Commonwealth of Australia v Mewett S123/1995 [1996] HCATrans 93 (4 March 1996)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S123 of 1995

B e t w e e n -

COMMONWEALTH OF AUSTRALIA

Applicant

and

ROBERT JOHN MEWETT

Respondent

Office of the Registry

Sydney No S124 of 1995

B e t w e e n -

COMMONWEALTH OF AUSTRALIA

Applicant

and

MICHAEL JOHN ROCK

Respondent

Office of the Registry

Sydney No S125 of 1995

B e t w e e n -

COMMONWEALTH OF AUSTRALIA

Applicant

and

MARK JOHN BRANDON

Respondent

Applications for special leave to appeal

BRENNAN CJ

TOOHEY J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 4 MARCH 1996, AT 9.34 AM

Copyright in the High Court of Australia

_________________________

MR G. GRIFFITH, QC, Solicitor-General for the Commonwealth: If the Court pleases, I appear with my learned friend, MR S.J. GAGELER, in each of those applications. (instructed by the Australian Government Solicitor)

MR M.L. BRABAZON: If it please the Court, I appear with my learned friend, MR V. STEFANO, for the respondent in each of those applications. (instructed by Szekely & Associates)

BRENNAN CJ: Yes, Mr Brabazon. I think we would be advantaged by Mr Brabazon's submissions to start with.

MR BRABAZON: If your Honour please. Your Honours, the Full Federal Court has decided that section 44 of the Safety Rehabilitation and Compensation Act 1969 , which is referred to in some of the judgments at least as the Comcare Act, so far as it has a valid operation, given the effect of section 51(xxxi) of the Constitution, as that provision was explained and applied in Georgiadis' Case, adds nothing to the limitation defences which may otherwise be available to the Commonwealth in common law actions for damages for personal injuries.

The Commonwealth contends and seeks to advance the contention in the proposed appeal that section 44 does add something to those defences, and that is the point of the Commonwealth's proposed appeal in these cases. The Commonwealth, in order to succeed, must invite this Court to hold that there is a class of causes of action in which section 44 validly operates to extinguish a cause of action, because of the expiration of a limitation period which could be extended under the limitation statute in which the limitation period is found.

BRENNAN CJ: If that power is exercised, is the extension that is affected a mere extension of the limitation period or is it a revival of the cause of action?

MR BRABAZON: A mere extension of the limitation period, your Honour. That is clearly the case, in our respectful submission, under the Victorian Act which, by the Commonwealth's concession, applies to Mr Mewett's cause of action, the Victorian statute being of a procedural nature. It has been recognised in many authorities, collected in the respective judgments in the Full Federal Court, that a cause of action continues to subsist, notwithstanding the expiration of a limitation period, and that is the case whether the limitation period by its nature is capable of extension or not.

There are various reasons for that: one is that the benefit of a limitation defence may be lost in a variety of ways as was recognised by this Court in Verwayen's Case, and in the case of a statute which, by its own terms and by its own scheme, provides for a postponement of the bar or extension, whether automatically upon the happening of certain events or by the exercise of a discretionary judgment by the court. Then what occurs is that the cause of action, that is to say title to the action, continues to subsist and the bar is effective to the remedy subject to the terms of the statute and may be lost. That is a distinction which this Court maintained in McKain v Miller and in many other cases.

Further, section 68A of the New South Wales statute makes it plain that the limitation defence must be pleaded before it is to have effect. The only authority which is to the contrary of that proposition is the decision of Mr Justice Nathan in the Supreme Court of Victoria in Gilvarry's Case. Your Honours, the decision of the Full Federal Court, which we respectfully submit was clearly correct, was that Gilvarry was wrongly decided. Gilvarry's Case is fundamentally based on the proposition that the expiration of a procedural limitation period leads to the consequence that the cause of action was not vested, but inchoate or incomplete - "putative or inchoate" were the words, if your Honours please. That appears from the judgment in Gilvarry at page 725 towards the bottom of the page:

Mr Gilvarry, on the other hand, contends that the Judiciary Act requires his case to proceed in accordance with Victorian law and in particular its Limitation Act. Accordingly he has a "potential" or "contingent" cause of action (these were the terms used by counsel) -

The report does not say whether counsel for the plaintiff or for the defendant in that case. If I can take your Honours further, at page 727 line 10, his Honour went on after referring to the concept of a "vested cause of action" as it was used in Georgiadis' Case, to say:

To my mind putative or inchoate causes of action include actions which are statute-barred.

