|
|
Home
| Databases
| WorldLII
| Search
| Feedback
High Court of Australia Transcripts |
2005] HCATrans 119 
(9 March 2005)
2005] HCATrans 119 (9 March 2005)Last Updated: 14 March 2005
IN THE HIGH COURT OF AUSTRALIA
Office of the
Registry
Sydney No S420 of 2004
B e t w e e n -
AIR LINK PTY LIMITED
Appellant
and
MALCOLM IAN PATERSON
Respondent
Office of the Registry
Melbourne No M192 of 2004
B e t w e e n -
AGTRACK (NT) PTY LTD (TRADING AS SPRING AIR)
Appellant
and
ANN CHRISTINE HATFIELD
Respondent
GLEESON CJ
McHUGH J
GUMMOW J
KIRBY
J
HAYNE J
CALLINAN J
HEYDON
J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON WEDNESDAY, 9 MARCH 2005, AT 10.23 AM
(Continued from 8/3/05)
Copyright in the High Court of Australia
__________________
GLEESON CJ: Yes, Mr Jackson.
MR JACKSON: Thank you, your Honours. May I deal with a number of matters that were raised yesterday, and could I deal first with the question raised by your Honour Justice McHugh in relation to the operation of the definition sections of section 26(1).
Your Honours, the availability of relevant provisions as at the date of injury has proved a little difficult to obtain. Because of some revised views of the – by that I mean statutory changes to the Civil Aviation Act and so on – it is a little difficult to deal with the matter quite as expeditiously as I had hoped. Could I indicate, your Honours, what I mean by that. The definition of the “Air Navigation Regulations” in the concluding words of section 26(1) is a reference to the Air Navigation Act 1938 (NSW) and section 4. Section 4, in similar legislation in other States, applied to intrastate New South Wales travel, the Commonwealth regulations under the Air Navigation Act 1920. It did so by referring to the Air Navigation Regulations as they would apply in a Territory, so the same regulations applied.
Now, your Honours, those regulations are
in the Civil Aviation (Carriers’ Liability) Act 1959, section 26,
in the definitions of “airline licence” and “charter
licence” there referred to; that is, the Air Navigation
Regulations. You
will see that in the definition of “airline licence” the Air
Navigation Regulations are referred to
in the context of paragraph (a), “
an international airline licence”. Those licences are dealt with by the
Air Navigation Act 1920, section 12, which contemplates they will be
granted in accordance with the Air Navigation Regulations of section
12(1).
The current Air Navigation Regulations deal with international air licences in regulation 15, there is no difficulty in that regard. The current regulations refer also to the classification of aircraft as, for example, charter aircraft in regulation 5(2), and your Honours will see a reference, if I can go to section 26(1) of the Carriers’ Liability Act to the definition of “charter licence”, to speak of a charter licence “in force under the Air Navigation Regulations”. The current Air Navigation Regulations do not take one further in relation to the definition of “charter licence”, and that is a matter that needs to be further pursued. It is a little difficult at present to get the regulations as in force at the relevant time.
Your Honours, could I just say that you will
also see in paragraph (b) of the definition of “airline
licence” and paragraph
(b) of the definition of “charter
licence” that there is reference to:
An Air Operator’s Certificate in force under the Civil Aviation Act 1988 authorising charter operations –
Your Honours, under the Civil
Aviation Act, it is necessary to have air operators’ certificates for
carrying on aircraft operations, to put it shortly, in Australia,
and they are
issued under section 27 of the Civil Aviation Act. Your Honours, it
is at that point one gets into a little difficulty in trying to see precisely
where one goes from there as at
the relevant time, and so we would ask
your Honours that we be given some time to put the matter in writing for
your Honours and
for our learned friends. That is the first aspect, and I
am sorry we were not able to do that.
Your Honour
Justice Gummow asked about section 26(2) of the Act. That in the end
perhaps does not take the matter further so far as the present case is
concerned. What I mean by that
is that it says that:
For the purposes of this Part, where, by reason of a contract of charter or other contract between the holder of an airline licence or a charter licence and another person, persons or baggage are or is carried, or are or is to be carried, in an aircraft while it is being operated by the holder of the airline licence or charter licence, that contract shall be deemed to be a contract of carriage providing for that carriage.
It does not seem to go
further on the question of saying someone is deemed to have the licence. It
makes that assumption. That assumption
having been started from, it is carried
through to the actual carriage. I do not know that takes the case further than
otherwise
provided.
Your Honours, the third matter is the contract. The remainder of the ticket, if I can put it that way, is available. The whole ticket in fact is available now. My learned friend – I should say I have spoken to him about it. He does not object to it being put before the Court, although not accepting that the Court is entitled to see it, if I can put it that way. So there is no question of formality involved. We have given your Honours copies of it. The actual document has been provided. If I could just say, the reason why only the front of it was contained in the earlier documents was because the original solicitor who had the matter had only provided the front of it to our current solicitor.
CALLINAN J: Mr Jackson, I was just looking at it. The application of the Civil Aviation Act does not seem to depend upon the journey being an interstate journey. It seems to seek to invoke as part of the contract the provisions of that Act in respect of all travel within Australia.
MR JACKSON: Your Honour, the relevant part of it is the page - - -
CALLINAN J: We have “Domestic Travel – Australia and New Zealand – Limits of Liability”. That is what I was looking at. “Travel Wholly Within Australia”.
MR JACKSON: I am sorry, your Honour, I was just getting the page.
GLEESON CJ: It refers to the Act “or complementary State legislation”.
MR JACKSON: Yes, that is the one,
your Honour. What it does say - yes. What it simply says,
your Honours – it is the top of the page
that has a fax number
“05/06”:
Travel Wholly Within Australia: Carriage wholly within Commonwealth of Australia which is not international carriage as defined by the Warsaw Convention, is subject to the provisions of the Civil Aviation (Carriers’ Liability) Act 1959 as amended or complementary State legislation.
That is what it says, the ticket applies, whichever it happens to be. As I was submitting yesterday, on the one aircraft travelling between Cobar and Dubbo there may be people who fall within either category, ones to which either law might apply.
The point I was going to say about it, your Honours, was this. If one goes back, if I may, to the question of pleading that arose yesterday, the pleading of the ticket with its number showed that the carriage to which – sorry, your Honours, I will start again.
GUMMOW J: Just before you leave the ticket, Mr Jackson – I am sorry to interrupt you. Do you see “Additional Ticket Terms”?
MR JACKSON: I am sorry?
GUMMOW J: There is a page headed - - -
MR JACKSON: Yes the last page, your Honour, yes.
GUMMOW J: Term 8 may be important, “all other carriers used by Qantas to carry you”.
MR JACKSON: Yes. Your Honour, if one goes to item 4 on that “Additional Ticket Terms” you will see, “If Qantas issues a ticket for another carrier’s flight, Qantas does so only as an agent for that carrier.” You will see then that the terms of paragraph 8, to which your Honour has referred, reflect I think one of the provisions of either Act, and that is the provision which is section 33.
Your Honours, the point I was going to go to was that the pleading of the ticket with the number of the ticket showed, in our submission, that if one looked at the ticket, it could be seen that the carriage was carriage to which the Commonwealth rather than the State Act applied. Now, of course one had to look at the ticket to see that, but that is commonly so with documents which are not to be pleaded in full, and in that regard the requirements of the District Court Rules were relevantly, that Part 9 rule 5 said that where a document was referred to in the pleading, the effect of the document was to be stated so far as material, and the precise terms were not to be stated except so far as they were themselves material, and provision was made also to enable a person who was served with such a document to look at the document, and that could be seen in Part 22 rule 2(1A).
That is,
your Honours, in effect exactly what happened. If one goes to the
statement of claim, paragraph 8 at page 3 of the appeal
book, you will see
the allegation of the ticket. You will see that it said:
including for the Defendant’s flight 648 –
One sees then the request of particulars at page 11 and those relating to the ticket are item 1 on that page. You will see the answers to those particulars given at page 18 and then there is the letter which appears at page 23.
Now, I submitted earlier that it was a really extraordinary situation in the case of persons who were carriers by air in Australia who knew that their liability, provided they were acting lawfully, was a liability which would arise in exactly the same terms under a State or a Commonwealth Act for it to be necessary to plead in detail the circumstances which might give rise to liability under one or other Act.
If one goes
to the second paragraph of the letter at page 23, what your Honours will
see was that it was said in the second line:
the particulars in relation to the ticket on which the Plaintiff was travelling are necessary to determine whether the carriage was subject to the New South Wales or the Commonwealth Civil Aviation (Carriers’ Liability) Act which is relevant to the Defence.
Those Acts were, as I have
submitted earlier, in exactly the same terms, liability exactly the same, same
defendant and maybe perhaps
different insurer but, your Honours, that would
be really the only thing that could give rise to the slightest difference or, of
course, if one were to say that the pleading had to state which
Act – and make it clear which Act it was rather than the other
one or no Act – then perhaps no liability. Your Honours,
in a milieu where one is dealing with limited liability of a particular
kind,
limited in a particular way, the pleading could only have been understood as
referring to whichever of those Acts was properly
applicable and, once one
looked at the detail of the flight, that was
manifest.
Your Honours, so far as the copy of the ticket is concerned, I am happy to tender it, so it is here if the Court wishes to have it or to have it in the Court’s possession. It would be simply so – there are questions of legibility in some respects.
KIRBY J: Tender it? Did I hear that word?
MR JACKSON: You did, your Honour, in order that it be placed before the Court for identification, perhaps I should say.
CALLINAN J: But you seek to rely upon it?
MR JACKSON: I do, your Honour. What I rely on it for is as a document which - - -
CALLINAN J: Incorporated by reference?
MR JACKSON: Yes,
your Honour, and a document, if I may say so, which if one goes to the
judgment of the Court of Appeal in Air Link (No 1), which you will
see at page 70 of the application book, at about line 42:
Mr Hislop submitted that the defence filed on behalf of the defendant showed that this was not an issue and that reference to the ticket number particularised would have revealed that the carriage was interstate. This may be so, but in my opinion, the interstate nature of the carriage –
et cetera. Now, there was no reason why in the Court of Appeal that court could not have looked at the ticket itself. This Court is in a position where it is reviewing the decision of the Court of Appeal. In those circumstances there is no reason, in our submission, why this Court could not do in reviewing the Court of Appeal’s decision what the Court of Appeal might have done. I am not talking about cases of introducing fresh evidence, but cases where the Court of Appeal did not look at a document at which it might have looked more fully.
GLEESON CJ: If the only problem is one of legibility, if we have any difficulty reading the document that we already have, we will let you know.
MR JACKSON: Your Honours, those are our submissions.
GLEESON CJ: Thank you. Mr Uren.
MR UREN: If the Court pleases, in our submission, all of the issues
in this case depend entirely on the meaning and application of section
34
of the Carriers’ Liability Act, and in that regard we would identify four
topics which are particularly relevant. They
can be divided into temporal
categories.
The first category is that of before the amendment, and the second category is that of after the amendment, and the four categories are as follows. Before the amendment, was the action one which fitted what section 34 required, in which case the issue here is what section 34 requires of an action.
In saying that, we assume, as it seems to be assumed by everybody in this case, that the word “action” in section 34 means a proceeding in a court, and thus one does not have to ask what the word “action” means but has to ask what description of “action” is contemplated by section 34.
The second point which we submit arises is, after amendment, was the action then – that is to say, at that time, after the amendment was made, was the action one which had been bought within the two-year period for the purpose of section 34? That is to say, in its amended form, was it then an action which complied with the temporal requirements of section 34? The issue then is, so far as section 34 is concerned, what does section 34 require when it addresses itself to the time at which an action is brought?
The third point relates to the second, and that is the point relating to the relation back rule, which we would use the shorthand expression. Did section 34, on its proper interpretation, not allow the application of the relation back rule, in which case, for those purposes, one would look at what section 34 requires, because if section 34 does not allow the application of the relation back rule, then it would seem perfectly clear that, for the purposes of section 79 of the Judiciary Act, there would be a Commonwealth law which otherwise provided.
Now, there is another
avenue by which the relation back rule might be applied other than by the root
of section 79, and that is by
an application of the doctrine which is referred
to in the Electric Light and Power Supply Corporation Ltd v Electricity
Commission of New South Wales [1956] HCA 22; (1956) 94 CLR 554. Without taking
the Court to the judgment of the Full Court of this Court, if I could read a
passage from page 559:
Section 3 of the Purchase Act takes the course of referring a particular matter for hearing and determination to an existing court established as part of the judicial system of the State, the proceedings of which are regulated by a statutory enactment and a body of rules, and the authority of which is amplified by some, and qualified by other, provisions of the enactment . . . When such a course is adopted it is taken to mean, unless and except in so far as the contrary intention appears, that it is to the court as such that the matter is referred exercising its known authority according to the rules of procedure by which it is governed and subject to the incidents by which it is affected.
Now, that was a case in
which the issue was one of whether there was an available appeal in the
court’s appellate structure,
but nonetheless the principle the court of
justice were to apply to the circumstances of this case, if there are rules of
the court
or the effect of rules of the court which has been invested with the
federal jurisdiction, one would then normally, in our respectful
submission,
take it that the court to which that jurisdiction is given is the court by which
it is “exercising its known authority
according to the rules of procedure
by which it is governed and subject to the incidents by which it is
affected”. But, there
again, it may not matter whether the route by which
the Supreme Court Rules or the effect of the rules operates is by virtue of this
principle, or by virtue of section 79, because, there again, if section 34
provides otherwise, then, of course, one must do what
section 34
says.
The fourth point, in our submission, again, after amendment, relates to the Weldon v Neal doctrine and its abrogation in section 34 of the Limitation of Actions Act and also in Order 36 of the Rules of Court. The question would be then, with respect to that abrogation, did section 34 otherwise provide for section 79 purposes or did it make some other provision for the purposes of the Electricity Case doctrine to which we have referred?
So one would look, in our submission, for the solution to this case almost entirely to the provisions of section 34, and no real question arises as to the application of section 79 in relation to section 80 of the Judiciary Act or things of that nature.
Now, we have divided the relation back rule and the Weldon v Neal abrogation into two, because it seems to us that the course of some submissions tends to conflate the two. They are not in fact one thing. The relation back rule is a rule which relates to the question of when an action commences. The Weldon v Neal rule was a principle applied by the courts to avoid prejudice in the event of an amendment being made, which raised a course of action which would otherwise have been statute-barred. And it is really one example of prejudice which the court would take into account in decided whether to allow an amendment. There may be many other prejudices, but the case of Weldon v Neal recognised a prejudice, and made a special provision of a fairly draconian nature, depending on how you have interpreted the rule, with respect to what it would do in that regard.
It is necessary in this case to remember a point which we submit is correct, that the effect of the rules as they currently stand and also of section 34 of the Limitation of Actions Act is not really to enact a new principle, but to make provision with respect to the way in which the discretion is exercised when allowing amendments.
Now, when we say it is not meant to enact a new principle, it does not enact a new principle with respect to relation back or to when actions commence. It merely makes provision with respect to the operation of the well-accepted principle that if a defendant as to whom an amendment is sought suffers prejudice of various sorts, then those prejudices are to be taken into account in deciding to exercise a discretion. One of those prejudices which Weldon v Neal recognised has been regarded in current days as being too drastically expressed, but it would seem to us though, with respect, that although the arguments for the appellant in this case have been really addressed to what they think is the unsatisfactory features of the amending rules and the amendment statutes, their real complaint is with the relation back doctrine, not with the Weldon v Neal abrogation.
Having said that, I wonder if we could take the Court momentarily to section 34 of the Limitation of Acts Act and just in passing make some reference to the nature of the discretion which was allowed by that section. The Court might remember that Mr Justice Ormiston in his reasons for judgment gave section 34 an interpretation which meant that it remained a discretion in the Court as to whether it would allow an amendment or not, even though a limitation period had expired, on grounds which were not merely that the conduct of the party’s claim or defence could not be met by an adjournment, an award of costs or otherwise. He thought the discretion was more general, and that the Court – despite the use of the word “must” in section 34 - had a discretion and, perhaps, would not ordinarily allow an amendment to be made if there was what one might call a completely new cause of action arose such as in the present case. If in the present case, for instance, the amendment was sought to be added to an action on a.....or something of that sort, to give an extreme example, his Honour thought that the section ought not to be interpreted in that way, in any event, and it was not merely in order to avoid the effect of colliding with a Commonwealth statute that he gave that view.
It seemed to us reading section 34 that it
carries a discretion in its own terms, because although the word
“must” is
used on about the fourth line down, nonetheless, the words
in the first four lines are preceded by the words:
If a court would, but for the expiry of any relevant period of limitation . . . allow a party to amend a document –
so one has to find a situation where the court would, if but for the expiry of the relevant period of limitation, allow an amendment. A court may in deciding whether it would, but for the expiry of the period of limitation allow an amendment take into account a large number of matters of relevance which went beyond the mere question of whether the conduct of the claim or defence was prejudiced in such a way as could not be met by an adjournment, an award of costs or otherwise, because it is the power to, or at least the requirement to allow the amendment is predicated by the court deciding that the only thing which stopped making the amendment was the expiry of the period of limitation.
So the expiry of the period of limitation is only one of the matters which may be taken into account, and the nature of the limitation may be taken into account and maybe the distance between the claims may also be taken into account.
When Mr Justice Ashley exercised his discretion, he did in fact take into account, by concession, in our submission, rightly made, that he could take into account the fact that the cause of action would, if he had not made his order of amendment, have been extinguished. So he took into account that feature. No other matter of prejudice was asserted, or other matter was asserted by the appellant in this case, which would go against the exercise of discretion.
