it requires one State to respect another State's

laws to some effect or for some purpose. Now, what

is the purpose?

MR GRIFFITH:  Your Honour, we might be going in a circle

because, of course, Your Honour, firstly the laws

are accepted, they do not have to be proven,

Your Honour. That is the basic operation of

section 118. Now if, Your Honour, you pick up

State laws by choice of law, having the law, as it

were, the text, given to you as of course, you do

not have to prove it as a foreign law, well then,

in that case, Your Honour, they are given effect

under the choice of law rules as laws of the State

which, according to the applicable choice of law

rules in the forum State of New South Wales, are

applicable.

Miller(2) 203 11/4/91

Now, Your Honour, there is a possibility, if

one follows completely the American approach of

saying, "There is a point where one would regard it
as invalid for a State to seek to exclude the
operation of another State law"; that is a matter

of degree, but the American authorities indicate,

Your Honour, that there is a wide flexibility of

choice, including recognizing the area of statutory

choice in the forum State over that issue.

Now we, Your Honour, would submit to the Court

that a more appropriate approach, given the clear

power under section Sl(xxv), is to qualify very

much any such limitation on the State power, on the

basis it can be resolved if there is an

unsatisfactory state in another manner, but,

Your Honour, that is really a matter for the Court

to judge whether or not it articulates the

qualification to that extent or in a somewhat

stricter manner, but we would submit that there is
no natural meaning to be given to section 118. To

say merely because a State says, we are the locus

bring the action within two years.

of the event, we can then determine throughout

Your Honour, in effect, we would submit, that

is a matter of result by assertion, rather than

one that would be derived from the construction of

the terms of section 118, read with

section Sl(xxv); a matter of reference to its

constitutional history in Australia and by

reference to the constitutional history of the

similar provision in the United States.

McHUGH J: But supposing New South Wales gives a married

person a right of action, New South Wales could not
pass a law which would refuse to hold valid a
marriage that took place according to the law of

Western Australia, could it? I am leaving aside

the - - -

MR GRIFFITH: Marriage is a difficult one now, Your Honour.

Could I have another example, I am sorry, but

marriage, I am confused by the federal power.

McHUGH J: What might constitute ownership of land? What

would evidence ownership of land?

MR GRIFFITH:  Your Honour, ownership of land, of course, one

gets immediately into the conflicts rules, but to

some extent I think the difficulty is that our

submissions are postulated on governments acting

reasonably and sensibly, but having regard to the

sovereign interests of their States. Now if one

postulates governments acting perversely, desiring

to get irrational results, one can get into

Miller(2) 204 11/4/91

difficult situations where, one might say, well, if

you apply the rule this way, that is an unjust

result, but we submit, Your Honour, that does not

alter the operation of section 118. It just goes

to reinforce the case for governments to act

rationally and sensibly in co-operation, in comity,

as they do on most issues, or alternatively,

Your Honour, we have the fallback of the exercise

of Commonwealth power.

Your Honour, another example of this, which

has not yet been exercised, in that it is sometimes

put that the service provisions under the rules of

the New South Wales Supreme Court are exorbitant.

Now, Your Honour, that may or may not be so. The

Court has not ruled on that but, if necessary,

Your Honour, the Commonwealth could pass

legislation dealing with service of process which

would ensure a uniform result through Australia, so

the problem would be solved, but for the moment,

Your Honour, in a practical way, it seems to

proceed satisfactorily. Your Honour, already we

have examples in consumer protection, product

liability of States very much acting by reference to what they see is the interest of the State and people within the State and affecting very much

what would be the operation of what otherwise would be the common law rules, and we submit that that is

something for the judgment of the State to
exercise, with the capacity of this Court to deal

with the common law rules of choice of law or the

statutory ones, having regard to all the statutes

as they arise, but if a case comes up from

New South Wales, as this one does, Your Honour, we submit there is no difficulty for the Court to

embrace the relevant choice of law principles,
including the provisions of any New South Wales

statute which has choice of law provisions in it.

We say, Your Honour, on the face they are valid.

GAUDRON J:  Now does that mean, Mr Solicitor, that in the case of diversity federal jurisdiction any law that

the court happens to light upon may be applied? Leave aside if there was no section 79, does it

mean that any law that comes to mind will govern

it?

MR GRIFFITH: Well, Your Honour, it has always been the case

in this Court that one took the High Court law

where one found it and Your Honour, these

considerations have, of course, exercised the Court

when they have been determining to where, and to

which court.

GAUDRON J: Yes, but that is on the basis of section 79. So

it is a matter of constitutional theory, in any

event. If you happen to have residents of

Miller(2) 205 11/4/91

different States and the matter is instituted in

this or the federal court, it can be determined by whichever law the court likes to select so long as

it sits there.

MR GRIFFITH:  Your Honour, in a practical way, that seems to

provide the result, but again, Your Honour, under

section 11 of the cross-vesting legislation, where

one has a cross-vesting issue, there is an element

of choice given to the judge at a certain point,

having regard to what is appropriate, but also

having regard to statute law.

GAUDRON J: Yes, well, whatever might be the effect.of

section 118 as between the States and their

relationships with each other, your submission

gives none in terms of the Commonwealth, in the

words of the section being "throughout the

Commonwealth". So that even if a cause of action

comes into existence under South Australian law,

this Court, so long as it is diversity

jurisdiction, could determine it by reference to

Queensland law.

MR GRIFFITH:  Your Honour, one has to have a result. Now,

we would submit that, as we have, there is an

implied power under the Constitution to provide a

result.

GAUDRON J:	Where is it?
MR GRIFFITH:	We say section 79.

GAUDRON J: Yes, and is there a limitation on that

implication that you at least apply the law of the

place that creates the cause of action, perhaps, if

it exists?

MR GRIFFITH: If the Court says that there is, but we submit

at the moment there is no basis to suppose that,

that the section 79 provision, as we have

mentioned, seems to reflect no more than the United

States' position under the equivalent full faith

and credit provision. And we also submit that that

is a sensible enough result which at least ensures

that you get the same result as if you litigated in

a State court or in the federal jurisdiction in a

place.

Now, Your Honour, of course, you get a

different result if you litigate in a different

court and perhaps it would be possible to provide

that in those cases, the law as it is now, Jervis

Bay should apply in all cases of diversity

jurisdiction. Your Honour, we submit that is a

matter of legislative choice incidental to the

vesting of the power.

Miller(2) 206 11/4/91

Your Honour, I was going to note that these issues of different result depending on whether

matters are remitted from this Court to State or federal courts and particular States, of course,

have been the subject-matter of inquiry and

examination in determining to which court the
matter should be referred: particularly, Pozniak v

Smith, 151 CLR 38 which has been referred to, but

also, if I could refer to Robinson v Shirley,

149 CLR 132, at page 136; Crouch v The

Commissioner of Railways, 63 ALJR, pages 416 to

418; and State Bank of New South Wales v

Commonwealth Savings Bank, 154 CLR 579, at

page 586. In those cases the Court considered the

possibility of difference of result in considering

to which court the matter should be remitted.

GAUDRON J: Yes, but a difference of result might be one

thing. I am wondering whether, assume for the

moment the State of South Australia says, "Anybody

who hits another person has to pay that person

damages of $10,000 regardless of any injury

suffered." and a New South Welsh person goes to

South Australia, is hit, the matter is instituted

in the High Court. Are you giving full faith and

credit to that South Australian law if you say,

"We're going to sit in Queensland and we're going

to apply the law in Queensland that you get damages

according to your injuries"?

MR GRIFFITH:  Your Honour, that may be a case for

modification of the common law choice of law rule.

GAUDRON J: But it has got nothing to do with choice of law.

It is federal jurisdiction. It is a question of

which law you apply. There is no choice.

MR GRIFFITH:  Your Honour, we submit that if it went to

Queensland, that would be jurisdiction controlled

by section 79.

GAUDRON J: Yes.
MR GRIFFITH: That picks up choice of law rules.	Now, it

might be an unsatisfactory aspect of choice of law

rules if one, in that circumstance, regarded the

quantum of damages issue as being a matter of

procedure because, in a real sense, the example

Your Honour postulates, it is not merely

procedural, it is the cause of action itself.	So
that, Your Honour, it may involve anxious
consideration of the relevant operation within
section 79, having regard to the choice of law

rules as they would operate when the matter came on

in Queensland as to which provision would apply.

