Agtrack (NT) Pty Ltd (t/as Spring Air) v Hatfield [2003] VSCA 6

Agtrack (NT) Pty Ltd (t/as Spring Air) v Hatfield [2003] VSCA 6 - VSCA 2003 case summary — Zoe

[5]

One might have thought that such a simple amendment could have been effected without difficulty inasmuch as the appellant must have been fully aware of the circumstances surrounding the claim, at least by the time that the original writ was served, and it would likewise have been fully aware that the only liability the respondent could enforce against it was under Part IV of the Act, so that the proposed amendment could in no way have taken it by surprise, nor in any way have disadvantaged it. Nevertheless, the apparently simple process of amendment has been bedevilled by the most abstruse arguments as to the nature and effect of amendments, their potential relation back to the issue of process, the form and effect of limitation provisions in statutes, the effect of Order 36.01(6) of the Victorian (or, possibly, the Northern Territory) Supreme Court (General Civil Procedure) Rules 1996 and the effect of s.34 of the Limitation of Actions Act 1958 (or, more likely, of s.48A of the Limitation Act 1981 of the Northern Territory) on limitation periods prescribed by Commonwealth statutes such as s.34 of the Act[6], on the extent to which those rules and sections are "picked up" by s.79 of the Judiciary Act 1903 (Cth) and whether, by reason of s.109 of the Constitution of the Commonwealth (or the equivalent rule applying to territory legislation), those rules and those sections are invalid or ineffective to the extent that they qualify the alleged right or immunity of the appellant under s.34 of the Act. For that purpose it was thought desirable that, immediately after the hearing of argument in the present appeal, argument should also be heard in the appeal in PSL Industries Ltd. & Ors v. Simplot Australia Pty. Ltd., in which almost identical issues are raised save that it concerns the kind of limitation prescribed by s.82(2) of the Trade Practices Act 1974 (Cth) and where, it must be conceded, the amendment sought out of time by the respondent in that appeal went beyond the mere failure to describe or identify the appropriate cause of action. The appeals were therefore heard together, with the assistance (or otherwise) of about seven lever arch files of authorities directed to these issues. Consequently what I say for the purposes of the judgment in this appeal will also be relevant to, though by no means determinative of, the issues raised in the PSL Industries appeal.

[9]

The respondent's writ was filed on 22 January 1999 and served shortly thereafter. The appellant served a largely uninformative defence on 24 March 1999. In August of that year the respondent's solicitors served a notice for discovery and a notice to admit certain facts. On 20 August the appellant's solicitors wrote a letter bringing to the respondent's solicitors' attention for the first time their claim that the respondent's claim was misconceived because the only liability for her husband's death lay under the Act. There was some delay because apparently that letter was not received by the respondent's solicitors and a further copy was sent in November 1999. There followed further correspondence of a not enlightening kind but on 18 August 2000 the respondent's solicitors filed and served a summons seeking in substance that she be granted leave to amend her statement of claim in terms of an amended statement of claim exhibited to the supporting affidavit (set out as Appendix C to the judgment of Ashley, J.[12]), which sought to make relatively brief amendments to the existing statement of claim and to which it will also be necessary to return later. On 29 August the appellant filed and served a summons seeking an order either that there be judgment for the appellant or alternatively that the proceedings be permanently stayed or "struck out". Both summonses were heard later that year by Ashley, J. It seems that in the course of argument it was common ground that the circumstances of the deceased's flight satisfied the factual criteria prescribed by s.27(1)(b) or (c) of the act and as such his sole rights were those conferred by Part IV of the Act, and that, unless the respondent could be treated as having already commenced her action, the two year period prescribed by s.34 of the Act had expired. A large variety of issues were raised before his Honour, largely corresponding to the arguments advanced before us. On 6 June 2001 Ashley, J. made orders dismissing the appellant's summons and, on the respondent's summons, granting leave to the respondent to amend her statement of claim "generally in the form of the proposed statement of claim", giving detailed reasons extending over some 39 pages (omitting the annexures). Pursuant to that leave an amended statement of claim in somewhat more elaborate terms than the document put before the judge, although adding little more in substance to the proposed amendments, was served on 19 June 2001. The appellant sought leave to appeal from both orders, and leave was granted by this Court on 20 July 2001.

