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

_flilhr "'.), AUITll.A.LlA ,,r

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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

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 9 APRIL 1991, AT 10.19 AM

Miller(2)

9/4/91

MR R.J. ELLICOTT, QC: If it please the Court, I appear with

MR J.R. SACKAR, QC and MR G. O'L. REYNOLDS for the

applicant/defendant. (instructed by Ebsworth &
Ebsworth)

MR O.A. WHEELAHAN, QC:

May it please the Court, I appear

with my learned friends, MR N.F. FRANCEY and
MRS K.J. DAVIES, for the respondent. (instructed
by W.G. McNally & Co)

MR G. GRIFFITH, OC, Solicitor-General for the Commonwealth:

If the Court pleases, I appear with my learned friend MRS. GAGELER in the interests of the
respondent, confined to the section 118 issue.
(instructed by the Australian Government Solicitor)

MR H.C. BERKELEY, QC, Solicitor-General for Victoria: If

the Court pleases, I appear with my learned friend,
OR I. HARDINGHAM, for the Attorney-General for the
State of Victoria, and we intervene I think in the interests of the applicant. (instructed by the
Crown Solicitor for Victoria)

MASON CJ:

You are not in doubt that you are intervening;

the only doubt is as to whose interests you are
intervening?

MR BERKELEY:

Yes.

That is the only doubt I have had in a

long time, Your Honour.

MR W.C.R. BALE, OC, Solicitor-General for Tasmania:

May it

please the Court, I appear with my learned friend,
MR M. MILLER, on behalf of the Attorney-General for
the State of Tasmania, intervening on behalf of the
applicant. (instructed by the Crown Solicitor for
Tasmania)

MR J.J. DOYLE, QC, Solicitor-General for South Australia:

If the Court pleases, I appear with MS C.F. SARRE
for the Attorneys-General for the States of South
Australia and Western Australia, and in substance

we intervene in support of the applicant also.
(instructed by the Crown Solicitor for South
Australia and by the Crown Solicitor for Western
Australia)

MR K. MASON, QC, Solicitor-General for New South Wales: If

the Court pleases, I appear with my learned friend,
MR L. KATZ, on behalf of the Attorney-General for

New South Wales. We intervene on behalf of the
respondent on the assumption that the respondent
will be seeking to apply the power of the South
Australian court to extend time in the New South
Wales proceedings. (instructed by the Crown
Solicitor for New South Wales)

Miller(2)

9/4/91

MR T.I. PAULING, QC, Solicitor-General for the Northern

Territory: May it please the Court, I appear on
behalf of the Attorney-General for the Northern

Territory intervening. I appear with my learned
friend MR G.R. NICHOLSON and generally we are intervening in the interests of the applicant.
(instructed by the Crown Solicitor for the Northern
Territory)

MR G.L. DAVIES, QC, Solicitor-General for Queensland:

May

it please the Court, I appear with my learned
friend MRS D.A. MULLINS, intervening for the
Attorney-General for the State of Queensland also
in the interest of the applicant. (instructed by
the Crown Solicitor for Queensland)

MASON CJ:	Mr Ellicott.
MR ELLICOTT:	If we could take the vote at the table,

Your Honours, that would be the end of the matter.
Your Honours, could I hand up copies of our
submissions.

MASON CJ:	Thank you.
MR ELLICOTT:	They are somewhat longer than usual,

Your Honours, but I trust Your Honours will forgive
us for that.

MASON CJ:	Mr Ellicott, there are in the papers references to two different statutory provisions each being a limitation provision. Are both the provisions
relevant, have both of them been relied upon in the
pleadings?
MR ELLICOTT:	No, Your Honour, and we were going to seek

leave so that both provisions could be looked at
here to amend the defence and ask the Court to
amend the question, that is the question that
appears at page 2 of the application book in
paragraph 8 of an affidavit of Mr Sheldon.

It might help if I take Your Honours, because

I will have to take Your Honours to them

handed up which contain in order the relevant
provisions of the Limitations Act and the Workers

eventually, to a set of papers which have been those two provisions and if I take Your Honours to those first I think you will more readily
understand the nature of our application.

MASON CJ: Yes.

MR ELLICOTT:

I will then hand up this amended defence and

see whether Your Honours are prepared to - - -

Miller(2)

9/4/91

MASON CJ: It has been shown to your opponent, has it?

MR ELLICOTT:

The amended defence?

MASON CJ: Yes.

MR ELLICOTT:

Yes.	Your Honours have there a set of papers,

they have the number 845 at the top and it is just
copies of pages from the CCH.

MASON CJ:	Some of us do not appear to have that set of papers.
MR ELLICOTT:	They were handed to Your Honours' associates.

MASON CJ: Well, we are apparently in a position to follow

your arguments, Mr Ellicott.

MR ELLICOTT:

If Your Honour pleases. Your Honour, first of

all, the general limitation provision of
South Australia is in section 36 of the
Limitations Act and that is in a perhaps conventional form. It says:
All actions in which the damages claimed
consist of or include damages in respect of
personal injuries to any person, shall be
commenced within three years next after the
cause of action accrued but not after.

And then, if Your Honours go to the next page
Your Honours will find a section 48 which enables an extention to be granted:
Subject to this section, where an Act, regulation, rule or by-law prescribes or
limits the time for -
(a) instituting an action;

et cetera -
a court may extend the time so prescribed or
limited to such an extent, and upon such terms
(if any) as the justice of the case may
require.

But it is subject to this section, and if
Your Honours go down to subsection (3):
Savings. This section does not -
(a) apply to criminal proceedings;
or

Miller(2)

9/4/91

(b) empower a court to extend a limitation of
time prescribed by this Act unless it is
satisfied -
(i) that facts material to the plaintiff's

case were not ascertained by him until
some point of time occurring within
twelve months before the expiration of
the period of limitation or occurring
after the expiration of that period and
that the action was instituted within
twelve months after the ascertainment of
those facts by the plaintiff;
(ii) that the plaintiff's failure to
institute -

et cetera, and then:
and that in all the circumstances of the
case it is just to grant the extension of
time.

So, one of two factual tests are applied to
the extension proceeding before the discretion is

arrived at. Now, under the Workers Compensation
Act 1971, which of course is a later statute - the
earlier statute was 1936 - this is a later statute,
it is a special statute in relation to workers
compensation, and it provides:
Except as expressly provided in this Act -

this is 82(1) -
nothing in this Act shall affect any liability
which exists independently of this Act.
(2) Where a worker has received or is entitled
to receive compensation under this Act or
under the repealed Act in respect of an

injury, he shall not bring an action against
the employer for damages in respect of the
same injury unless he commences that action
within three years from the day on which that
injury occurred.

Well, the words in section 36 are:
three years next after the cause of action
accrued but not after.

In this case we would say they were the same point of time.
(3) When a worker has recovered. judgment
against an employer independently of this Act

Miller(2)	9/4/91 for damages in respect of an injury, he shall not commence or continue any proceedings for
or in relation to compensation under this Act in respect of the same injury.
(4) A worker shall not commence or continue any proceedings against his employer for
damages independently of this Act in respect of any injury -
(a) after the worker has expressly agreed not
to bring any proceedings against the employer
in respect of such injury independently of
this Act and that agreement has been
incorporated in a judgment of the Court:

or
(b) after a memorandum -

et cetera, has been signed. Now, I have only
referred to those later provisions (3) and (4) to
indicate that there is, we say, in this section, an
attempt by the legislature to deal with the
question of limitations in respect to actions taken
where a worker is injured.
I have to tell you that the Workers

Compensation Act was repealed by the Workers Rehabilitation and Compensation Act 1986 and
section 125 of that appears in a page which has the
number 83,384 at the top left-hand corner.
Your Honours will see that. Section 125:
The Workers Compensation Act, 1971, is
repealed.
But there is a First Schedule containing

Transitional Provisions and it says, in clause
2 ( 1) :

Subject to this clause, the repealed Act
continues to apply in respect of a disability
that is attributable to a trauma that occurred
before the appointed day.

The appointed day is defined in clause 1 as:
means the day on which the Workers
Compensation Act, 1971, is repealed by this
Act.

On a page, 83,041, the definition of "worker" is

found. Your Honours will find, on page 83,041, a
definition of "trauma":

Miller(2)

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means an event, or series of events, out of
which a compensable disability arises -

and a definition of -
"worker" means -
a person by whom work is done under a
contract of service (whether or not as an
employee) a person who is a worker

et cetera -
and includes a former worker and the legal
personal representative of a deceased worker.
At page 83,011 Your Honours will see:
This Act shall come into operation on a

day to be fixed by proclamation.

A number of sections came into force on
16 April 1987, but as appears from the next page
section 125 commenced on 30 September 1987, and the
last page provides under section 9(1), that is
81,824:
If in any employment personal injury arising out of or in the course of the
employment is caused to a worker, his employer
shall, except as provided in this Act, be
liable to pay compensation in accordance with
this Act.

Under the old Act:
"worker" means a person ..... who has entered
into or works under a contract of service or
apprenticeship or otherwise with an employer,
whether by way of manual labour, clerical work
or otherwise and whether remunerated by

salary, wages -

et cetera.
Now, Your Honours, we of course say that the

facts here that have been admitted show that there
was a worker who was injured in South Australia and
that prima facie that person was entitled to
compensation under the Act, that is, the Workers
Compensation Act, 1971, that was in force in 1984
when the accident occurred; that such rights as that person had from what is called "the trauma"
were preserved by the First Schedule to the new Act
in 1986, and that as part of that preservation
section 82 was also preserved in relation to
actions which means, we would submit, that

Miller(2)

9/4/91

section 82 is relevant to the determination of
these proceedings, and because that was realized
and it had been omitted from the question asked by
Mr Justice Sharpe we thought it proper that in this
Court so that everything would be raised relevant
to the matter, that we should ask for leave to
amend the defence - and may I hand up copies of
that amended defence.

MASON CJ:

Mr Ellicott, what has been removed here, if one

looks at the order that is included in the
application book - - -

MR ELLICOTT: - - - is a question.

MASON CJ:	- - - at page 21, is the separate trial of the question identified by the master.
MR ELLICOTT:	Yes.
MASON CJ:	How do we manage to amend the question?
MR ELLICOTT:	Your Honour, we submit that Your Honours had

charge of the question, in other words, the matter,
and that the matter is what question should be
asked relevant to this question of limitations and
that Your Honours have power under the
Judiciary Act to take hold of that part of the matter and to add to the question "whether the defendant is entitled to judgment by virtue of section 82(2) of the Workers Compensation Act, 1971
of South Australia" or, alternatively, "of
section 36 of the Limitation Act, 1936 of
South Australia".

DEANE J: In one sense, you do not have to amend it, you

could answer the existing question, "No, he is
entitled to judgment by reason of section 82".

MR ELLICOTT: Yes, one could do that. But what is

important, it seemed to us, that the whole question

should be resolved by this Court and we should not
have to bother this Court again because 82(2) had

not been raised. But we do not mind whichever way
it is done, Your Honours, as long as we can address to this Court arguments which are based on 82(2) as
well as section 36.

MASON CJ: Yes, Mr Ellicott, do you want to say any

more -

MR ELLICOTT:

I do not want to say any more about that

particular matter.

MASON CJ:

No.

Well, we will ask Mr Wheelahan what he has

to say about this application.

Miller(2)	9/4/91
MR WHEELAHAN:	Your Honours, we oppose the amendment to the question to include consideration of section 82 of the Workers Compensation Act of South Australia.
MASON CJ:	Why?
MR WHEELAHAN:	Your Honours, the original defence as pleaded

in the case raised section 82 of the Workers
Compensation Act as the only limitation period
matter to be litigated in the Supreme Court of New
South Wales. That defence was pleaded in a defence
which was filed in September 1990.
The respondent worker sought particulars of

that defence in order to ascertain how it was said
that the Workers Compensation defence had any
application to the proceedings, namely, whether any
moneys were paid to him, by whom and in what form
and seeking correspondence and other documentation

relating to it. And may I bring Your Honours to
why that is relevant in a moment.
The appellant's response to that request for

particulars was, in part, uninformative but the
issue lost its urgency, if not its vitality. When
the Workers Compensation defence was abandoned and
in its stead the general limitation defence pleaded
in an amended defence, and on 21 September 1990 a
separate trial of that issue was ordered by
Mr Justice Sharpe of the supreme court and it was
that issue that was removed to this Court on
12 October.
Your Honours, in order to prepare for the

removal application, facts were agreed relating to
the general Limitation Act, the Workers
Compensation Act and matter having, in our view,
ceased to be relevant.
Your Honours, the question raised by

section 82 of the Limitation Act is not simply a

may be disposed of in this way, namely, that the matter where, as Mr Justice Deane has suggested, first respondent is not entitled to judgment in the
Supreme Court of New South Wales because of

section 82, because section 82 is dependent upon an interpretation of what is meant by it and reference must be made to section 85 of that same Act which
calls for the determination of or agreement as to
facts and we are not in a position to deal with

that. May I take Your Honours to section 85 of the
South Australian Workers Compensation Act, 1971,
which - may I make a concession to my learned
friend, Mr Ellicott - does, in our submission,
apply to the facts of this case.
Your Honours, that section provides that:

Miller(2)

9/4/91

If a claim for compensation has already
been made by the claimant in respect of the
injury under any law, not being a law of this
State, and compensation has been recovered -

that is a matter that would need to be
investigated -
under that claim, compensation under this Act
shall not be allowed to the claimant, nor
shall any person having such a claim under any
such law claim under this Act unless he
declares in writing that he has not claimed,
and will not claim, compensation or damages
for the injury under any such law.
They are matters that would require either

concession or determination as matters of fact.
Your Honours, we would submit that a person having
a claim under a law, not a law of South Australia,
cannot be said under section 82(2) to be a person
who is entitled to receive compensation under this

Act. So there are numerous additional and
different matters that would need to either be
agreed or determined factually before the matter
could properly be removed to this Court for
consideration.

BRENNAN J:

Is it right to say that if the action was

brought in South Australia, either section 36 of
the first Act or section 82 of the second would
apply?

MR WHEELAHAN:	Yes, Your Honour.
BRENNAN J:	And is it contended that there is any difference in the operation of the two sections?
MR WHEELAHAN:	Yes, Your Honour, from our point of view.

Your Honour may have been able to glean at this
very early stage that it is the first respondent's

contention that the general Limitation Act of
South Australia may be procedural only because of its terms and because of earlier authorities
dealing with the matter, but the section 82
limitation in the South Australian Act, much like
the limitation in the Byrnes v Groote Eylandt case,
will, by the effluxion of time, result in the
extermination of the cause of action. So, because
of the terms of the two limitation sections, the
general and the specific being different, we argue
that the results of them may well be different. I
have no further submissions to put to Your Honour.

BRENNAN J:	Yes Mr Wheelahan.	Mr Ellicott.
Miller(2)	10	9/4/91

MR ELLICOTT:

Your Honours, first of all Your Honours have

some admitted facts and they were put together so that this matter might be resolved on those facts and of course it is on those facts that we are
asking the Court to determine it. In the context
of those facts section 82 is relevant and, if at
some stage, my friend wants to argue, not in this
Court, but in some other court, in the light of
whatever judgments this Court hands down, that it
has some answer to any assertion that section 82
applies, because, for instance, of section 85, well
his client is protected, but the important thing is
that this Court should be able to deal with the
whole matter and the whole issue that lies within
the context of this case and it includes a
reference to section 82 as well as a reference to
section 36. So it is on that basis that we would
submit that Your Honours should so consider the
matter and it may be, at the end of the day,
Your Honours will or will not see differences
between the two provisions.
We would want to put to Your Honours that, if

these differences, if they exist, are relevant, we
would say they are irrelevant, in any event, but if

they are relevant, then let us find out what the
relevance of them is and if section 82 applies then
let it apply, subject to whatever facts may be
found somewhere else.

TOOHEY J:

Mr Ellicott, is there any difficulty arising from

the fact that what has been referred to us is a
separate trial of an aspect of the action. That
seems to presuppose that at the end of the day
there is a judgment.at least on one approach - a
judgment for the present applicant. That might
present difficulties for the present respondent
whereas, if all you are really seeking is an answer
to a question, then those same difficulties might
not arise.

MR ELLICOTT: There really is not any ultimate difficulty

because this Court obviously can remove the whole
thing and just say, "Well, we will deal with it",
but section 41 of the Judiciary Act says:
When a cause or part of a cause is
removed ..... further proceedings in that cause
or part of a cause shall be as directed by the
High Court.

And we would say the part which has been removed is

the matter of the separate question. What form
that question shall take, relevantly, we would
submit, is a matter for this Court, and it can say,
"Well, that is too narrow a question to deal with
the matter of substance that has arisen", that is

Miller(2)

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to say the effect of limitation provisions in South
Australia, and we think that the question should be
rephrased to make sure that the whole question is
answered by this Court.

McHUGH J: But, are we dealing with a real question? This

worker would be entitled to compensation under the
New South Wales Workers Compensation Act; now, has
he been paid under the New South Wales Workers
Compensation Act, in which case section 85 would
apply?

MR ELLICOTT: Well, we say that the question of entitlement

in South Australia is not affected. He is entitled
in South Australia, and the question of what
Limitation Act is applicable is determined by that.

McHUGH J:

The Limitation Act question is a separate question.

I am concerned about section 82.

MR ELLICOTT:

Yes, well that is what I am addressing my

submissions to: that section 82 applies to this
worker and that what happens in relation to this
particular matter - this claim for damages for
negligence in New South Wales to be determined in

part, perhaps, by reference to section 82. Now,
section 85 - even if my friend is able to establish
the existence of facts that he has referred to in
section 85 of the Workers Compensation Act, 1971 of
South Australia - even if he is - it still does not
alter the fact that the limitation provision in
section 82 is applicable to his rights under the
Workers Compensation Act, 1971. Section 85 comes
in at a later stage.
So we would submit it arises and is relevantly

before the Court, and the Court should consider it,
and it would be unfortunate if one were to get back
to the Supreme Court of New South Wales and find
that there are facts there that may cause

section 82 to arise. But it does arise on the

admitted facts it arises because this person was a facts before this Court because if you look at the
worker; he was injured in South Australia, and
prima facie, is entitled to be compensated for that
injury in South Australia under that Act.

DEANE J:

What would be the position if one were to take the

view that section 36 had no application to this
case because section 82 dealt with questions of
limitation in such a case?

MR ELLICOTT:

What would happen would be that if that was

all that was said it may be unfortunate, but if
that was said in the context that if section 82 was
a substantive provision, then that, of course,

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would be of significance in determining the issues
between the parties.

DEANE J:

But you would not have to decide whether it was

substantive or procedural, would you, if you took
the view that section 82 dealt with questions of
limitation in relation to common law Acts,
accidents of workers?

MR ELLICOTT:	If one took the view that section 36 did not apply, it may be, based on some distinction which
we would say was a very narrow distinction between
what was procedural and what was substantive,
there could be an argument, and we will put it, that if section 36 is not substantive section 82
is. So the answer to what Your Honour puts to me
so far as we are concerned would be that that may not be enough simply to say that.
But I should not imagine that in the course of dealing with this matter the principles are going
to be enunciated which will enable those issues to
be resolved should they arise, because right at the heart of the argument here may well be this question of what do you do with these limitation provisions. If they are substantive or procedural
is there any real distinction? Is that a
distinction this Court is any longer going to entertain, because for reasons that we will put it
throws up such uncertainty in the law. But that is
getting into the argument.
MASON CJ:	Mr Ellicott, the Court will not make an order at this stage, but the Court will proceed on the
footing that argument will be presented on both
section 36 and section 82.

MR ELLICOTT: If Your Honour pleases.

MASON CJ:

The Court may determine at a later stage what the appropriate course to take is. It may be, for

example, without committing any member of the Court

to that, that the appropriate course would be to

remove the cause.

MR ELLICOTT:

If Your Honour pleases.

Your Honours will

understand that we are saying that even if - and
Your Honours have been referred to section 85 -
even if the facts in section 85 of the Workers
Compensation Act, 1971 are against us, even if it
was established that those facts exist that apply
section 85, nevertheless section 82 would apply to
enable us to succeed on the facts before the Court
that are admitted. But I will address an argument
on that matter later at a stage when we have
developed our submission.

