Trade Practices Commission v Allied Mills Industries Pty Ltd (No 4)

C A T C H W O R D S

Cont rac t

v a r i a t i o n

c o n t r a c t e x p r e s s l y p r o v i d i n g f o r

v a r i a t i o n

var i a t ion o the rwise

than a s p rov ided

conduct

p a r t i e s c r e a t i n g

new

c o n t r a c t t o v a r y o r i g i n a l c o n t r a c t .

Crown

appropr ia t ion and expendi ture

o f p u b l i c moneys

money

p a i d

from

Consolidated Revenue

a u t h o r i t y a n d r e c o v e r a b i l i t y

J u d i c i a r y Act	1963,	s .64	-	e f f e c t o f	non-compliance with Treasury
Regulat ions.

Claim f o r i n t e r e s t on

amount

claimed

- power o f Supreme Court

t o

award

such

i n t e r e s t - whether Common

Law

Procedure Act

1 8 8 9

(N.S.W.)

a p p l i e s

i n

t h e T e r r i t o r y

whether

the

awarding

such

i n t e r e s t

m a t t e r

"pract ice and procedure"

Supreme Court

Act

1933,

s .27

Supreme

Court

Act

(N.S.W.)

s .94 .

COMMONWEALTH OF AUSTRALIA v.

CROTHALL HOSPITAL SERVICES (AUST.) LTD.

No. A.C.T.

G.37 of 1980

Coram:

Blackburn, Deane a n d

E l l i c o t t

JJ.

1 7 August 1981

Canberra.

IN THE FEDERAL COURT OF AUSTRALIA )

-l

AUSTRALIAN CAPITAL TERRITORY

No. A.C.T.

3 7 o f 1980

DISTRICT REGISTRY

GENERAL DIVISION

ON APPEAL FROM THE SUPREME COURT OF

THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:

THE COMMONWEALTH OF AUSTRALIA

Appel lan t

AND:

CROTHALL HOSPITAL SERVICES

(AUST.)

LIMITED (formerly) CROTHALL & CO.

(N.S.W.)

PTY.

LIMITED

Respondent

O R D E R

Judges Making Order:

Blackburn, Deane and

E l l i c o t t JJ.

Date

Order:

1 7 August 1981

Where Made :	Canberra.
THE COURT ORDERS THAT:

the

appea l

d i smissed;

2 .

t h e

c r o s s - a p p e a l

dismissed;

3 .

t he

appe l l an t

pay

two- th i rds

o f

the

respondent ' s

t axed

c o s t s

o f

the appea l and cross -appea l .

'	BLACKBURN	J .
3

have

had

the g rea t advan tage o f r ead ing the r easons

f o r

j udgmen t o f E l l i co t t

t he

appea l ,

ag ree wi th

those

reasons .

I have ,

however

t he

mi s fo r tune

t o

d i f f e r

t h e

q u e s t i o n o f

t h e

c r o s s - a p p e a l .

p r o c e e d

t o

e x p r e s s

reasons

f o r

ho ld ing tha t t he c ros s -appea l shou ld be d i smis sed .

The

c ross -appea l

i s

from

t h e

t r i a l

j u d g e ' s d e c i s i o n

t h e p l a i n t i f f ' s

claim

t o i n t e r e s t f r o m

1 Ju ly 1974

t h e amount

claimed

it.

He h e l d

t h a t

t h i s c l a i m f a i l e d , a s

t h e r e

was

s t a t u t o r y p r o v i s i o n

i n t h e

law

o f t h e T e r r i t o r y

f o r

i n t e r e s t t o

be awarded on amounts

imed

(as dis t inct

f rom

judgment

debts)

and

t h e

case

d i d n o t

come

wi th in any o f t he excep t iona l ca ses

r e f e r r e d t o

i n

t h e a u t h o r i t i e s .

Before

th i s Cour t ,

the

respondent based

i t s

c l a i m t o

i n t e r e s t

a l t e rna t ive

submiss ions .

The

f i r s t

o f

t h e s e

r e l i e d

upon s.140 of t h e Common Law Procedure Act 1899 (N.S.W.)

as i n

f o r c e

( so

s a i d ) p u r s u a n t

t o

s . 6 ( 1 )

o f

t h e S e a t o f

Government

Acceptance Act

1909.

I e n t i r e l y

a g r e e w i t h

t h e

r e a s o n s

f o r

j udgmen t o f E l l i co t t

t h i s p o i n t .

Even

i f S .l40

o f t h e

Common

Law

Procedure

Act

i s

" a p p l i c a b l e " i n t h e T e r r i t o r y a f t e r

1 January

1 9 1 1 ,

a g r e e

t h a t

t h i s C o u r t s h o u l d f o l l o w

Hough

v .

Whitty

( 1 9 0 3 )

S.R.(N.S.W.)

6 7 7 ,

and hold

tha t

the

terms

o f

t h e

c o n t r a c t now

be fo re

no t p rov ide

"da te

o r time

c e r t a i n " .

d i s a g r e e m e n t w i t h E l l i c o t t

i s

i n r e s p e c t o f t h e

respondent 's

second

submission, which

was

t h a t t h e i n t e r e s t c l a i m e d

can be awarded by

t h i s C o u r t b y v i r t u e o f

s.94

of the

Supreme Court

Act

1970

(N.S.W.),

which

i s to be app l i ed

in pu r suance o f

s.27

the

A u s t r a l i a n C a p i t a l T e r r i t o r y

Supreme Court

A c t

1 9 3 3

Sec t ion 94 of	t h e Supreme	Court	Act 1 9 7 0 (N.S.W.)	i s as
fo l lows:

" I n t e r e s t up

t o judgment.

(1)

any

proceedings

fo r

t he r ecove ry o f any

money

( including any

deb t o r damages

o r t he va lue

any goods) ,

the

Court

may

o r d e r t h a t t h e r e s h a l l b e i n c l u d e d ,

i n t h e

sum

f o r which

judgment

i s

g i v e n , i n t e r e s t

a t s u c h r a t e a s

t h i n k s

f i t on

the whole

o r

a n y p a r t o f t h e

money

f o r

t he who le o r any pa r t

o f

t he pe r iod be tween the da t e

when

the cause

o f

a c t i o n a r o s e a n d

t h e d a t e

when

the

judgment

t a k e s

e f f e c t .

( 2 )

This

sec t ion

does

no t

(a)

a u t h o r i s e t h e g i v i n g

o f

i n t e r e s t

upon ( b ) a p p l y i n r e l a t i o n t o

i n t e r e s t ;

any

debt

upon which

i n t e r e s t is payable

a s

o f

r i g h t w h e t h e r b y v i r t u e

of	any	agreement	o r	o t h e r s i z e ;
o r

( c ) a f f e c t fo r t he d i shonour o f

t h e

damages

recoverable

b i l l - o f

i	exchange ."

Sec t ion

o f

t h e A u s t r a l i a n C a p i t a l T e r r i t o r x

Supreme Court

Act

1 9 3 3

i s

a s

fo l lows :

"Where

p r o v i s i o n i n r e l a t i o n t o

m a t t e r

p r a c t i c e

and procedure

o f

t h e

Supreme

Court

i s

c o n t a i n e d i n t h i s

o r

any o ther

Act,

an Ordinance

o r

Rules

o f

C o u r t , t h a t m a t t e r

sha l l be gove rned , a s nea r ly a s

may

be, by

t h e p r a c t i c e

and procedure

o f

t h e

High Court

i n similar

matters and,

i f

t h a t p r a c t i c e a n d

procedure

i s

n o t a p p l i c a b l e ,

t h a t

matter

sha l l be gove rned , a s nea r ly a s

may

be, by

the p rac t i ce and p rocedure o f t he

Supreme

Court of

New

South Wales."

assume

f o r t h e

moment,

and only

for

the sake

argument,

t h a t

s . 9 4 d e a l s w i t h

mat te r

prac t ice

and

procedure

opinion

5 . 2 7

i s

i n t e n d e d o n l y t o d e a l w i t h

h i a t u s i n t h e

procedure

the

Cour t ;

tha t

t o s a y ,

s i t u a t i o n i n

which

some

procedure

i s necessary ,

none

is provided .

The

s e c t i o n was

i n t h e such a

Ac t

a s e c t i o n i n a n

o r ig ina l ly

enac ted .

I t

i s

n o t

s u r p r i s i n g

t o

f i n d

Act

which s e t up

a new

Court

i n a T e r r i t o r y

ove r wh ich ju r i sd i c t ion had p rev ious ly been exe rc i sed by the

High

Court

o f

Aus t r a l i a , and in wh ich the l aw o f

New

South Wales

h a s e f f e c t e x c e p t

t o

t h e e x t e n t

t h a t

i t

i s superseded by

Ordinance

t h e T e r r i t o r y .

But,

i n my

o p i n i o n ,

i n

t h i s

c a s e

t h e r e

i s no

h i a t u s upon

which

5 . 2 7

can

operate .

I t

i s n o t

case

where

t h e r e

i s

r i g h t i n

p l a i n t i f f t o o b t a i n s u c h i n t e r e s t , b u t n o

procedure

whereby

such

r ight

can

enforced.

The

s i t u a t i o n i s

n o t t h a t t h e r e

i s

h i a t u s i n t h e p r a c t i c e a n d p r o c e d u r e o f t h e

C o u r t , b u t t h a t t h a t p r a c t i c e

and procedure

i s

n o t t o

award

i n t e r e s t

on claims

before

judgment.

The

argument

f o r

t h e

r e s p o n d e n t

e n t a i l s

t h a t e v e r y

time

new

procedura l provis ion ( i . e . one which has not

p r e v i o u s l y e x i s t e d i n

New

South

Wales

o r T e r r i t o r y

law)

i s

i n t r o d u c e d i n t o

New

South

Wales

law,

i t

t a k e s e f f e c t a l s o i n t h e

Te r r i t o ry because ex hypo thes i t he re

i s

p r o v i s i o n i n r e l a t i o n t o

tha t ma t t e r

i n

an Ac t ,

an Ord inance ,

o r

the

Rules

o f

Cour t .

opinion

s . 2 7

was

n o t

i n t e n d e d t o

mean

t h a t , a n d

i t s terms

n o t

demand

such

c o n s t r u c t i o n .

There

i s

f u r t h e r ,

and

s i m i l a r ,

r e a s o n

why

s . 2 7

o f

t he

A.C.T.

Supreme Court Act does

the

respondent .

Le t

assumed

t h a t u n d e r

5 . 2 7

t he absence o f any p rov i s ion r e l a t ing to

interest

before

judgment

f rom

the

law

o f

t h e T e r r i t o r y s e n d s u s

t o

the p rac t i ce

and

rocedure

High

Cour

Tha

p rac t i ce

i s

n o t

t o award

such

i n t e r e s t . T h a t p r a c t i c e

i s

" a p p l i c a b l e "

i n

t h e

T e r r i t o r y , s i n c e

i t

may

be appl ied without

repugnance

any

law

4 .

o r p r a c t i c e ma t t e r does no t

t h e

T e r r i t o r y .

I t

f o l l o w s

t h a t

s.27

i n

t h i s

r equ i r e any r ecour se

the p rac t i ce

and

procedure of

the

Supreme Court

New

South Wales.

But

there

i s i n my opinion a more

fundamental

reason

why

t h i s argument

the

respondent

must f a i l .

I cannot

t h a t

t h e a w a r d i n g o f i n t e r e s t

on claims before

judgment

can

p rope r ly be cha rac t e r i zed a s

ma t t e r o f p rac t i ce and p rocedure .

s a y t h i s w i t h

t h e u t m o s t r e s p e c t f o r

t h o s e C o u r t s a n d j u d g e s

who have

thought

otherwise,

for

example,

Barwick

C . J .

who

s a i d

i n Government

Insurance

Office of New South Wales v. Atkinson-

Leighton

Jo in t Venture

(1980)

31 A.L.R.

193,

a t p .209:

“The	q u e s t i o n w h e t h e r t h e a r b i t r a t o r h a s

power

o r a u t h o r i t y t o

award

i n t e r e s t on

t h e

sum

awarded

i s a

mat te r of procedure

t o

e c l e a r l y , i n t h e l a w o f c o n t r a c t t h e r e

r e s o l v e d

by procedura l

law.

I t is

n o t

m a t t e r

s u b s t a n t i v e

law.

Quite

r i g h t t o t h e

payment

i n t e r e s t

whePe

t h e r e

i s no

promise

pay

i t .

But

i n

poin

procedure

the

payment

in te res t

moneys

due and payable could be ordered

by courts

.”

This dictum

seems

t o me

t o e q u a t e t h e d i s t i n c t i o n b e t w e e n

r i g h t

p r o v i d e d f o r i n

con t r ac t and

r i g h t n o t p r o v i d e d f o r i n

c o n t r a c t , w i t h t h e d i s t i n c t i o n b e t w e e n

s u b s t a n t i v e r i g h t

and

p r o c e d u r a l

r i g h t .

