Smith v The Commonwealth of Australia

[1991] HCATrans 180

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl43 of 1989

B e t w e e n -

RUTH GILLIAN SMITH

Plaintiff/Applicant

and

THE COMMONWEALTH OF AUSTRALIA

Defendant/Respondent

Application for remitter

MASON CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 23 JULY 1991, AT 10.12 AM

Copyright in-the High Court of Australia

Smith 1 23/7/91

MS C.C. SIMPSON, QC: If Your Honour pleases, I appear with

my learned friend, MR s. GAGELER, for the

plaintiff. (instructed by Maurice May & Co)

MR D.M.J. BENNETT, QC: If Your Honour pleases, I appear

with my learned friend, MR A. ROBERTSON, for the

defendant. (instructed by the Australian

Government Solicitor)

HIS HONOUR:	Yes, Mr Bennett?
MR BENNETT:	It might be convenient if I were just to take a

moment to tell Your Honour what the position is in

a number of associated matters so Your Honour can

see how this fits into the general situation.

There are 61 matters in this Court's Registry

at the moment arising out of the atomic tests at

Maralinga. Of those, three are in the Melbourne

Registry and have different solicitors to the

solicitors acting for the other 58. In relation to

those three in Melbourne, two have been
discontinued and in the third, instructions are
anticipated for a consent order remitting it to the

Federal Court.

In the 58 in the Sydney Registry, in all of

which my learned friend's instructing solicitors

are the solicitors for the plaintiff, consent
orders have been obtained in relation to 35 of them
remitting them to the Federal Court. There is one
very minor hiccup in relation to those and that is

that the consent orders at the moment include

consents to two declarations. It has been agreed

that it is inappropriate for those to be made and,

in fact, the consents will be sought without those

declarations. So, they will simply be

remitted - - -

HIS HONOUR: That is agreed, is it?

MR BENNETT:  That is agreed, yes, Your Honour. And so they

will simply be remitted with some procedural orders

with which Your Honour will not be concerned this

morning. One of them, the matter of Harry, has

been discontinued. That leaves 22. Of those, in

five, my learned friend's instructing solicitors

hav~ instructions to seek remitter to the Supreme

Court of New South Wales. That is opposed and we

seek remitter to the Federal Court. One of those

is to be argued as a test case for the five before

Your Honour this morning.	I would not imagine it
would take very long, but that is in issue.	The

one of those five being used as a test case is

R. Smith. There are two Smiths so we need the

initial.

Smith 2 23/7/91

HIS HONOUR:  R.G. Smith, is it?

MR BENNETT: Yes, Your Honour, yes. That leaves 17 in

relation to which my learned friend's instructing

solicitors do not yet have instructions as to

whether they will go to the Federal Court by

consent or whether they, if Your Honour makes the

orders sought by the plaintiff, in our submission,

would go to the Supreme Court. In relation to

those, subject to what orders Your Honours makes

this morning, the appropriate course, it seems to

us - regardless of whichever order Your Honour

makes this morning, the appropriate course, by

consent, is that they go over for a period of

somewhere between two weeks and a month to a date

convenient to the Court, at which date, hopefully,

consent orders will be made one way or the other in

those, and that should assist to clear the Court's

lists.

HIS HONOUR:  There is no opposition to the 17 going over for

two or three weeks?

MS SIMPSON:  No, Your Honour.

HIS HONOUR: All right. Well, as long as you can identify

them in some, I am prepared to make a consent order

in them, Mr Bennett.

MR BENNETT:  Yes. My learned junior has some lists

somewhere, Your Honour, which I will hand up in a

moment. That leaves the matter in issue, the question of whether the matter of R. Smith is remitted to the Supreme Court of New South Wales or

the Federal Court.

HIS HONOUR:  Yes. You are contending for the Federal Court

and Ms Simpson is contending for the New South

Wales Supreme Court?

MS SIMPSON: Yes, Your Honour.

MR BENNETT:  Yes, Your Honour.

HIS HONOUR: Yes, Ms Simpson?