Would it be the common law of Queensland or would

it be the statutory provision in South Australia?

Miller(2) 207 11/4/91

But what our submission is, that difficult

issue is one to be answered by reference to choice

of law issues, not by reference to a constitutional

doctrine to be articulated from section 118.

GAUDRON J: But it is very discriminatory if you just talk

in terms of the concepts in section 117, if a cause

of action, given under one law, is simply not

recognised elsewhere.

MR GRIFFITH:  Your Honour has given the parties another

argument.	They can argue section 117 as affecting
the result.

DAWSON J: It is really not a practical problem, is it,

Mr Solicitor? If the action were commenced in the

State in which there was an action of this sort and

there were a proposal to remit it to a State where

there was not, remitter would not be ordered. On the other hand, if the action were commenced in a

State in which there was no action, there would be no remitter and the thing would be struck out.

MR GRIFFITH: 

I am indebted to Your Honour, because the

cases I referred to, of course, indicate that one
looks first for a connection to remit and then
considers whether or not there is any apparently
unjust operations of legal principle, about
interest or some such thing, so, yes, we would

agree with Your Honour's comment.

We say that Your Honour's example, in any

event, is one that merely indicates the problems of

jurisdictional diversity and we have made the

general point, in ou~ submission, they will exist whether or not one elevates the problem to one of

constitutional doctrine, applying a principle under

section 118, or regards it as a problem to be

resolved by comity between the courts, particularly

this Court, doing its best in difficult

circumstances with the possibility of legislative

activity at one level or another.

DEANE J: But what Justice Dawson said is not right, is it?

I mean, what if you move outside the area of tort

and the defendant moves for declaratory relief as

to lack of liability or absence of liability?

MR GRIFFITH: Well, Your Honour forces me back to say what I

have probably said distressingly often already,

that we submit that just underlines the whole

difficulty in choice of law. To us it seems to be

it is an area by area issue, and we submit that

generally the resolution is not assisted by calling

in section 118. The problem is there in any event.

Miller(2) 208 11/4/91

DEANE J:  But Justice Gaudron's problem would remain there,

that if the defendant went for declaratory relief

in Queensland he would succeed, if the plaintiff

sued in South Australia; using plaintiff and
defendant in terms of injured and so on, he would

succeed.

MR GRIFFITH: Well, Your Honour, the plaintiff may have

difficulty issuing in Queensland. He could issue

in this Court, and then we have the remitter

problem.

DEANE J: Well, we are talking about in this Court.

MR GRIFFITH:  Your Honour, if he issued in this Court - I

understood Justice Dawson indicating that this

Court would not send it to Queensland.

DEANE J:  I said the defendant institutes proceedings in

Queensland for a declaration of lack of liability.

MR GRIFFITH: In this Court?

DEANE J: Yes. The plaintiff institutes proceedings in

South Australia to enforce liability.	The results
would be different.

MR GRIFFITH:  Your Honour, it may be - if you pick up the

documents of Borg Warner or something that apply to

South Australian law. It may be, Your Honour, that this Court would remit the matter to the South

Australian court. It may be that the South
Australian Court would transfer it under

cross-vesting.

DEANE J: Well, obviously, there would be some solution, but

I was simply trying to point out that

Justice Gaudron's problem does have some deep

implications as to where the solution lies.

MR GRIFFITH:  Your Honour, we always will have problems with

the practical operation of a federal jurisdiction

and, indeed, the cross-vesting legislation does not

purport to solve every problem. What if one court

refuses to remit transfer to one and the other

refuses a transfer or they both transfer at the

same time. Your Honour, those things are solved in

a practical common sense way and the Court may, as

here, grapple with difficult issues and not always

be satisfied with the result. But, we submit,

there is a great capacity in this Court to cope and

the fact situation, in this case, throws that up

without calling in section 118 and, as we have

said, in so doing we would seek to preserve the

capacity of the States to be able to participate in

Miller(2) 209 11/4/91

resolving the obvious problem of conflicts in this

area. If the Court pleases.

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

MR WHEELAHAN:  If Your Honour pleases. Might I hand up

outlines of our argument.

MASON CJ:	Thank you.
MR WHEELAHAN:	Your Honours, Mr Ellicott has somewhat

hurtfully described Mr McKain's case as a clear

case of forum shopping. It is the label which is

hurtful, not Mr Ellicott. Your Honours, this like

every case, in our respectful submission, must be

considered in its factual context and those facts

ought to be contrasted with the cases said to bear

so significantly upon it.

Your Honours, I do not propose to read a line

from Breavington or Byrnes but it is important to
recall that in Breavington the Motor Accidents

Compensation Act of the Northern Territory came

into force in 1979;	Mr Breavington was injured in
July 1980.	From that moment his cause of action

crystallized, or shortly thereafter, and was

subjected and subject to the substantive

limitations upon his right to damages created by

that Act which was then his only source of redress.

His coming to Victoria, a more generous forum

in terms of the relief he could expect, was a

cynical exercise in forum shopping, and it was only

fortuitously that he was able to establish

jurisdiction in that court. His course of action

had no merit. It attracted no sympathy. It was

dealt with accordingly and, in our submission,

entirely appropriately.

In Byrnes: the Workers Compensation Act of

24 November of that year. He was paid compensation	1981 was in operation when Mr Byrnes was injured on
under that Act. Some years later he left the
Territory and returned to New South Wales. The
Northern Territory time limits had expired and his
cause of action was extinguished. He, p~esumably,
and his employer, would, know that the quid pro quo
for his receiving that compensation was that the time limit and all other restrictive provisions in the scheme and contained in the self same piece of
legislation which entitled him to compensation, resulted in a time limit beginning to run which,
after the expiration of three years, would have the
result that his cause of action ceased to exist.

Available against him also was the motor

accidents defence, a la Breavington. When he sued

Miller(2) 210 11/4/91

in 1987 in New South Wales he was not unnaturally

nor unfairly met with this brace of entirely

successful defences, and so he should have been. In the case of McKenna which was mentioned but

briefly by my learned friend, Mr Ellicott, the
plaintiff there was injured on 2 August 1982 in

what might generically be described as a lifting

case in Queensland. A writ was issued on

5 November 1986 by which time the cause of action

had been statute barred in that the standard

limitation period had expired. That plaintiff

sought an extension of time in Queensland which

application failed.	She was then, in our
submission, barred irrevocably.	Her cause of
action had been lost.	She then commenced

proceedings in Western Australia which, although

the defendant carried on some incidental business
in that jurisdiction, had no other connection with

the litigation whatsoever. It was described by the

trial judge as a blatant case of forum shopping.

The defence was made out.

Your Honours, those cases are in marked

contrast, in our respectful submission, to the

factual basis of Mr McKain's case. In our outline

of argument in paragraph 1 we recite the
circumstances in which Mr McKain came to meet and

then agree with the appellant in this case. He

went to a roster which was conducted in Sydney on

16 February 1984, and was engaged by an agent of

the appellant to serve upon the motor vessel

"Troubridge" in South Australia. It was not known

to him at that time where he would work, on what

ship, in what State, in what Territory.	He was
domiciled in New South Wales at that time.

Your Honours, we submit that at that time when

Mr McKain engaged in the Sydney roster system he

was entitled to expect that the law governing his

engagement with any employer at that roster would

be the law of New south Wales.

BRENNAN J: Is that a relevant consideration for us?

MR WHEELAHAN:  In my submission it is, Your Honour, because

Mr McKain, upon being injured in South Australia,

in view of the fact that the appellant in this case

came to New South Wales to engage labour, was

entitled from the moment he was injured to benefits

under the New South Wales compensation legislation as indicated in our outline of argument. So it is

a relevant consideration if this Court needs to

consider section 82 of the South Australian workers

compensation legislation, because at the instant of

injury two independent but correlative types of

rights arose for the benefit of Mr McKain. That is

Miller(2) 211 11/4/91

the relevance of that matter, Your Honour. And

indeed, we refer to that in paragraph 4 of our

outline of argument.

