Colless v Colless B35/1995 [2001] HCATrans 667 (19 December 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B35 of 1995

B e t w e e n -

WILLIAM COLLESS

Applicant

and

VIVIAN COLLESS

Respondent

Application to remit

CALLINAN J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 19 DECEMBER 2001, AT 10.35 AM

Copyright in the High Court of Australia

MR J.A. McDOUGALL: May it please the Court, I appear for the applicant. (instructed by Murphy Schmidt Solicitors)

MR R.W. GOTTERSON, QC: May it please the Court, I appear for the respondent. (instructed by Thynne & Macartney Solicitors)

HIS HONOUR: Yes, Mr McDougall.

MR McDOUGALL: Yes, your Honour. Does your Honour have my outline of submissions?

HIS HONOUR: Yes, I do. Thank you, Mr McDougall.

MR McDOUGALL: That includes the material to be read this morning: the application and the affidavit of Matthew James Thurlow Craswell, filed on 4 October 2000.

HIS HONOUR: Let me just see if I understand the matter properly, Mr McDougall. The position is, is it not, that there seems to have been a misconception about compliance with the rules. I think Mr Gotterson's submission accepts that the six years had not elapsed - - -

MR McDOUGALL: Yes, that is so, your Honour.

HIS HONOUR: So that there is no issue about leave to proceed. Is that correct?

MR McDOUGALL: That is correct, your Honour.

HIS HONOUR: Is that so, Mr Gotterson?

MR GOTTERSON: It is, your Honour, yes.

HIS HONOUR: So the only question today is whether the matter should be remitted.

MR McDOUGALL: That is so, your Honour, under section 44 of the Judiciary Act.

HIS HONOUR: I will just ask Mr Gotterson something first, if you do not - - -

MR McDOUGALL: Yes, your Honour.

HIS HONOUR: Mr Gotterson, you do not have any application filed, do you, for any purpose? You are not seeking to strike out the matter or anything of that kind?

MR GOTTERSON: Not at this stage, your Honour. We would see events unfolding this way: we do make a submission that there should not be a remitter anywhere because of limitations defences prevailing, and that if not at this point, at some point in the future, about June next year, the six years would have elapsed, and it will put them in the position of having to apply at that stage for leave to proceed unless they have done something to advance the case. At this stage, there has not even been a statement of claim delivered in the proceedings.

HIS HONOUR: The proceedings are brought in the diversity jurisdiction, is it?

MR GOTTERSON: Yes, your Honour.

HIS HONOUR: And the case would be remitted in the ordinary course.

MR GOTTERSON: It would be. In our submission, it would not be to the court that they want it remitted to, the Supreme Court of New South Wales.

HIS HONOUR: That seems to me to be the only issue in the matter. I would be disinclined to let it lie here, Mr Gotterson, because, as you know, we do not entertain original jurisdiction cases under Chapter III.

MR GOTTERSON: I accept that, your Honour, yes.

HIS HONOUR: So I would remit it and even if the only issue were the application of the Limitations Act, there would still be, in theory, a trial of that issue - it is a triable issue. No doubt, it would be a very short issue. So on the basis that I would remit it, it seems to me the only question is to where should it be remitted?

MR GOTTERSON: Yes, that would become the question.

HIS HONOUR: Would you agree with that?

MR McDOUGALL: I would agree. We would much prefer to have the matter remitted to some jurisdiction so it could be disposed of more quickly than the manner in which Mr Gotterson proposes. We ask for New South Wales, but we have to, I suppose, roll over gracefully, in a way, in that any jurisdiction as proposed by my learned friend, namely, Queensland or the Northern Territory, would have the effect of bringing an end to the action, so we could then pursue the action that is on foot in the Supreme Court. That is now currently stayed by an order of his Honour Mr Justice Jones, pending - - -

HIS HONOUR: I see, his Honour stayed the Queensland action whilst this action was pending.

MR McDOUGALL: Yes, your Honour. Whilst we do ask for New South Wales, because that ostensibly gives us some hope in terms of the limitation period there being six years at the time, Pfeiffer v Rogerson probably puts an end to that argument in any event, and we recognise that.

HIS HONOUR: Well, I do not know. One thing occurred to me last night - I do not know whether it has any legs or not, but the extension provisions in New South Wales seem to be a little more generous than they are in some of the other States. The New South Wales courts, it seemed to me - I said something about this in Agar v Hyde - probably apply those provisions a little more generously than perhaps they are applied in other States. Whether there was an argument - and I do not think there is, but I do not know - whether the extension provisions are not matters of substantive law in the same way as the limitations provisions themselves. If that is so - and I think probably not, but if it is - it might give you an advantage in New South Wales.

