Commonwealth of Australia v Brandon S35/1996 [1997] HCATrans 35 (11 February 1997)

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 TUESDAY, 11 FEBRUARY 1997, AT 10.18 AM

(Continued from 4/9/96)

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 friends, MR S.J. GAGELER and MR G.R. KENNETT, for the appellant. (instructed by the Australian Government Solicitor)

MR R.V. GYLES, QC: If the Court pleases, I appear for the respondents with my learned friends, MR D.A. WHEELAHAN, QC and MR M.L. BRABAZON. (instructed by Szekely & Associates)

BRENNAN CJ: Mr Solicitor.

MR GRIFFITH: If the Court pleases. If I may resume argument on the basis that the matter has already been opened to the Court, albeit but for a paragraph or two, on 4 September. Your Honours, I do intend in the argument today to follow closely the filed submissions which are full submissions. They were filed before the new directions but they are complete and I will seek to pick up those parts without substantially reiterating them before the Court. On page 2 of those submissions there is a summary of the chronology. A separate chronology has been filed as required under the directions but that suffices for the application here.

Your Honours, on page 2 of those submissions there is a summary of the chronology. A separate chronology has been filed as required under the directions, but that suffices for the application here. Your Honours, in paragraph 1.7 we summarise the basic submissions of the Commonwealth on the reconstituted hearing and I should indicate that we seek to make out each of the propositions which appear to the foot of the page on paragraph 3. They are made in parts 2, 3 and 4, which are flagged in our written submissions.

Your Honours, just to track through quickly, it is our submission that the Commonwealth is not liable in tort, except by virtue of legislation enacted under section 78, and we should say our position is the same for contract. Our submission is that the Crown's common law immunity extends to prevent a cause of action arising, as well as barring the commencement of proceedings. In that view, our submission is the Commonwealth, so far as a right of action in tort is concerned, bears a liability which depends wholly on Commonwealth law and, as such, we would say by the conventional argument it is inherently susceptible to modification.

Now, your Honours, we did flag, and we have now made it clear by our further submissions, that this argument really is predicated upon a submission that one point of the argument in Georgiadis is wrong. Your Honour, however it is a decisive point, so a corollary of our approaching of the matter to deal with the issue which was raised in September is that it is our submission that section 44 does validly apply to these present proceedings.

DAWSON J: Are you going to say that the other point in Georgiadis was wrong; that the mere extinguishing of a cause of action does not result in the acquisition of property?

MR GRIFFITH: What we say is, your Honour, if we are right on this point then, in effect, what all judges say in Georgiadis support the result that we argue for.

DAWSON J: Yes, I know, but not all judges said the same thing in Georgiadis.

MR GRIFFITH: No, they did not all say the same thing, your Honour.

DAWSON J: Do you support the proposition that, in any event, there would be no acquisition of property?

MR GRIFFITH: Your Honour, we say, yes, there would be no acquisition of property. So that, your Honour, once we convince the Court as we would hope, on the proposition in our first dot point, we would submit that everything in Georgiadis supports the result for which we argue so far as the issue of the operation of section 44 in the acquisitions issue. Of course, it goes without saying that we would accept the judgments of your Honour Justice Dawson and Justice Toohey and Justice McHugh in Georgiadis and we identify, your Honour, the point of difference which I, of course, will spell out in submissions today.

On the reopening point, I should indicate, your Honours, that is dealt within part 4 of our submissions. We intend to be brief because we have spelt out in our oral submissions to the point as to the line of arguments which gets us to the point of demonstrating, we say, error in Georgiadis on this point, and we were proposing, your Honours, not to advance, certainly in our initial part of the argument, by making a direct application to reopen Georgiadis, and if it is convenient to the Court, we will deal with it when we get there logically. Of course, if we do not have the Court with us on our argument, then there is not much to say about reopening Georgiadis, and we would hope that at that point of the argument, the reasons why Georgiadis should be reopened if error is demonstrated as we seek to will prevail. Is that a convenient course, your Honour?

BRENNAN CJ: Yes, Mr Solicitor.

MR GRIFFITH: Your Honours, I should indicate that I intend to take the argument to that point and then my learned friend, Mr Gageler, will deal with the matters so far as the application to proper principle in the circumstances of Mewett, Rock and Brandon. That was, in effect, the original, we thought, short matter which was to be pleaded before the Court when the matter came on on 4 September, and our submissions to that are summarised in part 5 of our submissions. Part 6 we deal formally with the question of appropriate orders.

I do not think it is necessary for me to take your Honours through the dot points on page 4 and 5 that Mr Gageler will do in his limitation, but to summarise them, they follow through the argument on the particular cases under appeal, applying what we would have really defined as proper principle to make the submission that section 44 is effective and, of course, that there is no inhibition on the operation of section 44 according to its terms.

So, Your Honours, to turn to what has now been identified after the exchange with the Court in September as the threshold. Of course, point of general importance beyond the issues of Mr Mewett, Rock or Brandon is the issue of what is the source of Commonwealth liability in tort. Your Honours, as to that, as our submissions make very clear, our submission is that the liability is one which is statutory. It is enabled by section 75(iii) of the Constitution but it is one which by virtue of operation of section 78 is exercise as a result of the we say the operation of the provisions of the Judiciary Act 1902 and, in particular, we rely on section 56, section 64, section 79. For the purposes of this argument, section 80 does not seem to have any particular application.

GUMMOW J: In this debate I am, of course, a bit mystified. There is no mention of the Crown in Chapter III. It talks about the Commonwealth and the States. Why does one automatically translate English notions of immunity of the Crown to this new entity, the Commonwealth, which litigates with other Crowns, if one looks at it that way, through Chapter III?

MR GRIFFITH: Your Honour, it is not automatically translated, it is in the context that the colonies operated on the same basis, and that is established. Your Honour, one could say that Chapter II, section 61 gets you to a similar point. Your Honour, it is not the case the Commonwealth was created in a vacuum peculiar for Australia - - -

GUMMOW J: What is the Commonwealth that is being spoken of? Sometimes it is called the Crown and sometimes it is called the Commonwealth. What is it in terms of the Constitution, which is immune?

MR GRIFFITH: Your Honour, what is immune is the governmental entity, which your Honour has expressed, so far as it applied for the States and Commonwealth can be expressed generically as the Crown. But when - - -

GUMMOW J: Chapter III is part of the governmental entity too.

MR GRIFFITH: Yes, your Honour, but nonetheless one must get to a position to say, "Well, what are the principles to be deduced from reading the Constitution as a whole as to the position of the right of a subject to sue the governmental entity -" we call it the Commonwealth, your Honour - "which is created by the Constitution?" What we say, your Honour, is that one does not start with a blank sheet of paper as to that but looks at the position as it existed within the colonies of Australia of 1900 and see what the Constitution does and applies as to that. Your Honour, one pick - - -

GAUDRON J: There were rights to proceed, were there not, at 1900 against the colonies?

MR GRIFFITH: There were statutory ones, your Honour, yes.

GAUDRON J: Yes.

MR GRIFFITH: So, your Honour, we will refer to the Convention Debates. We have given the Court an extract of some of them which indicates that there was an awareness that this was an issue to be addressed.

GAUDRON J: Is not the difficulty with your argument section 75(iii) in that that legally contemplates that the Commonwealth may be sued.

MR GRIFFITH: Your Honour, one could say the same of section 78. Section 78 is not needed if section 75 - - -

GAUDRON J: Well, it may be needed for procedural aspects, its right to proceed.

MR GRIFFITH: With respect, your Honour, to talk about rights to proceed is the very subject matter which is covered by the ordinary legislation which gave a statutory form of the right to proceed under petition of right or in some other way. We would say that a section as to rights to proceed is not a section dealing with matters of procedure.

GAUDRON J: Why would you not take the view that there is a right to proceed against the Commonwealth in section 75, but it may be modified in some respects pursuant to section 78? Clearly, it could not be modified so that nobody could ever proceed against the Commonwealth. The Constitution would collapse if there were no right to proceed against the Commonwealth. If the Commonwealth never legislated to give a right of action against the Commonwealth there would be no way of preserving the federal compact. There would be no way of testing constitutional validity and the Constitution would itself collapse.

MR GRIFFITH: There is why the Judiciary Act, with respect, your Honour, did it pursuant to section 78 as a first action for the Commonwealth to establish the legal mechanisms for the operation of Chapter III. Just as much, your Honour, the High Court was required to be established by the High Court Act. Your Honours, with respect, that approach would be, we would submit, to establish the wrong default setting. In our submission, the default setting is that there is immunity of the governments, we could call them Crowns, of both the United Kingdom Crown and the Crown in the right of colonies - - -

GUMMOW J: Suppose the activity in question which is tortious is tortious in the context which arises in the Constitution, for example, there is a Commonwealth law which has authorised something which is beyond the power and, therefore, there has been a tort. Now, I think there are judgments of Justice McHugh which suggest that even without Parliament moving under 76(i), there is flowing out of 75(iii) the liability of the Commonwealth in a matter arising under the Constitution in that sense. Now, that may involve tort, too. I do not think it is an answer to say, "Well, the English Crown would have been immune because it was a tort." This problem would not arise in England because it would not come out of an invalid law and that is what Justice Gaudron is putting to you.

MR GRIFFITH: Your Honour, a concept of a constitutional tort would be a special situation that is predicated upon your Honour's postulation.

GUMMOW J: No, an Act which at common law would be tortious. Defence; statute; reply; statute invalid. Why statute invalid? Excess of power.

MR GRIFFITH: Your Honour, Chapter III contemplated the High Court would be established and vested with jurisdiction to determine matters within its matters including issues of constitutional validity. That much is accepted but it is our submission that one cannot elevate what section 75(iii) provides within the conventional - small "c" - constitutional analysis that there is no cause of action in tort. There is not even a petition of right in respect of tort, to provide in effect that there is a constitutional vesting of jurisdiction in tort. Your Honour, the difference between the capacity of Parliament to lift the immunity which of course, as Justice Gaudron postulates, must be lifted because, just as in the colonies, it had been lifted in respect of liability in contract and in tort in respect of the various early petition of right legislations in the colonies.

It was expected and one sees that quite obviously from section 78 itself as well as the parts of the constitutional debates which enlighten us. As usual for the constitutional debates, they enlighten us a bit either way. Justice Isaacs had one approach, Mr Barton had another. But it is our submission that these provisions are to be read in the light of what was the underlying constitutional - small "c" - position in 1900 as to the liability of governments in respect of the torts. The position, we submit, clearly, both in the United Kingdom and also in the colonies of Australia, was that such liability was one which arose as being self-imposed by the operation of legislation in this case of the colonies before 1900.

BRENNAN CJ: So, there would have been no liability of the Commonwealth, in contract or in tort, between 1901 and 1903?

MR GRIFFITH: Your Honour, until there was an exercise of power under section 78, the position would be the same exactly as it was in the colonies before - - -

GUMMOW J: Well, there was the Claims Against the Commonwealth Act, was there not?

MR GRIFFITH: Yes, your Honour, thank you for reminding me of that. So, that covered that period.

GUMMOW J: But that provided for a nominal defendant system.

MR GRIFFITH: Which is the conventional approach - the petition of right approach, your Honour. That followed the form of the colonial laws which adopted that system, where one had a defendant nominated. One did not sue the Crown in the right of the colonies directly - either had a petition of right or a nominated defendant procedure in respect of torts, in particular, because the petition of right was not available in respect of torts, it was always limited to contracts.

GUMMOW J: That Act was only passed in October 1902. The point remains that there is this gap.

MR GRIFFITH: Well, there may well have been, your Honours, but there would have equally been a gap in the colonies until such time as they passed laws providing for it. I suppose a petition of right could have proceeded under prerogative power, but that would be limited with respect to contract and not tort. And, of course, under petition of right procedures, there is a complete discretion in the Attorney as to whether or not to accept the petition, or accept it in part, or accept it on conditions, or reject it.

BRENNAN CJ: Mr Solicitor, the immunity of the Crown is based on the notion that the Crown can do no wrong, is that right?

MR GRIFFITH: In respect of tort, your Honour?

BRENNAN CJ: Yes.

MR GRIFFITH: Yes.

BRENNAN CJ: And that is a fiction.

MR GRIFFITH: Well, your Honour, perhaps not a fiction; it is an historical fact.

BRENNAN CJ: Why is it not a fiction? And why should not the fiction be revisited?

MR GRIFFITH: Your Honour, we would submit that there is no occasion to revisit a fiction which is a legal position embraced by the Constitution on which, in our submission, section 75 and section 78 Bill to provide the situation that Justice Gaudron suggests to me is one which one would regard as unthinkable not to have; namely, that there is a capacity for subjects to pursue claims against the Commonwealth in respect of contract and tort. That is exactly what has been in place under the Judiciary Act 1623 since 1903 and, in our submission, your Honour, it would be to rework the entire common law for this Court to say, well, this is something which cannot now be supported as a common law principle.

There is no need for the Court to revisit this established principle, your Honours, and we would say it would be to restate the substructure, the foundation on which these parts, as a Constitution, providing for the mechanism within the conventional framework to ensure that there is a legal position, that subjects are able to take proceedings in contract and in tort.

BRENNAN CJ: That is one way of putting it. The other way is to say that the substantive common law was the common law which creates tortious liability and that there was, at a time when the Crown was more closely identified with the sovereign, a notion that the Crown could do no wrong, and that was an adjectival immunity, and when one looks at the terms of the Constitution and, perhaps, particularly 51(xxxi), one can see that the time had passed when that immunity should be continued as a fiction for the purposes of the law.

MR GRIFFITH: Does your Honour mean the time has passed now or the time had passed in 1900?

BRENNAN CJ: The time had passed in 1921.

MR GRIFFITH: Your Honour, we would submit that there is no support as at 1900 for such a proposition to be vindicated.

BRENNAN CJ: In terms of contemporary writing, you mean?

MR GRIFFITH: Your Honour, in terms of contemporary authority, your Honour. The whole legal position, your Honour, we would submit, is most firmly to the contrary, and were the Court to take that position now in effect, your Honour, it would be reconstituting the legal substructure to the establishment of mechanisms for legal responsibility of the Commonwealth.

DAWSON J: You have got to look at the Crown as being the personification of the Commonwealth and, of course, it is bound up by the questions of finance. You could not call Parliament the Commonwealth and yet the power to appropriate money is with Parliament. It is the Crown you are talking about which, under section 61, has the executive power vested in it and, of course, any payment of money would be in the exercise of the execute power. It is in that way that it is bound.

MR GRIFFITH: Yes, we would accept that, your Honour. Your Honours, may I make some short references to the Convention debates? There are materials which we have filed with the Court, I will not take the Court to them, and the respondents' submissions also make reference to the debates, but our submission is that, on this issue, it might be hard to identify a majority view there is something in it for everything, as quite often is the case with the debates, but the page is cited in our written submissions' footnote 21 on page 7, and also those referred to by the respondents on pages 7 and 8 footnotes 23 to 25 of their submissions, we submit may be summarised by saying that Mr Isaacs, who argued that judicial powers conferred would bring with it the abrogation of Crown immunity, particularly on pages 1673 to 1674, was there arguing against the clause which was ultimately adopted.

So we say it would seem that his argument did not find favour with the majority of the delegates. Mr Barton, especially at 1677 to 1681, regarded the inclusion of the clause which became section 78 as a matter of necessity rather than safety and, of course, he was there speaking on behalf of the drafting committee and in support of the clause which was adopted. So perhaps this helps us to answer the question from Justice Gaudron. It is clear from the debate that although there was a widespread expectation that the Commonwealth will be made liable to the same extent as the subject, we would submit the purpose of the clause was to allow Parliament to regulate the matter, that is how it was seen.

GAUDRON J: To regulate, but what would happen, for example - is there any reason why the Parliament cannot repeal the Judiciary Act tomorrow?

MR GRIFFITH: Your Honour, one gets into the unthinkable when one postulates that question.

GAUDRON J: No, but that is exactly what your submission invites: entry into the unthinkable. Your submission is that without legislation there is no right to proceed against the Commonwealth. It is all very well for you to say "in contract or in tort" as a gloss but the words "in contract and in tort" do not appear in section 78. The question therefore is - there is no reason to write them into that section; you have to look somewhere else. The question is: can you repeal the Judiciary Act tomorrow? Then what happens?

MR GRIFFITH: Your Honour, you could certainly substantially amend it.

GAUDRON J: Yes.

MR GRIFFITH: Your Honour might as well ask me could you - - -

GAUDRON J: If you cannot repeal it, is that because it really just gives effect to something that is necessarily involved in Chapter III anyway?

MR GRIFFITH: Your Honour, one might ask the same question about the High Court Act. The Commonwealth must have a High Court, but it would be perhaps a matter for debate as to whether, just as a State could substitute a new Supreme Court for the present one, the Commonwealth would have the capacity to reconstitute a new High Court. So that there is a High Court but not this one, the second High Court. No doubt there would be interesting constitutional issues which would arise before this High Court if such a provision were enacted but, your Honour, we would submit it is not appropriate to postulate the unthinkable, the extreme thing that governments do not do.

GAUDRON J: But that is what you are postulating: no right of action against the Commonwealth.

MR GRIFFITH: Your Honour, we say that the Commonwealth - - -

GAUDRON J: Without Commonwealth legislation.

MR GRIFFITH: We say, your Honour, with respect, a contract in tort - - -

GAUDRON J: But that does not appear in section 78.

MR GRIFFITH: It appears in this case, your Honour. That is the matter at issue. Our submission is the Commonwealth could remove its liability for being sued in contract and tort.

GAUDRON J: Your proposition is that there was no liability for contract or tort, notwithstanding that a tort might arise in a constitutional context?

MR GRIFFITH: Yes, your Honour.

GAUDRON J: The only liability is statutory which can be taken away, notwithstanding that that might preclude the litigation of constitutional issues?

MR GRIFFITH: Your Honour, if there is a view in the Court that there is unconstitutional action by the Commonwealth, that view can be vindicated by a declaration of this Court; there can be no doubt about that. If it is also put that damages might be recovered for that unconstitutional action, in the ordinary course the mechanism for recovery of damages is to take action for, for example - - -

GUMMOW J: But what would be the foundation for the declaration, Mr Solicitor; 75(iii), would it?

MR GRIFFITH: 75(iii), yes, your Honour.

GAUDRON J: So in some areas you can proceed against the Commonwealth without legislation under section 78?

GUMMOW J: I think that is what you have to say.

MR GRIFFITH: Your Honours, in those situations there may well be jurisdiction under section 76 as well in respect of the - - -

GUMMOW J: Yes, but that requires a law.

MR GRIFFITH: That requires a law, yes, your Honour, but - - -

GUMMOW J: We are looking at things in the instant creation of Federation.

MR GRIFFITH: At the instance of Federation, the only Commonwealth employee was Sir Robert Garran. He wrote out a proclamation to provide, amongst other things, that Western Australia join the Federation and then he had nothing to do with it because he did not know how he should handle it. I understand he got on his bicycle and took it to the Victorian Government Printer. The Commonwealth had to start in a small way, your Honours. What this Constitution provides is that, so far as the legal mechanisms are concerned, there should be a High Court established as soon as may be - that could not have been something neglected - that laws should be passed pursuant to section 76 to provide for the conferring of original jurisdiction beyond that already conferred under section 75 and, by reference from section 78, that a Judiciary Act was required which Sir Samuel Griffith laboured over his summer holidays to produce.

Your Honour, that was part of the constitutional compact, the settling down of the Commonwealth as an operating entity. Of course, interim arrangements had to be made with respect to issues of exercise of judicial power until the High Court was established, issues of liability, and it may well be that there was a gap of a few weeks in some matters, a few months in others. That was a matter of settling down the establishment of a new entity, the Government of Australia, the Commonwealth of Australia. Now, we would submit that when one looks at the historical context of liability of a government entity into its subjects, and we submit that for the purposes of this - - -

DAWSON J: You see, you are.....up all sorts of, if I may say so with respect, concepts there, the government and subjects. When you say that, you are speaking of the Crown.

MR GRIFFITH: Yes, your Honour.

DAWSON J: It has been recognised now, although there was a period of doubt, that the Commonwealth is, in a sense, a juristic person and you can sue it, whatever it really is, in that name. When you are in the area of contract and tort you really are talking not about the Commonwealth in that sense, in the constitutional sense, you are talking about executive acts because only the executive can commit torts or enter into contracts and that is the Crown under section 61, and that is why the doctrine relating to the Crown comes into play.

MR GRIFFITH: I am grateful to your Honour.

DAWSON J: You cannot talk about the Commonwealth and its subjects, really. You really mean the Crown.

MR GRIFFITH: Yes, indeed, that is true. Indeed, we wish merely to submit argument with respect to the issue of the Crown in that sense, liability in contract and tort. That is the issue which arises here. In our submission, it is not one to be determined by the fundamental issue of the sort which might arise when one considers what is the issue if prior to the enactment of the High Court Act, the Judiciary Act, it is sought to litigate an issue of constitutional validity in this Court? There may well be a jurisdiction of necessity in those circumstances, but, your Honours, it is not necessary to postulate that because as soon as may be, as soon as Sir Samuels' text was available, the Judiciary Act was enacted which has, in an extraordinarily successful manner, stood the test of time for the last 93-94 years. The essence of our submissions is that in that 94 years, amongst other things that the Judiciary Act has done, it has ensured that where a subject does sue the Crown in contract or in tort, limitation periods do apply and are intended to apply.

There might, as we deal in part 5 of our submissions, be some difficulty in the course of the route by which a particular limitation act is held to apply rather than another, but it is our fundamental submission to the Court that whatever difficulties are in that route, one thing is clear, that Parliament intended that so far as liability of the Crown in the right of the Commonwealth was concerned, there should be limitations periods applying in any suit against them by its subjects, just as there are, we would put, in any other civilised state.

