Sinclair v Resi Corporation and Wallaby Grip Limited

[2001] NSWDDT 14

Reported Decision (2001) 22 NSWCCR 16

Dust Diseases Tribunal

of New South Wales

CITATION:	Sinclair v Resi Corporation & Wallaby Grip Limited [2001] NSWDDT 14
PARTIES:	Murray Sterling Sinclair Resi Corporation Wallaby Grip Limited
MATTER NUMBER(S):	163 of 2001
JUDGMENT OF:	Duck J at 1
CATCHWORDS:	Negligence :-
LEGISLATION CITED:
CASES CITED:	State Authorities Superannuation Board v Commissioner of Taxation (WA)
DATES OF HEARING:	21/05/01 23/05/01
DATE OF JUDGMENT:	05/29/2001
LEGAL REPRESENTATIVES:	FOR PLAINTIFF: Mr J Shaw QC and Mr J Sharpe instructed by Turner Freeman appeared for the plaintiff. FOR DEFENDANT: Mr Parker instructed by Church & Grace appeared for the first defendant . Mr Scotting instructed by Middleton Moore & Bevins appeared for the second defendant.

JUDGMENT:

1. The tribunal has before it two matters. The first of them bears number DDT163 of 2001 in which the plaintiff is Murray Sperling Sinclair. The first defendant is RESI Corporation. The second defendant is Wallaby Grip Limited. The second matter bears number DDT164 of 2001. The plaintiff is Dennis Barry Gebler. The first defendant is RESI Corporation, the second defendant is the Commonwealth of Australia. The matters presently requiring decision are two applications brought by the first defendant, that is in each of the proceedings, seeking orders that the statement of claim be set aside as against it and a declaration that the tribunal has no jurisdiction over it in respect of the subject matter of the proceedings. Alternatively the first defendant seeks an order that service of the statement of claim on it be set aside.

2. The applications are made by the first defendant before it has entered an appearance or a defence. They are made pursuant to Pt 11 r 8 of the Supreme Court rules. No issue has arisen as to whether or not the applications were filed in time.

THE STATEMENTS OF CLAIM

Sinclair

3. The plaintiff Sinclair pleads that the first defendant is the successor in title of the Electricity Trust of South Australia, a body corporate established pursuant to the Electricity Trust of South Australia Act 1946 (hereinafter referred to as the Trust).

4. It is alleged that between 8 February 1944 and 31 December 1950 the plaintiff was employed by the Trust at the Osborne Power Station in South Australia as an apprentice fitter and turner and later as a fitter and turner. In the course of that employment he was exposed to the inhalation of asbestos dust and fibre.

5. It is further alleged that the second defendant between 8 February 1944 and 31 December 1950 employed laggers to work at the Osborne Power Station and that, stated shortly, the work of the laggers generated asbestos dust and fibre which contaminated the plaintiff's working environment. As a consequence of the activities of the second defendant and its employees the plaintiff alleges that he was exposed to and inhaled asbestos dust and fibre at the Osborne Power Station.

6. Further, it is alleged against the second defendant that it was the manufacturer and supplier of asbestos products to the power station and to the Trust.

7. It is further alleged that the power station was a factory as defined by the Industrial Code 1920 as amended (SA) (hereinafter referred to as the Industrial Code).

8. It is alleged that both defendants were negligent in specified respects.

9. It is also alleged that the Trust was in breach of s 304 of the Industrial Code. The allegation is that the factory was not ventilated so as to render harmless as far as practical all the gases, vapours, dust and impurities generated within it.

10. The plaintiff also relies upon breach of contract of employment, particulars of the alleged breach and the actions and failures which constitute negligence and breach of statutory duty.

11. The plaintiff alleges that he suffers asbestos related pleural disease, asbestosis and a number of related symptoms as a result of the breaches specified above.

12. The plaintiff seeks provisional damages pursuant to s 11A of the Dust Diseases Tribunal Act in respect of the conditions of asbestos related pleural disease and asbestosis.

13. The plaintiff seeks an order that he may claim further damages pursuant to s 11A of the Dust Diseases Tribunal Act in the event that he should develop any of the following conditions, namely: asbestos induced lung cancer; asbestos induced carcinoma of any other organ; pleural mesothelioma or peritoneal mesothelioma.