B u t

t h e

l a t t e r

d i s t i n c t i o n

c a n n o t

d e p e n d

upon

the

former.

A p a r t y t o

c o n t r a c t may

have

r i g h t

t o a v o i d t h e

c o n t r a c t

the

ground

o f

p u b l i c p o l i c y .

h y p o t h e s i

t h a t

r i g h t

d o e s n o t a r i s e o u t

o f

t h e c o n t r a c t , b u t c a n

b e s a i d t o b e

m a t t e r o f p r a c t i c e

and procedure?

sugges t wi th

some

t r e p i d a t i o n t h a t

s a t i s f a c t o r y tes t

o f whether r i g h t g i v e s t h e p e r s o n e n t i t l e d t o

r i g h t

i s procedura l

o r s u b s t a n t i v e i s whether

the

an advantage valuable

i n

i t s e l f ,

o r merely

t a c t i c a l o r a n c i l l a r y b e n e f i t w h i c h

assists

him

i n s e e k i n g

o r

obtaining

such advantage,

o r

( a s

i n

t h e c a s e

o f o r d e r s f o r c o s t s ) p r o t e c t s

him

from

los s

i n c u r r e d i n t h e

process

seeking

o r ob ta in ing

i t .

In my

o p i n i o n ,

t h e

r i g h t

t o

i n t e r e s t b e f o r e

j u d g m e n t ( w h i c h

may

b e c a l l e d

r igh t ,

t hough

of course

i s a

"r ight" which

i s b lu r red by the Cour t ' s

d i s c r e t i o n )

i s

c l e a r l y

a d v a n t a g e

v a l u a b l e

i n

i t s e l f .

I t

i s

not merely

p iece of machinery which ass i s t s

p a r t y

t o

achieve

h i s main

o b j e c t .

The

fact t h a t

t h e r i g h t

i s c rea t ed by

s e c t i o n

an Act ( t h e Supreme

Court

Act

1 9 7 0 ) which is almost e n t i r e l y

procedura l , does not

mean

t h a t t h e r i g h t

i t se l f

i s

procedura l :

see Simonius Vischer

Co.

v. Holt

and

Thompson (1979)2 N.S.W.L.R.

322,

per M o f f i t t P.

a t p.336:

"Thus,

although

p rov i s ion

i s made

i n a

s t a t u t e

dea l ing wi th p rocedura l ma t t e r s ,

and

i t se l f

i s

procedura l in form by

p rov id ing

power

e x e r c i s a b l e o n l y i n

the cour se o f p roceed ings ,

t he p rov i s ion ,

on examination,

may

no t be p rocedura l on ly ,

and may

confe r a

new

s u b s t a n t i v e r i g h t ,

o r

d e s t r o y

past

immunity.

Section

i s

i n a

p r o c e d u r a l

s t a t u t e

a n d ,

a s

i n d i c a t e d ,

i s

p rocedura l

i n

fo rm; bu t

t he

power

given

i s

t o c r e a t e a n o b l i g a t i o n o f

kind which

d i d n o t p r e v i o u s l y

ex i s t ,

and which

i s

d i f f e r e n t i n n a t u r e f r o m t h e r i g h t w h i c h d i d ex i s t . A person owing money had immunity f r o m a n y s u r c h a r g e i n t h e n a t u r e o f i n t e r e s t

u n t i l *he person to

whom

t h e money

was

owed

succeeded

i n

ob ta in ing

judgment.

The

enactment

s . 9 4

removed

t h a t

immunity.The

o rde r fo r t he paymen t o f i n t e re s t pu r suan t

t o s . 9 4

cannot be

made unless

the

cause

a c t i o n e x i s t s , b u t t h e o r d e r

f o r

i n t e r e s t

and

the obl igat ion which

arises

f rom

t h e o r d e r

i s

d i s t i n c t

from

the cause o f ac t ion . "

canno t e scape f rom the conv ic t ion

tha t

t he r igh t c r ea t ed

s . 9 4

o f

t h e

Supreme Court

Act

1970

i s a

s u b s t a n t i v e r i g h t .

I t

6 .

f o l l o w s t h a t t h e s e c t i o n d e a l s w i t h

m a t t e r

s u b s t a n t i v e

law,

and

not

with

ma t t e r

o f

p r a c t i c e

and

procedure. That

be ing

s o ,

s.27

o f t h e A u s t r a l i a n C a p i t a l T e r r i t o r y

Supreme

Court

Act

1933

o f

a s s i s t a n c e t o

t h e r e s p o n d e n t .

would dismiss both

the appeal

and

the cross-appeal

would

o r d e r t h a t t h e a p p e l l a n t p a y t w o - t h i r d s

o f

t h e

respondent ' s

t axed

costs

o f

the appea l and cross appea l .

I certify that this and the +

preceding pages are a true copy

f the

Reasoris for Jud~mentherelnofhlsaonour

Mr. Justice z%&.-

IN THE FEDERAL COURT OF AUSTRALIA	)
1

AUSTRALIAN CAPITAL TERRITORY

NO. ACT 37 of 1980

REGISTRY	)
1

DIVISION

GENERAL

OK APPEAL FROM THE

SUPREME COURT

OF THE

AUSTRALIAN CAPITAL TERRITORY

BETWEEN: THE COMMOXWEALTH OF

AUSTRALIA

Appellant

AND :

Respondent

CORAM: Blackburn, Deane and Ellicott JJ.

17 &U*=,/-	1981.
REASONS FOR JUDGMENT

DEANE J: I would dismiss	both the appeal and the	cross
appeal.

-2-

I n so f a r as the appeal

is concerned, I agree with

t he judgment

E l l i c o t t J.

A s regards

the cross appeal, I

a m of

the view t h a t s.140

the Common Law Procedure A c t ,

1899

(N.S.W.)

was,

for the reasons given

E l l i c o t t J.,

inappl icable i n the circumstances

the present mat ter .

Otherwise I agree with the	judgment of Blackburn J. on the
cross appeal.

I agree with the order €or

costs proposed by

Blackburn J.

c e r t i f y t h a t t h i s

and

t h e preceding

page is a t r u e copy of the Reasons f o r Judgment of the Honourable M r .

J u s t i c e

Deane

C A T C H W O R D S

Cont rac t

v a r i a t i o n

c o n t r a c t e x p r e s s l y p r o v i d i n g f o r

v a r i a t i o n

var i a t ion o the rwise

than a s p rov ided

conduct

o f p a r t i e s c r e a t i n g

new

c o n t r a c t t o v a r y o r i g i n a l c o n t r a c t .

Crown

appropr ia t ion and expendi ture

o f p u b l i c moneys

money

p a i d

from Consolidated Revenue

a u t h o r i t y a n d r e c o v e r a b i l i t y

J u d i c i a r y

Act

1963,

s.64

e f f e c t o f non-compliance with Treasury

Regulat ions.

Claim

f o r i n t e r e s t

on amount

claimed

power of Supreme Court

t o

award such in t e re s t

whether Common

Law

Procedure Act

1889

(N.S.W.)

a p p l i e s

i n t h e T e r r i t o r y

whether

the

awarding

of such

i n t e r e s t a matter o f "practice and procedure"

- Supreme Court

Act 1933, s . 2 7 - Supreme Court

Act

(N.S.W.)

s . 9 4 .

COMMONWEALTH OF AUSTRALIA v.

CROTHALL HOSPITAL

SERVICES

(AUST.)

LTD.

No. A.C.T.

G.37 o f 1980

Coram:

Blackburn, Deane a n d

E l l i c o t t

JJ.

1 7 August 1981

Canberra.

I N THE FEDERAL COURT OF AUSTRALIA )

)

AUSTRALIAN

CAPITAL

TERRITORY

DISTRICT REGIS RY GENERAL

)

No. A.C.T.

37 of 1980

D I V I S I O N

)

ON APPEAL from the Supreme C o u r t

the A u s t r a l l a n C a p i t a l

Ter r i to ry

BETWEEN :

THE COMMONWEALTH OF AUSTRF-LIA

A p p e l l a n t

AND

CROTHALL HOSPITAL

SERVICES

(AUST)

LIMITZ

( f o r m e r l y CROTHALL & CO.

(N.S.W.)

PTY.

LIMITED

R e s p o n d e n t

CORAM :

B a a e k b u r n , D e a n e

and

El l icot t

1981

REASONS

FOR

JUDGMENT

ELLICOTT J.

This is an appeal by the C o m m o n w e a l t h from a

j u d g m e n t and order of

C o n n o r J.

s i t t i n g as a Judge of

the

Supreme C o u r t of

the A.C.T.

under which H i s H o n o u r

ordered

the

C o m m o n w e a l t h t o pay

the

respondent,

C r o t h a l l H o s p i t a l

Services ( A u s t . )

Pty.

L i m i t e d , an amount of

$144,455.73

claimed

by the respondent fo r d a m a g e s for breach of

contract.

In the forefront of this appeal there lie what

see as difficult questions of fact. Those questions are whether

payments made by the appellant to the respondent under an Agreement

between them relating to the cleaning of areas in buildings in

Canberra were made by the commonwealth partly as the result of

mistake or whether the amounts paid resulted from agreed

variations to that original contract. There is no dispute as

to the credibility of witnesses involved in the resolution of

those questions. Indeed, the limited primary facts which appear

from the scant evidence appear to be not in dispute. In these

circumstances, as

I understand the effect of the decision

of the

High Court in Warren

v. Coombs (1979) 23 A.L.R. 405 it is

incumbent upon the members of this Court to reach our

own

conclusion on those questions while giving respect and weight to

the conclusions of the trial judge.

By a written agreement dated

1 November 1967 the respondent'

(then known as Crothall

& Co. (N.S.W.) Pty. Limited) agreed with

the Commonwealth to clean certain buildings occupied by the

Defence Group of Departments In Canberra for the sum of

$158,492.00

per annum in accordance with certain general and special conditions. months notice in writing. Under the general conditions the

respondent was to provide at its

own cost and expense all labour,

materials, plant and equipment and everything necessary for the

complete and efficient cleaning

of the premises. The contract

contemplated variations in the contract price

diie to variations

in wages paid and areas cleaned. These provisions are contained

in clauses

5, 14 and 15 of the General Conditions and are basic

to the determination of this appeal. They provide:-

3 .

"5.	VARIATIONS IN WAGES AND IN CONTRACT PRICE

(i)

The

pr ice s e t out i n the

t ende r

and

the no t i f i ca t ion

o f

accep tance o f

t he

t ende r fo r

t he c l ean ing o f

the

p r e m i s e s s h a l l b e

deemed

to have been ca l cu la t ed

t h e minimum

r a t e o f

wages payable and

the hours

o f l a b o u r i n f o r c e a t t h e d a t e o f

the

t e n d e r .

( i i ) If by

reason

of any award,

judgment,

determination,

o r d e r or

r u l e o f

Court ,

Water

Board

o r o t h e r

S t a t u t o r y T r i b u n a l

b r Author i ty ,

o r

i f

by reason

o f any indus t r i a l ag reemen t f i l ed unde r any S ta t e

Law o r Commonwealth Law ( including any

law o f any

T e r r i t o r y o f

t h e

Commonwealth)

t h e r e

i s any

v a r i a t i o n i n

(a)

t h e

r a t e

o f

wages

payable

t o t he

pe r sons

employed

the Contractor

i n

the c l ean ing

o f	t he p remises ( inc lud ing any va r i a t ion in

t h e b a s e

rates

o r wages) ; o r

(b )

t he

hour s employed

o f of the premises ;

l abour

t o

be worked

persons

the Contractor

the

cleaning

the Cont rac tor

may,

w i t h i n t h r e e

months

such

v a r i a t i o n ,

l o d g e

c l a im wi th the

S e c r e t a r y

t o

v a r y t h e p r i c e m e n t i o n e d i n t h e t e n d e r i n t h e

same manner

and

t o

t h e

same

e x t e n t a s

t h e c o s t

t o

t h e C o n t r a c t o r o f c a r r y i n g o u t

t h e c l e a n i n g o f

the premises

i s

var ied by reason

t h a t v a r i a t i o n .

( i i i ) I f

a i n r a t e s o f p a y

claim

mentioned o r hours

i n t h e p r e v i o u s s u b - c l a u s e

lodged

l a t e r

t han

th ree mon ths a f t e r

t he va r i a t ion

o f

l abour

become

e f f e c t i v e ,

t h e S e c r e t a r y s h a l l b e e n t i t l e d t o r e g a r d t h a t

v a r i a t i o n a s

commencing

only

from

t h e d a t e o f

lodgment

the

claim.

