State Rail Authority of New South Wales v Hammond

[1989] HCATrans 212

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl5 of 1989

B e t w e e n -

STATE RAIL AUTHORITY OF NEW

SOUTH WALES

Applicant

and

LLOYD HAMMOND

Respondent

Application for special leave

to appeal

MASON CJ

TOOHEY J

Rail

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 SEPTEMBER 1989, AT 10.59 AM

Copyright in the High Court of Australia

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MR J.M.N. ROLFE, QC:  In this matter I appear with my learned

friend, MR P. STONE, for the applicant. (instructed

by F.D. Thompson, Solicitor for the State Rail

Authority of New South Wales)

MR M.T. BROUN, QC:  I appear with MR J. ATKIN for the

respondent. (instructed by Murtough, Cheney & Wilson)

MR ROLFE:  Your Honours, the first problem which this matter

confronts is that the application for special leave

was filed out of time and we would seek an enlargement

of time pursuant to Order 60 rule 6(1). Your Honours,

it may be convenient, subject to Your Honours, to

determine that after hearing the submissions on the

substantive matter.

MASON CJ:	Yes.
MR ROLFE:	The question which arises is whether the Court of

Appeal properly construed clause 3(l)(h) of the

TRANSPORT AUTHORITIES ACT 1980 in schedule 8 of that

Act in determining that defences which were available

to the Public Transport Commission under the PUBLIC

TRANSPORT COMMISSION ACT were not available.

Briefly, the history was this: the respondent

sustained personal injuries on 22 November 1973 when

he fell in some way from a train at a railway station.

At that date the Authority charged with the control
of railway and railway premises was the Public
Transport Commission pursuant to the PUBLIC TRANSPORT

COMMISSION ACT of 1972 and amongst other defences

provided by that Act was one provided by section 29(5)

whereby action had to be commenced within 12 months

or some other period as provided by subsection (6) of

the accrual of the cause of action.

It was comm.on ground before the Court of Appeal

that the action was neither commenced in time nor was

any extension of time granted. The TRANSPORT

AUTHORITIES ACT 1980 was assented to, Your Honours, on

1 May 1980 and the appointed day for the purposes of

schedule 8 was 1 July 1980. On that date the Public

Transport Commission was dissolved by clause 2(1) of schedule 8 and clause 3, if I may put it in general terms, provided for the transfer of assets and the

effect upon claims both pending and proposed.

On 22 April 1986 the plaintiff commenced

proceedings through a tutor, he being a disabled

person, against the State Rail Authority. The present

applicant, Your Honours, sought to raise by way of

defence the provisions of the PUBLIC TRANSPORT

COMMISSION ACT relating to the failure to bring the

proceedings within time and sought thereafter, in

effect, judgment in its favour based on those defences.

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For various r~asons, that application was

refused by a master of the court, by a single judge of the court and ultimately by the Court of Appeal,

Mr Justice Hope and Mr Justice Mahoney agreeing in

the reasons of the President. The basis upon which

the Court of Appeal dismissed the appeal was that

upon the proper construction of clause 3(l)(h) no

provision was made for the transmission to the State

Rail Authority of defences which had accrued to the

Commissioner and that, Your Honours, appears firstly

at page 31 line 32 and what His Honour the PrP.sident

held was that:

The only defen~es available to the SRA are

those which it enjoys in its own right.

And that appears, Your Honours, at page 32 line 38,

where,after a citation from SOVEREIGNTON's case,

His Honour said:

The only defences available to the SRA are

those which it enjoys in its own right. It

Transport Commission would have had against does not inherit the defences which the Public against the Commission.

This was repeated in effect at page 37 line 11 where

His Honour said:

If it were simply the remedy and not the

right that was extinguished bys 29(5), that

conclusion is fatal to the present claim of

the SRA. This is so, because the defence

which gives rise to the claim that the remedy is unavailable to Mr Hammond disappeared with the Commission. It was not transferred to the

SRA. It cannot be pleaded by the SRA.

Clause 3(l)(h) is set forth in His Honour's reasons

at page 31, although we do have copies if that would

be of any assistance, but for present purposes,

Your Honours, it appears sufficiently there, we would

submit, and that provides that:

On and from the appointed day -

(h) all liquidated and unliquidated claims

for which the Commission would, but for the

enactment of this Act, have been liable shall

be liquidated and unliquidated claims for

which the Authority shall be liable.

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It is our submission that it is a statutory

condition precedent to seeking to make the is a claim for which the Commission would have been

liable but for the enactment of the 1980 Act, that

is the Authority is liable for the actual liability

of the Public Transport Commission; therefore, in

our submission, to succeed against the Authority the

present respondent must prove that his unliquidated
claim is one which the Commission would have been
liable for but for the enactment of the 1980 Act

and to establish that liability the respondent will

have to overcome, in our submission, the defences

which the Commission, had it not been dissolved, would
have been entitled to raise, which defences must be

available to the Authority, not so much as defences upon which it relies in its own right but rather.as

defences upon which it is able to rely in showing

that the statutory condition precedent has not been

met.