MR McDOUGALL: Except, your Honour, that if it is remitted to New South Wales, the limitation period applying there at the time was in fact six years.

HIS HONOUR: But Rogerson probably knocks that out.

MR McDOUGALL: And that probably knocks it out, because they would have to apply the law of the Northern Territory, one would think.

HIS HONOUR: Well, what is your preferred position, Mr McDougall?

MR McDOUGALL: Your Honour, we would probably prefer it to be remitted to Queensland.

HIS HONOUR: Give them to me in descending order.

MR McDOUGALL: In descending order, I suppose Queensland would be the most - well, I suppose, in terms of the balance of convenience, Queensland would probably be the most appropriate, and then a defence under the Limitation Act would be filed. We would take certain steps and then be able to pursue the real action, namely, the one against the solicitors that has been stayed.

HIS HONOUR: Intuitively, one tends to think - I suppose that is the basis, to some extent, of Rogerson - of the place where the delict occurred. I will hear Mr Gotterson and see what he says.

MR McDOUGALL: I have nothing other than what is in my outline of submissions further, your Honour.

HIS HONOUR: Thank you. What do you think, Mr Gotterson?

MR GOTTERSON: Your Honour, strangely enough, perhaps, in descending order, we would put Queensland first. This is not a case where Pozniak would apply in that the substantive law differed or would differ, in which case you would go for where the tort occurred - according to it. Indeed, if the remitter went to the Supreme Court of Queensland or the Northern Territory or the New South Wales or, so far as the tort claim is concerned, would have to apply the Northern Territory Limitation Act, so the law is the same; then, looking to convenience matters - we have listed them in the submissions - the weight of them does favour Queensland. I did prepare, because it occurred to me, some short submissions dealing with the position of the Limitation Act and the contract claim. That, too, would favour Queensland. Can I hand these up to your Honour? I do not want to burden - - -

HIS HONOUR: I do not know. You seem to be in heated agreement about Queensland.

MR GOTTERSON: It would be the appropriate remitter court.

HIS HONOUR: I suppose you cannot cherry pick the limitations legislation, so parts of it are still procedural and other parts are substantive. I do not think you can, but - - -

MR GOTTERSON: If there is cherry picking, it might be this way. It would seem that under Rogerson, the tort, the limitation that must apply is Northern Territory - - -

HIS HONOUR: It was Northern Territory territorial water.

MR GOTTERSON: Yes, we are told that. Arguably, however, the proper law - that if they have a contract claim that is not well formulated, you do not know what is, really, but it seems to be based on this partnership agreement. It has a choice of law provision which makes Queensland the proper law of the contract. So, arguably, in regard to the contract claim, the law applicable anywhere in Australia is the limitation law of Queensland. But, of course, under it, personal injuries, whether negligence or whether - - -

HIS HONOUR: Contractual.

MR GOTTERSON: - - - contract, it is three years, so they are stuck with that. But things do point to Queensland, we would submit.

HIS HONOUR: Well, it seems that the only order I need make is that the matter be remitted to the Supreme Court of Queensland and that costs would be reserved. That would be appropriate, all costs be costs in the action, perhaps, or - - -

MR McDOUGALL: Probably costs in the action.

MR GOTTERSON: In the action, yes.

HIS HONOUR: Would that be - - -

MR GOTTERSON: Yes, that would be so.

HIS HONOUR: Is that the order you suggest I make, that the matter be remitted to the Supreme Court of Queensland and the costs in this Court be costs in the action?

MR McDOUGALL: Thank you, your Honour.

MR GOTTERSON: May I have it recorded, if your Honour pleases, that in making the submissions about the court for remitter, it is done without prejudice to any right that the respondent may have to plead any applicable limitations point.

HIS HONOUR: Yes. I would have thought that goes without saying that - - -

MR GOTTERSON: Thank you.

HIS HONOUR: - - - by advancing or submitting that Queensland is the appropriate jurisdiction, you are in no way resiling from any defences that you might have available, in any jurisdiction.

MR GOTTERSON: Thank you, your Honour.

MR McDOUGALL: Thank you, your Honour.

HIS HONOUR: All right. Nothing further, then?

MR GOTTERSON: No, your Honour.

AT 10.46 AM THE MATTER WAS CONCLUDED