The present appellant was an employer for the

time being present in New South Wales and we

subjected to 7(l)(a) and (l)(b) of the New South

Wales Workers' Compensation Act. Your Honours,

that being the case, we submit that at the time

that he was injured Mr McKain was entitled to

assume, in the first instance, that he was able and

entitled to receive compensation under the New

South Wales legislation.

BRENNAN J:  I still do not see what entitlement to assume

anything has to do with the - - -

MR WHEELAHAN: Well, Your Honour, the Chief Justice in

Breavington referred to the expectation of the

parties. We would submit that both parties to this

arrangement would, in theory, had they turned their

minds to it, have expected that the law of

New South Wales would apply to their engagement by

the appellant of the respondent and - - -

BRENNAN J: In other words, that New South Wales law is the

proper law of their contract.

MR WHEELAHAN: Correct, Your Honour.

BRENNAN J:	And do you sue in contract?
MR WHEELAHAN:	No, Your Honour, but Your Honour asked if it

was the proper law of the contract and we would say

that it is. Your Honour, once Mr McKain was

injured in South Australia, he was entitled, as he

did, to return to New South Wales where, pursuant

to the law of New South Wales he was later, or

immediately, entitled to commence proceedings in

that jurisdiction for damages. He was resident

there; he had been engaged to work by his employer

there.

McHUGH J:  The word "engaged" is ambiguous, is it not? Was

not the contract made on 17 February 1984 in

Adelaide when the article of agreement was signed?

MR WHEELAHAN:  Your Honour, in our submission, no. The

roster was conducted in Sydney and, Your Honours,

the agreed facts dealing with that matter are set

out on page 13 of the cause remove book,

paragraphs 8 and 9, which is appearing on page 14.

It is part of the appellant's submission, that it

was upon signing the articles in Adelaide on the

day after, that the engagement occurred. We would

submit not, for the reasons set out in the agreed

facts at paragraphs 8 and 9, that the engagement

Miller(2) 212 11/4/91

occurred in Sydney on the previous day. And

R W Miller came to that jurisdiction precisely for the purpose of engaging labour and we say that that

is what happened on that day, that the labour was

engaged.

Your Honours, in those circumstances, we would

submit in accordance with paragraph 8 of our

outline, that Mr McKain would be entitled to assume

that on his return to New South Wales he would be

entitled to sue his employer, subject only to the

procedural limits imposed upon such proceedings or

such actions by the law of the forum that he quite

legitimately chose in all the circumstances.

Your Honours, during the course of this case,

this Court has been invited to distil a

principle from Breavington and, in my respectful

submission, the question that is being asked of the
Court is that submitted by the learned Solicitor-

General for South Australia in the first paragraph

of his written outline, but we would respectfully

suggest that a clear principle is capable of being

distilled from that case and it is this, that for

torts committed within Australia, the law to be

applied is the substantive law of the lex loci

delicti, because the task squarely raised for the

consideration of this Court is to determine

whether, within that principle, it ought be assumed

or provided or laid down that the lex loci delicti
to be applied ought include the procedural law of
the place of the wrong including, in our

submission, general statutes of limitations.

TOOHEY J:  Mr Wheelahan, does that proposition or principle

draw any distinction between a cause of action that

arises by virtue of a statute and one which exists

by reason of common law?

MR WHEELAHAN: It does not, Your Honour.

TOOHEY J:  Mr Ellicott, from time to time, spoke of the

cause of action in this case as arising under the

law of South Australia.

MR WHEELAHAN: In our respectful submission, Your Honour,

the cause of action in South Australia arose pursuant to the common law common throughout

Australia as modified and varied by statutes in

various jurisdictions.

TOOHEY J: That would suggest that there may be a

distinction to be drawn between a statutory cause

of action and a common law cause of action.

MR WHEELAHAN: Well, Your Honour, if the lex loci delicti is

the applicable law in the forum then·, in our

Miller(2) 213 11/4/91

submission, it does not matter from what source it

derives. But we make the clear distinction, as we

will demonstrate to the Court, with respect, that

it was never intended in Breavington that anything

other than the substantive law of the place of the

wrong was ever intended to be imported into the

forum. And whilst Your Honour asks if there is a

distinction as to the source of the substantive

law, we would simply respond, in our submission,

no.

Your Honours, it is not seriously or, indeed,

at all argued that the forum court should implement

or apply the procedural law of the locus delicti.

Breavington decided that the substantive law of the

place of the wrong was that to be applied. Nowhere

in Breavington is there one word of any other

aspect of the lex causae which is mentioned which

is suggested ought be regarded as applicable in the

law of the forum.

May I give the Court the references only to

Breavington where reference to the nature of and extent of the law to be imported from the place of the wrong into the forum is identified, and may I

note parenthetically, Your Honour, that every

Justice involved in that decision used the term

"substantive".

McHUGH J:  And the difficulty you have is that, for various

purposes, statutes of limitation have been treated

not procedurally but as substantive enactments.

MR WHEELAHAN:  Your Honour, there is no doubt that in many

cases statutes of limitation and like procedural matters affect substance. That does not detract from their essential quality of being procedural,

and that is the distinction that we make.

McHUGH J: Whatever might be the position in respect of

torts committed outside Australia, Breavington laid

down a new regime for the relationship between

Australian States so far as conflicts are

concerned. Now why, in the last decade of the 20th

century, should we go on regarding statutes of limitation as purely procedural and reject the notion that they in fact go to matters of

substance?

MR WHEELAHAN: But, Your Honour, a general statute of

limitations is a matter of procedure within the

forum. It, that is the forum, is entitled, by the

enactment of procedural legislation such as

statutes of limitation, to regulate the business of

its court.

Miller(2) 214 11/4/91

Your Honour, in Sun Oil there is a helpful proposition, in my respectful submission, dealing

with just this matter, and it is a proposition of

the court, and may I refer to it at page 757 in the

right-hand column under [le, 9].	What there was
said was this, Your Honour:

A State's interest in regulating the work load

of its courts and determining when a claim is

too stale to be adjudicated certainly suffices

to give it legislative jurisdiction to control

the remedies available in its courts by

imposing statutes of limitations. Moreover,

petitioner could in no way have been unfairly

surprised by the application to it of a rule

that is as old as the Republic. There is, in

short, nothing in Kansas' action that is

"arbitrary or unfair,".

McHUGH J: That is directed at the due process clause, is it

not?

MR WHEELAHAN: Well, that may be so, Your Honour, but

nevertheless, in our submission, it still

identifies correctly what function statutes of
limitations perform and why it is within the
jurisdiction of the forum State to enact them so as

to control the business of their courts.

McHUGH J:  But when a State enacts a statute or when it

refuses to amend the common law, it really is not

concerned with people taking action in other

States, it is thinking about what goes on in its

territory, and why should not the procedural laws

concerning statutes of limitation be regarded as

part and parcel of the corpus of law directed to

the substantive rights of the parties?

MR WHEELAHAN: Because, Your Honour, it is a matter that is

a statute of limitation, which is wholly within the

province of the the forum State. It, and it alone,

is entitled, by enacting such legislation to

dictate to its citizens what are the limits as to

time when they can bring their actions in the

courts of that forum, and it is entitled,

Your Honour, to say to its citizens, "Because of

our efficient method of disposure; because of our hard-working judges, we are prepared to allow our

citizens a period of six years within which they

can prepare and present their claims for damages of

this type.

McHUGH J: But statutes of limitations serve other purposes

than protecting the workload of the courts. They

protect defendants; they enable insurers to know

what their rights are. If you are right, a State

can pass a statute giving somebody a cause of

Miller(2) 215 11/4/91

action, impose a one-year general limitation on
bringing it, and yet that one-year time limitation

can then be disregarded in any other State of the

Commonwealth which has a longer time limitation.

MR WHEELAHAN: Well, if that other State of the

Commonwealth, Your Honour, is prepared, not to

disturb the claimant's substantive rights, his
rights to damages in the first place and the method

by which they are calculated, but nevertheless

absorb the additional workload to undertake the

onerous task of disposing of his case, then so be

it. That is the sovereign right of that forum

State to do just that.