What section 34 does is not to make a new rule relating to when proceedings commence. It only corrects a wobble, as it were, in the exercise of the discretion to allow an amendment; that wobble being identified by Mr Justice Ormiston, whose reasons for judgment indicated how unsatisfactory it was that the Full Court in Victoria had taken a particularly draconian view of what was meant by a “new cause of action” for the purposes of the application of the rule, and the rules – the amendment to Order 36 to allow the court to allow an amendment as well is of the same nature.
So what Order 36 does is not enact the relation back rule; it recognises the relation back rule and merely makes a provision relating to the exercise of the discretion. Of course, the courts could have done that themselves. In some countries, I think, according to Mr Justice Ormiston’s judgment, the United Kingdom has taken a much less draconian view than the Full Court of the State of Victoria took, and Mr Justice Lush in the Christodoulopoulos Case took a much less draconian view as well.
Now, I must say that the view which was taken in that case would, in our submission, have allowed the amendment in this case without any difficulty, but it would be unlikely, we would think, that it would be said that the exercise of the discretion in the less draconian form would have been offensive to section 34, or indeed to any other section of the Limitation Act which bars rights of action or which bars remedies or which extinguishes things and so forth.
Although the case has been presented by the appellant on the question of the unsatisfactoriness of the order, that is to say, Order 36.01.1 and 6 and also section 34, their real complaint is as to the relation back rule, as we see the case. But the relation back rule has been around for an awful long time. It was certainly around before Weldon v Neal was decided, because Weldon v Neal was predicated upon that rule, and the decision was made without any justification or discussion of it.
Section 34, of course, was enacted in the matrix of law which contained that rule, namely, that if an action was amended, then the amendment related back to the date of commencement of the proceeding. Now, we have a view about the real effect of the relation back rule which resembles, though is not entirely the same as, that expressed by Mr Justice Ormiston, and it is really related to – if I could digress slightly – to the time at which one is asking the relevant question.
Before the amendment of the statement of claim, if one asked the question, “Has an action been brought within two years after the date of arrival of the aircraft?”, subject to the question of whether the action as it was previously constituted was sufficient, it is.....to say that it was not, then the answer might be no, you have not brought an action of the sort contemplated by section 34. But after the amendment, if you ask the question, “Has an action been brought for you or for your benefit within two years after the date of the arrival of the aircraft?”, you do two things. The first thing is, you look at the action as it is at the time at which the question is asked, and you see that it has certain content. That content will include the amendment which is being made.
So the content of the action is one which satisfies a statutory description. You then have to look for a date. Where do you find the date of bringing of an action? That, we submit, is the date of commencement. When is the action commenced? The action is commenced – in Victoria, in any event, but there may be other provisions in other countries – when the writ is filed. There are not two actions, there is only one. The writ only has one date. It is only filed once.
GLEESON CJ: What if you asked a slightly different question at a slightly different time? What if, after the expiration of two years but before the amendment, you ask the question, “Has the right been extinguished?”
MR UREN: The answer would be yes, but that is the effect of an action not being brought. It is - - -
GLEESON CJ: But if there exists a time at which the answer to the question “Has the right been extinguished?” is “Yes”, how can it be revived?
MR UREN: Your Honour, an action is not a motor car. If a motor car has being damaged, then that is a physical matter.
GLEESON CJ: I am talking about the right.
MR UREN: Yes, I know, your Honour, but rights are the creature of laws. It is not like a physical matter which one might see if something is damaged. I do not know if I am driven to say that Mr Justice Priestley, I think, said in Proctor that one does not have to worry about the more metaphysical features of the relation back doctrine or indeed of any other doctrine relating to retrospectivity. There is no point in asking the question, with respect, that your Honour has asked.
The question is to be asked at the time at which it becomes relevant, and the time at which it becomes relevant for present purposes is after amendment. Now, all I am doing here is providing a reason, consistent with the Full Court’s reasons, for why the - - -
GLEESON CJ: Is it not a question that might be relevant at the time the judge who is asked to allow the amendment is deciding whether to allow it?
MR UREN: Yes, and if he allows the amendment he will then produce a situation where the action always contained – sorry, in which the – when you ask the question about whether the action is now one which has been brought within two years, the answer, according to the relation back rule, is yes. Now, all we are doing - - -
HAYNE J: The argument has the symmetry of circularity, Mr Uren.
MR UREN: Your Honour, it is not an argument as such. It is what we think is the reasoning behind, possibly the relation back rule, because the relation back rule is undoubtedly a rule; it has been recognised in judgments in this Court and in judgments of other courts of high authority – and Weldon v Neal, indeed, is predicated on it.
HAYNE J: But we get to these questions of the effect of relation back and the like only after considering the basic question of what section 34 of the federal Act means, do we not?
MR UREN: I would say in tandem, your Honour, rather than after, but the point we make is that the relation back doctrine is an undoubted doctrine. Whether it is a doctrine of retrospectivity; that is to say the rule is that if - - -
HAYNE J: If the answer to the question the Chief Justice presented to you is yes, the right is extinguished, why would a judge then make an amendment in respect of a right which by hypothesis has been extinguished? As I say, is not the argument one which is circular?
MR UREN: No, your Honour, with respect, because it does not really matter whether the right is extinguished or whether the bringing of an action is barred. One might easily ask the question why should the judge do something which will effect a situation whereby the action is not barred. The point of interpretation is exactly the same. It is not necessary to be sort of transfixed, as it were, by the metaphysical connotation of extinguishment. The extinguishment is predicated upon the set of circumstances, is predicated upon it being a case that an action is not brought, and if a situation in fact or law is achieved by virtue of which – at the time at which you come to ask the question, whether it be a striking out application or whether it be a trial, the effect of the law is that an action has been brought, then that is the answer to the question.
Now, Mr Justice Ormiston said
that it was his view, I think, that the relation back rule is the effect of the
rules of court. He
said that at page 162 in paragraph 81 of his reasons
for judgment. He said:
It is no more than the accepted construction of the effect of rules of superior courts, both as to commencement of proceedings and as to their amendment.
So he saw that the relation back doctrine was not one of high principle, but merely one of the accepted effect of the rules.
But if it is the accepted effect of the rules, and I may say also that the doctrine itself is not the subject of appeal in this case or its application to Limitation of Actions Acts generally, it is an accepted rule, and all we were trying to do was give it a sort of explanation in the context of the rules which did not require one to say this is a case where the effect of the rules is that there is retrospectivity.
We thought it was perhaps rather a question of when you asked the question and what had happened at that time, and after an amendment, if you ask the question and look at the action as it stands, then the action - although it may have picked up a bit of freight on the way, as it were –nonetheless, commenced when it commenced and its content is what its content was after the amendment.
We do not have to nail our flag to the mast of that explanation, but it did appear to us to be, with respect, a sensible one, but in any event, it is a rule which is of longstanding and upon which the doctrine of Weldon v Neal is predicated, and it seemed to us that the real complaint which the appellant had was as to the relation back rule, because it is that which would, and if section 34 did not prevent it, affect a situation where the action was not brought or was brought as the case may be, within the two-year period. So much of what is said about the abrogation of the Weldon v Neal doctrine, in a sense, attacks the tail rather than the dog.
Anyway, with that perhaps too lengthy preamble, if I could go to the first issue which we identified which is looking at the statement of claim as it was before the amendment, and in that context looking also at section 34.
GLEESON CJ: Where do we most conveniently find the statement of claim in its form?
MR UREN: Your Honour, it is at page 3, I think, of the appeal book, but I really would in this context, I think, look rather at Mr Justice Ormiston’s judgment with respect to the statement of claim commencing at pages 111 and going on, I think, to page 122 of the appeal book. In that context, it seems that, if I have correctly understood the argument for the appellant, that the only remaining substantial complaint about the statement of claim with respect to whether it identifies the correct action or not is as to the question of whether the necessary licence was held which is a matter which is dealt with at page 112 in paragraph 12. We will say something about that at the moment, but if I may say also that our arguments as to the sufficiency of the statement of claim are the same as those which Mr Justice Ormiston set out and we would merely repeat what his Honour said.
Could we say also with respect to the statement of claim, the statement of claim may be looked at with such implications as the Court is prepared to draw from the facts which were expressly alleged, and even if the implications are able to be more or less obscurely derived, nonetheless, if they are able to be derived from the document then, in our submission, it contains a sufficient description of those matters which we would submit should be included.
We would merely ask the Court – not at the moment but as an example of that approach – to adopt the same approach which was adopted by Chief Justice Barwick and Justice Kitto and Justice Menzies I think also in The Mutual Life & Citizens’ Assurance Company Limited v Evatt [1968] HCA 74; 122 CLR 556. The facts of that case are of no particular relevance to the present but nonetheless the question was whether the pleading did in fact contain sufficient facts to give rise to a cause of action.
GLEESON CJ: Is it fair to say that Justice Ormiston concluded that the unamended statement of claim alleged sufficient facts to identify the right as that which arises under the Commonwealth statute but it failed to comply with a rule of the Victorian Supreme Court that said that where you are relying on a statute you have to specify the statutory provision you are relying on?
MR UREN: (a) yes; and (b) a little more, because his Honour, as we read his reasons, would have concluded if it had not been for what had been decided in the Air Link Case that the statement of claim would have been sufficient. It seems to us that he as a matter of conformity thought that he should follow the result in Air Link even though it seems that he himself would not have come to that conclusion.
GLEESON CJ: But there are two different questions, are there not? The question whether a statement of claim is sufficient to satisfy whatever are the requirements of section 34 of the Commonwealth Act is one thing. The question whether the statement of claim complies with all the pleading and practice rules of the Supreme Court of Victoria may be a different one. You only have to get a favourable answer to the first question, do you not?
MR UREN: With respect, we entirely agree with your Honour there. The question is determined by what the Act requires, not what the rules require. The rules serve different purposes. One of the purposes is to make everything clear and plain so the trial proceeds nicely, but that is nothing to do with section 34. Section 34 only requires that an action of a certain sort be brought and you then have to ask yourself: what is that action? Actions can be brought with greater or lesser degrees of satisfactoriness with respect to their expression and the particulars may be asked for and amendments may have to be made, et cetera, et cetera.
GLEESON CJ: It is possible – in fact I find it rather easy – to imagine a statement of claim filed by a self-represented litigant which contains sufficient to comply with section 34 of the Commonwealth Act but was in breach of a dozen different rules of a court relating to pleading.
MR UREN: Yes, in our submission, that would be perfectly simple and it is probably usually the case with respect to those litigants and sometimes also with respect to practitioners.
GLEESON CJ: Some of those litigants have their counterparts in the profession.
MR UREN: I think the point your Honour was making was that the Act does not require too technical an approach. In other words, what one has to do is not to, by the process of construction, go further than what section 34 requires. Section 34 just says, “if an action is not brought”. We concede, and I suppose we have to concede, that there must be an action of some sort relevant to the case which is sought to be now asserted, but one has to ask, when the section does not go any further, why should one insert the words “under this part” after the word “action”, whatever those words might mean? Or why should one insert any words of greater or less particularity? Or why should one insert words showing that federal jurisdiction is invoked? It is irrelevant to the purposes which section 34 serves.
HAYNE J: In understanding the nature of the action that was commenced before the expiration of the two year period, is it permissible to look to the defence that was filed within that two year period?
MR UREN: In our submission, it is – certainly, in this case, for the following reason. It will be observed that Mr Justice Ormiston at page 112 took the view – in our respectful submission, correctly – that the allegation that the appellant was carrying on the business of aircraft charter was sufficient to allow an implication to be drawn that the appellant held whatever licences were necessary for that purpose. It would, in our respectful submission, be perfectly correct to say that if particulars were asked of that carrying on of business, then those particulars could have, without any difficulty, included a reference to the licence which was being held, and also that if on trial, without any particulars being sought, the plaintiff was to justify the allegation that the appellant was carrying on the business of aircraft charter, the licence would be produced, or could be produced, as a means of proof.
Now, it is, in our submission, correct to say that it was correct then for the defendant, when it filed its defence, not merely to allege but to admit that it held such a licence. Under its response, as his Honour described it, one responsive paragraph of its defence, it in fact admitted, in respect of the assertion of carrying on the business of aircraft charter, that it was the holder of the relevant licence. It recognised that inherent in the allegation - - -
McHUGH J: You inject the word “relevant”, but that is part of the problem with his Honour’s reasoning on this aspect because paragraph 1 of the statement of defence did not identify the source of the certificate. For all that appears it might have been issued by the Northern Territory Government, and relevantly what we are concerned with is the certificate in force under the Civil Aviation Act?
MR UREN: Your Honour,
it admits that it was the holder of – I will go back a square. The matter
that is now being discussed has to
be looked at in the context of
his Honour considering, in our respectful submission, correctly that the
statement of claim correctly
identified a carriage to which the Commonwealth Act
applied. Therefore, when the defendant admitted, in respect of paragraph 1
of
the statement of claim, which says:
At all relevant times the Defendant was carrying on the business of aircraft charter under the name of Spring Air -
when it admitted that –
it was the holder of an Air Operator’s Certificate authorising charter operations and carried on business as alleged in paragraph 1 –
it was referring to the Commonwealth.
McHUGH J: With respect, it seems to me it is a circular argument, Mr Uren. You say the right – the correct licence can be inferred from the fact that the statement of claim alleged the flight was in a place to which the Commonwealth Act applied.
MR UREN: Yes.
McHUGH J: But that is circular, because you do not know whether the Commonwealth Act applies to that place unless you have a certificate under the Civil Aviation Act. The Commonwealth Act just does not generally apply to flights within the Territory.
MR UREN: No, but it authorised the operations, the subject of the statement of claim, and the operations, the subject of the statement of claim, are an interstate flight.
McHUGH J: Interstate? I thought it was an intra-territory.
MR UREN: I am sorry. I meant across the border. Wherever it was to end, it was – I will go back a square.
HEYDON J: Between the Northern Territory - - -
MR UREN: Authorised a flight to which the Commonwealth Act applied, whether it was purely within the Territory or whether it was between Western Australia and the Territory, or the Territory and Western Australia. Whichever way it was, the Commonwealth Act must inevitably have applied to this flight.
McHUGH J: Well, only if you have a relevant certificate.
MR UREN: Your Honour, it is - - -
McHUGH J: You have to have a certificate. It applies only to flights where you are the holder of an airline licence, as defined, and it is for commercial operations and it is under a contract of carriage within certain places.
MR UREN: With respect no, your Honour. If I could ask your Honour to look at section 27 of the Act, it has a number of ingredients, but the ingredients of (a), (b), (c) and (d) relate to the nature of the flight; in other words, that it is a flight which - - -
McHUGH J: Yes, I appreciate that, but what I am putting to you is that section 27 does not apply unless you fulfil three conditions. One, holder of an airline licence, of charter licence; two – and that has to be in the course of commercial transport operations and three, between certain identified places. Otherwise the Part does not apply. You miss out on any. It is no answer to say, “Well, we’re in that area concerned with Territory and therefore you can infer that we had a licence”. It does not seem to me to follow at all.
MR UREN: Your Honour, the charter operation is referred to in paragraph 1 of the defence. The charter operation is the subject of the statement of claim - - -
McHUGH J:
Yes, but, as far as the pleading goes, that may have been a certificate under
the Northern Territory or the Western Australian
government. We do not know.
Maybe you have a better argument under the Civil Aviation Act 1988 which,
in section 27, says:
Except as authorised by an AOC –
in paragraph (b), and with an exception in relation to
foreign aircraft –
an aircraft shall not operate in Australian territory –
and you can then rely on a presumption of regularity. So there appears to be a prohibition in that Act against an aircraft operating in Australian territory without an AOC.
MR UREN: Your Honour, we say two things about the interpretation of the defence point, and what the air operator’s certificate is. The first thing is that the charter operations that are authorised are those referred to in the statement of claim. The ones referred to in the statement of claim are ones to which the places of journey provisions of section 27 apply. So it would then seem that the defence is saying, “We admit that we are the holder of an Air Operator’s Certificate to undertake those journeys”.
Now, whether or not there is some obscurity about the expression, nonetheless, those words are certainly perfectly capable of comprehending the sort of certificate referred to in the Civil Aviation (Carriers’ Liability) Act, and whether or not the defence is obscure is not to the point. The point is, have they said something which is capable of bearing that meaning, and, in our submission, they have. Also, it appears to be perfectly correct from the affidavit which they put in on the application to strike out.
Under the heading of carrying on business of aircraft charter, in our submission, a number of facts may be proved, and, if particulars are being sought, then we could have pointed to particulars for the purposes of this case. But no particulars have been sought because of the way the case has gone so far, and, indeed, they have not been sought because the defendant does not want them. It knows what it is and knows what licences it has, but, so far as the one substantive matter that has been identified as one of which the defendants complain about the absence, the Court of Appeal has considered that there was a sufficient implication of the carrying on of business with the licence by virtue of the words “carrying on business” with whatever content that has.
The content may have been of various sorts, but we do not have to show that the statement of claim of necessity points only to one thing. The real point is, what does the statement of claim allow us to do at trial? Does it contain within it a cause of action, even if there may be imperfections which allow a view to be taken that there should be some making clear? It is not, in our submission, the case that the statement of claim does not disclose a cause of action if one of its meanings does and another of its meanings does not. That is a matter for tidying up; it is not a matter for striking out.
McHUGH J: I do not think the statement of claim has much to do with the case apart from identifying whether an action has been brought. The question is, as at 14 August 1999, could you say that an action for damages under Part IV has been brought?
MR UREN: Yes, and we respectfully agree with that characterisation. When you go to section 34, section 34, as we have mentioned before, does not say that the action will – in other words, it does not describe a content. So one looks at the Act to see what the content should be, because, if it cannot be derived from 34, it has to be derived from some other part of the statute. We would ask the Court to look at that requirement in the context of the purpose that section 34 is intended to serve. Section 34 is intended to serve, in our respectful submission, a practical commercial purpose; that is to say, inform the defendant of the damages claimed and of the event which caused the relevant damage. That is all they need to know. They do not need to know that they are the holder of an air operator’s certificate, and it may be they do not even need to know where they were flying the aeroplane.
