Smith v Australian National Line Ltd

[1999] HCATrans 371

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P67 of 1998

B e t w e e n -

STEPHEN PAUL SMITH

Applicant

and

AUSTRALIAN NATIONAL LINE LTD

Respondent

Application for special leave to appeal

GAUDRON J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 21 OCTOBER 1999, AT 9.32 AM

Copyright in the High Court of Australia

MR E.M. HEENAN, QC:   May it please, your Honours, I appear with my learned friend, MR N.J. MULLANY, for the applicant.  (instructed by Slater & Gordon)

MR G.H. MURPHY:   May it please, your Honours, I appear for the respondent.  (instructed by Cocks MacNish)

GAUDRON J:   Yes, Mr Heenan.

MR HEENAN:   May it please your Honours, the special leave question in this application is whether the protection conferred by section 51(xxxi) of the Constitution about the acquisition of property on just terms can be outflanked by a legislative manoeuvre in the Seafarers Rehabilitation and Compensation Act 1992 and the combined Transitional Provisions Act of the same year so as to acquire an action for damages for personal injuries sustained by a seaman in circumstances which we submit is no different in substance and arguably no different in form than was pronounced upon by this Court in Mewitt and in Georgiadis. 

Your Honours, the system of the Seafarers Rehabilitation and Compensation Act of 1992 was to replace the familiar common law doctrine of liability to tort for seafarers by a non‑fault scheme and, in the process, by section 54 to eliminate rights of action for damages.  The application of the Seafarers Rehabilitation and Compensation Act itself can be determined by looking at a series of sections, the definition section and sections 18, 19 and subsection (4).

GAUDRON J:   Does the question that you seek to agitate amount to this, namely, whether there was an acquisition of property?

MR HEENAN:   Yes, it does, your Honour, but it also raises the question of whether this legislation is, in substance, a law for the acquisition of property or, as the majority in the Full Court held, simply a law varying limitation periods.  We say that it is a law.

GAUDRON J:   Now, if you were to be granted special leave on that point, would any other issues arise in the appeal?  There would be a question of statutory construction, would there not?

MR HEENAN:   Yes, there would, your Honour.

GUMMOW J:   What would be the outcome if you are successful for the litigation?  What would then follow?

MR HEENAN:   The case would be remitted for trial because it has found its way through the court process, your Honours, on preliminary questions of law.  There were two questions posed for his Honour Justice Ipp.  It is only the second of those questions which is ‑ ‑ ‑

GUMMOW J:   What happened to the first?

MR HEENAN:   His Honour decided against it but the Full Court decided in favour of us.

GUMMOW J:   There might be a cross‑appeal, I suppose.

GAUDRON J:   Yes.  We might hear from Mr Murphy.

MR HEENAN:   May it please your Honours.

GAUDRON J:   Yes, Mr Murphy.

MR MURPHY:   May it please your Honours.  In our submission, this case does not warrant intervention by the High Court and, in our submission, no question of general public importance is involved.  There is no new or important principle that needs to be considered.  The case is simply a matter of the proper construction of the statute.  The cases to which my learned friend refers in his outline represent a well‑trodden path of principle but they are cases which were decided upon quite a different statute and the cases of Georgiadis and Mewitt do not offer any assistance, in our submission, as to the proper approach of the construction of the ‑ ‑ ‑

GAUDRON J:   If they do not offer any assistance, then where do you get it from?

MR MURPHY:   Your Honour, it is a matter of just looking at the statutory language involved in both Mewitt and Georgiadis.  There was a blanket words of generality which, in effect, took away vested common law rights as from the date of the commencement of the operative provisions of the Act.  The seminal difference between that legislation and this legislation is that there is a Transitional Provisions and Consequential Amendments Act which expressly qualifies the words of generality in section 54 of the principal Act.  I think your Honours have the ‑ ‑ ‑

GUMMOW J:   Consequential Provisions Act.

MR MURPHY:   Yes, your Honour.  Section 13 provides, in effect, that, despite and notwithstanding section 54, which is the words of general application, an employee ‑ ‑ ‑

GAUDRON J:   It says no action can be brought, in effect.

MR MURPHY:   Section 54 says that, yes, your Honour.

GAUDRON J:   Yes.

MR MURPHY:   And then section 13 says despite or notwithstanding that, the words of general application, an employee does have:

the right to bring, within 6 months after the commencing day, an action…..in respect of:

(a) an injury sustained before the commencing day ‑ ‑ ‑

GAUDRON J:   So, after six months he has no right.

MR MURPHY:   That is correct, your Honour.

GAUDRON J:   Notwithstanding that there is a vested cause of action.

MR MURPHY:   That is so, your Honour.  The legislation is not taking away a vested cause of action upon the commencement of the Act.  It is saying that vested causes of action subsist.

GAUDRON J:   For six months.

MR MURPHY:   The rights to exercise them need to be exercised within six months and that, in effect, is what any statutory limitation provides, so there is no acquisition of property here.

GUMMOW J:   Why not?

MR MURPHY:   Because vested causes of action subsist notwithstanding the legislation.

GUMMOW J:   They subsist with a condition subsequent, namely, after six months you disappear.

MR MURPHY:   That is so, your Honour, but they subsist – the words of the statute do not extinguish the cause of action.  They merely provide a time within which it has to be exercised. 

GUMMOW J:   That is Mr Heenan’s argument about substance and form, I think.

MR MURPHY:   It is not a matter of form, your Honour.  In Georgiadis there was apparently a similar argument put by the learned Solicitor‑General about a limitation point in that case.

GUMMOW J:   But it did not have to be resolved.