14. The address given for the second defendant is an address in Dorset in England.

Gebler

15. In the action commenced by Mr Gebler the first defendant is RESI Corporation. The second defendant is the Commonwealth of Australia.

16. It is alleged that the first defendant is the successor in title of the Trust.

17. It is alleged against the Trust and hence against the first defendant that the plaintiff was employed by the Trust between 1 January 1955 and 31 May 1960 as an apprentice motor mechanic and mechanic at its workshop at Hilton, South Australia. It is alleged that during the course of that employment the plaintiff was exposed to asbestos dust and fibre as a result of carrying out maintenance and repair work on vehicles and heavy equipment which work included the removal and replacement of asbestos brake linings and asbestos gaskets. The plaintiff says that he was thereby exposed to and inhaled asbestos dust and fibre.

18. The plaintiff then alleges that between 1 May 1960 and 31 May 1969 he was employed by the Commonwealth Department of Works at Woomera as a mechanic. He claims that during the course of his employment he carried out maintenance and repair work on vehicles and heavy equipment which work included the removal and replacement of asbestos brake linings and asbestos gaskets. The plaintiff pleads that while so employed he was exposed to and inhaled asbestos dust and fibre.

19. The next allegation made in the statement of claim is that between 1 May 1969 and 30 September 1969 the plaintiff was employed by the Commonwealth Department of Supply at Woomera as a fitter. He pleads that he was required to carry out maintenance work on power generators which involved the removal and replacement of asbestos lagging, exhaust pipes and asbestos gaskets. He pleads that while so employed he was exposed to and inhaled asbestos dust and fibre.

20. The next allegation made in the statement of claim is that between 1 September 1969 and about 31 January 1971 the plaintiff was employed by the Commonwealth Department of Supply, Antarctic Division. It is pleaded that during the course of this employment the plaintiff was required to carry out maintenance and repair work at the station in Antarctica, which work included the removal and replacement of asbestos lagging on exhaust pipes and asbestos gaskets. It is pleaded that while so employed he was exposed to and inhaled asbestos dust and fibre.

21. The next allegation pleaded is that from 1 January 1971 to about 28 February 1995 the plaintiff was employed by the Commonwealth Department of Civil Aviation as a mechanic, senior mechanic, supervising mechanic and technical officer grade 4. In the course of that employment it is pleaded that the plaintiff worked at various sites in the Northern Territory and South Australia. During the course of this employment he was required to carry out maintenance and repair work on power generators, airport and firefighter appliances and various plant, equipment and vehicles which work involved the removal and replacement of asbestos lagging on exhaust pipes, the use of asbestos blankets, asbestos gaskets and asbestos brake linings. It is pleaded that while so employed he was exposed to and inhaled asbestos dust and fibre.

22. It is pleaded that the workshop at Hilton was at all material times owned, occupied and operated by the Trust.

23. It is further pleaded that the workshop at Hilton was a factory as defined by the Industrial Code under regulations.

24. Particulars of negligence alleged against the Trust and the Commonwealth are set out in the statement of claim. Thereafter there appears at page 5 a heading. "Particulars of breach of statutory duty of the Electricity Trust of South Australia and its successor, the first defendant and the second defendant". Various breaches of the Industrial Code and regulations are pleaded; breaches of the Industrial Code 1967 and regulation 26 thereunder are also pleaded. There are breaches of s 29 of the Industrial Safety, Health and Welfare Act 1972 and various regulations under the Industrial Safety Code regulations pleaded against both defendants.

25. The plaintiff alleges that the matters previously particularised constitute a breach of his contract of employment, particulars of that breach are given.

26. The statement of claim then sets out particulars of the injuries and disabilities from which the plaintiff suffers. First and foremost is the allegation that he now suffers from malignant mesothelioma.

27. The cases in which the present applications are made contain some similarities but they are not identical. It will be necessary to deal with them separately.

Mr Sinclair's claim

28. As regards Mr Sinclair the defendant submits that it is a statutory corporation set up pursuant to the Electricity Corporations Act 1994 (SA) s 8. Pt 2 of the Act bears the heading RESI Corporation. Div 1 of Pt 2 bears the heading: "Establishment of RESI Corporation".