( i v )

For

the purpose

o f

t h i s c o n d i t i o n

t h e C o n t r a c t o r

s h a l l make

a v a i l a b l e t o t h e S e c r e t a r y

such

wage

shee ts , books

o r

o t h e r

i n f o r m a t i o n a s s h a l l b e

n e c e s s a r y t o d e t e r m i n e t h e e x t e n t o f t h e v a r i a t i o n

i n c o s t

t o t h e c o n t r a c t o r .

1 4 . VARIATIONS OF AREAS TO BE CLEANED

The Commonwealth may,

a t any time,

by n o t i c e i n

w r i t i n g , v a r y t h e p o r t i o n s

t h e b u i l d i n g s t o b e

c l e a n e d

u n d e r

t h i s

c o n t r a c t .

I n

t h e

e v e n t

s u c h

v a r i a t i o n ,

t h e

amount

p a y a b l e

t o

t h e C o n t r a c t o r s h a l l

b e v a r i e d p r o p o r t i o n a t e l y b y

amount

agreed upon

be tween

the

Secre

and

the Cont rac tor , bu t

such

amount

s h a l l n o t e x c e e d

amount

e q u a l t o t h e

amount

p a y a b l e u n d e r

t h e c o n t r a c t f o r

t h e c l e a n i n g o f

e q u i v a l e n t a r e a i n t h e e x i s t i n g b u i l d i n g s .

15. CLEANING OF ADDITIONAL AREAS

The

S e c r e t a r y

may,

n o t i c e i n w r i t i n g , r e q u i r e

t h e C o n t r a c t o r t o

c l e a n

any add i t iona l

b u i l d i n g

o r

b u i l d i n g s

o r

a r e a

i n

any

b u i l d i n g s

i n

Canberra occupied

the Defence

Group

Departments

and

such

a d d i t i o n a l

a r e a s s h a l l b e i n c l u d e d

t h e a r e a ( a s d e f i n e d

i n

t h e

S p e c i a l C o n d i t i o n s o f C o n t r a c t )

t o b e c l e a n e d u n d e r t h e

c o n t r a c t ,

Payment

f o r such c leaning

w i l l be made

a t a

p r i c e t o

agreed upon between

the

Secre ta ry and

t h e

Cont rac tor , bu t such an

amount

s h a l l n o t e x c e e d

amount

e q u a l t o t h e

amount

p a y a b l e u n d e r

t h e c o n t r a c t f o r

t h e

c l ean ing o f an equ iva len t a r ea

i n

t h e e x i s t i n g b u i l d i n g s . "

Under

Clause

1 2

the

agreement

subjec t

the

work

be ing sa t i s f ac to ry , paymen t

a t

t h e a g r e e d r a t e

was

t o b e

made

monthly

i n a r r e a r s

f o r which the cont rac tor

was

t o s u b m i t

claim

t o

t h e S e c r e t a r y

a Treasury Form

1 2 .

The

agreement was

s igned

f o r t he Commonwealth by a Mr

N.M.

Boyle, Assistant

Sec re t a ry

(Management

Services) Department

Defence.

I t w i l l be no ted tha t unde r c l ause

v a r i a t i o n

o f

t h e

cont rac t p r ice depended

d e t e r m i n a t i o n o f t h e e x t e n t t o w h i c h

t h e c o s t

t o t h e c o n t r a c t o r o f c l e a n i n g t h e p r e m i s e s

was

v a r i e d b y

r e a s o n o f

t h e v a r i a t i o n

i n

wages

o r hours o f

l abour .

I t

contemplated

the submiss ion

o f

t he

claim

and

the supply of

in format ion by the

cont rac tor

the

Secre

Depar

tment

Defence

and

the

considerat ion

thereof by him.

I t

d i d n o t l a y

down

p rec i se

fo rmula

b y w h i c h t o c a l c u l a t e t h e v a r i a t i o n s .

The

c l a u s e

i n

t h i s

f o r m

was

obvious

concern

the

respondent

for

November

1 9 6 7 ( e x h i b i t 3 6 )

it w r o t e

t o

t h e

Ass is tan t

Secre

the

Depar

tment

about

i t .

The

l e t t e r s t a t e d

tha t

the

respondent

f e l t

t h a t

t h e c l a u s e d i d n o t a d e q u a t e l y c o v e r

t h e p o s s i b l e v a r i a t i o n s w h i c h c o u l d o c c u r a s t o t h e c o s t

t o

the

company

a s

r e s u l t

v a r i a t i o n s t o l a b o u r c o s t s a s

whole.

I t went on -

l ' V a r i a t i o n s

t o

l a b o u r c o s t s

may

a t t r a c t i n c r e a s e d

' s taff : c o s t s '

i . e .

p a y r o l l

tax,

worker 's

compensation

in su rance , pub l i c

r i s k

i n s u r a n c e , s i c k p a y , e t c . b u t

i n a d d i t i o n

a t t rac t

increased overhead cos ts

s a l a r i e s a l s o

w i l l i n c r e a s e ,

with

the

subsequent

i nc rease (d )

i n

c o s t s o f

services

i . e .

pos t age ,

s t a t i o n e r y ,

e t c . "

and	concluded -

lllVe

submit

f o r

y o u r c o n s i d e r a t i o n t h e f o l l o w i n g f o r

i n c l u s i o n

i n

the agreement:-

' I n t h e e v e n t

v a r i a t i o n s i n r a t e s o f p a y , a l l o w a n c e s

o r

condi t ions

o f

employees

the con t r ac t b rough t abou t

by the de t e rmina t ion o f any p rope r ly cons t i t u t ed

wage-

f i x i n g b o d y , S t a t e

o r

Commonwealth,

the above pr ices

will

be va r i ed by the pe rcen tage

t ha t

t h e v a r i a t i o n

bears

t o t h e p r e v i o u s r u l i n g l a b o u r c o s t s .

w r i t t e n

r e p l y

was

r e c e i v e d

t o

t h i s

l e t t e r .

1 7 November

1 9 6 7

t he

r e sponden t wro te

the Sec re t a ry

r e fe r r ing

t o

t h e e s c a l a t o r c l a u s e a n d s t a t e d t h a t

i t

u n d e r s t o o d t h a t

t h e

company's

submissions

i n t h i s r e s p e c t w e r e r e c e i v i n g c o n s i d e r a t i o n

d i s p u t e arises

t o t h e q u a l i t y

t h e work

performed

by the premises

respondent

under

the

cont rac t .

I t

commenced

c l ean ing

t he

1 November

1967 and cont inued

s o u n t i l 30

June

1974

from which date

the contract

was

te rmina ted by

t h e

Commonwealth.

Dur ing the per iod

1 November

1967 t o 26 November

1973,

the

respondent

submitted

claims

(monthly

i n a r r e a r s ) f o r c l e a n i n g

done by ca lendar month

it.

U n t i l 31

October

1969

t h i s was

done

a f t e r e a c h

b u t

t h e r e a f t e r a f t e r e a c h

four

weekly

per iod.

The

c l a i m s a t

times

r e f l e c t e d i n c r e a s e s

i n the weekly cos t

c lean ing

due

inc reased award wages , va r i a t ions

in a reas c l eaned

( e i the r

by way c leaning .

o f

i n c r e a s e

o r

decrease) and addi t iona l a reas agreed

f o r

The

Commonwealth p a i d

t o

t h e

r e s p o n d e n t

a l l

b u t

$ 3 5 6 . 1 3

o f the

total

amount($1,723,963.73)

c la imed

i n

r e s p e c t o f

t h i s p e r i o d .

For

t h e f o u r

weeks

ended

2 6 November 1973 the claim was based on a

weekly

f igure

o f

$ 1 0 , 2 2 7 . 4 1 .

Accounts

for

the

four

weekly

per

iods

fol lowing

26 November

u n t i l t h e c o n t r a c t

was

te rmina ted on

30 June

1 9 7 4 were

however queried by

the Commonwealth

and were

o n l y p a r t i a l l y p a i d .

The

t o t a l

amount

claimed

f o r

t h i s p e r i o d

by the t h a t t h e r e s p o n d e n t

respondent was $317,532.03.

The

Commonwealth

conceded

was

e n t i t l e d t o $ 2 7 8 , 5 0 1 . 9 3 b u t

i n

fac t

only

paid

$173,076.30

( o r

$105,475.63

less)

because

took

the

iew

tha t the respondent had been overpa id for the per iod up to

26 November 1973.

fact

the

tua

overpayment

a l leged

was

$ 9 6 , 7 7 8 . 2 1

(not

$105,475.63)

and

the

Commonwealth

i n t h e s e

proceedings has admit ted

t ha t

owes

the

respondent

the

difference,

namely,

$8,696.87.

Although

a l l t h e

claim

forms submitted were not

tendered many were

and

it i s proper

conclude from the evidence

t h a t a l l claims were

made by

the

respondent

t h e c o n t r a c t

provided

submit t ing

each

on a Treasury Form 1 2 .

In r e s p e c t

o f t h e p e r i o d t o

2 6

November

1973

these

forms

(some accompanied by

explana

tory

cor

respondence)

were

checked

the appropr ia te of f icers

and

i n

mos t i n s t ances ,

would appear, were passed for payment

be ing ce r t i f i ed unde r s .34 o f t he Aud i t

Act

1 9 0 1 as

we l l

an Examining que r i ed bu t were u l t ima te ly pas sed

Officer.

In t h e o t h e r

i n s t a n c e s f o r payment

t h e

claims

were

i n

similar

manner

e i t h e r

a s

s u b m i t t e d

o r

amended

agreement.

A s

s t a t e d e a r l i e r

a l l but $356.13

the c la ims

f o r t h i s p e r i o d w e r e p a i d .

The

c e r t i f i c a t e s s i g n e d u n d e r t h e A u d i t

A c t

s t a t e d : -

c e r t i f y t h e c o r r e c t n e s s o f t h i s a c c o u n t

f o r

the

purposes

sub-sec t ion

(5) of Sec t ion

o f

the Audi t

A c t

1 9 0 1

( a s

amended)

........ .....I........ .......

Person incurr

ing expense"

7 .

and

c e r t i f y t h a t t h i s a c c o u n t

i s

c o r r e c t w i t h i n

t h e

meaning of sub-sect ion

of the Audi t

Act

1901 (as amended)

........ ........ ........ ...

C e r t i f y i n g O f f i c e r "

assume

t h a t t h i s l a s t

m e n t i o n e d c e r t i f i c a t e

was

in t ended

to be

r e f e r e n c e t o s u b - s e c t i o n

(1)

5 . 3 4

which

provided: -

"(1)

account ing of f icer sha l l pay any account

un less he sha l l have been au thor ized

t o

some

person appoin ted by the Treasurer

for

t h a t

purpose

and

unless

such

account

sha

have

been

d u l y c e r t i f i e d

c o r r e c t b y

some

person appointed

by the Treasu re r fo r t ha t pu rpose .

P rov ided tha t t he Treasu re r

may

pe rmi t t he

payment of s p e c i f i e d b y t h e T r e a s u r e r , b e f o r e

any

account,

o r

any

account

c l a s s

i t

has been

c e r t i f i e d ,

the account- has been checked by

r e s p o n s i b l e o f f i c e r a n d d e a l t w i t h

p resc r ibed , and

i f he

i s s a t i s f i e d t h a t

undue delay

i n the payment

the account would be caused

before payment,

i t	h a d t o b e d e a l t w i t h a s p r o v i d e d i n t h i s s u b -

sec t ion"

The	E x a m i n i n g O f f i c e r ' s c e r t i f i c a t e s t a t e d : -

"Examiner

c e r t i f y

t h a t

t h i s a c c o u n t

i s

c o r r e c t a s

r e g a r d s

c o m p i l a t i o n c a s t i n g s ,

r a t e s

charge,

covered by proper authority and the reo f no ted

the

amount

on	such au thor i ty .

........ ........ .......

Examining

Officer"

8 .

The respondent ' s

claim from 2 7 November 1973

u n t i l 30 June

1974

covered

a p e r i o d

o f

4/5ths

weeks.

I t

a l l e g e s ,

t h e b a s i s

o f

t h e

claims

submi t ted and pa id ,

tha t

as a t 2 7 November 1973

the agreed weekly

ra te

was

$ 1 0 , 2 2 7 . 4 1

a n d c l a i m s t h a t t h e t o t a l

amount

p a y a b l e t o

f o r t h e p e r i o d

was

$315,004.22.

Two

a d d i t i o n a l

amounts

$196 .50

and

$2331.31

which

were

not

ispute

were

imed making

the

amount claimed t h e Commonwealth paid

$317,532.03.

A s

s t a t e d e a r l i e r d u r i n g

t h i s p e r i o d

the

respondent

$173,076.30.

The

d i f f e r e n c e

between

the two amounts,

$144,455.73

i s t h e amount t o which

Connor J. found

the respondent

was

e n t i t l e d b y t h e o r d e r i n

ques t ion

i n

t he

appea l .

Be fo re

Connor

the

r e sponden t

a l so

c l a i m e d i n t e r e s t

t h i s

amount

from

and

inc lud ing

1 J u l y

1 9 7 4 .