McHUGH J: I am not sure that they need to know anything. What you have to be able to say is whether, objectively, an action has been brought.
MR UREN: Your Honour, when we refer to what the defendant needs to know, we are not referring to the subjective/objective distinction, but to what purposes section 34 might be addressed. The purpose of serving an action on someone is so that he knows something, so at least he knows if he is going to be asked to put his hand in his pocket at some stage for damages. He may also want to know what event is it that caused the damage. If someone just gives a writ asking for $1 million, he has no idea of what flight it is unless he checks up his passenger manifests, et cetera, depending on the size of the airline, to find the name of the plaintiff. If the defendant is told of the damages which are claimed, he knows what his liability may be at its limits, and if he knows the event which caused the relevant damage, and he knows the name of the party, he knows those matters which are necessary to be looked at for deciding what he is going to do about the case.
GLEESON CJ: Whether it was right or wrong, the approach of the Court of Appeal of New South Wales in Air Link (No 1), as I understand it, was, or at least involved, this: you do not look at the allegations in the statement of claim to see whether you can find there facts which if considered in the light of the Commonwealth Act would give rise to a claim under the Commonwealth Act. You look at the statement of claim to see the nature of the right being asserted by the plaintiff. If as a result of a misunderstanding or a misconception the plaintiff is asserting a quite different kind of right from the right provided by the Act, then you cannot describe the action as an action brought within the meaning of section 34. As I say, that may be right or that may be wrong, but that seems to be the approach that was used in Air Link (No 1).
MR UREN: Yes. We would respectfully disagree with that approach, the reason being, firstly, it is adding words to the section, but, secondly, it is devoid of practical reality because the people who own airlines do not want to know that – they can work out for themselves whether the proceeding is one under the Commonwealth Act or not. What they want to know is, or need to know for the purposes of adjusting their possible liabilities and making investigations as to a situation, is what the plaintiff wants and what the event is which gave rise to the damage. So the plaintiff must assert to be helpful to the defendant that it wants a sum of money for having been injured or killed, as the case may be, or someone having been killed in the course of an aircraft crash, and the journey would have to be identified. Once the defendant knows that, he knows everything that he needs to know for the purpose of commercial practicality. He does not need to know that the plaintiff is also asserting that he is the holder of an air operator’s certificate, or that the plaintiff is asserting that the charter licence was in the course of commercial transport operations or anything of that sort. These are things which the defendant knows, but what the defendant does not know until an action is brought is that somebody is going to ask him to put his hand in his pocket for money for some particular event, so he needs to know the claim.
GLEESON CJ: You could test the point by supposing that you had a statement of claim that undoubtedly alleged all the facts necessary for the application of the part, but that was also equally obviously a fault-based claim expressed in conventional common law terms, on its face drafted by somebody who was simply not adverting to the provisions of the statute, so you did not have any worry about whether there was a licence alleged, you did not have any worry about whether there was an interstate carriage alleged, but you obviously had a fault-based common law claim. Where would that leave you?
MR UREN: Well, one can strip off the surplusage and obtain a judgment, if one went to trial, on the matters which had been proved if they gave rise to a legal entitlement. That, as we understand it, is the way matters have been looked at traditionally by courts. The surplusage may be ignored, and providing there is enough there for the purpose of a judgment and there is an applicable law which entitles you to it, then subject of course to questions of prejudice with respect to not having notice of the claim or things of that sort, that the surplusage has been ignored traditionally, and the rights of the parties have been determined in accordance with law, which is the effect, as we submit, of Judicature Act pleading.
There are plenty of cases where people have alleged more facts than they need and sometimes more rights than they need, and rights they do not have, but it does not mean that when the time for trial comes the law is not applied to such facts as have been proved.
HAYNE J: That proposition seems to proceed from the premise that action is brought for the purposes of section 34 so long as a claim is made for damages for personal injury said to have occurred either in flight or in embarking or disembarking.
MR
UREN: Yes, following section 28. In other words, that your claim is
for:
damage sustained by reason of the death of the passenger or any personal injury suffered by the passenger resulting from an accident which took place on board the aircraft or in the course of any of the operations of embarking or disembarking.
HAYNE J: And that any characterisation of the legal basis of that claim contained, whether in the initiating document or subsequently - - -
MR UREN: Does not matter.
HAYNE J: - - - is of no present relevance to the application of section 34. Is that what the point comes to?
MR UREN: Ultimately no, but we would agree with the expression of - - -
HAYNE J: What more is there in the point than that?
MR UREN: It is indeed – in fact, it is not so much more, it is less. The present case is one where it is, in our submission, perfectly clear that there has been a claim made “for damage sustained by reason of the death of the passenger . . . resulting from an accident which took place on board the aircraft”, and there are also the journey provisions if they are necessary. The claim itself is one which is for those things. Now, because of the way in which the claim was structured, there are irrelevant allegations, but the essence of the claim is not changed. It is still “for damage sustained”, et cetera. Now, we have alleged negligence. If negligence is forgotten about, as it would be, then the claim is certainly for what section 28 provides. In our submission, that is all that is needed for the purposes of - - -
McHUGH J: But you need more than that. You have to show that the part applies. Section 28 is a condition on the part applying. You keep referring to the notice to the defendant and so on. It does not seem to me to have the slightest thing to do with it, Mr Uren. Section 28 gives a cause of action. It exists in space, time, independently of any pleading that is on. The only purpose of section 34 is to identify whether or not that right of action has been extinguished. So all you need is some form of identity. If a rule of court said “No pleading shall refer to the statute under which the claim is brought” and somebody filed a statement of claim setting out that the claim was made under the Civil Aviation Act Part IV, the defendant might be able to strike that out, but it would seem to me that your statement of claim, even though in contradiction of the rules, identified what your action was, and so you have an action brought under the part.
MR UREN: Your Honour, in our submission, section 34 - - -
McHUGH J: If you had written to the other side and told them that you were bringing this action under this statute, as long as your pleading was not a nullity, that would seem to me to be sufficient. It is a question of identifying whether you have brought an action of the relevant kind.
MR UREN: Yes, which leads you to look at the description of the action. Not so much its content, because contents of actions change as the case goes on. There are often amendments and there are sometimes cases where the evidence at the trial determines the result, rather than the pleading. But, in our submission, section 34, when it refers to “The right of a person to damages under this Part is extinguished”, merely identifies the right which is being extinguished if something is not done, and that thing which must be done is to bring an action.
Now, there must be some limitation on the word “action” there to encompass a situation that it does not include an action for anything – sorry, when I say anything, I mean, say, a.....case or something. Nonetheless, the section itself does not make any express provision for the description of the action. We would then look to what, in our submission, would be the respectable minimum to be attributed to such an action, and the reason why we say the “acceptable minimum” is because, firstly, it would not, in our respectful submission, be in accordance with the Act to be too technical, and, secondly, it has a very draconian effect.
Now, in the present case, the only relevance of the things that we are said to have left out are that it entitles the other side to make an application to have it struck out. So far as the content of the case goes, it means absolutely nothing to them. So far as parties are concerned, that is to say, plaintiffs, the section has a particularly draconian effect, and the more one requires the action to contain, the more draconian it gets and, also, the more divorced from reality. The present case is an example, in our respectful submission, a complete divorce of reality, that is to say, from commercial realities for which section 34 would be passed, if one is required to put in this bit and that bit and the other bit and so forth merely to show the defendant things it does not need to know.
Nonetheless, we would acknowledge that the defendant must be entitled to be told something, and, clearly, they must be entitled to be told that a claim has been made for damages and the event out of which the claim arises. But if that is done, then surely the purposes of section 34 are satisfied, and if the section is to be given a purposive construction, which, in our submission, it should be, and if it is regarded as part of the sort of adjustment of rights between people, the plaintiffs getting the benefit of strict liability and the defendants getting the benefit of a time restriction, then one has to look at the situation of both parties with respect to the totality of the statutory scheme, and why should the action, which is undescribed in section 34, be given, by judicial construction, requirements which are not stated there?
In our submission, if the purpose is looked at, then if the claim could be identified as one of the sort that we have mentioned, then that ought to be enough, but if one asks what about the bit about section 27 and what about the air operator’s certificate and things of that nature, all matters within the defendant’s knowledge and as to which there is no commercial purpose in telling them anything, if one has regard to those issues, then surely one is confusing, in our respectful submission, the content of the action in section 34 with the requirement of the rules to plead – not even plead a cause of action because one does not have to do that these days, but just to plead. In our submission, if the rules and requirements of what one might call a proper statement of claim were ignored, as in our submission they should be, one only has to ask whether the content of the action which was brought is, if within time such as to satisfy the purposes of section 34, and if it is, then that is, in our submission.....that there should be.
Now, interestingly enough, although there are differences between the English situation and our own, this is in fact what seems to happen in the United Kingdom, and if one is looking at that international comity or whatever it is, there may be no reason for coming to a different conclusion in the present case than there would be in the UK. Now, in Morris - - -
HAYNE J: Perhaps some light may be shed on section 34 by turning away from personal injuries to baggage claims. In the case of loss of baggage one would ordinarily expect the statement of claim to be very short form. It might have an allegation of bailment for reward and claim in detinue, but it would be very short form. The argument against you is, as I understand it, that no claim is brought or no action is brought unless the statement of claim, in addition to those allegations, went on to assert carriage by licensed carrier on a particular journey. Perhaps that is the result, but it gives a lot of work to the words “if an action is not brought” in such a case.
MR UREN: In our submission, the words are satisfied if the action is for, in a sense, what you are entitled to get; in other words, for the relevant relief, and some actions only have to state – sorry, in some jurisdictions it is, or used to be the case, that that is all you needed to do, but insofar as we might say that one could go further and say what the circumstances were which gave rise to the claim then one need go no further than section 28. It is true that some statements of claim may be less informative than others, and the baggage ones may be of that nature, but nonetheless, one still has to ask, has an action been brought which section 34 contemplates?
That is, in our submission, the only question. In the United Kingdom in Morris v KLM Royal Dutch Airlines [2002] UKPC 43; [2002] 2 AC 628, the issue of which was really what sorts of damage can you recover for rather than anything relating to the present case, but nonetheless at page 654D in the judgment of Lord Hope, he set out the text of the Convention and it is seen that Article 17 is in the same form as appears in the Convention annexed to the Carriers’ Liability Act. It differs a little from the liability for damage section in the present Act because our Act says “Subject to this Part, where this Part applies”, thus in the usual Commonwealth style referring back to other things, namely to the simple fact that the section can only apply where the part applies.
Nonetheless, in the United Kingdom,
as appears from paragraph 70 at page 655, his Lordship
said:
The wording of article 17 indicates that three things must be established in order to demonstrate that the carrier is liable. The first is that the passenger must have sustained death or wounding or other bodily injury. The second is that there must have been an accident which took place on board the aircraft or in the course of any of the operations of embarking or disembarking. The third is that the passenger’s death, wounding or bodily injury must have been caused by the accident.
Those three simple things are contained in our statement of claim before amendment.
One might ask rhetorically, if we are to look at the international situation, why there should be any significant difference between the proper interpretation of section 28 comparable to Article 17 and going on to section 34. The requirement is to let the defendant know what is useful for him to know in the conduct of his business. That, in our submission, is the entire object of section 34 insofar as it relates back to the necessity to have an action which is of the sort contemplated. Then the simple requirements which Lord Hope referred to, in our submission, are sufficient for relevant purposes.
So there are good reasons for not requiring the words “if an action is not brought” to carry more freight than is, strictly speaking, required by the purpose which it is intended to serve. In our submission, the views which the appellant expresses to the contrary are in fact all adding freight on to – where the statute has not done so.
GLEESON CJ: Is it your argument that, provided the elements identified in paragraph 70 on page 655 are identified in the claim that is made, the circumstance that the claimant appears to be under a legal misapprehension as to the source and extent of the claimant’s rights is irrelevant?
MR UREN: Yes, your Honour, quite irrelevant. We did not really understand the reference that his Honour Mr Justice Ormiston made, I think, in one or two places to the fact that the error may or may not have been due to inadvertence. In our submission, that is of no relevance to the question of the action which has been brought, which ought to be judged in accordance with how it appears.
HAYNE J: That is to say, you read 34 as if an action in this case against a carrier for death or injury is brought within two years, you do not read it as if an action is brought under this part against a carrier for death or injury. Is that the distinction that - - -
MR UREN: Yes, you do not read it in that fashion.
McHUGH J: So, if the plaintiff filed a statement of claim and says, “Qantas Airways Limited detained the plaintiff’s baggage without lawful excuse”, and the plaintiff claims damage for the loss of the baggage, that would be sufficient?
MR UREN: Your Honour, I have not studied the baggage sections to see whether that would or would not be sufficient due to the - - -
McHUGH J: Well, 34 applies to it as well.
MR UREN: Yes, it does.
McHUGH J: It is an action for damages.
MR UREN: But it has to be an action for the damages which the statute allows. That is, in our submission, all that is necessary. If the section started off with the – bearing in mind that the nature of the action is undescribed, and if one interprets the section in the context of telling the defendant what is necessary as a matter of commercial reality to be known, which, in our submission, is a perfectly appropriate approach, then one has to look at what that is that the defendant should know for the purposes of protecting its interests. I do not know what the baggage provisions say, but nonetheless one would look at the baggage provisions and ask the same question, but why it is necessary to say, “And we’re claiming under the Civil Aviation (Carriers’ Liability) Act”, in our submission, does not appear from the wording of section 34.
It is easy to see why people brought up with the habit of pleading say you ought to add lots of things so that the complete chain of title is made out, but this is not a chain of title case. It is a case of description of the action, one is not looking at a chain of title. And for those reasons, we submit that the statement of claim as it originally was is one which conforms with section 34 and, for the reasons which Mr Justice Ormiston gave at pages 109 to 131, would also conform with the wider requirements, if they are requirements, of proof of matters referred to in section 27.
GLEESON CJ: Is this subject to the notice of contention?
MR UREN: It is, and I forgot, your Honour. I do have to ask for leave to do that.
GLEESON CJ: Is that opposed?
MR MARGO: No, it is not, your Honour.
GLEESON CJ: Yes, you have that leave.
MR UREN: If your Honour pleases.
CALLINAN J: Could I just ask you a question? Is the position affected by the provision which forbids contracting out, in this sense, it does not matter what the parties might say about the applicable law, the Act applies?
MR UREN: Yes, your Honour. We have not looked at it from that point of view, but that may be a pointer to what the section requires.
CALLINAN J: Say, for example, the Act were identified, but the nature of the action were misdescribed as an action for breach of a statutory duty rather than as an action under the Act. Would that matter?
MR UREN: No, it would not matter.
CALLINAN J: And if, having pleaded the Act, the plaintiff nonetheless, under a misapprehension, pleaded particulars of negligence, that would not matter either, would it?
MR UREN: No - - -
CALLINAN J: It is both the facts and the law.
MR UREN: Yes, well - - -
CALLINAN J: Objectively ascertainable, including the Act, which govern entirely proceedings of this kind.
MR UREN: Your Honour, to give an example, a well-known case of Konskier v Goodman is one where I think somebody failed in an action of slander, and sought to – I am sorry, I will go back a square. No, I have just forgotten momentarily the facts of Konskier v Goodman, which is referred to in our list of authorities, but nonetheless the plaintiff succeeded in relation to the facts which he had proved, despite the fact that the cause of action which he had originally alleged was not one which the facts gave rise to. The judgment was given by the Court of Appeal on the facts as they appeared. That, as we understand it, is the effect of Judicature Act pleading. It is basically a termination of the issues between the parties in the context of the facts which they ultimately alleged to the court.
The parties, under the present rules, are given such relief as they are then entitled to, whatever they have said about the relief which they have sought. It is not a case of “You put your money on the wrong square”. If the court sees that the right square is a different one, then if your facts entitle you to that square that is what you get, subject to questions of prejudice and things of that sort. The continued assertion by the appellant that there should be further requirements is really going back to a previous age, in our respectful submission. An action only has to be identified to which section 34 relates. One does not have to go to the rules and things of that sort.
So, in our submission, if it is necessary to prove the section 27 things, then Mr Justice Ormiston’s reasons give sufficient for doing that, but, in our submission, it is not, because section 34 does not direct attention to section 27. It directs attention to the right which is being extinguished, that is to say, the right to “damages under this Part”, and it identifies the feature which will extinguish that right, and that is an action not being brought by him or for his benefit.
That most aptly describes an action for the sort of relief that you can get under the Act, and our action does identify that relief, namely, damages for the aircraft accident which was identified in the statement of claim. I think that is all we wanted to say about the first point.
As
to the after amendment situation and whether the action, as amended, was one
which was brought within the two-year period, it
is not without relevance, in
our submission, that when section 34 was enacted the operation of the
relation back rule was, of course,
well understood. Section 34 does not
say anything about when or how an action is brought, and I think, as
your Honour the Chief
Justice said in Fernance v Nominal
Defendant 17 NSWLR 710 at 720:
It is to be borne in mind that, in New South Wales as in England, it is the Rules of Court which determine when an action is begun for the purposes of the Limitation Act, and not the Act itself.
Your Honour, on the following page, also referred to the relation back doctrine and to Proctor’s Case. One looks naturally to the rules of court to determine when the action is begun, and the rules of court are as they have been described, and the effect of those rules has an effect of longstanding whatever the conceptual justification for it may be, is that if an action is amended by way of amending the claim, although not amending the parties, if an action is amended by way of amending the claim, then the action, as amended, is regarded as being taken on the day on which the writ was issued, or one could put it another way and say the amendment relates back to the date of issue, or put it in various ways.