Your Honours, we make passing reference to Taylor as to that aspect, Brisbane South Regional Health Authority v Taylor, [1996] HCA 25; 139 ALR 1, particularly conveniently to Justice McHugh at page 8. The underlying proposition we wish to make is that this issue is one to be approached, in our submission, on the basis that it must be regarded, we submit, as unthinkable, when one looks at it in 1997, that it was ever the intention of the Parliament of the Commonwealth in making provisions for actions to be pursued in contract and tort against the Commonwealth that there should be no limitation period applying.

On that general submission we add a further factor which makes it, in our submission, untenable, namely if Georgiadis is correct, it will then be more unthinkable because the Commonwealth would lack a capacity if that matter were held by the Court, if it were held to be no limitation period, to impose any effective limitation period on any cause of action that is already - - -

GAUDRON J: Future ones. There is no difficulty about causes of action accruing in the future.

MR GRIFFITH: Your Honour got me on a comma - that has not already arisen. So, yes. Your Honour's remark really confirms a point we wish to make, that there is 97 years without a limitation period and an incapacity of the Commonwealth retrospectively to remedy what we do say must be regarded, if it is held by the retrospectively to remedy what we do say must be regarded if it is held by the Court as a legal oversight, unlike the situation in Mutual Pools where this Court vindicated the capacity of the Commonwealth to apply retrospectively a tax which could have validly been applied but because of non-compliance with section 55 was not applied.

Your Honours, we do make that submission as a threshold submission because, in our submission, it must colour the approach of the Court to any issue which might be one of hard construction. Can one read into section 79 an intention to apply to Federal Courts at all or does it merely apply to State courts exercising federal jurisdiction. Your Honours, I will say something more about that. Of course - - -

DAWSON J: Just before you go on, Mr Solicitor, really one has got to be clear about what the exercise is. So far as making the Crown - and it must be the Crown, because it is only relevant in the exercise of executive functions - liable in tort is really confining an immunity, which is part of the royal prerogative, which is confinable by legislation. That is all it is.

MR GRIFFITH: That is our submissions, your Honour. We made it clear in our written submissions.

DAWSON J: I do not see why we have got all this trouble about it. That being so, you look at see what the extent of the confinement is.

MR GRIFFITH: I entirely agree, your Honour. Our submissions are based on that. But I suppose the trouble is the debate that we are now engaged in is to - - -

DAWSON J: I thought the debate was there must be something different in the Commonwealth from the Crown in this context and, therefore, there existed independently a right of action against the Commonwealth. But that does not make sense when you look at the way in which Constitution is organised.

MR GRIFFITH: With respect, your Honour, our submission is that the Commonwealth Crown is like all the other Crowns which preceded it in the United Kingdom or in the colonies and one adopts the same approach and gets to a position that your Honour postulates.

DAWSON J: And we are talking about a prerogative here.

MR GRIFFITH: Yes, your Honour. We say it was a prerogative that applied to the Crown in the right of the Commonwealth as much as the Crown in the right of the United Kingdom, England, of the colonies, the Australian colonies. We say it is the same approach and its approach recognised by the common law as it was expressed, and certainly as it was applied, for example, by the Privy Council in Farnell v Bowman. Your Honours, it was quite clear from what the Judicial Committee said in Farnell v Bowman, (1887) 12 App Cas 643, that their Lordships just assumed that the position was the same as for the United Kingdom, subject of course to the - one might say, your Honour, looking at it now, unfortunate language, on page 649, which is relied upon by respondents' submissions as indicating that the members of the committee took the view that there was special reasons for a different law in Australia. In our submission, your Honours, all that their Lordships did is to comment that it was particularly appropriate that there should be colonial legislation of New South Wales under Act 39, Victoria 38 because it was appropriate that there should be liability for contract in tort in the colony. One could say it was just as appropriate that there should be such liability in respect of any Crown just as of course it was a constitutional assumption that the power under section 78 would be exercised as soon as may be. But, your Honour, to some extent the use of language on 649 saying it was particularly appropriate because in the colonies, "it is necessary to employ many inferior officers and workmen" is - - -

DAWSON J: What is meant by that is that once the Crown starts to engage in the activities of ordinary citizens to enter into the fields of commerce and so on then the old prerogative immunity is inappropriate. That is all that is meant. That is pretty acceptable, is it not?

MR GRIFFITH: Yes, of course, but one could comment, your Honour, that - - -

DAWSON J: And it was happening more, as they thought, in the colonies than in the old country.

MR GRIFFITH: When one reads this now, your Honour, one can perhaps say that we would still disagree with Sir Garfield Barwick's view that it was appropriate to have an external court of appeal from Australia, even in this century, because this expression "in fear.....and workmen" seem to be echoed in Sir Winston Churchill's remarks about Australians coming from poor stock, but whatever is the case, your Honour, the authority of this decision is one which confirms the prerogative rule which may be modified from the Statute as applying as a course to the Australian colonies, not one which in any way derogates from it.

Your Honours, may I complete my last proposition from the Convention Debates. I was referring to what one can discern as the expectation and we say, of course, the expectation is that the Commonwealth would be made liable to the same extent as the subject, and the purpose, we say, of section 78 was regarded as allowing Parliament to regulate the matter as, of course, Sir Samuel Griffith picked it up as his drafting instructions for the purposes of the Judiciary Act.

So, of course, in theory, Parliament could do nothing and preserve the immunity, and one can see that this, as a mere possibility, is discussed and illustrated in the exchange between Mr Barton and Mr Higgins at page 1678 of those materials. One sees the view that section 78 provides the capacity to do this, confirmed by Sir Robert Garran's commentary at page 806 which we refer to in footnote 21 on page 8 of our materials. Sir Robert, writing of course before the Judiciary Act said:

That the Federal Parliament should have the power to make laws conferring rights to proceed against the Commonwealth is a proposition which will hardly be disputed. Probably it would have had such power, even without express words; inasmuch as the prerogative right of the Crown in the Commonwealth exempting it from suit is a right which can be waived by the consent of the Crown, and legislation by the Federal Parliament, of which the Crown is a part, would be an appropriate mode of giving such consent. Thus in the United States it has never been disputed that Congress has power to consent by law to the federal government being sued. But it is unnecessary to consider whether this would have been among the implied legislative powers of the Parliament; because this section gives the power in express terms.

So, clearly, Sir Robert was anticipating when he wrote a provision, we say, in the terms of equivalence of sections 56, 64, 79 as they emerged two years later in the Judiciary Act. When one considers, is there a special constitutional provision here, is it the Constitution as a source of the Crown's liability, we would submit that complications would follow from that approach. If there is a constitutional establishment of that right, it should follow that such rights could not be derogated from by legislation, whatever was read into the extent of the bare words of section 75(iii) to be regarded as establishing that right.

So that would mean that the rules of law by which liability is to be ascertained and damages assessed would have to be found in the Constitution itself. If the Constitution is the source of liability and of the rights to proceed, then it must be logically the Constitution which defines the circumstances in which liability arises and in which proceedings may be brought.

TOOHEY J: But is that right? I mean, it is right in one sense, but by reference to section 78, the power to so regulate is part of the Constitution.

MR GRIFFITH: It is rather the argument we had yesterday, your Honour, about the power to snip out part of the jurisdiction with respect to costs in respect of family law matters, your Honour, that there might be various obvious issues, your Honour, the extent to which one could cut down. One could perhaps extend, but whatever was identified as that which was provided as a constitutional right, one would suppose it could be argued that could not be derogated from. It might be improved. But, your Honour, it is a difficult question to answer, because I postulate this as a reason to say that cannot be right, and then your Honour says, "Well, you cannot be right to say that cannot be right," and I can say yes. The reason why I am right and your Honour right is because it is not constitutional, we say it is permitted by the Constitution through 78. So, at the end, can I say yes, we include those two double negatives, as it were, your Honour.

But we are making the point, your Honour, that there are consequences of adopting a constitutional approach. We make that in our written submissions and, as this has been identified, I enlarge shortly upon it. Your Honour, we say it would be pointless for the Constitution to grant a right to proceed against the Crown, or remove an immunity which prevented a cause of action arising against the Crown, if the Commonwealth could, by legislation, define the applicable law so as to remove or reduce its liability. There seems to be a circularity there.

Your Honours, if one adopted this approach, if it is constitutional, then it would have a core element which was fixed and not capable of being affected, or detrimentally affected by operation of Commonwealth law, or even incrementally affected. The whole scheme of Parts IX and XI of the Judiciary Act would have doubts cast upon them. Certainly, your Honour, this conclusion would seem inconsistent with the concession made by my learned friends in their submissions, paragraph 2.4.7.

GUMMOW J: One thing that favours you in a way is section 83, because there was this liability in tort. There would have to be an appropriation to provide the moneys to satisfy the judgment.

MR GRIFFITH: Yes, your Honour, there would have to be a constitutional appropriation as well.

GUMMOW J: I am not sure the extent to which writs of extent might have permitted the levy in execution, but they are abolished, by the look of it, by section 65 of the Judiciary Act.

MR GRIFFITH: It does not seem to fit, your Honour. When one looks at the petition of right legislation as in the colonies, and also in the United Kingdom, one finds a standing appropriation clause, although it has a qualification usually of moneys available for the purpose. But, your Honour, it is another reason to say that this cannot, we submit, be the constitutional scheme. The constitutional scheme, in its structure, was predicated that, as a matter of obvious fairness, appropriateness, equity to the subject, however one put it, this would be a power enacted at the threshold of the establishment of the operation of the exercise of judicial power of the Commonwealth, as it was done.

BRENNAN CJ: Mr Solicitor, at common law, if there were a petition of right without statutory support, and the petition were allowed, judgment would pass against the Crown, is that right?

MR GRIFFITH: Your Honour, it does get a little bit obscure as to exactly how the judgment did work, as to whether it was entered as on the basis of the Crown paying money. It is not exactly clear, your Honour. But in many times a petition of right would involve exercise of jurisdiction other than requiring the payment of money. There would be a declaration, or something of the sort. But, your Honour, when one looks at the forms with respect to the exercise of the power, it might be useful if we did file with the Court some of the forms which, at least in the United Kingdom, are used with respect to petitions of right. One sees, your Honour, that there is a special treatment; that it does not proceed as a judgment entered against the Crown.

BRENNAN CJ: What is the cause of action on which a petitioner could succeed? What is the source of that cause of action?

MR GRIFFITH: Well, your Honour, in essence, it must be thought to be essentially a declaratory one under petitions of right because there is no legal entitlement, but there is a waiver of the right to proceed - the endorsement "let right be done". What one has is the expectation that any judgment arising from that because of the waiver will be satisfied, but in some cases there are statutory provisions I mentioned providing - if there is an order indicating that money should be paid, then there is a statutory appropriation to provide that it lawfully may be paid.

BRENNAN CJ: But if right was to be done, it must be on the footing that absent the insistence upon the immunity the Crown was bound by the law that gave rise to the cause of action.

MR GRIFFITH: No, your Honour, we would submit exactly the opposite. It proceeded on the basis that the Crown is not liable but it was prepared to submit as if it were by the endorsement by the Attorney on such terms as the Attorney endorsed. It might be all the claim, part of the claim, part of the claim with conditions. There is absolute unreviewable discretion, your Honour.

BRENNAN CJ: One can understand that but one does not derive from that immediately an analysis of the underlying cause of action. That is explicable by reference to an immunity which can be waived in part or in whole, as it can be explained by reference to the nature of the cause of action which, so to speak, is created by the waiver.

MR GRIFFITH: Yes. I would understand your Honour is referring to in essence the point your Honour made in Georgiadis as to the underlying liability.

BRENNAN CJ: Yes.

MR GRIFFITH: Our submission is that there is no underlying liability.

DAWSON J: And there is no cause of action.

MR GRIFFITH: No cause of action. There is no liability and, even when - one cannot have a petition in right, your Honour, for a tort, so that one cannot even discuss this concept. But in respect of contract, our submission is in essence there is no liability whatsoever. When the petition is endorsed, it really does create another fiction that the issues can be proceeded and dealt with in a court of record as if there were such liability. The result that emerges from that may and still on such terms as provided either in any statute providing for the statutory mechanism or, in the absence of a statutory provision, as may be provided by exercise of the prerogative which is wholly in the hands of the executive as to the extent to which whatever emerged from that submission in the course of the proceedings in the court could then be carried through to execution, be it by way of complying with a declaration transferring property, which was of course often the subject matter of petitions of right and in fact perhaps more often.....claims in contract or payment of money if that was provided for.

But our submission is that it was entirely an issue of voluntary submission of the prerogative either by statutory terms or by individual practice and in an individual manner and that, unless provided for by statute, there was no legal entitlement at any part of that process.

TOOHEY J: Well, on that footing, it would be inappropriate to speak of cause of action except in the very narrow sense of what the Crown permits.

MR GRIFFITH: Yes. Your Honour, it was a mechanism to let right be done as a matter of fairness but not one which involved accepting the panoply of cause of action, legal liability, to be vindicated by a court judgment which could be executed as a judgment of the Court in an issue as between subject and subject.

GUMMOW J: The difficulty is how to square all that learning with a situation of cases likes James v The Commonwealth, is it not, namely, where Marbury v Madison enters into it, because there is a question of tortious activity which is not justified by a statute because the statute is invalid and you say one cannot test the validity of the statute without this extension of grace by the legislature.

MR GRIFFITH: Your Honour, I prefer to say that the issue of whether one can test the validity of the statute should not be regarded as the issue - - -

GUMMOW J: This man has lost his goods, they have been taken away. He has lost his dried fruit.

MR GRIFFITH: Of course, James illustrates the fact that if there is unconstitutional law which you take it was unconstitutional then you could ignore it, of course, at your peril, so that James could have stood and defended his property, your Honour. He could say, "I am not going to hand it over."

DAWSON J: All that he was saying is that this is unconstitutional.

MR GRIFFITH: Yes.

DAWSON J: In that respect the Commonwealth probably means something different because he is really saying an Act of Parliament is unconstitutional.

MR GRIFFITH: Yes, your Honour.

DAWSON J: You have got to look at what the Commonwealth means in a particular context. I mean, if you look at section 78, "rights to proceed against the Commonwealth", it means one thing there, but just take the next section, but one, "the trial on indictment of any offence against any law of the Commonwealth", well, that, really, clearly means Parliament in that section.

MR GRIFFITH: Yes, your Honour.

DAWSON J: I would have thought that when one is talking about unconstitutionality one is really looking primarily at Parliament or the Commonwealth as a whole including Parliament.

MR GRIFFITH: We would accept that, your Honour, and we say we - certainly to the point of our submissions, we are not looking at a matter which, we say, arises for consideration on the issue of liability and tort when the Crown acts under section 61.

DAWSON J: When one is talking about the Commonwealth in the context of tort or contract one is necessarily talking about the executive and that is the Crown.

MR GRIFFITH: Yes, your Honour. These exchanges are useful, your Honour, because they do confirm we - it is our submission that the issues here are confined to that situation.

DAWSON J: But then one is talking about unconstitutionality, one is not really talking about the Crown at all.

MR GRIFFITH: Yes, your Honour. We say it is not inherent in our submissions that we are making any submission to exclude the jurisdiction of this Court to vindicate a claim that some legislation or action under legislation of the Commonwealth is invalid, unconstitutional, or however that is expressed.

GUMMOW J: But section 61 talks about execution and maintenance of the laws of the Commonwealth, that means valid laws of the Commonwealth?

MR GRIFFITH: Of course, your Honour, of course.

DAWSON J: And the maintenance of the Constitution.

MR GRIFFITH: Yes. Your Honour, we do not cavil for a moment with the capacity of any Australian subject to ignore the provisions of an Act which is invalid. It is just a problem of whether or not your confidence of that situation justifies the risks you take if you ignore it.

GUMMOW J: Yes, but it is ignored and then it resolves itself into a question of assault on a person or conversion of goods or whatever. That is how these great issues come before the courts quite often.

MR GRIFFITH: Exactly, your Honour, exactly, so that - - -

GUMMOW J: You say that that is not available because of tort?

MR GRIFFITH: Well, if Mr James is standing in front of his packing cases he can resist Commonwealth officers who say, acting according to law, they can take them, and the issue of whether there is an assault or not will be determined by whether he was right or wrong. That is said, I think, by Sir John Latham, in one of the James' Cases.

GAUDRON J: Let us say he is overpowered. Let us say the Commonwealth sends out a large contingent from the protective services and Mr James is overpowered and his goods are taken. How does he get them back?

MR GRIFFITH: Your Honour, he could sue for - - -

GAUDRON J: He cannot except under the Judiciary Act.

MR GRIFFITH: Yes, your Honour, but Australia is a fair place. We have had a Judiciary Act since 1903 that lets him do it.

DAWSON J: And of course he has his actions against the individuals because they are bound by the law.

MR GRIFFITH: Yes, your Honour, he could certainly sue the individuals for detinue and, if they could not rely on the valid Act, they would not have a defence. He could sue them for assault and he could sue perhaps the Minister who directed the person.

GUMMOW J: They are persons without funds.

MR GRIFFITH: Yes, your Honour, but then of course we know that when persons act pursuant to apprehended legal rights and it is held that there is no support, one would expect that the government would indemnify them, so that is not a practical problem. But we say it is inappropriate to approach this on the basis that as an entity the Crown will act in a way which is unfair and does trample on the rights of subjects. It has done exactly the opposite. As soon as it could it has enacted a law which we say fully and unconditionally submits, but what we say is submits on the ordinary terms of legal responsibility which apply to any subject litigating in any of the courts within Australia including the States, namely in the particular that it includes, and obviously and logically should be expected to be included, the question of application of limitation periods.

In other words, we would say that it must be regarded as a perverse reading of what is intended by the Judiciary Act to suppose that Mr James or his descendants claiming by virtue of being beneficiaries under a State could now take this action claiming tort damages and presumably interest calculated to date compound on the basis it has not been paid.

GAUDRON J: Have you moved on to another part of your argument?

MR GRIFFITH: Your Honour, I was dealing with the points I was making - - -

GUMMOW J: His action in tort would die with him surely.

MR GRIFFITH: There may be an action in detinue for the goods, your Honour, which, if there was no limitation period - this is a problem. One says there is no limitation period. That is what usually stops a claim. The estate would have a claim in contract.

GUMMOW J: Death is fairly effective too.

MR GRIFFITH: Your Honour, that is what I sought to argue before the Full Court of the Federal Court recently without success. We do say one searches the Constitution in vain for any choice of law rules to apply to determination of claims against the Commonwealth. If it is put that the bare grant of jurisdiction enables such claims to be brought as a constitutional matter, then it does seem curious that there is no constitutional provision which provides for the exercise of that jurisdiction. In our submission, your Honour, the constitutional scheme which we postulate fits. It works and it has been working now for 94 years and it is one that is recognised as entirely the basic interests of a contemporary society that this traditional immunity of the Crown is something which should be lifted not merely by occasional exercise in the case of contractual claims by endorsing a petition "let right be done" and not just be lifted by occasional waiver but by a complete statutory abrogation to provide, as we say through section 56, for actions in claims in respect of contract and tort to be pursued in the courts.

Your Honours, in paragraphs 2.6 and following of our submissions, we do make submissions as to why we say one should not make a distinction between the right to proceed and the underlying cause of action.

We say that if there is no right to proceed at all, in effect, one is saying that there is no cause of action. I think that is a matter that we have already touched upon in particularly my exchange with the Chief Justice. But if I could indicate that we do pick up the submissions which we make in our written submissions as to that over to page 10, paragraph 2.7. It is our submission, as we make in paragraph 2.8, that section 78 presupposes that some statutory or constitutional provision is necessary to allow the Crown to be sued. We, in that paragraph, enlarge on the points I have just made, to say that, in our submission, it is not a constitutional power here, it is a power which may be given and exercised by the legislature.

BRENNAN CJ: But you then take the next step and say, "Therefore, the cause of action is a statutory cause of action."

MR GRIFFITH: In tort?

BRENNAN CJ: In tort.

MR GRIFFITH: Yes, your Honour, this is back to the point of your Honour in Georgiadis.

BRENNAN CJ: Yes. Can I just take you from this aspect of your case. When the Judiciary Act is enacted in its terms it does not in terms pick up any specific provision of the law, it speaks only of contract or tort.

MR GRIFFITH: Yes, your Honour.

BRENNAN CJ: Then the framework in which the Judiciary Act is constructed is a framework which accepts the ordinary law, the common law of contract and tort, as applicable to the Crown once the immunity is lifted.

MR GRIFFITH: Yes, your Honour.

BRENNAN CJ: Why is it that one regards that provision as being the source of the cause of action as distinct from the common law being the source, the statute being regarded merely as the lifting of an immunity?

MR GRIFFITH: We say, your Honour, because without section 56 there is no cause of action.

BRENNAN CJ: I appreciate that is where we came to before. It just seems to me that at the moment it is a large step to say that there is no distinction between a provision which creates a cause of action and a provision which lifts an immunity which hitherto has precluded the pursuit of a cause of action against the Crown

MR GRIFFITH: Your Honour, we were not intending it to be a large step. Part of our submission is, as is in the written submissions, that this is a case of saying, "Look at the substance of the issue not just the form." But we say, your Honour, that the substance of the matter is that there is no liability whatsoever in tort until section 56 is enacted. Section 56, of course, by referring to tort, we say, is a statutory enactment which picks up the same body of law which would apply as between subject and subject and as may be developed since 1900 as between subject and subject with respect to liability which, at common law between subject and subject ,can be vindicated in the courts without any restriction.

BRENNAN CJ: How does that proposition accord with the holding of this Court in the Native Title Act as to the invalidity of section 12?

MR GRIFFITH: I was hoping I had seen the last of section 12, your Honour. Your Honour, that is, with respect, an entirely different issue, your Honour, because there there was an attempt to elevate the common law as it may develop from time to time, to in effect vest constitutional power within the - - -

BRENNAN CJ: No, to become a law of the Commonwealth. Is that not what you are putting forward here?