[11]

"1. At all relevant times the Defendant was carrying on the business of aircraft charter under the name of Spring Air. 2. On or about 13 August 1997 the Defendant ... had agreed with Stephen James Hatfield ... to carry the deceased ... on a sight-seeing tour in a Cessna 210 .... PARTICULARS The agreement was oral and was placed between the servants and agents of the Defendant and the deceased ..., whereby the Defendant ... agreed to take the deceased ... on a tourist flight through parts of the Northern Territory and the Kimberleys [sic]. 3. On or about 14 August 1997 the aircraft ... carrying the deceased and the passengers, crashed (`the accident'). 4. The accident was caused by the negligence of the Defendant, its servants and agents, including the pilot ... [Particulars of negligence were then given in conventional form but referring amongst other matters to `taking off from Timber Creek when he ought to have known that he required' more fuel, `failing to use proper procedures to land the plane when it ran out of fuel' and `failing to comply with the provisions of the Civil Aviation Order'.] 5. It was an implied term of the agreement that the Defendant ... would take reasonable care for the safety of the deceased ... on the said tourist flight (`the implied term'). 6. In breach of the implied term, the Defendant ... failed to use reasonable care in the safety of the deceased ... in the conduct of the tourist flight (`the breach'). [The particulars appended to this paragraph merely referred to and repeated the particulars to paragraph 4.] 7. As a result of the breach and the negligence of the Defendant ... the deceased died on 14 August 1997. 8. The plaintiff brings this action as the widow of the deceased for her benefit. 9. As a result of the death of the deceased the Plaintiff has been deprived of the support, maintenance and benefit of services which she received from the deceased ... [The particulars gave the conventional particulars of a Wrongs Act claim.] AND THE PLAINTIFF CLAIMS DAMAGES."

[32]

It was secondly said, in relation to fact (ii), that it was not alleged that the contract of carriage satisfied the geographical requirements set out in the four paragraphs set out at the end of s.27(1), so as to bring the flight within Part IV of the Act. To satisfy those requirements the flight could have been either an interstate flight, or an intra-territory flight, or a flight between a territory and another place in Australia, or an international flight from Australia to which Parts II, III and IIIA of the Act do not apply. For this purpose the particulars of paragraph 2 may be looked at, though ordinarily particulars should not form part of the allegations of material fact: see Bruce v. Odhams Press Ltd.[16] and Rubinstein v. Truth & Sportsmen Ltd.[17] Now, however, by O.1.13(1), "pleading" is defined as including the "particulars of any pleading". Although inclusion of material facts in particulars is to be deprecated as a matter of form, it has become accepted that from time to time material facts will be found only in particulars and, having regard to the present definition, it is ordinarily not appropriate to strike out a paragraph on this basis alone: cf. Beach Petroleum N.L. v. Johnson[18]. Here the place of the flight was sufficiently defined by reference to the particulars to paragraph 2 which alleged that the flight was to be "through parts of the Northern Territory and the Kimberleys", i.e. through the Northern Territory and one state. Admittedly the starting and finishing points of the flight are not stated and this would have been important if the flight had commenced within one of the states, for it may then have been an intra-state flight.[19] Here, it would have been clear enough that the flight began within the Northern Territory, to which Part IV applies exclusively, and was not the subject of any state Acts imposing liability for intra-state flights. The fact would have been well-known to the appellant as defendant to the proceeding. Undoubtedly, it could have been more clearly expressed. Moreover, the particulars of negligence to paragraph 4 also alleged inferentially that one of the landing places during the flight was Timber Creek in the Northern Territory and that, by reason of the provisions of s.s.(3) of s.27, meant that Timber Creek was one of the finishing and starting points of the flight, even if one were to assume, as I would not, that the flight commenced outside the Territory.