That has been the law in Australia for a long time and it was described by Mr Justice Ormiston as being the effect of the rules. So if one goes to the effect of the rules to see when an action is brought, in our submission, it is perfectly clear, unless the relation-back rule is to be itself abrogated, which this appeal is not about, that after the amendment the action was brought as amended when it was commenced.
That, in our submission, is not something which section 34 addresses at all. Section 34 leaves it to the Rules of Court or such other law as may be applicable to determine when an action is brought. An action may be brought in theory when the originating document is filed. It may be brought when the originating document is served, depending on the rules of the jurisdiction, and there may be other permutations and combinations. It may be that there is a requirement to give a letter before action, and the action when ultimately brought is regarded as being brought when the letter is given. It could be any sort of rule that different jurisdictions want to enact, but our jurisdiction has accepted as a rule that the action after amendment is brought as amended at the time at which it was issued. That is not a matter that section 34 addresses at all and there is, in our respectful submission, nothing in section 34 which derogates from that situation. So that, I think, is all that perhaps need be said about that particular point.
The application of the relation-back rule in relation to the limitation of actions defence has always deprived a defendant of something, if one were just to use the words loosely, because that is why the Weldon v Neal doctrine arose. Someone has always lost something in that loose sense, and whether the limitation is one which bars the remedy or which bars the right is of no particular importance in that regard.
In the Limitation of Actions Act (Vic) there are, I think, at least two provisions where the right of the person is extinguished by the passage of the relevant period of time. One of them relates to the title to chattels and the other relates to the title to land, and I think also something with respect to settled land, but in any event it has never been held that the relation-back doctrine has any different application when it would operate to prevent a person from a defence related to the right to bring the action as when it relates to a defence with respect to the extinguishment of title or the denial of the right itself. The rule is, in our respectful submission, of universal application in that respect, and section 34 says absolutely nothing about the commencement of actions in those circumstances. Indeed, it may be legitimately said that it was enacted in the matrix of that legal situation.
So, in our submission, going on to the third topic, section 34 does not otherwise provide. If that is the case, then there is no bar under section 79 or the other doctrine which was referred to which would prevent the full operation of the relation-back principle. We mentioned that the State statutes of limitations are ones to which the doctrine clearly applies and it has not been held in any case, in our respectful submission, apart perhaps from Morgan v Banning, that the –I will go back a square. I think in Morgan v Banning what the court held was that the reason for the doctrine in Weldon v Neal was really related to a limitation on power, and that there was no power to allow an amendment which would have the effect of, as it was said in that case, circumventing the statute of limitations but, in our respectful submission, the doctrine of Weldon v Neal is predicated on a different consideration, not that there is an absence of power but that there is a power which would not be exercised, and it would not be exercised because of the reason of prejudice and thus is merely an example of the particular application in this situation of the rules relating to prejudice.
So no case apart from Morgan v Banning, which, in our respectful submission, is wrong in that regard, treats the question as one of lack of power or of incompatibility with the limitation of actions provisions. Otherwise, what one would have had in the course of the cases including Weldon v Neal was a discussion of the question of whether the effect of the rules giving rise to relation back was incompatible with the operation of a limitation provision, and decisions being made with respect to the law in that regard, that is to say, which prevails in the particular jurisdiction. But that has never been the way in which the matter has been approached. The matter has always been approached on the basis that the relation-back rule operates despite the existence of a statute of limitations unless the court stands in the way by exercising a discretion not to allow the amendment which it has done in the past, but which discretion is now governed in a different way.
GUMMOW J: Mr Uren, what would have been the situation if this claim had been pleaded as a Lord Campbell’s Act claim - as it would have had to have been, would it not?
MR UREN: Yes, it would be no different, I think.
GUMMOW J: So this is
really a section 35(2), is it not:
the liability under this Part is in substitution of any civil liability of the carrier under any other law –
That means under any relevant statute, does it not?
MR UREN: Yes, so that is out and something else is in, but the - - -
GUMMOW J: Then you get subsection
(3):
the liability is enforceable for the benefit - - -
MR UREN: Yes. This is
a little bit of an alternative, but the entitlement to damages really is back in
28 - the liability is back in 28.
It is the liability “for damage
sustained by reason of the death of the passenger”. Section 35 makes
some complementary
provisions, it seems to us, with respect to that liability in
a particular category of case.
GUMMOW J: Yes, “is liable for damage sustained by reason of the death”.
HAYNE J: The point becomes quite pointed under 35(5), when a class of persons is described in a form which is not identical with the class that can be engaged in various State forms of Lord Campbell’s Act, I think.
MR UREN: Yes, your Honour. I forget what they say, but it looks – I am not too sure whether the State ones would include stepchildren - - -
HAYNE J: But the consequence of your argument, I think, seems to be that 34 is satisfied if action is brought by someone – talking in shorthand - falling within the State Lord Campbell’s Act but falling outside the class of 35(5).
MR UREN: It is a more difficult point.
HAYNE J: Well, it is a more difficult point, and the question becomes: what does that tell us, if anything, about the disjunction that your argument seems to depend upon in reading 34? What I mean by that is this. You treat “The right of a person to damages under this Part is extinguished” as one integer which is plainly focused on the operation of the federal Act, but you treat the next integer of 34, “if an action is not brought by him”, as extending to any action for damages for personal injury brought about in connection with a flight, regardless of whether or not it is an action framed as an action under the part. Now, if you disjoin the provisions in that way, does that lead to the difficulties I tried to identify about the action for death?
MR UREN: Your Honour, it may lead to another difficulty which is whether the action has been brought for the benefit of the relevant people, if in fact the people who are described in the writ or the statement of claim as those for whose benefit the action is brought do not include all of the section 35(5) people. There may then be a question about whether the action has been brought by or for the relevant person, and also I am not too sure on my feet how the relation-back doctrine would apply in that instance because it has been held not to apply.....a change of parties. So I am not too sure what the precise answer is, but it may be that there will of course be another case, not this one.
HAYNE J: But treating the two arms of 34 as separate in the way described also must deal with the fact that you have these exclusive provisions strung through this part of the federal Act, saying that the rights under this Act are the only rights you have.
MR UREN: Yes, but one would still ask in that category of case - looking at the plaintiff or the potential plaintiff, the one who wants to be amended, let us say - has this action been brought by you or for your benefit? And it may be that the answer to your Honour’s question is that it would not have been so brought, and therefore it would not satisfy that part of section 34.
HAYNE J: But you hypothesise the bringing of an action which is framed as an action that must fail, as, for example, being founded in negligence or contract or under a State Lord Campbell’s Act, as being sufficient to meet this second aspect of 34. Is that right?
MR UREN: I am not too sure about “must fail”. In that context, the action – all we are addressing ourselves to at the moment is the nature of the action which has to be brought, not the persons who bring the action. In the context of an accepted plaintiff, that is to say, the action already brought is by someone who is entitled to the asserted rights, the problem which your Honour mentioned does not arise.
If an action was brought by somebody who was not in the category but wanted the action amended so that other persons be included, then it would have to be a question of interpretation as to whether you could, under the heading of “brought by him or for his benefit”, assuming, for instance, the person who brought the action was one of the category, add other people in or not; in other words, whether an action had been relevantly brought if not all of the relevant persons were included. Or it may be that the section requires that the action be brought for the benefit of all those people and, if it is not brought for them all, then the action should be reconstructed so that it is.
In other words, it satisfies the statutory requirement, and all one needs then is an action being brought by somebody who is entitled to sue. But if an action is being brought by someone who is not entitled to sue, then we would not argue, I think, that that would be a sufficient action, because the question then would be one of the correct parties, and certainly the relation back rule does not operate with respect to an alteration of parties. So, in that context, if the action was brought by someone who was not entitled to sue, then there would be another reason for saying that the appropriate action had not been brought, but the context in which we are making our submissions is different. As I say, it is the case of an action brought by someone who is entitled to sue.
I wanted to deal next with the fourth point, which is really relating to the rule in Weldon v Neal, which is, again, only a basis for refusing leave to amend on the ground of a particular sort of prejudice. Just as the courts were entitled to make that ruling in the past without offending section 34, which was not a complete exclusion – the rule did allow for exceptional circumstances, whatever they may have been - - -
CALLINAN J: It was a very special case. There would have had to have been a whole lot of new facts pleaded to ground the actions which the plaintiff wanted to bring. None of the facts, which would be sufficient to found a claim in slander, would suffice for unlawful imprisonment or false imprisonment or assault.
MR UREN: Yes, which makes the case a more acute one and which shows the actual extent of the relation of that rule. The relation of that rule would have operated, according to Weldon v Neal, if it had not been for the discretionary element, and that was accepted without further ado by the court and has been accepted ever since. So it must be taken that that is in fact - - -
CALLINAN J: I do not know whether you would regard that as applying to a case in which all of the facts pleaded would suffice to ground some other cause of action.
MR UREN: Well, Weldon v Neal seemed to - - -
CALLINAN J: It is just a question of putting a different label on the facts.
MR UREN: Yes. Well, it would seem to us that Weldon v Neal did go so far as to do that. It may be for the technical reasons mentioned, relating to when the proceedings commenced if you amend it. Now, I think maybe that the views of the Court of Appeal in the present case were that you can distinguish between what you would call true amendments and substitutions, and that a true amendment, which the court considered this was one, was merely a reconstruction of what has already been done, whereas a substitution might be the addition of something else.
Now, whether or not that is a legitimate view, it certainly would not, in our submission, accord with Weldon v Neal because Weldon v Neal was clearly a case in which there was a quite different cause of action and therefore quite different facts. I daresay it may have arisen out of the same event, in the sense that it may be the slander and the false imprisonment - - -
CALLINAN J: But the factual elements were entirely different.
MR UREN: The elements would all be quite different. But Weldon v Neal recognised the operation of the doctrine of relation back even in those circumstances. Going back to the effect of Weldon v Neal and the present amendment, which, in our submission, only alter to some degree the discretionary element which has always been present in respect of amendments – are only rules which provide for a somewhat different discretion than had previously been the case. In our respectful submission, there is nothing inconsistent with section 34 in that being the case, unless section 34 is given a different interpretation than, in our submission, limitation provisions have always been given.
There is no reason to take this out of the generally accepted view of the operation of limitation provisions via the relation back doctrine and the discretion relating to prejudice. All that has happened is the State courts have made an adjustment and, in our submission, unless section 34 is to be regarded as distinctly different from any other case in which limitation provisions prevent either the exercise of rights or abolish the rights themselves, then there is just nothing in any proposition that section 34 makes any provision to the contrary.
The last thing we wanted to mention apart from merely saying
we rely on our written submissions which we will not repeat, is that
we have
noticed in Shawcross and Beaumont at paragraph [445], this is looking at the
matter of international comity as it were, but
there are of course, a number of
matters which going back to the Convention, lead to other places. Paragraph
[445], the passage
I think which my learned friend read part of, it is provided,
or at least the learned authors say:
The Conventions make no express provision concerning changes of party once the action has been commenced. This, being a procedural matter, falls to be regulated by the lex fori, English law in the case of an English action.
Now, that is a fairly strong thing to say with respect to a
change of party, but they are matters to which, of course, the principle
of
relation back does not apply. But nonetheless, the Conventions apparently say
nothing about that despite the allegedly draconian
effect of them which has been
submitted to the Court. The authors then go on to say:
A question which has caused some controversy and difficulty is whether the court could allow the addition after the expiry of the two-year limit of a further defendant in an action properly commenced within the period.
So it is not out of bounds, but it is something which was
apparently controversial –
For many years the settled practice of the English courts has been to refuse to allow amendments to pleadings which would prejudice the interests of other parties. This covered the addition of further plaintiffs, of further defendants, and of fresh causes of action.
Then at the bottom, I will leave the middle paragraph for the
moment. The next one - at the bottom then appears the paragraph that
the
appellant read to your Honours with respect to New South Wales, and it may
have been this or another passage in which I think
one of your Honours said
which does not indicate any surprise in part of the authors with respect to
contravention of the spirit
of the Convention, but the part we have not read
reads, after referring to the English situation with respect to change of
parties
-
However, Rule 19.4 of the Civil Procedure Rules introduced in 1999 deals expressly with the addition of parties after the end of the relevant limitation period, and this includes limitation periods set under any statutory provision. The court may add a party . . . It remains to be seen to what extent these rules alter earlier practice.
Now, it would seem that if that is what they are doing in the United Kingdom and, indeed, other areas have their own considerations presumably, there is little to be said for the view that we cannot in a sense do our own thing, if I may put it that way.
The principles of international comity with respect to conventions presumably have not prevented the United Kingdom legislature or the courts from doing what is said there - - -
McHUGH J: Mr Uren, the position of the United Kingdom is about as far removed from the position in Australia as could be imagined. We are dealing with a federal statute, and the hypothesis is that it has extinguished your cause of action. Now, I have read the submissions of the intervening States. It would take a lot of argument to persuade me that a State statute or a rule of court can deem an action which has been extinguished not to be extinguished. I mean, it is just contrary to basic principle, unless section 79 of the Judiciary Act gets you there. If the Commonwealth Act says the cause of action is distinguished, how can any State statute or any rule of a State court say it was not extinguished?
MR UREN: The answer is, it cannot, but it is - - -
McHUGH J: Of course it cannot.
MR UREN: It is not, that is the point.
McHUGH J: But that is the English position. If we were dealing with New South Wales legislation, what you have said about the English position would be entirely correct – when I say, “dealing with the New South Wales legislation”, I mean the New South Wales Carriers Act – but we are dealing with a federal Act.
MR UREN: The answer, your Honour, is that the federal element is of no real relevance to the question of when the action is brought.
GUMMOW J: I do not know about that. You say, “the federal element”. It is not a federal element. It is a federal creature.
MR UREN: Yes, but the fact that the right - - -
McHUGH J: It is the federal statute that creates the right.
MR UREN: The federal statute creates the right, but it also - - -
McHUGH J: And says when it is extinguished.
MR UREN: Yes, but it does not say when the action is brought. That is the point.
GUMMOW J: It is only a federal Act that can provide for the bringing of the action, too. You have to find a law under Chapter III. You have a law under section 51 creating a right, maybe, but you have to get some conferral of jurisdiction by a law under Chapter III.
MR UREN: The conferral of jurisdiction is given by conferring federal jurisdiction on the State courts, so they have the power to adjudicate on an action which is asserting rights ultimately which fall under the Carriers’ Liability Act. Then the question is - - -
GUMMOW J: Not ultimately, wholly. That is the point. That is what the Act says.
MR UREN: Then you also have to ask as another question: what does the court do in the course of doing that? The answer is: it applies its rules. It does not matter for present purposes what route the rules get to be applied because in natural practice they have to be applied. There have to be some rules which govern procedures of courts. Those rules, whether it is the fact that when the court is given the jurisdiction it comes with its rules or whether it is the fact that section 79 says the rules of procedure or the other laws apply, is perhaps not to the point because it must be perfectly clear, in our respectful submission, that there must be some rules which describe when an action is brought.
There is in fact a body of the law which says when an action is brought, which seems to operate in the federal sphere as well in the State because the Federal Court has rules which have abrogated Weldon v Neal now as well. So it is an effect of the rules which, by whichever route the rules get to be applied, nonetheless are applicable. If they are applicable to determine when an action is brought by virtue of the relation-back doctrine, which - if it is inherent in the rules as they are, they have exactly the same effect because it is set out verbatim in the rules. If the rules verbatim said, if an action was amended, then the action as amended is brought at the time at which the action commences, then one would have an express rule, but there is an implication, it seems, from the rules that that is what is meant by an action being brought.
McHUGH J: It is not a question whether
an action has been brought for the purpose of State rules independently of the
federal situation. It
is a question whether an action was brought for the
purpose of Part IV. I take it that you agree with the submission of
New South
Wales, in dealing with Air Link, that:
the cause of action under Pt IV of the Commonwealth Act was deemed to have been pleaded, (or brought) from 22 September 2000, when it was still within the limitation period imposed by s 34 of the Commonwealth Act –
even though the amendment was not made outside the period.
MR UREN: Except we do not agree with the word “deemed”. That word should, in our submission, be avoided because it adds considerations which are not relevant. The deeming covers a number of different things. We are not deeming anything to be what it was not. The question is, when is an action brought, and if attention is concentrated on that rather than on what one might call the metaphysical considerations of extinguishment – and we have mentioned that that seems to be a view which Mr Justice Priestley took in Proctor – one only has to ask, when is this action brought after the amendment?
Now, whether there is, in one’s head, as it were, a problem with respect to extinguishment or not is really not to the point, because the point is really one of interpretation. It is not one of jurisdiction. It is not a question of whether the State law - - -
McHUGH J: Of course, it is one of interpretation, but the question is what does “action” mean, action brought for the purpose of the Commonwealth Act? I mean, on your theory of the case, it could be brought 25 years later. Certainly on New South Wales’ theory of the case.
MR UREN: I am not too sure, your Honour, about that, but the - - -
McHUGH J: Well, if you can exercise a discretionary power to allow the cause of action to be pleaded, even though you have not referred to it, well - - -
MR UREN: Well, that might give rise to different considerations, and there may be reasons why there is no problem 25 years later. It depends on the circumstances.
McHUGH J: I know.
MR UREN: But the point we make is that section 34, if it appeared in the State statute, would undoubtedly attract the operation of the relation back rule. Now, if section 34 in exactly the same terms is transmuted as it is into – in fact, it does appear in a State statute because it appears by reference in the State Carriers’ Liability Act, and it also, as has been mentioned, section 34 could be the subject of an action in the Federal Court in which case there are specific Federal Court rules which recognise the application of the doctrine of relation back by abrogating Weldon v Neal.