Miller(2)

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Your Honours, there is a threshold matter that

needs to be addressed, and that is, "What
jurisdiction is this Court exercising?" In a sense
it depends to some extent on what jurisdiction the
New South Wales court was exercising. Because
section 118 of the Constitution has been raised it
is a matter involving the interpretation of the
Constitution, so that section 79 applies.
The defendant in this case is not in any sense

present in New South Wales, is not carrying on
business in any relevant sense, and were it not
that a question involving the interpretation of the
Constitution arose, the only jurisdiction of the
Supreme Court of New South Wales would be the
cross-vesting jurisdiction in which event, of
course, it would have to pick up jurisdiction under

that Act and other questions would arise. But
because the constitutional provision arises then it
becomes federal jurisdiction and sections 79 and 80
of the Judiciary Act attach to it. That happened
in New South Wales.

BRENNAN J:

Why is that, Mr Ellicott?

I am not following

why it is not ordinary State jurisdiction with the
supreme court?

MR ELLICOTT: Because it involves the interpretation of the

Constitution.

BRENNAN J: But in the first instance it was ordinary State

jurisdiction.

MR ELLICOTT:

No.

But it involved the interpretation of the

Constitution at the stage that this Court picked it
up and, therefore, it was exercising federal
jurisdiction and Felton v Mulligan I think
indicates that once the issue arises then it is

federal jurisdiction. I can take Your Honours to
that later but that infects the whole of the
proceeding in New South Wales in its federal
jurisdiction.

Actually on one view we might have a stronger

argument if it was not, but it is. It seems to us
clearly federal jurisdiction that the New South
Wales court was exercising. However, whatever that
may be, this Court is exercising federal
jurisdiction and the matter is here and we are
sitting, I think, in the Australian Capital
Territory and one has to think of section 79 in
that context. So, all of a sudden, the original
jurisdiction of this Court is invoked and the
question arises in that context. I am not saying
that it makes any difference but I am just trying
to identify for Your Honours what we say is the
relevant jurisdiction that is now being exercised

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and the way in which a particular limitation
provision should be considered.
Were it the fact, for instance, that the

Limitation Act of the Australian Capital Territory
was two years, for instance, it might create an
immediate difficulty on any view for anybody being
here but that is not the case so we do not have to
worry about it, but I want to, in a sense, rely on
that accidental circumstance, as it were, to indicate why we would say, with respect, how
ridiculous it is to hang on to this old notion that
79 is doing something that enables different
results to occur depending on what court's
jurisdiction you have invoked or, strangely enough,
whether the High Court is sitting in Sydney or in
Canberra or wherever. It is a very uncertain basis
upon which to administer justice.
So, right at the threshold we just make that

clear. But all that means is as a result, I think
it is Musgrave v The Commonwealth, 57 CLR, that it
will pick up the choice of law rules of the State
or the Territory as the case may be so that it
makes no difference. A difference could occur
under the cross-vesting legislation arising from
the fact that under that it is open to a court
exercising the cross-vesting jurisdiction to apply
the choice of law rules in this case of the lex
loci deliciti of South Australia.

BRENNAN J:

Why does not the jurisdiction under section 40

require this Court to exercise its jurisdiction as
though it were exercising the jurisdiction of a
court from which the matter was removed?

MR ELLICOTT: It does not, in a sense, because there is no

doubt that this is original jurisdiction of the
High Court and it is as if this proceeding had
started in the High Court in which event it would
clearly be federaL.jurisdiction.

BRENNAN J: Is there any authority for that, as to that

operation of section 40?

MR ELLICOTT: That is the effect of section 40 because it is

certainly not appellate jurisdiction. It is
removing something out of the State court which is
original jurisdiction in the State court and when
it gets here it must retain the same character of
original jurisdiction and that is, we would submit,
a basic proposition of the federal jurisdiction in
Australia and that would be incontrovertible, we
would say, and that must lie at the whole basis of
these remover provisions and remitter provisions in
that part of the Judiciary Act.

Miller(2)

9/4/91

But, in the end, as I was putting to Your

Honours, because it is not cross-vesting, and has
become federal at the moment this question arose,
it does become a section 79 point, and that is
important because the court has to face up to
certain decisions, maybe, of this Court in earlier

times. I am not saying it necessarily has to but
it may feel it has to, and I will refer to those
later, where section 79 has arisen.
But so far as the question is concerned here,

because section 79 picks up the choice of law rules
of the State or the Territory where the Court is
sitting, those choice of law rules will be
governed, we say, by the matters or considerations
or principles that this Court would lay down, eg,
as in a case such as Breavington, because that will
become the law. If section 118 applies, it will
descend on this case and resolve it. If the Court
expresses a new principle, then that will become
the common law principle. If Phillips v Eyre is
still to wander through the interstices of our law,
then it will become the common law principle that

is applicable. So, really, what I am saying is
that, in the end, it does not matter, but I think
Your Honours need to, from our point of view,
appreciate what we say is the jurisdiction you are
exercising.
Now, can I take Your Honours to our submissions, and Your Honours will see that at
paragraphs 6 and 7 we have set out two principles
which we submit are to be distilled from the

decision in Breavington. Now, we say that that is
an easy exercise because although there are
differing approaches, a majority of the Court in
Breavington has adopted these principles, that is,
the entitlement of the plaintiff to damages in the
New South Wales proceeding should be determined in
accordance with the law of the place of the wrong,

in this case South Australia. The second principle

is that full operation or effect should be given to
all relevant laws of the place of the wrong which
define the plaintiff's entitlement to damages in
the place of the wrong, South Australia.
These laws would at least include those

relating to liability to negligence, statutory and
common law; limitations on damages, as in
Breavington; or, we say in this case, limitation
periods. And we say that limitation statutes are statutes which are part of those which define the plaintiff's entitlement to damages in the place of
the wrong and if at the time when the proceeding is
commenced in New South Wales there is no such
entitlement, because of a limitation period, then
that is the end of the matter. The supreme court

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should say that it must dismiss the proceedings
because it cannot be established that the plaintiff
has a cause of action which it can enforce in New
South Wales.
Now, clearly enough, Your Honours will be

familiar with a lot of the matters that are germane
to these proceedings, and it is not our desire to
read at length what Your Honours have already
decided in Breavington, but Breavington is a
decision which, to say the least, has diverse
approaches in it, and one of Your Honours did not
sit in Breavington and therefore the matter becomes
of significance both from the point of view of an
understanding of the case, as well as understanding
our submissions.
But we do submit that notwithstanding those paths that have been adopted, for instance,
Justices Wilson and Gaudron took one path and
Justice Deane took, we say, the same path - we will

indicate why we say that. On the other hand, the
Chief Justice did not see section 118 as applicable
but, nevertheless, we say, in substance, has
endorsed the same principle and indeed, Your Honour
the Chief Justice and Mr Justice Deane, in the
following case, Perrett v Robinson, joined together
in dealing with that case and we say that that is
an indication in itself that there was a common
view on that particular matter.
Now that, of course, is partly speculative

but, nevertheless, we would submit, it is possible
to discern these principles and that that is really
what the case decides and there is a majority for
that view and we say, with respect, that that is
now binding on this Court, that that principle
should be picked up and should be applied. There
is no longer any basis upon which this Court
should, for instance, entertain the principles in
Phillips v Eyre, because they have been rejected by

a majority of this Court. For whatever reason,
they have been rejected. Likewise, this Court
should no longer entertain the question of whether
the flexible exception in Lord Wilberforce's
judgment in Chaplin v Boys should be entertained
because that has been rejected.
Six of Your Honours, we would submit, have

rejected it. There is a tail, in a paragraph, in
the Chief Justice's judgment, which some
commentators have suggested, I understand, might
indicate that His Honour was embracing, to some

degree, the flexible exception. We will want to
submit that that is not so, that His Honour was
simply saying, "Well, this is what I think", but
even if the flexible exception rule applied, it

Miller(2)

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would not help anybody in this case, but I will

come to that later. But the purport of these
remarks is simply to say at the outset that we
would submit that the court, having undertaken the
courageous but, nevertheless, perilous task of
reforming the law, there has to be a point where
the Court does draw the line. It cannot go on, as
it were, producing judgments which regurgitate the

same issues. One has to take hold of Breavington
and say, "What did we decide?"
Now, Your Honours, I hope I am not getting into an area of judicial method which is no
business of counsel, but it affects our clients,
and I will take Your Honours to a case in Western
Australia. It is a case which assists us greatly
we say, but where the trial judge has had to go
through all the judgments in Breavington and tick

them all off. Now, if the law is going to be
reformed in Australia - and he ticked them off, in
a sense, in our favour, but he has had to analyse
each of them and the case probably, I do not know, took another day because he had to and counsel got extra fees because of it. But we would submit that
there is in Breavington a basis for adopting a
principle and that principle should now be

embraced. Now the paths to that principle may
differ: section 118. It may be that in the
consideration of this case, the majority of
Your Honours will embrace section 118 and we will put argument that you should, and if you do not,
well so be it. There is another way to get there
and that is the way in which the Chief Justice got
there.
Now, as a matter of winning a case, from our

client's point of view, it does not matter whether
the view of Mr Justice Dawson or Mr Justice Brennan
was taken, or the view of Mr Justice Toohey, as
expressed in Breavington, we say, we still get to
the same result, and we succeed, but if it is a

matter of public interest - and it is to our
client, because our client, through its various
related companies, is involved in this sort of
situation around Australia, and therefore has an
interest, as would the people who stand behind the
insurance industry have an interest in the
administration of justice in the most efficient
way, and I hope Your Honours do not mind me getting
into that area, but I do submit that Breavington is
a case where the Court has to first of all distill
the principle because a majority has spoken, put
aside what has been said, in relation to Phillips v
Eyre and Chaplin v Boys and, at the same time,
consider the issues, first of all, whether the
proper approach is through section 118 - that
cannot be avoided because that is a constitutional

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imperative if it has any significance, or
alternatively whether it should be by way of the
adoption of a common law principle.
Now, as part of the principle - that is those
that we have set out in 6 and 7 - as part of that,
of course, we are saying that when you pick up the
law of the lex loci delicti, you pick up the
limitation provisions because they define the right
of the person, that is the entitlement of the
person to damages.

McHUGH J:

But it may be a question of construction.

When

you read section 36 with section 48, it may
indicate a legislative intention that section 36 is

only to apply to proceedings commenced in the
courts of South Australia.

MR ELLICOTT: Yes. Well we do not have to disagree with

that proposition in order to succeed, because what
we are really saying is this - and we say that this
is embraced in the Breavington principle - once you
commit the entitlement to damages to the law of the
lex loci delicti, then that law in all its effects
has to be taken into account, and the question to
ask is, "Can this person, this plaintiff, sue in
the lex loci delicti for the recovery of damages in
relation to this injury?"

McHUGH J:

How do you work section 48 into that scheme?

MR ELLICOTT: That is not a difficulty because, in this case

section 48 - first of all, one has to decide
whether it is section 82 or section 36; then one
has to decide whether section 48 applies to
section 82, if 82 is chosen - there are indications
in section 48 that it does not apply and it is only
concerned with limitation periods, it says, under
this Act, so that it may well be that section 48
does not apply to section 82. Let us put that
issue aside for the moment - I will come back to it

stands there in the registry in the New South Wales - but what one is saying is, to the plaintiff as he
Supreme Court, putting in his writ - filing his
proceeding - one is saying to that person, "Do you
have a right to recover, or an entitlement to
recover damages in South Australia?" and the answer
is "No" - whether section 36 is applicable and
there was no section 48, and the answer is, "No";
if section 48 applies and no step has been taken
and there is no factual basis asserted as there is

here but that in itself is irrelevant. I if no
step has been taken to invoke the jurisdiction to
extend in South Australia, then that means that at
that moment of time that plaintiff has no
entitlement to sue in South Australia, because the
time has not been extended.

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There is a bar. The bar might be extended,

but it has not been. The fact that it might be
only says this, "If you think you can recover in
South Australia, you go there and you ask the Court
to extend".

McHUGH J: Well, he does not have to. He can start his

action. Section 36 does not apply unless it is
pleaded, does it? If it is not pleaded, he is
entitled to recover.

MR ELLICOTT: Section 36 applies and once it is pleaded then

the onus is on the plaintiff to establish his

right. But when you are asking the question in New
South Wales - and that is the relevant issue - not
in South Australia, but when you are asking the question in New South Wales and the position in South Australia is raised, then the question
becomes, what was the entitlement of the plaintiff
at the commencement of these proceedings in New
South Wales to recover in South Australia, according to South Australian law?
Now, we would say, adopting section 118, you

give full faith and credit to the South Australian

laws. You do that by saying - - -

McHUGH J: You use the word "entitlement".

Is there any

difference between cause of action? What if you
say, does he have a cause of action in South
Australia? What is the answer to that question?

MR ELLICOTT:

The same, he does not.

McHUGH J: But he does have a cause of action.

MR ELLICOTT: Well, that would be a very narrow view. That

would be a rejection, we would submit, of what lies
behind the judgments in Breavington.

McHUGH J: No, you are in a different area.

It is the

difference between -

MR ELLICOTT: That is harking back to forms of action.

McHUGH J:

- - - a limitation which defines the right, which

is part of the definition of the right, and a
procedural bar.

MR ELLICOTT: Well, that is a distinction, we would submit,

that must be absurd in the minds of lay people,
that you can say to a person, "I have a right to

damages but I can't enforce it". Not much of a
right.

McHUGH J: Well, absurd or not, it is a right. that is

entrenched in judgments even in this - - -

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MR ELLICOTT: It has been entrenched, in a sense, but not

when it comes to the question as to whether a
person has a right to recover damages, and
Your Honours will find that that is indicated in
cases like Maxwell v Murphy, and I will take Your
Honours to those cases. But it is fundamental to the proposition, we would submit, that you cannot
satisfactorily define a principle in terms of what
this Court has decided in Breavington, by any
longer having attachment to the idea that there is
some distinction between a right to recover damages
and the notion that you cannot recover them because
you have not commenced an action within six years

or some other period. The two ideas, they laugh at
one another, when one looks at elementary
principles of justice, and if the Court is minded,
in this country, to develop new principles - and
that is what the Court is engaged in here and that
is the basis upon which Your Honours have seen fit
to exercise jurisdiction since special leave to

appeal arose in this country. Now, if that is to
be the basis and the Court is going to develop new
principles, then there has to be a principle to
which you attach that development and it ought to
be based on common sense and justice and

rationality. And we would submit there is no
distinction, really, in the long run, that can
sensibly be drawn between a right to recover when
the statute operates, and there is in effect no
right to recover, and saying at the same time, that
person has no right to recover. It is the same
thing. There is no right to damages, no
entitlement to damages.

MASON CJ:

Do you have any authority to support this

submission?

MR ELLICOTT:

Yes, Your Honour.

MASON CJ: After all, the distinction has been drawn

virtually from time immemorial.

MR ELLICOTT: Yes, and the leading judges in this country

have resisted it.

McHUGH J: Well, Mr Justice Windeyer did not in Australian

Iron and Steel v Hoogland, for a start. He saw it
as well - - -

MR ELLICOTT:

Mr Justice Sir Owen Dixon did not in Maxwell

v Murphy, nor did Mr Justice Williams and
Mr Justice Williams was upheld by the - I think it
is either the Privy Council or the House of Lords
and I think it is the Privy Council in Tew Yew,
(1983) AC. This is a shallow distinction. It does
not bear analysis on the basis of reason, it is a
harking back to the idea that the form of action is

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some how distinct from the right and we have
already fought that battle a long time ago.

McHUGH J:	By on your theory you should have demurred to the statement of claim.
MR ELLICOTT:	We could have but there was no need to do that

and by doing what we have done we have raised the
real issue and the real issue is, "Does this
plaintiff have a right of action in South

Australia?". The same view has commended itself to
the highest court in the United States and to the
highest court in the State, for instance, one
example, of New Jersey.
The courts are, in other words, resisting this

old idea and this Court has resisted it certainly
as early as Maxwell v Murphy.

MASON CJ:	You will take us to the authorities?
MR ELLICOTT:	I most certainly will, but Your Honours have

the point and I do not want to labour it any longer
but I do want to take Your Honours to some aspects
of the decision in Breavington.

MASON CJ: Yes.

MR ELLICOTT: If I can take Your Honours first of all to -

and it is apposite to the paragraph 11 of our
submissions - could I take Your Honours first of
all to page 77 dealing with Phillips v Eyre, and
Breavington is in 169 CLR 41. At that page,
Your Honour the Chief Justice said, about a third
of the way down, I do not want to read it all:
Although Lord Hodson and Lord Wilberforce in
Chaplin v Boys contemplated their retention in
conjunction with the application of the law of
the place of the wrong, subject to the
exception mentioned, the Phillips v Eyre

conditions have little to offer and present a
needless complication once the new approach is
adopted.
In Chaplin v Boys Lord Wilberforce spoke

of the n~ed to take into account "the varying
interests and considerations of policy which
may arise when one or more foreign elements

are present". No doubt a court, in deciding
whether the powerful primary claim of the law
of the place of the wrong should be discarded,
may find it necessary to take account of the
policy which underlies the law of a relevant

jurisdiction. However, for my part the
interests of the parties themselves are likely
to be more material in ascertaining whether

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another law has a closer connexion with the
parties and the occurrence with respect to the
issue to be litigated.

So, Phillips v Eyre, we would submit,
notwithstanding what His Honour had earlier said in
the remitter case, I just forget - - -

MASON CJ: Pozniak.

MR ELLICOTT: Pozniak, His Honour pushed aside Phillips v Eyre and said, "Let us have a new principle".

Now, at 92 having dealt with these earlier cases of
Koop v Bebb and Anderson, and may I say this to
Your Honours, it is very important to bear in mind
that cases like Pederson v Young and these
principles that Your Honour Mr Justice McHugh has
referred me to, are all enunciated in the context
of Koop v Bebb and Anderson, that idea.
One has to ask oneself, we would submit, what

effect did they have and should they any longer
have such an effect because they do lead you to
these sorts of distinctions, but once you put
Phillips v Eyre apart and you look at the law of
the place of the wrong and do not ask the question,
first of all, "What is the situation in the lex
fori" or, alternatively, do not say as this Court
had said in Anderson that it is the law of the
forum which determines the substantive law, once
you put that aside and that is what this principle
is doing, then that of necessary causes one to ask,
"What is now the relevance of this distinction
between procedural and substantive?"

BRENNAN J: Could I just ask, so that I will understand the

way in which your argument is going, what would be
your submission if the limitation provisions in New
South Wales and South Australia had been reversed?

MR ELLICOTT:

You would still go to South Australia.

BRENNAN J:

So that you would bring an action in New South

Wales governed by the South Australian limitation?

MR ELLICOTT: If you could, yes.

BRENNAN J: Well, could you?

MR ELLICOTT:	Yes.
BRENNAN J:	Even though the New South Wales statute
MR ELLICOTT:	When I say, "If you could", my reason for

saying that was simply that there may be some other
circumstance which had to be satisfied in order to
have jurisdiction in New South Wales - for

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instance, the presence of the defendant in the
jurisdiction, et cetera.

BRENNAN J:	Be it so.
MR ELLICOTT:	But assuming that, then the action in New

South Wales would be governed by the situation in
South Australia and the action could be brought.

BRENNAN J:

Even though a New South Wales statute said no

action should be brought in New South Wales?

MR ELLICOTT: Yes, that is right. That is because the first

question has to be, "What entitlement does this
plaintiff have to damages according to the law of

the place of the wrong?" The answer, "Yes, this
one has because this one can still sue in South
Australia, the place of the wrong", if those were the circumstances as Your Honour puts it to me.
Page 92 just at the top, having discussed all

these cases, Justices Wilson and Gaudron said:
Given the unsatisfactory nature of the

rule to be discerned from the actual decision in Anderson, this Court ought now to consider the adoption of a new choice of law rule, as
was done by the House of Lords in Chaplin v
Boys.

Of course, if you go on into the judgments
Their Honours do not embrace Chaplin v Boys by any
means. That is only a way of saying, "Well, we are
going to move ahead into section 118 and come to
that later."
Mr Justice Deane at page 128, having referred to Koop v Bebb and earlier referred to Pozniak v
Smith and Chaplin v Boys, His Honour said in the
middle of the page:

Finally, is the wholesale rejection, for the
purposes of the internal law of this country, of "the (vested rights) theory propounded by
Holmes J ..... consistent with the fundamental
tenet of our jurisprudence that there is a
basic distinction between the objective
existence or operation of law on the one hand
and its judicial declaration or application on
the other ..... In the event, I find it
unnecessary to pursue any of these particular
questions since it appears to me that the
Constitution leaves no room for the direct
intrusion of private international law
principles to preclude or undermine the unity
of the national system of law or to deny the
jurisprudence which that system reflects.