29. S 8 is as follows: Then appears a heading in these terms. "ETSA to continue as RESI".

8(1) ETSA Corporation continues in existence as RESI Corporation.

(2) RESI -

(a) is a body corporate; and

(b) has perpetual succession under common seal; and

(c) is capable of suing and being sued in its corporate name; and

(d) has the functions and powers assigned or conferred by or under this or any other Act.

30. S 9 provides:

9. RESI is a statutory corporation to which the provisions of the Public Corporations Act 1993 apply.

31. The Public Corporations Act 1993 contains within it the following, inter alia:

Control and Direction of Public Corporations.

6(1) A public corporation -

(a) is an instrumentality of the Crown and holds its property on behalf of the Crown; and

(b) is subject to control and direction by its minister.

(2) A direction may not be given by the minister under this section contrary to the provisions of another Act.

(3) The corporation may not be directed by its minister to do anything that might be beyond its powers as provided by its incorporating Act and any other Act.

(4) A direction given by the minister under this section must be in writing.

(5) . . .

32. S 7 of the Act requires a public corporation on receipt or request in writing from the minister to furnish the minister with such information or records in the possession of the corporation as the minister may require in such manner and form as the minister may require. Where a record in the possession or control of the corporation is furnished to the minister under this section the minister may make, retain and deal with copies of the record as the minister thinks fit.

33. S 8 provides:

8(1) The person authorised in writing by a public corporation's minister or the treasurer may attend (but not participate in) any meeting of the board of the corporation and may have access to papers provided to directors for the purposes of the meeting.

(2) . . .

34. S 9 provides:

9. Where a public corporation discloses to its minister in pursuance of this Act a matter in respect of which the corporation owes a duty of confidence, the corporation must give notice in writing of the disclosure to the person to whom the duty is owed.

35. The first defendant submits in the light of those statutory provisions it should properly be regarded as an instrumentality of the Crown in right of South Australia. The plaintiff does not accept that RESI is the Crown for the state of South Australia. It submits rather that it is a privatised entity. It is convenient to set out par 4 of the outline of submissions tendered for the plaintiff.

4. In any event RESI is not the Crown or the state of South Australia, but is rather a privatised entity. The mere fact that a board or corporation is created or recognised by state statute does not mean that the statutory authority is the Crown in right of that state. When the Judiciary Act speaks of a state it means the Crown as distinct from an independent statutory authority created by the state legislature.

36. The first defendant points to two authorities in support of its contention that it is properly to be regarded as the Crown in right of South Australia. They are: Deputy Commissioner of Taxation v State Bank of NSW (1992) 174 CLR 219 at 230 to 233. The discussion there about "Shield of the Crown" doctrine appears to confirm the submission advanced on RESI's behalf that it is the Crown in right of South Australia. The other matter referred to is State Authorities Superannuation Board v Commissioner of Taxation (WA) (1996) 189 CLR 253 at 283. The court concluded that the State Authorities Superannuation Board was to be classified as an instrumentality which for the purposes of constitutional provisions such as s 75(4) of the constitution is a state (see McHugh and Gummow JJ at 204).

37. I acknowledge that the field is filled with learning and difficulty. I note the passage from the text Public Employment Law by Graham F Smith published in 1987 which learned counsel made available during the course of addresses. The following matters, however, indicate that the first defendant's submission on this point should be accepted. Firstly, the terms of s 6 of the Public Corporations Act 1993; secondly, the extent of ministerial control provided for in the Public Corporations Act over the operations of RESI Corporation; thirdly, s 9 of the Electricity Corporations Act 1994.

38. The first defendant then submits that at common law the Crown in right of South Australia is immune from an action in tort unless it waives that immunity. See Antill Ranger and Co Pty Limited v Commonwealth (1955) 93 CLR 83 at 103. At 103 Fullagar J said:

So far as the State itself is concerned, it might be said that the state is sovereign within its own territory and that no remedy can be pursued against it within the courts without its consent. As a general rule this is, of course, true, but within the limited class of case to which s 58 of the Judiciary Act 1903 applies the position is governed by that section which is an exercise of the power given by s 78 of the constitution.