MR GRIFFITH: The issue here, your Honour, as we see it, is what is the source of liability? What is it that imposes liability on the Commonwealth? Our first submission, your Honour, is, having regard to the prerogative position, there is no liability. So, we say until section 56(1) says there is no liability, your Honour, as we read Georgiadis, adopts an analysis of saying there is a liability, but it is incapable of being enforced.

BRENNAN CJ: Well, the question simply is whether or not cause of action and immunity are concepts which are to be truly conflated, or whether or not they are to be separated. Now, as I understand your argument, you are saying they are to be conflated.

MR GRIFFITH: That is our first proposition.

BRENNAN CJ: And that being so, section 56 of the Judiciary Act must have an ambulatory operation so that the common law, as developed from time to time, is picked up and becomes the law of the Commonwealth, and that is the section 12 problem.

MR GRIFFITH: Well, your Honour, we are hoping that is not a section - - -

DAWSON J: But the way it happens is not by section 56, but by section 79.

MR GRIFFITH: And its perhaps section 64, your Honour, but particularly 79, yes.

DAWSON J: Well, either or both of those. But 79 makes the law applicable because the Court is sitting in a particular place, and what section 56 does is to require these claims to be brought in a particular place.

MR GRIFFITH: Yes, your Honour is quite right. Perhaps it is best answered, if I could, by a step-by-step process.

DAWSON J: Section 56 does two things, does it not? First of all, it removes the immunity and, secondly, it requires any claim to be brought in a particular place.

MR GRIFFITH: Yes, your Honour.

DAWSON J: The law which applies in that particular place is provided by either section 79 or section 64, or both.

MR GRIFFITH: Yes, your Honour. So, we say that step-by-step you go through 75(iii), 78 of the Constitution, section 56, and then you apply the law by operation of section 79. I think, your Honour the Chief Justice, that is not even a better answer to your Honour's question, but the answer, we would submit. Your Honour, our primary submission is that if there is this absolute immunity, then one cannot say - we say it is completely artificial to say that there is a right, a cause of action. Your Honour, if the view is taken as we read your Honour's judgment of Georgiadis, well, there is, in respect of a claim against the Crown, an underlying cause of action which, when one lifts the immunity, then can be enforced.

Our submission is that it is still for the purpose of characterisation to be regarded as a right which is a cause of action which is conferred by statute, namely, the Judiciary Act as a whole, particularly the four sections - I think if I stand on section 56, your Honour, I get to the section 12 problem which your Honour postulated, and I never wanted to see section 12 in the first place, your Honour, and I certainly do not wish to stand on it now to justify this argument here. So, if I could escape that way, I will escape quickly and move on.

Your Honours, we do enlarge on the reason why we say there should be this conflation up to paragraph 2.10 on page 12, and if I could adopt that. Your Honours, we do have an alternative in paragraph 2.11 to try and deal with an alternative approach, that if - this is really, if I recall your Honour the Chief Justice's approach in Georgiadis - we say that if one does regard the cause of action arising in some theoretical sense under common law, we say the basic analysis should be that no right exists under the common law unless there is a remedy. Our submission would be that whatever you have got then, you have not got anything that could be regarded as property in any sense.

So that, a cause of action against the Commonwealth we say could not be regarded as property unless there was a statutory right to proceed. We are postulating that unless there is a statutory right to proceed you have none.

So we then say, well, to extinguish something which cannot be property cannot involve an acquisition of a valuable right which arose under the general law. So it gets us back to form and substance in a way. Your Honours, we have attempted to - - -

DAWSON J: I am not sure that I understand this part of the argument. A statutory right, that is what it is you say, cannot be property because the statute can be modified.

MR GRIFFITH: Yes, but your Honour - - -

DAWSON J: I have difficulty getting my mind around that.

MR GRIFFITH: I am sorry, your Honour. 2.11 is dealing with a fall back point of the sort that his Honour the Chief Justice raised to say, well, as your Honour said, "What if I'm against you in saying that the liability arises at common law, even though it cannot be enforced until the right to proceed is given"? That is how, as I understand, his Honour stated the position in Georgiadis, and this paragraph is an attempt to answer to that, to say, well, yes, accepting that that is put as a proposition, what we say is you should - and this is going to substance rather than form - in reality, there is no right under the common law unless there is a right to enforce it. There is no property.

This case is about acquisition of property, that is where our argument is going, and what we say is that if that is how you get there, you have not got property and there cannot be an acquisition of it, but it is - - -

DAWSON J: But once you have removed the immunity and the law becomes applicable to the Crown, as it is applicable to any other subject whether it is statutory or common law, surely there is a right anyway.

MR GRIFFITH: Yes, once it is lifted, your Honour, we accept that, but my discussion with the Chief Justice was on the assumption that the liability itself is said to be a common law liability and - - -

DAWSON J: Pre-exists the - - -

MR GRIFFITH: No, it is all statutory.

DAWSON J: Yes, I follow, but you have got the next step to say, once you have got the statutory liability, to remove that is not - - -

MR GRIFFITH: Exactly, your Honour, but that is why we say, your Honour, once we get to that point, we say we are about home because we rely on Georgiadis and say, well, if you accept that the right is statutory, that should be it, because the point we see at reading, firstly, the three Judges, and then his Honour the Chief Justice separately making up a majority, would seem to be that they were against us on this point of the creation of the right. So that is where we identify the difference which we say means that it is appropriate for the Court to reconsider.

Georgiadis was one of four acquisition cases and we say three of them, the doctrine is squared away properly, in the fourth, Georgiadis, it almost squares it away. There is just a little segment there which we say, when one looks at it, one might, from this perspective, one sees, in our submission, an analysis which identifies one point of error which otherwise leaves Georgiadis in place, but a different result in Georgiadis. So that the argument does involve overruling Georgiadis in result, so we do not shy from that, but we are seeking to put a compelling argument to the Court, possibly regretting that it was not put in such a compelling way in Georgiadis, but of course, it took us two approaches to Mewett to identify that that is where we were in this case, and that is how one seems to approach acquisitions issues.

Could I now turn to the acquisition issue and, again, we adopt our written submissions which really reflect what we would say is a traditional approach on acquisitions and, as we mention, one which gets support once one corrects the error of Georgiadis, we would say from all the judgments in Georgiadis, and perhaps while I am referring to it, when one sees the choice between the two analyses of the four Justices on one side in Georgiadis and the three in the other, if the Court could take it that, of course, we do rely upon the three Justices there in dissent and the reasons - - -

DAWSON J: Except that two of us at least - and I cannot recall what Justice McHugh said exactly - did not get to this degree of sophistication and just said, "It may be a right which is extinguished but the Commonwealth acquires nothing."

MR GRIFFITH: That is exactly, your Honour.

DAWSON J: But this is a slightly more sophisticated argument.

MR GRIFFITH: Yes, but your Honours only have to get to there and that is it for us and there is no acquisition. So that we are quite happy with what your Honour said, and Justice Toohey, and we accept the two routes that Justice McHugh got there. He got there one way by saying diminution of right does not come within placitum (xxxi). But as I understand your Honour's judgment, there was a quite separate ground that placitum (xxxi) had no relevance whatsoever because it was a case of regulating employment and just did not approach.

DAWSON J: That does lead the argument that you are putting now at the forefront. Was that referred to at any of the minority judgments?

MR GRIFFITH: Your Honour, I was just about to go to a new argument. I am not sure which one I am putting now.

DAWSON J: The one that you cannot, if the statute contains an inherent susceptibility to amendment and if an amendment occurs which affects the right, it cannot be said to be the acquisition of property.

MR GRIFFITH: Your Honour, I think it is quite specific in Justice McHugh, and I recollect also Justice Toohey but I will confirm that Your Honour was quite short but I think it is quite clear - yes, indeed, it is, I remember. Both Justice Toohey and Justice McHugh do expound those views. Your Honour, what we say is that we would hope - and there is only one Justice here from the three Justices in the majority and the Chief Justice separately - that once one gets past this point of difficulty, we would say that the three Justices in their reasons would also support this view, because they say this case is then characterised on the other side of the fence. Am I saying too much, your Honour, because you are - - -

GAUDRON J: I think so.

MR GRIFFITH: Your Honour, it was a risky thing. Can I withdraw - - -

GAUDRON J: Because the point of the judgment of the three was that the cause of action was that even if the right to proceed was a statutory right, the cause of action was one that arose under the general law, and that what was there being spoken was a right which was purely statutory, had no basis in a legal relationship that existed - that was recognised in the general law.

MR GRIFFITH: Yes, your Honour. I think perhaps we are in agreement, because the point I was trying to make is that if one gets past that difference - and I have submitted why we submit one should - and characterises this as a right arising under statute, then we would say that it would follow that ones on the other side of this line that was there recognised. I hope I am not saying too much.

GAUDRON J: But your anterior point was directly dealt with in that judgment.

MR GRIFFITH: Yes, your Honour. I was going to say - I do intend to say more about this issue. For example, this judgment makes direct analogy to claims in contract both for sale of goods and also for the sale of services. Your Honour, we must, in our submissions, meet that point head on. What we say, your Honour, is that the position as to immunity is exactly the same for contract as in tort. So that inasmuch as Your Honours in that judgment identify a matter of equity and fairness, that persons who sell goods should be paid, that is admitted, but it is admitted in the context of, we say, the undoubted principle that until there is waiver either by way of exercise of prerogative or if it is regulated by statute or the establishment of a statutory right to proceed, there is no greater claim, we say, your Honour, to the price of goods sold and delivered, the price of services rendered or the value of postponed remuneration for services rendered long ago. So that, your Honour, we accept that the analogy is made, but our answer is to say it makes no difference so far as the constitutional position is concerned of liability of the Crown.

GAUDRON J: Yes, but does it not make a difference once you look to the acquisition other than on just terms power?

MR GRIFFITH: Your Honour, can I come to that because I am just coming to acquisitions now. I think when his Honour Justice Dawson asked me the point he just made, we were referring to this first point of what is the nature of the immunity, what is the nature of the liability when the immunity is removed and liability is opposed. So that the point we wanted to make - - -

GAUDRON J: I am just wondering, however, whether the anterior question is not itself tied up with the acquisition other than on just terms.

MR GRIFFITH: Your Honour, it might be. We just made one proposition talking about the analysis of what is the property right if it cannot be enforced? We made the point that we say it cannot get to first base on acquisitions because it is not property and, even if it did, it is not acquisitions. But could I return to this when we have made our submissions on acquisitions.

GAUDRON J: Yes.

MR GRIFFITH: We hope and intend that our written submissions as we elucidate them answers these problems, although we accept the reality is that your Honour may well be the last Justice to be satisfied as to that. We do it but we do it by, if you like, adopting the hard approach saying the small "c" constitution is on our side. You cannot sue for goods even if you have sold and delivered them and they have been consumed at a banquet last night.

GAUDRON J: That of course assumes - and I do not wish to complicate your position more than necessary - that the notion of Crown immunity came to the colonies as a necessary part of the common law. That too is a proposition that may be open to some doubt.

DAWSON J: I would not have thought it was. It is settled law now, is it not, that the prerogatives of the Crown are vested in it under section 61 of the Constitution?

MR GRIFFITH: Yes, your Honour.

DAWSON J: That is.....the notion of the Crown coming fully clothed into the Commonwealth.

MR GRIFFITH: And then you go looking to find out what does that mean, what is the content of prerogative. We say Farnell v Bowman itself makes it clear that - I do not particularly want to rely on the Judicial Comittee in this Court but it makes it clear that the case was about the modification of the prerogative as it applied in New South Wales by reason of the Act of Queen Victoria. That was the issue. There was no preliminary issue of was there a different prerogative here, but we submit there is no reason at all to assume that in the colonies up to 1900 there was a situation of robust fairness so far as relationships between the Crown as it governed those that are governed. They were just on those points treated perhaps slightly worse than they might have been in the United Kingdom but certainly not on the basis of complete abrogation of the prerogative position.

GUMMOW J: No, but the point in a way is that the colonial administration was engaged in activities of a trading nature, if one likes to call it that, far beyond anything that was happening in Britain. They had to do so. They had to build the infrastructure of the whole colony.

MR GRIFFITH: Yes, your Honour. That might have accelerated the enactment of the various statute provisions in the colonies which came very early. I think as early as the 1840s there were some provisions. We can give the Court extracts of the particular chain of laws. We have not done that; we make references in our footnotes. But it happened very quickly and usually by the mechanism of petition of rights being regulated in statutory form so far as contractual claims are concerned. So the appropriateness is accepted and it was done.

DAWSON J: And that is where you get the conception that you see in Cigamatic but where prerogatives are concerned, of course they are part of the essential nature of the Crown of the executive, but where, for instance, a prerogative such as this is removed and the Crown goes out and enters into activities with ordinary citizens, the general laws apply.

MR GRIFFITH: Is your Honour talking about Cigamatic or Henderson at this stage?

DAWSON J: I was talking about Cigamatic.

MR GRIFFITH: We would stop on the first part in Cigamatic. It is the just the second worries me a bit, your Honour.

DAWSON J: No, no, Sir Owen Dixon speaks of general laws as opposed to laws which affect the nature of the executive and the general laws, the laws of contract, the laws of tort and so on, and if the Crown enters into activities in those areas it is subjected to them, provided it has lost its prerogative immunity.

MR GRIFFITH: I would wish to make sure that, of course, your Honour knows our views on the reach of Cigamatic doctrine. I did not want to by saying yes give away, perhaps, the further reach beyond prerogative power, but in prerogative, of course, yes, your Honour.

DAWSON J: The problem is complicated in relation to constitutional law by identifying that particular general law which does apply.

MR GRIFFITH: Yes, and will never do it, your Honour.

DAWSON J: The assumption was, perhaps, that general laws did not apply unless you had something like section 64 or 79, but it may be that that is wrong, and that because the Commonwealth Crown, having removed its immunity, enters out into the community and engages in activities to which general laws apply, citizen and Crown alike, which did not need section 64 or section 79.

MR GRIFFITH: Your Honour, need that question ever be answered because we have got to a situation, there is liability of the Crown - - -

DAWSON J: You may not have to answer it on this case, but you may have to answer it in the Cigamatic Case.

MR GRIFFITH: Your Honour, I am not applying to reopen my argument there.

DAWSON J: No, no.

MR GRIFFITH: Your Honour, perhaps if I could refer now to the acquisitions issue.

BRENNAN CJ: Just before you leave that could I just delay you for one moment - Justice Dawson's questions have put one further thought in my mind, and that is the operation of the Judiciary Act is by way of limitation of the Crown prerogative. Is that right?

MR GRIFFITH: When your Honour says the operation, you mean the operation of 56 and 64?

BRENNAN CJ: Yes.

MR GRIFFITH: They have limitation?

BRENNAN CJ: Yes, or restriction or elimination or modification. I mean, that is what it does.

MR GRIFFITH: It does alter the position which would exist, yes, your Honour.

BRENNAN CJ: That is all it does? I am not saying that its consequence is not substantial, but if that is the way in which it operates and it is right to say that the Crown then goes forth into the general area of the law shorn of that prerogative, then it is not immediately obvious that the effect of the Act is to create or vest or permit a cause of action.

MR GRIFFITH: We say it does more than restrict the prerogative because the way one will restrict it was just as, say, in the petition of right of - I suppose in theory it could have been done in other causes of action dealing with property which - I suppose often is a petition of right, as well - you could waive the prerogative, let right be done, but as I have already submitted in the context that it was not true liability at common law as between subject and subject.

Now, what we say, your Honour, is that the scheme of the Judiciary Act goes far beyond that, your Honour, and places the Crown in right of the Commonwealth by operation of statute in the same position as if it were a claim between subject and subject. We say that the result is not that the Commonwealth is in the same position as between subject and subject at common law. We say the Commonwealth is in that position by statute and then one applies through section 64 - the express wording of section 64 does just that - acknowledging the Commonwealth is still in a special place, acknowledging that you should do your best to make it liable as between subject and subject, but admitting that there is an open texture group of matters where that qualification will mean the Commonwealth will not be liable as between subject and subject. We say all that process, it is all statutory. It is not merely saying, "Well, we have lifted the prerogatives, the Crown in right of the Commonwealth is liable at common law." We say that it is all statutory, your Honour.

DAWSON J: Why does it have to be, if the statute was unnecessary?

MR GRIFFITH: Your Honour, I wish to hold onto the position that one cannot say after the act - - -

DAWSON J: You cannot have a statute - - -

MR GRIFFITH: - - - the liability in tort arises at common law, because that is the point where we - - -

DAWSON J: Yes. But what I was putting to you is that sections 64 and 79 may be entirely unnecessary once you have modified the common law so that - and a prerogative is merely common law - so that there is no longer any immunity from the Crown in actions in contract or in tort, or generally, then there seems to me prima facie to be no reason why, when the Crown enters into activities governed by the general law, it should not be in the same position as a subject.

MR GRIFFITH: Your Honour, absent section 64 or 79, it would be necessary, after section 56, to have a - - -

DAWSON J: Well, it may be that you say, well, it is statute because they do what would have happened anyway. But nevertheless, since they do it, if it is done by statute, it is statutory, but I do not know that makes much difference.

MR GRIFFITH: If those sections were not there, your Honour, and there was liability, the Court would still have to make it work by applying choice of law, et cetera.

DAWSON J: But, you see, your difficulties were exemplified in Evans Deakin because - - -

MR GRIFFITH: Yes, but that is wrong, your Honour.

DAWSON J: It might be, but not wrong for the reasons you say. Perhaps it does not go far enough, because if the Commonwealth, having no immunity, enters into the field of building construction or whatever it might be, it is then liable to State laws as part of the general law. There is no discrimination which, as is said in the cases, takes them out of that area. It is subject to the general laws of the State if it is carrying on activities in the State. And that is where section 64 falls down, because it raises the very great problem that the law which it says applies only starts, on one view, when an action is commenced, and the real view might be that it was always there.

The Crown, once it was no longer immune, enters into activities like any other subject, and it is subject to the same laws. That is what was said, if I may say so, right through from, I think, West's Case to Cigamatic. The term "general laws" was used, and that was what was meant.

MR GRIFFITH: We agree that Evans Deakin falls down, your Honour, but perhaps for different reasons from your Honour. The way your Honour postulated that proposition - - -

DAWSON J: Because you say only some laws apply to the Commonwealth, and you cannot identify those which you want to apply - - -

MR GRIFFITH: We can, your Honour. Section 64 is simple, your Honour. Section 64 applies laws which apply with respect to suits, which means procedure and limitation periods.

DAWSON J: But that has been rejected.

MR GRIFFITH: Well, for the moment, your Honour.

DAWSON J: It always left the problem as to whether the law under section 64 only started when the action was commenced.

MR GRIFFITH: That is not a problem, your Honour, it is clear.

DAWSON J: Well, I think it is a fairly big problem.

MR GRIFFITH: Well, it is not if one gets 64 right, with respect, your Honour. If one regards it as a law applying as to suits, it is quite natural to say it only starts applying when one has a suit.

DAWSON J: In any event, it may not be a problem for the very reason that the Commonwealth, its immunity having been removed, is liable to general laws anyway.

MR GRIFFITH: Your Honour, apart from referring to what Justice Brennan said in Evans Deakin with respect to the operation of section 79 as we read it - I think in section 78 as well - we prefer not to base our submissions on Evans Deakin.

DAWSON J: Perhaps we are getting a little away from the immediate problem.

MR GRIFFITH: If your Honour pleases. And I detect, from what your Honour said, that your Honour thought there might be a Cigamatic issue in Evans Deakin which we have not touched on, but I do not think we touched on it there.

DAWSON J: You are not resiling from anything you have said in other cases about that.

MR GRIFFITH: No, your Honour. In fact, I am not resiling from anything I said in Evans Deakin, which one can find conveniently summarised in the dissenting judgment. But that is another day, your Honour. We can get where we want to, your Honour, without attacking Evans Deakin, so we prefer to leave it, apart from the reference to his Honour the Chief Justice which we make.

May I turn to the acquisitions issue, predicated on what we have submitted as to the characterisation of the causes of action in tort and contract under the Judiciary Act scheme? Of course, one can say that all rights, in a sense, are vulnerable to alteration by Parliament acting within its head of powers. But in some cases, an alteration or diminution of right by the Commonwealth is inconsistent with the right itself; it disturbs the right. So, if you have a right which has some existence apart from Commonwealth legislation, rather than an infirmity built into the right of a Commonwealth law - might sweep aside that right, and that might amount to an acquisition.

Now, accepting that is, of course, one reason why, in our submission, we seek to hold onto the point we make that the right comes from the statutory scheme; it does not come from the common law. Even with the lifting of immunity we still, in our submission, say the right comes from the statutory scheme, even if it is defined and brought down by operation of the statutory scheme by reference to what the common law might be from time to time.

An obvious example is if you had a system of land tenure and a Commonwealth law diminished those rights, even if the land tenure was determined by legislation, that might be an acquisition, but if you had an inbuilt infirmity so that if, for example, you had a right by law which expressly provides that it is subject to revocation or amendment, then you are only effecting that which is - - -

DAWSON J: But every right, every common law right is of that sort, it is subject to statutory amendment, is it not? What is the difference?

MR GRIFFITH: Your Honour, what we say is that a right which owes its existence entirely to a Commonwealth statute falls within the class where, in effect, it has an inbuilt infirmity.

DAWSON J: Why is it any more an inbuilt infirmity than a common law right which is subject to removal or modification by statute?

MR GRIFFITH: Its articulation, your Honour, is that it is such right as you have from time to time under the Commonwealth law.

DAWSON J: It is such right as you have from time to time under the common law.

MR GRIFFITH: Your Honour, can I give an example anyway to say what the difference is? We say that if a Commonwealth authority grants a lease over land owned by it for a term of years, the Commonwealth law which purports to extinguish the lease would be an acquisition, it is a plain case. If you had Commonwealth legislation which provided a code for the grant of leases over Commonwealth property and leases granted for two years and the legislation is amended to reduce the maximum term to all leases to one year, we say that would not be an acquisition. Parliament which enacted the lease cannot bind its successors and we say, your Honour, the exercise of that - - -

DAWSON J: So that if the rights of a leaseholder did not depend on the common law but were embodied in statute in a Landlord and Tenant Act, then if the Act were amended to extinguish some rights or to have them transferred to the Commonwealth, there would be no acquisition of property, whereas if it had been common law, notwithstanding that the Landlord and Tenant Act is merely a codification of the common law, it would be different.

