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

2. The appellant by its argument would seek to breathe new life into Maitland's well-known aphorism: "The forms of action we have buried, but they still rule us from their graves."[1] It asks the Court to hold that, because the respondent in her statement of claim failed to assert that the appellant was liable to her pursuant to Part IV of the Civil Aviation (Carriers' Liability) Act 1959 ("the Act") in respect of her husband's death resulting from the crash of an aeroplane in the Northern Territory in 1997, no amendment could be made beyond the limitation period fixed by that Act, so as to amend her statement of claim to allege that liability, although the facts to be relied on remained essentially unchanged.[2]

That Part creates a right to recover up to $500,000 damages for losses resulting from injury or death caused by interstate or intra-territory commercial flights. The facts to be pleaded and established for that purpose are simple, requiring no proof of negligence or breach of contract or any other specific duty. Unfortunately, when the respondent first sought to bring proceedings in respect of her husband's death on such a flight, her advisers overlooked[3] the appellant's liability under the statute and brought an action in which the endorsed statement of claim made allegations described only in terms of negligence and breach of contract but made no reference to the liability created by Part IV of the Act. After the statutory two year limitation period[4] had expired, the appellant's solicitors wrote to the respondent's solicitors pointing out that the respondent's claim was "misconceived" in that the liability created under s.28 of the Act was, by s.35 of the Act, imposed "in substitution for any civil liability of the carrier under any other law", so that the respondent's claim in negligence and breach of contract was not maintainable. Moreover, when the respondent sought to amend her statement of claim by asserting the appellant's liability under Part IV of the Act, together with some minor tidying up of the form of the allegations in the former statement of claim, the appellant asserted that her claim was barred, indeed "extinguished", by reason of s.34[5] of the Act so that no amendment of her claim could then be made and that in consequence her action should be dismissed or permanently stayed.

7. 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.

10. The respondents in both appeals were successful in their applications to amend brought in the Trial Division. In fact Ashley, J. was the judge who decided each case and he followed in the PSL Industries case, so far as relevant, his legal conclusions in the first case, namely that brought by the present respondent. It will be necessary to return to some of his Honour's reasoning but in substance it may be said that he reached his conclusions primarily because he held there was no true inconsistency between the legislation of the relevant State and that of the Commonwealth, for he said that the effective basis for the amendments in each case was that, by reason of a principle or rule of the common law, the pleadings as amended took effect from the date of the issue of the proceedings, not from the date of amendment, and it was thus that principle which enabled the plaintiff in each case to claim that their proceeding had been commenced within time. I am afraid I am not convinced by the precise reasoning of the learned judge in this respect, inasmuch as it has an element of circularity about it, but there lay behind it the germ of a truth which would enable one to say, at least in the present appeal, that his Honour was correct to allow the amendments. It will, however, be necessary to examine some more of the circumstances, and regrettably much more of the law, before finally reaching any such conclusion.

13. Having regard to the fact that Part IV of the Act imposes on air carriers strict liability for injury or death[7], the relevant facts as to liability may be very shortly stated. The appellant carried on an aircraft charter business and to that end held an Air Operator's Certificate, which is treated in the Act[8] as a "charter licence". About 13 August 1997 it entered into an agreement with Stephen James Hatfield[9], the husband of the respondent, to carry him in a Cessna 210 as a passenger on a sightseeing tour, commencing from an airfield in the Northern Territory, over parts of the Territory and the Kimberley, and finishing at a Northern Territory airfield. The following day, during the course of the tourist flight, the aircraft crashed in an accident, as a result of which the deceased died. By reason of her husband's death the respondent sustained loss and damage of varying but recognised kinds.

16. It would be amazing if these simple facts could not have been stated succinctly in the respondent's statement of claim. The only reason they did not take on a form setting them out in consecutive paragraphs in the original statement of claim indorsed in the writ[10] was that, as was fairly admitted, her practitioners did not intend to bring the respondent's action pursuant to Part IV of the Act and sought rather to found her case on negligence and breach of contract. Consequently, the statement of claim so indorsed took on a somewhat longer form, containing the allegations required to support those causes of action.[11] Ashley, J. held that in this form the material facts necessary to support a claim under Part IV of the Act were not alleged, but that conclusion is challenged (by notice of contention) on this appeal by the respondent. For that reason alone it is necessary to set out sufficient of the original pleading to understand counsel's contentions, but it is also important to an understanding of what was involved in and the proposed effect of the proposed amendments. Before doing so, I should set out what occurred between the parties which has led to the present appeal.