His Honour said further at page 728 - and your Honours I am deliberately taking you to the points in the judgment which are against the respondents here and which were rejected by the Full Court of the Federal Court - at about line 25 on page 728, his Honour said:

Further, in my view, time limitations restricting the institution of civil proceedings, are so ancient and entrenched, that the concept must now be seen as part of the common law.

And that was of the essence of the decision of his Honour Mr Justice Nathan in Gilvarry's Case. As your Honours are aware, Gilvarry is presently on appeal to the Court of Appeal of the Supreme Court of Victoria and the appeal in that case has not been heard.

The question which your Honour addressed to me was whether the expiration of the limitation period worked an extinguishment of the cause of action. So far what I have said relates to limitation periods procedural in their nature, that is to say, a limitation period like that which appears in section 5 of the Victorian Limitation of Actions Act and also in section 14 of the New South Wales Limitation Act . The Commonwealth has argued below, and seeks to argue here, on the basis of section 63 of the New South Wales statute, which applies in the case of Rock and Brandon. It is common ground that the New South Wales Act applies by virtue of the Judiciary Act to their proceedings.

The operation of section 14 and section 63 is different, as was decided in Dixon's Case, your Honours; section 14 operating as a procedural bar and section 63 operating as a substantive extinguishment of a cause of action. This matter, section 63, was dealt with in the Full Federal Court by Justice Cooper, in the appeal book at pages 97 to 99, and with his judgment Justice Spender agreed, and by Justice Lindgren. I take your Honours firstly to what Justice Cooper said. His Honour came to the primary conclusion that:

for so long as it remained open to Rock and Brandon to bring an application -

for extension under the various provisions of the Act which provided for extension of the limitation period -

then such extinguishment as occurred was not absolute and the Commonwealth did not obtain an absolute right of immunity -

in terms of that statute as properly interpreted. Fundamentally, this was a matter of reading the whole statute together. The reason for that appears from a number of matters: first it appears from the use of the word "extension" in the statute to describe what happens when the limitation period is extended. The concept of extension in itself presupposes the continued existence of that which is the subject of the extension and not the revival of a new cause of action by force of the statute of similar nature to one which had previously been extinguished.

Secondly, section 61 provides that:

Where, after the expiration of a limitation period to which this Division applies, the limitation period is extended by order under this Division, the prior expiration of the limitation period has no effect for the purposes of that Act.

Section 60M is in agreement with that, and section 68A provides that even in the case of the substantive provisions of section 63, a limitation defence has to be pleaded in order to be effective.

The language of revival certainly was used in Dixon's Case, but in Dixon's Case there was no question at all before the court of what would happen in the event of an extension. Dixon's Case concerned a man who had suffered a surgical amputation in 1965, allegedly as a result of negligent medical treatment. In the same year, Justice Windeyer had decided in Parker's Case that an action would not lie against the Commonwealth in circumstances of a serviceman claiming in respect of his duties, something that happened in the discharge of his duties, and that was reversed in Groves' Case in 1982. In 1984, Mr Dixon commenced his proceedings. The question of application for extension, or the significance of it, did not arise.

The other authority referred to by the Commonwealth is a footnote in this Court in McKain v Miller. The context of that footnote makes it clear that the distinction was being drawn between statutes that have a procedural consequence and statutes that have a substantive consequence, and that is clearly accepted, but the effect of what was said by the majority in McKain v Miller, with respect, goes no further than that.

Mr Justice Lindgren at pages 140 to 142 dealt with the same arguments - - -

BRENNAN CJ: Mr Brabazon, are these not all questions, though, which really need the attention of this Court to ensure that there is a clear understanding of the operation of the limitation provisions on the one hand, and the interaction with section 44 on the other?