It is not therefore, we would submit, a matter

of any defence being transferred to the State Rail
Authority; rather that Authority relies upon matters

which but for the enactment of the 1980 Act would

have precluded the Commission from being held liable.

If the Commission would not have been held liable,
this is not an unliquidated claim for which the

Authority shall be liable. Therefore, we would submit

that it was strictly unnecessary to be concerned

whether there was a transfer of defences; rather on

proper analysis the Authority is entitled to rely

upon defences which would have been available to the
Commission but for its dissolution to defeat the unliquidated claim for which otherwise the Commission

would have been liable.

TOOHEY J:  Mr Rolfe,if treargument that is implicit in what you

have been saying were accepted, does the 12 month

period operate as an absolute bar or is it itself

subject to extension?

MR ROLFE:  It is subject to extension, but within the 12 months,

Your Honour. So it was common ground that the time

would have expired two years after the date of the

accident, that is in November 1975. So it would

have been, as things stood, an absolute bar.

TOOHEY J:  The application for special leave supported by the

proposition that there are other claims that depend

upon it.

MR ROLFE: I think it says there is one other claim, but

none the less, it is a transitional provision. But

in answer to what Your Honour Justice Toohey puts to

me, yes, it says there is one other claim which

immediately falls within this - - -

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GAUDRON J: There are no notice before action requirements

left in relation to suits against governments and

government agencies in New South Wales - - -

MR ROLFE:  There was in this case, Your Honour. Section 29(1)

still applied.

GAUDRON J:  But since then the notice before action requirements

have gone, have they not?

MR ROLFE:  Oh yes. But that Act came into effect in 1977 and

did not act retrospectively.

GAUDRON J:  No. So we are talking only about injuries before

1977, are we?

MR ROLFE:  Not only that. Your Honours, what I wish to - having

laid the specific point - was then to focus on was
that if the Court of Appeal decision stands, it means

that the State Rail Authority is precluded from

raising any defences which would have been open to the

Public Transport Commission, not merely time limitation
defences but any defences at all. Because what
the learned President said, with the concurrence of
the other two members of the bench, is there could

only be reliance upon defences which were available

to the State Rail Authority.

TOOHEY J: Is that right, Mr Rolfe? The Court of Appeal dealt

with the matter in terms of remedy contrasted with

rights, the relevance of which is to limitation

defence, as you can see, but would that have any

relevance to any other defences that might have been

available to the Commission?

MR ROLFE:  Certainly, Your Honour, it was put as widely as

that and I have read to Your Honours the passage at

the foot of page 32.

TOOHEY J:	It may need to be read in context, perhaps.
MR ROLFE:

All we can submit is it is put as widely as that and

there is certainly no suggestion, for example, that if

a defence of contributory negligence or volenti or

particularly a defence by way of set off,where there

had been payments under the relevant legislation

equivalent to workers compensation payments had been

made by the Public Transport Commission, that that

would be a defence which could in any way accrue to the

State Rail Authority. Your Honours, whilst one

appreciates that the matter has to be put in context,

the passage which I have just referred the Court to

at the foot of page 32 seems to follow apropros an

acceptance of what was said by Mr Justice Hutley in

SOVEREIGNTON's case, and which is set out at page 32.

At about line 21, His Honour said:

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A liability is handed on, and it is to this

liability which is handed on that the

defendant may raise defences.

Our respectful submission is that one has to look at

the quality of the liability which is handed on and

when one looks at clause 3 (l)(h) the quality or

nature of the liability which is handed on is a

liability for which the Public Transport Commission

would have been liable but for the enactment of the

1980 Act and therefore, we would submit, it must be

open to the State Rail Authority to say, "That is a

liability for which the Public Transport Commission would

not have been liable" for whatever the reason might

be, and it is for that reason , Your Honour, that we

have framed the submission on the basis of a

statutory condition precedent for the bringing of the

action.

But what has happened is that the consequence

of the Court of Appeal's decision is to preclude the

State Rail Authority from raising any defences which -

I appreciate what Your Honour Justice Toohey has put

to me - any defences which would have been open to the

Public Transport Commission and, in those circumstances,

we would submit, the construction of the clause is

clearly wrong, the matter of principle is that it is

a transitional provision relating to a public authority;

it has a predecessor in the 1972 Act, the PUBLIC

TRANSPORT COMMISSION ACT, and Your Honours, for those

reasons we would submit special leave should be granted.

MASON CJ: Yes, Mr Broun.