19. 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.

22. Returning now to the original statement of claim indorsed on the writ, it may be fairly abbreviated in the following way:

"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."

26. To this statement of claim the defendant served a bald defence for the most part either not admitting or denying the allegations in the statement of claim. However, it admitted that the Cessna in which the deceased was a passenger crashed, that he died on 14 August 1997, the allegations in paragraph 8, and in particular, as to paragraph 1, 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". To that extent it appears that it has never been in issue that the appellant holds the relevant certificate authorising charter operations, which are the necessary operations to support a finding that the appellant held a charter licence within the meaning of s.26 of the Act.

29. By way of demonstrating how few allegations had to be changed to amend the statement of claim to a claim under Part IV of the Act, the originally proposed amended statement of claim, which the judge gave leave to serve, contained only the following changes:

1. To paragraph 1 a new sub-paragraph (b) was added alleging that the appellant "was the holder of an airline licence or charter licence in the course of commercial transport operations".

2. The particulars to paragraph 2 were deleted (although they were inserted again in the pleading served on 19 June 2001), and the following paragraphs were added:

"2A At all relevant times, the Defendant was operating the aircraft.

2B At all relevant times, the deceased was a passenger in the aircraft under a contract for the carriage of the deceased between one place in the Northern Territory and another place in the Northern Territory."

3. Paragraphs 4, 5 and 6 were all wholly deleted, as they contained the unnecessary pleas of negligence and breach of contract.

4. Paragraph 7, now renumbered 4, was now shortened to omit the references to negligence and breach of contract, and substituting the words "the accident" so that it now read: "As a result of the accident, the deceased died on 14 August 1997".

5. A new paragraph 5 was added asserting the statutory liability of the appellant, in conformity with the requirements of Order 13.02(1)(b) of the Supreme Court Rules in this form:

"The Defendant is liable to the Plaintiff for damages for the death of the deceased pursuant to the provisions of s.28 of [the Act]."

6. Paragraphs 8 and 9 were merely renumbered as paragraphs 6 and 7 but with the addition to the allegations formerly in paragraph 9 of this allegation: "The deceased's personal representative has incurred expenditure associated with the death of the deceased." There was a consequential alteration to the particulars stating that particulars of funeral and other expenses would be provided before trial.

It may be noted that not a single fact was changed and that the "new" facts added were essentially jurisdictional facts, not facts which went to describe the accident or the injuries.

Sufficiency of original statement of claim and nature and effect of amendments

(i) Whether original statement of claim sufficient to support claim under Part IV of the Act

44. It is necessary to begin with an argument of the respondent, expressed in her notice of contention, that the original statement of claim pleaded sufficient facts to establish a cause of action in the plaintiff under Part IV of the Act, for, if that be answered affirmatively, none of the other issues will strictly arise, although for a number of reasons it would be necessary to address them. The argument is simple but did not appeal to the learned judge at first instance. It claims that all the material facts required to prove the respondent's case against the appellant under the Act were alleged in substance in the statement of claim and nothing more needs to be proved to make out her case under Part IV. If there be technical deficiencies, none of the omitted matters are material facts of any consequence, certainly none could be in contention and at most would go to make out the conditions necessary to establish the plaintiff's right: cf. O.13.05.

47. The simple facts set out above,[13]

if pleaded, would have been sufficient to support a claim for damages pursuant to Part IV of the Act. They would constitute all the material facts and the only other requirement under the Supreme Court (Civil Proceedings) Rules, admittedly here not carried out, is that "where any claim ... of the party arises by or under any Act, [the pleading shall] identify the specific provision relied on": see O.13.02(1)(b). Whether that was an irremediable defect remains to be seen, the appellant asserting that the writ and indorsed statement of claim gave it no notice that the respondent sought to enforce a liability under the Act. Moreover, the learned judge said that, in addition, the following facts had to be asserted and made out to establish such a claim, but which he concluded had not been sufficiently alleged:

"(i) that the Defendant was the holder of [a] ... charter licence for the purposes of Part IV of the ... Act; (ii) that the deceased was a passenger carried under a contract of carriage by the defendant as a holder of such a licence in the course of commercial transport operations either between a place in a territory and a place in Australia outside that territory, or between two places in a territory; (iii) that the deceased's death resulted from an accident which took place on board the aircraft; (iv) that the plaintiff was a member of the deceased's family who sustained financial damage by reason of his death ..."