Now, what the defendants are asserting, it seems to us, is that there is a little chink jurisdiction which does not have these benefits or these applications, or alternatively, they have a wider purpose which is to say that it must be held as a matter of construction that no matter where the action is brought and under what statute, where the words “if an action is not brought by him or for his benefit” appear in the context of extinguishment, that the relation back rule has no effect whatsoever, because as a matter of construction, the right having been extinguished, then the action cannot be later amended, and that - - -
McHUGH J: Yes, but it leads to this absurd conclusion. Two years day one, no action has been brought for the purpose of section 34. A State Supreme Court makes an order which reverses the effect of the Commonwealth legislation.
MR UREN: Well, in our submission, no.
McHUGH J: It must.
MR UREN: No, the Commonwealth – it depends what you regard the Commonwealth legislation as doing. If the Commonwealth legislation allows for the operation of State laws with respect to when an action is brought, then you only have to ask whether the action is being brought or not, so there is no point in asking what happened five years ago, two days ago or anything of that sort. One asks what the situation when the amendment is made and if the defendant then wanted to strike out the statement of claim at that stage, you would say, no, no, no, the action has been brought within the relevant period. That is the undoubted effect of the relation back rule. If section 34 is to otherwise provide, then it must do as a matter of construction of section 34.
If a State law in exactly the terms did not otherwise provide, which it is clear they do not, then there is no reason why section 34 in exactly the same terms should otherwise provide either.
GUMMOW J: Mr Uren, are you saying that section 34 by itself is a federal law that contemplates, permits, requires for its operation the drawing in of State rules independently of section 79 of the Judiciary Act?
MR UREN: Yes, we do not have to go that far, section 79 would do it and so would the Electricity Commission doctrine that we have referred to because each of them - - -
GUMMOW J: But you put it on two bases and one basis is that 34 itself is enough to draw in these State rules.
MR UREN: Yes, because one must search for something which says when an action is brought and, just as one does with respect to a State statute which said exactly the same thing, one still has to ask the question: when is an action brought? If there is no federal law which provides for when an action is brought, then the only place that you can find it is in the laws applicable by the court in which the proceeding is brought, otherwise there is no provision, which would seem unlikely. So, in our submission, the matter is one purely of statutory interpretation - what section 34 in any context would allow, in other words, a State context or a federal context will allow because on the assumption the words do not differ, then they must mean the same thing. If in the State context an action is brought at the date of commencement even after amendment, then if that is the rule which the State court would apply, then why should there be any difference if the federal law uses the same words and if the federal statutes are alternatively another principle which - - -
GUMMOW J: Section 28, I think you say, creates the federal right, if you like, and it is a law under section 51. You also need a law under Chapter III to provide for some vesting of jurisdiction to give effect to the right.
MR UREN: Yes, which has been done.
GUMMOW J: And that is done by section 39 - - -
MR UREN: Yes.
GUMMOW J: - - - and section 39B in relation to the Federal Court.
MR UREN: Yes. Then, by one route or another, the Supreme Court arrives with its modus operandi, one of which is how and when you commence an action or when you bring an action.
McHUGH J: So that can result in you having different extinguishments of action depending upon in which State the action is commenced?
MR UREN: It could.
McHUGH J: Queensland has no relation back rule. You are out of court after two years. New South Wales, you may not be out of court for many years.
MR UREN: You could. That is inherent in adopting State laws. Whether it is a good thing or a bad thing is not to the point, but it is inevitably inherent that one has jurisdictional benefits, which is the reason why some people like to get into different jurisdictions, but that has never been regarded as – at least, I think it has never - - -
GUMMOW J: The Electric Light Case to which you referred us to is a case which is very understandable in a purely State context, but this is not that.
MR UREN: It is true, it is not, but it is put as a matter of interpretation, not as a matter of State context. I see in Mr Renfree’s book it is mentioned in the context in which we are presently concerned. But to go back to your Honour Mr Justice McHugh’s point, if there are differences in proceedings in different jurisdictions, then they may be addressed by other means, but it is true that there are jurisdictions with different laws in areas other than this.
McHUGH J: Of course, but you would not strive to give the section a construction which would have a differential operation in different jurisdictions.
MR UREN: Yes, but one must remember, your Honour, that an action will already have been brought which entitles the – an action will already have been brought which is something which anchors somebody to a particular place, in any event, and cannot commence an action in another place. I think there is an English case to that effect.
GLEESON CJ: Is that a convenient time, Mr Uren?
MR UREN: Yes. Your Honour, subject to anything the Court might say, I think I have concluded what I wish to say.
GLEESON CJ: Very well. We will adjourn until 2.15.
AT 12.45 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.19 PM:
GLEESON CJ: Yes, Mr Burmester.
MR
BURMESTER: If it please the Court, yesterday I was asked a question, and
it seems an appropriate time to respond to that before the States
started their
submissions. It concerned the reference in the definition of “Air
Navigation Regulations” in section 26 of the Civil Aviation Act to those
regulations as in force by virtue of the law of the State.
The historical reason for inclusion of this appears to be that as a result of the Burgess decision in 1936 it was clear the Commonwealth could not control intrastate navigation and so the States enacted various laws to pick up the Commonwealth Air Navigation Regulations as in force from time to time, such as the Air Navigation Act 1938 (NSW) and the Air Navigation Act 1958 (Vic). The aim was to ensure that this part would apply to aircraft with a licence under Commonwealth Air Navigation Regulations or State Air Navigation Regulations as picked up by State law.
GUMMOW J: Or both, I suppose.
MR BURMESTER: Or both. Now, more recently, particularly since the passage of the Civil Aviation Act in 1988, an air operator’s certificate is now essentially required by all aircraft, and there is very little left in the Air Navigation Regulations that State law picks up for their own purposes. In fact - - -
McHUGH J: I referred Mr Uren to that - in section 27 it would seem that everybody has to have one before they can fly a plane in Australia.
MR BURMESTER: That is correct, your Honour, that section and in particular the regulations that have been prescribed for the purposes of section 27(9) of the Civil Aviation Act set out the categories of commercial purpose for which a licence is required and it is very extensive so that effectively, any commercial aircraft today - - -
McHUGH J: So that once you have the ticket showing that the plane was engaged on trips that came within 27(4), maybe there is a presumption of regularity that that was licenced.
MR BURMESTER: Certainly, if one sees reference to an air operator’s certificate or that one was licenced to fly, then the reality is that would refer you to a Commonwealth licence. There may still be some residual State licences under other State laws for particular purposes, for economic regulation or whatever, but certainly, commercial air operator’s certificates will be Commonwealth licences and - - -
McHUGH J: The big conflict in Airlines (No 2) was that you had to have two licences.
MR BURMESTER: You had to have two, and that may still be the case in some States. I have not been able to - - -
GUMMOW J: It looks as if the Air Transport Act 1964 (NSW) would still require it.
MR BURMESTER: That is right. I think in some States there is still a requirement to have an additional licence, but in terms of the licence to fly conferred by Commonwealth law, it is now essentially via the Civil Aviation Act and the regulations made under section 27 of that Act.
KIRBY J: Would that apply to an aircraft which was solely flying intrastate?
MR BURMESTER: Yes, your Honour, so an aircraft that did nothing but fly between Dubbo and Cobar every day would still have a Commonwealth - - -
KIRBY J: What is the source of power for that federal law?
MR BURMESTER: That comes out of the Airlines (No 2) Case in 1965.
KIRBY J: Is that because of the close integration - - -
MR BURMESTER: Yes, the close integration. The safety regulatory and efficiency of interstate aviation enables the Commonwealth to control other aviation that could interfere with that.
The other question I think Justice McHugh asked particularly about was the interaction between the States’ Civil Liability Acts and the Commonwealth one. I have not been able to ascertain a great deal of information about that other than that they were designed to ensure a seamless web and pick up the Commonwealth Act. The reference in section 6A of the New South Wales Act to administering and enforcing the provisions as laws of the Commonwealth and for the Commonwealth to have powers and so on, seems to have been inserted at the time the Part IVA dealing with insurance was inserted in the Commonwealth Act. It apparently was envisaged that the Commonwealth would somehow assume responsibility for ensuring air operators had relevant insurance. I have not been able to ascertain whether any actual arrangements have been made, but that seems to have been what was behind the provision. When they tidied up that Act they added that provision. The basic aim is to ensure, again, that there is no gap; there is a seamless operation.
McHUGH J: Thank you, Mr Burmester.
MR BURMESTER: If it please the Court.
GLEESON CJ: Yes, Mr
Solicitor for Western Australia.
MR MEADOWS: May it please
the Court. The purpose of our intervention was to contend that in the
circumstances of this case the resolution
of any question as to how two laws
were to be reconciled arose under section 79 or section 80 of the Judiciary
Act rather than section 109 of the Constitution, which it had been
suggested was the case by the appellants in their section 78B notices. As no
one seems to now suggest that this
is a section 109 case, we are content to rely
on our written submissions to that effect.
GLEESON CJ: Thank
you, Mr Solicitor. Mr Solicitor for New South Wales.
MR SEXTON:
If the Court pleases. Your Honours, we have not and we do not make any
submissions on the form of the pleadings in each case, and
so the consequences
for whether and when an action is brought for the purposes of section 34 in
those cases. Our written submissions were premised on the inadequacy of both
sets of pleadings, which was what was found in each
case in the appeal courts
below. It may be of course that your Honours come to a different
conclusion on those questions but, as
I say, they are not addressed in our
written submissions and we do not address them now.
There are only two matters in our written submissions on which we would now make some brief oral submissions. The first of those is the validity of the relevant District Court Rule in New South Wales, and the second, which is the aspect of our submissions that particularly struck Justice McHugh, is the question of whether section 34 otherwise provides, so that that District Court Rule is not picked up by section 79 of the Judiciary Act.
If I can take the first of those matters, your Honours. It may be convenient to see the provisions set out at pages 170 and 171 of the appeal book in Air Link from the judgment in the Court of Appeal of Justice Mason. If your Honours see at the bottom of page 170, section 161(1) begins, and that is essentially in its current form. And then the two dot points at the top of page 171 provide the kinds of rules that may be made. We would say that both of those provisions would support the rule that is made in this case.
Going across the page to the top of 170 there are two more provisions, and we would say that both of those as well support the relevant rule. So there are four possible bases of support, we would say, that any and all of those provisions support the existing rule.
McHUGH J: Why would you construe a subordinate power as authorising rules that interfere with fundamental rights?
MR SEXTON: Well, we say that does not happen here, your Honour.
McHUGH J: On the hypothesis that the cause of action is denied and that the defendant is no longer liable, why would you construe the power to make the rules as making a defendant liable?
MR SEXTON: Your Honour, we say that there is not a right affected here, that all that happens with the limitation provision is that it places a restriction on what the plaintiff can do. It does not create a right in the defendant.
McHUGH J: But it extinguishes an obligation, and if the rule is valid and can apply it then imposes an obligation in the same terms on the defendant.
MR SEXTON: Well, it is not extinguished if it is brought within the period, and that of course depends in a sense on whether or not the rule is picked up, we would say, by section 79 and applied. If it is, then the action is brought within the time in any event, it is not extinguished. In any event, we say that there is not a right created in the defendant. Your Honours have a copy of the case of Mitchell v Harris Engineering, which concerned the English limitation statute. If your Honours go to page 71 - - -
McHUGH J: We referred to this case in Bridge Shipping.
MR SEXTON: That is right, your Honour, but perhaps not quite on this point.
McHUGH J: No.
MR SEXTON: But it was in your Honour’s judgment, a reference to it.
McHUGH J: Yes.
MR SEXTON: If your Honours go to page 718 of the
judgment at about point 2 your Honours will see there that Lord
Denning says:
The Statute of Limitations does not confer any right on the defendant. It only imposes a time limit on the plaintiff.
McHUGH J: Yes, but the argument against you is that this is not a true statute of limitations, it is a condition precedent, and it is in the same category as the compensation of relatives action that this Court held in Maxwell v Murphy, was an essential condition of the action.
MR SEXTON: Your Honour, it is our submission it is a statute of limitations, that that is its purpose and its effect here in this case. I have quoted from Lord Denning. Lord Justice Davies on the following page, 719, agrees with Lord Denning, and on page 720 Lord Justice Russell is, we would say, to the same effect although he does not quite put it in those terms. It is the result that he comes to.
GUMMOW J: The statute of limitations says “no action should be brought”, does it not? It does not talk about extinguish.
MR SEXTON: I am sorry, your Honour?
GUMMOW J: It does not use the word “extinguish”.
MR SEXTON: It dos not, no, not the English statute. That is right, your Honour, yes. But what section 34 says is “extinguish unless” so that we would say it is to the same - - -
KIRBY J: There must be a difficulty here. If it is extinguished by federal law then how can you de-extinguish it by a State law?
MR SEXTON: I quite accept, your Honour – well, it is not by a State law. Assuming that the rule is picked up by section 79, to which I will come in a moment, but assuming that it is, then the question is the reconcilability of those two federal laws. We make the argument of course that they are reconcilable, but as your Honour says it could not be done, a State law could not have that effect, your Honour.
McHUGH J: But you go beyond what Mr Uren contended. Mr Uren says that the very term “action” itself picks up all of the rules of the jurisdiction, or the relevant rules of the jurisdiction concerning actions and the pleading of actions, but your paragraph 2.5 seems to go beyond that. You rely on a doctrine of relation back, and you seem to say even though it might have been extinguished in fact, nevertheless it can be amended outside the limitation period and then takes effect within the limitation period. It is deemed to have been pleaded.
MR SEXTON: I do not think we are saying anything different from Mr Uren, your Honour. If section 79 does pick it up, then what happens is that the action is not extinguished.
McHUGH J: But Mr Uren’s submission does not depend on section 79. He says it is inherent in section 34.
MR SEXTON: It has to depend on section 79, if I may say, your Honour. It is the only way that the State law can be applied. It cannot apply of its force, we accept that.
McHUGH J: Yes, he says it is federal law but section 34 itself, by using the term “action”, picks up whatever the laws are of the relevant jurisdiction concerned with actions. That was the point of his reference to the Electricity Commission Case 94 CLR.
MR SEXTON: It is another way of putting it, your Honour, but it seems to us - - -
McHUGH J: It is a very different way of putting it, I think, Mr Solicitor. On its face, paragraph 2.5 of your submissions seems to say we can accept that in one sense the action is extinguished, but nevertheless, once an order is made under the District Court Rules, then it is deemed to have been pleaded from the date when the statement of claim was filed.
MR SEXTON: Your Honour, what we say is that if the relevant District Court Rule is picked up by section 79, then as a result of that the action is not extinguished because it is brought within the limitation period. That is the effect of the application of the rule. It is true that that involves, in a sense, the notion of relation back, but there is nothing extraordinary about that in terms of rules of court.
McHUGH J: I understand your submissions now that you rely only on section 79, but that is not the way the submission is set out. There is not a mention of section 79 in paragraph 2.
MR SEXTON: But it runs right – if I can just simply - - -
McHUGH J: You have to go over to paragraph 4 before you - - -
KIRBY J: You say, do you, that it is self-evident? It cannot apply on its own force and therefore it needs section 79, therefore we do not bother to mention such a trivial section? But you would be surprised if you sat here how many people think State laws apply just of their own force in federal jurisdiction. I mean, very learned judges seem to think that. It is just a mythology of Federation.
MR SEXTON: Your Honour, we were perhaps assuming throughout the submissions that section 79 was the basis, and I think it is spelt out there at least in some parts of the submissions, but - - -
GUMMOW J: Your State is usually in favour of extinguishing people’s common law rights, is not it? You seem to be standing in two canoes, as we said last week.
MR SEXTON: It is a different river today. Now, your Honours, can I just go back for one moment to the District Court Rule. We say that it is supported on one of those four bases, and that is subject to the matter that has been raised by Justice McHugh, of course, about questions of rights, and I have dealt with that. It is why we say that it is not necessary here to have the kind of provision that was referred to in Proctor, section 6 of the Supreme Court Act, which of course provided a statutory basis for where there was substantive rights being affected.
The second point, your Honours, if I may, is the question of whether section 34 otherwise provides, and we would say that looking at the tests of irreconcilability and whether the Commonwealth Act leaves room for the operation of the State Act from Austral and GPAO, we would say that here, in the rather limited circumstances where the amendment is only allowed in a situation where the facts or substantially the same facts have originally been pleaded so that the later cause of action arises out of those same facts, one would imagine this to be a rather limited class of cases and that is not the kind of provision that is, the relation-back rule of the District Court Rule, that is in any way irreconcilable with section 34 of the federal legislation. Section 34 does leave room for rules of court of that kind and, as Justice Mason said below, section 34 on its face needs a number of things to flesh out its provisions, and obviously the question of when an action is brought is one of those, and there needs to be reference to the local rules of court.
GLEESON CJ: A possible point of view is that the other provision is found in the word “extinguished”.
MR SEXTON: Yes, your Honour, that is right. We say because of the way it is put it is extinguished unless that - - -
GUMMOW J: And if you are wrong about that?
MR SEXTON: Well, your Honour, if the meaning of the provision was that at the end of two years the action was extinguished - - -
GLEESON CJ: No, the right. It is the right that is extinguished.
MR SEXTON: The right is extinguished, then I think it is a more difficult argument. It may be a very difficult argument, but we say that that is not the – and the reason we say that it would not be read in that way and the reason that it does not, that is, otherwise provide, is because from a policy point of view, to read it so as to exclude this rather limited class of cases from the beneficial provision that is provided by the relevant rule of court would not derogate from that federal provision. In other words, it is possible to imagine a rule of court that allowed amendments that cut right across the policy basis of section 34, but it is the - - -
McHUGH J: But how?
KIRBY J: But the problem is it does involve reading of the phrase that you are about to give, “unless”, into the federal statute, and that phrase is not there.
