Commonwealth of Australia v Brandon S35/1996 [1996] HCATrans 332 (4 September 1996)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S33 of 1996

B e t w e e n -

COMMONWEALTH OF AUSTRALIA

Appellant

and

ROBERT JOHN MEWETT

Respondent

Office of the Registry

Sydney No S34 of 1996

B e t w e e n -

COMMONWEALTH OF AUSTRALIA

Appellant

and

MICHAEL JOHN ROCK

Respondent

Office of the Registry

Sydney No S35 of 1996

B e t w e e n -

COMMONWEALTH OF AUSTRALIA

Appellant

and

MARK JOHN BRANDON

Respondent

BRENNAN CJ

DAWSON

TOOHEY J

GAUDRON J

McHUGH J

GUMMOW J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 4 SEPTEMBER 1996, AT 10.30 AM

Copyright in the High Court of Australia

_________________________

MR G. GRIFFITH, QC, Solicitor-General for the Commonwealth: If the Court pleases, I appear for the appellant Commonwealth with my learned friends, MR S.J. GAGELER and MR G.R. KENNETT, in each matter. (instructed by the Australian Government Solicitor)

MR D.A. WHEELAHAN, QC: May it please the Court, I appear with my learned friend, MR M.L. BRABAZON, for each of the respondents. (instructed by Szekely & Associates)

BRENNAN CJ: Mr Solicitor.

MR GRIFFITH: Your Honours, we filed our outline with the Court yesterday. Your Honours, on page 3 of that outline, there is a chronology. The extracts of the relevant legislation of New South Wales and Victorian Limitation Acts have already been filed with the Court as a bundle and those filed extracts should be sufficient for the Court's consideration. If your Honours please, these three cases raise the issues specifically left open in Georgiadis particularly noted at page 308.

GAUDRON J: Is there not an anterior question, Mr Solicitor? I, for my part, do not see how it is that these statutes of limitations apply.

MR GRIFFITH: Your Honour, I suppose the Commonwealth would agree with you, but I hope our submissions embrace the answer to that question, your Honour. I do not know whether to ask your Honour to elucidate the - - -

GAUDRON J: I, for my part, do not see why there is any limitation period which runs against the Commonwealth.

MR GRIFFITH: Of course, your Honour.

GUMMOW J: This was ventilated to some extent in Kruger.

MR GRIFFITH: Yes, your Honour. I must say I sort of left that issue as one to be disposed of in the Kruger judgment, but may I deal with that in that way, as it were, to answer your Honour's inquiry of me now. I think we made our submissions clear in Kruger that we would say that the relevant State limitation period is attached, and we would take the same approach here. I do not know whether that is sufficient for your Honour's purposes.

GAUDRON J: There may be a difficulty, may there not? It may not be necessary to decide that issue in Kruger. If you were to succeed in this case without that matter being determined in Kruger, you would have, as I apprehend it, the actions of the plaintiff struck out.

MR GRIFFITH: Your Honour, I suppose it depends really on Kruger of which we know not. But if that eventuality arose, your Honour, perhaps it could be dealt with as it arose.

KIRBY J: I did not sit in Kruger, as you recall.

MR GRIFFITH: Yes, I do, now your Honour reminds me. But this is the issue that Justice Gaudron raised in argument in Kruger as to whether or not there is any limitation period in the circumstances of an action being issued in the High Court. That was a matter which was dealt with in argument particularly in reply. As Justice Gaudron indicates, it is not yet known whether or not the judgment in Kruger will address that, but it was an issue which was argued and one which may or may not be disposed of in Kruger. But the position of the Commonwealth, your Honour, is that whether actions are issued in the High Court or issued in a State jurisdiction or a federal jurisdiction in a State, in all circumstances one picks up the relevant limitation period.

GUMMOW J: Picks it up by what route?

MR GRIFFITH: Your Honour, we say the usual route.

GUMMOW J: That seems to have some potholes in it.

MR GRIFFITH: Well, possibly, your Honour. But, your Honour, I suppose that is a matter which - this appeal has come to the Court on the basis that that is not in issue between the parties in that it - the Court will recollect, or those Judges that sat on the removal application, there was an issue raised by the Commonwealth as to whether the Victorian or the New South Wales Limitation Act applied in the Mewett Case and - - -

BRENNAN CJ: It appears, from judgments below, there was common ground as to the application of the Acts.

MR GRIFFITH: Yes, your Honour.

BRENNAN CJ: But that, of course, is common ground as to a proposition of law.

MR GRIFFITH: Yes, your Honour.

BRENNAN CJ: Is it not desirable for you to address the question of the application of these Acts as the first step?

MR GRIFFITH: Well, your Honour, as it is now raised, that may well be the case. But the difficulty is, your Honour, that the case has come to the Court today on the basis of what now is identified as the second step as being the issue which the parties apprehended was to be addressed by the Court. So that, it may not be entirely satisfactory, your Honour, for us to do it on the trot, if that is regarded as a preliminary live issue.

GAUDRON J: Well, I mean, the question of acquisition on just terms really is concluded against you if there is no limitation period.

MR GRIFFITH: Yes. Well, your Honour, it might have been useful to identify this as an issue on the application for special leave, because the effect of the application was to narrow the issues by - the Commonwealth abandoned its contention as to the argument by which the Victorian Act was held to apply, and the issue became narrowed to the circumstance of the respective operations of the New South Wales and Victorian Acts. But, I suppose in a way we are in the hands of the Court. I think for the Commonwealth, if the Court wishes to have submissions on this point, it would be certainly more efficient if we were to adopt and file written submissions on the basis of the argument we put to the Court in Kruger on this point, rather than to do it on - what would be an unsatisfactory argument on the trot, as it were.