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Implicit in that, of course, is a rejection of
Phillips v Eyre.
Another matter which was of considerable

significance, we submit, to the decision in
Breavington is what we refer to under (b) in
paragraph 11, that is, the notion of one country,
one nation, and it is clearly undesirable that the
one set of facts should have different legal
solutions depending upon where the jurisdiction is

exercised around the country. Now, that is
fundamental to the approach of the majority and,
indeed, one will find, we would submit, that it has
rather intruded into the views of Justices Dawson,
Toohey and, we think but we cannot be sure,
Mr Justice Brennan, but we will come to that.

At page 78 point 2, if I could take

Your Honours to that - and this follows on the
comments earlier made about the Phillips v Eyre
conditions - and His Honour's statement in the
middle of page 77:
However, for my part the interests of the
parties themselves are likely to be more
material -

et cetera, which I have already read. Towards the
top of page 78:
The possible existence of significant
differences in the laws of States and
Territories, arising from the enactment of a
statute peculiar to one or more, but not all,
States and Territories led me to conclude at
an earlier time that we should adopt within
the Australian federation the approach that
seems best suited to the resolution of
international conflicts. However, that
approach did not commend itself to other

members of the Court in that case. What is

more the approach is posited on the fact that
on the international scene there are
situations in which the parties have no
substantial connexion with the law of a
particular jurisdiction, especially the law of
the place of the tort.
One cannot make the same comment with the

same force about Australian residents with
respect to the law of a State or Territory in
which they happen to be at a particular time.

Australia is one country and one nation. When
an Australian resident travels from one State
or Territory to another State or Territory he does not enter a foreign jurisdiction. He is
conscious that he is moving from one legal

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regime to another in the same country and that
there may be differences between the two which will impinge in some way on his rights, duties
and liabilities so that his rights, duties and
liabilities will vary from place to place
within Australia. It may come as no surprise
to him to find that the local law governed his
rights and liabilities in respect of any wrong
he did or any wrong he suffered in a State or
Territory. He might be surprised if it were
otherwise. In these circumstances there may
be a stronger case for looking to the law of
the place of the tort as the governing law for
the purpose of determining the substantive
rights and liabilities of the parties in
respect of a tort committed within Australia. Justice Barry made a related, though
different, point in Walton v Walton(2) . .... :
"in the Australian community, where
social ideas and customs are
substantially the same throughout the
continent, and where there is a common
nationality and a common language, the
same significance or importance cannot be
ascribed to a person's conduct in moving
from one State to another as when the
question arises in connexion with the
action of a person moving to a community
where, by reason of a difference of
language and national traditions,
institutions and usages, he takes on the
character of a foreigner."

On this footing the Supreme Court of Victoria
should apply the law of the Northern Territory
in determining the appellant's entitlement to
damages.

Now we say that that is His Honour's acceptance of

the law of the place of the wrong as determining

the matter. Now His Honour goes on:
And if the applicable law to be applied by the wrong subject to the flexible exception the
result would be the same.

And His Honour goes on to indicate why, but we read
that as simply meaning that His Honour has not
embraced the flexible exception principle.
His Honour has really rejected it, because he sees
this difference between what Lord Wilberforce said
in Chaplin v Boys that led him to adopt flexible
exception between Malta and the United Kingdom, two
quite different communities, and the Australian

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community, as he described it in the middle of

page 78. So we say that His Honour, based on the
proposition that this is one country and one
nation, with those consequences that he refers to,
that those rules that were developed for the
purposes of resolving conflicts between nationals
of different nations, those principles have no
ready application any longer to Australia.
Now Koop v Bebb, Anderson et cetera, can be

quoted and cited. They embraced it, but no longer
are they embraced because of that very notion and
that is immensely important, we would submit, in
understanding what has happened in Breavington.
Page 88, point 3, Justices Wilson and Gaudron:
The operation of the choice of law rules

of private international law, whether by their
own force in matters not involving the
exercise of federal jurisdiction, or by force
of section 79 in matters of federal
jurisdiction, allows for the possibility that tortious liability (or the extent thereof) in
respect of actions occurring in Australia may
be determined by reference to different
substantive laws depending upon the location
or venue of the court in which action is

brought. The undesirability of that
possibility is obvious, not only in terms of
its potential as an inducement to forum
shopping, but in terms of perception of the
law itself.

It brings the law, we would submit, possibly into
contempt.
It is not only undesirable, but manifestly
absurd that the one set of facts occurring in
the one country may give rise to different
legal consequences depending upon the location
or venue of the court in which action is

brought. The problem of choice of law is akin
to the problem of inconsistent State and
Commonwealth laws applying to the one set of facts, which problem is resolved by
section 109 of the Constitution.

Then Mr Justice Deane at page 121, His Honour said:
It is in that context that an important question which lies at the threshold of the

present appeal falls to be determined. That
question, stated in deceptively simple terms
which require definition, is whether the
Commonwealth and State constitutions and laws

comprise a unitary system of law. By "a
unitary system of law", I mean a comprehensive

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legal system in which the substantive law
applicable to govern particular facts or
circumstances is objectively ascertainable or
predictable and internally consistent or
reconcilable.

Now that surely is an aim that should be embraced readily by a court that is wanting to develop sound
judicial principles in this country.
It is not essential - notwithstanding that it
may be conducive - to such unity that there be
no division of jurisdiction between different
courts or that the procedures and procedural
rules of all courts should precisely

correspond. Nor is it essential that
identical rules regulate conduct, property or
status and define its consequences or
attributes regardless of where in the
jurisdictional territory it may occur or
exist:

In other words, it embraces a federal system with
States and Commonwealth having powers to regulate certain situations.
a single system of law may well incorporate
State or other local rules applying to
persons, acts and things within the relevant

State or other locality. What is essential is
that the substantive rule or rules applicable
to determine the lawfulness and the legal
consequences or attributes of conduct,
property or status at a particular time in a
particular part of the national territory will
be the same regardless of whereabouts in that
territory questions concerning those matters
or their legal consequences may arise. In a
federation such as Australia where there are a
number of legislatures and a number of
distinct court systems, such unity cannot

exist unless the legal principles for
determining legislative competence and for
resolving conflicts between different laws in
a particular case will operate with identical
results in any of the different court systems.
For practical purposes, such unity is unlikely
to exist unless there is some final appellate
tribunal with jurisdiction to entertain
appeals from all of the distinct court systems
in relation to each class of dispute.

And His Honour goes on to develop that, and I am not wanting to read the whole of it, but that is
an important basis upon which His Honour then
builds his judgment in the light of section 118.
His Honour, again at page 125 and 126 says:

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The private international law rules which have been accepted by the common law have been
largely developed as appropriate to resolve
questions of actionability and choice of law
in cases involving an international
element ..... Even in that context, there is
much to be said for the view that, in some
areas, they show undue preference for the

substantive law of the forum. Be that as it
may, the emphasis upon the substantive law of
the forum which those private international
law rules show in some areas is "incongruous
and unsatisfactory" in the rules for defining
the lawfulness and consequences, under a
done not outside, but within,
national system of law such as that which the country, of acts

the national territory. More important, the
direct intrusion of the private international
law rules of the common law to resolve
potential competition between State laws
within the national system ..... would
effectively preclude the existence of a
unitary national legal system at least in
those cases where those rules superimpose the
law of the forum as the substantive law to
govern or control the lawfulness or
consequences of conduct outside the territory
of the forum.

At page 147 Mr Justice Dawson said, towards the
bottom:
The rule in Phillips v Eyre has never been thought by this Court to have a flexible
application within Australia and, for my part,
I do not think that any benefit is to be
gained from so regarding it. The connexion of
the parties with a State or Territory in which
a wrong is committed in Australia could never
be as remote as, for example, the connexion of

the parties to Malta in Chaplin v Boys. This
is so because the very fact of federation
tends against the view that one State cannot
have a significant interest in the operation
of its laws upon acts committed within its
borders by persons from another State or

Territory. The second condition of the rule
in Phillips v Eyre imposes a desirable
limitation upon the opportunity for forum
shopping and within a federation it would seem
undesirable to disregard that limitation even
if special circumstances were otherwise
thought to exist. Despite the existence of
separate jurisdictions giving rise to a
conflict of laws, the federation binds
together the one country and makes

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inappropriate an approach which may have some
validity in the case of conflict between the
laws of different countries. Moreover, within
the one country a greater value is to be
placed upon certainty than upon the supposed
benefits accompanying flexibility.

Now, in that passage, and we would submit

• His Honour's judgment is open to the view that -as
is the judgment of Mr Justice Brennan - but really,
both of Your Honours have moved away from the
enunciation of principles in Koop v Bebb and
Anderson, because they seem to have endorsed the

view that it was the substantive law of the forum
which determined the matter, and that the test
under the second rule in Phillips v Eyre was rather
a test such as, "Well, can you sue for this sort of

thing in South Australia in this case?" or, "Can you sue for this sort of thing in the law of the

place of the wrong?" The answer being, "Yes, in a
general sense", then the substantive law of the
forum then applied. For instance, as in Anderson,
it picked up the principle that in New South Wales
you could not recover at all if there was
contributory negligence, whereas in the place of
the wrong, the ACT, there was apportionment for
contributory negligence.
One would have thought, if the answer was,

"Can you recover, have you got an entitlement to
damages in the place of the wrong?", if that was
the true test, then in Anderson the answer would
have had to be, "Yes, you can, subject to you
making a contribution". Now that, of course, was
denied. It is in that sense that I say that Your
Honours Justices Brennan and Dawson have, in
substance, in this case of Breavington, moved away
from that earlier position.

BRENNAN J:

I am not conscious of that, speaking for myself.

MR ELLICOTT:

No, Your Honour, that is why I have got a

query against - "query contra Brennan J", when I

come to it. I am perhaps trying to read in too

much, and it is pretty clear that I am, now. But
we would say that there is, indeed, an
inconsistency, if that was Your Honour's intention,
between what Your Honour did in Breavington and what would have happened in Anderson because in Anderson we would say the law of the place of the
wrong would have said, "You are entitled", whereas
the Court had said, "What governs is the
substantive law of New South Wales", but I will
come to that in a moment.

Mr Justice Toohey, at 166. Now, although

His Honour did not embrace section 118 - indeed,

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His Honour said that he did not feel it necessary

to do so, at the top of 164, in this case. The
other thing about Breavington is that some of
Your Honours relied, I think, on the proposition
that it does not apply to Territories; it talks
about State laws. I will come to that later.
Nevertheless, Mr Justice Toohey seems to have
embraced the notion of the desirability of a
national approach.
To say thats. 118 of the Constitution -

this is in the middle of 166 -
ands. 18 ..... are unavailable in the present
case should not obscure the fact that the
question before the Supreme Court ..... was
whether recognition should be given to a
statute of the Territory directly applicable
to the circumstances giving rise to the

appellant's claim. The sections mentioned are
recognition of the fact that Australia is, in
the words of the preamble ..... a "Federal
Commonwealth". Whether it be appropriate in
some cases to think of the States as foreign
countries for choice of law rules, it does not
follow that this should be a universal or

indeed the ordinary rule. The High Court,
Federal Court and the Supreme Courts ..... are courts of one nation, administering the same common law and, to the extent that they are
invested with federal jurisdiction, exercising
a common jurisdiction. Their
interchangeability of jurisdiction is
emphasized by the Jurisdiction of Courts
(Cross-vesting) Act 1987 (Cth) which confers
the jurisdiction of the Federal Court on State
and territory Supreme Courts and the
jurisdiction of Supreme Courts on the Federal
Court, in the circumstances there
mentioned ..... It is hard to quarrel with the

comment of Marks J.

His Honour goes on:
Consistently with the common law choice of law
principles as they have now developed and
consistently with the relation of Victoria and
been applied had the appellant's claim been
the Territory as members of the federation, it
is appropriate that the Supreme Court of
brought in the Supreme Court of the Northern
Territory.
Now, Your Honour Mr Justice Brennan, at 112,

at the top:

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By attributing to the states of the lex
fori a power to regulate what kinds of civil
liability arising under the lex loci are
enforceable in the forum, the common law opens
the way to the possibility that some torts
occurring in one part of Australia will not
give rise to a civil liability in some other
part or parts of Australia -

That seems to indicate quite clearly that it is not something that troubles Your Honour; perhaps I
should not say not trouble Your Honour, but it is
the effect of the principle which Your Honour is
prepared to accept -
That circumstance may suggest that the common
law operates unsatisfactorily and that the two
conditions should be modified so as to ensure
that a tortious liability arising under the
law of the part of Australia in which the tort
occurs can be litigated in the courts of any
other part of Australia. By eliminating the
first condition, the kind of liability defined
by the lex loci would be uniformly enforceable

by courts in every part of Australia. Some
may think this desirable, others not. But
whatever view be held as to the desirability
of changing the common law, a change in the
common law cannot abrogate the authority of
the legislature of a State or Territory over
the law to be applied by the courts of that
State or Territory. Subject to any federal
measure, the legislature of any State or
Territory may alter the common law which
governs the enforcement in the courts of that
State or Territory of liability for
extraterritorial wrongs.

Now, it may well be that if this Court laid down a
principle some recalcitrant backward State
legislature would then proceed to legislate as

perhaps some have done in the United States to ensure that Phillips v Eyre style principles ought
to be applied or the law of the forum should be
applied. Nobody is suggesting that subject, of
course, to whatever operation section 118 may have.

BRENNAN J:

What happens then in a case where, for example,

was it not the New South Wales legislation that
provided that no action should be brought in
relation to personal injuries arising out of motor
car accidents?

MR ELLICOTT:	Yes.
BRENNAN J:	What happens when that action is brought

contrary to that injunction?

Miller(2)

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MR ELLICOTT: It means that people cannot bring actions in

New South Wales, that is a question of
jurisdiction.

BRENNAN J:

But why should that happen?

If your principle

is right, why is it that the New South Wales law as
a lex fori should prevent an action in New South
Wales Supreme Court in respect of a motor accident
in Queensland?

MR ELLICOTT: It should not as a matter of politics, but as

a matter of law then because it is a question of
what jurisdiction its courts will exercise it can
say the court shall not exercise jurisdiction in these matters. Now, obviously, if section - - -

BRENNAN J:

What is the distinction then between the

jurisdictional statutes and other statues which
limits the operation of this principle?

MR ELLICOTT:

Your Honour, this question is rather

fundamental to this whole debate because that is to
say, "What is the function of the court, what is

the role of the court?". The role of the court is
not to, by reason of its location, alter the rights

of the parties. The very notion of judicial power
is that it determines the rights and liabilities of
the parties, In re Judiciary Act, 29 CLR, bread and
butter constitutional law. This is the fundamental
nature of jurisdiction and federal jurisdiction
and, therefore, a court should not be seen as a
body which alters the rights of the parties.
Now, what these principles do, that is the

Phillips v Eyre principles, they effectively, we
would submit, alter the substantive rights of the
parties because they say, "Although, under the law
of Australia in all its facets, this person
suffered a wrong in South Australia, and under that
law the defendant is entitled to say they have no

New South Wales, we will say that they do.'' On the right or entitlement to damages, nevertheless, in

other hand, in the example that Your Honour puts to me, the question of what jurisdiction the New South
Wales court or a State court will exercise has to
be a matter for that State court subject, again, to

the Constitution. And the relevant part of the

Constitution will obviously be that which empowers the federal Parliament to confer jurisdiction on
State courts.
Now, if it is an action between residents of

two States, if it was Queensland and New South
Wales in the case Your Honour puts to me, well, it may be that the State court could not refuse
jurisdiction. But if it were simply a statute of

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New South Wales that said, "Our courts will not
entertain actions for personal injury'', well, that

is it. The jurisdiction is not there. But that is

different to the right. A person may have the
right and he can enforce it in an appropriate forum
in the sense of a forum that has jurisdiction.

BRENNAN J:

What do you say about a statute which says, "The

supreme court of this State shall not entertain an
action in respect of an extraterritorial tort
unless that action is brought within three years"?

MR ELLICOTT: Well, we would submit that that statute, if

section 118 is seen as applying, is invalid but if
section 118 does not apply and common law rules
apply then, if a State is, we would say, foolish
enough to pass such a law, well so be it, or
contrary to the spirit of the Constitution, as
distinct from the application of it, if it wishes
to be negative in that regard, well, it would
determine the matter because it is within its power
to do so. But in doing so, it does not deny, we would say, the substantive rights of the parties because the party that is trying to assert it or
the party that is trying to resist it can always do
it by the party trying to assert it going to the
law of the, in this case, the lex loci delicti or
some other State that is not so recalcitrant, or
Territory, as the case may be.
So, in the end, it really is a question of defining what is the substantive law and if the substantive law of the place of the wrong is such
that there is no right of action, well, other
States' legislation cannot alter that but they may
alter the capacity of a person to go to their
courts, depending on the constitutional question.
At page 113, Your Honour said, having

discussed Chaplin v Boys, about a third of the way
down:

His Lordship's proposal was to extend the
operation of the lex fori ..... though no civil
liability of the relevant kind arose under the
law of the place where the material
circumstances occurred. Such a development
would not be conducive to uniform
enforceability of liability for torts
occurring within Australia.

Now, that sentence is at least some concession,
Your Honour, to the view that we say is to be found
uniformity to reject Chaplin v Boys.
in the other judgments. In other words,

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And in principle, it is difficult to accept
that mere judicial declaration can create a
common law liability in tort arising from
extraterritorial events where none has
hitherto existed. Moreover,
Lord Wilberforce's flexible qualification
necessarily imports uncertainty in the
application of ordinary common law principles.
The principles, as restated, are certain in
their operation and litigants have the
advantage of knowing whether their claims may
be pursued on the merits in a particular
forum.
Now that is an interesting sentence if

Your Honour is not embracing the notion of
uniformity. That is why I have put, "query contra
Brennan J." because I wondered whether Your Honour
was not really, as Mr Justice Dawson did, seeming
to embrace it, but I am not here to question
Your Honour, I am only throwing up matters that need to be thought about.
Now, again at Page 116 point 8 there is

another comment which perhaps goes the other way:
It would severely qualify the mutual

legislative independence of the States to
attribute to s. 118 the effect of compelling
the courts of a State to give relief in
circumstances which would give rise to no
cause of action by the laws of that State or
which may even amount to an offence against
the laws of that State.