MR BROUN:  Your Honours, we first draw attention to the fact

that this appeal is sought to be brought still from

to an end but if my client succeeds, if appeal

a matter of summary judgment. Certainly if the action

is granted, then my client can still lose, in effect,

because we still have not proved our negligence, we

still have not succeeded on the facts, and the facts

have still not yet been determined. So that there

would, after the determination of the facts, be an

opportunity for this Court to consider any question
of law which genuinely arose or was still alive.

Secondly, Your Honours, we would point out that

this is a case where the question of law is of very
limited general application. It seems it is put

forward that it applies in this case and perhaps one

other. It does not seem to be of general application,

on the interpretation of the State Rail Authority's

rights- - -

TOOHEY J: That is not the way it is put by the applicant

though, is it?

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MR BROUN: Indeed, it is sought to be contended, as I understand

my learned friend's submission, that it may affect

other defences but it is not terribly clear what

those other defences could be which would be affected

in the same way. So we would submit, Your Honours,

that it is not a point of general - - -

GAUDRON J:  Mr Rcilfe said what they were. He said they could

apply to contributory negligence defences- - -

MR BROUN: Well that one has not been abolished and nobody

suggests that it has, as I understand it. In fact,

it is pleaded in this very case. So that in our

submission the questions of general law which may

have altered defences are quite different. The

question is whether this particular transfer of

obligations from one authority to another has altered

defences available. In our submission, one would

look to the general law to see if there are any

defences that were available but have gone, but the

question is whether it applies to any other special

defences which arose under the previous legislation

which is now replaced and we would - - -

TOOHEY J: Yes, I see that. You are saying that one would

have to find a comparable defence spelt out in the

statute itself.

MR BROUN:  Special to the State Rail Authority or to its

predecessor. At the moment - certainly my friend no

doubt has greater familiarity with that piece of

legislation than I do, but there is no particular

indication that there is any specific defence

available to the railway Conunission, the predecessor,

which has been effectively abolished which this

decision may have an impact on.

Your Honours, thirdly we would contend that the

judgment of the President of the Court of Appeal is

to be seen as a correct resolution of the problems

but in that regard I would like to refer to one

particular matter. A virtually identical problem

arose in SOVEREIGNTON's case where there was a

similar question of a change between the two pieces

of legislation in the defence that was available -

the two previous pieces of legislation - and there it

seems to have been, in SOVEREIGNTON's case, expressly

conceded that the consequences of an almost identical

section was to eliminate or to destroy defences - that

the previous legislation had eliminated a remedy and

not a right. Now, that occurs in SOVEREIGNTON's case.

It is expressly referred to in SOVEREIGNTON's case

at page 255 of the report, (1980) 1 NSWLR 255, against

the marginal note (44) or the paragraph (44) where it

was said that:

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It was conceded by the defendant that

s 143 -

of the legislation there considered -

destroys the remedy and not the right. When

the Commissioners ceased in 1932 to be the

relevant defendants, no claims touching these

matters had been made; this section had not

destroyed any right which may have come into

existence, there was some liability to be

transferred to the Commissioners' successors,

whenever liability for negligent construction

accrued.

Now that is specifically referred to in the passage

quoted from SOVEREIGNTON's case in the judgment that

Your Honours are now considering at page 32 where

it is said, about line 15, I think:

It was contended by counsel for the defendant

that, in the case of liabilities which had

been perfected, they carried with them any

defences which might be raised by the defendant

at the time of such perfection.

The same contention as in the present case.

Once it is conceded,as it is -

and that was the passage I just read, the noting of

that concession -

that provisions such as ss 143 and 144 or the

GOVERNMENT RAILWAYS ACT bar the remedy but not

the right, this cannot be correct. A liability

is handed on, and it is to this liability

which is handed on that the defendant may

raise defences. It is immaterial that, if the

claim had been made immediately it was

perfects, the defendant at that time would

have been able to say that the liability had
not been pursued in time. In other words, the

only defences available are those which are
properly available to the defendant who is sued.

Now, Your Honours, as the President observed, the

legislation in this case was in substantially identical

terms with the legislation in the previous transfer

of 1932. So that we are dealing with, in effect, a

new piece of legislation which copies a previous

piece of legislation upon which there had been

appellate authority as to interpretation. We would

therefore contend that, as a matter of statutory

interpretation, we must proceed on the basis that

Parliament intended, by using the same formula, to

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achieve the same effect as the previous legislation

had achieved, and as had been declared by appellate

authority. So that, in our submission, in the

interpreting of this particular section in the present

case, the Court of Appeal .must proceed on the basis
that the same interpretation was to be given as in

SOVEREIGNTON's case because Parliament had in effect enacted a similar piece of legislation all over again.