[33]

Then it is said, as to fact (iii), that there was a failure to allege "squarely" that the death of the deceased resulted "from an accident which took place on board the aircraft", as is required by s.28. Here, however, sufficient is alleged even if those words have not been used. Paragraph 3 alleges that the aircraft carrying the deceased crashed. Thereafter, after the irrelevant allegations of negligence and breach of contract, paragraph 7 alleges that the deceased died the same day, as a result of the negligence and breach of contract. That negligence and breach of contract, nevertheless, all related to the flight of the aircraft, so it is implicit that the crash caused the death and that there could have been no other physical cause. On its face the absence of any reference to the accident taking place on board the aircraft might seem a relevant omission but it is not. The injury or death is not required to take place on board; not surprisingly, it is only the accidental event which must take place on board, i.e. that which "results" in injury or death must be an event which has occurred on board. "Accident", whatever it may mean elsewhere, has been defined where found in the relevant treaty provisions, especially Article 17 of the Warsaw Convention, which has been treated as an analogue for liability under s.28 of the Act,[20] as requiring only that the cause of the passenger's injury is "an unexpected or unusual event or happening that is external to the passenger": see Air France v. Saks[21], as approved and adopted in Morris v. KLM in both the Court of Appeal and House of Lords.[22] Thus the injury to the passenger does not have to occur on board the aircraft, only the incident which gives rise to the injury. If it were otherwise, a passenger falling from an aircraft could not recover, nor one lying on the ground who is injured by reason of an explosion following a crash. In many cases, of course, the precise circumstances resulting in death (and sometimes injury) cannot be discovered but that would not lead to absence of liability. All that is required is that an accident should have taken place on board the aircraft, so that the injury or death must flow from an event connected with its flight, and not from any extraneous cause. So understood allegations of a "crash" and death are sufficient to satisfy s.28. There is no substance in the objection.

[37]

The question remains whether, taken as a whole, the original statement of claim pleaded the material facts, or sufficient of them, to sustain a cause of action under Part IV of the Act. There can be little doubt that a number of the allegations were imperfectly made, but are these defects such as to deny the respondent the right to rely on the allegations to support her claim under the Act? In many cases defects in expression would so obscure a plaintiff's claim that it would be unfair to a defendant to allow the plaintiff to rely on the remnants of a claim directed to other causes of action. On the other hand, facts required to establish liability under Part IV are so simple, being effectively based on a principle of liability without fault, that a defendant such as one who conducts an air charter business ought immediately to have recognised that sufficient had been alleged to show that it was liable to the plaintiff, if the facts were proved at the trial. It is that simplicity which makes this an exceptional case and inclines one to treat the imperfections of the original claim as irrelevant to the appellant's fundamental liability, whatever was the original intent of the pleader. It cannot have been difficult for the appellant to see that facts had been here alleged which would have brought the respondent within the simple requirements of Part IV. Can it, nevertheless, be said that the failure to identify her claim as coming within Part IV, essentially because her advisers were unaware of the cause of action, denies her the right now to pursue that claim? Again, in many cases such an oversight would make it hard to impose on a defendant a liability for which no direct claim was originally made. Moreover, the simplicity of the requisite material facts suggests that the appellant would always have known that, once the elements of a Part IV claim were understood by those advisers, the respondent would seek to pursue that claim. It is of peculiar significance here that s.37 makes the rights under Part IV exclusive of all other possible heads of liability. No defendant could have been under any misapprehension that a plaintiff, once advised of this fact, would not wish to pursue a Part IV claim. There could have been no other claim which the respondent or any other plaintiff in her position might pursue.[24] Not only could the appellant have been in no way confused as to what would be the respondent's claim when fully informed, but it could never claim to have wasted its resources on defending causes of action which were so clearly not maintainable against it. It would, in practical terms, be a Part IV claim or nothing which would proceed to trial. The unnecessary elements pleaded in the statement of claim could easily be put aside.

[38]