His

Honour

d e c l i n e d t o a w a r d i n t e r e s t

and

the respondent has

f i l e d

c r o s s a p p e a l i n r e l a t i o n t o t h i s .

The

r e sponden t ' s

claim

appears

from

i t s

s t a t emen t

o f

claim

was

based

s e r i e s o f a l l e g e d v a r i a t i o n s t o t h e

o r i g i n a l

c o n t r a c t .

v i r t u e

t h e s e v a r i a t i m s

t h e

p r i c e

p a y a b l e

t h e

Commonwealth

t o

u n d e r t h e c o n t r a c t a l l e g e d l y i n c r e a s e d

f o r

t h e r e a s o n s c o n t a i n e d i n c e r t a i n

l e t t e r s f r o m t h e r e s p o n d e n t

t o t h e h a d a c c e p t e d t h e v a r i a t i o n s e i t h e r e x p r e s s l y ,

Commonwealth.

The

respondent

c la imed

tha t

the

Commonwealth

i m p l i e d l y

o r by

p aymen t .

The

Commonwealth

f o r

i t s

p a r t d e n i e s t h a t t h e s e

var ia t ions had been accepted by

and a l l eged tha t t he r e sponden t

was

o n l y e n t i t l e d t o

payment

s t r i c t l y i n a c c o r d a n c e

with

the

c o n t r a c t u n a l t e r e d , t h a t t h e p a y m e n t s

made

w e r e n o t i n f a c t b i n d i n g

t h e

Commonwealth,

t h a t i n

fac t

there had been over-payments

which

were

n o t a u t h o r i s e d t o b e

made

from consolidated

revenue

and

were

the re fo re

i l l ega l and vo id and ,

t h e b a s i s

c e r t a i n

p r i n c i p l e s a p p l i c a b l e t o t h e

Crown,

were

recoverable by

it.

I n e f f e c t , t h e

Commonwealth

a s s e r t e d t h a t n o n e o f t h e a c t i o n s o f

i t s s e r v a n t s paying accounts

i n

consider ing and deciding

pay and subsequent

submit

ted by the respondent

were binding on

it,

t h a t n o n e h a d a u t h o r i t y t o a c c e p t t h e a l l e g e d v a r i a t i o n s

o f

them,

t h a t

it was

e n t i t l e d t o

behind the payments and tha t

the

ex ten t t o wh ich they

were

o u t s i d e t h e

s t r i c t

p r o v i s i o n s o f t h e

w r i t t e n c o n t r a c t o f	1 November	1 9 6 7 it was	e n t i t l e d t o	claim	them
by way of overpayment.

The

amount

which

t h e Commonwealth

agrees

due

t o t h e

respondent

i n

r e s p e c t o f t h e p e r i o d

2 7

November

1973

t o

June

1 9 7 4

($278,501.93) has been calculated

accordance with what

i t

r e g a r d s

t h e

p r o p e r

i n t e r p r e t a t i o n

t h e

c o n t r a c t .

h i s judgment Connor

J. made a number of

findings of

fac t

which

the

Commonwealth

s a i d

w e r e

i n

e r r o r .

I n

e s s e n c e

t h e s e

f i n d i n g s

w e r e

tha t

the Depar tment had agreed e i ther immedia te ly

subsequent ly

the r i s e s sough t by the r e sponden t due to

wage

rises

and

i n

c a s e s o f v a r i a t i o n s o f a r e a h a d a g r e e d t o - t h e a r e a t o b e v a r i e d

and

a s t o t h e

amount

to be added

t o

o r

s u b t r a c t e d f r o m t h e t h e n

c u r r e n t

rate

r e s p e c t t h e r e o f .

A t

no s t age d id Counse l fo r t he

Commonwealth

be fo re

o r i n t h e c o u r t b e l o w a l l e g e t h a t

t h e

Commonwealth's

o f f i c e r s

had been c e r t i f i e d

misled

the

respondent .

M r

Simmonds

t h e o f f i c e r

who

many

o f t he c l a ims fo r paymen t fo r t he pe r iod

t o

2 6

November

1973

was

ca l led but gave no ev idence of be ing mis led

o r m i s t a k e n

i n g i v i n g h i s

c e r t i f i c a t e .

t h e

c o n t r a r y ,

appears

t o b e c o n c e d e d t h a t o f f i c e r s

whose

du ty

was

to cons ide r and

process

such

claims

considered

them

and

some

i n s t a n c e s , l e t t e r s

a n d o t h e r i n f o r m a t i o n s u p p l i e d b y t h e r e s p o n d e n t a n d c e r t i f i e d

10.

them

for payment mainly as c la imed though sometimes in

v a r i e d

amount.

What Counsel for t h e Commonwealth contended was t h a t i n

f ac t t he paymen t s d id no t confo rm wi th the wr i t t en con t r ac t and

t h a t w h a t e v e r l e d t h e o f f i c e r s t o a u t h o r i s e p a y m e n t s ,

t h e s e

payments

were

au thor i sed

the

cont rac t .

evidence was

adduced

t o show

t h a t t h o s e

who

handled the

claims

w e r e n o t o f f i c e r s

a u t h o r i s e d

t o

do s o .

However, t h e Commonwealth con tends

t ha t

i s

f o r t h e r e s p o n d e n t t o p r o v e t h a t t h e

amount upon which

bases

i t s

claim, namely

$ 1 0 , 2 2 7 . 4 1

p e r

week,

was

t h e a g r e e d r a t e

a t

November

1973 as

r e s u l t o f

s e r i e s o f a g r e e d v a r i a t i o n s a n d

t h a t

i n f a c t

it h a s f a i l e d

t o

s o .

I t submi t s

t ha t

it i s n o t

f o r

i t

t o e s t a b l i s h m i s t a k e

o r

l a c k

o f

a u t h o r i t y i n o f f i c e r s e i t h e r

i n o r d e r t o

resist

t h e p l a i n t i f f ' s

claim

e n t i t l e d t o r e c o v e r

the al

leged overpayments

B e f o r e c o n s i d e r i n g t h e e f f e c t

o f

the ev idence

may

b e h e l p f u l t o s e t o u t

some

l o n g e s t a b l i s h e d p r i n c i p l e s o f t h e

common 1

aw .

I t

open

t o the

p a r t i e s

t o a

w r i t t e n c o n t r a c t t o

vary i t .

This may be

done

i n w r i t i n g o r , e x c e p t w h e r e

t h e c o n t r a c t

i s

requi red by

law

t o b e e v i d e n c e d i n w r i t i n g ,

oral agreement .

The agreement t o v a r y may be express

o r implied from conduct

(See genera l ly Halsbury ' s

Laws

of England 4th Edi t ion, volume

paragraphs 566-570; Anson's

Laws

Contract

18th Edi

ion pp.

318

e t s e q .

Goss v.

Lord

Nugent

(1833)

and Ad

5 8 , 1 1 0 E . R .

713;

Bruner v. Moore (1904) 1 CH.D 305;

Tallerman 6 Co.Pty. Limited v.

Nathar is	Merchandise	(Victor ia)	P t y .	Limited	(1957)	98	C.L.R.	93
a t 1 4 4 .

11.

I n p r a c t i c a l t e r m s t h e r e a l q u e s t i o n f o r d e c i s i o n

i n t h i s a p p e a l

i s w h e t h e r t h e p a r t i e s

r e s u l t o f

what

t r ansp i r ed be tween the s ign ing o f t he con t r ac t and the end o f

1973

had agreed to

the

c o n t r a c t p r i c e b e i n g v a r i e d f r o m

amount

o f $3,047.93

p e r week t o $10,227.41 p e r week.

For

the purpose

t h e r e s o l u t i o n o f t h e q u e s t i o n ,

which

i s e s s e n t i a l l y one

f a c t , t h e

Commonwealth

i s i n no

d i f f e r e n t p o s i t i o n

t o a n o r d i n a r y

s u b j e c t . S e c t i o n

o f

t h e

J u d i c i a r y Act

1903

amended

r ende r s

t he

Commonwealth

l i a b l e

t o s u i t prov ides tha t i n any

i n

c o n t r a c t

i n

t h e

c o u r t s

t h e r e i n m e n t i o n e d . S e c t i o n

s u i t

-to which

the

Commonwealth

is a p a r t y ,

t h e r i g h t s

p a r t i e s s h a l l

n e a r l y

p o s s i b l e b e t h e

same

and

judgment

may

be given and costs awarded

i n a

s u i t between

s u b j e c t

a n d

s u b j e c t .

T h i s

l a t t e r

s e c t i o n

a p p l i e s

t o

s u b s t a n t i v e

a s we11

p rocedura l

r ights.

(Maguire

Simpson

139 C.L.R. 362).

Qui te apar t

f rom

s.64,the

o r d i n a r y common

law r u l e s

govern ing

the

law of

contract would,

th ink , have app l i ed

the

de t e rmina t ion o f

t he r igh t s and ob l iga t ions be tween the

Commonwealth

and

the r e sponden t

r e su l t i ng f rom the i r conduc t a f t e r

November

1967.

However the p rov i s ions o f

s.64 make it unnecessary t o

express

concluded view on

that quest ion.

I n

view the proper conclusion from the evidence

be fo re

His

Honour

i s

t h a t t h e r e s p o n d e n t a n d t h e

Commonwealth

v a r i e d

t h e

amount payable

the

respondent

f o r

t h e s e r v i c e s

performed by

it under the cont rac t f rom

$3,047.93

p e r week as

a t t h e d a t e

t h e c o n t r a c t t o

$10,227.41

p e r week

a t

26 November 1973.

12.

However

n o t t h i n k

p o s s i b l e t o c o n c l u d e

from

the ev idence

t ha t

t h e v a r i a t i o n s

i n t h e c o n t r a c t p r i c e

a s a compliance with clause

r e s u l t o f

v a r i a t i o n i n

award wages were

i n s t r ic t

o f

t h e c o n t r a c t .

I t

i s

n o t d i s p u t e d b y t h e

Commonwealth

t h a t

unde r

th i s c l ause

the r e sponden t

was

e n t i t l e d t o

claim

v a r i a t i o n w h i c h i n c l u d e d n o t o n l y t h e a c t u a l i n c r e a s e

i n

wages

bu t a l so

the consequen t

i nc rease

in such

items

as worker ' s

compensa t ion , pay ro l l t ax

e tc .

However,

the

respondent ' s

claims based on award

v a r i a t i o n s w e r e n o t a r r i v e d

a t

b y a d d i n g t o t h e e x i s t i n g r a t e

t he inc reases in award wages p l u s i n c r e a s e s i n s u c h i t e m s . T h e y w e r e c a l c u l a t e d b y a p p l y i n g t o t h e e x i s t i n g a g r e e d r a t e

p e r c e n t a g e u s u a l l y e q u a l t o

o r

s l i g h t l y l e s s t h a n t h e

award

v a r i a t i o n a n d c l a i m i n g t h e r e s u l t a n t

amount

a s t h e v a r i a t i o n i n

t h e c o n t r a c t p r i c e t o w h i c h t h e r e s p o n d e n t

was

e n t i t l e d .

In o ther words the approach adopted by

i t

was

in e s sence tha t sugges t ed by

i t

i t s

l e t t e r

November

1967 .

There i s no

ev idence

tha t

th i s

sugges ted

approach

was

e i t h e r a c c e p t e d

o r r e j e c t e d

i n

w r i t i n g b y t h e

Commonwealth.

The

l e t t e r however

i n

the contex t appears

have

provided

the

method

which

t h e r e s p o n d e n t , i n p r i n c i p l e , f o l l o w e d i n

c a l c u l a t i n g t h e i n c r e a s e s

sought due

to award var ia t ions .

The

Commonwealth was

c l e a r l y aware

t h i s

and

claims

submi t ted on

t h i s b a s i s

were considered

i t s o f f i c e r s

f o r payment.

They

were

occas ions no t

accep

ted

neve

i t would

seem

i n t h e p e r i o d

t o 26 November

1973 because

o f t he me thod o f ca l cu la t ing the inc reases .

The	e v i d e n c e r e l a t i n g t o v a r i a t i o n s d u e t o

inc reases

in awards po in t s

t o

independen t cons ide ra t ion

be ing g iven each

t ime

the respondent ' s

claim

and

t o a

dec i s ion be ing

made

b y t h e o f f i c e r s c o n c e r n e d e i t h e r t o

a g r e e

t o

it o r t o

q u e r y

it.

The

e v i d e n c e

a v a i l a b l e

r e l a t i n g

cases

where

the

claim

was

q u e r i e d i n d i c a t e s t h a t

t h e

claim

was

subsequent ly accepted and

o c c a s i o n s a f t e r c o n s i d e r a t i o n

l a s t i n g some

months.