MR GRIFFITH: It may well be, your Honour, yes. Your Honours, the obvious example are the fishery cases. If one has a fishery licence and to preserve the fishery, one reduces the quota. In our submission, one is really redefining the property but not exercising in any way an acquisition of it.

GUMMOW J: That is with the law is founded on a prohibition: "You shan't fish unless you have a licence", and then you modify the nature of the licence. One can understand that.

MR GRIFFITH: Yes, that is my strong example, your Honour, although before the courts decided that, they - - -

GUMMOW J: But at the bottom of it is the legislative prohibition, "shan't fish", and you have got the lifting of the prohibition on conditions and the conditions generate a licence which is subject to change.

MR GRIFFITH: Your Honour is pointing to the point that we make here. We say the starting point here is, "Thou shall not fish in causes of action, contract and tort against the Crown except on such terms as are provided", and what we are doing is regulating the fishery, would be our analysis, your Honour. So you have to get the starting point and our starting point is the statutory scheme, and we say, your Honour, once we get there, we should be all right on acquisitions, and perhaps if I could say it shortly, for the reasons stated by your Honours Justice Toohey and Justice McHugh in Georgiadis applying to this sort of situation. So, your Honours, we say - - -

GUMMOW J: How does Torrens Title land fit into all of this?

MR GRIFFITH: Your Honour, fortunately, it would not need to fit in at all because the Commonwealth does not regulate Torrens Title land. So it seems we would not get to first base. I would rather not go any further then, your Honour. One can see, your Honour, it is a completely different situation. So that I suppose, in a sense, the nature of a right is a direct function of its source. In Peverill's Case where the welfare benefits - that is perhaps a strong case for us, where there was a legal entitlement to payment by way of welfare benefits, the legislature discovered it was making a mistake and was going to overpay Mr Peverill by some $13 million or so, so it respectively altered the basis on which the calculation was made to ensure he did not get the money. It was regarded as a windfall and, of course, the Court vindicated such retrospective law which certainly removed from Mr Peverill's beneficial use rights which entitled him to a payment of a large sum of money and the Court had no - well, I suppose we all had difficulty arguing it but, anyway, the judgment makes it clear that that was not regarded as an acquisition.

In our submission, where one has statutory rights, as we have identified this statutory right, then for the reasons stated clearly by two of the Justices in Georgiadis there cannot be an acquisition. So we are not saying that any matter that has become the subject matter of Commonwealth regulation is outside the protection of placitum (xxxi). That seems to be the rhetorical point made by the respondents in paragraph 2.4.10 of their submissions, and we are not saying that at all. So, for example, if we passed a law with respect to interstate aviation which controls buildings on lands adjacent to the airport, that does not mean that we can acquire the land without complying with the acquisitions power.

We are dealing here with the Peverill and we say Georgiadis situation concerning rights which owe their existence wholly to Commonwealth statutes. And to go back to the point of the judgment of the three Justices in Georgiadis, we do for the purpose of these submissions equate the position of entitlement under the law of contract with any cause of action of the sort that is sought to be exercised here with respect to a tortious claim or as it is put here, as the respondents remind us in their submissions, there is an alternative claim in contract here to the one in tort. In a way I suppose it is - - -

GAUDRON J: That brings us to the point I was at before, which is whether the power to acquire on just terms, as it has been construed and applied, namely as a constitutional guarantee, does not direct the conclusion that at least in contract the Constitution predicates a right of action against the Commonwealth independently of the Judiciary Act. Which brings me, I think, much to the same point Justice Dawson put to you earlier, but I put it by reference to the acquisition power. His Honour puts it - - -

MR GRIFFITH: I hope Justice Dawson is on the other side of the fence at that point, your Honour. But what we do say is that there is no acquisition in either case, of tort or the contract case. We say that the rearticulation of the right by reference to alteration of the statutory scheme to say if we assume that there is no limitation period by imposing a limitation period or if we assume a shorter limitation period, as was imposed in Georgiadis, but the majority of the Court held that that was an acquisition, it is our submission that the result is the same. In that circumstance there is no acquisition, there is a redefinition of the right. But we say, your Honour, it is not an acquisition.

Your Honour, I mean, I came back to that deliberately because that is the point your Honour raised but I am uncertain of my capacity to satisfy your Honour other than saying that is how we analyse it. In our submission, once you get to that point, as we say correctly on analysis, then the result follows and that it comes in the sort of Peverill, Mutual Pools situation.

GAUDRON J: Yes, but I am querying your position with respect to contract. You do not distinguish between contract. You are saying, are you not, that you, the Commonwealth, can agree to buy apples from me for 5 pence an apple or 5 cents an apple, and I can hand them over to you and then you can repeal the next day the Judiciary Act and you have got my apples and I have got nothing, and I am saying is that not an acquisition on just terms?

MR GRIFFITH: No, your Honour, it is an indication that you should not sell apples again to the Commonwealth till it re-enacts the Judiciary Act. What we say on the proper analysis is that before the lifting of the immunity by the constitutional scheme enacted by the Judiciary Act, the position would be you would be handing over the apples on an expectation. If you did not want to rely on proper practice by a government that has no legal liability in suit, absent the lifting of the immunity, do not hand your apples over except against cash.

GAUDRON J: Should we tell the whole world now that they should get their money from the Commonwealth before they enter into any commercial transactions with them, if a lawyer were advising somebody who wishes to enter into commercial dealings?

MR GRIFFITH: Your Honour, as soon as the Judiciary Act show signs of being repealed, perhaps you should. But we say that is unthinkable, that is the - - -

DAWSON J: It is all very well pre-Judiciary Act adopting this attitude but why, once there is a right under the Judiciary Act and there is an Act which repeals it, why is not that Act an acquisition of property, something which existed no longer exists, on the reasoning of the majority.

MR GRIFFITH: Your Honour, I was hoping that I had you with Justice Toohey and - - -

DAWSON J: I am sorry, I do not think it is an acquisition of property but, assuming that the mere extinguishment of a right is an acquisition of property, why would that not be an acquisition of property? Something which was there is no longer there by reason of an Act of Parliament.

MR GRIFFITH: It is a matter of when one characterises the rearticulation of your right against the acquisition of property. We are seeking to make the difference, your Honour. One example perhaps in the tax sense is Commissioner for Motor Transport v Antill Ranger [1956] UKPCHCA 5; 94 CLR 177 where a right to recover money paid on a tax which the Commonwealth had no power to impose was held to offend the principle because that would be an acquisition, but in Mutual Pools, where the tax could be validly imposed but was not because of breach of section 55, then that liability could be extinguished.

McHUGH J: But Antill Ranger did not depend on an acquisition of property, did it? It depended on the fact that it was necessary to give effect to section 92 to - - -

MR GRIFFITH: Yes, but in substance it had reimposed the tax. I mention this as an example of the sort of distinction we are trying to make. But perhaps I should not go past what your Honours Justice Toohey and Justice McHugh said in Georgiadis as to why we say the analysis in this situation is one where one is extinguishing a right, not in any way acquiring anything. We say once one gets to the characterisation of extinguishment, you are heading very much down the route which denies acquisition. We would rely on what each of your Honours said as applying here. Once we get to our starting point and, indeed, with your Honours, absent Georgiadis we would be there quite independently of our starting point.

I do not know whether that is entirely satisfactory, your Honour Justice Dawson, but we say that is the analysis which applies in this situation. There are other property rights where it does not and that is why we tend to have a stream of acquisition cases coming to this Court. There is another one due in a few months' time. But we go step by step and the Court will have to consider later in this year whether or not the redefinition by cancellation of exploration permits offshore is on one side of the line or the other. We will find out.

But dealing with the application of placitum (xxxi), we do in paragraphs 2.12 and following explore the position. In substance I have said much of what is there, so I will not read that. But dealing with paragraph 2.15, if I could enlarge shortly on our attempt there to deal with the judgment of the three Justices in Georgiadis, we accept that it is there said that Georgiadis provided skill and labour on a footing he would be entitled to damages at common law. So that one can say it is a quid pro quo part of the remuneration for the work just as perhaps a judicial pension is.

Of course, this is a factor which makes a good policy argument to preserve a right to sue. We say that it does not alter the legal character of that right for the purposes of the acquisitions power. The right to sue remained a purely statutory right that arose from an employment relationship. Your Honour, we say it is no different, in effect, from a public servant's right to salary or superannuation. It is statutory, but it may be altered from time to time. It is about to be altered by effecting the imposition of a tax which, hitherto, had not been applied, so that the fact that one says these are rights earned by work rather than by being a seller of apples, we say, does not alter their legal character.

In effect, your Honours, we say there are alternative approaches and we, with respect, would adopt that of Justice McHugh in Georgiadis at page 327. Your Honour there - and Your Honour was the only Judge who explored this alternative route in Georgiadis - took the view that the conditions of employment of Commonwealth employees is subject to plenary legislative power and may be altered from time to time prospectively or retrospectively. To the extent to which those rights involve a right to proceed against the Commonwealth, any right to proceed does depend on the Judiciary Act and we submit that, as your Honour found, they may be altered without affecting an acquisition of property.

BRENNAN CJ: That means that if an employee has worked under certain terms and conditions which entitle that employee under the existing state of the law to sue for money as for a debt, that by retrospective operation of the law the debt can be extinguished?

MR GRIFFITH: Yes, your Honour. If the person had received the money it might be a different thing as to paying it back, but up to that point, that is our submission, your Honour. That is the terms of employment. Now, that does not mean that that is how it will be worked in practice, but the mere fact that the Commonwealth has a capacity to alter, for example, the taxation rate retrospectively - - -

BRENNAN CJ: That is a different matter. That is a question of taking property and subjecting it to a tax.

MR GRIFFITH: I was going to say, your Honour, "or reduce salaries," as happened during the depression.

BRENNAN CJ: That is a matter of the provisions which will go in the future terms and conditions of employment.

MR GRIFFITH: I was about to say, "even retrospectively" your Honour.

BRENNAN CJ: Then, retrospectively, surely, the question must depend on whether or not the situation has reached the point where the subject has a debt owing by the Commonwealth. If not, then what you are saying is that by a statutory amendment with retrospective operation debts can be acquired.

MR GRIFFITH: We say they are not acquired, your Honour. The analysis we seek to make - - -

BRENNAN CJ: Well, debts can be eliminated.

MR GRIFFITH: We say rights can be extinguished, your Honour.

BRENNAN CJ: Well, these are debts. I am speaking in terms of a debt recoverable.

MR GRIFFITH: The rights to recover money, yes.

BRENNAN CJ: Yes.

MR GRIFFITH: Your Honour, there is another point we have not given up on but for the moment seems not a vehicle to argue is whether the acquisition of money can ever be within the acquisitions power.

BRENNAN CJ: Yes.

MR GRIFFITH: It is a live proposition as far as we are concerned.

BRENNAN CJ: Yes, I understand that. In all events, it seems to me, at least so far as Peverill is concerned, the distinction is drawn between a statutory right to compel a payment on the one hand and a debt on the other.

MR GRIFFITH: Your Honour, Peverill was entitled to recover the money until the Act took it away.

BRENNAN CJ: By what cause of action, mandamus?

MR GRIFFITH: He could have sued for it, your Honour.

BRENNAN CJ: For the debt?

MR GRIFFITH: Yes. That is my understanding of it. Perhaps I will check that over lunch, your Honour.

BRENNAN CJ: I think that perhaps need verification.

MR GRIFFITH: Perhaps I had better, your Honour. But my understanding is that he had an entitlement to that money until such time as the Act took it away.

McHUGH J: It was assigned to him, was it not?

MR GRIFFITH: Yes, your Honour, it was a - he rendered the service, the entitlement went to the person for whom he rendered the service and, as part of the rendering of service, an assignment was - under the statutory scheme - which entitled him to receive that money.

McHUGH J: Yes.

GUMMOW J: I think the statute used the word "debt".

MR GRIFFITH: Did that statute?

GUMMOW J: I think it did. I may be wrong.

MR GRIFFITH: Thank you, your Honour. I have forgotten the detail.

GUMMOW J: It does.

MR GRIFFITH: I know it was a case of some anguish at the time, but the Court got the right result and it sort of went out of my consciousness after that. But it was a sum of money, and I recollect a sum about $13 million, $14 million, that Peverill was absolutely entitled to receive, until the legislation retrospectively removed that right, because the legislation took the view, with reason, and the reasons were put before the Court, that it was a windfall. That was the motivation, but the operation of the Act was to take away $12 million, $13 million, from Mr Peverill.

Your Honour, we will look at it, but our approach at the moment would be to say that it would be in the same position so far as saying "debt", your Honour. But, your Honour, the legal analysis, in our submission, should not be dictated by a view, well, this is unfair and inappropriate, because one comes into this from a position of saying, well, there is no liability at all until it is imposed by the Commonwealth on itself and that is something that the Commonwealth, of course, does. Merely because, your Honour, there is a theoretical possibility that powers in respect of employment may be dealt with as discussed by Justice McHugh in Georgiadis should not be a matter of agitated concern to rework the acquisitions power to say that this cannot be done. It is not something that the Constitution, in our submission, disposes of.

But we say that we make this analysis, and we deal with these tough examples to make the point which we say is made - as well as may be for our purposes - by Justice Toohey and Justice McHugh in Georgiadis in circumstances analogous to this case - or seeing at this point we are wishing to overrule Georgiadis, circumstances directly applicable, and we say that the fact that a statutory right is earned through labour rather than mere contract, or a person suffers injury, that does not alter the constitutional position.

That does not mean that there will not be fairness. Governments do act fairly, or seek to act fairly; that is the nature of government. Any government who does not pay for its apples will, of course, be rendered in the position of will only get apples against cash in the future; and similarly with respect to regulating its employment. So, your Honours, that draws together the points we make up to paragraph 2.17.

Your Honour, perhaps if I could answer the issue on Peverill 179 CLR 242, the expression seems to be not "debt" but "statutory right to payment".

BRENNAN CJ: That is right.

MR GRIFFITH: The difference between that and a debt, your Honour, somewhat eludes me.

BRENNAN CJ: It will be explained perhaps more fully - and I think it is the Royal Insurance Case from Victoria.

MR GRIFFITH: Thank you, your Honour.

BRENNAN CJ: In other words, on one relief it is mandamus, on the other is debt.

MR GRIFFITH: Can I think about that further after lunch, your Honour?

BRENNAN CJ: Yes.

MR GRIFFITH: Thank you, if your Honour pleases, for taking me to that. Your Honours, on the reopening issue, our written submissions largely speak for themselves, and we seek to make our submissions in the familiar criteria. Our basic point is, we say, that it is undesirable for a decision, which we have sought to demonstrate does proceed on a mistaken basis but one which gets what we say is then the incorrect result, should not be allowed to stand particularly where the issue is one of fundamental importance. As we say in our submission, Georgiadis on this point stands outside the quadrant of the four cases on acquisitions which were decided at the time of Georgiadis.

Your Honours, what we seek to say is that when one looks at the normal factors to consider, whether or not the decision should be overruled, we say that there is no substantial factors here weighing against the desirability of correcting the decision once the issue we have identified has been accepted. So whether one uses the expression "plainly or manifestly wrong" we say on the analysis that we have made, if accepted by the Court, then it must follow only one answer can be given and that answer must be contrary to Georgiadis. I have made the point sufficiently that the judgment of your Honour Justice Gaudron with the Chief Justice and Justice Deane in that judgment would recognise that, if one can get past the point we have identified enough, then the arguments or the reasoning would seem to be quite consistent with the - - -

KIRBY J: Presumably there would be some people who have organised their affairs on the basis that Georgiadis was right and proceeded with litigation.

MR GRIFFITH: I am going to deal with that, your Honour. We say none at all. All they have done is sued the Commonwealth because of the result in Georgiadis. But these plaintiffs have not organised their affairs, their affairs happened years ago. All they have done is issued a writ.

KIRBY J: Litigation is an affair, and an expensive one.

MR GRIFFITH: I was going to address that, your Honour. But we say that is not what is meant by organising your affairs, the fact that you have issued a writ on the basis that the judgment is there.

What we seek to put is that this is not a case where the issue is finely balanced. We say it comes to a black and white one. Admittedly, the black was white by our submissions in Georgiadis, but we have sought to demonstrate that it is - the area, for example, Queensland v The Commonwealth 139 CLR 603, Justice Stephen, or Justice Mason in Babaniaris v Lutony Fashions Proprietary Limited 166 CLR, where each of their Honours referred to these finally balanced cases where one might say, well, minds might differ. There has been a result. It should stand.

Dealing with the criteria for overruling, we say that Georgiadis might be seen as part of a stream of authority within Mutual Pools, Peverill, Blank Tapes Case, but that merely is to say it is a recent acquisition case. It does stand alone on the question of the basis of Commonwealth liability in tort and the consequences that that basis has for the application of the acquisitions power, and this is the only part of Georgiadis we seek to open. So in that way we say this criteria with respect to the stream of authorities referred to in John is satisfied.

Secondly, we deal with the arguments which we see to be raised by the respondents in paragraphs 3.2.8 to 3.2.10 of their submissions. When one has regard to the fourth criterion looking at reliance, one must refer to people planning and conducting their affairs on the footing that a decision is correct. We say, in our submission, that does not include where one issues proceedings relying on a decision. A topical example is one might say that there has been reliance on the Court's decisions in Theophanous and Stephens to publish defamatory material about public figures which, on authority of those decisions, might be regarded as privileged.

We submit that one is not relying on Georgiadis to institute proceedings such as has been instituted by the three plaintiffs in these cases. I see your Honour Justice Kirby looks anxious about that and I will not invite further anxiety.

KIRBY J: Do not try psychoanalysis.

MR GRIFFITH: I am sorry, I thought your Honour was about to speak to me because I was onto the next point, but that is our point about that, your Honour.

KIRBY J: No.

MR GRIFFITH: Looking at the aspect of certainly in the law invoked by the respondents in 3.2.10, that we say relates to the way in which people organise their affairs and conduct their interactions with each other and, once more, we say that has got nothing to do with the commencement of proceedings which really only occurs when understandings break down and, here, the particular principle is only invoked to a decision which only has effect in relation to events which occurred long ago.

Georgiadis was decided in 1994 and declared section 44 invalid only in relation to claims which accrued before December 1988. So nothing that has happened since Georgiadis, in our submissions, can have any effect on how people organised how they might have served in naval service before December 1988, and as we know from the chronology, the claims run back to a far earlier period than that. Section 44 is valid in this prospective operation and our submission is that one cannot say that persons could have organised their affairs in reliance upon it. Your Honours, beyond that, we adopt our submissions in part 3 of our submissions, paragraph 3.1 to 3.14 on page 21 of our submissions.

If I can now turn to part 4 of our submissions, that is the question of limitation laws: are they applicable? Although this was the point that came up as we opened Georgiadis on what was then limited to the part covered by part 5 of our submissions in September last year, as it turns out, when one looks at it as we have, we have had these other issues which are ventilated before we get to the issue raised particularly by Justice Gaudron. Your Honours, these would only remain relevant if our submissions on reopening and overruling Georgiadis are not accepted.

If Georgiadis is not reopened and overruled, then we must deal with the question of applicable limitation periods and it is necessary to determine whether the cause of action of Mewett, Rock and Brandon were statute barred before the commencement of section 44, the issue left open in Georgiadis. If on proper analysis they were not statute barred then, if Georgiadis is not overruled then Georgiadis would say there would be an acquisition. If they were statute barred, then one gets to the issue of the consequences of that, the point left open in Georgiadis.

The first step in answering the question is to determine what limitation statutes apply to those causes of action. I suppose one would say part of that question is: if any. It is to that issue that part 4 of our submissions are addressed. Part 5 addresses the issue of saying Limitation Acts do apply; what are they here and what are their provisions? We do rely on the Judiciary Act as applying limitation periods. We say that the Judiciary Act is the source of liability and the code for determining applicable law. Once more we engage the statutory scheme of the Act. We set out the provisions on page 23 and of course there is no need to refer to that. But our submission is that it is sections 79 and 80 which govern the choice of law and those provisions - and perhaps we can put section 80 on one side and concentrate on section 79 for our submissions - make applicable to the proceedings the whole body of law applicable in a State or Territory in which the federal jurisdiction is being exercised.

The point was raised for consideration in September as to, as we understand it, whether or not it can be said section 79 applies beyond State courts exercising federal jurisdiction. In answer to that, apart from relying upon the specific terms of section 79, could I refer the Court to the Acts Interpretation Act. I am sorry, Your Honours, I do not think this was on our list of authorities, but can I read the definition to you. Section 26 of the Acts Interpretation Act, paragraph (c) defines:

"Court exercising federal jurisdiction" shall mean any court when exercising federal jurisdiction and shall include federal courts.

So we should add that that definition is not surprising because Quick and Groom in 1904 in their notes on section 79 in the Judicial Power of the Commonwealth - and, your Honour, this citation, I am sorry, was not on our list and we will have to provide a copy to the Court. But at page 205 in the authors' notes on section 79 there is a very short comment on the expression "courts exercising federal jurisdiction" in section 79. That is:

These words mean any court when exercising federal jurisdiction, and include the High Court or any court created by Parliament.

And then there is a reference, Acts Interpretation Act, 1901, section 26. So section 26 was there from the start. It was there before the Judiciary Act, so there can be no doubt as to what should be their meaning. Of course, Your Honours, when one thinks about it, in 1903 there was only the High Court as a Federal Court which could possibly exercise federal jurisdiction. One would assume that it was exercised on a limited basis in claims and contract or in tort. Indeed, that seems to be so when one looks at the Commonwealth Law Reports up to the time that remitter became possible.