Your Honour speaks of insurers, and perhaps

our concern for them. Well, it may be a legitimate
worry; it may be a legitimate concern, but

insurers, Your Honour, of - - -

McHUGH J: It is not merely that. There is local government

authorities, all sorts of government bodies - - -

MR WHEELAHAN:  Well all sorts of concerned parties,

Your Honour, may I speak about them and the

problems that they would face. If an employer in

an industry such as shipping, presumably with

stations in all parts of the Commonwealth, embarks
upon the exercise and activity of engaging its

labour in a variety of States, and perhaps exposing itself to the statutes of limitations that apply in

that State and in those States, then so be it.	It
is not a complex matter, Your Honour, due to the
assiduous work of CCH to find in a small document
what limitations apply in every State of this

Commonwealth, and if, for example, R W Miller says,

"Well, this Saturday we are going up to Sydney to

see if we can find half a dozen stewards", its

insurer can say, "We know what the limitation is.

If we engage these folk up there and they are

injured, they are entitled to sue in their home

State". So it may be a matter of clerical

significance, Your Honour, but not of significance

for this Court, in our submission.

Your Honours, I take Your Honours's point, and

I will come back to it, if Your Honour has finished

debating the issue with me at the moment, but may I

take -

McHUGH J:  I am not debating, just asking you some

questions.

MR WHEELAHAN:  May I take Your Honours back then to the

submission that I made that in Breavington every

Justice of this Court, in referring to the nature

of the law to be imported into the forum State, was

Miller(2) 216 11/4/91

substantive, and simply give the references? The

Chief Justice at page 78 point 8; at page 88,

Justices Wilson and Gaudron, at point 3 to about

point 6; at 98, those same Justices, at about

point 4 to about point 6; same Justices, page 100

at about point 3; Justice Deane, page 121, the

whole of the main paragraph on that page; same

Justice, page 125, the principal paragraph on that

page; at 135, again Mr Justice Deane, principally

in the middle of the page and in the last three

lines and, of course, Your Honours, we place

special reliance on His Honour's remarks at

page 136 at the top. Mr Justice Deane, again,

speaks about substantive law being imported at

page 137 at about point 2 and at about point 5;

146, Mr Justice Dawson, at about point 3 speaks of

the matter and, finally, at 161, Mr Justice Toohey,

at about point 5 refers to the fact that it is

substantive law that is to be the lex loci delicti

to be applied in the forum.

TOOHEY J:  I would have thought, Mr Wheelahan, corning back

to the common law statutory distinction which I

appreciate you do not wish to rely upon, that if the statute of a State creates a cause of action and regulates that cause of action and provides for

its termination, it might be easier to see the

whole scheme of the Act including the limitation

provision as bearing upon the substantive law,

whereas in the case of a common law cause of action
which, if you take what Justice Hutley said in

Walker v Pickles, can really be brought in any

State of the Commonwealth without the need to allege where the particular event occurred. That

it might be easier then to argue that a procedural

provision - sorry, that a provision of the forum

relating to limitation is procedural?

MR WHEELAHAN:  Your Honour, there are, of course,

limitations contained in statutes that have a

substantive effect of the type described, of

course, in Byrnes v Groote Eylandt where, as part	and parcel of the legislative scheme creating the
right, there is inherent in that same scheme a
statute of limitations, a limitation period which
once the claimant avails himself of the rights and
privileges, the benefits created by the scheme, he
exposes himself, in our submission, to the
detriment of a limitation period if the same is brought into operation and the only source of it is the very statute that creates his right to any
benefits at all. But in the common law, in a
general statute of the type here imposed, the
right, Your Honour, to the benefit to his claim for
damages is not extinguished by the operation of the
time limit.

Miller(2) 217 11/4/91

TOOHEY J:  But the right does not arise out of the statute,

it arises under common law?

MR WHEELAHAN:  No, correct, and so it is not related to it

and it is not affected by it and, indeed, in the

particular circumstances of this case, the

submissions of the learned Solicitor-General for

the State of South Australia, will not be lost on

the Court at all in that he commenced, in an early

part of his submissions, with the proposition that

as far as the State of South Australia was

concerned this plaintiff's right of action in that

State subsisted theoretically in perpetuity. It

has not been expunged; it has not been

extinguished; it subsists, and if at any time

henceforth, a material fact of the type described

in Solar Opticals comes to his attention and he

commences proceedings within 12 months, his cause

of action, again, is flowering in full force and

with full effect.

Your Honours, this Court considered the question of the extention provision provided for in

section 48 of the South Australian Act in

Sola Optical Australia Pty Ltd v Mills,

163 CLR 628. The Court delivered a joint judgment,

Justices Wilson, Deane, Dawson, Toohey and Gaudron

dealing with the issue. It was argued in that case

that some restrictive consideration ought be given

to the clear terms of section 48(3). Section 48(3)

of that Act provided the court in South Australia

with power to extend the limitation period. I am

sorry, yes, (3)(b). The statute required that

there be established a fact material to the

plaintiff's case. The restriction sought to be

imposed upon that phrase included the standard type

of arguments that one expects in a limitation

extention argument, where concern as to whether or

not it is of a decisive nature, matters of that ilk

were considered, however that was unanimously

rejected by the court and the court held that all

the applicant for the extention needed to do was

establish that there was a material fact, which was

not of a decisive nature, but was relevant to

commencing the action. It did not have to absorb

any other quality from any other legislation.

Indeed, the preceding legislation of the

South Australian Parliament was considered and

rejected by the court.

So this, in answer to Your Honour

Mr Justice Toohey, is a case where Mr McKain's

right in South Australia, which was a right which

arose under common law principles, subsists even

today and it is incorrect of my learned friend,

Mr Ellicott, to suggest to this Court or submit to

this Court that his course of action is lost, that

Miller(2) 218 11/4/91

it has been extinguished or that it no longer

exists. In Breavington, of course, the Victorian

court simply picked up and applied that part of the

Northern Territory law which governed the damages

question and Victoria, of course, in that case was

properly seized of the action and in every way

conducted the case, it is submitted, in accordance

with its own procedure. No party present in this case has suggested that it applied anything other than its own procedural law and indeed there is no

suggestion that it did anything else.

In the present case, we would submit that

New South Wales, likewise, picks up that part of

the substantive law of South Australia which

applies by operation of the dictates in

Breavington. In our submission, it so happens that

the substantive law that it picks up is identical
to the law that would apply in New South Wales.

Now, we submit that this is not a case where, like

Breavington, the respondent is attempting to avoid

a body of law which did not suit him. What

Breavington was attempting to do was avoid the

limitations upon his actions for damages which were

appropriately applicable to the circumstances of

his case.

Mr McKain, in his case, is simply attempting

to have applied the body of substantive law which

has been, and we respectfully suggest, will remain

applicable to his case.

Mr Justice McHugh raised the question of:

"Well, what is the procedural law and how can it be

said that statutes of limitations should still, in

the last decade of the 20th century, be regarded as

procedural when they so often affect substantive

rights?" But our submission is that this statute

of limitations operating as it does within the

territorial limits of South Australia, is but a

part of the procedural law of the locus delicti.

The forum court, in our submission, should, as it

has always done, apply its statutes of limitation,

especially those of a general nature.

McHUGH J: At first I tended to think section 48 of the Act

was in your favour, but it seems to me it may be

said to be against you in the sense that, although
for practical purposes the cause of action is

spent, years later the action can in effect be

revived. Now, why should not one see, then, 36 and

48, at least for conflicts purposes, as really

being a part of the substantive law?

MR WHEELAHAN:  Your Honour, in order to do that, in order to

view it in that way - and we make no apology for

this, we make no bones about our position - this

Miller(2) 219 11/4/91

Court would, respectfully, need to embark upon a

process of over-ruling, as has been suggested on

more than one occasion, Pedersen v Young.

McHUGH J: Well, I appreciate that there is the tug of

rationality and the tug of precedent in this case

but, rationality seems to require that procedural

statutes such as the limitation be treated as

substantive enactments for the purpose of

conflicts, at least within Australia. Precedent

points the other way.

MR WHEELAHAN: There is no doubt about that and, indeed, it

is unnecessary to analyse the authorities predating

Phillips v Eyre, but just over 120 years ago the Court of Exchequer chamber considered this matter and, of course, there is no need for me to read from it, but the classic speech of Willes Jon behalf of the whole court at pages 29-30 set out the court's then view.