MS SIMPSON:  I have to say, Your Honour, that in that matter

our instructions are to seek an order that it be remitted to the Supreme Court of New South Wales but I must add to that that the only matters which

I could put in support of those orders are the matters that have been ruled as being impermissible
matters by Mr Justice Gibbs in the State Bank v

Commonwealth Bank case. They are the more ready

availability of juries in the Supreme Court of New

South Wales and the availability of interest on an

award of damages. Given what Your Honour has said

Smith 3 23/7/91

in Pozniak and what the former Chief Justice said
in the State Bank case, I would not want to take up

further time of Your Honour in attempting to

advance an argument that I do not foresee having

great prospects of success. But, Your Honour,

those are the matters I am instructed to put.	I do
not want to argue it any further.

HIS HONOUR:	Yes, Mr Bennett?
MR BENNETT:	Your Honour, I can probably be equally brief.

I have prepared a short outline of submissions

which I hand to Your Honour.

HIS HONOUR:  Now, do your submissions identify the only two

potential differences in the laws to be applied?

MR BENNETT:  Yes, Your Honour. I understand that my learned

friend concedes on behalf of all the plaintiffs

that they will not at any time in these proceedings

contend that no Limitation Act applies.

HIS HONOUR:	Yes.
MR BENNETT:	I may have put it a little higher than I -

would Your Honour just pardon me a moment?	I
withdraw what I just said in relation to that.	I
am sorry, Your Honour. That concession is

correctly stated but only in relation to the 35 in

which consents have been filed.

HIS HONOUR:  So, it does not apply to this case?

MR BENNETT: It does not apply to this case. Your Honour,

while we would contend that in whichever court we
were remitted to that the result is not
affected, there is, I understand, a case at present

pending before the Full Court in which some doubt has been cast along on some of the authorities in

this area.

HIS HONOUR:  What, are you thinking of R.W. Miller V McKain?

MR BENNETT: Yes, Your Honour.

HIS HONOUR: Yes. Well, I was going to say that whilst I am

quite prepared to make an order in this case, the

question that is to be determined in R.W. Miller v

McKain, in which the Court has reserved judgment,

is whether or not limitation provisions of this

course, the old received view was that essentially provisions of this kind were procedural, not substantive. That view has been challenged in	kind are matters of substance or procedure. Of of judgment in that case to determine what the
character of the provisions are. That was a case

Smith 4 23/7/91

in which an injury took place in South Australia.

Proceedings were commenced in New South Wales in

relation to compensation for that injury. The

question was which provisions governed the case in

terms of limitation because there was a difference,

as you would be aware, from this case between the

New South Wales provision and the South Australian provision.

MR BENNETT:	Yes.
HIS HONOUR:	Now, before hearing what was involved in the

issues in this case, it occurred to me the outcome
of that case may have some bearing on the present

case and therefore I just wondered whether or not

it might be prudent to defer making an order in

this case until the outcome of that case was known.

MR BENNETT:  Yes. In the absence of that concession, that

may be the better course.

HIS HONOUR:  Of course, what I have said, Mr Bennett, is

really said in ignorance of what might be described

as the ramifications that might flow from hearing

the case in the Supreme Court of New South Wales

and hearing the case in the Federal Court because I

have not applied my mind to what the consequences

might be.

MR BENNETT:  I appreciate that, Your Honour. Your Honour, I

think	the solicitors are just having a word about
this.	I had assumed that there was an agreement on
this.

HIS HONOUR: Well, would you like a short adjournment?

MR BENNETT:  Would Your Honour grant me five minutes,

please?

HIS HONOUR:	Yes, certainly, by all means.
AT 10.24 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.25 AM:

HIS HONOUR:	Yes, Mr Bennett?
MR BENNETT:	I apologize, Your Honour, there was a

misunderstanding between us. I am told by my

learned friend that the concession extends to the

five matters as well as the 35. It.does not extend

Smith 5 23/7/91

to the ones in which there are no instructions,

obviously. That being so, there is no limitation

problem in relation to the two forms of remitter

remaining but the main problem is the jury and the

lesser problem is the possibility that there may be

an argument about interest.