MR BRABAZON: With respect to procedural limitation periods, our submission is that they do not, because there is clear authority in this Court, and now in the Full Federal Court, in this matter. With respect to substantive limitation periods, your Honour, this is a provision of the New South Wales statute. The decision of the Full Federal Court in this case, in our respectful submission, is a clear one, and whether one regards the extinguishment worked by section 63 as something that has effect when the prospect of extinguishment or defence has gone, or one which is immediately effective and subject to revival, the effect is the same so far as section 44 is concerned.

Section 63 is not a provision which is found in all limitation statutes; it is rather a matter which has been introduced into the New South Wales Act. Those are my submissions with respect to that aspect of the matter, your Honours.

BRENNAN CJ: Yes, thank you.

TOOHEY J: But does that distinction necessarily answer the question that the Court would be faced with here if we granted special leave of appeal? In other words, would it turn simply upon the language of the limitation statute, whether it wanted to extinguish claims or to provide that no claim could be brought except within the specified period?

MR BRABAZON: In our submission, your Honour, the result would be the same in either event, but it may be that the Commonwealth, as the argument is presently set up, would seek to say the result would be the same and the cause of action would be extinguished. But it may be that the Commonwealth would wish to have an alternative argument and say, but if we lose on the first argument then a provision like section 63 would make a difference.

Your Honours, there is another matter raised, which is the choice of law question. The Commonwealth has conceded that the result reached by the Full Federal Court was correct, although disagreeing as to the manner in which that result should be arrived at and, in those circumstances, we respectfully submit that there is no question suitable for special leave on that issue, because so far as the Full Federal Court decided that the Victorian statute applies to Mr Mewett and not the New South Wales one, that is not the subject of challenge by the Commonwealth. Therefore, if leave is otherwise granted, in our submission it should be on the basis that the Victorian statute governs Mr Mewett's claim and the New South Wales statute the claim of Mr Rock and Mr Brandon. Unless there is anything further, your Honours, those are our submissions.

BRENNAN CJ: Yes, thank you, Mr Brabazon. Mr Solicitor, there are two points: what do you say as to the last submission that was made by Mr Brabazon and second, what is the Commonwealth's submission as to costs?

MR GRIFFITH: Your Honour, on the last point, the Commonwealth would desire to abandon ground 2.1 on page 156 of the appeal book. It is the case, your Honour, that we say that the Full Court got it right for the wrong reasons, because it did not refer to the choice of law limitation periods at 1993 of New South Wales. However, your Honour, when it comes to the discussion of the issue of the limitations issue in relationship of the operation of section 44 of the Commonwealth Act, the limitation issue is a live issue, in our submission, your Honour, and indeed Mr Brabazon's very argument was that the Full Court of the Federal Court did not follow Dixon, so that there is a conflict of authority on this issue of the operation of a section 63 extinguishment on a limitation period in New South Wales. Your Honour, we also see that this gives rise to the issues which were argued in Kruger, with respect to limitations; whether section 56 - - -

BRENNAN CJ: We only want to know what your view is about those two points that I mentioned.

MR GRIFFITH: I am sorry, your Honour; I was only going to say a sentence, your Honour. On costs, your Honour, the Commonwealth has agreed both at the Full Court level and at the High Court level to pay the costs of all parties.

BRENNAN CJ: Should the order be made subject to that undertaking or is it sufficient just to note it?

MR GRIFFITH: I think it is sufficient, your Honour.

BRENNAN CJ: You are content with that, Mr Brabazon?

MR BRABAZON: Yes, your Honour.

BRENNAN CJ: Do you have anything to say in reply, Mr Brabazon?

MR BRABAZON: No, your Honour.

MR GRIFFITH: Your Honour, I am told we have paid the Full Federal Court costs already, so we are really working - - -

BRENNAN CJ: Splendid. Then there will be a grant of special leave, omitting however the ground which presently appears as ground 2.1 in the draft notice of appeal.

AT 9.55 AM THE MATTER WAS CONCLUDED