So, in the end, one has to say that Your Honour has
not embraced that proposition.
In Chaplin v Boys the "flexible exception"

principle was adopted, but it is clear form the
judgments in Breavington that that has been

rejected, and in ll(c) we have given the references
to those and I do not think I need take
Your Honours to that. On the other hand, it is
clear that Mr Justice Toohey embraced the flexible
exception and I have already said that, in our
submission, Your Honour the Chief Justice did not
embrace it and has simply said, "Well if it did
apply, it would not help the plaintiff in this
particular case of Breavington".
Now, we then go on to say that in the light of

that analysis the decision in Breavington should be
accepted by the whole Court as authority at least
for the following: they are the principles we have
set out in paragraph 6 and 7; that Phillips v Eyre
is no longer applicable to the choic~ of law in

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intranational actions for tort in Australia - that
is a new word, but it is one that I think
Your Honours will readily understand - that the
''flexible exception" proposition enunciated by
Lord Wilberforce in Chaplin v Boys should be
rejected as appropriate to those actions.
Now, we then wish to raise the applicability

of section 118, because once the Court is involved
in a consideration of what appropriate principle
should apply, then one cannot obviously avoid the

Constitution, and three of the Justices of this
Court have appealed to section 118, and the
question now arises whether the Court, if it does
accede to the proposition, an appropriate proper or
satisfactory judicial method would, we would
submit, require that that be done, if one accede
the proposition that Breavington is a new
principle - has endorsed a new principle - as set
out in 6 and 7, then the question nevertheless
remains, because there was not a majority for or
against section 118 in Breavington - the question
still remains whether that is the appropriate
approach, and I realize that some of Your Honours
have expressed a contrary view, but those views may
have been expressed in the context of wanting to
continue to assert the propositions in Phillips v
Eyre, but once those are put aside the question has to be asked, "Do we go to section 118, or does one embrace a new common law principle, as did the
Chief Justice?"
One thing that one notices about section 118

in relation to Breavington - I have already
mentioned - and that was that it was a territory
case, and section 118 in terms does not apply to
territories. Nevertheless, although that may have
been seen to be a reason by some of Your Honours
for not treating section 118 as applicable, in this
case no such problem arises. It arises squarely,

because it is a State case, not a Territory case. Not that that may necessarily make any difference to the view which some of Your Honours
might express, but it has to be borne in mind that
section 118 will operate, first of all, according
to its terms. That is a simple notion, but the
real problem here is to find out what do its terms

imply. Now it has been suggested that section 118

is only dealing with evidentiary matters. We would
submit, first of all, that there is no warrant for
treating section 118 as being so confined. Its
language is too powerful and too wide to confine it
to evidentiary matters and we rely on the views
expressed by Justices Wilson, Deane and Gaudron in
Breavington in relation to that and there is no
point in me reading those passages, because it will

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only take up the time of the Court. The Court will

look at those. But we submit that at the very
outset that should be accepted by the Court, that
it is not confined to evidentiary matters.
Indeed, this Court, in previous decisions, has

taken the view that it has a substantive effect.
Now if it has a substantive effect, the Court
obviously has to decide where that begins and ends.
It has been suggested that in the case of Merwin
Pastoral, 48 CLR 565, the Court gave it a limited

operation. To say that, of course, might be
misleading, because the Court did give it a
substantive operation, but it only had to operate
in the circumstances of that case and therefore, in
that sense, it might be thought to be limited, but in no sense did the Court say that section 118 had
a limited operation. At page 577, it is a question
of the policy of Victoria, in the judgment of
Justices Rich and Dixon, at the middle of the page:
It was suggested that, even so,

section 25(6) and (7) of the Moratorium Act
1930-1931 should not be given effect to
because the provision contravened notions of
morality or the fundamental policy of the law,
or, ..... , because "its application would at
the stage and in the circumstances in which it
was invoked work manifest injustice to or, in
effect, a fraud on one of the parties."

That is rather suggesting that it was against the
policy of the law in Victoria.
This suggestion is not supported by any
authority and goes much further than any
decision of the Courts has gone hitherto in
refusing recognition of the law of another
country. Further, it appears to be contrary
to section 118 of the Constitution.

That is a step, but it is a step towards giving it
a substantive operation and it does not say it only

stops there. And at pages 587 and 588,
Justice Evatt said at the bottom:
It is true that, very occasionally, upon

grounds of public policy English Courts have
refused to accord recognition to some part of
the law of a foreign country, which might
otherwise be treated as governing or
underlying a transaction. It is, in my view,
not permissible for a Victorian Court to adopt period of unexampled economic crisis, to
such an attitude here. All that the
revise, alter, suspend or discharge certain

Miller(2)

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contractual obligations over which it could

exert its constitutional power. The
Legislature of Victoria too enacted a law
which differed in degree only from that of New

South Wales. And, further, the Commonwealth
Constitution expressly requires that ''full
faith and credit shall be given, throughout
the Commonwealth, to the laws ... of every
State" In the United States the
constitutional provision from which our
section 118 is taken has been regarded as
prohibiting a refusal by the Courts of one
State "to give effect to a substantive defence
under the applicable law of another State".
Now, in both those judgments the section is

given substantive effect. Likewise, in a decision
which is referred to in the judgments in
Breavington, a case of E and B Chemicals - and I
will give Your Honours the reference to this -
(1939) SASR 441, at pages 443 and 444
Mr Justice Napier placed no limitation on the
operation of section 118 in relation to substantive
laws. That judgment is a rather flat-footed
statement which would support the extension of
section 118 through the substantive area. So that
where it has been dealt with - and admittedly only
on a limited basis - it has intruded into the
substantive area.
Cases which are suggested to go against that

notion are cases such as Pedersen v Young,
110 CLR 162, and I take Your Honours to that. If
Your Honours felt that in order to find in favour
of our client you felt that this stood in the way,
we would ask you not to follow or to overrule or
distinguish, but probably overrule. It is a

section 79 case, so it is an important one. Mr
Justice Kitto at page 164:

Wales Registry of the Court - The action was commenced in the New South

and it related to damages for personal injuries
which the plaintiff alleged he sustained in a road
accident in Queensland -
more than three years after the date alleged in the statement of claim as the date of the

injury. The defendant by his defence sets up
this fact as an answer ..... The relevant
provision is in s.5 -

in other words he sets up The Law Reform
(Limitation of Actions) Act of Queensland -

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"Notwithstanding anything contained ..... where
damages claimed by the plaintiff for the
negligence ... consist of or include damages in
respect of personal injury -

the action -
shall be commenced within three years ..... "
The plaintiff demurs, contending that the
statute affords no defence to the action.
Upon ordinary principles of statutory

interpretation it is necessary to understand
s.5 is limited to prescribing a time limit for

the commencement of actions in Queensland. A
faint attempt was made to attribute to it a
wider operation, by force of s.118 of the
Constitution, which requires full faith and
credit to be given throughout the Commonwealth
to the laws of every State. But that section
takes State laws as it finds them. It
obviously does not give a Queensland law
relating to the commencement of actions in
Queensland an application in New South Wales
to the commencement of actions there.
Now, to so find is not to say that His Honour

was treating section 118 as merely an evidentiary
provision. What His Honour is really saying there
is that you give full faith and credit to the law,
but it has a limited effect and operation, and it
is not therefore a law on a procedural matter or an
evidentiary matter. It is a law which - as such,
it is just a law, and you give it effect, and you
give it, if necessary, the effect which might be
substantive.
Now, we say, of course, that in this case such

a law in the place of the wrong is a law which
circumscribes the entitlement to damages, and in
that sense, full faith and credit should be given

to it. It is not dictating something to the courts

in New South Wales. It is saying that this
plaintiff has no entitlement to damages, in our

case, in South Australia. Now, that is giving
substantive effect to the law. It is giving full
faith and credit to the law. It is giving full
operation and effect to the law. It is not talking
to, admittedly, the Supreme Court of New South

Wales. It is only operating within the context of
Queensland in this case.
Now, it may be there could be an argument

about whether, under the Australia Act, there is
some extension which enabled a statute of
limitations to apply outside the State, but we need

not go in to that complication at the moment,

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although when you read section 36, it is open to
the construction that it is dealing with actions
that are based on torts which accrue in South
Australia and that properly, under proper rules of interpretation, which I will come to, that it
controls those actions. That is another way to the
same result. But looking at it in the way
His Honour looked at it here, and because I am
dealing with section 118, we say that this is not a
decision which rejects the notion that section 118
does not have substantive effect.
Now, His Honour goes on, and although it

relates to other matters, to save coming back to it
later, may I just refer Your Honours to it.
It obviously does not give a Queensland law
relating to the commencement of actions in
Queensland an application in New South Wales
to the commencement of actions there.
The defendant's main argument, however, depended upon ss. 79 and 80 of the Judiciary
Act. It is obvious that the Queensland
enactment could not of its own force limit the
time within which an action may be commenced
in this Court -

we do not have to argue against that -
but the provisions of the Judiciary Act were
relied upon for the proposition that at least
if the present action should come to be tried
in Queensland, where the cause of action is
alleged to have arisen, the Queensland law as
to limitation of actions would have to be
applied. It is, I think, in accordance with
the received opinion as to the operation of
ss. 79 and 80 to hold that, subject to the
Constitution . .... all Queensland laws must be
treated as binding in this Court, as federal

law if not by their own force, whenever the
Court is exercising jurisdiction in
Queensland. But in my opinion the defendant's
reliance upon s. 5 of the Queensland Act would necessarily fail even if the action were to be
tried and decided in Queensland, because the
Judiciary Act does not purport to do more than
pick up State laws with their meaning
unchanged. It cannot gives. 5 a new meaning,
converting it into a provision limiting the
time for the commencement of actions outside
Queensland; and for that reasons. 5 does not,
even by force of the Judiciary Act, afford a
defence to an action commenced, as the present
action was commenced, outside the time it
allows but in New South Wales.

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Now, His Honour is saying, "Well, if we sent

it up to Queensland it still will not give
section 5 any effect." So, wherever it is heard it
has this strange result that although in Queensland
under Queensland law, as applied, the plaintiff had
no entitlement to damages, nevertheless anywhere
else in the Commonwealth where somebody was
prepared to listen and had jurisdiction, including the High Court, then the entitlement was there and
all based, one will find, on this narrow view, we
would say, that some how you can treat a statute of
limitations as some sort of procedural matter when,
in truth, it goes to the substance of the right.
It was said for the defendant that

section 5 operates to create a substantive
defence in Queensland to a claim for damages
for personal injury where the cause of action
arose in Queensland, and that for that reason
it provides the defendant with a good defence
to the present action. It is the established
doctrine of English law, however, that
statutes of limitation expressed to relate to
the institution of proceedings do not provide

substantive defences. They "affect procedure,
not substance".

Now, that is harking back, clearly enough, to the
notions of Koop v Bebb and Anderson. That is where
the distinction may have been embraced in relation
to conflict of law principles and that is why there
is a reference there to Cheshire on Private
International Law, we would submit, because

His Honour had that in mind. And that is
important, we would-say, in determining the
relevance of this case and cases like it. There
have been more recent cases where Your Honours
have - I think Mr Justice Toohey in one case,
Your Honour Mr Justice Dawson and
Mr Justice Stephen in another, have felt impelled
to apply this notion and we would submit that there

was a fundamental error in that once one accepts the proposition that the law of the place of the
wrong will govern in any jurisdiction.
Now, the other judgments I do not propose to

read because, again, they pick up, by and large,
the same notion in that case.
In Anderson which is quoted, 114 CLR 20,

section 118 again was adverted to but it is not a
rejection of the notion that section 118 does not
apply to substantive law. At the foot of page 31,
Mr Justice Kitto says:
We may put aside section 118 of the
Constitution, for its requirement that full

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faith and credit be given throughout the
Commonwealth to inter alia the laws and the
public Acts of every State has no application
to the laws and public Acts of a Territory.

That is all His Honour has said, so that is not a

rejection. Page 37, at the foot,
Mr Justice Taylor:
A further argument by the appellant based

upon section 118 ..... may be noted. But it is
sufficient to say that there is nothing in
those provisions to support the contention
that it was proper for the appellant's title
to relief in his action in the District Court
to be determined by reference to the laws
operating in the Australian Capital Territory
and not by reference to the law of New South
Wales.

That again is in the context of Koop v Bebb and what had been discussed in this case and the adoption of the view that the choice of law on substantive matters was the law of the forum.
Sir Justice Menzies, at page 39 at the bottom:
In dealing with the case, I have assumed

that the District Court was a court exercising
federal jurisdiction but I feel obliged to
reject expressly one of the arguments whereby
it was sought to establish that this was so.
There was not in the proceeding any matter
arising under section 118 of the Constitution,

And Mr Justice Windeyer at page 45:
But the appellant's main argument was not

necessarily founded on that proposition. He
based it also upon a view of the superiority
of federal law over the law of a State, a
proposition that he contended was supported by

references to the full faith and credit
requirement of the Constitution section 118,
the State and Territorial Records Recognition
Act 1901-1964, section 18, covering clause 5 of the Constitution and other matters. But much of this seemed to me to involve a

misconception. The laws of the Commonwealth
are not a transcendent system of jurisprudence
supernally hovering over the laws of the

States. Where a State law is inconsistent
with a valid Commonwealth law, the latter
prevails. That is all. No inconsistency

occurs here. The Ordinance that is in
question is, upon its proper construction,
directed only to the trial in the courts of
the Territory of actions properly triable

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there. It is the law of the Territory. If it
purported to have a wider scope, I would
greatly doubt its validity; for, apart perhaps
from the power with respect to trade and
commerce, I do not know under what head of
power the Parliament could legislate in the
matter of motor car traffic accidents
everywhere in Australia.

And so on.
There again, that is harking back to the idea

that Mr Justice Kitto expressed in Pedersen v Young
and saying, "Well, it only binds the courts of the
Territory". That again is in the context of Koop v

Bebb. So we would say, and submit, that
section 118 has not been put into an evidentiary or
procedural basket. Indeed, wherever it has been
applied it has been applied in a context where its
potential substantive effect seems to have been
acknowledged.
Now, in the context of developing a new

principle, and in the context of considering the
nature of what has been decided in re Breavington,
one, we would submit, here, has to answer the

question, "What does section 118 mean?" Now, that
is not to be answered, we submit, by reference to
the United States Constitution. That is not a safe
basis upon which to determine the matter and it is
dealt with in the judgment of Mr Justice Deane, and
again, I will not refer Your Honours to those

passages. They are there for Your Honours to read.
But we submit they are clearly appropriate. One
significant matter is that our Constitution uses
the words "laws" as well as "public Acts". If I
might just make the point, because we would submit
it is a very relevant point and cannot be ignored:
Full faith and credit shall be given,

throughout the Commonwealth, to the laws, the
public Acts and records, and the judicial
proceedings of every State.

Once you add that word "laws", effect has to be given to it. What does it mean? It is not in the
United States provision. And although Your Honour the Chief Justice has said, "Well, why let the facsimile govern?", or be different, rather, from the original, we would submit rather strongly that it is not a facsimile. That word "laws" is a very
powerful word, because it encompasses the very

thing that we are considering here. It is
encompassing the common law and statute law, we
say, of South Australia or of any State.

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There is a lot to be said for the view that

Chapter V of the Constitution was intended to resolve issues of inconsistency. That is to say
that - it is headed "The States", and that it was
designed to describe the situations in which State
law was going to continue to operate.
It was also designed to resolve the obvious

question where you have concurrent power, "What if
the law of the Commonwealth and the States
conflict?" and where you have a federation where
subject-matter is so defined because it relates to
acts, matters and things that have a relevance to a
particular State, if that is a fair description of
it, then obviously there are going to be situations
where State laws will exist side-by-side which
purport to govern the same subject-matters.
Now, this to some extent was recognized in the

United States and they gave jurisdiction, I think, to the Supreme Court to deal with disputes between
parties where two States, for instance, had granted title to the same land to different people and that

seems to have been the background provision to
section 76(iv) of the Constitution:
The Parliament may make laws conferring
original jurisdiction on the High Court in any
matter .....
(iv) Relating to the same subject-matter
claimed under the laws of different States.

That is a curious provision perhaps but it rather
indicates that the founding fathers thought that
such situations could arise and when one examines
the situation, particularly against the background
perhaps of the Australia Act as well, the
possibility of there being conflicting State laws
which operate upon the same subject-matter, the

possibility increases but the possibility already

existed. Now, how is that going to be resolved?
Did the founding fathers think, "Oh well, we will
just leave it to this august body, the High Court,
to resolve that issue?" Is that section 76(iv)?
And if so, by what test?
Now, we submit that within section 118 lies

the test. It has to be developed. In one sense it national Constitution. It should not be confined
is one of the exciting provisions in the
by notions of the United States law because those
are so different. There, the legal systems of,
say, Louisiana State and other States are basically
different, they are different systems of law, but
we have States with the same system of law and

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therefore we have the chance of looking at a
provision which, in the context of the possibility
of conflict, says:
Full faith and credit shall be given ..... to the laws ..... of every State.

What does it mean, "Full faith and credit"? Now,
if there is no conflict, we would submit, there is

no difficulty. You simply apply the laws but you
give them:
Full faith and credit ..... throughout the
Commonwealth -

wherever there are judicial proceedings, for
instance, give them full faith and credit where
they are relevant.
But where they are in conflict, obviously, an

issue arises: how is the conflict going to be
resolved? In some cases, that is going to be
resolved by perhaps a territorial consideration.
It may require the development of a test by this
Court, but because the path is uncertain, under
section 118, as to where it may end, that is no
reason for not proceeding along the path if it is seen as a provision which has substantive effect,
and if it clearly has it here, then we would submit
that that is a reason for grasping section 118 and
applying it.
Maybe some day, some place and some other case there is going to be a more testing consideration
to be undertaken, because it may involve a conflict
between a law of Western Australia and, say, a law
of South Australia relating to some fishing boat,
or the like, or some property, and the question
might arise because they conflict, "Well, which is going to apply?" and the Court is going to have to
lay down a test. There is no need to lay it down

now, but our submission is that section 118 is such
a provision that there really is no reason for
giving it a limited operation and the Court has not
to date done so, and so it has to proceed case by

case. But one thing is clear, we would submit,
that you cannot give full operation and effect -
full faith and credit, rather, to a law of a State
and unless you allow it to have its effect subject
to conflicts from other State laws, unless you let
it have its effect according to its terms, and if
under the law of South Australia the consequence is
that a particular party has no right of action,
then the result should be that full faith and
credit should be given to the effect of that South
Australian law by finding, eg in this case in New
South Wales, that that person has no right of

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action, that is, no entitlement to damages, that is
full faith and credit.
Now, could I take Your Honours to page 80 of

Breavington merely to indicate that Your Honour the
Chief Justice had referred to Anderson's case,
referred to Harris's case and at page 82
Your Honour referred to Alaska Packers:
The reason for the retreat was forcefully
stated by Stone J. in Alaska Packers:
"A rigid and literal enforcement of the

full faith and credit clause, without regard
to the statute of the forum, would lead to the
absurd result that, wherever the conflict
arises, the statute of each state must be
enforced in the courts of the other, but
cannot be in its own. Unless by force of that
clause a greater effect is thus to be given to
a state statute abroad than the clause permits
it to have at home, it is unavoidable that
this Court determine for itself the extent to which the statute of one state may qualify or deny rights asserted under the statute of
another."
The underlying implication in these

remarks is that a rigid and literal
enforcement of the full faith and credit
clause would result in the application of the
lex loci delicti. Although the principles
which have evolved in the United States treat
the lex loci delicti as the basic law, they allow for its displacement. As Lord Hodson
noted in Chaplin v Boys, these principles
favour the lex fori because a court will tend
rules a wider application than it will give to those of other States. That seems to have
to favour its own policies over those of other

been the American experience. However, for
present purposes the point to be made is that
the relevant American law is not dictated by

the provisions of the Constitution. The
Supreme Court has interpreted the Constitution
so that it does not stand in the way of
judicial development of appropriate conflicts
of law principles.
Apart from the implication referred to in the preceding paragraph, the interpretation
given to the full faith and credit clause does

not support the respondents' argument. Why
then should we give to the facsimile an
interpretation denied to the original? I
would give an affirmative answer if it clearly

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appeared that the full faith and credit clause
had been understood at the close of the last
century as the solvent of interstate
conflicts. But this was not the case. The
same answer might be given if Australian
history and understanding pointed in that

direction. But the Convention Debates and the
textbooks are silent upon the point.
The presence of the word "laws" ins. 118

distinguishes the section from its North

American ancestor. No doubt that word was
inserted to guard against the possibility that
the reference to "public Acts" might leave a category of laws in force in a State outside

the reach of the section. The presence of the
word does not justify giving the section the of a solution to inter-jurisdictional
far-reaching interpretation proposed by the
respondents. If any provision in the
conflicts of law problems within Australia, it
is perhaps s.Sl(xxv).

MASON CJ: Well that is the general meaning of the word, is

it not.

MR ELLICOTT:

Your Honour, I was just coming to it, stepping

carefully towards it and towards this proposition
that there is not, we would -

MASON CJ:

I have a quite open mind on the question.

MR ELLICOTT: Yes, Your Honour. Well I am now about to try

and open it a little wider, Your Honour. There is
at least, in that word, the chink which rather
suggests that maybe section 118 could operate, but
maybe this is not the time to say so or this is not
the case in which to say it. It is not an outright
rejection, we would submit, of section 118, but if

it is then we would submit, with great respect,
that it should not be followed, because first of
all, and I have already made the point, the
presence of the word "laws" is of great
significance; secondly, the use of the debates and
the lack of any suggestion in the debates that this
was intended to operate to define choice of law
principles, cannot be allowed, we would submit, to
determine the meaning of the words, because the
words have been used and there they are and what do

they mean. They were used, it may be that they
have to be interpreted, in a sense, at the time of the Constitution, but nevertheless, they were used
and there is at least as much reason for seeing
that section as a solution to problems of
interstate conflicts of laws as there is for giving
it some narrow view.