39. There appears to me in this case to be no scope for the application of s 58 of the Judiciary Act 1903. It will be necessary to consider the section in some detail in connection with Mr Gebler's claim. The section is concerned with the exercise of Federal jurisdiction conferred by s 39(2) of the Judiciary Act 1903.

40. S 38 of the Judiciary Act 1903 sets out matters in which the High Court has exclusive jurisdiction.

41. S 39 provides as follows:

39. Federal Jurisdiction States Courts in other Matters.

(1) Jurisdiction of the High Court, so far as it is not exclusive of the jurisdiction of any court of a state by virtue of s 38, shall be exclusive of the jurisdiction of the several courts of the states, except as provided in this section.

(2) The several courts of the states shall, within the limits of their several jurisdictions, whether such limits are as to locality, subject matter, or otherwise, be invested with Federal jurisdiction, in all matters in which the High Court has original jurisdiction or in which original jurisdiction can be conferred upon it, except as provided in s 38 and subject to the following conditions and restrictions:

(There follow conditions and restrictions which have no present application).

42. The original jurisdiction of the High Court is provided for in s 75 of the constitution. It is as follows:

75. Original Jurisdiction of High Court:

In all matters:

(i) arising under any treaty;

(ii) affecting consuls or other representatives of other countries;

(iii) in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party;

(iv) between states or between residents of different states or between a state and a resident of another state;

(v) in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth;

the High Court shall have original jurisdiction.

43. In Mr Sinclair's case the only possible source of Federal jurisdiction is s 75(4) above. For the purposes of this section corporations cannot be residents. See Australian Temperance and General Mutual Life Assurance Society Limited v Howe (1922) 31 CLR 290. That case has been followed in the following cases. Cox v Journeau (1934) 52 CLR 282; Crouch v Commissioner for Railways (Queensland) (1985) 59 ALJR 831 and Rochford v Dayes (1989) 63 ALJR 315 at 316.

44. I conclude that s 75(4) has no application in Mr Sinclair's case and that Federal jurisdiction had not been enlivened.

45. It will be necessary to deal differently with Mr Gebler's matter because in his case the Commonwealth of Australia is a party, hence Federal jurisdiction will be enlivened (see under s 75(3)).

46. The first defendant's submission is then developed by saying that RESI would be regarded as the Crown in right of South Australia as regards an action in tort against it. Marx v Forest Commission (1936) VLR 344. In view of the conclusions reached above it seems to me not to be necessary to consider this point in any detail.

47. The submission is then developed by saying that proceedings may be brought against RESI because, but only because of the Crown Proceedings Act 1992 (South Australia). The relevant sections are as follows.

4(1) In this Act, unless the contrary intention appears

'corresponding law' means a law of another state relating to proceedings against the Crown declared by the regulations to be a law corresponding to this Act;

'Crown' includes -

(a) a minister, instrumentality or agency of the Crown;

(b) a body or person declared by the regulations to be an instrumentality or agency of the Crown for the purposes of this Act;

'Judgment' means any judgment or order of the court;

'Proceedings' means 'civil proceedings';

'State' includes a territory of the Commonwealth;

'State Crown' means the Crown in right of the state.

(2) This Act extends not only to the Crown in right of the State but also, as far as the legislative power of the state admits (to the Crown) in any other capacity but does not extend to the Crown in right of the Commonwealth except where specific provision is made for its application to the Crown in right of the Commonwealth.

5(1) Subject to this Act and any other Act of the state the Judiciary Act 1903 of the Commonwealth, and any relevant rules of court -

(a) proceedings may be brought and conducted by or against the Crown in the same way as proceedings between subjects; and

(b) the same substantive law is to be applied in such proceedings as in the case of proceedings as in the case of proceedings between subjects.

(2) Subject to the regulations proceedings may be brought by or against the Crown -

(a) in the case of the state under the name 'the state of South Australia';

(b) any other case under the name in which the Crown could sue or be sued in the courts of its own jurisdiction.

6(1) This Act does not affect any immunity from or limitation on liability that the Crown enjoys by statute.