The appellant says, however, that it was entitled to consider its affairs on the basis that no viable claim under Part IV had been made against it. In effect, it could say to its insurer, assuming that it had one, we have been sued by the respondent but she has made no claim under Part IV and so we and you, the insurer, can safely ignore the claims in negligence and breach of contract which are excluded by reason of s.37 of the Act. That, however, would be an unrealistic approach for the appellant, its insurer and their advisers to take since, when first she brought suit, the respondent was well within time and she might well have sought to amend to identify the relevant section under the Act and to pursue that claim. That change of mind and relevant amendment could have taken place either within the time expressly laid down by s.34 of the Act or it might, depending on one's analysis of the original statement of claim, be also made thereafter. The appellant must have acted upon the assumption that that was a possible course of events and it could not have said that it was lulled into a false sense of security. It could only assert that on one view the two year period under s.34 had expired, but it could not have been confused or deflected from taking appropriate steps to protect its position because of the respondent's mistake in formulating her claim. Nor can the appellant fairly say that the respondent has not yet pleaded sufficient of the material facts for her to succeed and might never be able to do so, or to prove them at the trial. Again this might be said to be peculiar to a claim as simple as the present, requiring in essence proof only of the respondent's suffering loss by reason of her husband having been killed as a result of an accident to an aircraft engaged in air charter operations in a flight commencing in the Northern Territory. The defects in the respondent's claim analysed above, if defects they truly be, do not require alteration or amendment in any way, they require only minute expansion to make clear facts which could not be controverted.

[39]

If all that was necessary was the allegation of the material facts to support the respondent's cause of action under Part IV of the Act, then there would be much to be said for the conclusion that those facts had been sufficiently alleged, however imperfectly. It does, however, overlook the failure to refer to the statutory basis of liability in circumstances where the failure occurred through ignorance, not mere oversight. At one stage I thought the respondent's case could be supported by saying that at the end of the day all that had to occur was that the Court should properly characterise the nature of her claim and that would not require amendment, merely a finding based on that characterisation and an incidental finding that the stated claims in negligence and breach of contract could not succeed. It may indeed be seen to be a technical difference in the kind of claim made. If the point were taken at the end of the trial, much could then be said for resolving the dispute between the parties by reference to the real issue between them, not by reliance on a mere technicality. Thus it has been said by appellate courts on many occasions that, in the first place, they will not allow a plaintiff to succeed on a case different from that argued below, if the new cause of action could well have led to different evidence being given or the existing evidence tested in different ways, for that would be so unfair to the other party as to preclude the appellate court from dealing with it on a new basis. On the other hand, "where all the facts have been established beyond controversy or where the point is one of construction or of law, then a court of appeal may find it expedient and in the interests of justice to entertain the point": see Water Board v. Moustakas[25] and the cases cited in Williams Civil Procedure Victoria[26]. In the latter class of case, the High Court has seen no unfairness in certain circumstances in abolishing existing causes of action[27] or in identifying new causes of action[28], the proper characterisation of the parties' rights and duties being seen to be the essential question. Whether these considerations are relevant where there has been an error by a party's advisers may be another matter.

[40]

There were a number of authorities upon which the learned judge relied in order to reach the conclusion that the original statement of claim was insufficient but I am not confident that any of them were so closely analogous to the present claim as to provide a reliable guide to the decision in this case. The only authority which was truly close to the present in most necessary respects was a decision of the Court of Appeal of New South Wales given recently in Air Link Pty. Ltd. v. Paterson[29]. That was again a case in which the liability, if any, arose under Part IV of the Act, this time by reason of the fact that the injury was suffered in an interstate flight. The statement of claim, briefly outlined in the judgment of Sheller, J.A.[30], was also drawn under the unfortunate misapprehension that the plaintiff had a right to sue in negligence and breach of contract. For that reason it was likewise imperfectly pleaded as a claim in strict liability against the airline and it had two further related defects, one in that it claimed that the defendant was authorised under the Air Transport Act 1964 of New South Wales to operate a commuter and charter airline and secondly, that the plaintiff was a passenger on a flight between Cobar and Dubbo, both towns within New South Wales. There was thus no claim foreshadowed under Part IV of the Act and, if any inference were to be drawn that some alternative strict liability might be enforced, that liability would have rested upon the provisions of the Civil Aviation (Carriers' Liability) Act 1967 of New South Wales applicable to intra-state flights. Sheller, J.A., with whom both Mason, P. and Beazley, J.A. concurred, held that no claim had been made upon the basis of Part IV of the Act and furthermore that a paragraph in the airline's defence claiming that the plaintiff's action was not maintainable should not be struck out. However, as the district court judge had struck out the paragraph in the defence, as it turned out wrongly, that judge had not considered an application for leave to amend the statement of claim and that particular application was remitted to the District Court.[31] In the circumstances I believe the case is so close to the present in its fundamental facts, and in particular the manner in which the plaintiff's claim was defectively pleaded, that I do not think it desirable that this Court should reach a different conclusion as to whether a claim under Part IV had been properly pleaded, inasmuch as the case is to that extent authority as to the proper application of the Commonwealth Act. For obvious reasons, however, it does not provide authority as to what course should be taken as to amendment in the circumstances.