MR SEXTON: Well, your Honour, as I said, it is possible to envisage rules of court that would derogate from section 34.
McHUGH J: But how? Let it be accepted that you have to commence an action in accordance with the rules of a particular jurisdiction, but after two years one day, if there is no action brought under the part, how can any rule of court resurrect what has been extinguished by force of section 34?
MR SEXTON: We say it is not extinguished, necessarily, at that time.
KIRBY J: The words do not mean what they mean? “Extinguished” is the verb used in the federal law.
MR SEXTON: But it has to be combined with “brought”, your Honour.
McHUGH J: Yes.
MR SEXTON: If this particular rule can be met, we say that the action is brought within the two year period.
McHUGH J: It might be according to State law, but what about federal law, section 34?
MR SEXTON: The question is does section 34 prevent that being picked up by section 79? We say it does not because it does not offend against the policy of section 34.
McHUGH J: Why not?
MR SEXTON: Section 34 leaves room for this kind of provision.
McHUGH J: No, why does it, because it does offend the policy? The policy is to get rid of these actions if they are not commenced within two years. You want to make section 34 hostage to States’ courts’ rulemaking powers?
MR SEXTON: No, not at all, your Honour. Why is it necessary to get rid of an action where the facts originally pleaded are those on which the federal cause of action can rely and be supported?
HAYNE J: That is the difficulty, Mr Solicitor. Your argument proceeds from a – it seems to me – fundamental misunderstanding of the rule in Weldon v Neal. You seem to be positing your argument on the assumption that Weldon v Neal is engaged if, but only if, the material facts had been pleaded in a different legal category as applied to them. I would have thought Weldon v Neal was concerned with precisely the opposite situation. That is where the material facts are not pleaded.
MR SEXTON: But, your Honour, the rule here, and the situation in Air Link is one where the facts were pleaded.
McHUGH J: No, but the hypothesis is that you have not pleaded sufficient facts to bring yourself within 34, therefore, your action is extinguished, and your argument is that, nevertheless, because of your rule, you can revive this dead body.
MR SEXTON: Your Honour, it depends a little on what is meant by the word “facts” there, but assuming that in this case the facts were pleaded that would support the federal cause of action, although it was not nominated in the statement of claim, we would say why would section 34 want to exclude in that rather confined category of cases - - -
McHUGH J: It would not, but then you do not have to depend on a Weldon-type amendment. You have already brought your action. As far as I am concerned, you do not have to describe it as being brought under the Act. It is sufficient if, as a matter of law, you can see from the facts pleaded that it is, but the hypothesis against you is that you have not reached that stage and your action does not disclose a cause of action expressly, inferentially or implicitly, and then you want to say, notwithstanding section 34, after two years one day you can revive what is an extinguished right.
MR SEXTON: Your Honour, part of that is an argument about whether the pleadings here or in some other cases allow you to say that the action has been brought, which is in a sense the Air Link (No 1), but on the assumption that Air Link (No 1) is right, which was the basis of our submissions, then the question becomes whether section 34 otherwise provides, that is, prevents the operation of this particular rule of the District Court, and we say that, in effect, section 34 can live with this rule of the District Court because it does not significantly derogate from the policy and the purpose of section 34.
GLEESON CJ: That involves giving this rule of the District Court a differential operation in cases such as the present, as compared with its operation in any other case. There is nothing about the rule of the District Court, is there, that limits the judge’s power to permitting amendments in cases where the facts that have already been alleged substantially plead the cause of action now sought to be relied on? The rule on its face is much wider than that, is it not?
MR SEXTON: Well, we would say here that it was that particular rule that was applied. That is why I say, your Honour, that there could be court rules that are much wider and the argument that section 34 otherwise provides would therefore be much stronger.
GLEESON CJ: But I am just wondering whether the theory is that the rule has a different meaning or a different effect when a District Court judge applies it in relation to a case involving the Commonwealth statute, as compared with the operation it has when a District Court judge applies it in some other case.
MR SEXTON: The confined factor, we would say, is the concurrence of the facts, and - - -
McHUGH J: I am sorry, I do not follow that.
MR SEXTON: That the relevant facts have originally been pleaded. When I say relevant facts, your Honour, that in a sense begs the question, but - - -
McHUGH J: But supposing in this case, all that had been pleaded was the plaintiff sues Air Link for damages arising out of an aeroplane accident. Now, on your submission, can the District Court outside the two-year period allow that action to be changed so that it is now clearly brought under section 34?
MR SEXTON: To some extent that depends on the meaning that is given to the facts or substantially the same facts in the rule itself. It may be enough or it may not be enough; it is not quite this case, your Honour. That is a matter for the rule itself, but the question of whether the rule can live with section 34 is a slightly different question.
KIRBY J: My difficulty is just a little different from Justice McHugh’s. The section uses the word “extinguish”, it is in an Australian statute. I can therefore understand an argument that it is against the background of our procedural laws and our federal arrangements and the powers of courts which have been enhanced in recent years, and that therefore one can at least possibly argue that it is not quite extinguished because it is extinguished in an Australian context. But the problem is that the words “bring the action” is picked up from the international treaty, and the treaty appears to have been founded on a certain finality, so that you have to be careful in giving that larger meaning to “extinguished” than you would in the treaty context.
MR SEXTON: That is why I talk about the policy underlying section 34, your Honour.
KIRBY J: I can understand the policy. What you are saying appears perfectly reasonable in the context of the facts of these cases perhaps, but in the context of giving meaning to a statute of the Federal Parliament, which in large measure was designed to give effect to the very words in the international treaty, I think the Court has to be very careful that it does not depart from the jurisprudence which has been built around the treaty unless it is willing to embrace a differential construction of section 34, which I just regard as unacceptable.
MR SEXTON: I have said, your Honour, that if the rule of court allowed a significant number of claims, for example, to be made which would otherwise be barred by this particular process, then it may raise a different question because there there would be a real question as to whether section 34 otherwise provides. We accept that section 34 was essentially designed to create a two-year limitation period. It is only a question of whether in certain unusual circumstances the rules of court can make other provision for that.
McHUGH J: You keep referring to limitation period, but there is a world of difference between a true statute of limitation and a statute that extinguishes or a statute that makes a cause of action subject to a condition precedent. A true statute of limitation does not extinguish the action. If it is not pleaded, it is irrelevant. It does not extinguish the cause of action.
MR SEXTON: As your Honour knows, we make the argument that this is a limitation provision.
I just had one thing in relation to your Honour the Chief Justice, that the relevant rule, in terms of the way we say it is limited by that notion of the facts, is Part 17 rule 4 and 4(5).
GLEESON CJ: Yes, I am looking at it. It is on page 153 of the book. What is going through my mind is this, Mr Solicitor. If all that is involved is putting a new label by way of description of the cause of action on the same facts, then I am wondering how the problem arises. If the constituent facts, of the kind described, for example, in that paragraph 50 of the speech of Lord Hope that we were referred to this morning, are already there in the statement of claim and all that is missing from the statement of claim is a reference to the Act and there is what Mr Uren describes as surplusage in the form of irrelevant allegations of fault on the part of the defendant, then it may be that a case which satisfies the requirements of paragraph (5) of the relevant rule would already have satisfied section 34 of the Commonwealth Act.
MR SEXTON: Yes, true. That is why I said at the start that your Honours may in a sense – well, it may not be necessary to get to that question if of course the pleading argument is resolved in favour of the respondents.
GUMMOW J: All this is premised, as you say, upon the proposition that Air Link (No 1) was correctly decided.
MR SEXTON: That was the basis of our submissions, but, as I say, your Honours could take a different view, in which case what the Chief Justice says would be the case.
CALLINAN J:
Mr Solicitor, I do not know whether the word “cause of
action”, which is the word used in rule 6, I think, of the New
South Wales
District Court Rules, necessarily exclusively means the label to be given to a
right of action. In Cooke v Gill (1873) LR8 CP 107 at 116,
Justice Brett said:
Cause of action has been held from the earliest time to mean every fact which is material to be proved to entitle the plaintiff to succeed - every fact which the defendant would have a right to traverse.
In other words, one should not too readily make the assumption that by “cause of action” you mean “label”, and that what has happened here, by sufficiency of facts pleaded – there may well have been a pleading of a right of action or a cause of action as required by the rule.
MR SEXTON: Which rule was your Honour referring to, I am sorry?
CALLINAN J: I think it is rule 6 – is it rule 6 of the District Court Rules.
McHUGH J: Sub-rule 5, 17(5).
CALLINAN J: You have to plead a cause of action. I think you do, possibly if you plead all the facts, and then that may be the end of the matter. People use the words “cause of action” interchangeably. Sometimes it is a reference to the remedy, an action for an injunction, an action for restitution, an action for an account in equity. So it is not exclusively the label, I would not have thought, and, if I am right about that, it may well be the end of the case.
McHUGH J: One difficulty may be that the rule itself speaks of “a cause of action arising out of any facts”. It appears to be looking at the description of the claim for relief, rather than the facts themselves which - - -
MR SEXTON: But it seems to have the assumption that the new cause of action, if I can call it that, has not been specified, even though the facts have been pleaded.
GLEESON CJ: I think there was a time when the District Court Rules actually had some forms. As part of them, they used to have a form of the blue document. That may have gone with the introduction of pleadings in the District Court, but is there any form referred to in the District Court Rules that would throw any light on what might be meant by these terms?
MR SEXTON: I will have a look, your Honour. I do not know the answer to that. We will check that, your Honour. Unless there are any other matters?
GLEESON CJ: Thank you, Mr Sexton.
GUMMOW J: You may get some assistance from
Justice Wilson’s judgment in Do Carmo v Ford Excavations
[1984] HCA 17; (1984) 154 CLR 234 which deals with the matters Justice Callinan was
putting to you, particularly at page 245, as to what this concept of cause
of action
means today:
simply the fact or combination of facts which gives rise to a right to sue -
That is what his Honour said.
MR SEXTON: We will see if we can find the answer to your Honour the Chief Justice. If the Court pleases.
GLEESON CJ: Thank you. Yes, Mr Solicitor
for South Australia.
MR KOURAKIS: If the Court pleases, can I
attempt to identify the three possible constructions of action brought in
section 34 which have been put
to your Honours, because in my
submission on none of those constructions does a question of inconsistency or
otherwise provide arise.
Your Honours, the appellants contend that to be
brought within section 34 an action must plead when first brought a cause
of action
under Part IV. That is a construction at one extreme. In its
favour it can be said that the addition of the words “under
Part IV” fall naturally from the Act in which section 34 is
found and it obviously enhances the interests of certainty.
Against it, though, if the Court pleases, it can be said and, in my submission it is the case, that it ignores a distinction between the bringing of an action and the enforcement of a cause of action, and that is a distinction that has been long recognised in limitation statutes, and one which, in my submission, equally applies to extinguishment statutes, as it does to those which simply bar the remedy.
To that effect, can I ask the Court to go to a judgment of Chief
Justice King of the South Australian Supreme Court in Karasaridis v
Kastoria 37 SASR 345, but to a passage being the first paragraph on
page 351. His Honour there at the top of page 351 first refers to the
particular
limitation statutes under consideration in that case, and without
going through them in detail can I just tell your Honours that
you can find
them on page 353. They are limitation statutes that barred the remedy, did
not extinguish the right, but nonetheless
at page 351
Chief Justice King said this, just a few lines down:
What is barred after the expiration of the time is the bringing of an action, not the enforcement of a cause of action. Even if those statutory time limits could give rise to a substantive legal right –
that is, in my submission, his Honour is contemplating extinguishment statutes such as the - - -
GUMMOW J: The problem for you is the phrase “right to immunity”, which of course his Honour was using because he was dealing with a limitation case.
MR KOURAKIS: Well, your Honour, it might be that that word is a little vague, but when his Honour spoke of a - - -
GUMMOW J: Not vague, no, no. There is a very clear understanding in limitation cases.
MR KOURAKIS: Your Honour, when his Honour spoke of substantive legal right, in my submission, he was contemplating an extinguishment. But be that as it may - - -
KIRBY J: I wonder if this distinction is known in civil law countries. I mean we have to consider that this is a statute of the federal Parliament, which uses the exact words of the treaty, and I am not at all convinced, without material, that this is a distinction that is common in civil law tradition.
MR KOURAKIS: With respect, your Honour’s observation is important, but when one remembers that I go to this only to discuss what bringing an action might mean, the comparison and reference to civil countries is perhaps very important because in procedures which are more inquisitive it may well be that even a broader claim as to what the action is about than that which is recognised or required by some rules in Australia would be permissible, and all the facts might only come out later.
Be that as it may, can I just say that the distinction to which I have referred, albeit again in the case of statutes which barred the remedy, was adverted to by Justice Wheeler in Morgan v Banning. I will not take your Honours to those passages that were read by Mr Burmester, but in Morgan v Banning 20 WAR 474 at 482 to 483, especially at 483C, that distinction was made.
Your Honours, returning to the appellant’s construction, which is that the action must plead the cause of action when first brought, even that requires some qualification because if an action in negligence say, not pleading all material facts, was brought within time but then still amended within time to plead that which was necessary to support a Part IV action, one would not speak of the amendment as bringing a fresh action. It is simply an amendment in an existing action. So presumably the appellant’s submission is that section 34 requires an action that pleads the cause of action when first brought, or at least pleads it before the expiration of the limitation period. One starts to read those words and qualifications of that nature. In my submission, it suggests that the construction for that for which they contend is more difficult to support.
Your Honours, the other construction on which the respondent Hatfield contends for is that any action will do, that “action” refers to any action in which the court could, in accordance with its powers and procedures, allow an amendment that would enforce the cause of action under Part IV.
In its favour it might be said that section 34 was enacted in the knowledge of judicial practice and procedure which allowed a general endorsement of a writ and so on. On the other hand of course, it lacks certainty and to that extent might go against some of the purposes of the treaty. Your Honours, it is the middle ground which was articulated by the Commonwealth and by the respondent Hatfield – I think I mixed them up earlier – for which the State contends - supports. That middle ground is that section 34 is satisfied if an action is brought if it is an action for an injury suffered on board an aircraft in the course of carriage.
GLEESON CJ: What if by that test section 34 is not satisfied?
MR KOURAKIS: Then – and this comes to the question of the rules – there is nothing that the rules can do to change the operation of the statute.
GLEESON CJ: The Commonwealth statute?
MR KOURAKIS: Yes. Even with respect to State statutes, difficult questions would arise, but certainly with respect to Commonwealth statutes the State court rules could not operate in effect as a waiver or tolling of the Commonwealth limitation statute.
GLEESON CJ: Do you happen to know what, at 1959, was the procedure in South Australia for bringing an action to claim damages? Did you have to file or annex to a writ a statement of claim, or was it sufficient just to file a writ?
MR KOURAKIS: Your Honour, I believe that it was sufficient to file a writ which had a very general statement endorsed on it, not with a statement of claim annexed. That came later.
GLEESON CJ: So that at the time the Commonwealth legislation was enacted, it would have been consistent with the practice in South Australia to bring an action under the Act which made no reference to the Act and, for that matter, made no reference to any facts that would cause the Act to apply?
MR KOURAKIS: It would not need to make reference to all the necessary elements of the cause of action. It might simply plead an injury, claim damages and be that general. It would not be a nullity if it was so expressed.
GLEESON CJ: I might say that is my recollection of what the practice was in New South Wales in 1959 at the time of the enactment of this Act, that a claim by a plaintiff in this position would be commenced by filing an extremely uninformative document. How would one apply the Act to that form of procedure?
MR KOURAKIS: Your Honour, one could apply it in a number of ways. If one adopted the construction that any action would do so long as it was within the power of the court to include the Part IV cause of action by amendment later, if that is the wide construction that is given to action brought, an action would have been brought without any reference. If one accepts the middle ground construction, although the rules of court would allow the initiation of an action with as little as the claim for damages, that would not meet section 34 because whatever was necessary to invoke jurisdiction might, nonetheless, not be sufficient to come within section 34 to say that you have brought an action and it may be necessary to plead even more.
GLEESON CJ: A possible point of view is that section 34 ought to be understood in the light of the practice of many, most, maybe all Australian courts at the time the legislation was enacted.
MR KOURAKIS: Yes. Your Honour, not only at that time. Your Honour raised the question of small claims tribunals yesterday, and I have materials which I can hand up which show that an endorsement as general as that would do for the “minor civil action” jurisdiction, which is a jurisdiction up to $6,000, in South Australia. Although the general rules as to pleadings requiring identification of facts sufficient to constitute a cause of action is required by the rules generally, the provision of the Act, which is handed up, shows that in its small claims and minor civil action jurisdiction the court proceeds without being bound by pleadings, and has, indeed, an inquisitorial function and approach.
GLEESON CJ: Well, that is what has been troubling me. Section 34 does not only apply to cases of people who are killed or quadriplegics, it also applies to people who are trying to get a couple of hundred dollars back for their lost baggage.
MR KOURAKIS: Yes, or claim for a small injury that occurred when the aircraft landed. It could be any number of instances like that.
McHUGH J: Well, the answer may be that for the purpose of section 34 there is not an action brought within the meaning of the section until you identify the cause of action. So in the Supreme Court of New South Wales you just issued a general writ for $1 million, it could have been for defamation, it could have been for malicious prosecution, but until you filed your declaration in support of it, identifying that it was an action that came within Part 9, and you pleaded the facts, section 34 was not engaged. Likewise, in the small debts court, until you stood up in front of the tribunal and said, “This is a claim under Part IV”, you had not brought your cause of action, even though the jurisdiction of the body had been engaged.
MR KOURAKIS: Your Honour, if that is the result, it is a result that follows from a construction of section 34.