I t

i s

o f p a r t i c u l a r s i g n i f i c a n c e t h a t t h e

v a r i a t i o n s , w h e t h e r

f o r

i n c r e a s e

i n a w a r d s

o r

i n c r e a s e i n

a r e a s , r e l a t e d n o t o n l y t o t h e p a r t i c u l a r

claims

which were

lodged bu t a l so p rov ided the r a t e

upon which

f u t u r e

work

would be t h e r e f o r e w e r e o f c o n s i d e r a b l e s i g n i f i c a n c e t o

done

acco

rdance

w i th

t he

con t r ac t .

The

v a r i a t i o n s

t h e f u t u r e

ope ra t ion o f

t he con t r ac t and the

Commonwealth

i n a c c e p t i n g

them

payment

through I n r e l a t i o n t o a r e a s ,

i t s

off icers must have been aware of

this .

i s

t o b e n o t e d t h a t

c l ause

1 4 ,

concern ing var ia t ion of

a reas

to be c leaned ,

and

c l ause

1 5 ,

c o n c e r n i n g c l e a n i n g o f a d d i t i o n a l a r e a s ,

a n t i c i p a t e d

t h e

amount

of the var ia t ion be ing agreed upon be tween the

Secretary,

Department

o f

Defence

and

the

cont rac tor .

each case the c l ause p rov ided tha t

t he

amount was

n o t t o

exceed

amount

equal

t o t h e

amount

payab le unde r

the con t r ac t

f o r

the c leaning of "an equiva len t a rea"

i n

t h e e x i s t i n g b u i l d i n g s .

The

Commonwealth

c o n t e n d e d t h a t

t h i s

was

t o b e c a l c u l a t e d

app ly ing to

new

a reas the va r i ed r a t e wh ich the r e sponden t

was

e n t i t l e d t o r e c e i v e p e r s q u a r e f o o t f o r e x i s t i n g a r e a s c l e a n e d .

The

respondent

the o ther hand contended

r e q u i r e d t h e

i d e n t i f i c a t i o n o f

a r e a e q u i v a l e n t i n p h y s i c a l

t e r m s e . g .

carpe ted

o r

the case

may

be.

14.

Connor

f a v o u r e d t h e l a t t e r v i e w b u t a l s o

found tha t , whenever over the per iod there

was

v a r i a t i o n

i n t h e a r e a t o b e c l e a n e d ,	i t	was	t h e s u b j e c t o f	a	s p e c i f i c
agreement between the par t ies .

Having considered

.the

ev idence on these mat te rs

I agree p a i d i n r e s p e c t o f a d d i t i o n a l a r e a s

wi th

His

Honour 's

f inding.

The

fact

t h a t

t h e

amounts

o r	v a r i a t i o n s o f a r e a s a r e

n o t

shown

t o have been

within

t h e

limits

s p e c i f i e d i n c l a u s e s

1 4 and

1 5

e i t h e r i n t e r p r e t a t i o n d o e s n o t i n

v iew mat te r .

As I each case an agreement

h a v e s a i d

the proper conclus ion

the ev idence

is t h a t i n

was

reached and

n o t t h i n k t h a t t h e

l i m i t a t i o n s c o n t a i n e d i n

these

clauses

p r e v e n t e d t h e p a r t i e s

from

agreeing

that

higher

amounts

would

payable.

t h i s

b a s i s

i t

i s

u n n e c e s s a r y

t o c o n s i d e r

t h e

t r u e c o n s t r u c t i o n o f

t h e

words "equiva len t a rea"

in c lauses

1 4

and

1 5 .

I n

t e n d e r i n g

i t s

ev idence

the r e sponden t

r e l i ed

mainly

the documen t s

r e l a t ing

claims submit ted by

from May

1 9 7 2 .

O f t h e s e ,

t h e

claims made and

the

correspondence

which passed fol lowing the Nat ional

Wage

i n c r e a s e

i n May

1 9 7 2 ,

i l l u s t r a t e c l e a r l y

how

agreement

was

reached be tween the par t ies

t o v a r y

t h e p r i c e p a y a b l e u n d e r

t h e c o n t r a c t a t

t h a t

t i m e . N o t

only

was

t h e r e

Nat iona l

Wage

i n c r e a s e b u t , s h o r t l y t h e r e a f t e r

d e c i s i o n r e s o l v i n g

i n d u s t r i a l d i s p u t e w h i c h v a r i e d t h e

r e l evan t award and inc reased the hour ly r a t e by

2 2 . 1 % .

15.

In a

l e t t e r d a t e d

1 4 June

1 9 7 2 it

expla ined

i t s

claim

i n r e l a t i o n

t o

t h e s e

i n c r e a s e s . W i t h

r e g a r d

t o

t h a t b a s e d

t h e

award

s e t t l i n g t h e i n d u s t r i a l d i s p u t e ,

t h e r e s p o n d e n t s t a t e d t h a t

had looked ve ry c lose ly a t eve ry

p o s s i b l e

way

of absorbing

the addi

ional

charges

which

increased

wages

2 2 . 1 %

b u t i n d i c a t e d t h a t

i n

the c i rcumstances

i t

sought

i n c r e a s e o f 1 9 . 5 % r e s u l t i n g

i n

new

r a t e o f $ 8 , 3 6 1 . 3 1 p e r

week.

The

r e l e v a n t

Form

1 2 claim

lodged by the respondent

(Exhib i t

"Gt t )

was

passed for payment by of f icers bu t conta ined

n o t e t h a t

it was

paid without prejudice "pending examinat ion

and ca l cu la t ion then informed the respondent by le t te r da ted

o f

wage

increases

and

cos ts" .

The

Department

June

1 9 7 2

(Exh ib i t

"5") t h a t : -

"pending

de ta i l ed examina t ion o f t he inc reased

c o s t s

they app ly

the c l ean ing con t r ac t w i th

your firm, we

have paid your

claim f o r $28,289.36

f o r the pe r iod

May

1 9 7 2 t o 1 2 June

1 9 7 2

w i t h o u t

p r e j u d i c e .

Any

ad jus tmen t

t ha t

may be

found necessary

w i l l be taken

up wi th you and

a d j u s t e d a g a i n s t f u t u r e

claims

under

the cont rac t . "

This c la im

was

considered over several months

and

1 9 September

1 9 7 2

the Secretary, Department of Defence,

through

o f f i c e r , w r o t e

t o

t h e

r e s p o n d e n t :

"The

above claim which

was

p a i d

w i t h o u t p r e j u d i c e

has been examined and passed as

c o r r e c t . "

the meantime

i n August

1 9 7 2 the respondent had

n o t i f i e d t h e

Commonwealth

t h a t

an appeal by employers

against

t h e d e c i s i o n g r a n t i n g

2 2 . 1 %

increase had met with

some

success

which enabled

to reduce by $237.47 per

week

t h e

amount

payable

t o it under	the	contract .	This was allowed	by	it i n c l a i m s	made
t h e r e a f t e r ,

16.

In my opinion only one proper conclusion can

be drawn from these documents and events, namely, that the Commonwealth and the respondent agreed to vary the contract price in the manner sought by the respondent and that, even

though this did not accord with the terms of clause

5, it

was an effective variation-of the contract price.

As stated earlier, the

Form 12 claim forms

submitted by the respondent were endorsed with three certificates

before being sent for payment. One of these was under	s . 3 4 ( 5 )
of the Audit Act which provided at the time:-

(5)

The correctness of any account in regard to rates of charge and faithful performance of the services charged shall be certified by the person incurring the expense or by the person appointed for that purpose by the

ginister administering the Department

concerned.

The claims in this case were certified under the Act by the person said to be incurring the expense.

I many

instances this was Mr Simmonds a principal executive officer

with the Department of Defence who was called to give evidence. incurring the expenditure which he said was a formal delegation.

As has been mentioned no-where

in his evidence did Mr Simmonds

suppest that when

he gave these certificates

he was mistaken

or misled. Nor did any other officer involved with this contract

The giving of the certificate under the Act is not a mere

formality. It testifies both to the correctness of the account

in regard to rates of charge as well as faithful performance of

the services and

in the absence of evidence to the contrary the

17 .

assumption must be that the officer satisfied himself, from his own knowledge or from information placed before him by

other officers, that what he was certifying was correct.

this case, when variations of price and area were involved in

particular claims,

it can only be assumed that the certifying

officer had satisfied himself that

a decision had been made

by the relevant officers to agree to the variations and to

reflect this

in the payments to be made for the services

performed. When payments were made therefore they reflected

not a mistaken belief on the part of the relevant officers

but their agreement that the particular variations involved

should be accepted whether based

on increases in wages or

changes in areas. The only relevance of considering the evidence

relating to these certificates and the actions of the officers

leading up to their signature is to demonstrate that far from

supporting a case that these payments were made by mistake it

is completely inconsistent with it. Apart from this it

is,

in itself, of

no ultimate significance to the question whether

the contract price was varied.

What is important to this issue is not that the

officers agreed but that the Commonwealth when

it r ceived

the claims and made unqualified payments i accordance therewith, was thereby in each case, agreeing to vary the contract by adopting the price shown thereon as the contract price for the

work covered by the claims and for the future until varied

again.

18.

A variation to the original contract could only

take place by agreement, that

is, by offer and acceptance.

Here the respondent offered to vary the contract by submitting

claims specifying an increased contract price based either

on increases in wages or changes in areas. The Commonwealth

in each case, except when it was qualified, accepted that

offer by making a payment in accordance with the claim. Its action in making this payment in each case was not only

performance but constituted acceptance (cf. Broqden

Metropolitan Railway Company (1877)

2 A.C. 666)

The Commonwealth relied strongly on the principle

applied in such cases as Auckland Harbour Board

v. Kinq 1924

A.C. 318; Commonwealth

v. Burns (1971)

V.R. 855: and Kinq v.

Toronto Terminals 1948 Ex C.R. (Canada) 563. These cases by the Government.

establish that where moneys are pald out of Consolidated

This could occur if

a condition on which money was

appropriated by statute had not been met at the time it was

paid out or if money was paid out by mistake even though not

recoverable under ordinary principles. The basis of the

action is that there has been	a payment out of the revenue
fund without authority.

In relation to actions by the Commonwealth

a questlon

arises as to whether s.64

of the Judiciary Act has had the

effect of destroying the Commonwealth's cause of action

in such

a case. This problem was mentioned by Gibbs

(as he then was)

in Maquire v. Simpson (1977) 139 C.L.R. 362

at pp. 387-8).

I think the better view is that the section

20.

not only constitute performance but also acceptance of

an offer. It was open to the Commonwealth

if it wished,

to qualify its payments of claims made by the respondent.

Had it done

so in an appropriate way the principles of the

Auckland Harbour Board Case would

no doubt have applied.

However, the payments relied upon were made without qualification.

In these circumstances I think the variations of

the contract are

a complete answer to the Cornonwealth's

claim. The Commonwealth was able to agree to vary the price

payable for cleaning services and this it did and

in so

doing it provided lawful authority for the payment out of

Consolidated Revenue of the moneys

in question. The

Commonwealth's claim for repayment therefore fails.

The Commonwealth also relied on non-compliance

with the Treasury Regulations made under the Audit Act, in

particular Regulations

4 6 , 4 7 , 52A.and 52B. Regulation 46

deals with requisitions for supplies (which by definition

includes services) and

in the case of departments such

as Defence required the use of Form

11. Regulation 52A

deals with purchase orders and requires the use of Form

13.

Mr Simmonds' evidence was used to support

a conclusion that

these forms were not used

in this case. In accordance with

the contract claims by the respondent were submitted using Form 12 which under Regulation 5 4 is to be used for accounts for general purposes. The evidence supports the conclusion

that these forms were submitted, checked and then passed on

for payment.

21.

His Honour was not satisfied that Mr Simmonds'

evidence establishes that there was a breach of Treasury

Regulations.

If there was, he thought the regulations

were modal in character and did not matter as far as the

respondent is concerned. He did not think non-observance

by its officers could be used by the Commonwealth to defeat

a claim for payment for services rendered to and accepted

by it under the running contract.

I agree with the views

expressed by His Honour and do not regard any non-observance

of the regulations as a defence to recovery

by th respondent

or as a proper basis for claiming repayment of the amounts

paid.

The regulations in their relevant parts provide

a procedure which is binding on public servants involved it does not preclude the normal effects in law of the payments made by the Commonwealth brought about by its acceptance of the respondent's offers to vary the original

in the making of payments out of Consolidated Revenue.

contract and the discharge of the

obligatiow of

the

respondents and the Commonwealth under the contract	so
varied.

22.

Had I not been

of the view that the parties had agreed

to vary the contract as to the weekly amount payable for cleaning services it would have been necessary to consider whether, at least in relation to its counter-claim, the Commonwealth was

estopped from asserting that the weekly amount payable was not

the amount claimed by the respondent. This would have raised

a matter of some substance but as it has turned out it is

unnecessary to consider it.