[44]

A number of complex issues are raised by the question whether the respondent was entitled to amend her statement of claim in the way that she sought and, for that matter, in the way that she ultimately did. In the first place there are general questions as to the power to amend, the nature of amendment and the circumstances which give rise to the right to obtain an amendment. There are more specific problems in this case, inasmuch as the amendment sought by the respondent was clearly sought outside the time limit for bringing an action imposed by s.34 of the Act, that is, it was sought more than two years from the time the cause of action arose under Part IV by reason of the loss suffered by the respondent in consequence of her husband's death. It was asserted by the appellant that no such right existed, howsoever the particular limitation affected the respondent's rights and whether or not a limitation period was imposed under the Limitation Act 1958 of this State or by any other Act, state or federal. The appeal then raises the question of the effect of the amendment to the Rules made in 1986 (both of this state and later in the Northern Territory) and in particular by the making of O.36.01(6) of the Rules and by the passing of that year of s.34 of the Limitation of Actions Act, or, more likely, by the passing of s.48A of the Limitation Act 1981 of the Northern Territory.[32] Finally, it will be necessary to consider the extent to which s.34 of the Act (i.e. of the Civil Aviation (Carriers' Liability) Act) is inconsistent with the state or territory rules and legislation so as to prevail over them by reason of s.109 (or s.126) of the Constitution and/or whether by virtue of s.79 of the Judiciary Act 1903 (Cth) the provisions of the state or Territory legislation relating to limitations are not reconcilable with s.34 of the Civil Aviation (Carriers' Liability) Act. A subsidiary question, although one which essentially is not likely to make much difference to the outcome, subject to what appears below, is whether the relevant state or territory legislation is the Victorian legislation or whether it is the Northern Territory legislation, which, however, contains a virtually identical provision so far as limitations are concerned in s.48A of the Limitation Act 1981 (NT), and possibly whether the rules of court of the Northern Territory, which are in fact contained in an identical provision in O.36.01(6) of those Rules, apply.

[66]

Enough has been said, I believe, to show that the question of relation back is not a matter of high principle, but one of practice, depending on a practical analysis of what is sought to be achieved. Nothing in the authorities to which counsel were pressed to take the Court provides any further explanation of what is ordinarily treated as occurring, let alone any exposition of fundamental theory as to the reasoning behind the courts' oft-stated references to it. No explanation of principle can be found in the cases cited by Phillips, J.A. in Anglo-Irish Beef Processors[78], nor in the other cases cited to this Court which included Proctor[79] and the earlier cases of Sneade v. Wotherton Barytes & Lead Mining Co. Ltd.[80], Warner v. Sampson[81] and Baldry v. Jackson[82]. Two cases cited as to the distinction drawn between the amendment of pleadings and amendments to join defendants do give some significant hint as to why it is a matter of practice rather than theory: see Liff v. Peasley[83] and Ketteman v. Hansel Properties Ltd.[84]. There each of the members of both courts were clear in their conclusion that an order amending a statement of claim by adding defendants could operate only from the date such an order was made and could not relate back to the date the writ was issued. The refusal to join parties where the claim would be statute-barred depended upon the "no useful purpose" theory rather than the "relation back" theory but, important though that may be for cases involving the joinder of defendants, it did not expose the relation back practice to any more illumination. Many court rules state that explicitly and I am not persuaded that the decision as to the relevant "theory" necessarily showed that an amendment might not take effect from a date other than that when proceedings began. The "rule" in Weldon v. Neal would certainly appear to have denied a plaintiff the right to make an amendment as to parties which was "back-dated", for a claim against another defendant could never be assimilated with a claim against the existing defendant in that, as has been held, the new defendant only became a party when served. The added party could not ordinarily be thought otherwise to have notice of the proceeding, so the rule of practice was unequivocal. There was no useful purpose in joining a defendant who would have an answer based on the Statute of Limitations. It seems not to matter greatly that the relation back rule was thought not to be appropriate; rather it was seen to have no practical application where a defendant was being added.[85]