GLEESON CJ: But, if that is the result, it means that time is running while you are being delayed by the court’s lists.
MR KOURAKIS: Yes. Worse still, it may well be that some courts actually prohibit any pleading that would be sufficient to meet section 34. Those rules might themselves be inconsistent with the grant of federal jurisdiction, of course, but real problems about meeting the time limits might arise in those courts which proceed more informally, less formally.
McHUGH J: Well, there are two ways you can look at it. One is that the time is running against the plaintiff until that person identifies the cause of action. If they have not done it within two years, even though they have filed their writ within the two years, they are out of action. The other view is that you can backdate it, so that, even though you do not identify the cause of action for three years, nevertheless it dates back to the issue of the writ. Now, that supports the sort of argument that Mr Uren was putting.
MR KOURAKIS: Your Honour, with respect, I would not make a submission that relied on dating back or deeming. In my respectful submission, the proper approach is to ask whether an action within the meaning of section 34 was instituted within two years. Now, just what sort of action is required, as Mr Uren, with respect, rightly submitted, depends on a construction of those words.
KIRBY J: But it really depends on whether the fact that at some times and in some places and even today in some causes of action, you can bring proceedings in a very informal way simply by commencing the writ. Whether that, in the context of section 34 implies that because it has to operate on all of these possibilities that therefore “brought an action” is going to mean simply initiating the action, or whether, as Mr Margo submits, that in such cases where you have not, as it were, spelt out your cause of action, you have not brought the action until you do spell it out where that is required. So that in the case you have handed up of the small claims-type matter, well, if that is what it requires in that case, that is all that is required.
The question really is the one the Chief Justice has been asking, do you infer from the fact that in some cases in 1959 and even today you just issued a writ that if that is enough for the purpose of engaging section 34, a federal statute, that the demand is very small. Now, to answer that in my case I am going to look at what the international Convention says, because this is not just meant to apply in the backwoods of Australia, this is meant to operate right throughout the world, this formula.
MR KOURAKIS: Your Honour, apart from the English decision, Western Digital, there was no international decision that dealt with the question of when an action is brought, and one can imagine, although I have not undertaken the inquiry, that there are civil jurisdictions where the initiation of the action is by the filing of a document which is as general as the endorsements that were made under writ procedures, and that may well be the case.
McHUGH J: Mr Solicitor, when you are dealing with a true statute of limitations, you can prevent time running. On more than one occasion, for various reasons, as a result of advice I gave in actions, a writ would be served in time to preserve the cause of action. In New South Wales it did not identify the cause of action, but it was stopped. It was not until you filed your declaration in the old days that the defendant knew what the cause of action was, but as long as you pleaded it you had stopped the time running, even though the declaration might not go on until seven years after the accident.
MR KOURAKIS: Your Honour, that result would follow from a construction of the State limitation statute, and the words “action brought” in the State limitation statute was understood, if not expressly held, to mean, any writ of the most general endorsement. Now, that might be - - -
KIRBY J: It seems very unlikely from the material we were taken to in Povey of those hard-eyed people from the aviation industry in 1929 who went ahead to try and have a very strict and rigid regime, that they intended an open-ended tolling of the statute and that they were really in sympathy with these common law notions of suspending the operation or tolling the statute. It seems very unlikely that that is what they intended.
MR KOURAKIS: Your Honour, this question that is being addressed in this case is antecedent to the question of tolling. It is not a question of suspension of the time, preventing it running, giving some excuse or waiver of it, it is a question of when the action is actually brought, but - - -
KIRBY J: We were taken to the material in Povey and the United States was holding out from this and the only way they were brought in because of the influence on the then administration was by some very stern measures that were incorporated. It is all written up in their Law Reviews and we had them in another case and I am going to look at them again.
MR KOURAKIS: Your Honour, those considerations equally support what I have described as the middle ground construction, which is that the proceeding must at least be for injury suffered on board an aircraft in the course of carriage, and that would tend, in my submission, to meet the concerns of the treaty. The implication of those words is grounded in the part generally in section 28. If it was so pleaded, in my submission, it would be sufficient to raise a matter in federal jurisdiction and that is because the substantial subject matter of the legal controversy, if one has pleaded injury on an aircraft, is one over injury on an aircraft, and those facts, whether initially pleaded or not, which might bring into operation Part IV, are part of the substantial subject matter of the controversy, whether they are pleaded or not.
To put it another way, someone seeing the pleading, pleading an injury on an aircraft and knowing, which must be the assumption, the provisions of Part IV of the Civil Aviation Act, will appreciate that a question necessarily arises under that Act as to whether Part IV applies to that injury on the aircraft.
GLEESON CJ: Take a claim brought in the Magistrates Court, Civil Division, of South Australia by somebody who suffered a minor personal injury on an aircraft. Looking at this document, I suppose what you would do is tick the box that said “other personal injury”.
MR KOURAKIS: Yes.
GLEESON CJ: And fill in the rest of the form and serve it on the airline company.
MR KOURAKIS: Yes.
GLEESON CJ: That would comply with the rules of court.
MR KOURAKIS: Yes. There is a spot for particulars. On the actual form the space allowed is no more. Obviously we know we can add pages to this, but this is what the unrepresented litigant receives.
GLEESON CJ: A court officer advising an unrepresented litigant who is standing at the counter saying “I’ve hurt my elbow and I want to sue the airline company” would tell the person to tick the box alongside “other personal injury” and under “Particulars” say, “You hurt yourself while you were travelling on a plane from Adelaide to Sydney”.
MR KOURAKIS: Yes.
GLEESON CJ: Full stop. Why would that not comply with section 34?
MR KOURAKIS: In my submission, it would because on that middle ground construction, that is that it requires an action for damages for injury suffered on board an aircraft, would be met.
KIRBY J: I think Mr Margo agrees with that. He says that in that case the action would be brought, but where you bring it in the context of a Supreme Court or a District Court which has requirements of pleading, you have to comply with those requirements.
MR KOURAKIS: The difficulty with that submission, with respect, is that all the rules must be looked at. The Supreme Court Rules require certain particularity but they also carry with them the power to amend and to cure defect and the proceedings, although not complying with the full rigour of the rules as to pleading, are not a nullity. The concession that, with respect, the appellant makes - - -
KIRBY J: So you cannot have only some of the Rules of the Supreme Court, is the hypothesis of the federal statute, you have to take the package.
MR KOURAKIS: Yes. That concession, with respect, is a concession which matches the more extreme ground of the respondent in the New South Wales case that any action will do, as long as the courts allow. Your Honours, if the middle course is adopted, what it means is that whether a plaintiff brings an action within time will not depend on whether they have given full particulars of the air charter licence and said whether it is New South Wales or South Australia or Commonwealth; it will not depend on whether they are lucky enough to put in a ticket number. If they simply plead, “I injured myself when the Airbus 300 landed at Sydney Airport”, they have done enough to bring an action because they have made a reference to the essential subject matter, in accordance with section 28.
All the rules allow for are the court to allow or refuse an amendment. Whether or not section 34 is met, though, will not depend on that, because we do not contend for any deeming provision or tolling power on the part of the courts here with respect to a federal statute, but just whether section 34 is met in the first place. Accordingly, the question of whether section 109 has to be considered first, before sections 79 or 80, does not strictly arise in this case.
I do make this submission, though. But for sections 79 and 80, State laws could apply to, and be applied by, State courts, even State courts exercising federal jurisdiction. Whether that is because the State laws apply directly, or through common law choice of law rules which the State courts exercising federal jurisdiction first apply, is another question, but, absent 79 and 80, there could be that application, in my submission.
GLEESON CJ: Your argument, as I understand it, is that section 34 has to operate, even within Australia, against a whole lot of different kinds of procedures for starting actions. If you consider it worldwide, the variety would be even larger. As a general rule, the more particularity or specificity the rules of a particular court require in an initiating process, the more likely it is that those same rules will empower amendment.
MR KOURAKIS: Yes, and the whole body of rules must be
adopted, not just part of them. If the Court pleases.
MR SEXTON:
If the Court pleases, I will just take a moment to answer the
Chief Justice’s last question. There are 156 forms attached
to the
District Court Rules. Form 8 is for an ordinary statement of claim, but it
is not particularly helpful in the sense that
it says, “The plaintiff
pleads his cause of action as follows”, and then it says, “Plead as
required by the Rules”.
GLEESON CJ: So, these days, your initiating process in the District Court is a statement of claim, whereas 40 or 50 years ago it was either an ordinary summons or a default summons. An ordinary summons would simply identify the parties and make a claim for general damages. A default summons corresponded to what was called in the Supreme Court a specially endorsed writ and would claim a liquidated amount with some particularity of the cause of action.
MR SEXTON: There is provision in Form 9 for a statement of liquidated claim in these rules, and the ordinary statement of claim is Form 8.
GLEESON CJ: When the District Court was established it used to be called the People’s Court. Yes, thank you, Mr Sexton.
MR SEXTON: Well, your Honour, there are only 156 of the forms. If your Honour pleases.
GLEESON CJ: The Solicitor-General for Victoria.
MS TATE: May it please the Court. Both appeal courts below
appeared to be in some doubt as to the role of section 109 in determining
whether
State laws were applicable in proceedings in federal jurisdiction.
Might I just refer, without taking the Court, to the judgment
of Mr
Justice Ormiston in Agtrack, the appeal book pages 149 to 150, and
the judgment of the President of the Court of Appeal in Air Link at
appeal book pages 178 to 185, where his Honour agrees with, and adopts, the
reasoning of Mr Justice Ormiston, and also at pages
198 to
199.
GUMMOW J: What is the passage in Justice Ormiston?
MS TATE: In Justice Ormiston’s judgment, your Honour, it is at appeal book pages 149 to 150.
HAYNE J: Paragraphs?
MS TATE: It is 61, your Honour, to 62.
HAYNE J: Thank you.
GUMMOW J: Now, it seems to me, with respect to everybody, this somehow misconceives what is going on.
MS TATE: Yes, your Honour.
GUMMOW J: Sections 79 and 80 are only engaged when you are in the court.
MS TATE: Yes.
GUMMOW J: That is what Solomons says.
MS TATE: Yes, your Honour.
GUMMOW J: There may be a common law rule that has been modified by – a substantive law which has been changed by a State law, and which has been changed by a federal law under section 51. If so, federal law operates, regardless of whether you are in a court or not. That is all that is being said.
MS TATE: Yes, your Honour. It is our submission, your Honour, that it may be necessary to - - -
GUMMOW J: An example, I might say, is perhaps in this Commonwealth Act we are looking at. Section 35(2) seems to get rid of the State compensation to relatives statutes.
MS TATE: Yes. Your Honour, both judges express doubts not only as to the role of section 109 - - -
GUMMOW J: They do not seem to appreciate what was said in Solomons. That is the point I am trying to make.
MS TATE: Yes, that may be the case, your Honour, and I will refer to Solomons in a moment, your Honour.
GUMMOW J: Yes.
MS TATE: There was not only doubt expressed as to the role of section 109, but also as to the relationship between the test for constitutional and consistency under 109 and the test of irreconcilability under section 79 of the Judiciary Act, and we seek to make some - - -
KIRBY J: But the “otherwise provide” is, is it not, a formula from the Parliament seeking to prevent the inconsistency under section 109 arising? I mean, the 109 is the constitutional mooring here.
MS TATE: Yes, your Honour.
KIRBY J: And the statute is simply finding a formulation to address the problem that would arise if there were an inconsistent or otherwise provision. You should not become over-sophisticated about this. It is within the federal sphere where we are seeking to ensure that the paramountcy rule operates, are we not?
MS TATE: Your Honour, it is in the federal sphere, but might I approach this first by identifying some propositions that we submit are unassailable propositions about federal jurisdiction. Secondly, against that background, might we suggest that there are some difficulties in the relationship between those two tests, that is, the test under 109 and the test under section 79 and, thirdly, might we contrast the position with section 64 of the Judiciary Act and its relationship to section 109.
First then, if I could identify some of the propositions about federal jurisdiction which we take to be unassailable. The first of these is that State laws cannot apply of their own force to proceedings in federal jurisdiction, and for that proposition we refer to the case mentioned by your Honour Justice Gummow, Solomons v District Court of New South Wales [2002] HCA 47; (2002) 211 CLR 119 at page 134, paragraph 21. I will simply make reference to these authorities without the need to take your Honours to them.
The second proposition that we say is unassailable is that the application of any State law to a proceeding in federal jurisdiction depends upon it being picked up by either section 79 or section 80 of the Judiciary Act.
McHUGH J: Or section 64?
MS TATE: There is debate, your Honour, as to whether section 64 contains a mechanism of its own or whether it also depends upon the operation of section 79. Thirdly, we say that the State laws upon which sections 79 and 80 operate do not apply by reason of the legislative power of the States but rather as surrogate federal laws applying by force of a federal law, namely the Judiciary Act, enacted by the Parliament of the Commonwealth to facilitate the exercise of the judicial power of the Commonwealth. For that proposition we simply give your Honours reference to the judgment of Justice Kitto in Pedersen v Young [1964] HCA 28; (1964) 110 CLR 162 at 165, and ASIC v Edensor Nominees(2001) 204 CLR 559, in your Honour Justice McHugh’s judgment at page 610.
The fourth proposition that we say is an unassailable proposition about federal jurisdiction is that the test to be applied for the adoption of a State law by section 79 or section 80 as a surrogate federal law is a test which reflects that applicable to two laws derived from the same legislative source, rather than that applicable to two laws enacted by two distinct legislatures, one of which is pre-eminent.
For that
proposition, we refer to the Northern Territory in
GPAO [1999] HCA 8; (1999) 196
CLR 553 at 588 paragraph 80 in the judgment of the Chief Justice and Justice
Gummow. Further, we say that the appropriate test for resolving
conflict
between statutes from the same legislative source, is to determine whether one
law is irreconcilable with the other. That
is, the laws will be approached with
the presumption that they should both operate, that is, they should be
reconciled, but, if that
cannot be achieved, then an irreconcilability must be
recognised. Outside of this context, this might lead to a conclusion of implied
repeal. For that proposition, we rely upon the judgment of Chief Justice Mason
in University of Wollongong v Metwally (1984) 158 CLR 447 at 463.
Another proposition that we say is unassailable is that a
reconcilability in this context requires a court to ask whether the Commonwealth
law so reduces the ambit of the State law that the two laws must be seen as
unable to be reconciled. For that test, might I take
your Honours to
Austral Pacific Group Pty Ltd v Airservices Australia [2000] HCA 39; (2000) 203 CLR 136
at page 144 paragraph 17, a judgment of the Chief Justice and Justices
Gummow and Hayne. There your Honours will see, at paragraph
16 in their
joint judgment, your Honours say:
The question remains whether s 79 was inapplicable because provision otherwise was made by another law of the Commonwealth, namely the Compensation Act.
The Compensation Act here, your Honours, is the Safety,
Rehabilitation and Compensation Act 1988, a Commonwealth Act –
The criteria to be applied are indicated in Northern Territory v GPAO. The question is whether the operation of the Compensation Act would so reduce the ambit of the Contribution Act that the provisions of the Compensation Act are irreconcilable with the other law.
The
Contribution Act, your Honours, was the Law Reform Act 1995
(Qld), which was an Act which regulated the contribution between joint and
several tortfeasors –
If so, the Compensation Act “otherwise provides” within the meaning of s 79 of the Judiciary Act. GPAO shows that the question is not answered by application of the doctrine identified, in the decisions construing s 109 of the Constitution, with the phrase “covering the field”.
Now, on this test, that is, the test articulated in Austral Pacific v Airservices Australia, if the ambit of the operation of the State Act is so reduced, then the Commonwealth Act is held to “otherwise provide” within the meaning of section 79.
The final proposition we rely upon is this, namely that the test of irreconcilability is a narrower test than that of constitutional inconsistency; that is, fewer laws will be rendered inapplicable because a Commonwealth law otherwise provides than would be struck down for invalidity on a constitutional inconsistency test.
KIRBY J: Does this mean that because we are always bound by the Constitution that you have to then do a second exercise under section 109? That seems logically to follow.
MS TATE: This is indeed the question, your Honour, as to whether there is a need for a succession of tests.
KIRBY J: If you are going to read down section 79 so that it is a different test to section 109, you are not going to wish section 109 of the Constitution of this nation away; it still remains.
MS TATE: No. Indeed, your Honour, but it has been submitted today, and indeed it appears to be a common understanding, that the irreconcilability test is an analytically distinct test from the test of constitutional inconsistency. Indeed, it is precisely that question as to whether or not they are analytically distinct tests - - -
GUMMOW J: Section 109 assumes concurrence of power.
MS TATE: Yes, your Honour.
GUMMOW J: The first propositions you have been referring to assume exclusivity of the Commonwealth position. That is what we mean when we say the States cannot legislate about these matters in federal jurisdiction.
MS TATE: Indeed, your Honour.
GUMMOW J: We are giving exclusive effect to the operation of Chapter III.
MS TATE: Indeed, your Honour.
KIRBY J: But if this otherwise provides, there is no concurrence of power.
MS TATE: Your Honour, if when Commonwealth laws are picked up by section 79 they are to be treated genuinely as surrogate federal laws - - -
GUMMOW J: That is the question, yes.
MS TATE: Indeed, that may be the critical question, your Honour. But if they are to be treated as genuine surrogate laws and are to be treated as enacted from the same legislative source, then the test that applies to two laws enacted from the same legislative source - that is, the test of irreconcilability – is the test to be applied to the relationship between those two laws. Now, if that test is a narrower test than the tests which apply under constitutional inconsistency, then what that will mean is that if one is directed to apply a constitutional inconsistency test at the threshold of the exercise, as is suggested in GPAO - - -
GUMMOW J: No, it is not suggested in GPAO, if I may say so. That is what I am trying to explain. Forget about Chapter III. You may have a law under section 51 which deals with some question of modifying the common law in some respect. Just forget about Chapter III. And that may impact upon some State statute which also modifies the common law. Then you may have an action in federal jurisdiction between residents of two States, right? A question is whether there is a State law that can be picked up once you get to the court.