The respondent before Connor

J. claimed interest from

1 July 1974 on the amount claimed. His Honour held that there

was no statutory provision for interest in the Territory and

that the case did not come within any of the exceptional cases

referred to in the authorities. He therefore dismissed the

claim to interest. The respondent has cross-appealed against

His Honour's decision.

In the Court below the respondent argued that it was

entitled to interest. It appears to have based this argument

on an exception to the general common law rule independently

of any specific legislative provision to that effect.

In this Court it reserved this line

of argument without

pressing it and preferred to base its claim to interest on

alternative submissions. The first asserted that

s.140 of

the Common Law Procedure Act

1899 (N.S.W.)

applied to confer

power on the Court to award such interest. The second claimed

that the Court could exercise the same power as was conferred

on the Supreme Court of

N.S.W.

by 9.94 of the Supreme Court

Act 1970. I shall deal first with the claim based on

.140

of the Common Law Procedure Act

1899 (N.S.W.).

This section,

in relation to the Supreme Court of New South Wales, empowered

23.

the jury, on the trial of any issue or assessment of any

damages, to allow interest at

a s ipulated rate upon all

debts or sums certain recovered in any action "from the time when such debt or sum was payable (if payable by virtue of

some written instrument, and at

a date or time certain)".

The respondent submitted that this section remained in force in the Territory by virtue of sub-section

6(1)

of the Seat of Government Acceptance Act 1909 which

provides:-

"6.(1)

Subject to this Act, all laws in force

in the Territory immediately before the

proclaimed day shall, so far as applicable,

continue in force until other provision is

made. "

The proclaimed day was

1 January 1911.

There are I think several grounds on which the claim

based on s.140 of the Common Law Procedure Act 1899 should

be rejected.

First, I do not think that s.140 is

a law which could

in any useful or practical way continue in force in the

Territory. The Common Law Procedure Act

1899 governs the

powers, practice and procedure

of the Supreme Court of New

South Wales. Section 140 confers power on

a pry exercising

the jurisdiction of that Court. The Seat of Government

Acceptance Act 1909 did not vest jurisdiction in the Supreme

Court over matters arising in the Territory. Indeed by

s.8 of that Act it was vested in the High Court and this

remained so until 1933 when the Supreme Court was established.

2 4 .

Sec t ion 6(1)

o f the Acceptance A c t on ly

cont inued

laws

i n f o r c e

“ s o

f a r a s a p p l i c a b l e ” a n d

t h e

Common

Law

Procedure

A c t

could not apply because the

Supreme

Court of

New South Wales

t o which it was

d i r e c t e d was

given

n o

j u r i s d i c t i o n o v e r

matters

ar is ing

i n

t h e T e r r i t o r y . T h i s

view

cons i s t en t w i th the v i ews expres sed by

Mason

t h e effect

o f

s . 7 9

t h e J u d i c i a r y

Act

t h e power of

the

N.S.W. Supreme

Court

t o

award

i n t e r e s t

i n Aus t r a l i an Na t iona l

A i r l i n e s Commission v.	The	Commonwealth((l975)	49 A . L . J . R	338
a t p . 3 4 0 ) .

Second ly , even

i f , con t r a ry

th i s v i ew, s . l40

r e m a i x d i n f o r c e

i n

t h e T e r r i t o r y t o

empower

t h e

Supreme

Court

t o award i n t e r e s t ,

do n o t

t h i n k

i t

should be construed

c o n f e r r i n g t h a t p o w e r i n t h i s c a s e .

Clause

1 2 o f

t h e c o n t r a c t p r o v i d e d , i n e f f e c t

t h a t , s u b j e c t t o t h e

work

be ing sa t i s f ac to ry , paymen t

a t

t h e

a g r e e d

r a t e

s h a l l b e

made

monthly

i n a r r e a r s .

Under

t h i s

c lause

the ac tua l da te of payment

was

n o t f i x e d b u t

could

ascer

ined

once

the

rcumstances

occurred

ing

the

r i g h t

t o payment.

Section

1 4 0 was

i n

s u b s t a n c e

adopt ion

o f t he C iv i l P rocedure

Act

and

Wm.

c. 42

S . 18) and there

w a s i p r i o r t o

i t s

a d o p t i o n , a d i f f e r e n c e o f o p i n i o n i n E n g l i s h

d e c i s i o n s a s

t o

t h e

t r u e c o n s t r u c t i o n o f

t h e p r o v i s i o n s

upon

which it was based.

Merchant

Shipping

Co.

Armitage

(L.R.

9 Q . B .

114)

the

Exchequer

Chamber

h e l d

t h a t

t h e

ins t rument

i t se l f mus t ac tua l ly ment ion the

ime for

payment

I n Duncombe v.

Brighton

Club

Co. (L.R. 1 0 Q.B.

371) it was

h e l d t h a t

i t was

s u f f i c i e n t if an event

o r t ime was

f i x e d

25.

the date of which could be ascertained upon its happening.

The same question arose in relation to

s.140 shortly after

(N.S.W. )

its enactment in Houqh

v. Whitty 3 S.R./677.

In that case

the Full Court of the New South Wales Supreme Court held preferred Duncornbe's Case had they been free to follow it.

that it was bound to follow the decision in Armitaqe's

Having in mind the assumption

I have made that

s.140 is applicable by virtue of the Seat of Government

Acceptance Act 1909

I do not think we should decline to

follow the decision in Houqh

v. Witty. The interpretation

in question had been adopted prior to

1909 and If the

section, contrary to my view, operates in the Territory

to confer power to award interest on the Supreme Court of

the Territory,

I think it should be construed by this

Court as requlring the instrument itself to specxfy the

date. Since the contract here did not do

so, s.140 could

not, in my view, in any event assist the respondent to

recover interest on its debt.

The alternative submission put by the respondent

to support its claim for

mterest is that, by virtue of

s.27 of the Australian Capital Terxitory Supreme Court Act

1933, s.94 of the Supreme Court Act 1970 (N.S.W.) is part

of the practice and procedure of the Territory Supreme Court

26.

with the result that it had

a discretion to award interest

on the amount owing to the respondent at least from the

date the last monthly payment fell due on

1 July 1974.

Section 27 of the Australian Capital Territory

Supreme Court Act provides:-

"27. Where no provision in relation to

matter of practice and procedure of

the Supreme Court is contained in

this or any other Act, an Ordinance

or Rules of Court, that matter shall

be governed, as nearly as may

be, by

the practice and procedure

of the

High Court in similar matters and, if that practice and procedure is not applicable, that matter shall be

governed, as nearly

as may be, by the

practice and procedure of the Supreme

Court of New South Wales.''

Section 94(1) of the Supreme Court Act

1970

(N.s.w.) provides:-

"(l) In any proceedings for the recovery of

any money (including any debt or damages

or the value of any goods), the Court

may order that there shall be included,

in the

sum for which judgment is given,

interest at such rate as it thinks fit

on the whole

or any part of the money

for the whole or any part of the period

between the date when the cause of

action arose and the date when the

judgment takes effect."

At the outset it is important to note that

s.54

of the Australian Capital Territory Supreme Court Act provides

that a judgment debt under

a judgment of the Court carrles

interest at such rate as is fixed by the Rules of Court from

the date as

which

the

judgment

i s entered. There has

never been any provision

i n t h a t

A c t dealing with

interest

between the date when the cause

of act ion arose and the

date

judgment

takes e f fec t .

Since 1921 High Court

judgments have

car r ied

i n t e r e s t from the date

judgment is entered. (See

s.26A

the High Court Procedure A c t 1903 a s amended which was repealed i n 1979 and replaced by s.77N of the Judiciary

A c t 1903 a s amended).

No provision has

been made by A c t

or by Rules of

Court o r otherwise for the

payment of

i n t e r e s t

on amounts recovered i n t h e High Court between the time the

cause of act ion arose

and the t i m e of en t ry of

judgment.

In order for

s.27

the Austral ian Capi ta l

Te r r i t o ry Supreme Court Act

1933

t o have the e'ffect

contended for,

is necessary to es tab l i sh tha t there

app l i cab le p rov i s ion i n r e l a t ion t o t he

awarding

i n t e r e s t pre-judgment

i n t h a t Court or in the

High Court

and t h a t t h e

power which s.94

confers is indeed "a matter

prac t ice and procedure". For

the

moment

I s h a l l

assume t h a t it is.

It	w i l l be he lp fu l t o cons ide r f i r s t t he o r ig in

of s.94 of the Supreme Court A c t 1970 (N.S.W.)

28.

S e c t i o n

t h e

C i v i l P r o c e d u r e

Act

1833

was

t h e

first

s t a t u t o r y p r o v i s i o n c o n f e r r i n g

power

Eng l i sh Cour t

t o

ava rd

in t e re s t

p rep judgmen t .

I t

was

e n a c t e d a f t e r

the

d e c i s i o n

t h e C o u r t

Kings Bench

i n Page v. Newman [X291 9 B. & C . 378; 109 E.R. 140) which

conf ined the C o u r t ' s power

at common

law t o narrow limits,

t h a t is, interest so payable as a result of

custom or usage

i n t h e t r a d e or

as a resu l t of

express

i m p l i e d c o n d i t i o n s

c o n t r a c t b e n o t e d , d i d n o t

b e t w e e n

the p a r t i e s ,

The

s e c t i o n ,

i t w i l l

i n

t h e

create

r i g h t t o i n t e r e s t b u t c o n f e r r e d

d l s c r e t i o n

t h e C o u r t ,

was

c o n f i n e d t o d e b t s

sums

c e r t a i n a n d

empowered the Cour t

to award

from

the time t h e d e b t

o r sum

c e r t a t n yas due and payable

or was

demanded as the case may B e ,

I n New South Wales sJ40

of the Common

Law

procedure

Act

1899 a d o p t e d

i n

s u b s t a n c e

s.28 of the Eng l i sh Act.

the r e p e a l o f

the Common

Law

P r m e d u r e

Act

was

r e p l a c e d

by s.94 of t h e Supreme

Court

A c t 1970.

Th i s last mentioned

sec t ion ex tended

the

C o u r t ' s

power

s i g n i f f c a n t l y t o

proceedings

\"for

the recoyery

money't.

I t

c o n f e r r e d a

d i s c r e t i o n

t o t h e

rate

i n t e r e s t a n d a s t o w h e t h e r

should be o rde red on the whole

o r p a r t o f

the money

or f o r

t h e

whole

p a r t o f t h e p e r i o d f r o m

the

d a t e

the

cause of

a c t i o n a r o s e u n t i l t h e

date

judgment took ef fec t ,

By the time the Supreme Court Act

1970

was passed

s.28 of the Civil Procedure Act

1833 had

already been repealed in England and replaced by

S . 3

of the Law Reform (Miscellaneous Provisions) Act

1934

which was in substance the same as

s.94 of the Supreme

Court Act

1970.

I have already referred

to the specific

provisions relating to interest on judgment debts in the

Territory Supreme Court and the High Court. Section

of the Supreme Court Act

1970 (N.S.W.)

and prior to it

ss.142 and 143 of the Common Law Procedure Act

1899

(N.S.W.) provided for interest on judgment debts in the

Supreme Court. All these provisions appear to have thelr

origin in

s.18 of the Judgments Act

(U.K.) 1838. All of

them conferred on the plaintiff at least	a prlma facie right
to interest on the judgment debt.

authorised by the original contract and that they are

therefore recoverable. This submission would, I think, have

considerable weight were it not for the fact that subsequent

to the original contract the parties in my view agreed to

vary the original contract by varying the contract price

payable thereunder from time to time

and in the manner

I have

already analysed. The principles enunciated in the Auckland application to contracts made by the Commonwealth of the ordinary rules of contract law. For instance they do not

exclude the principle referred

to earlier that payment may

20.

not only constitute performance but also acceptance of

an offer. It was open to the Commonwealth if

it wished,

to qualify its payments of claims made by the respondent.

Had it done

so in an appropriate way the principles of the

Auckland Harbour Board Case would

no doubt have applied.

However, the payments relied upon were made without qualification.

In these circumstances

I think the variations of

the contract are a complete answer to the Commonwealth's

claim. The Commonwealth was able to agree to vary the price

payable for cleaning services and this it did and

in so

doing it provided lawful authority for the payment out of

Consolidated Revenue of the moneys in question. The

Commonwealth's claim for repayment therefore fails.

The Commonwealth also relied on non-compliance

with the Treasury Regulations made under the Audit Act, in

particular Regulations

4 6 , 4 7 ,

52A.and 52B. Regulation 4 6

deals with requisitions for supplies (which by definition

includes services) and in the case of departments such

as Defence required the use of Form

11. Regulation 52A

deals with purchase orders and requires the use of Form

13.

Mr Simmonds' evidence was used to support a conclusion that

these forms were

not used in this case.