[77]

However, despite what was said in Anglo-Irish Meat Processors[96], although the rules and added section came into operation on the same day, namely 1 January 1987, the general Rules of Procedure in Civil Proceedings 1986 were made by the judges of the Supreme Court at an earlier time, namely 18 March 1986, and were "ratified, validated and approved" by Parliament by s.4 of the Supreme Court (Rules of Procedure) Act 1986 [97], which provision came into operation on 14 October 1986. As it happened the Supreme Court Act 1986, which by s.136 inserted s.34 into the Limitation of Actions Act, was not passed and assented to until 16 December 1986 and came into effect on 1 January 1987 (see s.2).[98], the same day as the Rules by their own terms came into operation: see O.1.02. Strictly the Rules were not related to the passing of the Supreme Court Act 1986, because the latter Rule had stated that they should "not come into operation until 1 January next following the day they are ... ratified validated and approved", a step which had been already effected by Act No. 63 of 1986. In fact the later Act, No. 110 of 1986, apart from making some incidental references to the 1986 rules[99], made no specific provision relating to the operation of the 1986 rules but did, effectively from the date when the rules came into operation, being the same day as Act No. 110 came into effect, repeal the whole of Act No. 63 of 1986: see also the transitional provision saving the Rules of Court "made before the commencement of this Act", in s.139(2) of Act No. 110 of 1986_._ Of course, it was only by s.136 of Act No. 110 of 1986 that the abrogation section, s.34, was inserted into the Limitation of Actions Act 1958, in effect also as from 1 January 1987.[100] According to John Pfeiffer, however, the law relating to limitation periods is substantive, so that, if s.34 of the Victorian Limitation Act be treated as directed to substantive aspects of the law relating to limitations, then it is strictly not relevant and the relevant provision must be that contained in the legislation of the Northern Territory, namely s.48A of that Territory's Limitation Act 1981, which provision was inserted in 1987.[101]

[84]

In my opinion, notwithstanding the very close similarity between the inserted section in each Limitation Act and the provisions of the 1986 rules, I am not persuaded that the new Rule was intended to have other than a procedural effect, or to do more than alter the nature of the discretion to be applied to a much broader discretion when considering amendments, which might otherwise appear to defeat limits laid down in limitations legislation. I cannot be so confident about the intention of the legislatures in enacting the amendments to the Limitation Acts and we were not taken to any discussion in the course of parliamentary debates which might touch on the question: I do not believe that in fact there was any such discussion. But for two matters I would believe that the insertion of the new section in the limitations legislation was not intended to do more than make assurance doubly sure that the amending rule would not be struck down as impinging on the substantive aspects of limitations law. The two factors which lead me to have doubts are, first, that the sections were each expressed in mandatory terms, not in the permissive terms of the new rules, and second, that both rule and legislation seemed to go further than the exemplar rules, namely the relevant rules on the same subject in England and New South Wales. In combination this would appear to have the effect, though I would by no means for present purposes wish to subscribe to it, that a court "must" or "shall" allow an amendment alleging a quite separate cause of action, unrelated except in terms of convenience of trial, which is clearly statute-barred but which must be allowed so long as the applicant can show that there is no prejudice to the other party in the conduct of its case, in terms of the language of both rule and section. A judge interpreting the rule might consider it proper to exercise his discretion otherwise than to allow such an amendment, although a problem would then arise in terms of the application of the section since that ordinarily would be treated as having overriding effect. However, I would incline to the view that whatever language the legislatures have adopted, they should not be treated as having intended such a bizarre consequence, so that both rule and section ought to be treated effectively as permissive only.