Your Honour, for those reasons, we would

submit that in view of the decision of His Honour

the Chief Justice in the State Bank it is

appropriate that the remitter go to the Federal

Court. The other reason, of course, is that the

fact that the consent has been given in the 17 is a

reason why it is convenient for them all to go to

the one place.

Finally, Your Honour, under Order 51A

rule 1(2) of the Federal Court Rules, that provides

that the Chief Judge of the Federal Court has power

to direct that the order be filed in a particular

registry:

In the absence of a specification of a

District Registry -

by this Court. We would submit the convenient

course is for Your Honour to specify the "District Registry" and to specify New South Wales. That is consented to, I think, if the order is made.

HIS HONOUR:  Do you agree to that if the order is made?

MS SIMPSON: Yes, Your Honour.

HIS HONOUR:  Now, Ms Simpson, do you want to respond to

anything that Mr Bennett has said? I would be

surprised if you did in view of what you have told

me?

MS SIMPSON:  No. The only thing I would say, Your Honour,

is that if Your Honour were inclined to make the

declarations relating to the Limitations Acts, we

would submit it is inappropriate for such

declarations to be made.

MR BENNETT:  We are not seeking them.

HIS HONOUR: __ I had understood Mr Bennett was not seeking a

declaration. All he is seeking is a remitter at

this stage to the Federal Court.

MS SIMPSON: Yes, and I have nothing further to say,

Your Honour.

HIS HONOUR:  Am I right, Mr Bennett, in thinking that all

you are asking for at the moment is an order of

remitter to the Federal Court and a specification

Smith 6 23/7/91

of the registry in the Federal Court, namely, the

New South Wales Registry?

MR BENNETT: Yes, Your Honour, and certification for

counsel. I do not know if the practice is to

certify for senior counsel on an interlocutory

motion. It is Order 71 rule 62(1).

HIS HONOUR:  So, you would be seeking, if we look at your

summons, order 2 and an order of specification of

registry? That is all you would be seeking?

MR BENNETT: Yes, Your Honour, and the certification for

costs or costs be reserved.

HIS HONOUR:	And certification for costs?
MR BENNETT:	Yes, Your Honour.
HIS HONOUR:	Do you want an order for costs apart from the

certification for costs? Just costs in the cause?

MR BENNETT: Costs in the cause, yes, Your Honour.

HIS HONOUR:  Yes, very well.

In this matter the defendant seeks an order

remitting the action to the New South Wales

Registry of the Federal Court of Australia. The

plaintiff seeks a remitter to the Supreme Court of

New South Wales but counsel for the plaintiff

concedes that the matters on which the plaintiff

seeks to rely in support of that remitter are

matters which are precluded from consideration by

the decision of the Chief Justice Gibbs in the

State Bank case. It is not suggested that

His Honour's decision in that case was wrong. In those circumstances, I have no alternative but to order that the matter be remitted to the Federal

Court of Australia in its New South Wales Regi~try.

Accordingly, I make the following orders:

order 2, as sought in the defendant's summons;

order that the matter be remitted to the Federal

Court of Australia in its New South Wales registry.

I also order that the costs of the proceedings bef9re me be costs in the cause and I certify for

senior counsel.

MR BENNETT: If Your Honour pleases,

MS SIMPSON: If Your Honour pleases.

MR BENNETT:  Now, Your Honour, in relation to the

adjournments, would Your Honour permit us simply to

Smith 23/7/91

lodge later in the day in the Registry lists of

which matters are in which categories?

HIS HONOUR:  Yes.

MR BENNETT: That is probably the convenient course rather

than trying to cobble together a list from - - -

HIS HONOUR:  Yes. Will you be submitting written forms of

order in each case or not, Mr Bennett?

MR BENNETT:	Yes, Your Honour, I understood that was
HIS HONOUR:	That would be the most convenient way.

Otherwise, if I am not here I cannot pronounce an

oral order but I can actually sign an order if you

submit orders in writing.

MR BENNETT: Yes. If Your Honour pleases, we will do that.

HIS HONOUR:  That is probably the best course to adopt.

AT 10.32 AM THE MATTER WAS ADJOURNED SINE DIE

Smith 23/7/91