KIRBY J: Whilst that is being considered, Mr Solicitor, could I have copy of your submissions; somehow they do not appear to be on the Bench.

MR GRIFFITH: I am sorry, your Honour, yes.

KIRBY J: I do not ask for your own if that puts you at a disadvantage.

MR GRIFFITH: Your Honour, I will give you my own. Your Honour, perhaps I can assist in this. Mr Gageler reminds me that there would plainly be a section 78B issue here and, your Honours, perhaps we are at fault for not realising after Kruger that, until the issue was disposed of, of Kruger or otherwise, implicit was this preliminary point, but that would seem to be a difficulty in dealing with that now. I do not want to be unhelpful, your Honours, but - - -

BRENNAN CJ: The Court will adjourn briefly in order to consider the position.

AT 10.38 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.14 AM:

BRENNAN CJ: Mr Solicitor, these cases involve the following questions: one, does any statute of limitations apply in favour of the Commonwealth in this Court or on remission to the Federal Court? If so, which statute applies and by reason of what legal propositions? These questions not only bear on the solution to the issues in these cases but may raise questions of general constitutional importance. It seems to be necessary to address these questions before considering the issues to which the notices of argument are directed. Accordingly, unless there are contrary submissions, the preferable course is to adjourn the matter to allow the parties to consider these questions and to give such section 78B notices as may be required. Are there any contrary submissions?

MR GRIFFITH: Your Honour, I would be quite content to make a short submission based primarily on sections 79 and 64 of the Judiciary Act, but really, your Honour, it would seem that the appropriate course is to give the notices and no doubt bring it back with a larger cast with the issues addressed as they have now been identified by the Court.

BRENNAN CJ: Yes.

MR GRIFFITH: Logically, your Honour, it seems we cannot invite the Court to consider the matters which are addressed by the arguments which have been prepared because, even if the Commonwealth was successful on those, my learned friend would still be entitled to put the arguments which arise on the first question. So we cannot suggest that as perhaps a Kruger-like approach of saying perhaps it is not necessary to answer it. It may not be necessary in Kruger but, your Honour, it is clear when one thinks about it, as your Honour has just indicated, that if my learned friend desires to rely on the point or if the Court, indeed, must dispose of it as a legal issue, even if not identified down below or flagged by the parties, what your Honour proposes is correct.

Your Honour, in that context it may be appropriate to raise the issue of whether or not implicit in this is reopening Georgiadis itself. That may become an issue, but no doubt - - -

BRENNAN CJ: If the matter is adjourned in accordance with the tentative view that the Court has formed, there would certainly be a directions hearing.

MR GRIFFITH: Yes, your Honour.

BRENNAN CJ: No doubt that would be a matter that would receive the consideration of the parties.

MR GRIFFITH: Yes. You never know, your Honour, it seemed a nice one morning case, your Honour, and there we are.

BRENNAN CJ: It seemed a very short point.

MR GRIFFITH: It is like ducks at Donald, your Honour, or Mickey Mouse or whatever, one never knows what the day will bring.

McHUGH J: Mr Solicitor, it also just occurs to me now that in addition to the question that has just been stated about whether the limitations applies in favour of the Commonwealth, there may be questions involved as to how the Federal Court could exercise jurisdiction to extend time which is granted by State legislation, as well.

MR GRIFFITH: Your Honour, I cannot say I am grateful for that observation, but I will absorb it, your Honour, and, no doubt, those issues will be addressed in any notice we may give to the States. Thank you, your Honour.

BRENNAN CJ: Perhaps we should hear what Mr Wheelahan has to say?

MR GRIFFITH: Your Honour, I do not know whether it is appropriate to say but sometimes one wonders whether the notice of cross-contention - the Court may not assist parties who otherwise limp in without necessarily having flagged what are, indeed, as the Court now points out, the underlying issues. All I can say, your Honour, is we do our best.

BRENNAN CJ: Mr Wheelahan?

MR WHEELAHAN: We have nothing to add, your Honour. We will abide by the preliminary indication that has fallen from the Court. We have no submissions to make to the contrary.

BRENNAN CJ: Yes. In that case regrettably the Court will have to adjourn the matter to a date to be fixed. There will be a directions hearing which will be notified to the parties in due course and perhaps you can give us some indication on your part, Mr Solicitor, as to the period which you think ought to be allowed to elapse before that directions hearing is held in order to give you an opportunity to consider precisely all the very interesting ramifications that may arise.

MR GRIFFITH: I would have thought 14 days or so would be sufficient, your Honour. So later this month I would have thought would be acceptable.

BRENNAN CJ: There would have to be some time given for the 78B notices.

MR GRIFFITH: We would do them very quickly, your Honour, but - - -

BRENNAN CJ: Anyhow, from your point of view of the preparation of the matter, 14 days would be sufficient.

MR GRIFFITH: Yes, your Honour; we would have thought there is no need to have a particular delay.

BRENNAN CJ: Mr Wheelahan.

MR WHEELAHAN: We would not ask for a longer time, your Honour.

BRENNAN CJ: Yes, very well. Well that is not to say that that is when the directions hearing will be held, but we needed to know what the minimum time was that the parties required.

MR GRIFFITH: Your Honour, it might be convenient to have it at the same time as the Levy Case directions hearing, in that there might be State presence - - -

BRENNAN CJ: It may be, but the issues and the parties might be very different.

MR GRIFFITH: I am not entertaining the same issues, just that the States may well be present for that, your Honour, so that it would just be an administrative convenience to just have one set of - one day - - -

BRENNAN CJ: The Court will bear that in mind, Mr Solicitor.

MR GRIFFITH: Thank you, your Honour.

BRENNAN CJ: The Court will adjourn until 10.15 tomorrow morning.

AT 11.20 AM THE MATTER WAS ADJOURNED