In accordance with

the contract claims by the respondent were submitted using

Form 12 which under Regulation

5 4 is to be used for accounts

for general purposes. The evidence supports the conclusion

that these forms	were submitted, checked and then passed on
for payment.

21.

His Honour was not satisfied that Mr Simmonds'

evidence establishes that there was a breach of Treasury

Regulations. If there was, he

thought the regulations

were modal in character and did not matter as far as the

respondent is concerned. He did not think non-observance

by its officers could be used by the Commonwealth to defeat

a claim for payment for services rendered to and accepted

by it under the running contract.

I agree with the views

expressed by His Honour and do not regard any non-observance

of the regulations as a defence to recovery by the respondent

or as a proper basis for claiming repayment of the amounts

paid.

The regulations in their relevant parts provide

a procedure which is binding on public servants involved

in the making of payments

out of Consolidated Revenue.

Non-compliance can constitute a breach

on their part but

it does not preclude the normal effects

in law of the

payments made by the Commonwealth brought about by its

acceptance of the respondent's offers to vary the original

contract and the discharge

of the obligations

of the

respondents and the Commonwealth under the contract

varied

22.

Had I not been of the view that the parties had agreed

to vary the contract as to the weekly amount payable for cleaning

services it would have been necessary to consider whether, at

least in relation to its counter-claim, the Commonwealth wa5

estopped from asserting that the weekly amount payable was not

the amount claimed by the respondent.

Thls would have raised

a matter of some substance but as it has turned out it is

unnecessary to consider it.

The respondent before connor

J. claimed interest from

1 July 1974 on the amount claimed. His Honour held that there

was no statutory provision for interest in the Territory and

that the case did not come withln any of the exceptlonal cases

referred to in the authorities.

He therefore dlsmissed the

claim to interest. The respondent	has cross-appealed against
His Honour's decision.

In the Court below the respondent argued that it was

entitled to interest. It appears to have based this argument

on an exception to the general common law rule independently of any specific leglslative provlslon to that effect.

In this Court It reserved thls line of argument without

pressing it and preferred to base its clalm to lnterest on

alternative submissions. The first asserted that

s.140 of

the Common Law Procedure Act

1899 (N.S.W.) applied to confer

power on the Court to award such interest. The second claimed

that the Court could exercise the same power as was conferred

on the Supreme Court of N.S.W. by s.94 of the Supreme Court

Act 1970.

I shall deal first with the claim based on s.140

of the Common Law Procedure Act 1899 (N.S.W.). This section,

in relation to the Supreme Court of New South Wales, empowered

2 3 .

the jury, on the trial

of any issue

or assessment of any

damages, to allow interest at

a s ipulated rate upon all

debts or sums certain recovered in any action "from the time when such debt or sum was payable (lf payable by virtue of

some written instrument, and at

a date or time certain)".

The respondent submitted that this section remained in force in the Territory by virtue of sub-section

6(1)

of the Seat of Government Acceptance Act 1909 which

provides:-

"6.(1)

Subject to this Act, all laws in force

in the Territory immediately before the

proclaimed day shall,

so far as applicable,

- continue in force until other provision is

made. "

The proclaimed day was

1 January 1911.

There are I think several grounds on which the claim based on s.140 of the Common Law Procedure Act	1899 should
be rejected.

First, I do not think that

s.140 is a law which could

in any useful or practical way continue

In force in the

Territory. The Common Law Procedure Act 1899 governs the powers, practice and procedure of the Supreme Court of New

South Wales. Section 140 confers power on

a pry exercising

the jurisdlctlon of that Court. The Seat

of Government

Acceptance Act 1909 did not vest jurisdlctlon

I the Supreme

Court over matters arlsing in the Territory. Indeed by

s.8 of that Act it was vested in the Hlgh Court and this

remained so until 1933 when the Supreme Court was established.

2 4.

Sec t ion 6(1)

the

Acceptance

A c t

on ly

cont inued

laws

i n

f o r c e

“ s o

f a r a s a p p l i c a b l e “ a n d

t h e

Common

Law

Procedure

A c t

could not apply because the

Supreme

Court of

New

South Wales

t o which it was

d i r e c t e d was

given

n o

j u r i s d i c t i o n o v e r m a t t e r s

a r i s i n g

i n

t h e T e r r i t o r y . T h i s

view i s c o n s i s t e n t w i t h t h e

views

expressed by

Mason

t h e e f f e c t

s . 7 9

o f t h e J u d i c i a r y

Act

t h e

power

o f t h e

N.S.W. Supreme

Court

t o

award

i n t e r e s t

i n Aus t r a l i an Na t iona l

A i r l i n e s Commission v.	The	Commonwealth((l975)	49 A . L . J . R	338
a t p .340).

Secondly ,

even

i f , cont ra ry

t h i s v i e w , s . l 4 0

r e m a i w d i n f o r c e i n t h e T e r r i t o r y t o

empower

t h e

Supreme

Court

t o award i n t e r e s t , I

do n o t

t h i n k

i t

should be construed as

c o n f e r r i n g t h a t

power Clause

i n t h i s c a s e .

1 2

t h e c o n t r a c t p r o v i d e d , i n e f f e c t

t h a t , s u b j e c t t o t h e

work

be ing sa t i s f ac to ry , paymen t

a t

the

a g r e e d

r a t e

s h a l l b e

made

monthly

i n a r r e a r s .

Under

t h i s

c l a u s e t h e a c t u a l d a t e

payment

was

n o t f i x e d b u t

could

ascer

ined

once

the

rcumstances

occurred

ing

the

r i g h t

t o

payment.

Section

1 4 0 was

i n

s u b s t a n c e

adopt ion

of the w a s , p r i o r t o

Civi

Procedure

Act

and

4 Wm.

4 c.42

s .18)

and

there

i t s

a d o p t i o n , a d i f f e r e n c e o f o p i n i o n i n E n g l i s h

dec l s ions

t o

t h e

t r u e c o n s t r u c t i o n o f

t h e p r o v i s i o n s

upon

which i t was based.

Merchant

Shipping

Co.

Armitage

(L.R. 9 Q . B . in s t rumen t i t s e l f mus t ac tua l ly men t ion the t ime

114)

the

Exchequer

Chamber

h e l d

t h a t

t h e

payment.

I n Duncombe v.

Brlghton

Club

Co.

( L . R .

10 Q . B .

371)

it was

h e l d t h a t

i t was

s u f f i c i e n t i f an

even t

o r t ime was

f i x e d

25.

the date of which could be ascertained upon its

happen ng.-

The same question arose in relation to

s.140 shortly after

(N.S.W. )

its enactment in Houah v. Whitty

3 S.R./677.

In that case

the Full Court of the New South Wales Supreme Court held

that it was bound to follow the decision in Armltaqe's

- Case even though two of the three Judges would have

preferred Duncombe's Case had they been free to follow it.

Having in mind the assumption

I have made that

s.140 is applicable by virtue of the Seat of Government

Acceptance Act

1909 I do not

thmk we should decline to

follow the decision in Houqh

v. Wltty. The lnterpretatlon

in question had been adopted prior to

1909 and if the

sectlon, contrary to my

new, operates in the Territory

to confer power to award interest on the Supreme court of

the Territory, I think it should be construed by thls Court as requirmg the mstrument Itself to specify the

date. Since the contract here did not do

so, s.140 could

not, in my view, in any event assist the respondent to

recover lnterest on Its debt.

The alternative submission put by the respondent to support its claim for interest is that, by virtue of

s.27 of the Australian Capital Territory Supreme Court Act

1933, s.94 of the Supreme Court Act

1970 (N.S.W.) is part

of the practice and procedure of the Territory Supreme court

26.

with the resu l t tha t

it had

d i sc re t ion t o

award

i n t e r e s t

on the amount owmg

to the respondent

a t least from the

date the

las t monthly payment f e l l due on 1 Ju ly 1974.

Section

the Austral ian Capi ta l Terr i tory

Supreme Court A c t provides:-

“27.

Where no p rov i s ion in r e l a t ion to a

matter of practice and procedure of

the Supreme Court i s contained in

t h i s o r

any

other A c t ,

an Ordinance

or Rules of Court , that matter shall

be governed, as nearly as may be, by

the prac t ice

and procedure of

the

High Court i n similar matters and,

i f

t ha t p rac t i ce

and procedure

is not

appl icable , tha t mat te r sha l l

governed, as nearly as may be, by the prac t ice and procedure of the Supreme Court of New South Wales. ”

Section 94(1 ) of the Supreme Court A c t 1970

(N.S.W.) provides:-

“(l) In any

proceedings

for

the recovery

any money (including any debt or damages

or the value

of any

goods), the Court

may

order tha t there sha l l

included,

i n t h e

sum

f o r whlch

judgment

i s given,

i n t e r e s t a t

such

r a t e a s

thinks

f i t

on the whole o r any p a r t of

the money

f o r t h e

whole

o r any

p a r t of

the per lod

between the date when the cause of act ion arose and the date when the

judgment

takes e f fec t .”

A t the outse t

is important

t o n o t e t h a t

s.54

the Austral ian Capi ta l Terr i tory

Supreme Court A c t provides

t h a t a Judgment debt under

a judgment of

the Court carr les

interest a t such rate as i s f lxed by the Rules

of Court from

27.

the date

as of

which

the judgment is entered. There has

never been any provision

i n t h a t

A c t

dea lmg wl th in te res t

between

the date

when

the cause of action arose and the

date

judgment

takes e f fec t .

Since 1921 High Court judgments have

ca r r i ed

i n t e r e s t from the date

judgment

i s entered. (See

s.26A

the High Court Procedure

A c t 1903 a s amended which w a s

repea led in 1979 and replaced

by s.77N

of the Judiciary

A c t 1903 a s amended).

N o provision has

been made by A c t

o r by Rules

Court or otherwise for the

payment

i n t e r e s t

on amounts recovered i n t h e High Court between the time the

cause of action arose and the

t i m e

en t ry of

judgment.

In order for

s .27

the Austral ian Capi ta l

Terr i tory Supreme Court A c t 1933 t o have

the Gffect

contended

f o r ,

is necessa ry to e s t ab l i sh tha t t he re

i s

applicable provision

r e l a t i o n t o t h e

awardmg

i n t e r e s t pre-judgment

i n t h a t

Court

o r i n t h e

High

Court

and t h a t t h e power which s.94

confers is indeed "a matter

prac t ice and procedure". For

the

moment

I s h a l l

assume t h a t it is.

w i l l be

h e l p f u l t o c o n s i d e r f i r s t

the or ig in

of s.94 of the Supreme Court A c t 1970 (N.S.W.

S e c t i o n

o f t h e C i v i l P r o c e d u r e

Act

1833

was

t h e

first

s t a t u t o r y p r o v i s i o n c o n f e r r i n g

power

Engl i sh

Cour t

t o award

In te res t

p re- judgment .

I t

was

enac ted

after

t h e

decis ion of the Court of Kings Bench

i n P a g e

v . Newman

c18291 9 B.

& C.

378; 109

E.R.

140) which

c o n f i n e d t h e

Cour t ' s power

common

l a w t o narrow

limits,

t h a t is, interest so payable as a resu l t of

custom or usage

i n t h e t r a d e

as a resul t of

express

i m p l i e d c o n d i t i o n s

i n

t h e c o n t r a c t

between

the

p a r t i e s ,

The

s e c t i o n ,

x t will

n o t e d , d i d n o t

create

r i g h t t o i n t e r e s t b u t c o n f e r r e d

d i s c r e t i o n on

t h e Court,

it was

c o n f i n e d t o d e b t s

o r

sums

c e r t a i n a n d

it empowered the Cour t

t o award it from

t h e time t h e d e b t

or sum

c e r t a x n was

due and payable

or was

demanded as t h e case may B e ,

I n New

South Wales s.140 o f t h e

Common Law Procedure

Act

1899 adopted i n subs t ance s.28 of the Eng l i sh A c t .

t h e r e p e a l o f t h e

Common

Law

Procedure

Act

was

r e p l a c e d

by s.94 o f

t h e

Supreme

Court

Act 1970.

T h i s last mentioned

sec t ion ex tended

the

C o u r t ' s

power

s i g n i f i c a n t l y t o

proceedings

" for

the recoyery

money'".

I t confe r r ed a

d i s c r e t i o n

t o t h e

rate

o f i n t e r e s t a n d

t o w h e t h e r

shou ld be o rde red

the whole

p a r t o f t h e

money

f o r

t h e

whole

p a r t o f t h e p e r i o d f r o m t h e d a t e t h e c a u s e

a c t i o n a r o s e u n t i l t h e d a t e j u d g m e n t t o o k e f f e c t .

29.

By the time the Supreme Court Act 1970

was passed s.28 of the Civil Procedure Act

1833 had

already been repealed in England and replaced by

s.3

of the Law Reform (Miscellaneous Provisions) Act

1934

which was in substance the same as s.94 of the Supreme

Court Act 1970.