MR MURPHY:   Their Honours rejected it.  They rejected it for very good reason.  I can take your Honours to that.  It is Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297. At page 299 one sees the argument of the Solicitor-General and he says that:

The Act was assented to –

in that case –

on 24 June 1988.  The commencement date of most provisions, including –

the relevant operative provision –

was 1 December 1988.  Therefore the operation of the scheme was merely to limit to a period of five months from 1 July 1988 the further period within which the plaintiff could commence proceedings.

GAUDRON J:   And that is, in substance, what you are saying here, is it?

MR MURPHY:   No, your Honour.  One can see that the legislative scheme is quite different there.  That highlights the distinction I am seeking to make, your Honour.  The point is that in that case people who had a vested cause of action as at the commencement of the operative provision have that vested cause of action extinguished, so in other words, even though the Act was assented to in June, people who had an injury occur in the day or the two days or the hour or the minute before the commencement date of the Act woke up on 1 December 1988 to find that that cause of action could not be sued upon.  There was not sufficient time in which to exercise the right, so there was an extinguishment of the right.  The Court in that case, your Honours, at page 307 addressed the point at about point 5 on the page:

However, it is by no means accurate to describe s.44 as a law modifying the limitation period applicable to causes of action with respect to injuries sustained by Commonwealth employees before the new scheme came into effect.  Subject to s.45, which does not apply in the present case, s.44 puts an end to a cause of action against the Commonwealth or its agencies if it was not sued upon before it, s.44, came into effect.  Section 44 operated once and for all as a final measure terminating those causes of action which fall outside s.45, not as a measure prescribing the time in which proceedings were to be commenced.

And, with respect, of course, that was absolutely correct in that case because, as I say, it was legislation ‑ ‑ ‑

GAUDRON J:   But it does not follow from what is there said, does it, that a legislative provision of the type here in question does not fall within 51(xxxi)?

MR MURPHY:   It does not follow as a matter of binding precedent.

GAUDRON J:   Or as a matter of logic.

MR MURPHY:   As a matter of logic, with respect, it does, because ‑ ‑ ‑

GUMMOW J:   Why?

MR MURPHY:   Because in that case the causes of action which had vested were extinguished as at the commencement of the Act.  One could not sue upon them after the commencement of the Act.  Now, in this case, the Act preserves causes of action and allows time in which they are to be sued upon, so it cannot be said that they are extinguished because they can be exercised.

GAUDRON J:   I would have thought that perhaps the more significant difference between this present case and Georgiadis is that Georgiadis was concerned with causes of action against the Commonwealth, whereas this legislation is of general application, is it not?

MR MURPHY:   It is, your Honour, and that is the second string to our bow, as it were, and we endorse and embrace that proposition.  That is so, your Honour.

GAUDRON J:   But even though there is no authority pronouncement of this Court in the context of a law that extends beyond the Commonwealth?

MR MURPHY:   No, one sees references to it in Georgiadis and some of the other earlier cases but there is no binding authority which addresses the question.  The point which, in my submission, can be dealt with at the leave stage is that one can see that there is no arguable extinction of a right because one was driven to say that every limitation period involves a divesting of a cause of action and that, with respect, cannot be right.

GAUDRON J:   But it does not, does it?  As a matter of theory that is not correct, is it?

MR MURPHY:   That is so, your Honour, and that is why the argument by the applicants, with respect, cannot succeed because if the cause is preserved it has to be sued upon with six months.

GAUDRON J:   But is not the difference this?  A defendant might waive a limitation period in the case of a true limitation statute.  Here, you say no action can be brought.  There is nothing for a defendant to waive.  Arguably, there is no jurisdiction of the Court to entertain the proceedings.

MR MURPHY:   Your Honour, the effect of the provision, we would submit, is that it is, in effect, a limitation period so that ‑ ‑ ‑

GUMMOW J:   This expression “no action may be brought” I think derives from the New South Wales Limitation Act of 1969 which was perceived as an extinction statute.  I may be wrong about that but there is room for argument about all that, I think.

MR MURPHY:   Your Honour, that was a point I was seeking to avoid at the next stage.

GAUDRON J:   What about this first question of law that was determined against you?

MR MURPHY:   Your Honours, without wishing to give anything away today, I suspect that that may not be raised.

GUMMOW J:   But it would theoretically be there, would it not?

MR MURPHY:   The plaintiff succeeded on ‑ ‑ ‑

GUMMOW J:   What was the first question?

MR MURPHY:   The first question was really whether the State statute barred the action.

GUMMOW J:   Yes, that is right.

MR MURPHY:   The Full Court decided that there was no prohibition there.

GUMMOW J:   Because?

MR MURPHY:   Because, on the proper construction of the State statute, the particular provision which was relied upon by my client, which was a provision concerning government agencies, did not apply to Commonwealth government agencies as opposed to State agencies.

GUMMOW J:   Yes, thank you.

MR MURPHY:   Your Honour, the two points that I seek to make are the fact that it is, in our submission, quite a different statutory regime and the other decisions shed no light on the proper construction of this statute and the other point which your Honour foreshadowed we would be making and that is it is a general regularity scheme which organises and forces rights as between competing classes of people within a particular sector of the economy.  I cannot take it any further, your Honours.

GAUDRON J:   Yes, thank you, Mr Murphy.  Mr Heenan, we take it if special leave were granted, this is a case that would comfortably conclude in one day?

MR HEENAN:   Indeed, it would, your Honour.

GAUDRON J:   Yes.  In those circumstances, there will be a grant of special leave and we need not trouble you further.

MR HEENAN:   May it please your Honours.

AT 9.47 AM THE MATTER WAS CONCLUDED