Your Honours, in the last 20 years we of course had two other Federal Courts exercising federal jurisdiction. Our submission is that it is not at all surprising that section 79 in its original terms in 1903 uses expression or makes it quite clear whichever Federal Courts, whether there be but the High Court for the first 70 years or so or other Federal Courts increasingly after that, should all be regarded as within the ambit of section 79 as a choice of law provision.

We do submit that, firstly, section 79 cannot be read so as to be limited to merely State courts exercising federal jurisdiction. We say it applies to this Court. That is not the issue here. Here is an issue in actions issued in the Federal Court Sydney Registry entirely conducted in that registry in one matter where there is a connection with Victoria and in the other matter where there is no connection with any territory because the accident happened in the high seas, any State or territory. Your Honour, as we summarise for the reasons stated in our submissions - - -

GUMMOW J: How is the jurisdiction of the Federal Court attracted?

MR GRIFFITH: It is by remitter from the High Court.

GUMMOW J: Done all by remitter?

MR GRIFFITH: It is all out of the Sydney Registry, yes, your Honour.

GAUDRON J: Remitted from the High Court?

MR GRIFFITH: In the Sydney Registry.

GAUDRON J: All proceedings were instituted in this Court?

MR GRIFFITH: Yes, in Sydney. Of course, your Honours, the way I am heading is to say, in our submission, there is a scheme provided for by the Judiciary Act to ensure that there is liability in the Commonwealth in matters of contract and tort, as may be as between subject and subject. We say, your Honours, that that includes - I am not relying on section 64 but also section 79 - the application of relevant limitation periods. I have already make the general submission that we submit that - I hope the Court does not regard me as putting it too highly - is to be perverse to take the view that there should be assimilation of liability of the Crown in the right of the Commonwealth in contracting and tort, which is the position of subject and subject, but freed from the operation of limitation periods under Limitations Act, which apply, as we say, without exception in the case of liability between subject and subject in State and, we would say, Federal Courts. That is a general point we make but, if that is what the language clearly says, well, then, that is an aberrant result which, extraordinarily, would be exposed some 97 years into Federation.

But, in our submission, if at any point there is a lingering choice, the Court should have no hesitation in adopting the view in conformity not just with what we say is obvious common sense but in conformity of what must be regarded as the plain meaning and intendment of both the constitutional provisions and the provisions of the Judiciary Act. What else, we would say, is the Judiciary Act doing in this scheme other than placing the Commonwealth in the same position as far as may be as subject and subject in respect of liability in contract and in tort.

So that it is our submission that what section 79 here does is govern choice of law when one does have an action in tort. What it does is to apply the State laws including limitation laws. Your Honours, there is the issue of the application of section 79 picking up State laws with their meaning unchanged. We refer to this in paragraph 4.7 on page 25 of our submissions. What we say is that the general proposition that section 79 does not purport to give any new meaning to State or Territory laws is subject to the qualification that it must be accepted that section 79 renders applicable in a court exercising federal jurisdiction any State statute which by its express provisions or upon its proper construction is limited in its application to the courts of the State. If one did not apply section 79 to that extent, there would be very few State laws which would be picked up by section 79, certainly insufficient to give any sensible content to the imposition by section 79 of the general laws of each State.

Your Honours, notwithstanding the expression of Justice Kitto in Pederson v Young 110 CLR 165, we say that the correct view as to this is now amply established. If I could take the Court specifically to John Robertson & Co v Ferguson Transformers, which is referred to footnote 66 page 25 129 CLR 88, the judgment of Justice Gibbs, and also pages 93 to 95 of Justice Mason. Your Honours, I will not read those statements, but they make the point more eloquently than just made by me that, of course, one picks up general law. So the limitation, one can say from Pederson v Young, we submit, is that if one has a State law which limits the operation to a particular State court, then it may be section 79 does not pick it up. But, we say the authority we refer to, and for the reason stated specifically by Justice Gibbs and Justice Mason at those two citations in John Robertson & Co - I should add that Justice Pincus in Neilsen v Hempston 65 ALR 311, at page 312, the next citation, adequately states the position, in our submission, as well, and consistently with what the Justices of the High Court state, that it is clear that section 79 works easily to pick up a State limitation statute if it forms part of the law generally applicable to suits of the relevant kind. We make this proposition in paragraph 4.8 on page 25 over to page 26. Of course, we have the default setting of section 80 which picks up common law to the extent to which the statute law of the Commonwealth or the State is silent.

GAUDRON J: Does that mean that this Court exercises jurisdiction in the Australian Capital Territory when it is exercising original jurisdiction and sitting in Canberra?

MR GRIFFITH: Your Honour, the question is for what purpose is it. If there were a claim, for example by Mewett, in the Australian Capital Territory, issued in this Court, which was not remitted to a Federal Court, the answer would be, "Yes".

GAUDRON J: If it were commenced in the Canberra Registry, if it had been commenced in the Canberra Registry, although for my part I do not see why we distinguish the registries of this stage for the purposes of the exercising jurisdiction, but let us assume - forget the Registry - there were a claim for damages in the original jurisdiction of this Court and the Court was sitting in Canberra, we pick up the laws of the ACT, in your submission, no matter where the injury occurred?

MR GRIFFITH: No, your Honour, you pick up the laws, including choice of law. In part 5, your Honour, in the Mewett Case, we say you pick up the Victorian Act. Your Honours will remember, and we will come to it, your Honour, after McKain v Miller there is a statutory injunction to regard limitation periods as substantive. So that McKain is affected by the scheme, which I think has been now enacted in all States. Queensland was a bit late, but I think Queensland has enacted it. The ACT has enacted it, too.

GAUDRON J: Yes.

MR GRIFFITH: So that, your Honours, were Mewett to issue and have the trial here, and the accident were in Victoria, the choice of law, we would say, would be directed to the Victorian law. That is our submissions in part 5, but we do it on the - because it was all from New South Wales, we go through New South Wales.

GUMMOW J: Section 48 of the Federal Court Act says that the Federal Court can shift the venue in the course of a hearing. What happens - - -

MR GRIFFITH: Yes. Your Honour, I was not going to say anything about practical matters, but what our submission is - - -

GUMMOW J: Practical matters throw up the doctrinal problem.

MR GRIFFITH: Of course, your Honour.

GUMMOW J: The doctrinal problem is that section 18 of the Federal Court Act says that its process is Australian. It is implicitly the difference between the High Court and - - -

MR GRIFFITH: Your Honour, we accept that you can - in Kruger we talked about the difference between the physical and intellectual, your Honour. But what our submission is, your Honour, is that section 79 has been doing work since 1903.

GUMMOW J: Well, it did its work primarily when one was only talking about State courts, with a limited venue.

MR GRIFFITH: Well, we made the point, your Honour - - -

GUMMOW J: It is just not up to date with the present way complex litigation is conducted in this country. It is no good saying it was good in 1903; of course it was. Sir Robert Garren could not have conceived of a situation where I heard part of a case in Sydney, and then I flew to Adelaide and heard some witnesses in Adelaide, and I gave judgment in Melbourne - and it was started in the Brisbane registry.

MR GRIFFITH: Your Honour, it could be done better now because of that. But that does not mean that section 79 does not do it, in our submission. It has not lost its effect because of the development of a new court. Your Honour, in 1903 the High Court could have gone by ship, as it did, from Perth after the sittings and delivered judgment in Melbourne in the principal Registry. But, in our submission, the inquiry that your Honour is putting to me is to say, in those circumstances of ambulatory judicial activity - and we could include some of your Honours, perhaps, thinking of a matter whilst you are flying between Canberra and Sydney - - -

GUMMOW J: It is a question of how you make the words of section 79 work: "Courts exercising federal jurisdiction in that State." It assumes there is one State. There is a plurality.

MR GRIFFITH: Yes, you have got to find the State, your Honour.

GUMMOW J: How do you do it?

MR GRIFFITH: Your Honour, in the ordinary case, you have no difficulty whatsoever as in these cases. All the litigation has happened in Sydney. You then go to the New South Wales law. In the case of Mewett, the choice of law under the New South Wales law says you go to Victoria for the limitation period. In the case of Rock and Brandon, because it happened offshore, the New South Wales law would indicate you stay in New South Wales. There is no problem at all, your Honour.

KIRBY J: Why is that? Would you explain that last step in that case where the ship was on the way to Suva?

MR GRIFFITH: Your Honour, that is part of our submissions in paragraph 5. We do it explicitly and we also elucidate it. Your Honour, up to the time that these issues emerged in September, this was common ground with the parties that that is where you got to, and our submissions explain the route, but - - -

KIRBY J: I understood that the Victorian case, it was agreed that - or is it agreed - the Victorian Act would apply if an Act applies, but in the case of New South Wales, if the ship was on the way to Surabaja, why does the New South Wales Act apply?

MR GRIFFITH: Because it is the place of registry I think, your Honour; 4.21 I am told, your Honour, of our submissions. Your Honour, I am reminded that this is dealt with fully in the judgments appealed from and is not in issue.

KIRBY J: But 4.21 is not very clear. It says it "is Commonwealth law". "The relevant Commonwealth law is section 79 of the Judiciary Act", and then you say it applies to statute law of New South Wales. Why?

MR GRIFFITH: Your Honour, that is the point I am arguing now, but I thought your Honour was saying, "If you were in New South Wales, why is it that you apply the New South Wales Limitation Act if there is an accident offshore?" I thought that was your Honour's inquiry. Your Honour, footnote 80 deals with the discussion in the judgments as to why the New South Wales Act would apply. We would say once you have got the New South Wales law applying, you would apply the New South Wales limitation.

Your Honours, this was a matter that was not in issue until all these preliminary issues have been raised. May I continue my general submissions and then we will apply them to the particular?

GAUDRON J: Do you, in relation to those general submissions, distinguish between a case - you must - that was remitted by this Court and a case that is not. Is that what - who is exercising jurisdiction and where, the remitted case?

MR GRIFFITH: Your Honour, in each case it is necessary to determine what is the State or Territory where the exercise of federal jurisdiction is occurring. We say in most cases there is no difficulty, as here there is none. In the situation that Justice Gummow postulates, your Honour, there might be a necessity of, for example, as has been pointed out in Parker's Case - I think Justice Windeyer raised the consideration as to whether it was a good idea for him to give judgment in a different State from the State from where the matter was entered and where it was argued. There was an agreement between the parties that it should make no difference where he gave judgment.

Your Honours, they might be practical matters to be considered in making section 79 work. But what our submission is: the inquiry is to get a result on section 79 to say in which State or Territory is federal jurisdiction being exercised, even in the complicated example that Justice Gummow postulated. Our submission is the fact that such occurrences may occur, albeit, we say, very rarely, does not affect the fact that limitation periods are, with other State and Territory laws, picked up and applied by section 79.

We would make the further point - and one sees this in Mewett and it comes out in our submissions in part 5 - that in Mewett, if Mewett had issued in Victoria rather than issued in the Registry in New South Wales and the matter had remained in Victoria, the same limitation law would have applied. So it does not necessarily mean on the limitations issue the fact that it is difficult to say where the Court is exercising federal jurisdiction, that on limitation issues you get to a different law as being the applicable limitation law. We say that when one picks up the law of a State or Territory exercising federal jurisdiction, you pick up choice of law provisions.

But the proposition your Honours will see we make in paragraph 4.10 and following is that, in our submission, section 56 does not govern choice of law. We say it is not a choice of law provision. This is an old debate but we hope that this is the definitive answer to it. We say that, with respect, Justice Windeyer was not correct in his statement with respect to section 56 which we have extracted in paragraph 4.10 of our submissions.

We make our submissions in paragraph 4.11 which runs over to page 29 as to why it is we say that section 56 is not a choice of law provision; it is a provision which lists the immunity, if you like, imposes the liability. We say that it operates as a statutory waiver of the Crown's immunity and identifies the courts in which proceedings may be commenced. Of course, that identification in 56 has a very useful purpose because, if one could leave the anomalous position of this Court on one side, it sets one off to the appropriate jurisdiction to apply.

There is a scheme to it. It might be one that gets a little bit complicated with modern communications and video links and that sort of thing. Our submission is that they are complications to be dealt with in the contents of a statutory scheme. It makes one thing clear and that is in the exercise of federal jurisdiction in all courts, including Federal Courts, including this Court, and in this Court from 1903 it is intended that section 79 should apply the law of the State or territory.

GUMMOW J: In fact, a real problem arises in the State court where at some stage in the proceedings there is a federal party.....and the whole thing becomes federal jurisdiction.

MR GRIFFITH: You raise the federal jurisdiction issue.

GUMMOW J: Yes.

MR GRIFFITH: Well, your Honour, the best way to avoid the problem is to stick to the identification of the jurisdiction, and saying if that happens in a State court you apply the State law and that may include a choice of law issues, but, still, one must apply the State law. The Parliament has made it clear that it wishes the law to apply, and we can say, not just relying on section 64, "as much as it might apply in a suit between subject and subject in that jurisdiction". Now, it may be thought that, "Well, wouldn't it be simpler for limitations to have a uniform limitation scheme for Commonwealth liability in federal jurisdiction?" Now, that itself would give rise to complications. In the situation your Honour postulates if that happened, it may be when that moment of federal jurisdiction being attracted the limitation statute would change from the State one to the federal one. Now, we say the constitutional solution is to say that there should be equality within each jurisdiction, State or territory, so that litigants are treated the same whether or not they have a cause of action in federal jurisdiction or not, against the Commonwealth or not, it is the same limitation period.

That means there could be different limitation regimes as to whether the laws are procedural or substantive, as is illustrated in the difference between the Victorian Acts and the State Act. In a perfect world the preparation of this case induces one strongly to the view that there should be uniform limitations statutes for the State, Commonwealth and Territories in the way that we have moved for a uniform evidence law, the way we are moving for a uniform choice of law rule, but we have not obtained that. Really, when one looks at some of these limitation statutes they are diverse, confusing and often contrary. Even internally inconsistent operation seems to be consistent to some extent with an ambulatory operation of pressure groups resulting in specific amendments rather than any overall philosophical scheme. So that without doubt we have identified a matter ripe for attention for the Australian Law Reform Commission and, one hopes, the governments of Australia.

Accepting that, we still have a legislative scheme which we submit has worked well and fairly for 94 years and is still capable of working and can deal on a case-by-case example of the difficult case of the case which originated in this Court and is remitted to another court. Justice Dawson in Gardner dealt with that in a few paragraphs, quite correctly, we would submit, to ensure that there was no injustice and that there be appropriate results on remitter in considering to what court to remit having regard to possible limitation periods which will be picked up. Our basic proposition would be, as your Honour seemed to regard the position, that one would, under section 79, pick up the limitation period in the jurisdiction to which you were remitted.

We would not suggest that characterisation irrevocably arises from the registry, for example, in a Federal Court where a matter is issued. One obvious characterisation will be to identify it from where the substantial trial occurred, if there is one. We would be somewhat doubtful that one would say that the Parker situation of giving judgment in another State would make any difference to that. But in the event that it is thought to be a problem, that is a problem for the judge exercising the jurisdiction to conclude what is the correct result having regard to the provisions of section 79. If there is any residual difficulty, we would suppose that the judge would invite the parties to deal with any difficulty so that the parties could either agree that the identified jurisdiction should remain the jurisdiction even if there are elements such as evidence taken in another State, judgment given in a third State.

BRENNAN CJ: Would this be a convenient time, Mr Solicitor?

MR GRIFFITH: Yes, your Honour.

BRENNAN CJ: Court will adjourn till 2.15.

AT 12.48 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.19 PM:

BRENNAN CJ: Yes, Mr Solicitor.

MR GRIFFITH: Your Honour, if I could refer briefly to Peverill [1994] HCA 8; 179 CLR 226, not to take the Court to any particular passages, but to overcome my situation of uncertainty in exchange with your Honour this morning. Your Honour, it seems for the Commonwealth at page 230, I argued both extinguishing a debt and extinguishing a statutory right would, in each case, not constitute an acquisition. At page 231 and over, Mr Spigelman seems to argue squarely that it is a debt and, your Honour, looking quickly at the judgments at page 235 of the Chief Justice and Justices Deane and Gaudron seem to refer to it by reference to the expression "statutory right".

Your Honour, at page 242, the Chief Justice, made it quite clear you regarded as a statutory right and not a debt enforceable action and your Honour Justice Dawson at page 249 refers to a chose in action; Justice Toohey at page 256, chose in action, and Justice McHugh at page 265, chose in action but, your Honour, my recollection, that would seem to confirm that the difference did not seem to exercise those who pleaded the case perhaps to the same extent that it should have, your Honour, when one has regard. I am sorry that I did not have that at my recollection when your Honour raised the point.

As your Honour in Royal Insurance 182 CLR at pages 87 and 88, in your Honour's judgment, your Honour refers to that point of difference and I thank your Honour for that reference. Your Honour, on the adjournment, I was dealing with the question of making section 79 work on the basis of our proposition. It applies and continues to apply in 1997 by reference to which the Court exercises jurisdiction.

Your Honour, we say, as we have already submitted, that the section does apply to all courts exercising federal jurisdiction, that this Court is such a court and, if that is accepted, your Honour, the Court has to work out, for the purposes of section 79, where it is to be taken to be exercising jurisdiction. Our submission is that the fact that this might sometimes be somewhat difficult in the circumstance of peripatetic courts in exercise of jurisdiction is not a reason for deciding that section 79 does not apply to apply the law of a State or Territory where the Federal Court, including the High Court, is exercising jurisdiction, all that - because these matters of difficulty have increased with the multiplication of Federal Courts in the exercise of jurisdiction by federal courts on a peripatetic basis makes any legal difference to the operation of section 79.

Now, your Honour, we say, firstly, that difficulty will arise only in a small number of cases. The ordinary case is the situation either - were the matters, for example, issued in a Federal Court, well, the jurisdiction ordinarily is issued in the registry of origin of the matter. In cases of remitter from this Court, we submit there is no real difficulty because, as we have referred to the view of your Honour Justice Dawson in the Gardner matter, would indicate that one has regard to this as a matter relevant to determining the jurisdiction to which you remit, and then one engages in the exercise by reference to that court to which the matter is remitted; here, the Federal Court in its Sydney registry.

Your Honour, our basic approach is to say, obviously for the purposes of section 79, the Court exercises federal jurisdiction where it actually sits to do something; to hear evidence, or argument, or make orders. We would say, your Honour, that a judge who contemplates a matter is not exercising jurisdiction in a particular place, whether it be the judge does it in an aeroplane, or does that in another State different from the court where the judge sat in the matter.

Your Honour, in principle the same issue would arise in relation to State courts, where a State court exercises federal jurisdiction. It is a jurisdiction of the same quality as Federal Courts. It is not a second-class vesting of federal jurisdiction. So, your Honour, we would submit that, when analysed, the State court exercising federal jurisdiction also has a jurisdiction Australia-wide, notwithstanding the practice that a State court, of course, only operates in a particular State, excepting that, for example, as referred to in exchanges, I think in Kruger, that the court in the Australian Capital Territory has sat in New South Wales. If it is an exercise of federal jurisdiction, it would remain an exercise of federal jurisdiction.

Your Honour, we say that the complexities which might be thought of in theoretical or even practical examples may be resolved. For example, a solution was found by Justice Windeyer in Parker 112 CLR 306. That was a case arising out of the "Voyager" disaster in 1964. Justice Windeyer there heard argument in Melbourne, gave his opinion on some issues but delivered a written judgment in Sydney. When one reads what his Honour said at page 306, with respect, his Honour adopted a quite appropriate common sense view to the task which he regarded section 79 as obliging him to undertake, namely to apply State law by reference to the jurisdiction where his Honour was exercising federal jurisdiction.

His Honour took the view that, having sat in Victoria, hearing argument there and stated an opinion, then that was the place to exercise federal jurisdiction. To avoid doubt, accepting that adjudication is an essential part of the exercise of jurisdiction, with the consent of counsel he delivered judgment in New South Wales as he describes.

TOOHEY J: And if the evidence had been taken in more than one State?

MR GRIFFITH: Your Honour, it is a matter still of taking a view about where you are exercising jurisdiction. There must, we would submit, be a rational basis on analysis to say "This is where we're exercising federal jurisdiction" even if there are aspects beyond that. Say, for example, if a court in Melbourne heard evidence by video link from South Australia, nonetheless one would say it is exercising jurisdiction in Victoria, even if some of the counsel were in South Australia. But a question such as that is to be answered, we say, in a sensible manner to get a sensible result.

TOOHEY J: I am not clear, Mr Solicitor, whether you are saying that there is in the case of a court exercising federal jurisdiction one State or Territory on which section 79 operates or whether there may be more than one in the course of the litigation.

MR GRIFFITH: Your Honour, we would suppose that it would be exceptional indeed to contemplate that there could be more than one, and I think our principal submission would be that the court would seek to find one and apply that. But when one multiplies the examples or you say, for example, what happens if the court hears exactly half the evidence in one State and half in the other and has half of the submissions in one State and half in another, our principal submission would be that the application of laws by section 79 should remain from a single State. But we would not cavil from the proposition, if necessary, to say that the fact that there might be a complete switch of jurisdiction to another State - - -

TOOHEY J: Absent the federal Evidence Ac,t if evidence were taken in more than one State.

MR GRIFFITH: Your Honour, we would say that nonetheless if the principal place from where the case is being conducted is, for example, Melbourne, the fact that under the Evidence Act that evidence was taken in another State would not alter the application of the Victorian law. We would say that is a common sense view, your Honour. If that was incorrect, in our submission, that would not affect the effective application of section 79.

TOOHEY J: No, it would simply give it some sort of ambulatory operation.

MR GRIFFITH: It seems a bit odd, your Honour, so our principal submission is that that would not happen. For example, limitation issues are threshold issues and in our submission, your Honour, they should be determined as a threshold matter according to the jurisdiction where the federal jurisdiction is to be exercised, and once determined, that should be it. One should not be able to reagitate it by saying, "We are now hearing evidence in a State that has a different limitation period, the bar does not exist." That seems an obvious way of making it work.