(2) This Act does not make binding on the Crown any Act or statutory provision that would not, apart from this Act, be binding on the Crown.

48. A little later the following appears:

12. The state Crown is, in relation to its activities in another state, bound by a corresponding law of that other state, to the same extent as the Crown in right of that other state.

49. It is submitted that RESI is an instrumentality of the Crown and included within the Crown for the purposes of the Crown Proceedings Act 1992. I think that submission is correct. It is submitted that the Crown Proceedings Act 1992 permits RESI to be sued but only in South Australian courts of competent jurisdiction. The submission is developed by saying that ”proceedings" in s 5 means South Australian proceedings, that is proceedings brought in or under the jurisdiction of the courts of South Australia. It is argued that this construction arises as a matter of statutory interpretation because there is a presumption which gives it effect. In support of this submission reference is made to Jumbunna Coal Mine NL v Victorian Coalminers Association (1908) 6 CLR 309 at 363 and R v Rademeyer (1985) 59 ALR 141 at 145-6.

50. O'Connor J's judgment in Jumbunna is authority for the proposition that in the interpretation of general words in a statute there is always a presumption that the legislature does not intend to exceed its jurisdiction. Most statutes, if their general words could be taken literally in their widest sense, would apply to the whole world. They are always read as being prima facie restricted in their operation within territorial limits.

51. Rademeyer was concerned with the inapplicability of the state bail legislation to extradition proceedings arising under Federal jurisdiction.

52. It ought to be observed that there is no authority directly in point to support the submission. One may readily accept what was said in Jumbunna but the words in s 5 of the Crown Proceedings Act 1992 are very widely expressed and in their terms permit the proceedings to be brought against the Crown in the same way as proceedings between subjects. There is no warrant for confining the operation of s 5 in the manner suggested by the submission. It is not disputed by the first defendant in the present proceedings that the jurisdiction of the tribunal has otherwise been properly engaged albeit in its "long arm" jurisdiction (See John Pfeiffer Pty Limited v Rogerson (2000) 74 ALJR 1109 1112).

53. If the first defendant were an ordinary person he would properly be within the tribunal's jurisdiction. Having regard to the provisions of s 5 of the Crown Proceedings Act 1992 why is it, one might ask, that the tribunal lacks jurisdiction in respect of the first defendant. The section provides that proceedings may be brought and conducted by or against it in the same way as proceedings between subjects.

54. It seems to me that the presumption that the first defendant seeks to rely upon is not properly available to it.

55. Further, it may be noted that s 6 of the Crown Proceedings Act expressly preserves Crown immunity which the Crown enjoys by statute. That preservation immediately follows s 5. By application of the maxim expressio unius exclusio alterius it may be argued that the intention of parliament is to forego Crown immunity arising otherwise than by statute. As the parties have not argued the point I express no concluded view about it. There is another matter to be considered in respect of the first defendant's submission insofar as it affects Mr Sinclair. At the risk of oversimplifying the submission it has the following essential ingredients.

(1) RESI is a statutory corporation and an instrument of the Crown in right of South Australia.

(2) At common law the Crown in right of South Australia is immune from an action in tort unless it waives the immunity.

(3) A waiver has been achieved by the passage of the Crown Proceedings Act which waiver is limited because the term proceedings in that Act means South Australian proceedings.

56. I have already considered the matter on the footing that proposition 2 is correct.

57. There is room to think that it may not be correct, at least in the bold terms relied upon by the first defendant in the present application.

58. The concept of Crown immunity is closely examined by the High Court in Bropho v Western Australia (1990) 171 CLR 1. It may be noted that the first defendant concedes that the law may need to be re-examined in the light of Bropho but distinguishes that case from the present because Bropho was concerned with statutory enactments and the intention of legislatures with respect to them. It did not purport to deal with common law actions, for example claims for damages for negligence.

59. Judgment in Bropho contains a great deal of material relevant to the present discussion. Acknowledging the risk of quoting only part of the material I turn to the judgment of the majority (Sir Anthony Mason CJ and Dean, Dawson, Toohey, Goudron and McHugh JJ) at 23.