If one moves nearly 100 years forward, and

about 18,000 kilometres across to Pedersen v Young,

clear statements of principle touching the same

issue emerge. Your Honours, may I simply give the

Court the references to Pedersen which so clearly

state what the principle is. They are these:

Mr Justice Kitto at page 166 point 25,

Mr Justice Taylor at 166 point 9,

Mr Justice Windeyer at 169 point 3, again

Mr Justice Windeyer at 170 point 15.

Now, Your Honours, we say that the statute of

limitations dealing with Mr Justice McHugh's

concern does not affect the nature and extent of

the respondent's claim for damages. If it did, we

would concede that it would be appropriate to

regard it as a substantive enactment and one which

ought be imported into the forum as part of the lex

loci delicti.

The British position, of course, Your Honour,

was expressed by the House of Lords in

Black-Clawson International Ltd v Papierwerke's AG,

1975 AC 591, especially at page 631, where the

House of Lords, in dealing with a not dissimilar consideration decided that the rule was too firmly embedded for judicial abrogation.

Subsequently, to adopt the submissions of the learned Solicitor for New South Wales, two British

law commissions then had the matter referred to

them and their recommendations were ultimately

adopted with modifications in the Foreign

Limitation Periods Act

of 1984. So after late for judicial intervention, nearly a decade

Miller(2) 220 11/4/91

later the Parliament took the step to do what we

respectfully submit would need to be done in this

country if this rule were to be abrogated.

TOOHEY J: But we are not talking about relations between

countries.	We are talking about relations between
States of the Federation.	I do not really

understand what you mean by saying you pick up the

law of South Australia. Let me just put this

example to you. Say there had been no plea of

limitations in this case, but the action had been

brought as it has been brought in New South Wales.

In what sense would the law of South Australia have

had anything to say as to this action?

MR WHEELAHAN:  It would have said, assuming the respondent

was able to establish that his fall from the

lifeboat during the course of lifeboat drill

occurred as a result of the negligence of his
employer and that he sustained injury, that he

would be entitled to damages in accordance with

common law principles.

TOOHEY J: Well, the law of New South Wales would have said

that.

MR WHEELAHAN:  No doubt about that, Your Honour.

TOOHEY J: Is it the same law?

MR WHEELAHAN:  For all practical purposes it is identical.

TOOHEY J: Well, it may be more important than just speaking

of it in terms of practical purposes if it is the

same common law that is involved.

MR WHEELAHAN:  We are unable to identify any differences,

Your Honour.	All that then would happen would be
that Breavington would be applied.	And if

Mr McKain, as we submit, legitimately commenced his

action in that jurisdiction where he had the

benefit of a somewhat more generous limitation

statute, then that was a matter of his good

fortune.

McHUGH J: But you are sueing by the common law rules of

private international law applicable in New South

Wales whose content are to be determined by

reference in part to the law of South Australia,

are you not?

MR WHEELAHAN:  Your Honour, all we seek to do in this case

is to have applied the rules in Breavington.	We do
no more than that.	We say that Breavington has

created a new scheme to be applied throughout this

Commonwealth, and we are content for it to be

Miller(2) 221 11/4/91

applied to the circumstances of this respondent's

case.

What we do say is that Breavington does not

purport to, nor should it, extend to matters of procedure. Statutes of limitation of a general

type are procedural notwithstanding the fact that

in other circumstances they can affect matters of

substance. They nevertheless do not lose their

essential character of being procedural in nature.

McHUGH J:  Your submissions do not deal with section 118 at

all.

MR WHEELAHAN:  Your Honours, my submissions do not deal with

118 at all. Your Honour is your usual astute self

in not finding a reference to 118 in my three

pages, but may I take this cowardly approach with

regard to 118, Your Honour, and say that there are

those who have come to this Court to give it the

benefit of their submissions far better able than

we are, and in this regard, of course, we adopt of the submissions of the Solicitor-General for
those submissions which aid us, particularly the

Queensland; the Solicitor-General for South

Australia in his introductory summary at the

beginning of his submissions, and finally the

Solicitor-General for New South Wales.

We can only make a submission, Your Honour, and it is simply that section 118 does not

necessarily arise in the circumstances of this case, and it is not necessary for the Court to

determine what, if any, operation that section has,

be it evidentiary, substantive or of any other

nature, but in any event, no matter what

section 118 might mean, choice of law would still

have to be made in any event and the result would
probably be the same. Those, Your Honours,

and -

BRENNAN J:  Mr Wheelahan, can I just ask you this question?

I understood you to say before that you sue in negligence and not in contract - - -

MR WHEELAHAN: Correct, Your Honour.,

BRENNAN J:  - - - and therefore you rely upon Part 10

rule l(l)(e) of the Supreme Court Rules?

MR WHEELAHAN: Correct, Your Honour.

BRENNAN J: That is a provision which perhaps does not have

a counterpart in all other jurisdictions?

MR WHEELAHAN:  I do not think it does.

Miller(2) 222 11/4/91

BRENNAN J:	Is there anything to be said for the view that in cases where such an exorbitant jurisdiction is
claimed by the Supreme Court of New South Wales,
that that ought to affect the operation of the lex fori with respect to any litigation, that is, thus
gathered in the Supreme Court of New South Wales by the operation of that law?

MR WHEELAHAN:  We would say, "No", Your Honour. We would

say that whilst it is a generous provision with

regard to the jurisdiction of the court of that

State, it does not, simply by operation of that

fact, attract any more of the law of the place of

the wrong than is required by applying the

principles in Breavington.

BRENNAN J: Yes, thank you.

TOOHEY J:  Mr Wheelahan, could I just clarify for my own

mind that service was, in fact, effected outside the jurisdiction, was it? I appreciate that the company is described as a South Australian company,

but I was not clear that it had no presence in New

South Wales that would have permitted service upon

it?

MR WHEELAHAN:  With respect, Your Honour, it would be

unhelpful of me to make a submission without a

clear view of that matter, but I understand - - -

TOOHEY J: But it was not a submission, it was really a

matter of fact that I was inquiring in response to

what Justice Brennan had asked.

MR WHEELAHAN:  If Your Honour pleases. I understand that it

was served outside the State of New South Wales, pursuant to the Service and Execution of Process Act.

BRENNAN J: Service and Execution of Process Act - - -

MR WHEELAHAN:  I am sorry, Part 10, Part 10 of the - - -

BRENNAN J: Well, which part of Part 10. If you are

saying l(l)(e), that may have some significance.	I
do not know that it does, but it might.

MR WHEELAHAN:  Your Honour, I have a clear impression that

it was Part 10 l(e).

McHUGH J:	That is what it apears to be from page 3.
MR WHEELAHAN:	Your Honour, the statement of claim is

endorsed but that is the part of the Supreme Court

Rules under which the plaintiff proceeded. It does not identify the subsections as such, but it is

clearly Part 10.

Miller(2) 223 11/4/91

DEANE J:  Mr Wheelahan, if one follows you along to the

stage that Pedersen v Young unequivocally says that

relevant limitation provisions are procedural and

if one takes the view - and this is a matter of

argument, obviously - that that turns, to some

extent, on construction. Do you want to say

anything about whether, if the Court were

ultimately to overrule Pedersen v Young, it should

only be done on a prospective basis in terms of not

applying to pending litigation?

MR WHEELAHAN:  Thank you for that opportunity, Your Honour.

It would be our submission - - -

DEANE J:  I am not inviting you to, but it is something that

could conceivably be relevant.

MR WHEELAHAN:  No, I indicated, Your Honour, that it was an

opportunity for which we were grateful. It is a

matter that, we would submit, ought not affect

matters presently pending or matters which would be

capable of being brought in accordance with the

principle as they are understood up until now, to

wit, that limitation periods are procedural and do

not operate to derogate from the periods permitted

in the forum.

To do so, with great respect, Your Honour, would work injustice if there were but one case.

It is not inconceivable that there would be many

such cases either pending or contemplated and to

overrule Pederson v Young, in those circumstances,

would involve not inconsiderable difficulties in

the forum in which it was done. But that is all we

would wish to submit in that regard, Your Honours.