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But our point is that once you set off on the substantive path of saying that it does apply
beyond the evidentiary point, it cannot logically

stop. How is one going to characterize it, once
you say it is not evidentiary, where does it stop
and one should not allow, we would say, the fear of
how far it might extend in the future to prevent
one from taking the first step or the second step,
maybe the third, depending on how you look at the
cases that have preceded it, along a path and a
journey of perhaps a thousand miles. It is a
provision which contains within it the possibility
of resolution of conflict and it fits in, we would
say, logically to the pattern of our Constitution
and is supported by the arguments which
Mr Justice Deane and Justices Wilson and Gaudron
have emphasized in their judgments.
Now it is not to the point in this case for us

to distinguish between the views which
Justices Wilson and Gaudron had on the one hand and
those which Mr Justice Deane had on the other.
Indeed, I would be so bold as to suggest that in

the end they are saying the same thing. The
analysis is different, but in the end they are they were also saying, "Well it will be necessary
saying the same thing. Certainly in relation to
to resolve these issues in other matters later on,
and let us resolve this case now", and it resolves
itself quite easily because it leads to full faith and credit being given in the context of that case
to the law of the Northern Territory limiting the

right to claim damages. And likewise here it would
have the same effect.
So we would rather suggest that the statement,

"Why then should we give to the facsimile an
interpretation denied to the original?", is more of
an advocate statement. It is not precise enough to
determine the significance of section 118 in the

Constitution, because it is not a facsimile.
Nobody can make a facsimile that has got the word
of - - -

MASON CJ:	But that is clearly recognized in the next paragraph.
MR ELLICOTT:	I appreciate that, Your Honour, but if the

intention in that sentence was to say that it was a
facsimile of the original then it clearly was
not -

MASON CJ:	The next paragraph denies it.
MR ELLICOTT:	Your Honour, I have been too literal then, and

I accept that - - -

Miller(2)

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MASON CJ:

It is about the only occasion on which you have

during the course of the argument so far.

MR ELLICOTT: Well, Your Honour, at least I have shown that

I can make a concession.

MASON CJ: Admittedly that is a proper development.

MR ELLICOTT: So, it is not the comment of an advocate, it

is a comment that was subsequently qualified by
Your Honour, and I accept that, but to say that and
to make that concession is supportive of our
argument, we would say. That is to say, it still
begs the question, "What does the insertion of the
word 'laws' mean?".
Now, at page 98 of Breavington, about a third

of the way down, Justices Wilson and Gaudron wrote:
Unlikes. 109 of the Constitution, s. 118

provides no formula for the ascertainment of

the one applicable body of law. Nor is it
necessary in the present case to identify by
implication from other constitutional
provisions ..... the criteria by which the laws
of one State rather than another will be
selected as supplying the law by which the
legal consequence of a set of facts occurring
in a State is to be adjudicated. It is
sufficient in the present case to note that
effect is given to the requirement flowing
from s. 118 that there should only be one body
of State law determining the legal
consequences attaching to a set of facts
occurring in a State only by the adoption of
an inflexible rule that questions of liability
in tort be determined by the substantive law
that would be applied if the matter were
adjudicated in a court exercising the judicial
power of the State in which the events
occurred.

Now, we would submit that that last sentence is the
same end at which Your Honour the Chief Justice
arrived by another route, and it is only endorsing
the basic principle that applies, but it also
indicates the sense in which we are submitting that
section 118 has force under our Constitution.
It is not just a broad declaration. It cannot

be said to be something which is merely an
assertion by the founding fathers in the
Constitution. It is intended to have effect of its own force. It does not need, in other words, laws under section 51 to enforce it. It operates as
section 92 does. It operates as a provision of the
Constitution. It does not, therefore - and this is

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why I cavilled at the word "perhaps" in the
Chief Justice's judgment - because that word
"perhaps" rather suggests that section 118 may well
have effect and not need section 51, although it
would be desirable in a given case, in order to
clarify how it would operate, to have a statute
which made it clearer to the courts how they should
achieve the object of section 118.
Now, that analysis goes on from there to the top of page 100. Again Mr Justice Deane at 130:
The directive of section 118 must, of

course, be read within its constitutional
context. That means that it must be read as

applying only to laws and Acts to the extent
that they are not invalid either on the ground
that they purport to operate beyond State
legislative competence or on the ground that
they are inconsistent with a valid

Commonwealth law. The question arises whether
there is any constitutional or other
consideration which requires that the
directive of section 118 be further read down
so that it should be construed as involving no
more than an obligation to acknowledge, as a
matter of evidence, the existence of State
laws and Acts.

And His Honour goes on to deal with that and we would submit that that is a convincing answer to

that proposition. Your Honours, I notice it is ten
to one.

MASON CJ: Yes, we will adjourn until 2.15, Mr Ellicott.

AT 12.50 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.16 PM:

MASON CJ: Yes, Mr Ellicott.

MR ELLICOTT:

Your Honours, could I take Your Honours to the

passage in the judgment of Mr Justice Deane in
Breavington at page 135, starting at the foot of
page 134:
The effect of the Constitution was to

establish a comprehensive and truly unitary
system of substantive law.

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Your Honours, in reading this passage, I want to
submit that it is basic, acceptable constitutional
principle. His Honour will understand me when I
say there is nothing new in it, but it puts it
together in a way that - - -

MASON CJ: There is no need to embroider it, is there? I

mean, if it is as basic as you say it is, it will
speak for itself.

MR ELLICOTT: It will, Your Honour, but our submission is

that if there is any resistance to embrace it, what
should be borne in mind in not embracing it is that
it is basic constitutional theory; there is nothing
that is strange or new in the idea, for instance,
that we have a comprehensive, truly unitary system
of substantive law, as it is expressed in this

passage. We do have it and it has been
acknowledged for a long time. That is all I am
saying.

MASON CJ:	I do not really know that what His Honour says gains a great deal from your convocation of it, but
anyhow, read it.
MR ELLICOTT:	I am sorry, Your Honour, I did not - - -:
The national law applies throughout the territory of the nation. It encompasses: the Constitution itself; the constitutions of the
States to the extent to which they are
continued under the Constitution; the laws
made by, and under the authority of, the
Parliament; the laws made by, and under the
authority of, the Parliaments of the States;
and the common law.

That is correct, with respect.
Within that unitary system of national law

private international law principles to there is no room for the direct application of resolve competition or inconsistency between a
law of the Commonwealth and a law of a State
or between the laws of different States.

And that has to be, with respect, correct and
consistent with the findings of this Court since
1903.
The Constitution itself resolves such
competition or inconsistency: by
section 109 -

and there is a reference to that -

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by the confinement of the operation of State
laws by reference to territorial (or
predominant territorial) nexus under the
constitutional structure and the mandatory
direction of section 118.

Now, that will be said to be new. Now, just
stopping there, can I draw Your Honours attention
to something that this Court said in Port
MacDonnell Professional Fishermen's v South
Australia, just a short passage, I will just read
it just to remind Your Honours what was said in the
joint judgment. It is 168 CLR 374, its under the
heading:
No inconsistency with the law of another State
A problem of greater difficulty would have arisen if the fishery defined by the
arrangement had a real connexion with two
States, each of which enacted a law for the

management of the fishery. The Constitution
contains no express paramountcy provision
similar to section 109 by reference to which
conflicts between competing laws of different
States are to be resolved. If the second
arrangement had been construed as extending to
waters on the Victorian side of the line of
equidistance, there would obviously have been
grounds for arguing that the Victorian nexus
with activities in these waters was as strong
as or stronger than the South Australian
nexus. As has been seen, however, the second
arrangement does not extend into such waters.
Where, as here, _there is no suggestion of the
direct operation of the law of one State in
the territory of another, the problem of
conflicting State laws arises only if there be
laws of two or more States which, by their
terms or in their operation, affect the same
persons, transactions or relationships. In

the present case, there is no competing law of
a State other than South Australia purporting
to apply to or in relation to the fishery to
which the second arrangement applies. That
being so, there is no real question of any
relevant inconsistency between the law of
South Australia and the law of another State.

One only has to add to that the Australia Act, the
acknowledged right of the States to legislate
extraterritorially, to show that there is a problem
emerging which is, at least, latent in our law of
the potential inconsistency between the laws of two
States or two or more States and that has to be
confronted and is it to be said that this issue is
to be just left to the emergence of some principle

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or is it to be found in a provision such as
section 118.
And when one sees in the section itself an

attempt to express something about State laws, does

question of inconsistency in a chapter of the

it not, we would submit, provide the answer to the the States as a whole, which deals with
inconsistency between Commonwealth and State law
under section 109 and where, we would submit, as
His Honour Mr Justice Deane was saying in these
passages, section 118 is an answer to the question,
"How do you resolve conflicts between State laws?"

BRENNAN J: Could you display how a conflict problem arises

in the context of private international law? Where
is the conflict?

MR ELLICOTT: Well, Your Honour, the conflict would emerge

between the laws of different States because they
both attempted to deal with the same subject-matter
in a conflicting way?

BRENNAN J:

Do they?

MR ELLICOTT: Well, they would, and that is - - -

BRENNAN J:

Under what rule of conflict of laws would they deal with the same subject-matter in a different

way?

MR ELLICOTT:

Your Honours, if they were dealing with the question, for instance, of fisheries, as was

contemplated by that passage I just read from Port

MacDonnell, that would be two State laws dealing

with the same subject-matter.

The Court said,

"Well, it didn't arise there", but it could arise.

BRENNAN J:

How does it arise in the present context?

MR ELLICOTT:

It does not arise in the present context

because all one is concerned about, we say, is
giving full faith and credit to the laws of
South Australia. There is no conflict with the
laws of New South Wales because if you identify
what law you are applying, that is to say, the law
that bears on the entitlement to damages of the
plaintiff in the place of the wrong, section 118
will require the application of all those relevant
laws to that, that is relevant laws of
South Australia, which will not conflict obviously.
The conflict only arises because the notion

has emerged over the years that somehow, by reason
of the relationship between States, that is -
internationally I am talking about now - there is a

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public policy in the state of the forum in having

this law applied. But the relevance of the
statements that I am referring to in His Honour's
judgment and, indeed, it is implicit in what the
Chief Justice said in the passages I have read,
that in the Australian context those matters are
irrelevant, they should be put aside. That is one matter. The other matter is this, that courts are not there to create, by the fact that they exercise
jurisdiction, or effect the rights of the parties, the courts are there simply to have the authority to try cases.
Even in Anderson's case - in a passage that

Mr Justice Kitto used in the sense against the proposition that I am putting in Anderson's case,
he just said this - this is at 114 CLR, at page 30,
about two-thirds of the way down:
To confer federal jurisdiction in a class of matters upon a State court is therefore not,
if no more be added, to change the law which
the court is to enforce in adjudicating upon
such matters; it is merely to provide a
different basis of authority to enforce the
same law.

Now, what has happened in the past is that rules of private international law when applied to
the Australian situation, where we are submitting
we have a unitary system of law, it has had the
effect of allowing the exercise of federal
jurisdiction to actually change the law that
governs the rights of the parties. We say that
that just ought not to be accepted in a unitary
system, and that because courts only exercise the
authority to give judgment in a matter, that
therefore what they do and where they do it should
not bear down on the rights of the parties.

action is heard in Australia, either by this Court Why should it matter where a particular
or by the Federal Court, for instance? What should
it matter? But it does matter under the existing
jurisprudence. It matters because for some reason
it is believed that the law, for instance, in
relation to limitations, is a law that does not
affect the rights of the parties, but somehow is a
procedural provision that has to be given effect to
in the jurisdiction where the court is sitting;
and it has led to the ridiculous result that in a
case such as Commonwealth v Dixon where a cause
starts in Victoria in this Court in Victoria, is
remitted to New South Wales and the Court in
Commonwealth v Dixon in New South Wales, in effect,
has held that although the cause of action arose 19
years before the action is still available. For

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what reason? Because in the law in Victoria where
the action started in the High Court it said, based
on the reasoning in these earlier cases, that the
law of Victoria is only referable to actions
commenced in the Supreme Court of Victoria, and
therefore it cannot apply to an action started in
the High Court.

MASON CJ:	What is the reference to Commonwealth v Dixon?
MR ELLICOTT: It is 13 NSWLR, Your Honour.	I was going to

come to it later but I am afraid I have been taken
off my track but the track is fairly relevant to
get on to. But when that case went to New South
Wales, likewise it was held that you could not
apply the law of New South Wales because it only
applied to actions commenced in the Supreme Court of New South Wales. So, it was held there was no limitation period. So, the consequence is,
apparently, that people who go into federal
jurisdiction in that way succeed in having an
action without any restriction whatsoever, even
though, if they had gone into the State court where
the matter arose they would have been subject to a

limitation. Now, there must be something wrong
with that.
Now, may I remind Your Honours that

Commonwealth v Dixon came before the Court for
special leave and Your Honours refused special
leave and told them to go away and fight it out and
then come back, and I should mention that to
Your Honours, I do not think they have come back.
I am not sure what has happened to it but that was the effect of that case. That is in 13 NSWLR 601.
I think I have done it justice, in a factual sense,
by saying that it does lead to a ridiculous result.

McHUGH J:

But you can get those results from evidentiary situations. Take a federal prosecution. There are

certain rules in certain States which would

preclude the admissibility of a confession, so

somebody may be found guilty if he is prosecuted in

New South Wales but not in Victoria.

MR ELLICOTT: Well, there is the case of Radway v Reg, which

was dealt with by this Court. It is in the same
volume as Breavington v Godleman, and that dealt
with that particular issue, and I will not take that is, in itself, no reason for drawing the line
of substantive law any further from procedural law
than one needs. In other words - - -

McHUGH J:

What about the statute of frauds?

Where do you

put that? The same as a limitation?

Miller(2)	55	9/4/91
MR ELLICOTT:	The same as a limitation period.	I am

conscious of the fact that, needless to say, in some cases it has been said that the statute of
frauds is a procedural statute, but when
Mr Justice Williams, I think it was, came to deal
with it in Maxwell v Murphy, I think he gives it a
different perspective. Why, because it is readily
seen that limitation periods and the statute of frauds, in its various expressions, does indeed lead to the situation that people do not have
rights of action, do not have an entitlement to
recover, and therefore they should not be seen
simply as procedural because, in one sense they can
be regarded as procedural. In many contexts they
are to be seen as substantive.

Now, the passage that I have taken

Your Honours to, from Mr Justice Deane's judgment, had taken me to the point where His Honour was
embracing section 118, and I would submit that that
is an answer to the obvious question, "Where does
one find the solution to the problem where two
States or three States or more are legislating
about the same subject matter?"
And His Honour goes on:
Under the constitutional structure, State laws
are essentially territorial in the sense that they apply to regulate ..... conduct ..... To the
extent of that valid territorial application,
however, State laws are themselves part of the
national law and, as such, directly binding
upon all Australian courts, both Commonwealth
and State. In so far as substantive law is
concerned, the applicable rules of the
national law will vary in their application to
events and things in the territory of the
different States for the reason that the
national law encompasses State laws -

And this is the concept of a national system. It
has to have a resolution of conflict, but not
according to the rules of private international law
which are, after all, the product of another
system, at another time, in relation to a different
set of circumstances.
Basic to the jurisprudence of this

country is the notion that the courts apply,
as distinct from make, the law -

Now that is consistent with what Mr Justice Kitto
said in Anderson's case. It is saying the same
thing.

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that is to say, that the law operates
contemporaneously to regulate lawfulness and
consequences of conduct independently of
judicial proceedings. In that context, it
would be to substitute the bedlam of a Babel
for an ordered system of law to recognize the
right of each of the country's court systems,
notwithstanding the place of this Court in all
of them, to speak at the same time but in
conflicting terms about the lawfulness,
consequences or attributes of a particular act or thing in a particular place at a particular
time.

That is exactly what Dixon's case does, in our submission.
It is, however, necessary to draw a
distinction between substantive laws on the
one hand and procedural or adjectival laws on
the other -

Now this is where we get into the question that
Your Honour Mr Justice McHugh raised -
in so far as the identification of their

territorial operation is concerned. A
substantive law will, if it defines the
lawfulness or consequences of particular acts
or circumstances, operate within the territory

where those acts or circumstances occur. On
the other hand, a procedural or adjectival law
directed to regulating court proceedings will
have its territorial operation in the
territory in which those court proceedings
take place.

Now, obviously it may be a question for this Court
at some time to decide whether laws as to
confessions should or should not be seen as
procedural or substantive and whether they should

picked up as substantive and to answer the problem.

be picked up, but this approach allows them to be

Consequently, the courts of a State will neither ignore the prima facie territorial
limitation of the operation of State laws
which is implicit in the Constitution nor
infringe the injunction of section 118 of the
Constitution if they apply the procedural or
adjectival law of their own State in dealing
with a claim arising out of conduct or
circumstances occurring within the territory
of another State.
Now we say that that is, with respect, a very
narrow definition of what is adjectival or

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procedural law. It is not intended to encompass,
for instance, a limitation provision and that is
how it ought to be interpreted for the purposes of
the case now before the Court. His Honour goes on:
There are several consequences which flow

from the conclusion that, under the
Constitution, the reconciliation of competing

laws of different States is ordinarily to be
found in the prima facie
paramount ..... competence of each State
Parliament to make laws for its territory and in the obligation to accord full faith and
credit to the laws and Acts of other States
made within their legislative competence.

And it is important to note that one is, say, in
one State and one is asking the question, "What
does this State do to give full faith and credit to
the laws of other States?"
The first flows from the fact that a legal
system can operate by silence in the sense
that the criterion of the lawfulness of
conduct will commonly be that there is nothing
in either the common law or statute law which renders it wrongful. That being so, a law of
one State which purports to attach legal
liability for conduct and consequences which
are wholly within the territory of another
State will, in the absence of some relevant
overriding territorial nexus, infringe the
injunction of section 118 of the Constitution
regardless of whether the law of the other
State expressly deals with that conduct -

Why? Because it is not giving full faith and
credit to the laws of the other State. That full
faith and credit being based on the territorial
nexus.

in a different fashion or simply treats that
conduct as not giving rise to legal liability
by saying nothing about it. That is not to
say that an act or area of activity which
involves aspects connected with different
States must be assigned exclusively to the
area of legislative competence of either one

of them. Thus, for example, an activity
involving aspects connected with different
States may well be subject to different (but
consistent) laws, such as taxing laws,
operating by reference to those different

aspects. The second consequence is that the
courts of one State cannot refuse to recognize
or apply the substantive laws of a second
State in relation to an action arising in the

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territory of the second State on the ground
that the law of the second State is contrary
to public policy considerations which are
recognized by the law of the forum State.

That is the case that I have referred to, the
Pastoral case.
The reason why that is so is that the
Constitution enacts a superior policy of the
national law, namely, that, as between the
States and in the absence of some overriding
territorial nexus, legislative competence with
respect to what happens within the territory
of a particular State lies with that State.
In other words, this analysis of section 118

does no offence to the rights and powers of the
legislatures of the different States.
As regards that territory, it is the public
policy of that State which controls the State

component of the national law. The third
consequence which should be mentioned is that
it is inevitable that there will be difficulty
in identifying the applicable law in some
cases arising from circumstances in (or
connected with) the territory of more than one
State. While the private international law rules of the common law will not be directly
applicable to resolve such difficulty, they
will be of assistance in identifying what is,
for relevant purposes, the predominant
territorial nexus in that they will provide "a
relevant and enlightening body of experience
and authority to provide analogies".