On the other hand if the issue is of the kind in the present case, namely whether the employees of a government mental corporation engaged in commercial and developmental activities are bound by general provisions, designed to safeguard places or objects whose preservation is of vital significance to a particular section of the community the presumption against the applicability of general words to bind such employees will represent little more than the starting point of the ascertainment of the relevant legislative intent.

60. Brennan J delivered a separate judgment, at 28 to 29 the following appears.

I would add a brief mention as to the effect of the reasons for judgment in this case upon the interpretation of statutes earlier enacted. In my respectful opinion it would be a legal fiction to impute to the legislatures of this country or to their parliamentary counsel an intention fluctuating with the changing formulations of the presumption by the courts of this country and of England. The question whether the Crown is bound by a statute arises ordinarily in reference to the statutes enacted without conscious animadversion to the strength of the presumption and if it be right to look at the relevant circumstances to determine what the intention of the legislature was or determine what intention ought fairly to be imputed to the legislature when it enacts a statute in the future, equally it must be right to look at all the relevant circumstances when interpreting a statute enacted in the past . . .
Bropho was referred to in the judgment of Sir Gerard Brennan CJ and Dawson, Toohey and Gaudron in State Authorities Superannuation Board v The Commissioner of State Taxation WA (1995 to 1996) 189 CLR 253. At 269 the following appears:
In any event by the exemptions which it grants in favour of the Crown, the Stamp Act manifests a clear intention that the Crown should be otherwise bound by its provisions, save to the extent that it creates a criminal offence in relation to the non-payment of the duty, a matter to which we shall turn shortly. It is now settled by Bropho v Western Australia that a presumption that a statute is not intended to bind the Crown does not prevail against an intention to the contrary, notwithstanding that it cannot be said that the intention is 'manifest from the very terms' of the statute or that the purpose of the statute would be 'wholly frustrated'. If a legislative intent that the Crown should be bound does appear from the provisions of the statute then it should be given effect.

61. It seems to me that in respect of health and safety regulations such as the Industrial Code relied on by the plaintiff in the present proceedings, that it was the intention of the legislature to bind the Crown. A failure to comply with the requirements of the Industrial Code may have led to the injury to or contraction of illness by workers in the workplace or even to their death. The Industrial Code (11 George V number 1453) made little reference to the Crown. The Crown is not defined.

62. At s 34 the following was provided:

34. The Crown may, where in the opinion of the minister the public interests are or would be likely to be affected by the award, order, decision or determination of the court [I interpolate ie the Industrial court] intervene in any proceedings before the court and makes such representations as it thinks necessary in order to safeguard the public interests.

63. Pt 5 of the Industrial Code dealt with factories and shops. The Crown appears not to be specifically mentioned in that part of the Act.

64. S 356 of the Code is noteworthy, if not relevant, for present purposes. It seems to the reader in 2001 to be spectacularly anachronistic.

65. Having regard to the structure and terms of the Industrial Code I think it likely that at least insofar as the safety regulations contained in it are concerned that it was the intention of the legislature to bind the Crown.

66. In taking this view I bear in mind the observations of Priestley JA in Commissioner for Railways (Queensland) v Peters (1991) 24 NSWLR 407 at 446 to 449. Those observations broadly speaking appear to support the view expressed above.

67. However, although the parties made submissions about Bropho they did not consider its effect in relation to the statutory count pleaded in the present proceedings.

68. It is to be remembered that part of the plaintiff's claim in Mr Sinclair's case alleges breach of statutory duty on the part of the defendants. If the true intention of the legislature was that the Crown be bound by the safety regulations pleaded then the Crown immunity which is the basis from which the first defendant's submissions proceed, may not be available to it, at least in respect of the statutory count. However, as I say, the parties have not argued the point, I express no concluded view about it.

69. For reasons given earlier, however, it seems to me that the application in respect of Mr Sinclair ought not succeed and that application should be dismissed.

Mr Gebler's Claim:

70. In Mr Gebler's claim the statement of claim names the Commonwealth as a defendant. Federal jurisdiction is thereby enlivened (constitution s 75(iii)). Power will be vested in the tribunal pursuant to s 39(2) of the Judiciary Act 1903.