BRENNAN J: Which forum are you speaking of? Let us assume

that there is a cause of action floating, as it

were, somewhere in Australia at the moment which is

time barred in the place of the tort, which forum's

time limitations should be - - -

MR WHEELAHAN: In those forums, Your Honour, where the

citizens are either contemplating or have already

commenced proceedings which would prima facie be

barred in some other forum.

BRENNAN J:  I understand where they have already commenced,

it is where they are contemplating that I am having

difficulty with; in other words, is it prospective
overruling from the longest time which at this

moment is available anywhere in Australia?

MR WHEELAHAN: Correct, Your Honour.

Miller(2) 224 11/4/91

McHUGH J:  You have to do it in respect of actions which

became statute-barred as from the date of judgment,

would you not?

MR WHEELAHAN:  Yes, I think that is probably right,

Your Honour.	Your Honours, they are our
submissions.

MASON CJ:  Thank you, Mr Wheelahan. Mr Ellicott?

MR ELLICOTT:  Your Honours, there was one submission of

Mr Wheelahan that was clearly wrong and that was

that those who preceded him were better able than

he was to address the Court on section 118.

MASON CJ:  We do not want to hear you further on that,

Mr Ellicott.

MR ELLICOTT:  Your Honours, if I could just deal with my

learned friend's submissions. There were some
facts agreed in this matter and they are set out in

the application book. In a sense, my friend's

submissions go beyond those, but even accepting

that Your Honours will take them into account they

do not add up to anything other than this, in our

submission, that under the arrangements the

plaintiff got what is called a preferred start and

he was selected under a procedure which is

undertaken under the award and all that was doing

was selecting somebody who would then go to the

place of work and enter into a contract there for

the purposes of undertaking work there and,

therefore, what happened outside New South Wales

is, we would submit, of no significance whatsoever

and if it matters the proper law of that contract

was obviously South Australia. It was entered into

there; it was performed there and if there was a

breach it was broken there. All those matters, we

would submit, do not assist my friend one bit -

what happened outside South Australia does not help

my friend one bit.

McHUGH J:	I think you said the opposite.
MR ELLICOTT:	I am just correcting it. Your Honours, my

friend's argument in relation to Breavington, which

appears on the third page of his submissions,

evoked from Your Honour Mr Justice Toohey, the

thought that there was a difference between the

situation where there was a common law right and a
statutory right.

The first thing I would like to submit is this: that it needs to be borne in mind that in

Breavington the right was a common law right and

although the statute of the Northern Territory did,

in a sense, truncate that right it left the rest of

Miller(2) 225 11/4/91

the right in existence.	So, it was a modification
of a common law right.

The second thing that I would like to submit

is this, that section 108 of the Constitution,

provides that:

Every law in force in a Colony which has

become or becomes a State, and relating to any

matter within the powers of the Parliament of
the Commonwealth, shall, subject to this
Constitution, continue in force in the State;

Now that, of course, we would submit, embodies the common law.

It is fair to say that from time to time

people, including Sir Owen Dixon, have spoken about the common law of the Commonwealth and, in a sense,

if this Court says that the common law is such and

such, well, that is the common law which pervades

the Commonwealth. But, in truth, in relation to
the law of each State, its common law is part of

its law and therefore, we would submit, there is

nothing to be gained from an analysis which says

that the common law is common throughout the

Commonwealth and therefore it is not a different

law in South Australia. It is a different law

because the competence of the South Australian

legislation to effect it is clear and, no doubt,

the South Australian legislature has affected it in
various ways. For instance, rights in relation to

the recovery of interest, perhaps, or matters such

as Todorovic v Waller.	I am not familiar with
those provisions.	I am just assuming that in South

Australia some attempt has been made, in various

ways, to amend the common law right. So we would

submit that it is truly part of the law of South

Australia.

TOOHEY J:  The legislature may affect the right. It does

not, in the situation which you postulate, bring	the right into existence, and that was really at
the basis of my question to Mr Wheelahan.

MR ELLICOTT:  Yes, but, Your Honour, what I am submitting -

and I have really covered this field, I think, in

my original submissions - is that there is really

no distinction between the common law situation in

truth and the situation where the right is created

by statute. But if one is looking at section 82,

one can say that that is a right created by

statute. There is an argument for that view and

we have put that. If one is looking at the common

law right, then that right has been truncated, we

say, by statute, namely, in this case, the statute

Miller(2) 226 11/4/91

of limitations. But that is the State right; that

is the South Australia State right.

A question was asked about Part 10, and

Part 10 of the Supreme Court Rules of New South Wales has been amended in the light of the cross- vesting legislation. Before the cross-vesting legislation,you could serve a process outside the

State and within the Commonwealth and then if a

person did in fact appear, that person could, of

course, submit to the jurisdiction in which event
the supreme court could proceed with the matter.

On the other hand, the person might object to the

jurisdiction and put on a conditional appearance.

Since the cross-vesting legislation there is

provision in Part 10 rule 2B for service of process

in Australia, but that, of course, does, in effect,

result in not a conditional appearance because,

under the cross-vesting legislation, wherever the

process is served, the defendant would, in ordinary

circumstances, not have an objection to

jurisdiction. It would then be a question of

whether some application should be made to remit

the matter to another State.

Now, Your Honours, on section 118, my learned

friend, the Solicitor for the Commonwealth, tried

to draw a distinction between section 109 and

section 118. May I shortly submit that that is not

a valid distinction. Section 109 has a test, but

what a test, its inconsistency, and one only has to ask how many cases have there been on inconsistency

to know that the test has been located in gremino

of the High Court ever since 1903 - it has had to

be developed. The equivalent words, in substance,

in section 118, are "full faith and credit" and

they have to be worked out over time. They have

been worked out already to some degree in Merwin,

so that that distinction between the two provisions

is not a valid distinction. There has been a deal

of reference to American authorities and we
referred to them too.	One thing seems to be clear

that they are working out appropriate choice of law

rules within the context of Article IV, that is to

say as some sort of constitutional command and they

are working it out within the equivalent of

section 118. In other words, basically, that is at

the threshold of our submission that this Court

should work out the same rules within the context

of section 118.

So although the United States Supreme Court

may have taken a different path for its reasons and

reasons appropriate to the United States, some of

which are markedly different, for instance

different systems of law between Louisiana say, and

Miller(2) 227 11/4/91

other States, although that court may have taken a
different route, there is no need for us to take

the same route, where we have a much more

homogeneous set of States and where we have a

Constitution which, in may respects is distinct

from the United States Constitution, and where we

have already set off on the path where policy is

not to be taken into account, and in Merwin, unless

Merwin is to be overruled, and nobody was brave

enough to suggest it, except at the end of his

submissions, the learned Solicitor for the

Commonwealth played with the idea - nobody

suggested that Merwin should be overruled and

unless it is to be overruled then this Court has

already moved along the path to resist any

intrusion into policy. And, of course, how

sensible that is because why would this Court want

to get into the area of policy? How much more

sensible it would be to find within section 118,

from case to case, a principle or a set of

principles which enable a determination to be made

so that if it be a case of the same set of facts

giving rise to the same result in law, or be it a

case of conflicting State laws, then the Court over

time will deal with those cases as they arise.

BRENNAN J:  But Merwin was decided at a time when Phillips v

Eyre was regarded as the appropriate choice of law

rules. If Phillips v Eyre is no longer to be

regarded as the appropriate governing law of the

choice of law rules so far as the law of the forum

was concerned, then there is a different common law

framework within which the operation of section 118

falls for determination.

MR ELLICOTT: Yes, Your Honour, I accept that.

BRENNAN J:  So that the problem becomes, at base, whether or

not the policy powers of the legislature of the

forum are to be preserved either by the common law

or by a reconsideration of Merwin or whether they

are not?

MR ELLICOTT:  Your Honour, that consideration will not

enable the Court to resolve a problem, for

instance, where you have two or three State laws

which attempt to deal with the same subject-matter.

The Australia Act has only emphasized a problem

that this Court is obviously going to have to face

from time to time in the future of resolving such

situations.

BRENNAN J: That is a different problem though, is it not?