[85]

My prima facie conclusion therefore is that O.36.01(6) was intended only to have a procedural effect designed to ensure the proper and fair consideration of applications to amend pleadings where, if the amending claim had been brought independently and out of time, that claim would have been automatically rejected as statute-barred pursuant to existing authority. The Court now in the exercise of its discretion may look at the totality of the circumstances to resolve whether it is in fact fair to permit that claim to be introduced by way of amendment. It would never have been proper for the rules to have attempted more, but the concern was that the "rule in Weldon v. Neal" had been given so rigid an interpretation, especially in this State in Cutrona, that it might be perceived that, if amendment were effected solely by changes to rules of court, then a defendant's immunity or other rights pursuant to a limitations statute would be invalidly defeated by the abrogation of that "rule", at least in certain circumstances. I would not, however, interpret a rule of court, such as the new Order 36, as permitting an amendment which clearly and directly took away rights given under a limitations act, with one, not unimportant, exception. For better or for worse, instead of merely ratifying and sanctioning the rules of court so that they might, as rules of practice have statutory force, Parliament went further in relation to the Victorian Limitation of Actions Act and, so it would seem, did that of the Northern Territory by its Limitation Act. To that extent the new rule should be treated as having a greater ambit, consistent with those Acts, namely that, in relation to limitation periods laid down by each Act and probably, though it is unnecessary for the present appeal to so decide, those otherwise laid down by the relevant legislature, a wider power has been given. That wider power does require the consideration of potential prejudice, although the new provisions appear to concentrate on the conduct of the trial rather than any inherent unfairness in allowing stale claims to be litigated, but again it is not necessary to resolve that for the purpose of this appeal.

[96]

The reason for putting the last contention may have been that the respondent thought that the "covering the field" test would provide a less favourable outcome. Again I would doubt that for in my opinion a similar question must arise when determining whether Commonwealth law "otherwise provides". One should nevertheless begin by asking whether the "inconsistency" requirements of the Constitution do apply, for the appellant certainly asserted that s.34 of the Act (and its related provisions) covered the relevant field to the exclusion of any legislation in Victoria and the Northern Territory relating to limitation periods and indeed that the provisions of the Act were inconsistent with the amendment regime in State and Territory. Of course the Act could not be construed as dealing with limitation of actions generally so as to strike down the relevant acts (and rules) so far as they applied to actions brought in this state and the Northern Territory under the common law or pursuant to state or territory statutes, but state and territory statutes could be pro tanto ineffective for inconsistency insofar as they sought to qualify rights given under Commonwealth laws. One may accept that when one is determining, in a case where federal jurisdiction is invoked and s.79 must be applied, whether the two statutes are "irreconcilable" to extent that one should conclude that the laws of the Commonwealth have "otherwise provided", one is dealing with a narrower question based on the assumption that the two sets of laws may operate validly at the same time, unless they are irreconcilable in that sense. But this is all that the majority in Austral were purporting to say at 144 para.[17], particularly when one has regard to the adoption by effectively the same three judges of what they had said (or agreed in) in N.T. v. G.P.A.O. in the passage just referred to. In the later case s.109 was not raised, not because it can never be relevant when s.79 applies, but because it was almost impossible in that case to discern a provision or provisions in the Commonwealth Act which purported to cover the field of contribution between tortfeasors.

[98]

For the present I shall not return to the issue whether and how an "action" should be treated as commenced for the purposes of s.34. It is sufficient to say that, although limitation periods have been held to be substantive, rather than procedural, in legal effect since John Pfeiffer, they are inextricably bound up with the manner by which proceedings are brought. One has only to think of the power given to a plaintiff to have a writ issued (i.e. by causing it to be filed[111]) but not to serve it for up to one year (with a power of extension) according to the Victorian Rules of Court[112], yet allowing the plaintiff to treat the action as effectively commenced on the date of issue. It is common for specific legislation to prescribe limitation periods, whether they are directed to the mere bringing of proceedings or to the extinguishing of the right. It is far less common to find limitation provisions set out with all the qualifications commonly found in a modern limitation statute such as the Victorian or Northern Territory Limitation Acts; and for good reason, that it is assumed that those matters would have been dealt with in a general act of that kind. Doubtless that is why there is no general Commonwealth limitation statute with any like provisions set out applicable generally to proceedings brought in federal courts or when federal jurisdiction is being exercised. Indeed the only general example we were taken to[113] was s.59(2B) of the Federal Court Act 1976 (Cth), but that does so only by giving explicit power (carried into effect by O.13 of the Federal Court rules) to make rules allowing amendments which have the effect of allowing a party to seek a remedy for a claim "that would have been barred" at the time of application. The explanation may be simple: at a time when federal jurisdiction had not been developed to the extent that it has today a court applying a Commonwealth Act such as the present, especially in circumstances where there were other common law claims, would simply treat the law of the state as applying to the proceeding to the action subject only to the specific requirements of that Commonwealth Act which of necessity and to the extent of any inconsistency would be given priority. That might involve a consideration of the covering the field doctrine where a particular subject matter was comprehensively dealt with, but otherwise there would be no doubt that the rules of procedure and evidence and the law concerning other general concepts such as contribution would be that applied by the particular state court in which the proceeding was brought, subject to the particular requirements of choice of law rules. The position is, in effect, little different today, but the exercise of applying s.79 of the Judiciary Act is more frequent, essentially because more proceedings seem to attract federal jurisdiction. That section has always been seen, however, as seeking to achieve the same end, namely to allow the proceedings to be decided in the same way (subject to specific Commonwealth laws) as if they had been brought in a local court untrammelled by concepts of federal jurisdiction. The section goes back a long way, to the very passing of the Act in the year the High Court was founded, and has only been amended once, only so as to give it proper effect in the territories.