In other words, His Honour is not rejecting the
rules as providing assistance towards an answer but
they do not give the answer but they do give it

assistance. But what is important is that in the

resolution of any conflict there, which in one
sense could be regarded as a private international
law conflict within a national jurisdiction, that
the tension that is in existence between the
various laws is resolved by asking the question,
"How does one give full faith and credit to the
laws of this State or that State when they do come
within a conflict or an abrasive situation and if
they do not overlap in a way that gives them

consistency, for instance, taxation laws?". The
answer is, "Yes, you can look at the rules of
international law. That is a body of experience".
But in the end the solution is going to be found in the adoption of principles which this
Court would, over time, embrace. For instance, it

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might be the State with which the subject-matter
has the most real and substantial connection, it
may be that, I am only speculating. But one does
not avoid the operation of section 118 because of
the fear that down the track somewhere there may be
some difficult questions which at present are not
understood, or not fully comprehended. That is
because, we submit, section 118 is so pregnant with
the possibility of resolving this particular issue
where State laws have to be given their full
competence where they are in conflict, that it is
the natural resort in which to find the resolution
to the conflict because if one asks the question,
"How else does one resolve it?", how else would one
resolve it by saying, "Well, look, we have got to
do our best to give full operation and effect to
these laws within our national system". It is only
repeating section 118. That would be the natural
answer to the question.
We have to find a principle which will give

each of them their proper operation and effect but
the principle would have to give way, to some
extent, to the possibility that one or other of the
States has gone beyond the bounds or gone beyond
some bound beyond which it is not entitled to full
faith and credit.

BRENNAN J:

What are we speaking about there, legislative

power?

MR ELLICOTT:

We are talking about laws which cover the same

subject-matter, as in that case of Port Douglas
that I referred to.

BRENNAN J:

What are the bounds beyond which the State might

go? What is the notion that you are speaking
about?

MR ELLICOTT: Well, if you do have two State laws which can

operate on what fishing vessels may do, and those
are in conflict, if you do, and obviously the

Australia Act enables one to conceive those things

happening, then what does one do about that? How
does one resolve it if they are in conflict? That

is the sort of problem which could emerge. I
suppose, in a sense, if one thinks of what a -
supposing one State says that its public servants throughout the Commonwealth will not be liable to
driving offences for speeding, and there are such
provisions in various States, now it may be that
the territorial nexus is there, and it may be that
under the statute, the Australia Act, one could say
that the law is valid in the sense that it has a
nexus and it can operate extraterritorially.

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But even the Australia Act is subject to the

Constitution. What part of the Constitution?
Section 118, because that conflict has to be

resolved. You cannot have public servants from
Western Australia driving at 80 miles an hour down
the main street of Adelaide - it cannot happen. And obviously the resolution of that one is not
going to be very difficult, but you may have two
perfectly valid State laws on the face of them,
which are obviously in conflict and the resolution
is needed, and section 118 is talking about that.
It is very easy to allow section 118 to be just
words - pious hope, but - - -

McHUGH J: Well how does section 51(xxv) fit into your

scheme?

MR ELLICOTT: It fits in because, as I said earlier, it

enables the legislature, the Parliament, within the context of that, to lay down provisions which would

assist the resolution of that question. Now, if I
can take Your Honours to - what it uses in
section Sl(xxv) are the words:
The recognition throughout the Commonwealth of the laws, the public Acts and records, and the
judicial proceedings of the States.

Now it might be thought that that is not other than
in aid of section 118, that is to say that it
provides a basis upon which, for instance, laws
could be made which would enable the recognition of
State laws in some way, by proof or otherwise. It
may not be a very large power, actually, but that

only assists our argument, because what we are
saying is that the words, "full faith and credit"
speak in the Constitution, just as section 92
speaks.

McHUGH J: But if the Parliament can make laws giving

recognition to it, it implies that there is no

anterior recognition.

MR ELLICOTT:

No, well, it depends what the word - the word

"recognition", from recollection, is not found in
section 118. The words there are "full faith and
credit", and one view of placitum (xxv) would be
that it is limited to some sort of procedural
provision. But on the other hand, if it was recognition, it would have to be recognition
consistent with full faith and credit. It could
not extend in a way that was offensive to full

faith and credit. So that, what His Honour the
Chief Justice said when he used that word
"perhaps" - - -

MASON CJ: "Perhaps", I think, was the operative word.

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MR ELLICOTT: Yes, Your Honour.

If any provision in the

Constitution is regarded as the source of the
solution to interjurisdictional conflicts, it is
perhaps Sl(xxv). I was going to say perhaps not, because the word ''recognition" has perhaps a more
limited meaning than would allow the solution of
interstate conflicts. So, for that reason, we
would submit that (xxv) is not in conflict, it is
in aid of section 118.
There is a passage at the foot of page 140,

the middle of the page:
The second matter is that I have also found it unnecessary to consider the precise effect of
s. 2(1) of each of the Australia Act 1986
(Cth) and the Australia Act 1986 (U.K.) that
it be "declared and enacted that the
legislative powers of the Parliament of each
State include full power to make laws for the
peace, order and good government of that State
that have extra-territorial operation". That
provision is, in each of those Acts, expressly
stated to be subject to the Constitution and,
accordingly, could have no effect upon the
territorial limitations, upon State
legislative powers and the operation of State
laws within the confines of the Commonwealth,
which are expressed or implied in the resolving conflict between the laws of
Constitution. To the extent that they
otherwise enhance the extraterritorial
competence of the State Parliaments or the
extraterritorial operation of State laws, they
underline the need to find within the
different States in a way which does not
frustrate the manifest intention of the
Constitution to establish a unitary national
system of law.

That picks up the problem in relation to the

Australia Act and deals with it, and if this Court
is going to search in the Constitution as it will
have to from time to time to resolve those
conflicts that will emerge under the Australia Act,
where is it going to find where it is going to

resort to? We would submit the obvious resort is
section 118.
Now, of course, all Your Honours did not agree

with that. Your Honour Mr Justice Brennan at
page 114, after referring to section 118 and
section 18, Your Honour said at the root of
page 114:

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Section 118 of the Constitution and s.18 of
the Recognition Act both require the giving of
"faith and credit", but s.118 "has no
application to the laws and public Acts of a
Territory" ..... It is expressed to relate to
"public acts records and judicial proceedings"
although the power under which it is enacted

refers to "laws ..... " The same concatenation

of subjects appears in s.118. The omission
from s.18 of any reference to "laws" and the
use of the lower case in "public acts" suggest
that s.18 does not relate to the statute and
other law of States and Territories.

That does indicate that Your Honour took the view
that section 118 was not really relevant in that

case. But at page 116 towards the end of the page:
It would severely qualify the mutual

legislative independence of the States to
attribute to s.118 the effect of compelling
the courts of a State to give relief in
circumstances which would give rise to no
cause of action by the laws of that State or
which may even amount to an offence against
the laws of that State. Equally it would
severely qualify the mutual legislative
independence of the States to attribute to
s.118 the effect of permitting relief to be
given in another State in respect of
circumstances occurring in a State the laws of
which deny any cause of action arising from
those circumstances or even create an offence
constituted by those circumstances. If s.118
were to have one or other of these effects,

which effect should prevail? Should the lex
fori defer to the lex loci, or vice versa? In truth the words of s.118 do not require either
of these effects to be attributed to them.
Now, Your Honours, I have already submitted

that they do, in our submission, that they require
full faith and credit to be given to the laws of
each State, and that where there is a conflict

there has to be an answer. But the resolution of
that conflict is not to be found in the laws of

private international law. The resolution of the
conflict is by giving some attribution to the
meaning of full faith and credit in the particular
circumstances.

How far does this law operate? How far does

that? But when one has the single instance, as we
have in this case, of one body of law governing the
entitlement to damages in a particular place, then
full faith and credit should be given to that law
because there is no other law that ought to be

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resorted to in justice and in fairness to determine
the rights of that particular - - -

McHUGH J: Why? Supposing the New South Wales Parliament

had not abolished the doctrine of common

employment? Why should the Supreme Court of New
South Wales then have to apply the law of South
Australia that the doctrine of common employment
has abolished?

MR ELLICOTT:	If one accepts the notion that the law of the place of the wrong or it may be some principle in relation to the law of contracts applicable to the place where the contract was entered into or the
breach or whatever it is, if that law is to govern
either the wrong or the contract then that law
should operate in any State and it should not
matter what the policy is of the State which has
jurisdiction because just as federal jurisdiction
only gives authority to decide an action and not to
create rights in parties or to destroy rights in
parties, likewise a State court which has
jurisdiction should not find it offensive to
enforce that right which was created by the law of another State even though in the State of New South
Wales the doctrine of common employment is not
acceptable.

It is not a concession to the sovereignty of

the State: it is simply, in one sense, an
acceptance of the fact that there is a judicial
system in this country which has the aspects that
it has that are so vastly different to, for

instance, the United States system. We have an
overlay of jurisdiction - of federal and State
jurisdiction - which really begs an answer because
it requires one to say, well, at least this
autotoxin expedient - how is it going to work out
in a context, for instance, where you have actions
between residents of two States? And the Supreme

Court of New South Wales has jurisdiction under
section 39, how does it work itself out? It could
have had the jurisdiction because, say, the
defendant was in New South Wales but the plaintiff
decided to start the proceeding in the High Court
and it is remitted to the State Court of New South
Wales.
Now, that should not give different answers. There is a policy question which emerges and has to
be answered rationally and justly and it cannot be
resolved by reference to what one might call the
policy rights of the State. It is not an offence
to the State, it is a recognition that under the
Constitution the jurisdiction that is conferred has
to be exercised in such a way that it does not
enable courts to create rights, it only enables

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them to decide disputes because that, again,
obviously lies at the centre of judicial power,
whether it is State power or federal judicial
power.

BRENNAN J:

The essential problem, really, is not the courts

creating or disturbing rights, is it? If the
common law applied throughout Australia there would
be no disconformity in any system of law operated
throughout this country. It is only by reason of
the intervention of legislative power that we find the disconformity and so the nature of the problem
is whether there is a limitation on legislative
power by virtue of section 118, not a question of whether the courts are creating or changing Acts. It is a question of the application of law.

MR ELLICOTT:

Your Honour, it is a question of whether State

laws will operate when they come into conflict and
how they will operate.

BRENNAN J: That is assuming that they are inconsistent or,

rather, in disconformity of the lex loci and the
lex fori.

MR ELLICOTT:

Yes.

BRENNAN J: That is not necessarily inconsistent. It

depends upon what the doctrine is that is applied.

MR ELLICOTT: Well, it is inconsistent if, once one adopts a

principle that the law of the place of the wrong
shall determine entitlement to damages, if that is
the basic principle and that is what section 118,
we would submit, would lead to because that is the
only way you can give full faith and credit to
State laws in those circumstances, once that
principle emerges, even though it is only an
expression of section 118 in a given case, that
becomes, in a sense, the law of the Constitution.

BRENNAN J: Well, there are three ways, are there not, in

which that purpose could be affected if it be a

purpose? One is to construe the laws of the State
of the forum as though they were not intended to

apply to extraterritorial torts. The second is to
say that there is a limitation inherent in State
legislative power which precludes those laws from
having effect in respect of extraterritorial torts.
The third is to say that section 118 sterilizes the
legislative power which might otherwise be

exercised to apply to extraterritorial torts. Now,
do you make any choices between those methods?

MR ELLICOTT:

Your Honour, we would submit that section 118

provides the answer because it would require the

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result that full faith and credit should be given
to the law of the place of the wrong.

BRENNAN J:

To the exclusion, you go on to say, of the law

of the forum.

MR ELLICOTT:

No, not to the exclusion of the relevant law

of the forum.

BRENNAN J: Well then, how do you distinguish between that

which is relevant and that which is not?

MR ELLICOTT:

By the proposition that full faith and credit

is picking up those laws which operate on the
circumstances which give rise to the wrong and of
the entitlement to damages, and those laws are the
laws, in this case, we would say, of South
Australia.

McHUGH J: That does not seem to be a very satisfactory

test. Supposing you have got a New South Wales
statute that says, "No action for personal injury
shall be brought after one year." Why should you
prefer the three-year period in South Australia?

MR ELLICOTT: Because that is not, on this basis, speaking

to actions based on a wrong committed in South
Australia. It is speaking, in a relevant sense, to
what should happen in relation to wrongs committed

in New South Wales. But there is nothing
inconsistent with that in this Court saying to the
Supreme Court of New South Wales, "You shall enforce the laws of South Australia in so far as
they circumscribe the rights or entitlement to
damages in relation to what happens in South

Australia." Now, that is because that is accepted,
obviously, we would submit - must be accepted as
obviously the relevant law to embrace the rights of
the parties in those circumstances, under our
notions of law. In other words, it is not foreign
to our law that the law of the place where the

wrong is committed is the law having the most real
and substantial connection with the event. It
should not be otherwise because if people are
within a jurisdiction then they should expect to be
governed by those laws and that is what His Honour
the Chief Justice pointed out in the passage I
read. It is quite different in an international
sense.
And when we come, as we will shortly, to the question of construction and the application of
rules of construction to statutes, there is a
recognition of a principle that a law should be
construed as affecting those matters which, in
accordance with ideas of private international law,

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are most relevant to the particular subject-matter
and that is developed in - - -

McHUGH J:

But you are submitting that the State could not

legislate to exclude actions arising.

MR ELLICOTT:

I am not saying that the State of New South

Wales could not legislate to say that the Supreme
Court of New South Wales shall not entertain
actions in relation to matters which arose in South
Australia subject to this, that it may indeed be implicit on one view of section 118 that it would

make that a law offensive to section 118. But I do
not have to go that far.

McHUGH J: That would be giving 118 greater scope than even

117. Section 117 guarantees residents of States the same rights when they come to another State.

MR ELLICOTT: Yes, but I do not have to go that far.

It is

not a necessary part of our argument, that is in
relation to 118 or otherwise, to say that the
Supreme Court of New South Wales could not be
subject to a law that it could not entertain
actions for personal injury from any other State.

There might be a policy reason for doing that. "We
have enough work to do as it is", they might say.
But that is a question about the rights of the
parties to invoke the jurisdiction. It is not a
question which governs the substantive rights of
the parties. Those are governed, we would say, by
the law of the lex loci delicti.
So, Your Honours, we would submit that any

tension - and that is what Your Honour
Mr Justice Brennan was referring to in that passage
I was reading at 116-117, any tension there is
indeed resolved in the course of applying
section 118 and if it is not going to be resolved
there, where is it going to be resolved? What
other provisions of the Constitution does one go to

and is the Court going to invent some principle?
That is what we are submitting.
At page 150, Mr Justice Dawson, after

referring to Merwin Pastoral said:
In that case Justices Rich and Dixon expressed
the view that section 118 may preclude the
refusal of one State to apply the law of
another State on the grounds of public policy where the law of the other State is otherwise

applicable. However, if the substantive
effect of that section is more limited than
expected or hoped for by some, it ought not to
be stretched beyond its capacity in order to

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achieve an end thought upon extrinsic grounds
to be desirable.
Now that sentence does involve some notion of

what its capacity is, to say whether it has been
extended beyond its capacity and there is not in
existence any statement, in any court, relevant to
the question of what the capacity or extent of
section 118 is and that sentence, we would submit
with respect, is really begging the question.
There is a sense of trepidation about that
sentence, that if we let this tiger out it will go
so far that it may get out of control. I use that
in an advocate sense, but it does - section 118 has
got an element to it of uncertainty, one has to say
that, but the logic of it is that once it becomes
recognized that it is substantive and the courts
have, then its limits have to be defined before
Your Honours can go on and reject it and we would submit that Your Honours should embrace it and that
this case brings it squarely up for decision,
because this is a case where a choice has to be
made in relation to State law and not, as it was in
Breavington, in relation to territory law.
Now, Your Honours may be glad to know that is

all I wanted to say about section 118. Could I go
on to paragraph 16 of our submissions. Perhaps I should not overlook paragraph 15, indeed I should

not overlook it. The defendant submits that in any
event the proper application to the facts of this
case of the second rule in Phillips v Eyre, even as
modified by Lord Wilberforce's "flexible
exception", would require a finding that the
plaintiff's claim in negligence was not actionable
in the lex loci delicti because it was, at the
commencement of these proceedings, out of time
thereunder and that as a result proceedings could
not then be brought in New South Wales.
And the relevant time to ask the question,

even under the doctrine of Phillips v Eyre as

expounded by Your Honours Justices Brennan, Dawson
and Toohey is, we would say, immediately before the
commencement of proceedings, is there a right to
proceed in the other place under the second rule?
It is not just a question of whether there is some
cause of action. That must have gone out with
Machado v Fontes, that idea; that broad notion of
whether it was offensive or not offensive to the
law of the lex loci delicti. That must have gone
out the window with the rejection of Machado v

Fontes. And what Your Honours have done in
Breavington really, in embracing Phillips v Eyre
and the second proposition, we would submit, is to
really extend it in such a way that it goes beyond Anderson's case and it allows the law of the place

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of the wrong to govern the situation, because if
you do not satisfy the test in the sense that the
law of the place of the wrong would make this
particular act actionable in the sense of give the
plaintiff an entitlement to damages, then it does
not matter what the first part of the law does, the
first condition in Phillips v Eyre does, it does
not matter what the answer to that is, the second
would rule it out.
So it becomes, in that sense, the law of the lex loci delicti, becomes the controlling law. It
does not matter that in Koop v Bebb and Anderson's
case the Court may have said that it is the
substantive law of the forum which determines the
matter, because it cannot logically be so, so we
submit that Your Honours in Breavington have really
passed beyond Phillips v Eyre in any event and, in
doing so, we are able to submit and do submit that
if Your Honours are minded to stay in that
position, contrary to our other submissions, that
Your Honours will, at the same time, say of the
situation here that, according to the law of the
place of the wrong, there was no entitlement to
damages immediately prior to the commencement of
proceedings in New South Wales and that nothing
that can happen, by commencing proceedings in New
South Wales, can give the plaintiff a right it did
not previously have and the only way of doing that,
of course, is to go back to, we would say, the bad
old days of Anderson and Koop v Bebb, and perhaps
some English conception of the Phillips v Eyre
rules.
What one would not do here, we would submit on

the facts, as His Honour the Chief Justice pointed
out in Breavington in that passage I read - one
certainly would not treat this as a flexible
exception case. There is nothing on the facts that
would suggest that South Australia does not have a
substantial connection with this tort. It

obviously does. There is no basis upon which, even
if it operated, the flexible exception rule could
be applied.
So we would submit that whichever path one

takes, although it is in the descending order I
have to concede, one comes to the same result.
In paragraph 16 we get on to what is an

obviously important question, and that is the
question of what is the nature of the limitation

law in these circumstances. We first of all refer
to section 82 and we say it is the applicable
provision. It is a special provision. It deals
with a worker and the worker's entitlement to

damages. It is an entitlement which he only has

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under that statute if he commences an action within

three years. The entitlement to damages is
coterminous with the three year period.
One has to argue this against a background

which has already been put to me by
Mr Justice McHugh, the idea that somehow you can
dissect the right and the remedy, and I have said

something in relation to that already. But looking
at this matter, if you are going to get into that
area, we say that section 82(2) is the provision to
go to and that it does, in effect, pick up the
common law action and delimit it, and deals with it
in a special way and in a sense it so qualifies it
that it makes the right of action in substance a
statutory action.
That type of issue was dealt with in Byrnes v

Groote Eylandt, 93 ALR 131, and I do not know
whether Your Honours have that. It is also in

19 NSWLR 13. If Your Honours go to page 140 which
is in the judgment of the President at the foot of
the page, Your Honours will find the relevant
provision.
The applicable provisions of the Workers Compensation Act 1981 read: .....
"(l) Except as provided by this Ordinance, a
workman shall not be entitled in respect of
personal injury (by accident) arising out of
or in the course of his employment to receive
compensation or any payment by way of
compensation from his employer both
independently of and also under this
Ordinance.

Now we say that, in substance, that is what
section 82(2) is saying.
"(3) Subject to sub-section 3A, where personal

which appear to create a legal liability in injury is caused to a workman in circumstances his employer to pay damages in respect thereof
and the workman has received
compensation ..... the workman shall be entitled
to take proceedings against his employer to
recover damages.
"(3A) A workman shall not be entitled to take
proceedings under sub-section 3 unless he
commences those proceedings:
(a) Within 3 years after the date upon which
he received payment, or the first payment, of
compensation under this Ordinance.

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Now, it was said that that was a matter of
substance and not procedure and that therefore, and
both the President and Mr Justice Hope and,
somewhat reluctantly, Mr Justice Mahoney agreed
that that prevented the enforcement of the right in
New South Wales, and this Court refused special leave in the matter.
Now, His Honour the President, at page 133,

gets into the policy areas that Your Honours in a
sense embraced, and a relevant passage is at the
foot of 133, line 41 through to 134 down to
line 39, where His Honour embraces a statement by
Your Honour the Chief Justice, but it is fundamentally saying the same thing and he does, in
fact, at the foot of 133 say:
As is obvious, in accident cases insurance
provisions are made, premiums calculated,
reserves allocated and reinsurance arranged
upon assumptions derived, in part, from the

operation of limitation statutes. The notion
that such provisions could so readily be
overcome by the simple expedient of suing in
another jurisdiction of Australia seems, on
its face, surprising, and indeed unattractive.