MR ELLICOTT: Well, with respect, Your Honour, I would

submit that one has to find the constitutional

basis upon which that is going to be resolved, and

Miller(2) 228 11/4/91

our submission is that it has to be found within section 118. If not, it is going to involve the

development of some principles which will relate

perhaps to issues of policy. And our submission is

that in the light of experience the area of policy

is not productive for investigation by this Court,

and that the appropriate tests are more likely to

be found on bases such as territorial nexus, which

State has the most substantial connection with this

matter, and that would be well and truly within the

concept of giving full faith and credit because

full faith and credit, as we would submit it, is

not only dealing with a single law and saying,

"Well, give it full faith and credit". It may mean

a resolution of forces as it were between

conflicting laws of States so that full faith and

credit is given to each within a regime which

involves a degree of compromise.

BRENNAN J: That raises the same sort of problem of 92 -

freedom from what?	It is a question of what kind
of policy is going	to be injected into 118 if the
Court were to take	that road.

MR ELLICOTT: Yes, but that is the policy of the Court as

distinct from trying to resolve the policy, or to

give effect to the rights of the States in relation

to policy. One would have thought, we would

submit, that Merwin was stating not something that

was really - although it is against the background

of the Phillips v Eyre principles, it was not

something that was necessary for the Court to bear

in mind in the Merwin case, in our submission. In

other words it just said, "Well, we are not going

to get into the question of policy in relation to

what the Victorian legislature might think about

that moratorium legislation." That would obviously

have involved the Court in a very difficult issue

had it done so.

Now, we submit that likewise, having found

that, Merwin should not be disturbed. It should be

seen as having a common sense basis and that it

should also be seen in the light of the wide words

of section 118 that it cannot possibly be confined,

we would submit, at this stage to evidentiary

matters. Not even in the United States is it so
confined. It cannot be confined to evidentiary
matters, and once it is let loose in the

substantive area, then this Court in the course and

passage of time, has to take hold of it and to

express its ambit.

BRENNAN J:  The alternative, I suppose, is to say that

section 118 was enacted in the background of a

series of common law rules dealing with conflicts

of laws. At the time when 118 was enacted it was

Miller(2) 229 11/4/91

understood that the sorts of problems which you

would now seek to have 118 deal with were dealt

with by those rules, therefore section 118 was not

directed towards problems of private international

law which were already settled, or which were

capable of being settled in the ordinary

development of the common law.

MR ELLICOTT:  Your Honour, I think I have already submitted

that we submit that the provision was put there

acknowledging the difficulties that arose from

those conflict of law rules, and was put there to resolve one of the fundamental problems, that is,

what should be the choice of law in relevant

situations as they arose, but not only those
situations, but others as well, eg, conflict

between State laws, but there is no reason, once

one gives section 118 a non-procedural effect,

limiting the width of the words so that they do not

cover choice of law, simply on the basis that there

were cases of the like of Phillips v Eyre at the

time the Constitution came into force, so that any

resolution to that, we would submit, in itself

demands some qualification, unexpressed, in

section 118, and one only has to take the case, for

instance that Mr Justice Deane gave of the States

having different choice of law rules, and asking

the question, "How does one give full faith and

credit to those State laws?", because the command

of section 118 is that they be given full faith and

credit.

How does one resolve it? Well, if it is a

tort question, one resolves it, we would say, a la

Breavington, and that is a simple and sensible

answer to the question.

DAWSON J:  "A la Breavington" meaning that you apply the law

of -

MR ELLICOTT:  - of the place of the wrong.

DAWSON J:  As that law and not as part of the law of the

forum?

MR ELLICOTT:  Your Honour, I do not think this

DAWSON J: There is a choice; it is either one or the other,

Mr Ellicott.

MR ELLICOTT: Well, it is both. I am sorry to say that,

Your Honour, but it is both, and really it is the

law of the forum. If one goes to section 118 - - -

DAWSON J: But what if there is a statute of the forum which

expressly forbids what you are doing?

Miller(2) 230 11/4/91

MR ELLICOTT: Well, that may raise a question whether it

offends section 118; that is the first proposition.

If it does not, that is to say, if it simply says,

"The Supreme Court of New South Wales shall not

entertain actions involving tortious acts outside

New South Wales", and that is not a breach of

section 118, well, that is the end of it. The

supreme court does not have jurisdiction, but if,

on the other hand - - -

DAWSON J:  What if it is a breach of section 118? Then you

come to apply some law.	What is the law you are
applying? Obviously not	the law of New South
Wales.

MR ELLICOTT:	Yes, the law is section 118, which is part of the law of New South Wales, and it will pick up, we
would submit, the law of the place of the wrong,
that is the law of South Australia, in this case.
And if you apply - - -
DAWSON J:	And it must be South Australian law which is

being applied then because what you are giving full

faith and credit to, under section 118, is South

Australian law.

MR ELLICOTT: Yes, Your Honour, with respect I do not think

there is any difference between us. Can I explain

it this way? Under the Petroleum (Submerged Lands)

Act legislation, with which Your Honour is very familiar, I am sure, the laws of the State of Victoria were applied to the offshore areas. But when they got there they were not Victorian laws, they were laws of the Commonwealth.

Now, all I am submitting is that the basic law

that has to be applied, I agree, is the law of New

South Wales, but it applies, as part of its law,

picks up, as it were, the law of South Australia

because it says, "when an action for tort relating

to events outside this State elsewhere in the

Commonwealth occurs, the law that shall govern it

shall be the law of South Australia". That is the

sense in which I am putting it. I am not meaning

to cavil with the idea that it is not the law of

South Australia that governs it, but it governs it,

in a sense, because the law of New South Wales

picks it up, simply because it is within a -

DAWSON J: Well, it is more likely to be Commonwealth law on

that view.	The law of New South Wales does not
pick it up.

MR ELLICOTT: Well, section 118 is part of the law of New

South Wales. If section 118 is not the source but

it is some principle such as that enunciated by the

Chief Justice in Breavington, then that is part of

Miller(2) 231 11/4/91

the common law of New South Wales and it picks up

the South Australian law as part of the law of New

South Wales and it says, "that shall govern the

rights of the parties". Now, what is that law? If

they were foreign jurisdictions you would have to

have an expert in law to tell you what it was, but

we do not because we all know each other's law in

Australia.	But that is the sense in which I am
putting it.

DAWSON J: It is not an academic question. It is important

when you come to limitations, for instance.

MR ELLICOTT: It is, Your Honour, and when one asks the

question, "What is the law of South Australia on

this matter?" then, for reasons I have already

addressed the Court on, part of that law, we say,

is obviously the law relating to limitations.

DAWSON J: Can I just test that right to the end. If the

South Australian law says that actions commenced in South Australia shall be commenced within a certain time limit, that is the law you pick up, the whole

law of South Australia?

MR ELLICOTT: Yes, but you are to answer the question, "What

is the entitlement to damages of this person

according to the law of South Australia?"

DAWSON J: That is right.

MR ELLICOTT:  And the answer is, "None, if it is statute

barred. No entitlement to damages according to the

law of South Australia". Let us go to Breavington.

There is a statute in the Northern Territory.

There is a common law right to damages. It

qualifies it. It says you cannot get damages

except for pain and suffering. So what is the

entitlement to damages in the Northern Territory?

What is your entitlement? It is an entitlement to

sue for negligence and to recover pain and

suffering.

That is - in the one case there is a total

cap, if you like, in limitations; in the other

case, there is a partial cap, for another reason.

But in each case, one law says in actions in South

Australia - if that is the correct interpretation

of that statute - no action for personal injury

shall be taken after three years. In the Northern

Territory, the very law says - which this Court has

accepted in Breavington, on this basis - "no action

shall be taken in the Territory", et cetera, and

gives the qualification as to damages.

There is nothing to be gained, in other words,

by what we would submit is a narrow construction

Miller(2) 232 11/4/91

based on asking the question, "Is this local

statute only talking about actions in the territory

or in the particular State?" Your Honours, there

was a reference and there has been in, I think, a

number of submissions, to section 118 and the

relationship with section 52(xxv).

MASON CJ:  51.