[108]

On their face there would appear to be a conflict between the New South Wales Court of Appeal in Proctor and the South Australian Full Court in Timeny. Neither case strictly applies here, the former dealing with the provisions of the Civil Aviation (Carriers Liability) Act 1967 (N.S.W.), which applies to aviation accidents on commercial flights within New South Wales, and the latter dealing with an action brought under Part II of the Act which applies to international commercial flights to and from Australia. That particular part of the Act is clearly part of an international scheme which gave effect in this country to the Warsaw and later Conventions. Arguably too narrow a view was, with respect, taken of a court's powers where such actions are brought, insofar as the convention expressly recognises that local procedural laws will apply to any such proceeding: see Article 28.2. Equally arguably the New South Wales approach, with respect, gave insufficient recognition to the essential effect of extinguishment of a right. Nevertheless the issue here is a narrow one. It is confined to the power of the Supreme Court to allow amendments to pleadings where a plaintiff's claim is founded on a Commonwealth statute. The New South Wales cases, of which Proctor[123] may be treated as the leading example, depended heavily on the structure and form of the New South Wales Limitations Act. For reasons best known to those who drafted it, every cause of action is treated as extinguished upon the expiry of the relevant limitation period: see s.63. It might appear, from afar, that the ameliorative provisions, for example those that relate to disability and general extension of time, in the New South Wales Act could not work if all claims were treated as dead and incapable of revival at the end of the relevant limitation period. Section 63 has therefore been construed recently by members of the High Court in the Commonwealth v. Mewett[124] as meaning that causes of action are extinguished, subject to the provisions of the very statute which extinguishes the rights, and that has been elsewhere expanded to include extinguishment under other statutes: see Proctor, Nikolay Malakhov, Australian & New Zealand Banking Group Ltd. v. Larcos[125] and Jennings v. Credit Corp Australia Pty. Ltd.[126]. One would be loath to conclude that, merely because the relevant extinguishment flowed from a Commonwealth statute, the same approach could not be applied in a state court where so many ordinary personal injury claims are heard. One would be even more loath to reach that conclusion when one learned that, if the proceeding were brought in the Federal Court, a broad power of amendment is likewise given, notwithstanding the extinguishment prescribed by s.34 of the Act. Of course, this is a narrow point, the power given to the Federal Court under O.13 of its rules being confined to amendment and it says nothing as to extension of time or the like. One may observe, however, at least before all limitation rules became treated as substantive, that one would ordinarily have treated the extension and ameliorative provisions of the local Limitation Act as procedural and as the kind of provisions one would expect to have been "picked up" under s.79 of the Judiciary Act. Certainly the federal Parliament has not thought it necessary to legislate for a similar regime relevant to causes of action arising under Commonwealth legislation. For myself I would prefer, if authority permitted, to consider these provisions of the state Limitation Act, broadly similar to those applied in each state and territory, as consistent with Commonwealth sections laying down a specific limitation period. Moreover one would prefer, even with sections drafted in terms of extinguishment, that they should be construed as also subject to general rules relating to limitations, so that the extinguishment would always be considered as conditional. That conclusion, so far as Convention claims under Part II of the Act are concerned, must be treated as precluded on the authority of Timeny.

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