Your Honour, we would call down the successful operation of section 79 for the last 94 years as indicating that it is, notwithstanding developments, your Honour, notwithstanding the extent of exercise of federal jurisdiction now by Federal Courts and the extent of matters being remitted from this Court to Federal and State courts, section 79 has been shown as providing the intended and workable result. Your Honour, we would also say with respect to section 79 that one might look at the approach of Justice Windeyer in Suehle's Case, and that we discuss in paragraphs 4.10 to 4.13. I have referred the Court to the way in which we deal and seek to answer the approach which we reject as to the Suehle approach.

Your Honour, our submission is that in this case if one adopts the route through section 79 you get much the same result as one might get here in the Suehle approach. So that if your Honour regards section 56 as a choice of law provision - which we demur to, we say, "No, section 79 is" - one gets a result which would seem to be the same as if one takes a section 79 route. In Mewett we say the section 79 route takes one to the substantive and procedural law of New South Wales. That includes the Choice of Law (Limitation Periods) Act, which we discuss in paragraphs 4.17 and 4.18, and that picks up the Victorian Limitation Act.

The Suehle route would take one directly to Victorian law, including the Victorian Act, would seem to get to the same point. In Rock and Brandon the Suehle approach merges with section 79 because the events occurred on the high seas. There is no lex loci which section 56 could pick up if it were a choice of law provision, of which we say it is not, other than Commonwealth law, and we say the applicable Commonwealth law is section 79. So as it turns out, one gets no difference in the result, but our submission is that section 79 route is that which applies for choice of law.

Now, the other argument which may be made as to section 79 is that that only applies to matters arising in the trial of the action and not matters anterior to the trial. It might be put that section 79 assumes that there is a cause of action which can be tried and, therefore, does not pick up any limitation period. We see this as an alternative argument made by the respondents in paragraph 4.3.5 of their submissions. We say, firstly, such an alternative argument is inconsistent with authority which recognises that seciton 79 picks up the whole body of the law of the relevant State. Of course, Pedersen v Young 110 CLR 165, page 170 which we quote at paragraph 4.6 of our submissions is authority for that.

The second difficulty to this approach is that section 79 in terms makes the whole body of law binding on courts exercising federal jurisdiction, so there is no warrant, we submit, in the terms of section 79 of limiting its effect to the trial of the action. A court where federal jurisdiction is invoked must, under section 79, look to local, State or territory law in order to determine every issue that arises, including whether the jurisdiction is properly invoked. We have already made the point that the suggestion that by adopting such a construction of section 79 results in no limitation period applying at all in respect of the exercise of federal jurisdiction, whether originating in matters in this Court which are heard and determined in this Court, which would not now occur, or remitted for hearing in another court and we have already referred to the relevant parts of Justice McHugh's judgment in Taylor 139 ALR, pages 8 to 9 where your Honour referred to the fact that a right to a speedy hearing was recognised in Magna Carta. That even before the Limitation Act, the common law imposed time limitations in respect of many civil actions.

We say, your Honours, it is unthinkable to think that in 1997 it would be necessary for the Commonwealth to plead by reference to common law principles anterior to 1623 as to the application of a limitation period applicable in cases where the Commonwealth voluntarily has raised the immunity and enabled persons to take action against the Crown in respect to contract and tort. We say, your Honours, this must be regarded as a incongruous suggestion and one which the Court could only vindicate were there no other possible construction which could be made and, we say, really in 1997 such a proposition is not one which can fairly be put to this Court.

Your Honours, section 79 does not erect any fiction or require the Court to do anything with the nationwide nature of federal jurisdiction. It is merely a choice of law provision whose criteria in operation is location. If there difficulties in identifying location we submit they are to be resolved in the normal manner of application of judicial method. The anomalies attributable to section 79 on this basis, we submit, are no more severe than those which flow from other possible approaches. If section 79 operates in the way we suggest, liability may, in some cases, depend on where the Court sits when it takes some steps in the exercise of federal jurisdiction, but, at least that has the effect of assimilating the liability of the Commonwealth in cases between subject and subject in the same jurisdiction. In other words, it reflects a policy of section 64. Within each jurisdiction of State or Territory, one would see that there is a quality of treatment and result.

An alternative approach would set up a special regime for claims against the Commonwealth involving different choice of law regimes or even a complete absence of a limitation period, and as in the example raised by his Honour Justice Gummow, were, for example, a matter to change characterisation from being a matter in a State jurisdiction to a matter in a federal jurisdiction, for example, by reference to a defence pleading the terms of a Commonwealth statute, if the approach which is being urged against us applied that, in itself, could have the effect of, for example, removing the operation of an undoubted limitation period under State law under State jurisdiction.

So one can multiply the anomalies of result and, in our submission, your Honour, in conclusion, come to the point where there is no balance of argument, no balance of convenience and, we say, no balance of construction, of the terms which should dictate such an anomalous result.

BRENNAN CJ: How does this work in terms of limitation statutes? If one statute in one State extinguishes the cause of action and another simply limits the right to sue, what happens so far as the issuing of process is concerned and whether or not the action lies?

MR GRIFFITH: Your Honour, one must start with the process is issued somewhere, for example, is issued in the Federal Registry of the Federal Court in Sydney then one, your Honour, must engage in the question of saying, section 79 is the choice of law provision. You apply the New South Wales law. Then one looks at the circumstances of the cause of action, whether it be contract or tort, and applies by reference to the choice of law provisions operating in New South Wales principles to obtain a determination of what choice of law applies, your Honour, in respect of that cause of action.

If it is as we say it would be in the Mewett Case, your Honour, involve the application of the Victorian law, well then one, in exercising jurisdiction in Sydney, applies the Victorian law. One starts at the action - - -

BRENNAN CJ: When picking up the Victorian law, one may see that there is a statute which provides that no action shall be brought so that the action lies.

MR GRIFFITH: Your Honour, the effect of the recent legislation is that all those laws are treated as laws of substance - - -

BRENNAN CJ: What does that mean? It is very helpful, no doubt, in terms of classification of the law so that one can determine the way in which, in any particular State, questions of limitation may be resolved but if, by applying laws of a State, one finds that there is an injunction not to bring an action in the courts of that State, what does that law say about bringing an action in this Court?

MR GRIFFITH: Bringing an action in this Court?

BRENNAN CJ: Yes.

MR GRIFFITH: Your Honour, what we say is if one brings an action in this Court and it is remitted to another court, then one engages in a process of - - -

BRENNAN CJ: If it is remitted. If it is not remitted?

MR GRIFFITH: If it is not remitted, your Honour, what we say is that it depends where this Court is sitting hearing the action. It does not do this nowadays but let us assume it did: if it sat in Melbourne we say section 79 would apply the Victorian law.

BRENNAN CJ: What does Victorian law say then to this Court?

MR GRIFFITH: Your Honour, it would not be the Victorian law saying it; it would be the Commonwealth law, being a law which says this Court is to apply the law equivalent to the law of the State. It would say no action can be brought.

BRENNAN CJ: In this Court?

MR GRIFFITH: Yes.

BRENNAN CJ: Not in the courts of Victoria?

MR GRIFFITH: Yes, that is a Pedersen v Young issue.

BRENNAN CJ: Yes, that is right.

MR GRIFFITH: What we say is that Pedersen v Young would not pick up a law, if it is correct on that point where it says no action will be brought in the Supreme Court of Victoria. But we say Pedersen v Young is authority that section 79 would pick up a law which says no action will be brought in the courts of Victoria generally, and that would include - not by reason of the Victorian law applying to the High Court but by reason of the operation of section 79, the Court applying that law as a law of the Commonwealth binding this Court, and one would get to that position.

BRENNAN CJ: Giving the words of the statute a different operation.

MR GRIFFITH: No, your Honour, we say this is straight Pedersen v Young, with respect. It does not give it a different operation. I took your Honours to the references to Justice Gibbs and Justice Mason which we say quite expressly make that point, that you are not giving - the point they make is that it is not literally the same operation, otherwise you would not pick up anything in the State. The Pedersen v Young qualification, with respect, is to say that if the law says you should not bring an action in the Supreme Court but, if it says you will not bring an action generally in courts in this State, we say that is squarely within the authority of Pedersen v Young and is picked up.

In your Honour's example, were this Court sitting in Victoria, then one would pick up that law as a law, very much like the Commonwealth Places Act, a law of the State applied as a federal law. Were the Court instead, same facts connected with Victoria sitting in New South Wales, we would say one would find that the relevant choice of law provisions would probably provide the same result on the limitation period, either with or without the assistance of the recent Choice of Law Acts and apply the Victorian Act, just as happens here in the Mewett Case. It does not matter in Mewett whether or not Mewett issues in Victoria - I am sorry, issued in the High Court. It does not matter in the result, we submit, whether Mewett is remitted to Victoria in the Federal Court or a State court or remitted to Sydney in the Federal Court. Section 79 as a choice of law provision results in the Victorian limitation period applying - same result, same law.

GUMMOW J: The cross-vesting legislation does not apply in this Court but, in a case where federal jurisdiction is being exercised in a State court, for example, and then the cross-vesting scheme works, does not section 11 then apply its own choice of law system?

MR GRIFFITH: Your Honour, section 11 is a - - -

GUMMOW J: And that somehow has to be accommodated to section 79.

MR GRIFFITH: There is no real difficulty with section 11, your Honour, because what section 11 does is to provide a workable result really pending a uniform choice of law regime in Australia. It does leave a discretion to a judge in situations not covered I think by subsection (1) or subparagraph (1), whatever the numbering is.

Your Honours, what we would say is that, firstly, section 79 does apply by terms of the Judiciary Act. If there were a view on analysis that, apart from the discretionary provision in section 11 of the Cross-Vesting Act - but the principal part referring to a statutory cause of action which obtained a different result, well then, the exercise would be which prevails, and one would suppose the Cross-Vesting provision would prevail because it is the latter. So, one would still get a statutory result by operation of a Commonwealth law.

Your Honour, inasmuch as if it were the operation of the State Cross- Vesting Act, that obviously is part of the scheme, which would have the sanction of the Commonwealth legislature for its operation. So, if your Honour's question is predicated on the assumption there may be a different result through section 11 and section 79 - - -

GUMMOW J: Yes.

MR GRIFFITH: - - - without saying for the moment, your Honour, whether that be so, were that so, nonetheless, your Honour, that is an operation of Commonwealth legislation providing for choice of law, and we would say the Cross-Vesting legislation, on the face of things, would prevail and result over section 79. But that is not necessarily what the court determined; that would be our approach to that issue.

Your Honours, we have prepared a short note with annexures of citations of the position of the United State's equivalents to the Judiciary Act 1993 . May I hand that to the Court?

BRENNAN CJ: Thank you, Mr Solicitor.

MR GRIFFITH: It is just one page of summary, your Honour, with some extracts of.....citations. There, your Honours, we refer to Federated Sawmill, Timberyard and General Woodworkers' Employees Association v Alexander [1912] HCA 42; 15 CLR 308 at page 321, where Justice Isaacs noted that:

Sec. 79 is based on sec. 721 of the United States Revised Statutes -

originally enacted as section 34 of the Judiciary Act of 1789, so there was a fairly early start in the United States, and we refer to the modern day equivalent to the United States' code, which we attach. And, your Honour, our note is that this provision has always been regarded by the Supreme Court as picking up State limitation statutes and applying them to matters in federal jurisdiction in the absence of a federal statute governing the matter. Your Honour, without taking you to the three cases attached, we note the historical continuity of this approach, so there would seem to be a conformity of approach that we refer to there.

Your Honours, what I have just submitted since luncheon adjournment is really confirmed briefly by paragraphs 4.14, 4.15 of our submissions, pages 29 and 30. We then go on and finish this part of our submissions by applying what we say is a correct construction of section 79 to the circumstances of Mewett and Rock and Brandon. Now, I think I have anticipated the submissions I have made hitherto, so if I could indicate to the Court that paragraph 4.16 to 4.20 confirms the route whereby we say the New South Wales Act applies, and reaches the result at the conclusion at 4.20 that we say that the Mewett's claim was statute barred under the Victorian Act on 1 December 1988; so Georgiadis, if it remains, applies.

Rock and Brandon we have already referred to in discussion, and the route there involves going through section 79 again, and we submit, as I noted, your Honour, on the basis of common ground and the analysis in the judgments below referred to in footnote 80, that, your Honour, it is the New South Wales Act that will apply.

TOOHEY J: And the reason for that, Mr Solicitor?

MR GRIFFITH: Your Honour, because to get to section 79 you have to apply Australian law, because there is no State law applying because it is off shore, and what we say is, your Honour, section 79 of the Judiciary Act would say because the action is in New South Wales, one would apply the New South Wales law.

TOOHEY J: What do you mean by "in New South Wales"?

MR GRIFFITH: Your Honour, these Rock and Brandon actions are proceeding in the Federal Court, Sydney Registry, and we say that, through section 79, means the limitation - - -

TOOHEY J: Is it because those actions were commenced in the Sydney Registry of the Federal Court or because that is where the litigation has been conducted?

MR GRIFFITH: I think they were commenced in the Registry of the High Court, your Honour, in the Sydney Registry of the High Court and then remitted. But it is because they are in Sydney, your Honour, and this is the issue that one must characterise where are the proceedings for the purpose of the operation of section 79. Really until this level, your Honour, it was common ground it was New South Wales, but we say even in dispute through the line of argument we have made, our submission is it is still New South Wales.

TOOHEY J: I just have a bit of trouble - and it may be just a semantic difficulty - with the way in which you are putting section 79. You appear to be saying, "Is there a court exercising federal jurisdiction? If there is, ergo section 79 applies." You search for the State or Territory in which that jurisdiction is being exercised and you may have to apply some reasonably rough and ready rules in order to determine that.

MR GRIFFITH: Mostly not, but sometimes, your Honour.

TOOHEY J: But I suppose if you take section 79 literally, it is not courts exercising federal jurisdiction, it is courts exercising federal jurisdiction in a State or Territory. In other words, you have to determine whether the court exercising federal jurisdiction is exercising it in a particular State before section 79 comes into operation. As I say, it may be just semantic but your argument seems to suggest, "As long as you have a court exercising federal jurisdiction section 79 is operative and thereafter it is a search, as it were, for where the court is exercising that jurisdiction." What I suppose I am putting to you is that you really have to determine that second question first in order to say whether section 79 operates at all.

MR GRIFFITH: Your Honours, as long as one does not get to the position one says, "There is an action in a court but it is not in any court which is exercising federal or State jurisdiction in any State or Territory." One cannot disconnect the operation of the scheme of the Judiciary Act, we submit, your Honour, from what is obviously its intended operation to provide for a court with jurisdiction through section 56, the appropriate court. That might be interfered with by, for example, the cross-vesting laws, but that is the scheme as modified, then to provide a choice of law provision, which is section 79.

We would submit, your Honour, whether one comes into the circle at the point that we postulate or your Honour says, "There is an anterior issue," in our submission, your Honour, the Court must, in analysing the basis of jurisdiction of a court in respect of claims of contract and tort, the analysis must get to a position where one can identify the court which is exercising federal jurisdiction - - -

TOOHEY J: The only point of difference may be that if you approach it in the way in which I have suggested - I am not saying that is the correct way, but if you do approach it in that way it may have a more ambulatory operation than the way in which you are putting it.

MR GRIFFITH: Your Honour, we do not resist the possibility of an ambulatory operation although, with limitation periods, our basic approach is to say, your Honour, that is a threshold issue that should be fixed by reference to some jurisdiction and, once determined, be resolved for the purposes of the case finally, but our underlying point is that however it operates, one result is clear that in picking up and applying laws to actions against the Crown in contract and in tort as facilitated by the Judiciary Act, what is picked up amongst the other operations of State or territory laws are laws of limitation. So, we could accept your Honour's approach with the result that, nonetheless, in each and every case where there is an exercise of federal jurisdiction involving a claim against the Crown in the right of the Commonwealth facilitated by the Judiciary Act there is a relevant law of a State or territory which, by operation of a law of the Commonwealth, is applied as a law of the Commonwealth much like the Commonwealth Places Act to that action.

We cavil, your Honour, at any suggestion that one can come an indirect route, or, in the case of courts which are not State or territory courts, to, as it were, pick up the good bits or the rules, the substantive laws of liability or the rules of procedure, and relieve oneself of the burdensome part which we say is an integral part of the administration of any system of civil law, namely, the application of a relevant scheme of limitation. All States have one, all territories. They are not - some are better than others, some are more complicated, but, nonetheless, we say the scheme is that the correct and relevant limitation period is picked up. The fact, as we do in part 5 here, have a somewhat complicated argument as to what is picked up, how does it operate. Is it merely working through that result, but, in our submission, it does not at all have any relevance to an assertion that, in effect, one gets a free shot at the Commonwealth - the Crown in right of the Commonwealth in federal jurisdiction. That is the untenable part of the proposition which we seek to resist.

Your Honours, I indicated that Mr Gageler would deal with the matter which was the principal issue on which special leave to appeal was granted and which originally came on in September. That is dealt with in part 5 of our submission. Should I indicate that the orders which we would propose are summarised in part 6 of our submissions on page 45.

As to costs, I have already indicated to the Court on special leave that, as below, the appellants agreed to pay the respondents' costs. I do not know whether a costs order really is necessary although we are prepared to submit to one under paragraph 6.3, but, I should make it clear that that agreement is limited to two counsel, not three. For the purposes of the Commonwealth's offer as to costs, we take the view no order is necessary because we are prepared to pay the costs of the respondent here limited to two counsel.

BRENNAN CJ: Do you need an order in order that there can be a taxation?

MR GRIFFITH: I expect it to be agreed, your Honour. I do not think we need an order and if a problem happened that I regarded - I think down below, your Honour, costs were readily agreed and paid even before the special leave. So I think there is an amiability between the parties on that aspect, if not on the constitutional aspects. Mr Gageler then will deal with part 5, your Honours.

BRENNAN CJ: Mr Gageler.

MR GAGELER: Your Honours, following the order of our written submissions, I propose to deal first with the matters of Rock and Brandon and then to deal separately, and somewhat more briefly, with the matter of Mewett. Rock and Brandon raise identical issues and involve a consideration of the New South Wales Limitation Act. Mewett, on the other hand, involves a consideration of the Victorian Limitation of Actions Act.

Dealing then with Rock and Brandon, may I remind your Honours of some of the key dates; there are four of them. The first is 22 October 1985 which is the date of the alleged injuries and the date of the accrual of any cause of action of the plaintiffs. The second is 1 December 1988 which is the date of the commencement of the Commonwealth Safety Rehabilitation and Compensation Act. The third is 22 October 1991 which was the date of the expiration of the six year limitation period imposed under section 14 of the New South Wales Act, and the fourth and final date is 20 June 1994 which is the date of the commencement of the proceedings in the High Court and of their remitter to the Federal Court. Both of those events occurred on the same day.

So, your Honours, for relevant purposes, both cases involve the expiration of a limitation period under the New South Wales Act after the commencement of the Commonwealth Act but before the commencement of proceedings in this Court which were then remitted to the Federal Court. The Commonwealth, in its defences in both matters, has raised both the New South Wales Limitation Act and section 44 of the Commonwealth Compensation Act and the - - -

GUMMOW J: Just before you leave that question of dates, Mr Gageler, a crucial date, in a way, is the commencement of the Choice of Law (Limitation of Periods) Act , is it not, which is stated not to apply to proceedings instituted before the commencement of the Act but to apply to causes of action which arose before the commencement of the Act?

MR GAGELER: Yes. I had not seen that as being - - -

GUMMOW J: That was assented to on 30 November 1993.

MR GAGELER: Your Honour, that may be a crucial date in the Mewett matter. May I take that on notice and come to that?

GUMMOW J: Yes, all right.

MR GAGELER: That Act is not relevant for the purposes of the Rock and Brandon matters. Your Honours, I was about to say that the plaintiffs in both Rock and Brandon have applied for an extension of time in which to bring the proceedings and that extension of time application is one which is made under section 60G of the New South Wales Limitation Act 1969 . Your Honours will see that, for example, in the matter of Rock in the appeal book at pages 162 and 164. There is a slight complication which I should explain to your Honours. The applications that your Honours will see at those pages are dated 31 August 1993.

KIRBY J: I thought I read in the respondents' submissions that we are to proceed on the basis that the applications would succeed or that it was conceded that for the purpose of the argument in this Court that they would succeed. Is that a correct recollection or not?

MR GAGELER: I am not sure, your Honour. Again, for present purposes there is no need to make such an assumption, but it is sufficient I think for the purposes of dealing with the arguments of both sides that your Honours note that such an application has been made.

DAWSON J: It has not come on for hearing yet?

MR GAGELER: No. This is a case that comes to this Court by way of an appeal from a strike-out application and also to answer a separate question.

DAWSON J: So this was left in abeyance?

MR GAGELER: Yes, your Honour.

BRENNAN CJ: What is the section that deals with extension of time?

MR GAGELER: Section 60G. Your Honour, I am about to come to the New South Wales Act. I am simply mapping out the course of events. I was pointing out that the application is dated 31 August 1993 and it was made in other proceedings but by agreement the application under section 60G in each case has been treated by the parties as if made in these proceedings.

KIRBY J: The reference is at paragraph 1.1.5 in the respondents' submission where it is said:

Those applications have not been determined, but the present proceedings have been conducted on the assumption that, if their causes of action are not otherwise extinguished -

they are proper cases for extension?

MR GAGELER: Your Honour, there is no concession on our part to that effect.

KIRBY J: I do not think it is said to be a concession. It is said that that is the basis on which the proceedings have been conducted.

MR GAGELER: Your Honour, it does not play any part in my argument whether or not that is the case. It is sufficient that such an application has been made and that it is possible that an order could be made under section 60G if that section is appropriate.