So that, in our submission, SOVEREIGNTON's case

is just not another case to the same effect; it is

another case on a previous piece of legislation to

the same effect, leading to the construction that
Parliamen½ by using the same formula, was intending

the same result. So, in our submission, Your Honours,

apart from the reasons advanced by the learned

President of the Court of Appeal, there is that

additional rule of statutory interpretation which

assists our arguments and suggests that that was the

intention.

Your Honours, there is also the question of the

extension of time for the appeal, but in our
submission that is primarily a matter for Your Honours.

But it does give perhaps an extra bit of Your Honours' discretion which would have to be exercised to permit

an appeal to be brought in the circumstances of this

case. Thank Your Honours.

MASON CJ: Yes, Mr Rolfe.

MR ROLFE:	Your Honours, firstly, we would submit that although it is a matter of summary judgment, my learned friend
is correct in saying that the determination would
bring the whole of proceedings to an end. Secondly, there is the problem which arises of considering any
question of law after the facts have been found because
the determination on this point determines what areas of factual matters may be investigated.

Thirdly, we have made the submissions, Your Honours,

that a number of defences, including such a basic

defence as contributory negligence, can hardly be said

to be a defence which is available to the State Rail

Authority, which was not even in existence when this

particular matter occurred.

TOOHEY J:  I do not quite follow that, Mr Rolfe. If a defence

is not to be found in the statute itself, and

therefore this destruction of remedy, destruction of

right distinction is not applicable, are you

suggesting that the applicant would in some way be

deprived by this decision of raising common law

defences?

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MR ROLFE:	We would submit could well be, Your Honour, because
the action was not one - the situation in which the accident occurred was not one to which the State Rail Authority
was a party.  So one is looking, for example, to
apportion blame between a non-existent party and the
plaintiff.

Now, Your Honours, finally on the question of

SOVEREIGNTON's case, might we be permitted to hand

up four copies of that decision because, really, what

transpired there was this: after quoting the passage

at page 255, which is referred to in the judgment of

the President, His Honour Mr Justice Hutley proceeded,

at (48), just above line F, by saying:

If liability means inchoate liability, I

can see little difficulty, but if it means

perfected liability I can see great difficulty.

Where the careless act of a dissolved body

only produces damage after the dissolution of

that body, and liability is given its strict

meaning of perfected liability it is possible

that this is no liability to anyone. To avoid

this result it is necessary to read sl3(3)(g) or

(h) of the PUBLIC TRANSPORT COMMISSION ACT, as

applying to inchoate claims.

Now, pausing there, (g) and (h) are in the same terms

as (g) and (h) in the 1980 Act. His Honour then went

on:

For the purpose of this judgment, I am prepared

to so read them, though, if it were necessary

to rule definitely, I would have liked the

benefit of further argument.

Both clauses refer to "the former

Commissioners".

And His Honour then says how they are defined in

section 13(1). His Honour goes on in the last line:

Any liability which resulted from their acts

must have been first transferred to the

Transport Commissioners of New South Wales created under the MINISTRY OF TRANSPORT ACT,

1932, and then to the Commissioner for . Railways by the TRANSPORT (DIVISION OF FUNCTIONS)

ACT, 1932.

His Honour sets out portion of 13(8) of that Act:

"All ... claims, liquidated or unliquidated,
recoverable against the Railway Commissioners

for New South Wales, ... shall be ... claims

recoverable against the Board of Commissioners."

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So, Your Honours, with respect, it was not the

same section to which His Honour was referring in

dealing with the transfer and what has not been

grappled with, in our respectful submission, by

the Court of Appeal is the requirement that liability

in the Authority must be liability for which the

Connnission would have been liable but for the

enactment of the 1980 Act. That really comes back

to the submissions we put in-chief. If the Court

pleases.

MASON CJ: This is an application for special leave to appeal

which arises out of the dismissal by the Master of

the applicant's motion to strike out the respondent's

statement of claim. Successive appeals by the

applicant were dismissed by Mr Justice Newman and

by the Court of Appeal unanimously. The application

to strike out was based on the contention that the

respondent's claim for damages was statute barred

and that contention called for the construction of the

relevant statutory provisions relating to the applicant

and its statutory predecessors.

It is said that there is one other case, the

result of which hinges on this case. We are not

persuaded that the case raises a question of general

principle in relation to statutory interpretation,

nor are we persuaded that the decision of the Court

of Appeal raises, directly or by way of consequence,

any implications extending beyond the boundaries of

this case.

The case is therefore not appropriate for the grant of special leave to appeal and the application

is refused.

MR BROUN:	We ask for costs, Your Honour.
MASON CJ:	You do not resist that, Mr Rolfe?
MR ROLFE:	No, Your Honour.
MASON CJ:	The application is refused with costs.

AT 11.35 AM THE MATTER WAS ADJOURNED SINE DIE

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