MS TATE: Yes, your Honour.
McHUGH J: Well, Moorebank is a classic illustration.
GUMMOW J: Yes, exactly.
MS TATE: Yes, but Moorebank is concerned with section 64, your Honour.
McHUGH J: I know it is, but there was nothing for section 64 to pick up.
MS TATE: We would say – and these are our submissions in relation to the contrast between section 64 and 109 as opposed to 79 and 109 - - -
GUMMOW J: Just staying on what Justice McHugh said to you, indulging us to that degree, does not that explain how it works?
MS TATE: With respect to section 64, your Honour, we would say that section 64 contains within itself no test for the relationship between a Commonwealth law and a State law. We would say that section 64 simply directs you to establish whether laws can be applied that would place the Commonwealth or the State in a suit in a position which it is nearly as possible the same as the rights between subject and subject. Section 64 itself does not contain any formula for telling you what comparison needs to be made between a State law and a Commonwealth law for it to be so applied.
McHUGH J: That is true, but if you take a case like Moorebank, the Income Tax Assessment Act, with its limitation provision, was in direct conflict with the State Limitation Act, and therefore the State law was inoperative. This Court said that there was nothing that section 64 could operate on.
MS TATE: Yes, your Honour, but there, your Honour, section 109 was applied to determine that the Assessment Act established a comprehensive scheme and that the Commonwealth Parliament had exclusively and exhaustively covered the field in relation to that subject matter, so there was no room for section 64 to operate. But with respect to laws in relation to which one is considering whether they can be picked up by section 79, the question is not whether there is a field that has been covered exclusively by the Commonwealth Parliament, rather, the question has been formulated in terms of the degree of impact that the Commonwealth law has upon the operation and scope of the State law.
In our submission, it is the converse test. It is not a test of determining whether the Commonwealth law has exclusively provided and whether the State law would be invalid by any intrusion into that field. Rather, it is a question of determining the degree of impact that the Commonwealth law has upon the operation of the State law. We would say in that context - - -
McHUGH J: But, prima facie, you start with the proposition that State laws cannot apply to proceedings in court. Now, 79 and 80 only apply to courts.
MS TATE: Yes, your Honour.
McHUGH J: So, there is nothing for section 109 to operate on because the State just does not have any power, quite independently of that. So then the question becomes: does 79 pick up a State law, or has this Commonwealth law, the federal law, otherwise provided? That raises a question of conflict or, in your term, irreconcilability. I do not see how you advance the argument by saying that section 79’s operation is narrower than 109’s operation. They are in different fields, are they not?
MS TATE: Indeed, they are in different fields, your Honour. It is part of our submission that section 109 of course does only apply to State laws which are operating by force of State legislative power, and that when one is in the context of federal jurisdiction, when one is in the context of proceedings in a court, one is not dealing with State laws which apply by force of State legislative power. So it might be suggested that section 109 appears to have nothing to attach to when there are proceedings brought in federal jurisdiction. The question then becomes what test ought to be applied - - -
McHUGH J: Well, you could have a situation. Supposing New South Wales passed a statute which said whenever a judge so orders, an action shall be deemed to have commenced when the writ was filed. Now, that might be an attempt to apply to federal legislation, but 109 would strike it down.
MS TATE: But, your Honour, after the
commencement of the proceedings, any other comparable State law would not be
adjudged, in our submission
– or at least it is not apparent that it would
be judged by reference to a section 109 test, and if it is necessary to apply
a
109 test in
the exercise of determining whether a Commonwealth law otherwise
provides, then the section 109 test, being a broader test, will simply
render
the irreconcilability test as a test with no utility because, to put it
colloquially, your Honour, if the laws have already
passed through all the
many hoops of the section 109 test, then there would be no utility in asking
whether it can pass through a
lesser hoop. That is, if their incompatibility is
so manifest that they fail the section 109 test, then there is no point in
asking
the further question whether they are irreconcilable and, conversely, if
their compatibility has been assured by the satisfaction
of the 109 test, then
there is no point in asking whether they are irreconcilable.
KIRBY J: Now, how do you make these interesting theological arguments relevant to the practical concerns we have before us?
MS TATE: The submissions are essentially directed, your Honour, at alerting your Honours to the fact that there appears to be some difficulty about the relationship between those two tests, and that, in each of the appeal courts below, there was some expression as to some doubt as to whether the two tests were fundamentally the same, that they really were, in truth and in substance, not distinct analytic tests.
McHUGH J: I do not see how the point arises. I mean, if 109 strikes down the State law, then section 79 does not pick it up.
MS TATE: Indeed, your Honour, but if a law survives 109, if there is that degree of compatibility that neither the covering the field test nor any of the direct inconsistency tests – the textual collision tests, as your Honour Justice Gummow calls them – if they have all been satisfied and the laws have survived, then, again, there is no utility in asking whether they - - -
McHUGH J: They may have survived because there is no collision. That does not necessarily mean that a section 79 point may not arise.
MS TATE: Your Honours, there does just appear to be that difficulty in applying a succession of tests and in determining whether there is any further utility in proceeding to a second stage of determining irreconcilability, if 109 has already been applied and a determination has resulted. If your Honours please, those are the submissions for the Attorney-General for Victoria.
GLEESON CJ: Yes, thank you. Mr Margo.
MR MARGO: If it please the Court, I have eight points, all short. They are matters, they are not all submissions. Your Honours asked whether any regulations had been made under section 40 of the Commonwealth Act. No ticketing regulations have been made. The only regulations we could find, and we believe they are the only ones, relate to insurance policies, and there was once an increase in the liability cap.
Mr Uren referred your Honours to Morris v KLM Royal Dutch Airlines and took your Honours to a paragraph which had only three elements in it. That case was concerned with whether or not mental injury fell within bodily injury, as it had then been understood, of Article 17. It was not a pleading case, and what else had to be pleaded in order to bring the court to consider the application of the Convention was not dealt with in that case.
McHUGH J: Well, in any event, on page 653, on the opposite page, his Lordship said it was plain that the Convention applied.
MR MARGO: Indeed. He could not find what the pleading was, but other tests had already been met.
McHUGH J: Yes.
MR MARGO: And cases which did address the question of amendment by relation back were Western Digital in the English Court of Appeal. The basis for that rule, we have submitted, is much more likely to be an adherence to Convention comity than the basis which the learned President in the New South Wales Court of Appeal suggested, namely, that the English just have a different approach to these matters, as evidenced by the.....Although it is only a single - - -
KIRBY J: Is there reference in that decision to Convention comity?
MR MARGO: The reasons are not actually given why the rule was not applied, but they were both claims under the Convention, and it was held that you simply could not, because of the two year limitation, Article 29, add a new cause of action, even though all the facts were the same, same plaintiff, same carrier. The only difference was to try and get in the two extra waybills, which were really to fix liability on the same actual carrier. The damage was the same, the consignment was the same, the parties were the same.
Although it is only a single decision of a District Court in the United States, Motorola, which I gave your Honours earlier, does review the line of authority in the United States and finds, we say, a common ratio with the tolling cases and the amendment relating back. The rules in Western Digital and Motorola are documents in the bundle that we handed to your Honours on the first day. The rule in Motorola is almost identical to the kinds of rules that your Honours have been considering. The English rules are more limited; they do have a different approach and we have put the Limitation Act sections which confine them. But there is Convention learning extending to not even these amending laws being allowed to touch the two year limit retrospectively.
KIRBY J: I know that you say the problem does not arise in these cases, because we are dealing with two State Supreme Courts with rules of the kind that we have been looking at, but how do you say section 34 operates in the case of actions commenced in courts where the originating process does not specify a cause of action?
MR MARGO: That is
an important matter that I want to come to, your Honour. May I just take
your Honour first to follow on the Morris point to the sections of
the Act. When my learned friend for the second respondent, Mr Uren, was dealing
with the matter, he took
your Honours to section 34 and read what is
there said about a claim:
The right of a person to damages –
immediately after “damages” follow the
words –
under this Part –
one goes then to section 28 and section 28 commences
with two phrases. The first is:
Subject to this Part –
and the second is –
where this Part applies –
and section 35 similarly brings in words, “under this Part”, “by this Part” and we have said in our written submission these are, in our submission, reciprocal sides of a coin, and the action that has to be brought has to be brought under the part.
To come to your question, Chief Justice, the section leaves it and the Convention left it to a variety of jurisdictions which were to all have different rules as to how an action was to be originated. It commands that an action be brought under Part IV within the two-year period, subject to compliance with the two-year period command, which we say cuts down any law that is imported, and that is what the Convention cases say.
Under 28(2) or 29 you can import local law, but the command of the treaty there or the Convention regime is that whatever happens has to be actually done within the two-year period subject to that limitation. It is left to the court in which a matter is properly brought under that jurisdictional Article 28 to decide how you bring an action.
McHUGH J: What do you say about a situation that existed in New South Wales, say in 1961. A solicitor issues a writ within the limitation period but 11 months later outside the limitation period a declaration is drawn which shows fairly and squarely that the action is brought under Part IV. Now, what do you say about that?
MR MARGO: I am forced to the conclusion that the action is brought under that regime. If that is what the rule of the court said, the action is brought, the declaration reveals that it was an action which invoked federal jurisdiction.
McHUGH J: So even though the declaration itself is not filed for two years, 11 months, the fact that the writ was issued within the two years is sufficient, is it?
MR MARGO: One would have to consider does the rule say that an action on a statutory cause of action may be brought in this manner? Although State laws cannot apply of their force, the President in the New South Wales Court of Appeal said they might contemplate that they would be picked up and therefore they do sometimes refer to Commonwealth statutes. The movement is in the other direction though, but if they did say that, there might be States where all you have to do is turn up at a court and bring your defendant to court and orally articulate your claim. I will not say under a palm tree, but before a more informal or tribal type of court. The action would then be brought so far as the Convention is concerned. Of course, section 34 is an Australian section - - -
McHUGH J: You accept, do you, that the action is brought when the initiating process is issued?
MR MARGO: It depends, your Honour, on the rules of the court.
McHUGH J: Yes.
MR MARGO: In some jurisdictions, the writ has to be served or the process has to be served before the action is brought. The rules to which we draw your Honours’ attention say that the action is commenced and brought when a process – a particular document is filed in the registry. It therefore follows, and I must accept this consequence, that service could occur as it did in Air Link outside the two-year period. Similarly, it must follow that writ could be renewed or lie if the rules allow that. The defendant might not hear of it within the two-year period. That is a consequence that the Convention could not deal with everything, they eventually left it to procedural law.
In the Small Claims Division of the Local Court in New South Wales, we did look at the rules, and even there now today, a statement of claim is required, and the same rules apply in a Local Court as in the Small Claims Division as in the Local Court, but there are chamber magistrates whose job it is to assist unrepresented litigants to formulate a claim and to bring it - - -
KIRBY J: Yes, but as Justice Ormiston says, if they looked up Fleming and all the textbooks they would not have known of this point.
MR MARGO: After these appeals, your Honour, it will be on a poster.
KIRBY J: That is true, but we have to think of - - -
MR MARGO: Your Honour, we do not say – some submissions from other parties have submitted that we say that you have to name the Act. We were dealing with particular sets of rules in the Victorian Supreme Court and in the District Court of New South Wales which contain that requirement, but even in the New South Wales Court of Appeal, Justice Sheller said, and the other judges agreed with him, it was desirable that the cause of action be identified.
Of course, if one is in a small claims tribunal and does not specify the exact section of a particular federal Act or a particular licence alike it may be quite sufficient if the rules say you have to say just maybe a few elements in a lower jurisdiction, smaller sums of money are involved.
HAYNE J: What about the baggage claim? Whether in a superior court or in, say, the South Australian Magistrates Court where one could readily expect “X airline lost my bags, the bags and contents together were worth X dollars”, and that would be all you would find. Sufficient or not?
MR MARGO: I am sorry, your Honour, I have this vice of talking over your Honour, which I apologise again for. If that is all that is required to bring a claim under the Commonwealth Act in the Local Court in South Australia, I am committed to accepting that it can be so brought. The difficulty arises how does one know then whether or not federal jurisdiction has been invoked? And in baggage claims I could only say if it became necessary to bring a claim, it is very unlikely that if one is looking at just the practical consequence as opposed to the legal theory, it is very unlikely that there would be any difficulty in people making an effective claim. I mean, it is likely to be made within two years if one has lost one’s baggage, it is likely to name the flight and say where you booked it in and the like, the value limits would be raised. From July – I am sorry, your Honour - - -
GLEESON CJ: Still on this point before you leave it, it is put against you that different rules of court make different requirements of the originating process but, generally speaking, the more particular the requirements about the originating process, the more likely it is that the rules of court will permit amendment of the originating process.
MR MARGO: Yes, we say that the rules are subject to the command about the two years, your Honour, they will not allow a retrospective amendment outside the two years. Section 34 would not allow, that is our submission. And may we say also this, that if parties commence proceedings in the Supreme Court of Victoria, if they choose to do so, they are bound by the pleading rules of that court. Even a generally endorsed writ requires sufficient particularity to identify the kind of claim that is being made.
The vice of the statements of claim that are involved in these appeals goes further than failing to name the Act or leaving out various jurisdictional facts. They actually characterise themselves as claims not brought under the Commonwealth Act. All the facts they refer are herded and steered by the framework of actions in negligence and actions in contract.
That is where a rule like the District Court Rule and the equivalent Victorian Supreme Court Rule that you name or identify your cause of action, or in the case of Victoria actually name the statute, has merit. If you are getting into a court where you have to plead material facts and any question of confusion might arise as to what cause of action you say these material facts are bringing.....pleaded, the Rules are salutary. But, even the New South Wales Court of Appeal which had very strictly upheld this District Court Rule in an earlier decision, referred to in Air Link (No 1), Kirby v Sanderson Motors, Justice Sheller just said it is desirable that they be named.
So it seems to be implied if that was the only failing that had occurred the Court might have treated it as a kind of misnomer or slip or accident, but in this case there was actual positive labelling to the contrary. Now, Justice Sheller – I forget which of your Honours it fell from – may have not been directing his mind to what does the federal statute require as elements of an action to be brought under section 34.
We submit, nonetheless, that by considering, as he did, what material facts have to be pleaded to raise a claim under the federal statute he was engaged in a very similar inquiry and that the conclusion would be the same and was a correct conclusion. It was the unanimous decision of the Court and was rightly followed in Agtrack, in our respectful submission.
My learned friend, Mr Jackson, presented his arguments about the relationship between the State and the Commonwealth statutes as if there were only two possible alternatives. In fact, until the ticket details are known, and they were not known unless your Honours hold that the number carried everything with it within the two-year period, there are at least five alternatives. It could be a case of intrastate carriage, it could be a case of interstate carriage or it could be any one of three international Convention regimes, Warsaw, Warsaw Hague or Montreal No 4, depending on where the journey commenced.
CALLINAN J: To what extent would the practical consequences be different if it were a different one of those?
MR MARGO: Your Honours, there is no evidence about this but it has been suggested that there could be different insurers, and that is very likely, and different reinsurers.
CALLINAN J: There would be a similar statutory regime whether it was an intrastate or interstate journey because the New South Wales Act adopts Part IV, does it not?
MR MARGO: It purports to mirror the Commonwealth Act.
CALLINAN J: There is no practical consequence there.
MR MARGO: It still does make a difference in the federal system which Act you would claim under. That is our submission, your Honour.
CALLINAN J: I beg your pardon?
MR MARGO: It does make a difference. Section 34 requires that a claim be brought under the federal Act, in our submission.
CALLINAN J: I am right, am I not, the practical consequences are the same because exactly the same provisions, or provisions to exactly the same effect apply?
MR MARGO: I am sorry, your Honour, I am not trying to evade your question but by practical consequence, do you mean the amount of money that might have to be paid if a claim succeeded under either Act? Yes, they are the same.
CALLINAN J: And who would be liable? It would still be your client which would be liable, would be liable to this respondent.
MR MARGO: If the allegations were made out. I was referring to Air Link. My learned friend, Mr Jackson, drew your Honour’s attention to Part 9 rule 7 of the District Court Rules which says that conditions precedent do not need to be pleaded. There is an equivalent rule in the Victorian Supreme Court Rules, Chapter 1, 13.05. There is a long line of cases which say that these rules, going back to the Common Law Procedure Act 1852 (UK), the history is summarised by the Full Court of South Australia in Zuk v Miller [1957] SASR 25 at pages 37 to 38, that these rules cannot be used to avoid the pleading of material facts.
Mr Jackson referred also to section 159 of the District Court Act. Again, there is learning in this Court that these generally expressed, curative type powers cannot be used where what is involved is an integer of the right of the kind involved in this case. In Emanuele v Australian Securities Commission [1997] HCA 20; (1997) 188 CLR 114, especially Justice Toohey at pages 130 to 131; Justice Dawson agreeing at page 124 and see also Justices Brennan at 124; Gaudron at 138 and Justice Kirby at 152.
GLEESON CJ: Thank you, Mr Margo.
MR MARGO:
Your Honour, I am sorry. Mr Jackson obtained leave to put in a
short document. I ask for leave, if occasion arises, to put in a
short reply
within seven days.
GLEESON CJ: Yes, Mr Jackson will have
seven days to put his document in and you will have a further seven days after
that to put in any response
you want to make. We will reserve our decision in
this matter and we will adjourn until 10.00 am tomorrow
morning.
AT 4.05 PM THE MATTER WAS ADJOURNED
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/cases/cth/ HCATrans/2005/119 .html