MR ELLICOTT:  I am sorry, section Sl(xxv). Now, in our

submission, section 118 is at least as wide as
placitum (xxv). Indeed, we would submit that it is

wider. Because of the use of the word

"recognition", there is a lot to be said for the

view that placitum (xxv) has some limitation in it,

that is to say that was really directed to

evidentiary matters. It is not a necessary part of

our argument that that be so, but it cannot be

flat-footedly asserted - and that, no doubt, is why

Your Honour used that word "perhaps" - it cannot be flat-footedly asserted that placitum (xxv), as some

of those who have made submissions have suggested,

can be the basis of legislation for conflict of law

rules in Australia and that was suggested certainly

by the learned Solicitor-General for the

Commonwealth. But, of course, we would say that if

it does enable that, then certainly section 118 is

talking about it, that is to say as to within the

perspective of section 118 to encompass choice of

law rules. Because of the obvious connection

between the two provisions, they use similar words,

and those words are, if they are appropriate to

cover choice of law under placitum (xxv), they are

appropriate to cover them under section 118.

There has been a suggestion that there is a

weight of authority that section 118 be given a

narrower view. I think the learned Solicitor for

New South Wales' submissions encompassed that

proposition. There is no such weight of authority

at all.	The authority has just emerged.
Jones v Jones and Harris v Harris and all the other

cases, Merwin et cetera, over the years, and there

is no basis for that. One suspects, with respect

to those who have made submissions on this area,
that their submissions are more based on a fear of
the unknown with section 118, rather than on a

desire to engage in a forensic analysis of that

particular provision. It is not something that

needs to be feared. It is a provision which, over

time, will find its fulfillment within our

constitutional process and this Court will move
step by step in relationship to it, if it accedes

to the submissions that we have put.

Your Honours, the basis of section 79,

constitutionally, is quite clearly a· combination,

Miller(2) 233 11/4/91

we would submit, of section 71 of the Constitution

and the placitum (xxxix) relating to incidental

power. Those are the two provisions which underpin

section 79. There is no need to, nor would we

submit that section 9 has any real bearing based on

section 118. It is a different issue.
Section 118, we would submit, speaks of its own

authority and is not directed towards enabling a solution through section 79. Section 79 has its

own complications and we have already addressed the

Court in relation to that. But I do submit it is

extraordinary that the Commonwealth has said

nothing about the problems arising under Pederson

v Young and the fact that there does not appear to

be any limitation period in Commonwealth actions

and the uncertainties and injustices that can

arise, and anomalies that can arise, as a result of

that.

Your Honours, there is one last matter and

that is the matter that, I think, concerned

Your Honour Mr Justice Deane and no doubt may

concern others of Your Honours, and that is what

this Court should do if it happens to agree that
there is some substance in what I have been putting

to Your Honours.

May I start with this proposition, that the

horse has already bolted and that is that the horse

bolted in Breavington because the principle has

been adopted and enunciated, and all we are really

doing here is asking the Court to - not extend the

principle but to express it in terms of the facts

of this case. There would have been many people,

no doubt, who were affected in their affairs as a

result of Breavington but there was no

qualification in Breavington. People who thought

they could get full damages according to the law of

Victoria, for instance, or some other State even

though there was a restriction in the Northern

Territory or perhaps in some other State where

there was a similar restriction.

So that, at the threshold, we would submit, is

a significant matter. We are seeking an exposition

of Breavington, not an expansion of it, and we say

that this is just part of the substantive law.	And
already the judicial machinery has moved and we
have cases like Byrnes and McKenna.	The courts of

the Commonwealth are already taking up Breavington,

and there was the case in which

Chief Justice Gleeson was dealing in New South

Wales where the issues arose but it was not

necessary to apply Breavington in that case. That

case was referred to yesterday. So, the judicial

processes have already taken place.

Miller(2) 234 11/4/91

If here the plaintiff has taken a particular

course he resents the idea that he might be a forum

shopper. Well, Your Honours, can form your own

mind about that, I do not want to make a jury

address on that question, but there is something to

be said for the view that we expressed in our

submission that this plaintiff is a forum shopper.

But I only use that to suggest that there will

be amongst those who may be affected a lot of

people who are forum shoppers. On the other hand, people who have not sued would have led defendants

to believe that they are not going to be sued, even

if there was an extension period.

So this particular situation is not one about

which there can be any sense of justice or

injustice or clarity. It is very difficult to form

a view as to what the existing state of affairs

would be or whether people would be affected or not

affected in a way which would enable this Court to

form a balance.

Your Honours, there is one other matter, and I

must confess I have not spent enough time looking

at this, but it is this. Can this Court actually

legislate prospectively, and I use the word

"legislate" only in inverted commas, but can the

Court actually change the law or expound the law

only prospectively?

Now, there was a decision in Bropho relating

to the Crown implication in statutes. That was, as

I read it, different because it was really saying,

"When you were construing statutes in the past,
then you will take into account the fact that the

exposition of the law took into account the

presumption. But now that those people in the
parliamentary council offices know that the High

Court has expounded a different principle, in the

future that will have to be taken into account."

It is in that sense that one might think that

Bropho's case is providing prospectively, but can this Court ever do anything other than proclaim the

law? Now, in that respect - - -

McHUGH J:  Once you abandon the declaratory theory of

judging, that is fairly easy. It follows. Once
you reject the idea that the law is there waiting

in some cave to be found by saying the password,

there is no problem.

MR ELLICOTT: Well, if that is so, then unless I am not

aware of some decision of this Court, and of
course, I may well be unaware of it and forgive me

if I am, but my understanding of this Court's

Miller(2) 235 11/4/91

powers up to this point of time as expounded has

been that it declares what the law is, even though

it is changing the law. For instance, if it

decides to overturn a particular statutory

construction, sometimes it will be concerned about that from the point of view of the effect it might have on parties who have acted otherwise, and that

will be a relevant concern of the Court in

determining whether or not to do it. But once it
decides to do it, then that is it. It does it and

it bears down as part of the law and the idea that that is the law, has been the law, and will be the

law until it is differently declared by this Court

then takes it up.

McHUGH J:	But it would be unreal to think that, say, the decision in Trident always had been the law.
MR ELLICOTT:	Yes, but the received philosophy, I would

submit is that, yes it always has been the law,

they all got it wrong; it is just that the ultimate
truth has now come out and this has always been the

ultimate truth.

DAWSON J: It is not just a matter of theory, Mr Ellicott,

because this Court declares what its perception of

the law is. Now, its perception of the law may be

that others were wrong, but if it starts to declare

that its perception of the law up to a certain date

was such-and-such but its perception of the law

after that date will be something different, it is

then performing a quite different function.

MR ELLICOTT: Yes. You may be accused, with respect, of

being legislators, and that would not be desirable.

BRENNAN J: Well, you only need transition provisions when

you are exercising legislative power, do you not?

MR ELLICOTT:  Your Honours, I wonder if the principle that

one is dealing with does really get beyond this

sort of statement. Your Honours are very familiar

with it. Can I just read it? It is from West Ham

v Edmonton Union:

Great importance is to be attached to old authorities, on the strength of which many transactions may have been adjusted and rights

determined. But where they are plainly wrong,

and especially where the subsequent course of

judicial decisions has disclosed weakness in

the reasoning on which they were based, and

practical injustice in the consequences that

must flow from them, I consider it is the duty

of this House to overrule them, if it has not

lost the right to do so -

Miller(2) 236 11/4/91

but that does not apply to this Court.

BRENNAN J: Well you do not need to go back further than

John's case, do you?

MR ELLICOTT:  No, Your Honour. But that proposition, which

I picked up hurriedly as I came into Court this morning, is well established and can be found

throughout numbers of cases and John's case, of

course, is another instance of it in its

relationship to Curran's case.

So, Your Honours, it is not for me to say that

Your Honours cannot legislate, of course - cannot

declare prospectively - but I would submit that it

is very doubtful whether the Court can. It seems,

I would submit, to be inconsistent with past

notions of the role of this Court and what it can

do. The idea may have developed in the United

States, I do not know, but all things that come out of the United States Supreme Court are not

necessarily to be applied to this Court and I would

submit that the Court is better served by following

the other approach and in this case, having made up

its mind that Breavington is the rule and that the

rule applies in this case, that that then becomes

the law so far as statute of limitations are

concerned and let the burden fall wherever it may

fall. Those are my submissions, Your Honours.

MASON CJ: Yes, thank you, Mr Ellicott. The Court will

consider its decision in this matter.

AT 12.39 PM THE MATTER WAS ADJOURNED SINE DIE

Miller(2) 237 11/4/91