Your Honours, may I then come to the relevant provisions of the New South Wales Act? The Court has been provided with a copy of the Act I believe as reprinted as at 12 September 1991. It was further amended by Act No. 46 of 1993. The details of that are set out in the judgment of Justice Lindgren at pages 353 and 354 of the appeal book and it is not necessary for your Honours to have regard to the Act as so amended for the purposes of considering the argument.

Your Honours, there are five provisions in the Act which are of central importance in the case. Those are sections 14, 60G, 61, 63 and 68A. May I take your Honours briefly through the Act putting those provisions in their context? In Part 2 of the Act commencing at page 8 of the print, your Honours will see that the part is headed, "Periods of Limitation and Related Matters". Section 12 is preliminary and says that:

The provisions of this Part have effect subject to the provisions of Part 3.

Section 14 is then in a familiar form. It is a procedural limitation period provision which has traditionally been interpreted as a provision which bars the remedy without baring the right, and it relevantly, in paragraphs (a) and (b), imposes a six year limitation period for the causes of action pleaded by Rock and Brandon. Then Part 3 commences at page 24 of the print, and your Honours will see that section 51 imposes an ultimate bar of 30 years. There are then numerous provisions, the details of which I need not trouble your Honours with.

Division 3 of Part 3 begins at page 30. It deals specifically with personal injury cases. There are numerous provisions within Division 3 which allow for extension of time on various grounds. Your Honours may note that one of those provisions is section 58 which is referred to in some cases to which I will take the Court. Subdivision 3, which is at page 36, is the subdivision under which the present applications were brought. Section 60F is introductory, section 60G is the operative provision.

TOOHEY J: Mr Gageler, what makes section 60G operative in these cases?

MR GAGELER: Your Honours, it is clause 4 of Schedule 5 - - -

TOOHEY J: We are back in the area of those workers compensation cases, are we?

MR GAGELER: Yes. I was not going to dwell on these because, I think at least in two recent cases, the Court has had to look at the details of the transitional provisions.

TOOHEY J: It is common ground, is it not, that the operation of the Act, including the schedule, makes the provision for extension applicable in these cases?

MR GAGELER: That is right, your Honour. And the details of the legislative scheme to that level are set out fully in the judgment of Justice Lindgren. So, section 60G is the operative provision, which is a discretionary power in the Court to order that the limitation period be extended. It is to be exercised by reference to the criteria set out in section 60I. Then subdivision 4, commencing with section 60K at page 38 contains a number of relevant provisions. Section 60K itself provides:

If a court orders the extension of a limitation period for a cause of action under Subdivision 2 or 3, the limitation period is accordingly extended for -

various purposes. Section 60M provides that:

Applications and orders may be made under Subdivision 2 or 3 as if Division 1 of Part 4 -

to which I will come in a moment -

had never been in force.

And that:

An order for the extension of a limitation period, and an application for such an order, may be made under Subdivision 2 or 3 even though the limitation period has already expired.

which is this case. And section 61 then provides:

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 this Act.

Then, your Honours, the critical provision for present purposes is section 63, under Division 1 of Part 4, and it provides that:

on the expiration of a limitation period fixed by or under this Act for a cause of action to recover any debt damages or other money, the right and title of the person formerly having the cause of action to the debt damages or other money is, as against the person against whom the cause of action formerly lay and as against his successors, extinguished.

So, it is section 63 which makes the New South Wales Limitation Act different from the traditional form of Limitation Act and gives the expiration of a limitation period a substantive effect. Section 68A requires the party claiming the benefit of a limitation period to do so by pleading the limitation period.

Your Honours, the argument of the Commonwealth in the Rock and Brandon matters really comes down to this; on the expiration of the six year limitation period on 22 October 1991, the plaintiffs' causes of action ceased to exist. If they did not cease to exist, then at least, we say in the alternative, they ceased to be property for constitutional purposes. There was, therefore, on and from that date - 22 October 1991 - no impediment to the operation of section 44 of the Commonwealth Compensation Act which - - -

GUMMOW J: When would have been the last date for seeking an extension?

MR GAGELER: Under section 60G, your Honour?

GUMMOW J: Yes. When did the time for that expire? In other words, when can the defendant at last know the defendant is not at risk an order for an extension being made? Does that appear clearly?

MR GAGELER: It is the three-year period referred to in section 60I. It is three years after the plaintiff - your Honour will see section 60I(1)(b), "3 years after the plaintiff became aware" of the matters set out in (a) and according to the plaintiffs' case in the matter of Rock that awareness arose in July 1992, and your Honour will get that from page 172 of the appeal book. And in the matter of Brandon the awareness is said to have arisen in October 1989, and your Honours will get that from page 260 of the appeal book.

So, your Honours, the point I was making was that section 44 then, on - if either version of the first argument presented is accepted - and I will elaborate those arguments - section 44 provided, and was capable of providing without constitutional impediment, that no action shall lie against the Commonwealth. In those circumstances, the discretionary extension of time under section 60G of the New South Wales Limitation Act was not available because if it were available it would be directly inconsistent with the operation of section 44 of the Commonwealth Act. And it would - - -

DAWSON J: Why could not the right to apply for an extension of time constitute a property right?

MR GAGELER: Because it is merely a personal right to approach the Court under a statute for the Court then to exercise its discretion. It is not - - -

DAWSON J: It must be allied with the cause of action, which is a property right.

MR GAGELER: Your Honour, the cause of action - and I will come to this - your Honour will recall, has been extinguished at this stage.

DAWSON J: Subject to an extension of time.

MR GAGELER: Yes. I will deal with that.

GUMMOW J: That is the whole question.

MR GAGELER: That is the question to which I am coming, Your Honours. I was mapping out the way I am going before coming to each of the steps. If I can come to that step now, the ceased to exist argument. It is an argument, Your Honours, which relies simply and solely on the proper construction of the New South Wales Limitation Act.

DAWSON J: And you have a contingent extinguishment of the cause of action?

MR GAGELER: I say no, your Honour. That is what the Federal Court said. Your Honour, the two views come down to this. We say there can be no contingent extinction. That is not what section 63 says. It says "extinguished" and there may or may not be a revival or resurrection of the cause of action by reason of a subsequent order made under section 60G, but in the interim the cause of action is dead, it ceased to exist.

DAWSON J: You can have a contingent cause of action contingent upon an extension of time. I mean, one looks at it sensibly and says, "All is not lost at this point."

MR GAGELER: All is not lost, but the question is, is what remains anything other than a separate right to approach the Court to revive something that is dead or if it can be characterised in some other way, does it rise to the level of property for constitutional purposes? Your Honour, I am addressing at this point - - -

DAWSON J: Is the right to apply for an extension of time a chose in action?

MR GAGELER: No, it is a personal statutory right to make an application which any one at all can exercise. Your Honours, I was saying that this argument involves principally giving section 63 of the New South Wales Limitation Act what we say is its ordinary and literal meaning. It involves giving full force to two aspects of section 63. The section refers to what occurs on the expiration of a limitation period, expire under the Act, and we say that that includes the expiration of a limitation period under section 14 of the Act. The cause of action shall be extinguished, and, again, we say that means exactly what it says, extinguished, ceased to exist, completely dead.

DAWSON J: Well, it is not completely dead because it can be revived.

MR GAGELER: Well, your Honour, death and resurrection is what I am talking about as opposed to what is described in our learned friend's written submissions as suspended animation.

KIRBY J: There should be some theological books to help us with this.

MR GAGELER: Your Honour, we say we have historical precedent more firmly on our side, including judgments of the New South Wales Court of Appeal to which I wish to come.

McHUGH J: None of Justice Kirby's though, I do not think. None of the judgments of the Court of Appeal in Justice Kirby.

MR GAGELER: We are hoping to add to them, your Honour. The judgments of the Court of Appeal to which I wish to take the Court are those referred to footnote 87 at page 36 of our written submissions and they are all relatively brief passages. The first is in Proctor v Jetway Aviation Pty Limited (1984) 1 NSWLR 166. The case was concerned with the power of the Court to allow an amendment after the expiration of a limitation period under another Act but there is relevant dicta at page 174 in the judgment of President Moffitt beginning just after letter B. In the first sentence his Honour referred to the Limitation Act and continued:

That Act brought into one Act in relation to the great bulk of civil litigation a codified pattern of time limitation which would minimise confusion. At the same time it provided for extensions of the time limitation in defined circumstances. It dealt with the consequence of the expiry of the limitation period in a way different to that provided by earlier general statutes providing for time limitation of actions. By section 63(1) the cause of action was extinguished upon the expiry of the time limitation. However, this did not prevent the making of provision that in some cases the period of limitation could be extended ever after the period had expired, so that by force of statute a cause of action which then no longer existed could by operation of a judicial order be made to exist again......This is a legislative acknowledgment that an extinct cause of action could be "resurrected" by an appropriate legislative provision.

GUMMOW J: That is just assertion, Mr Gageler.

MR GAGELER: Your Honour, that is the view of Mr Justice Moffitt of the proper construction.

GUMMOW J: I realise that but he sets out the substance of the sections and then asserts that is the conclusion by using the word "resurrection".

MR GAGELER: Your Honour, I hope that by taking your Honour to the language of section 63 - - -

GUMMOW J: What it does not do is answer the proposition that there was always this contingency attached. It just does not consider that argument.

KIRBY J: There must be something there, just a thin little thread, a tiny possibility that still exists, in order that the law can subsequently act upon it.

MR GAGELER: Your Honour, the legislature of New South Wales has said, in our submission, it ceases. The cause of action ceases to exist for all purposes. The same legislature has said, "Even though we've said it ceases to exist, you can come along and in some circumstances we'll allow what has ceased to exist, what is dead, to be revived and resurrected". Your Honour, there is a gloss on section 63 to say that because there is the contingency allowed for by the existence of the statutory right, that the thing that the statute has said ceases to exist does not really cease to exist.

DAWSON J: But it leaves you with something else. Why is a right to apply for an extension of time any more or less a mere personal right of action than the claim in tort?

MR GAGELER: Your Honour, this is probably shading into the second way in which I wish to put the case and I will take your Honour - - -

DAWSON J: I am sorry, I am getting - - -

MR GAGELER: But just to anticipate, I will take your Honour to Ainsworth's Case - not Ainsworth in this Court but Ainsworth in the House of Lords - which has been picked up in this Court in a number of judgments as a description of what constitutes property and has been said to be applicable to the determination of what constitutes property for constitutional purposes. It will be my submission that a right, whether it be one which exists under the general law or under a statute, simply to approach the Court for a discretionary exercise of judicial power does not constitute property for the purposes of section 51(xxxi).

DAWSON J: So it is the discretion which is the distinguishing feature?

MR GAGELER: Yes, your Honour, because the thing cannot be asserted as of right.

McHUGH J: But it is more than the fact that it is discretionary, is it not?

MR GAGELER: Yes.

McHUGH J: It is because it is not cashable. There is no money at the end that you can exchange it for. It is not assignable.

MR GAGELER: Exactly, but that cannot be the entire criteria, the Court has told us in Georgiadis. My submissions on this part of the case must be couched on an acceptance of Georgiadis, but that is a powerful factor suggesting that it is not - - -

GUMMOW J: You can assign for value now such moneys as you might receive upon a successful extension application and a successful pursuit of the claim to judgment. It is true the right itself is not assignable but for value you can assign that future benefit coming from its pursuit.

MR GAGELER: Which is a separate thing.

McHUGH J: Altogether.

MR GAGELER: A separate thing altogether from the right for interest.

McHUGH J: It just gives you permission to start an action in the court.

MR GAGELER: Yes, nothing more.

KIRBY J: But it is not an action in vacuo; it is an action which is an action on the cause of action that you say is being totally extinguished.

MR GAGELER: Yes, that is exactly right and that does not make any difference to my argument.

KIRBY J: That reminds me of debates in the monastery.

McHUGH J: I did not know you were there.

MR GAGELER: I did point out the theological implications of the debate, your Honours. That is the first case. The second to which I wish to draw the Court's attention is Commonwealth of Australia v Dixon (1988) 13 NSWLR 601, in the judgment of Mr Justice Hope at page 609, opposite the letter C, your Honours will see in a lengthy passage, which is too long to read in its entirety. His Honour begins:

There remains for consideration the defence raised by the Commonwealth under the New South Wales Limitation Act, s 63.

In the next paragraph, his Honour says:

This provision is not procedural; it is clearly a substantive provision. It does not merely bar the bringing or maintenance of proceedings; it destroys the right. The fact that if proceedings are brought, s 68A requires the statutory extension to be pleaded or otherwise appropriately claimed does not in my opinion change its substantive character.

Then, picking up part way through the next paragraph beginning the letter G, there is a reference to section 14, and his Honour makes the point that the limitation period referred to in section 63 is the limitation period in section 14. And just after the letter G, there is a passage that begins - towards the right-hand side of the page - and his Honour says:

It may be extended by or under the provisions of the Act, but subject to any such extension, that is the relevant limitation period. One somewhat anomalous result, if the limitation period were to be extended pursuant to the provisions of Div 3 of Pt III of the Act, is that the plaintiff's right may be extinguished and then revived. Section 58(3) enables an application to extend the limitation period to be made after that period has expired. However s 61 provides that where, after the expiration of a limitation period to which Div 3 applies the limitation period is extended by order under that Division, the prior expiration of the limitation period has no effect for the purposes of the Act. Anomalous though it may be, it is apparent that where the limitation period is extended by order made after the expiration of the limitation period the earlier extinguishment of the right is annulled, and the right is to be treated as though it had never been extinguished at some earlier point of time.

So, in a slightly more considered way, perhaps, his Honour Justice Hope is reinforcing what might have been dismissed as merely assertion by Mr Justice Moffitt, and Mr Justice Samuels agreed, at page 612, letter G.

Then, your Honours, in a third of the cases the matter was taken a little further; that is, Merton Enterprises Pty Limited v Nelson, (1988) 13 NSWLR 454. This is a case in which your Honour Justice McHugh participated. The question before the court was whether an order extending time under section 58 of the Act should be treated as a final order or an interlocutory order, and the court held that it should be treated as an interlocutory order. Your Honours, at page 456, just after letter E, after setting out the relevant provisions the court said:

It seems that when a court orders the limitation period to be extended under s 58(2), the limitation period as extended itself becomes a limitation period fixed by or under the Act within the meaning of those words in s 63(1). On this view, what happens when a person claiming to have a cause of action founded on negligence or breach of duty allows more than six years to pass from the date on which the claimed cause of action first accrued (see s 14(1)) without action brought on the cause of action, is that the right and title of the person formerly having the claimed cause of action is extinguished by s 63. If the person then makes application under s 58(2) for an order extending the limitation period, and such an order is then made, then the limitation period fixed by or under the Act is extended and a proceeding then brought on the claimed cause of action within the extended period is not caught by s 63(1).

Your Honours, the court, including your Honour Justice McHugh, then go on to explain at page 457 that what is revived, or resurrected, is, in fact - well, in law - the same cause of action. Opposite the letter C at page 457 the court said:

Retrospectively, the extinction worked by the section in the period between the end of the six years fixed by s 14 and the date of the court order, must be regarded as either never having occurred, or, no longer being of any legal significance.

So that line of cases, in our submission, supports what we put forward as the literal construction of section 63, that is, that at the expiration of the six year limitation period, if no application for an extension of time has been made, section 63 extinguishes the causes of action. If a successful application is later made for an extension of time, then section 61 eliminates that extinction and the cause of action which was once dead becomes resurrected, but in the interim between those two points, there is no cause of action.

Your Honours, the contrary view, which I have described as the suspended animation theory, is that which was taken by the Federal Court in this case, and that is that although section 63 says "extinguished", it is not a true extinguishment until two conditions are satisfied, that is, the benefit of the extinction is claimed in the proceedings under section 68A and the time within which an extension of time may be applied for has passed, and that was the view taken by Justice Lindgren at pages 375 to 376 of the appeal book and Justice Cooper with whom Justice Spender agreed at page 331 of the appeal book. In our submission, your Honours, that is simply an unwarranted gloss on the language of section 63.

GUMMOW J: But it is construing the Act as a whole.

MR GAGELER: Your Honour, construing the Act as a whole does not make any difference, in our submission, and the reason is that it is equally open to the legislature of New South Wales consistently with the scheme of the Act to destroy and resurrect as to hold something in suspended animation. So putting section 63 properly in context does not assist with the construction one way or the other and the literal words of the section should be given their ordinary and natural meaning

McHUGH J: Section 60G was added after 63 and, by virtue of the schedules, among other things, it applied to actions which, on any view, were extinguished before 60G came in and then it picked those up and gave them a new lease of life. So in respect of those actions at least, there cannot be any doubt that it has given a whole new lease of life to something that just did not exist.

MR GAGELER: Yes, your Honour. So the legislative history assists our argument. Your Honours, the alternative argument which I foreshadowed is that if the cause of action, in some way, continues to exist, notwithstanding the literal words of section 63, then the form in which it has continued to exist is one which ceases to have the character of property for the purposes of section 51(xxxi). That argument involves a consideration of the meaning of "property" for constitutional purposes and also involves a consideration of the nature of a statute barred cause of action which is subject to a discretionary power of extension, if I can take it in those two stages, the first being the constitutional conception of property.

Your Honours, at paragraph 5.22 of our submissions we have set out some relevant quotations. The first is from Your Honours Justices Dawson and Toohey's judgment in Australian Tape Manufacturers, where your Honour said:

Whilst the word `property' in section 51(xxxi) is to be construed liberally so that it extends to `anomalous and innominate interests', for the paragraph to apply it must be possible to identify an acquisition of something of a proprietary nature.

And to similar effect is what your Honours said in Mutual Pools 179 CLR, at pages 200 to 201. Then lower down in the same paragraph we have set out the passage from the judgment of Lord Wilberforce in National Provincial Bank Limited v Ainsworth, which has been picked up in judgments of this Court first at Justice Mason in the Meneling Station Case referred to in footnote 96, and then by your Honour the Chief Justice in Australian Capital Television Pty Ltd v The Commonwealth, and your Honours put this forward as providing some guidance to the constitutional meaning of the word "property".

Unfortunately Ainsworth's Case is not one which we put on our list of authorities, but may I simply point out this, that the case concerned a deserted wife's right in a matrimonial home and the question was whether that was an overriding interest within the meaning of the Land Registration Act of the United Kingdom, and the House of Lords held that it was not because it did not have a proprietary character. What the wife had was a right to approach the court under section 17 of the Married Women's Property Act - if I can just point out that that is referred to in the report at page 1245 - for the court to exercise a discretionary judgment. That was held by the House of Lords not to constitute property for the purposes of the registration provisions. Immediately before the passage set out in paragraph 5.22 of our submissions, which is a passage picked up by your Honour the Chief Justice and applied in the Australian Capital Television Case, Lord Wilberforce said this, after referring to the discretionary considerations to be brought to bear:

The conclusion emerges to my mind very clearly from this that the wife's rights, as regards the occupation of her husband's property, are essentially of a personal kind: personal in the sense that a decision can only be reached on the basis of considerations essentially dependent on the mutual claims of husband and wife as spouses and as the result of a broad weighing of circumstances and merit. Moreover, these rights are at no time definitive, they are provisional and subject to review at any time according as changes take place in the material circumstances and conduct of the parties.

Lord Wilberforce then said:

On any division, then, which is to be made between property rights on the one hand, and personal rights on the other hand, however broad or penumbral the separating band between these two kinds of rights may be, there can be little doubt that the wife's rights fall.

It is immediately after that sentence that there appears the sentence quoted. That sentence quoted requires, amongst other things, that for a right to be categorised as property it has to have some degree of permanence or stability.

In our submission, this is what lies behind the language employed in the majority judgment in Georgiadis of a vested cause of action. It is a vested cause of action as distinct from a cause of action which is in some way contingent and this difference between something which is enforceable as of right and something which is enforceable only in the event of a contingency which may or may not occur.

TOOHEY J: It is the sort of inference which would be subject to the protection of section 8 of the Acts Interpretation Act 1969 , though, would it not? There are some cases, I think, the New South Wales Aboriginal Land Council case and - - -

MR GAGELER: Yes, your Honour, there are some cases that deal with the modification of a limitation period. Your Honour, there are some cases which deal with the modification of a limitation period after the expiration of the primary period of limitation but before the time for the application to the Court for a discretionary extension of time has expired.

TOOHEY J: The cases I was thinking of, Mr Gageler, were cases which dealt with the right to approach the Court in respect of some entitlement to pension or something of that sort which was altered before the matter reached a hearing.

MR GAGELER: Yes.

TOOHEY J: I think there were some decisions that suggest section 8 of the Acts Interpretation Act or its State counterpart might protect that sort of - I am using the word "interest" very loosely against "modification" or "elimination".

MR GAGELER: Yes.

GUMMOW J: They are construing the phrase "any right, privilege, obligation or liability requires".

MR GAGELER: Yes, which is a broader conception - - -

GUMMOW J: You say it is broader, do you?

MR GAGELER: - - - than property. Your Honours, the second aspect of this part of the argument is to consider the nature of a statute barred cause of action. Your Honours, it has been recognised on a number of occasions that even in relation to traditional procedural statutes of limitation which are said to bar the remedy and not to bar the right that, as a matter of substance, at least where there is a total barring of the remedy, there is an effective extinguishment of both the right and the liability, and the cases which support that view are referred to in footnote 93 at page 40 of our submissions.

I do not wish to take your Honours to each of those references but if I can simply pick up the first of them which is Deputy Commissioner of Taxation v Moorebank Pty Limited, 165 CLR 56, the Court held that section 64 of the Judiciary Act did not pick up and make applicable to actions for recovery brought by the Commissioner of Taxation certain provisions of the New South Wales Limitation Act and in the course of the judgment at pages 62 and 63 your Honours pick up the reasoning earlier applied in Dao. I simply point that out because Moorebank is relied upon for another aspect of my argument but, for relevant purposes at page 64 at the bottom of the page your Honours say:

It would be surprising if, within that general scheme -

that is a scheme of the taxation legislation -

there was room left for the application of whatever the laws of a particular State might provide in relation to barring an action to recover unpaid income tax or additional tax or, in the case of some States, in relation to extinguishing the underlying right and title of the prospective plaintiff in an action for recover of such taxes: cf., e.g., Limitation Act (N.S.W.), section 63(1). In that regard, it is relevant to note that it has long been recognized that to speak of even traditional limitation provisions as merely "procedural" or as "barring the remedy and not the right" is misleading in that such provisions will, at least in some circumstances, entail consequences which are substantive in that, by barring the remedy, they will effectively extinguish both rights and liabilities.