71. For the reasons summarised earlier I accept that RESI Corporation is the Crown in right of South Australia. If that be so then s 58 of the Judiciary Act 1903 will have application. The terms of the section are as follows:

58. For suits against a state in matters of Federal jurisdiction, any person making any claim against a state, whether in contract or in tort, in respect of a matter in which the High Court has original jurisdiction or can have original jurisdiction conferred on it, may in respect of the claim bring a suit against the state in the Supreme Court of the state, or (if the High Court has original jurisdiction in the matter) in the High Court.

72. The wording of s 58 closely resembles the wording in s 56 which applies in respect of claims made against the Commonwealth. In both sections the words conferring the right to bring a suit against either Commonwealth or state are expressed permissively, ie such a person ". . . may in respect of the claim bring a suit against . . ."

73. S 56 has been considered by the High Court in Breavington v Godleman (1989 - 1990) 169 CLR 41. At 69 Mason CJ said:

Although for these reasons s 56 does not limit or curtail the investment of jurisdiction achieved by s 39(2), the effect of s 56 is to qualify or restrict what may be done in the exercise of that jurisdiction by providing that the right to proceed against the Commonwealth in respect of a claim in contract or tort, arising in a territory is exercised but only in the circumstances mentioned in the section. The Judiciary Act confers no such right in any other circumstances. On this footing s 56 enabled the Commission to defeat the action on the ground that the appellant had no right to proceed against the Commonwealth in the Supreme Court of Victoria: See The Commonwealth v Rhind (1966) 119 CLR 584 at 599, 606 to 607.

74. At 104 Wilson and Gaudron JJ said:

Notwithstanding that s 56 does not, in our view, effect a divestiture of the jurisdiction invested by s 39(2) of the Judiciary Act, it does not automatically follow that such jurisdiction is exercised within the present case, in consequence of submission thereto by the Australian Telecommunications Commission. Certainly s 56 is permissive in terms, but its permissive operation is only to enable a plaintiff to select as between this court, the Supreme Court of the state or territory in which the claim arose, or another court of competent jurisdiction of that state or territory. It thus limits the invocation and exercise of the jurisdiction invested by s 39(2) of the Judiciary Act. The fact that it limits the exercise of the jurisdiction invested by s 39(2) rather than operates to divest such jurisdiction, means that a matter commenced other than in accordance with s 56 is not coram non judice. However, if a court disregards or fails to observe the conditions attaching to the exercise of jurisdiction, then the judgment or order, although not void, 'may be set aside and devoided by proceedings by way of error certiorari or appeal': per Dixon J in Parisienne Basket Shoes Pty Limited v Whyte (1938) 59 CLR 369 at 389.

75. Although the judgments referred to are dealing with s 56 they provide a clear guide to the way in which s 39(2) of the Judiciary Act works in conjunction with the provisions of Pt 9 of that Act. The first defendant submits that the provisions of s 58 require that a suit against the state of South Australia be brought in the Supreme Court of that state or in the High Court. It seems to me that the construction of s 58 should be undertaken in that way and the submission of the first defendant in this regard should be upheld.

76. I note Mr Shaw's submissions that s 56 and s 58 are dealing with different circumstances. He submits that in s 56 the Commonwealth is in effect marking out its own territory in that in a piece of Commonwealth legislation the Commonwealth can be seen to intend to restrict claims against it in state courts. It is submitted that while that may be understandable when one gets to s 58 one enters a different area of discourse. It is submitted that the sections are conceptually different.

77. One may acknowledge the force of these observations, but the guidance of the High Court in respect of s 56 is so clear that one would hesitate not to take a similar approach with regard to s 58. Applying the section in this way it seems to me that the application in respect of Mr Gebler's case ought to succeed. I set aside service of the statement of claim on the first defendant RESI Corporation in Mr Gebler's case, The proceedings will remain on foot against the other defendant, that is the Commonwealth.

78. For reasons given earlier the application in Mr Sinclair's case is dismissed with costs.

79. As regards Mr Gebler's claim I grant liberty to apply about costs.

Mr J Shaw QC and Mr J Sharpe instructed by Turner Freeman appeared for the plaintiff.

Mr Parker instructed by Church & Grace appeared for the first defendant .

Mr Scotting instructed by Middleton Moore & Bevins appeared for the second defendant.