I have already referred

to the speclfic

provisions relating to interest on judgment debts in the

Territory Supreme Court and the High Court. Section

of the Supreme Court Act 1970

(N.S.W.)

and prior to it

ss.142 and 143 of the Common Law Procedure Act 1899

(N.S.W.)

provided for interest on

~udgment

debts in the

Supreme Court. All these provisions appear to have thelr

origin in s.18 of the Judgments Act

(U.K.) 1838. All of

them conferred on the

plaintiff at least a prlma facle right

to interest on the judgment debt.

Hlstorically therefore the question of

Interest on the judgment debt and the questlon of interest

on the debt or sum certain and later on the money sued for

have been treated as two separate matters and different

considerations have been applied to them.

Under the Australian Capital Territory Supreme Court Act no specific power is given to that Court

to award

pre-~udgment

interest; nor

1s there any under any Act,

Ordinance or Rule of Court relating to that Court. There is

a provision imposmg post judgment interest but this

relates, in my view to

a different matter.

In the High Court, on analysis,

a imilar

situation emerges. There is provislon for Interest on

the judgment debt (now

s.77N Judiciary Act 1903) but

no provision relating to pre-judgment interest on moneys

recovered.

It might be argued that because there

such provislon relating to the High Court the practice

and procedure there is not to allow interest pre-judgment

on moneys recovered and that therefore, pursuant to s.27

this becomes the practice and procedure in the Territory

is no

Supreme Court. One might think thls is

a curious result

because the basis on which one considers the position in

the Hlgh Court is the absence of any provision on the

matter in the Supreme Court.

However certaln concluslons expressed by

Mason J. in Australian National Airlines Commlssion

the commonwealth ((1975) 49

A.L.J.R.

338 at p.340) might

be thought to support thls result.

In that case Mason J. dealt (inter alia)

wlth a submmlssion that by virtue of s.79 of the Judiciary

Act he as

a justice sitting In the original jurlsdiction

of the High Court was entitled to exercise the powers

conferred by s.94 of the Supreme Court Act 1970

(N.S.W.).

31.

Sectlon 79 provldes that the laws

of each State,

mcludmg

the laws relating to procedure shall except as otherwise

provided by the Constitutlon or the laws of the Commonwealth,

be binding on all Courts exercising federal jurisdlction in

that State in all cases to which they are applicable.

At p.340, speaking of the Hlgh Court, His

Honour said:-

"The relevant powers of this Court are conferred

by the Judiciary Act and the High Court Procedure

Act 1903-1966 as amended; as

I see it they are

not to be supplemented by the operatlon of s.79

of the Judiciary Act in the manner suggested.

Section 26A of the High Court

Procedure Act,

which provides

that judgments of the Court shall

carry Interest, should be regarded as

comprehensive expression

of the entitlement In

this Court of a litigant to interest on damages to the excluslon of any provision in State law which would otherwise be made applicable by

S. 79".

Although capable of belng read to support the argument I have mentioned, these comments are

not, on

examination, directed to the same question. His Honour, In

his earlier reasons, was concerned to indicate that s.94 of

the Supreme Court Act 1970

(N.S.W.)

could not apply to the

High Court because it was

a power being vested by s.94

the Supreme Court. In the passage quoted His Honour was

merely indicating the result of this view, namely, that s.26A

(the provlsion then

so providing) expressed the complete

entitlement of a litigant to interest in that Court.

In my oplnlon therefore on the assumption

have made there is no applicable practice or procedure in the High Court on the matter of pre-judgment interest on moneys recovered.

It follows that pursuant to

s.27 of the

Australian Capital Territory Supreme Court Act 1933 this matter is to be governed as nearly as may be by the practice and procedure of the Supreme Court of New South

Wales. Assuming it is

a matter of practice or procedure

it follows that s.94 would in my view govern the awarding of interest pre-judgment on moneys recovered in the Supreme

Court of the Australian Capital Territory. It remains

consider whether this

is a matter of practice and procedure

The meaning of the phrase "practice and

procedure" has arisen

m innumerable cases. Although no

clear cut definition has emerged several cases are of

assistance.

In Poyser v. Minors

((1881) 7 QBD 329 at

p.333-4) Lush L.J. in considering

a power to frame rules

and orders for regulating the practice'of and the forms

of proceedings in county Courts said:-

"'Practice' in its larger sense

- the sense in

which it was obviously used

In that Act llke

'procedure' which

1s used In the Judicature Acts,

denotes the mode of proceeding by which

a legal

right is enforced, as distingulshed from the law

whlch gives or defines the rlght, and which by

means of the proceeding the Court is to admlnlster

the machinery as distinguished from its product.

'Practice' and 'procedure' as applied

to this

subject I take to be convertible terms.''

In A.G. v. Slllem (1864) 10 H.L.C.

704 at

p.723

(11 E.R. 1200 at p.1209)) Lord Westbury dealing wlth	a
similar provision said:-

33.

"Here the word 'practice' is used in

the common

and ordinary sense, as denoting the

rul s that

make or guide the cursus curiae and regulate the

proceedings in

a cause within the walls or limits

of the court itself".

White v. White

((1947)

Arg

L.R. 342)

(at p.344) speaking of the word 'procedure' said:-

"In the appropriate context it comprehends all

steps necessary to be taken in litigation for

the establishment of

a right in order that the

right may be judicially recognised and declared

in such manner as will enable the party asserting

the right legally to enjoy

It; it covers not only

the acts of the Judges

of the Court, but also the

acts of the officers of the court which are

necessary to give effect to judicial pronouncements."

Another gloss to the meaning of the words 'practice

and procedure' is found in Younq

v. Toynbee ((1910) 1K.B. 215)

where Buckley L.J. (at p.220) said:-

"The expression 'practice and procedure' is not

confined to steps in the action itself but covers

also matters in connection with the action."

In that case an appeal against

a master's

refusal to order the defendant's solicltor to pay the

plaintlff's costs was held to be an appeal on

a matter of

practice and procedure. Further examples

of matters held

to be matters of practice

or procedure are

- a provision

conferring a right of appeal wlthin the Supreme Court of

N.S.W.

in a proceeding brought to enforce

a substantive

right (Minister for Army

v. Parbury Henty

& Co. (1945)

70 C.L.R. 459 per Latham C.J. at p.489); an order for

committal or attachment (Lever Bros. v. Kneale (1937)

2 K.B. 87); an appeal from an order giving leave to bring

3 4 .

an action against the owners of

a mental institution

(In re Shoesmith

(1938) 2 K.B.

637); a provision for

an order staying proceedings until

a party submits

a medical examination (Christie	v. Webb & Anor(1951)
S.R. (N.S.W.) 8).

One of the most difficult questions which can arise is whether the fact that

a particular provision

creates a right or liability which dld not previously exist

prevents such

a provision from being

a matter of practice

or procedure. Section 94 of the Supreme Court Act 1970

(which replaced

s.140 of the Common Law Procedure Act

1899) gave the Court

a much wider power to award interest

on the amount for which judgment is given.

It could be said from the debtor's point of

view that

s.94 removed an

mmunity that prevlously

exlsted from havlng interest imposed on the amount of the

judgment from the time the cause

of action arose. From

the creditor's viewpolnt it could be said that it

created the possibillty of such interest belng awarded.

The retrospective effect of

s.94 was considered

by the N.S.W. Court of Appeal in Slmonlus Vischer v. Holt

and Thompson (1979)

2 N.S.W.

L.R.

322 .

After referrlng to

the presumption against retrospectlvlty of a law which alters substantive rights liabilltles or lmmunities

35.

(discussed in Maxwell

v. Murphv (1957) 96 C.L.R. 261)

Moffat P. (with whom Reynolds

J.A. and Samuels J.A.

agreed on this particular question) said:-

"Thus although

a provision is made in

statute deallng with procedural matters,

and itself is procedural in form by

providing a power exerciseable only in

the course

of proceedings, the provision,

on examination may not be procedural only,

and may confer

a new substantive right or

destroy a past immunity. Section 94 is

in a procedural statute and, as indicated,

is procedural in form: but the power given

is t.0 create an obligation of

a kind which

did not previously exist, and which is

different in nature from the rlght which

did exlst."

Does it follow from this that such

a provlsion

as s.94 is not

"a matter of practice or procedure"?

It is clear that

s.94 does not alter or

impair the cause of action. It does not confer

a ight

to interest but confers

a dlscretion on the court in the

proceedings. It enables the Court to ensure that

plalntiff will enjoy the fruits of his cause of action.

so far as the proceedlngs are concerned it makes it less

llkely that they wlll be unduly delayed by

a defendant

seeking to avoid payment and It enables the plaintiff to

be compensated for any delay. It is

a power whlch must be

exercised in the proceedlngs themselves and its exercise

cannot be sought in separate proceedings.

36.

So conceived the provlsion

is, in my oplnlon, part

of the machinery or procedure within which the cause of action 1 s enforced. It is an aid in admlnistering justice.

The fact that such

a provision removes an immunity

or creates

a benefit which did not previously exist does not

in my view prevent it from being

a matter of practice or

procedure.

A right of appeal within

a court, a liabilrty

to attachment or committal,

a right to enter premises, an

obligation to submit to

a medical examination,

a right to

costs all confer important rights or subject parties to

substantial liabilities but they have all been regarded as

matters of practice or procedure.

The statements of Moffatt

P. in Simonius Vischer

Holt & Thompson (supra) do not in my view necessarily support

a conclusion that

s.94 does not deal with

a matter of practice

and procedure. The question there was whether it was "retrospective"

in the sense that it empowered the Court to award interest for

a period prior to the commencement of the section.

It was

a question of construction and the members

of the Court of Appeal concluded that because

s.94 removed

an immunity and created a benefit not prevlously in existence it should not be construed as operating retrospectively. This may have Justified the applicatlon of the rule of construction

against retrospectivity but it dld not in my view, for the reasons I have given, involve the conclusion that it was not a matter of practice and procedure.

37.

I would add that, in any event,

I find some dlfficulty

wlth the reasoning of the Court of Appeal in Simonius Vischer v.

Holt & Thompson (supra). Section 16(1) made it clear that,

unless the Court otherwise ordered, the-Act was not to apply

to proceedings commenced in the Court before the commencement

of the Act. In this sense the Act contained its

own provlsion

against retrospectivity i.e. it provided that neither s.94 nor

any other provisions of the Act were by their	own fo ce to
apply to prior proceedings.

The.insertion of s.16 is therefore completely consistent

with-the view that s.94 is

a procedural provlsion whlch might,

but for s.16, have operated retrospectively	so as to apply to
current proceedings whenever commenced.

It is interesting to note that in England

in B k of

Athens v. Royal Exchanqe Assurance (1938)

1 K.B. 771 Branson

held that the equivalent English sectlon, in the absence of

provision like s.16, did

so apply.

The nature of provlsions such as s.94 has been

considered in other cases. For instance Glbbs J. (as he

then was) in Ruby

v. Marsh (1975)

132 C.L.R. 642 at 656)

regarded a similar but not identical Victorlan provision as

"adjectival". Reynolds J.A. In Pheeney v. Doolan (No.

2 )

((1977) 1 N.S.W.

L.R. 601 at p.613) expressed

a similar vlew.

More recently in Government Insurance Office

of N.S.W.

v. Atkinson-Leiqhton Joint Venture (not yet reported) Barwick C.J.

(dlssenting from the

m e w that the

N.S.W.

arbltrator in that

case had the same power to award lnterest as the Supreme

Court under s.94)

said:-

I .

3 8 .

"the question

whether the arbitrator

has power

or authority

to award

interest on the

sum

awarded 1s a matter of procedure to be

resolved by procedural law. It is not a

matter of substantive law. Quite clearly,

in the law of contract there is no right to

the payment

of interest where there

IS no

promise to pay it. But in point

of procedure

the payment

of inserest on moneys due and

l j

payable could be ordered by courts".

'X \

Wilson J. agreed with this reasoning. Although

this distinction was critical to the view the Chief Justice

formed it does not appear to have been relevant to the

approach adopted by the majority who took the view, as

Stephen J. expressed It, that-"an

arbltrator may award

interest where interest would have been recoverable had

the matter been determined

m a court of law".

For these reasons, supported as they are by

authority, I am of the opinion that

s.94 is a provision

Involving "a matter of practice and procedure" and that

these words as used in

s.27 of the Australian Capital

Terrltory Supreme Court Act	1933 comprehend such	a
provision.

This being

so, it follows that

s.94 governs

the practice and procedure on thls matter in the

Australian Capital Telrrltory Supreme court and that the

Court below was empowered to award interest to the

respondent in the terms

of that section.

39.

The orders I would make therefore

are that

the appeal be dismissed, that the

cross-appeal be

allowed and that the appellant pay the

respondent's

costs of the appeal and

the cross-appeal.

[1981] FCA 142

17 Aug 1981