Well that adds to the thoughts that were expressed
in Breavington, but otherwise I think it is
fundamentally the same notion. Page 135 under the
heading:

Applicable law within Australia -

at line 35 -
Because of the differences in the reasoning of the justices, it is not easy to
derive the holding in Breavington which is
binding on this, as on other Australian
courts. But difficulty in this regard does

not provide an exemption from the obligation
to find the rule. At least this much is clear
from Breavington. All of the justices
rejected the so-called "vested rights" theory
as a basis for the law of the place of the
tort. All of them demonstrated their concern
that the common law rule within the Australian
Federation, for the choice of law applicable
to such cases, should acknowledge the primacy
of the law of the place of the wrong and
discourage "forum shopping" which could
otherwise occur if, within the Federation,
rules devised by private international law for
entirely different sovereign jurisdictions

were to be applied without modification. The
need for such modification when'dealing with

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the federal nature of Australia's legal and
political system necessitated the expression
of a new principle derived either from the
Australian Constitution (particularly s 118)
or from the general principle of conflicts of
laws modified from the international rule to
one apt to operate within the Australian
Federation.
Unfortunately, this measure of agreement

upon fundamentals does not survive a more
detailed analysis of the reasons of the
several justices who participated in
Breavington.
Then His Honour goes on to give his analysis

and there is no point in me reading that, I do not

think. Your Honours will no doubt find it of
interest to think what others have thought

Your Honours held. Page 139 at line 17:
As I have said, no simple holding emerges from the above reasoning. This is no small
misfortune. In the nature of a federation,
with increasing mobility of its population and
vast numbers of transborder activities
stimulated now by technology, the need for a
simple rule, easy of application, is plain.
The common law principle, often restated in
the High Court of Australia and applied in
other jurisdictions overseas, had at least the
merit of relative simplicity (and after

Chaplin of some flexibility). But to many
Australian observers it appeared inappropriate
to the constitutional relationship of the
jurisdictions of the Commonwealth and to the
highly integrated features of the Australian
federation, more than some others.
Breavington therefore represents a step on the
road to a new and more suitable
principle ..... Unfortunately the step is

somewhat faltering and the road ahead is
obscure.

His Honour having said that, and referred to the
possibility that Oceanic Sun Line being
reconsidered might lead to more light, something
which I do not think can be said to have happened
if his description is correct, he says:
My own clear preference would be to

follow the simple and eminently sensible
approach adopted by Mason CJ in Breavington.
In my respectful opinion, this is consistent
with the great increase in the problem arising
today from multi-jurisdictional.
transactions .....

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Upon this basis, it is the duty of an
Australian court faced with a problem such as
the present to apply the law of the place of the tort to determine the substantive rights and liabilities of the parties in respect of a

tort committed within Australia. I consider
that this approach is sufficiently similar to
that finally adopted by Deane J to authorise
me to follow it. Although by a different
path, it reaches the same conclusion as, for
constitutional reasons, Wilson and Gaudron JJ
felt driven to.
In the determination of what is a

"question of substantive law", neither
Mason CJ nor Deane J adopted a narrow view.
The "substantive law" includes those matters
which determine whether the plaintiff would
recover in the forum where the tort occurred. the action is brought purely the application

of "adjectival or procedural law". Only in
this way is the spectre of forum shopping
which concerned all the justices in
Breavington to be avoided. Therefore, for the
characterisation of substantive and procedural
laws, what is in issue is not classification
for other purposes but the characterisation of
the law in question for the determination of
the rule that determines the substance of
whether the plaintiff will recover or not.

Now, having expressed those broad views His Honour
then, in our submission, really descends into the
law of procedure and having said that this
principle should be applied in such a way that it
will avoid "forum shopping" he then adopts a
construction which would appear to induce "forum
shopping" in the very way in which it is being
induced, we would submit, by findings in this Court
in many cases such as Pederson v Young and

They cannot be any other than "forum shopping" Commonwealth v Dixon to which I have referred.

cases. So that at page 141 His Honour refers to
Pederson v Young and those cases at line 16 and
then he goes on:
As a general proposition, the assertion that a limitation provision is classified as a
matter of adjectival or procedural law needs
qualification. It is true that in some cases,
by analysis of the applicable legislation,
such a conclusion has been reached, including
in the decision referred to above.
Differences of opinion illustrate the
imprecision inherent in the classification of
particular limitation provisions· as

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"procedural" or "substantive". Thus, although
Kitto J was a member of a unanimous court in
Pedersen ... .. he dissented from the other members of the court in Hoogland where
section 63(3)(a) of the ..... New South Wales
Act was under consideration. Dealing with an
amending Act, he concluded that "it is not
truly procedural at all but is an amendment of
a provision which operates to destroy a
liability and not merely to deny the procedure
of the courts for the enforcement of a
liability which nevertheless continues to
subsist".

Now, Your Honours, just stopping there,
Your Honours will appreciate that what we are in
effect saying is that if you allow the law of the
forum limitation provisions to operate, they are in
a situation where the law of the place of the wrong
has operated through its limitation provisions to say that there is no right to bring a proceeding;
no entitlement to damages in that State; that it
is really reviving something that is already dead;
that it is no different in substance to that and it
is only doing it in an interstate context as
distinct from within a State context.
Sometimes the proper classification of a

limitation provision will be clear.
From this point onwards, in our submission,

His Honour has drawn a distinction which is not
consistent with the notions that were expressed by this Court in Breavington, that is the notion that
you should not give what is substantive a narrow
view, you should give it a broad view, and that the
principle was adopted in Breavington for the very
purpose of avoiding forum shopping and one should
therefore, having in mind what is said to be
procedural is not always procedural, eg a
limitation statute, that one would treat both

classes of limitation provisions, that is the traditional provisions, the conventional provisions
on the one hand, or those which seem to create
within the statute the very right itself in the
course of imposing the limitation, one should treat
them the same way. There is really no proper
basis, except a very technical analysis of what is
the nature of the right and how it came into
existence, there is no other basis for drawing the
extinction and we would submit, for reasons I have
already expressed, that it is a shallow basis upon
which to do it. But he gets into it and at the
foot of page 141 he says:
These observations underline the necessity in each case to approach the task of

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classification which I have held to be
applicable, with careful attention to the
precise provisions of the statute which is
invoked. That there is a difference,
acknowledged by the law, is plain from a long
line of legal authority in the High Court,
this court and other courts. But that the
decision is somewhat elusive and may produce
differences of opinion about the
characterisation of a particular limitation
provision is equally demonstrated by
authority. In the present case, it is clear
that Chief Justice Mason at least in
Breavington took an ample view of what was
substantive law and a narrow view of what was

"adjectival or procedural''. By that approach,
which I would likewise take in the present
case, the relevant provisions ..... are to be
classified as substantive.

Well, of course, His Honour did not have to have
reference to what Your Honour said in Breavington

in order to come to that view. He could have done
that under other decisions at an earlier time, such
as Maxwell v Murphy and other decisions of this

Court. It was not what Your Honour was, we would
say, saying in Breavington that required this view.
Your Honour was expressing, we would submit, quite
a different view, that is to say that there is
really no distinction between these two types of
limitation provisions.
Your Honours, Mr Justice Mahoney expresses his

view at page 144, which was doubtful, but

nevertheless he followed the majority. No doubt he
was caught up with this distinction between the
right and the remedy and Mr Justice Hope also
analysed the provisions in a way that did not set
aside that notion that there was a need to
distinguish between the two. But at page 154, at
line 16, after referring to what Mr Justice Dixon

had said in Chang Jeeng - perhaps I should quote
what Mr Justice Dixon said:
" ... I retain the opinion that section

63(3) is a provision controlling the exercise
of a common law right of action and that the
substantive right from which the controlled
right of action springs continues to subsist.
On the whole I think that the correct view to
apply is that until the substantive right is
completely lost by the final extinguishment of
all remedy its subsistence should be
recognised and the enlargement of the period
of limitation upon the remedy treated as
applicable to it."

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Now that is said, of course, in the context of one
jurisdiction. It is not comparing two
jurisdictions there.
This description of the nature of the provision seems to me to involve a form of
hybridism. Although in a sense His Honour
treated the provision as a procedural one not
affecting the subsistence of the common law
right, he also expressed the view that the
subsistence of the substantive right would be
recognised only until it was completely lost
by the final extinguishment of the remedy.

Now, that is an acknowledgement, we would submit,
that once the remedy does not exist, the right does
not exist, and that is a powerful comment in our
favour because it points up the effect of what the
Chief Justice was saying in that case.
Now, Your Honours, an illustration of the -

this would apply, for instance, to section 36, what
I am about to put to Your Honours - application of
these principles, indeed, of Breavington's case, to a conventional limitation period, is to be found in
a case of McKenna v KFV Fisheries Queensland
Proprietary Limited. It is unreported, but

Your Honours have a copy of it. Do Your Honours
have that?

MASON CJ: Yes.

MR ELLICOTT:

Now this is the case where the tort occurred in Queensland, statute barred, sued in

Western Australia because the defendant apparently

was present within the jurisdiction, and it was a

favourable situation which occurred.

The facts are

set out at pages 4 and 5 in particular.

I will not

read it because they are basically what I have put

to Your Honours, but in this case there was a right
to extend in Queensland and that right was taken

up, but the court in Queensland refused to extend

the limitation period, so the three year period
still applied and after that the proceedings were

commenced in Western Australia and that the learned trial judge, Mr Justice Murray, said it was a clear

case of forum shopping, as it was, as we say this

case is. At the foot of page 8 he says:

For the defendant there is ~greement that
matters of substantive law in relation to the
claim will be governed by the law of
Queensland as the lex loci delicti and matters of procedural law will be governed by the law
of Western Australia. The defendant, however,
argues that s.11 is a substantive provision,
because it divests the plaintiff of the

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capacity to obtain a legal remedy and, having
regard to the right asserted, it is said that that is a substantive extinction of the cause
of action which is meaningless when liability

may not follow. As I understand the argument,
it is suggested that one cannot speak in
legally meaningful terms of a tort of
negligence for which the law allows no remedy
by way of damages because the cause of action
is statute barred, and for which no other
remedy exists. In other words, it is said
that the defendant's conduct of which the
plaintiff complains is legally innocent if no
remedy is available.

That, we would say, is basic juristic common sense

and should be accepted by this Court. Indeed, we
would say it has already been accepted by this

Court in Maxwell v Murphy. Now, he then goes on to
refer to Maxwell v Murphy, and I will not trouble
Your Honours with that because I want to take page 11 he says:
The question raised by the pleading in

defence and before me ..... is whether s.11

the jurisdiction of this Court. That involves
a consideration of whether the law of Western

applies to the action brought here and within relevant law to be applied to the action.
That involves a subsidiary issue which may be
expressed as being, whether the action is to
be solely governed by the law of one place or
the other -

and then he refers to Breavington, and needless to
say he then concludes that that required him to
look at the law of the place of the wrong.
Now, what His Honour then did, and again I do

not think it is productive of time for me to read
this, His Honour had to analyse Breavington, and as
I said earlier what he did, in effect, was to tick
off each of Your Honours in the sense of saying,
"Well, on the basis of what each of the Justices
had said - - -

MASON CJ: Yes, well you described earlier the process he

went through. There is no need to repeat it.

MR ELLICOTT: That is right. That goes right through, and

so it goes on for some 20 pages, and in the absence
of simple statement he has to go through this
complexity. But he goes through it and, we would
submit, goes through it in a way which is correct
and indeed in our favour, and we would adopt the

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analysis which he takes of each of the judgments
and the manner in which he would say that it

applied to a conventional statute situation. He
then refers, of course, to Byrnes and he concludes
at the end of his judgment at page 30:
Having completed the above analysis of

relevant authority, I conclude that the
pleading by way of defence in this case, that
the cause of action is statute barred by s.11

of the Queensland Act is good. I am of the
view that such a result is sound in principle
and in accordance with authority, particularly
and most recently the decision of the High
Court in Breavington.

Now, that is a fairly common sense judgment and, I
would submit, one which should commend itself to
this Court, even though that of a trial judge in
Western Australia.
Now one of the bread and butter cases of this

Court is Maxwell v Murphy, 96 CLR 261, and no doubt
Your Honours are very familiar with it and the
question really was whether an amendment was
retrospective so as to revive a right to bring
action under the Compensation to Relatives Act and
it was held that the amendment did not operate to
revive the plaintiff's right to maintain an action
which had been barred from a date therein

mentioned. At page 267, the Chief Justice said:
The general rule of the common law is

that a statute changing the law ought not,
unless the intention appears with reasonable
certainty, to be understood as applying to
facts or events that have already occurred in
such a way as to confer or impose or otherwise
affect rights or liabilities which the law had defined by reference to the past events. But,
given rights and liabilities fixed by

reference to past facts, matters or events,
the law appointing or regulating the manner in
which they are to be enforced or their
enjoyment is to be secured by judicial remedy
is not within the application of such a

presumption. Changes made in practice and
procedure are applied to proceedings to
enforce rights and liabilities, or for that
matter to vindicate an immunity or privilege,
notwithstanding that before the change in the
law was made the accrual or establishment of
the rights, liabilities, immunity or privilege
was complete and rested on events or
transactions that were otherwise past and
closed. The basis of the distinction was
stated by Lord Justice Mellish ..... "No suitor

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has any vested interest in the course of
procedure, nor any right to complain, if
during the litigation the procedure is
changed, provided, of course, that no
injustice is done".
The distinction is clear enough in

principle and its foundation in justice is

apparent. But difficulties have always
attended its application. In some cases they
have been due to the discovery in the nature
or context of the legislation or in its
subject matter of indications, whether faint
and conjectural or strong and persuasive, of a
desire to cover situations already existing.
In other cases the difficulty has been
traceable to the inveterate tendency of
English law to regard some matters as evidentiary or procedural which in reality must operate to impair or destroy rights in substance. Again, enactments in truth conferring or denying rights are not seldom
expressed in terms of remedy. There is a
tacit recognition of this in the manner in
which Lord Penzance (then Baron Wilde) stated
the rule in a passage that has been much
quoted - "The rule applicable to cases of this
sort is that, when a new enactment deals with
rights of action, unless it is so expressed in
the Act, an existing right of action is not

taken away. But where the enactment deals
with procedure only, unless the contrary is
expressed, the enactment applies to all
actions whether commenced before or after the
passing of the Act".
The rule or rules governing the

presumption against the operation of new laws
upon rights that have already accrued or
immunities that have already been established
or acquired must be reconciled or accommodated

with the rule that the repeal of a provision
makes it as if it had never been enacted. It
is to this that the exceptions, already
described, of the former rule are
directed ..... .
When the Compensation to Relatives Act gives rights to those of the deceased man's
family to whom injury results from his death

it does so in terms of remedy. The wrongdoer
is to "be liable ..... " -

and he explains that.
That being so, it appears to me that the

situation is one falling within the

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application of the presumptive rule of

construction. The appellant had lost her
right of action before Act ..... was passed and
was without remedy. In terms a remedy had
been conferred and in terms a bar had been
imposed upon the remedy as such. If the
passing of Act ..... revived her remedy that
means that it revived a right which had ceased
to exist and re-imposed a liability on the
respondent from which he had been discharged.

Now it is true to say that a consideration of this
Act would say, well, this is a case where the right was, in a statutory sense, granted subject to enforcement within a particular period and it was
not the conventional case, one can say that, and it
was in that context that His Honour is saying this,
but remembering that quotation that I referred to
earlier from Mr Justice Hope's judgment, to what
Sir Owen Dixon subsequently said, it is quite clear
that he would apply this to the common law
situation, the common law right to damages, because
at the end of the expiration of that period, the
common law right, he was in effect saying, no
longer existed and he goes on to say something
which I would submit has general application:
To say that notionally the right to

damages continued to exist and only the manner
of enforcing the right had been destroyed, it
appears to me to ignore the fact that the
right to damages could not be separated from
the right to recover them. There are rights
in English law which have an existence and a
purpose although the remedy be suspended or wanting. But the right here in question is
not one of them. If the amending statute
received the operation for which the appellant
contends, it would impose anew a liability
that had ceased to exist. The presumptive
interpretation is against such an operation.

His Honour then goes on to deal with some cases. I
will not trouble to read the rest of that judgment, but we would submit that the notion there, although
expressed in relation to a class of statute into
which class we would put section 82 and not in
relation to a conventional statute, what His Honour
said applies equally to a conventional statute, and
indeed, in the later case His Honour said so.
In the judgment of Mr Justice Williams there

is a passage at page 277 which goes wider, and it
is a passage which we would submit is one of
authority and is a very convincing analysis of why
this same idea should apply to a conventional

limitation period. He says:

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Assuming contrary to the opinion already expressed, that the requirement that the
action must be commenced within twelve months
is not an ingredient in the cause of action
but merely bars the remedy if pleaded, the
appellant would not be in any better position.

So he is really saying, "Well, let us treat this as you would treat the common law position."
Where the question arises whether a statute
has a retrospective operation, it is usual to
divide statutes into two classes, the one
where the new statute affects existing
substantive rights and the other where it
affects only the existing practice and
procedure of the courts for enforcing such

rights. The distinction between the two kinds
of statutes was explained by Dixon J. in
Kraljevich v Lake View & Star Ltd. His Honour

said: "The presumptive rule of construction
is against reading a statute in such a
way ..... In other words, liabilities that are
fixed, or rights that have been obtained, by
the operation of the law upon facts or events
for, or perhaps it should be said against,
which the existing law provided are not to be
disturbed by a general law governing future
rights and liabilities unless the law so
the mode in which rights and liabilities are
intends, appears with reasonable certainty.
to be enforced or realized, there is no reason
to presume that it was not intended to apply
to rights and liabilities already

existing ..... " Statutes of limitation are

often classed as procedural statutes. But it
would be unwise to attribute a prima facie
retrospective effect to all statutes of
limitation. Two classes of case can be

considered. An existing statute of limitation

may be altered by enlarging or abridging the
time within which proceedings may be
instituted. If the time is enlarged whilst a
person is still within time under the existing
law to institute a cause of action the statute
might well be classed as procedural.
Similarly if the time is abridged whilst such
person is still left with time within which to
institute a cause of action, the abridgment
might again be classed as procedural. But if
the time is enlarged when a person is out of
time to institute a cause of action so as to
enable the action to be brought within the new
time or is abridged so as to deprive him of
time within which to institute it whilst he
still has time to do so, very different

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considerations could arise. A cause of action
which can be enforced is a very different
thing to a cause of action the remedy for
which is barred by lapse of time. Statutes
which enable a person to enforce a cause of
action which was then barred or provide a bar
to an existing cause of action by abridging
the time for its institution could hardly be
described as merely procedural.

Now, we would say that that is an applicable

comment in relation to this case. You could hardly
say that the law of South Australia was merely
procedural when it had the effect of destroying the
right to bring proceedings. At the foot of
page 279:
But when an existing cause of action is barred by lapse of time under the existing law it could not be said that the effect upon
existing legal relationships of a statute
extending the time within which the cause of
action might be brought would be "hardly

appreciable". The right to enforce a cause of
action (sometimes called an accrued claim) is
an existing substantive right. It is of the
same character as the right to prosecute an
appeal which was held by the Privy Council in Colonial Sugar Refining Co. v Irving to be in this category. There can be no distinction in
principle between a right given by law to
commence an action and a defence given by law

which bars an action. A law which has the
effect of taking away such a right or immunity
could not be classed as merely procedural.
Procedural statutes are statutes which
regulate the procedure and practice of the
courts.

That is what Your Honour Mr Justice Deane said and what seemed to be implicit in what Your Honour the Chief Justice said in Breavington. Now he deals
with:
The Statute of Frauds and Lord Tenterden's Act are examples of statutes which relate to
procedure but they have been held to affect
substantive rights and therefore to be
prima-facie statutes which should not be
construed as having a retrospective operation.