There is a reference to a judgment of Justice Cave in Hepburn's Case.

I will not take your Honours to Hepburn, nor will I take your Honours to the judgment of Justice Williams in Maxwell v Murphy where the same point is made with some force by reference to a number of earlier decisions. Your Honours, in our submission, where there is a cause of action for unliquidated damages which is finally barred then, even if that final bar occurs by a traditional procedural limitation statute, if something can be said to exist, what exists after the barring of the remedy cannot be described as property. It is not something that can in any sense be enjoyed as of right. If there is something there, if it is still correct to speak of a cause of action, then it is one which is completely sterilised and one which, when one looks at the substance of the matter, is effectively extinguished.

Your Honours, if that is right, then we also say that a cause of action which is barred but subject to a discretionary power of extension or renewal is still not property, again because it is something which cannot be enjoyed as of right. It lacks the necessary degree of permanence and stability referred to in Ainsworth. It is at best contingent rather than vested, to pick up the dichotomy which we seek to draw from the majority in Georgiadis, or to use - - -

GUMMOW J: When you say "as of right", what does that mean precisely, Mr Gageler, in terms of equitable interests? One theory says that they are never available as of right. It may be an extreme view, but that is one view. There is always the possibility of discretionary defences..... constitution of conceptual property, I am not sure.

MR GAGELER: No, I am not seeking to, and I am seeking to accommodate your Honour's concern. A cause of action to which there is a good and complete defence is not something which can be treated as property for constitutional purposes. I think I need to go that far, your Honour. I may have to consider that.

GUMMOW J: You see, what once would have been treated as equitable property rights are now transmuted into statutory rights, if you like, under a lor of modern legislation, the Family Law Act 1958 , for example, in dividing up property between former spouses which once would have been decided by Pettitt v Pettitt. and all of those cases and Australian .....now under section 76 and 79 of the Family Law Act and its very wide criteria.

MR GAGELER: Your Honour, I am much more comfortable with that because that is precisely the sort of right that was considered in Ainsworth's Case. It is a right to approach the court for a discretionary exercise of power. It can result in significant changes in proprietary rights. It is something which is of value but it is not property. I think I was having slightly more difficult - - -

GUMMOW J: I think I was.....more the constitutional conception.

MR GAGELER: No, your Honour, because the constitutional conception is undoubtedly wide and it has been said to be very wide on numerous occasions. The passages, particularly in the judgments of Justices Dawson and Toohey to which I referred, emphasise that it still is concerned with something which is proprietary in nature.

GUMMOW J: Take a trade secret, for example. You say that lacks the necessary stability because it is always subject to destruction because there may be a publication by a third party not bound by any equity restraining that third party from disclosing it.

MR GAGELER: Your Honour, it is something that can be enjoyed here and now. It is not something the enjoyment of which is contingent upon the happening of a future event. It may well be that a future event will destroy the property right which is currently enjoyed.

GUMMOW J: I just think the legal system as a whole has extraordinarily diverse and sophisticated notions of property and then overlaid that is the modern statutory regimes and then all of that has to be looked at as an evolving concept in the light of the Constitution which one would have thought accommodated these changes. What was property in 1900 is perhaps rather more rigidly seen in some respects than how it is seen now.

McHUGH J: There is an influential article I think in the Harvard Law Review by Reich called "The New Property" which is all about statutory rights and particularly welfare rights.

MR GAGELER: Your Honour, there is a very influential article by Michaelman in the Harvard Law Review and other places. He has written extensively on the meaning of "property". I have consulted those. I have looked at jurisprudential texts, I have looked extensively at property texts and, frankly, it is difficult to find any satisfactory working definition of the concept of "property" other than what has been identified in the judgments of this Court - that is Ainsworth and what was said by Lord Wilberforce in a relatively contemporary context.

McHUGH J: Yes, particularly in relation to causes of action even when they protect land or rights of trespass, rights to obtain injunctions in nuisance cases, for example. It is all very difficult to say that those causes of action are property in any - - -

MR GAGELER: Yes. Your Honour, it is part of my argument that there can be causes of action. You might even call them choses in action. I do not know if it makes any difference. But there will rights, or an ability to come before the Court to seek some sort of order, and that ability will not constitute property. That is precisely what was held in Ainsworth's Case. My exchange with Justice Gummow highlights the difficulties, and I do not - - -

GUMMOW J: I am just wondering if there is any modern right in the United States - I have a feeling there is - on the adaptation of their constitutional guarantee to various rights that relies on the state and federal laws.

McHUGH J: There is a great deal of it. I read most of the literature when I was doing those judgments in Georgiadis and Peverill.

MR GAGELER: Yes. Your Honour, it is always difficult to know, when looking at a foreign jurisdiction, if you have covered the field. But the great difficulty with looking at the United States' provisions is, although there is a takings clause, it referred - the taking clause itself, from memory, refers to "life, liberty and property," and that compendious expression has been given quite a penumbra in the cases, but it is overlayed by the due process clause, which has been given a particularly wide operation. So, quite often cases just do not get to the point of asking whether or not, "Is this property?"; they are dealt with on a much wider conception of the due process clause, which picks up things which are regarded as privileges. So, that is a difficulty with the US literature, your Honours, The cases there just do not seem to proceed on a definitional approach.

Your Honours, if I am correct in what I have been saying, then this point is reached; that is, that on 22 October 1991, at the expiration of the six year limitation period, the causes of action of Rock and Brandon either ceased to exist by operation of section 63, or, if they continued to exist, ceased to be property. There was then, on and from that date - 22 October 1991 - no reason why section 44 of the Commonwealth Act could not be given its full force. The section speaks continuously in the present, and it provides that an action does not lie against the Commonwealth.

In so far as it speaks prospectively and continuously in the present, then it cannot constitute an acquisition of property, consistently with what your Honours held in Victoria v The Commonwealth 70 ALJ 680 at page 732. I do not wish to take your Honours to that. In those circumstances, section 44 displaces section 60G of the Limitation Act because there would be a direct inconsistency in our submission between a Commonwealth law which says, "an action does not lie"-

GAUDRON J: That is where you must lose me, I am afraid, because if section 79 of the Judiciary Act is going to pick it up, surely it picks it up in its entirety. I do not see how come you then apply 109. It has picked it up as a law of the Commonwealth presumably?

MR GAGELER: Yes.

GAUDRON J: Why do we then look for inconsistency?

MR GAGELER: I will take your Honour to Moorebank in some more detail to deal with that precisely, but the argument is, and it is really an adaptation of what was said by the Court in Dao's Case and what was said by the Court in Moorebank's Case, that is that section 64 of the Judiciary Act - and to that we may add section 79 of the Judiciary Act - although they pick up State laws and apply them to the Commonwealth where the Commonwealth is a litigant before the Court, they do not pick up State laws to the extent to which those laws would be inconsistent with a valid Commonwealth law.

GAUDRON J: Then you do not pick them up at all, it seems to me, and you have no limitation action, no statute of limitation. I do not think you can pick them up in bits and pieces. That is the problem I have.

MR GAGELER: Your Honour, if your Honour is with me in relation to that first proposition, which I think is borne out from the cases to which I have referred, the question is, to what extent is the State legislation picked up or, putting the question conversely, to what extent would the State legislation be inconsistent with the Commonwealth legislation.

GAUDRON J: I do not see why you ask that question. Either it is inconsistent or it is not. You are talking about a legislative regime which you say is picked up, but it is inconsistent, so you only pick up bits of it. Once you cut out section 60G, you are not picking up the New South Wales law, you are picking up something different.

MR GAGELER: Yes, because the bit that I am not picking up is inconsistent with a valid law of the Commonwealth.

GAUDRON J: So I say you do not pick it up at all.

DAWSON J: You say there is nothing to pick up, essentially.

MR GAGELER: Essentially, your Honour, because it is inconsistent. New South Wales law is inconsistent, inoperative, therefore.

DAWSON J: It is inoperative so far as the Commonwealth.....- there is nothing to pick up.

MR GAGELER: Exactly.

GAUDRON J: And then we do not have a statute of limitations.

MR GAGELER: No, your Honour. What your Honour respectfully suggested doing is not considering section 60G of the New South Wales Act to be severable from the other parts of the Act. It is quite possible for - - -

GAUDRON J: Where in section 79 or in section 64 is there authority to start severing up the New South Wales Act that is picked up? There is certainly none in 64. If you are relying on 64, the citizen is going to get the whole of the Act. If you are relying on 79, I would be helped if you could tell me what about 79 authorises that severance.

MR GAGELER: Your Honours, can I come to Moorebank 165 CLR 62 and 63? Perhaps I should start there. Your Honour, what is said in relation to section 64 here must, in my submission, apply equally to section 79. No distinction was made in this judgment between section 64 and section 79, and if authority needs to be given for that proposition, then it can be found in the judgment of the Full Court of the Federal Court in a case called Manfal Holdings, the citation I will give to your Honours tomorrow. What is said at the bottom of page 62 is:

Although, in some respects, section 64 plays a pivotal role in the federal legal system, it is important to remember that the section enjoys no special authority among the statutes of the Commonwealth. It is neither a constitutional provision nor an entrenched law. Its authority is that of an Act of the Parliament which can be expressly or impliedly amended or repealed, either wholly or in part, by a subsequent Act and whose application or operation to or with respect to cases falling within the provisions of a subsequent Act will be excluded to the extent that such application or operation would be inconsistent with those subsequent statutory provisions.

Then there is a reference to Dao's Case where it is said:

this Court was at pains to stress that the provisions of s 64 of the Judiciary Act cannot properly be construed as intended indirectly to apply the provisions of a State law to circumstances where the direct application of the State law would be invalidated by operation of s 109 of the Constitution by reason of inconsistency with applicable provisions of a law of the Commonwealth.

Your Honour, all I am saying here is that as between section 44 of the Commonwealth Compensation Act and section 60G of the New South Wales Limitation Act, there is or would be a direct inconsistency. That is, you cannot at the same time give effect to a Commonwealth law which says an action does not lie and a State law which purports to authorise the resurrection and bringing of an action.

GUMMOW J: You have to get it out of the words "except as otherwise provided by the Constitution" in section 79, do you; the "otherwise provided" in section 109?

MR GAGELER: Yes, and that is the explanation given.

GAUDRON J: I follow all of that, but what I do not follow is that then 60G becomes severable in the New South Wales legislation. I do not see by what authority we rewrite the New South Wales legislation in part. I can see why you would not apply it at all but I do not see why you then pick up something which is not in fact, when picked up, by reason of your having severed something, is not the law of New South Wales. Once you drop section 60G out and pick up the remainder, you are not picking up the law of New South Wales.

MR GAGELER: Your Honour, may I say that is a section 109 case. The State law is invalid or inoperative to the extent of the inconsistency.

GAUDRON J: State law has no force or effect of its own. We are not worried about inconsistency at that level. It simply does not apply. It does not apply until - let us say it is section 79. Section 79 picks it up and makes it for practical purposes a Commonwealth law, but I do not find anything in section 79 which says you can pick up bits and pieces and leave behind that which you do not like.

MR GAGELER: Your Honour can find the part of section 79 that his Honour Justice Gummow referred to which makes it - - -

GAUDRON J: Yes, but you are picking up the laws. I know what it says but what I am suggesting is that you are not then picking up the New South Wales law.

MR GAGELER: To the extent to which the New South Wales law is inconsistent with a valid Commonwealth law or with the Constitution, that is exactly right.

GUMMOW J: But it is not inconsistent because it is not addressed to the same subject matter; that is what is being put to you.

MR GAGELER: I did not understand that being put, but if that is the point, then it is met by me pointing out that the argument which I am putting is an argument of direct inconsistency and not an argument that the Commonwealth law somehow covers the field - - -

GUMMOW J: Imputed inconsistency.

GAUDRON J: Yes. It is a different sort of inconsistency.

MR GAGELER: Your Honour, it is not a covering the field argument. It is an argument which says that you cannot obey both laws. You cannot have a Commonwealth law which says you cannot bring an action and a State law which says you can bring the same action.

GUMMOW J: What is being put to you is the State law does not presume to direct you. It will only presume to direct you in so far as it is picked up, that is the question, and there is an imputed inconsistency at that level; that is the problem.

MR GAGELER: Your Honour, imputed inconsistency I am prepared to accept, but the question is can the two laws stands given section 109 of the Constitution and, if not, then the State law is not picked up to that extent. There is an overlay of the constitutional question, section 109 and section 79. I do not know if I am fully come to grips with your Honours' questioning?

BRENNAN CJ: You do not put it on the basis of subsequent repeal, partial repeal by section 44?

MR GAGELER: No, because we are talking of the Acts of separate legislatures. I am sorry, your Honour, I do understand your Honour's question. Yes, it can be put in the same way. That is, that section 64 and 79 of the Judiciary Act give way to the later specific inconsistent statute of Commonwealth, yes.

TOOHEY J: Is that by reason of subsequent repeal or is that another way of looking at the words "except as otherwise provided by the Constitution or the laws of the Commonwealth"?

MR GAGELER: Your Honour, I prefer to put it in the latter way, that is, that section 79 contemplates that there may be other provisions which provide to the contrary. If necessary, I can put it in the way suggested by the question of the Chief Justice and that is that there is a later specific statute dealing with a particular subject matter which prevails over an earlier statute of general application.

GUMMOW J: That is Moorebank, it is not?

MR GAGELER: That is what I have been trying to say, yes.

GAUDRON J: Did Moorebank go on to say you could pick up a bit of it?

MR GAGELER: No, your Honour. There we are in the realms of ordinary section 109 cases and section 109 of the Constitution itself says that the State law is invalid to the extent of the inconsistency. It is quite possible to have a provision or a part of a provision of a State law invalid to the extent to which it is inconsistent with Commonwealth law. The question then becomes, of course, whether the State law is severable and, In my submission, section 60G - - -

GAUDRON J: I thought there were decisions on seciton 79 which said - admittedly you extended the operation, to that extent changed the operation of the State law, but you could not in applying section 79, in effect, rewrite the State law.

GUMMOW J: Is that not what Pedereon v Young and Owens - - -

MR GAGELER: Yes, but they were not concerned with the question now being addressed. They were not concerned with the Moorebank issue. They were just concerned with section 79 itself. Yes, section 79 picks up the entirety of State law. That has been the burden of the earlier part of our argument, but it only does so to the extent to which the State law is not inconsistent with the Constitution or a valid Commonwealth law. Your Honour, all I have been attempting to say is that here there would be an inconsistency between section 60G and section 44 and - - -

GUMMOW J: I think when you say "there is inconsistency" you have got to say "would be inconsistency" if picked up.

MR GAGELER: Yes. That brings me to Mewett, your Honours. In Mewett, may I again remind your Honours of the key dates. They are, first, 1 August 1979, which is the date of the alleged injury in Victoria; secondly, 31 August 1985, which is the date by which the cause of action would have become statute barred applying the six year limitation period applicable under Victorian law. The third date is again 1 December 1988, which is the commencement of the Commonwealth Act. The fourth is August 1990, which is the date upon which it is alleged that the plaintiff first became aware of the condition and that the condition was caused in some way by the Commonwealth. Your Honours can pick up that from the appeal book at pages 40, 44 and 370 to 371 and, finally, 20 June 1994, which is the date of the commencement of the proceedings in the High Court and remitted to the Federal Court.

So, your Honours, leaving aside the provisions for the extension or modification of the limitation period of six years, this was a case where the cause of action was statute barred at the time of the commencement of the Commonwealth Act on 1 December 1988, and it was statute barred by virtue of the Victorian Act, the Limitation of Actions Act which, on any view, is a traditional procedural statute.

I have given your Honours copies of that legislation and I do not wish to delay the Court by going through the detail of it. The relevant provisions are section 5. Section 5(1A) provides for the six year limitation period applicable in this case. (1A), which must be read with (1B) and (1C), provides for what might be called an automatic extension of the limitation period for six years from the date on which the person first knows the things set out in (a) and (b). Then the other relevant provision is section 23A which provides for a discretion to extend the time for the bringing of an action.

Your Honours, I can deal with Mewett very briefly by saying that, in our submission, it falls within the second of the alternative arguments which we advanced in relation to Rock and Brandon. If I can summarise it in this way; as of 31 August 1985 the plaintiff's cause of action did not cease to exist but it ceased to have the character of property, in our submission, because it ceased to be enforceable as of right and became contingent upon either the court granting an extension of time in the exercise of its discretion under section 23A or upon the occurrence of the events referred to in section 5(1A).

TOOHEY J: Is there anything about the events that would bring the matter within subsection (1A), Mr Gageler?

MR GAGELER: Yes, if the allegations of the plaintiff were to be accepted, then it would have been some time in August 1990 that the time referred to in subsection (1A) would have commenced to run.

TOOHEY J: I did not make myself clear. I was not thinking of the awareness, but of the reference in 5(1A) to:

damages in respect of personal injuries consisting of a disease or disorder.

MR GAGELER: Yes. Is your Honour asking me whether the alleged injuries here would fall with the description of "disease or disorder"?

TOOHEY J: Or whether they are alleged to be, yes.

MR GAGELER: Yes, they are capable - alleged, and capable of falling within that subsection.

TOOHEY J: Yes, thank you.

MR GAGELER: So, your Honours, the position on and from 1 December 1988, in our submission, is that section 44 of the Commonwealth Act validly operated to prevent this contingent cause of action from becoming a vested cause of action.

BRENNAN CJ: Why do you say it is a "contingent cause of action"? It is a cause of action which is vested. The question is whether or not there is some inhibition against the bringing of proceedings to enforce it, is that not right?

MR GAGELER: Well, your Honour is perhaps using the word "vested" in a particular way, and differently from the way that I was using it.

BRENNAN CJ: Let us put it to the test in terms of a discharge of a cause of action. If the Commonwealth had paid Mr Mewett $100,000 in consideration of Mr Mewett's agreeing to a discharge of the cause of action, would the Commonwealth have received consideration?

MR GAGELER: Yes, the Commonwealth will have received accord and satisfaction.

BRENNAN CJ: There would be accord and satisfaction, but there would be consideration for it. There would be consideration for the accord.

MR GAGELER: Yes.

BRENNAN CJ: And that because there is a cause of action available for sale.

MR GAGELER: That may be so, your Honour.

BRENNAN CJ: It is so, is it not?

MR GAGELER: It is so.

BRENNAN CJ: In other words, where there is a time limitation on a cause of action, it is not extinguished.

MR GAGELER: I was not seeking to say that it was.

BRENNAN CJ: Not seeking to suggestion that.

MR GAGELER: No, your Honour.

BRENNAN CJ: Then, if it is not extinguished, it exists, it is saleable - - -

MR GAGELER: Well, saleable in the sense that it can be the subject of a settlement.

BRENNAN CJ: A discharge for consideration.

MR GAGELER: Yes.

BRENNAN CJ: Why is it then not property?

MR GAGELER: Your Honour, it is a matter of drawing the line somewhere and, in our submission - and I accept it is a difficult submission - it is much more difficult than the New South Wales position - because what is said to be the cause of action or the right cannot, itself, be exercised as a right, that is, it cannot be brought to fruition without some contingency occurring, that it does not, at the relevant time - the relevant time being 1 December 1988, the date of commencement of the Commonwealth Act - rise to the level of property for the purposes - - -

BRENNAN CJ: But it could be brought and it would be contingent upon the defence being pleaded.

MR GAGELER: Your Honour, this may not be a completely satisfactory answer to what your Honour has put, but any action can be commenced in a court, whether it is the subject of a complete defence or not and whether - - -

BRENNAN CJ: Commenced and pursued to judgment.

MR GAGELER: There would be available, your Honour, a complete defence to the action. That is one which arises by virtue of the Limitation Act.

BRENNAN CJ: If pleaded.

MR GAGELER: If pleaded, yes.

BRENNAN CJ: So that the contingency is not attached to the cause of action but to the defence.

MR GAGELER: Your Honour, a right without a remedy is really not much of a right at all. If the remedy can be - - -

BRENNAN CJ: But there is a remedy. The remedy is an action for damages which sounds in damages and which we can result in a judgment for damages.

MR GAGELER: Yes.

McHUGH J: But its value as property comes from outside the fact that there is a cause of action, is it not, and the right exists only against a particular person.

MR GAGELER: Yes.

McHUGH J: But that person also has a right which cancels out the first right.

MR GAGELER: Yes.

McHUGH J: So the question then arises, can you describe as property something which may give you a prima facie action against somebody but that person has an equal right to destroy your right, to trump your right. So, I do not know, maybe you can, maybe you cannot describe it as property.

MR GAGELER: I have been attempting to describe it as not property, your Honour.

McHUGH J: Yes.

MR GAGELER: If I can take it further first thing tomorrow morning, I will, but subject to that I have completed my submissions.

BRENNAN CJ: We are concerned about the question of time. Mr Gageler, how much time do you need?

MR GAGELER: Your Honour, I have completed my submissions; there is just a matter of whether I can give a better answer to the point finally raised.

BRENNAN CJ: And that is the only point that is remaining?

MR GAGELER: Yes, and I do not say that I will come along with a better answer.

BRENNAN CJ: Very well, thank you, Mr Gageler. Mr Gyles, how long do you expect your argument to take?

MR GYLES: I would expect to finish probably reasonably soon after lunch would be my estimate, your Honour.

BRENNAN CJ: Yes. We will adjourn until 10.00 am tomorrow morning.

AT 4.21 PM THE MATTER WAS ADJOURNED

UNTIL WEDNESDAY, 12 FEBRUARY 1997