And he refers to Gilmore v Executor of Shooter and

other cases in relation to that matter. Now,
again, we would rely on that passage and it
continues on, as Your Honours will see right
through, on that particular aspect, ~o the foot of

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page 281 and there is a reference to Newell v R in
this Court which is an example.
At the foot of 281 he deals with the situation

of a bill in equity and, again, the law has been
applied in relation to the equitable situation by
analogy and the same result has occurred. So, at
the foot of pages 282 he says:
In the present case it would not be right

for the reasons already given to class the
second limb of section 5 ..... as a statute of
limitations. It is a limitation imposed upon
a new and not upon an existing cause of

action. The limited time within which the new
right of action may be enforced is of its
essence. it goes to its very survival. In
any event the amendment introduced ..... is not
merely procedural. Where the cause of action
under the principal Act was out of time when
it came into force and a consequential
immunity had accrued to an alleged wrongdoer,
the removal of that bar would necessarily
affect his substantive rights.

And at 292 and 299 Your Honours will find that
Justices Kitto and Taylor did not deal with the matter, they dealt with it as a matter of construction that it could not possibly have been
intended to apply and about six or seven lines up
from the bottom of their judgment on 293:
But to hold that the amendment applies in the latter class of cases would be to attribute to
Parliament an intention of so unusual a kind,
and one so clearly demanding a deliberate
judgment as to its fairness, that it could
hardly have been formed without finding
expression in clear words.

That is rather an expression of the view that is

consistent with that which the other justices I
have referred to arrived at on the basis of
treating the so-called procedural limitation
provision as substantive in that case.
And so we would submit that that is authority

for the proposition that it is not sensible to
separate the right from the right to enforce an
obligation whatever the nature of the limitation

period. What Mr Justice - - -

McHUGH J: There are two different contexts though, are they

not? In the Maxwell v Murphy context, you are
determining whether a statute is procedural or
substantive for the purposes of a retrospective

law. In the conflict of law situation it may be a

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question as to whether the Parliament intended its
statute to apply to anything other than courts of
its own jurisdiction.

MR ELLICOTT: That, we say, begs the question because once

you say, as the Court has, we say, embraced the
proposition in Breavington that it is the law of
the place of the wrong that governs the matter as
to whether there is an entitlement to damages, then the relevant law to determine that, that limitation
period in South Australia, that has substantive
effect because it destroys the right or entitlement
to damages, and that it does not matter what the
New South Wales law is saying, because it is not
accepted as the law to which the court in New South
Wales will look for the purposes of determining
whether at the moment the proceeding starts in New
South Wales, there is a right of action, that is,
an entitlement to damages in the sense that I have
submitted.

McHUGH J:

But why should the New South Wales courts give

the section an operation which the legislature of
the enacting State did not intend it to have?

MR ELLICOTT: That is the point, Your Honour, that we are

making, that it did intend it to have it. It
intended to bear down on the right of persons to
sue for damages in respect of torts which occurred
in South Australia, and it did bear down on it, and
it did terminate it - that is the assumption, and
therefore it no longer exists, and for the New
South Wales court to apply the principles that its
statute governs limitation periods in that State, to do that is to revive an entitlement to damages
which according to the law of the place of the

wrong has ceased to exist. And it is no different
we say, in that sense, on analysis, to Maxwell v
Murphy. It is just doing the same thing.

But basic to that is the idea that the Court has already adopted the principle that it is the
law of the place of the wrong to which one looks,
whether it is under section 118, under the approach
of the Chief Justice or under the application of

the second rule in Phillips v Eyre. Now again, we
would submit that that would, in effect, enable
different legal solutions to be given if one did
what Your Honour has put, and we picked this up
in (e) on page 7 - it would enable different legal
solutions to be given to the one set of facts,
depending upon where the action was commenced, and
we would submit that first of all there is no
rational basis for doing it, and it is antipathetic
to the very reason that the Court would have for
holding that that rule should be adopted, and

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antipathetic to the idea that lies in the second
rule in Phillips v Eyre as expounded in
Breavington.
Now, in (f), we submit this: that applicable rules of statutory construction, dealing with
private international law concepts, support the
view that the law of South Australia as to
limitations should be regarded as determining the
substantive rights of parties in cases such as
this, and we say it is within the province of
South Australia to effect or control the right of
entitlement damages for a tort committed within
that State. This must include the time within
which the entitlement must be enforced by action,
and for that proposition we rely on, first of all
Wanganui-Rangitikei, 50 CLR 581, and there is a
short passage at the foot of page 600 where
His Honour says:
If the "obligation to pay interest" is a

"matter or thing" within this provision, the

question remains: When is it a matter or
thing in and of New South Wales? It appears
to me that it is necessary in such a case to
rely upon the ordinary rules of the common law
for a rule of interpretation which will supply
the restriction subject to which the words

will be read. The case is one for applying
what I believe to be the well settled rule of

construction. The rule is that an enactment
describing acts, matters or things in general
words, so that, if restrained by no
consideration lying outside its expressed
meaning, its intended application would be
universal, is to be read as confined to what,
according to the rules of international law
administered or recognized in our Courts, it
is within the province of our law to affect or

control. The rule is one of construction
only, and it may have little or no place where

some other restriction is supplied by context
or subject matter. But, in the absence of any
countervailing consideration, the principle
is, I think, that general words should not be
understood as extending to cases which,
according to the rules of private
international law administered in our Courts,
are governed by foreign law.
And in Kay's Leasing, 116 CLR 124, at

page 142, that same principle is picked up by
Sir Frank Kitto. About two-thirds of the way down
page 142:
The necessary restriction of the operation of
ss. 26C and 31 is therefore to be implied or

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imported upon a consideration of the context
and the subject matter. In the Supreme Court
it was considered that the principle to be
applied was that by which this Court
determined cases such as Wanganui-Rangitikei
Electric Power Board v Australian Mutual

Provident Society. Such cases have dealt with

legislation modifying or making void
contractual rights and obligations of
specified descriptions; but in each instance
the modification or avoidance was enacted as
an end in itself and not as a sanction for
contravention of statutory requirements. It
was held that in order to restrain the seeming
universality of the relevant enactment it
should be presumed that the intention was to
affect only those rights and obligations the
discharge of which was governed by the law of
the enacting country according to the rules of

private international law. The logical
appropriateness of the presumption in a case
of the kind can hardly be denied. But it was
made clear ..... that the Court was applying a
rule which was one of construction only.
Now, Your Honours, we would submit that within

the confines of those principles it is proper to regard the law of South Australia in relation to
limitations as being a law which is appropriate to
effect and within the power to effect the right to
bring action in relation to a tort in South
Australia and to limit it, and to limit it by
saying it has to be brought within a particular

period. And it is not to the point that you could
add to bring it within the courts of South
Australia. That is not the point. The point is
that that action, that right, is a right based upon
a tort which takes place in South Australia and
therefore is one which the legislature of South
Australia can effect - it is within its competence to effect. It is in accordance with, we would

submit, the rules or conceptions of private
international law.
Now, other courts in other places have dealt

with this issue - - -

MASON CJ:	You have got a reference to the United States authorities.	We do not need to go to them in
detail, do we?

MR ELLICOTT: Not in detail, Your Honour, but I do ask

Your Honours, and I know Your Honours will, but it was put to me earlier and no doubt put to me seriously although Your Honours were smiling when
you said it, "Well, where were these things said?"

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I think when one can refer to, say, a judgment

of Mr Justice Frankfurter, where he says, "Well, it
is not sensible to separate the right from the
remedy", but that is a fairly powerful statement,
and particularly - - -

McHUGH J: It depends upon what school of jurisprudence you

follow. His judgments are not in much - - -

MR ELLICOTT:

But the school of jurisprudence that he was in

was the school of common sense in this case because what he was dealing with was whether the statute of
limitations which should be applied in a diversity
suit in the Federal Court of the United States
should be that of the law of the place of the
wrong, and he said that it should be. The sort of
proposition that Your Honours might think ought to
be put to counsel, that the right and the remedy
are different, was encompassed by him. That is the
Guaranty Trust Co of New York v York, and from our

point of view it is a very important judgment. I
will not read it all, but could I just give
Your Honours the reference. It is in the notes and
Your Honours have it.

MASON CJ: Yes. Well, that is the point I was making.

MR ELLICOTT:

It is also to be considered in the context of

a dispute in the United States before that which
was resolved in a case called Erie, and it is
referred to in the judgment, and which appealed to
the common sense of the situation that if a person
was going to use the diversity jurisdiction of
residence at two States that it was wrong that the
Federal Court should give a remedy which that
person could not get in the State court. With
respect, that is common sense. It is judicial
reasonableness and it is fully in accord with the
submission that we are making here.
At pages 109 and 110 he deals with procedure,

and I just wanted to read this short passage: Hear we are dealing with a right to
recover derived not from the United States -

it is the first column at page 108 actually,
towards the end of page 108 -
When because the plaintiff happens to be a
non-resident, such a right is enforceable in a federal as well as in a State court, the forms
and mode of enforcing the right may at times,
naturally enough, vary because the two
judicial systems are not identical. But since
a federal court adjudicating a State-created
right solely because of the diversity of

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citizenship of the parties is for that
purpose, in effect, only another court of the state, it cannot afford recovery if the right
to recover is made unavailable by the State
nor can it substantially affect the
enforcement of the right as given by the
State.

Now we have diversity jurisdiction and similar
considerations should apply, and indeed one might
think that they have been applied, subject to
section 79 considerations so far as theory is

concerned. And he goes on
And so the question is not whether a

statute ..... is deemed a matter of "procedure"

in some sense. The question is whether such a
statute concerns merely the manner and the
means by which a right to recover, as
recognized by the State, is enforced, or
whether such statutory limitation is a
matter ..... relevant to our problem, namely,
does it significantly affect the result of a
litigation for a federal court to disregard a
law of a State that would be controlling in an
action upon the same claim by the same parties
in a State court?
It is therefore immaterial whether

statutes of limitation are characterized
either as "substantive" of "procedural" in
State court opinions in any use of those
terms -

And so he goes on to hold that the court should
treat statute of limitations as substantive, in
effect, and not as procedural and that the people should not be able to recover in the very sort of case that we are dealing with in this Court.
Another case which repeats the same idea - - -

BRENNAN J: It is not really the same sort of case as we are

dealing with here, is it? Here we are dealing with
a case which is governed by the substantive law of
the common law, that is what gives rise to the

cause of action. In the case in Guaranty Trust it
was a State-created right.

MR ELLICOTT: It was the Constitution imposing jurisdiction

on the Federal Court.

BRENNAN J:	What was the cause of action in Guaranty Trust?
MR ELLICOTT:	I thought it was an action, Your Honour.

TOOHEY J: It looks like it was a breach of trust. If you

look at the foot of page 100, Mr Ellicott.

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MR ELLICOTT: Yes, it was, Your Honour, that is right.

is the other one - it was an action which involved
equitable considerations, action for breach of
trust. It was a common law situation; it was not a
statutory situation. It is exactly, we would
submit, the same - - -

BRENNAN J:

What is meant then by a "State-created right"

both in the judgment and in the headnote?

MR ELLICOTT: Well, it is the very question that is in

existence here, as to whether it has a right which
only relates to actions if those actions are
brought within the State, created by the State, and
it is dealing, we would say, on all fours. He says
at the top of page 110:
Plainly enough, a statute that would

completely bar recovery in a suit if brought
in a State court bears on a State-created
right vitally and not merely formally or
negligibly.

And the State-created right he is talking about is
the right to enforce a trust.
As to consequences that so intimately affect
recovery or non-recovery a federal court in a

diversity case should follow State law. The
fact that under New York law a statute of
limitations might be lengthened or shortened,
that a security may be foreclosed though the
debt be barred, that a barred debt may be used
as a set-off, are all matters of local law properly to be respected by federal courts
sitting in New York when their incidence comes

into play there. Such particular rules of
local law, however, do not in the slightest
change the crucial consideration that if a
plea of the statute of limitations would bar
recovery in a State court, a federal court

ought not to afford recovery. Prior to Erie R. Co. v Tompkins it was
not necessary, as we have indicated, to make
the critical analysis required by the doctrine
of that case of the nature of jurisdiction of

the federal courts in diversity cases. But
even before Erie, federal courts relied on
statutes of limitations of the States in which
they sat.

And he goes on to refer to that. So that he is, in
effect, dealing with a situation which we say is on
all fours with this case and doing it for the
reason that it would indeed be strange because, in
a real sense, the federal jurisdiction, and it is

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in essence the same as ours, is only creating
another court within the State, which can sit
within the State, to enforce the rights of the
citizens, and how odd it would be if you can go to
one and get a remedy, and go to the other and not
get a remedy. It is antithetic to what lies at the
heart of what we have been putting.
Heavner v Uniroyal is a New York case and

Your Honours have a reference to that judgment and
again it is only one instance of a United States
court which has rejected the notion that statute of
limitations are procedural and treated them as
substantive and done so in a case identical with
this, that is to say, the Court of New Jersey
enforcing a right in relation to events which
occurred elsewhere, in North Carolina, precisely
the same situation, and what is helpful about this
judgment of Mr Justice Hall - and Your Honours will
find it from pages 415 through to 418 - what is
helpful about it is that it deals with the
arguments that had been put by number of text
writers on this particular subject declaiming this
distinction between what was procedural and what
was substantive where statutes of limitations were
concerned. It had been a matter of raging
controversy because it was seen to be so unjust and
again, I have got the message from the
Chief Justice that Your Honour does not want me to
read this but it is a very material judgment in
terms of an analytical and intellectual analysis of
the problem this Court is confronted with.

MASON CJ:	We shall certainly read it, Mr Ellicott.
MR ELLICOTT:	And, Your Honour, I am sure Your Honours will

read it and digest it. Your Honours - - -

MASON CJ: But could I just ask this question, is it the

last word on the subject in the United States?

MR ELLICOTT:	No, Your Honour, there is the case which -
MASON CJ:	The reason why I asked the question is, I

understood that this doctrine was a matter of some
controversy in the United States?

MR ELLICOTT: It is and it still is.

MASON CJ:

And I was just a little concerned that we should

be focusing attention on authorities that might
possibly be out-of-date.

MR ELLICOTT:	It is not my purpose to have Your Honours deal with the question of - in terms of what is the law
in the United States because I can concede that it
is different.

Miller(2)	90	9/4/91
MASON CJ: Yes.

MR ELLICOTT:

But what is important about that case is that

it is does, that is Heavner - that it is a very
useful analysis and we say ought to commend itself
to Your Honours as if you were reading an
authoritative - - -

MASON CJ: Whether or not it is the law of the United

States.

MR ELLICOTT: Yes, it is an authoritative view as to how one

balances the various considerations. What you
cannot ignore, we would submit, as the law of the
United States is what Mr Justice Frankfurter says
most relevantly in Guaranty. because, in a case
called Sun Oil, very recently in the United States
Supreme Court, that was referred to as representing
the relevant law on the subject, although done in a
context where the Supreme Court of the United
States was saying that a State should not enforce -
was not required to enforce - the limitation period
of another State. In other words, on one view if
you are going to say, "How does it affect us?'' If
it was a case here, it might be construed against
us.
But that is Sun Oil, 486 US 717, but it is in

100 L Ed 2d 743 - Your Honours will have a
reference to that - and they deal with the
application of the full faith and credit clause in
relation to this particular issue and they hold
that - they say:
we do not hold that Kansas must apply its own
statute of limitations to a claim governed in
its substance by another State's law, but only
that it may.

That is what it held and, within the context of
this case it would be going the other way. But, in

the course of doing so - that appears at page 755
of the Lawyers Edition - reference was made to
Guaranty Trust at page 755:
Unable to sustain the contention that

under the original understanding of the Full
Faith and Credit Clause statutes of
limitations would have been considered
substantive, petitioner argues that we should
apply the modern understanding that they are
so. It is now agreed, petitioner argues, that
the primary function of a statute of
limitations is to balance the competing
substantive values of repose and vindication of the underlying right; and we should apply that understanding here, as we have applied it

Miller(2)

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in the area of choice of law for purposes of
federal diversity jurisdiction, where we have
held that statutes of limitations are
substantive, see Guaranty Trust Co.

So Sun Oil is an up to date, relevant authority in the United States but, in a very
important sense, it picks up Guaranty Trust.

MASON CJ:

We will adjourn until 10.00 o'clock tomorrow

morning.

AT 4.18 PM THE MATTER WAS ADJOURNED

UNTIL WEDNESDAY, 10 APRIL 1991

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[1991] HCATrans 88

Key Legal Topics

Areas of Law

Civil Procedure

Statutory Interpretation

Legal Concepts

Appeal

Limitation Periods

Statutory Construction

Jurisdiction

handed up which contain in order the relevant provisions of the Limitations Act and the Workers	eventually, to a set of papers which have been those two provisions and if I take Your Honours to those first I think you will more readily
understand the nature of our application.

section 82 to arise.	But it does arise on the
admitted facts it arises because this person was a	facts before this Court because if you look at the
worker; he was injured in South Australia, and
prima facie, is entitled to be compensated for that injury in South Australia under that Act.

in this case South Australia.	The second principle
is that full operation or effect should be given to

Iron and Steel v Hoogland, for a start.	He saw it
as well - - -

et cetera, which I have already read.	Towards the
top of page 78:

members of the Court in that case.	What is
more the approach is posited on the fact that

the law of the place of the wrong as determining
the matter.	Now His Honour goes on:

•	His Honour's judgment is open to the view that -as
is the judgment of Mr Justice Brennan - but really, both of Your Honours have moved away from the enunciation of principles in Koop v Bebb and

come to it.	I am perhaps trying to read in too
much, and it is pretty clear that I am, now.	But
we would say that there is, indeed, an

by courts in every part of Australia.	Some
may think this desirable, others not.	But

perhaps some have done in the United States to	ensure that Phillips v Eyre style principles ought
to be applied or the law of the forum should be
applied. Nobody is suggesting that subject, of course, to whatever operation section 118 may have.

only take up the time of the Court.	The Court will
look at those.	But we submit that at the very

section 79 case, so it is an important one.	Mr
Justice Kitto at page 164:

the commencement of actions in Queensland.	A
faint attempt was made to attribute to it a
wider operation, by force of s.118 of the Constitution, which requires full faith and

to it. It is not dictating something to the courts
in New South Wales.	It is saying that this

was a fundamental error in that once one accepts	the proposition that the law of the place of the
wrong will govern in any jurisdiction.

possibility increases but the possibility already
existed.	Now, how is that going to be resolved?

not support the respondents' argument.	Why
then should we give to the facsimile an
interpretation denied to the original?	I

right to claim damages.	And likewise here it would
have the same effect.

private international law principles to there is no room for the direct application of	resolve competition or inconsistency between a
law of the Commonwealth and a law of a State
or between the laws of different States.

question of inconsistency in a chapter of the	it not, we would submit, provide the answer to the the States as a whole, which deals with
inconsistency between Commonwealth and State law
under section 109 and where, we would submit, as
His Honour Mr Justice Deane was saying in these
passages, section 118 is an answer to the question,
"How do you resolve conflicts between State laws?"

in the context of private international law?	Where
is the conflict?

picked up as substantive and to answer the problem.	be picked up, but this approach allows them to be	Consequently, the courts of a State will neither ignore the prima facie territorial
limitation of the operation of State laws
which is implicit in the Constitution nor
infringe the injunction of section 118 of the
Constitution if they apply the procedural or
adjectival law of their own State in dealing
with a claim arising out of conduct or
circumstances occurring within the territory
of another State.

assistance.	But what is important is that in the
resolution of any conflict there, which in one

Australia Act enables one to conceive those things
happening, then what does one do about that?	How

refers to "laws ..... "	The same concatenation
of subjects appears in s.118.	The omission

exercised to apply to extraterritorial torts.	Now,
do you make any choices between those methods?

make that a law offensive to section 118.	But I do
not have to go that far.

There might be a policy reason for doing that.	"We
have enough work to do as it is", they might say. But that is a question about the rights of the
parties to invoke the jurisdiction. It is not a

which appear to create a legal liability in injury is caused to a workman in circumstances	his employer to pay damages in respect thereof
and the workman has received
compensation ..... the workman shall be entitled
to take proceedings against his employer to
recover damages.
"(3A) A workman shall not be entitled to take
proceedings under sub-section 3 unless he
commences those proceedings:
(a) Within 3 years after the date upon which
he received payment, or the first payment, of
compensation under this Ordinance.