53. As to these allegations the learned judge said that fact (i) was not satisfied although he conceded that the holding of the necessary licence was "perhaps ... implicit" in the allegation made in paragraph 1 of the original statement of claim. To my way of thinking it was sufficiently implicit in the allegation in that paragraph that the appellant was "carrying on the business of aircraft charter", so implicit that the appellant's one responsive paragraph of its defence conceded that it was "the holder of an air operator's certificate authorising charter operations". That concession, by reason of the definition of charter licence in s.26(1) of the Act, meant that the appellant was the holder of such a licence.[14] Thus, although paragraph 1 had not directly asserted the required holding of a licence, the appellant had not perceived that the allegation had any fundamental deficiency, so that, if its plea cannot be described as a true waiver on its part, it meant that the question was no longer in issue between the parties. To that extent the plea rescued the claim from this asserted technical defect.

56. It was next asserted, in relation to fact (ii), that, in the first place, the statement of claim did not "squarely" allege that the deceased had been carried as a passenger by the appellant "in the course of its commercial transport operations", as defined and as required by s.27(1) of the Act. But the definition requires only that the "operations" are those in which "an aircraft is used, for hire or reward, for the carriage of passengers or cargo". That is simply satisfied by the allegation that the company was carrying on the business of "aircraft charter". It is not the specific flight that had to be for reward,[15]; rather it was "the operations" as a whole which had to be so characterised. An allegation that the appellant carried on a charter business, as appeared in paragraph 1, was sufficient, so long as the particular flight was a "carriage" "in the course" of those operations and that was satisfied by the allegation in paragraph (2) that the deceased "had agreed" with the appellant that he and other passengers be carried on a sight-seeing tour.

59. 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.

62. 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.

65. Little need be said as to fact (iv). Sub-section (3) of s.35 states that a claim under Part IV arising out of death is enforceable primarily "for the benefit of such of the members of the passenger's family as sustained damage" and s.s.(5) includes a "wife" (sic) within that expression. The original statement of claim, of course, described the plaintiff as the passenger's "widow" and her loss was expressed in the conventional terms applicable to a Wrongs Act claim. There can be no doubt that a "family" member was alleging that she had suffered damage. The difference is essentially only one of form.

68. Finally, it is said, as is obvious, that the original statement of claim contained no reference to Part IV of the Act. If a claim "arises by or under any Act", O.13.02(1)(b) requires the pleading to "identify" the specific provision relied upon. In a sense this is the most serious of the defects alleged by the appellant in that there has been a direct breach of the requirements of the Rules. It is also correct to say that this was no mere oversight inasmuch as it is conceded that the respondent's advisers were ignorant of the provisions of the Act and of the effect of s.35(2) of the Act which states that the statutory liability is "in substitution for any civil liability" of the appellant as a carrier under any other law. On the other hand, the requirement of the Rule merely ensures that a defendant is made aware of the statutory basis of any claim made against it, if it be founded upon statute. The Rule was added in 1986 to overcome the requirement that only the material facts need be pleaded, not any legal conclusions, nor any statutory requirements. In many cases it is only fair that a plaintiff identify the statute upon which it seeks to rely inasmuch as defendants may be ignorant of obligations imposed by statute, especially in this era of constantly changing statutory law.

71. Here, however, a carrier such as the appellant must have been well aware of the provisions of Part IV of the Act, and any other relevant statutory provisions, for, at the least, those obligations would necessarily go to the kind of insurance cover which an aircraft operator such as the appellant had to take out, even if it were otherwise unaware of its obligations. Consequently, if all the facts were otherwise properly contained in the statement of claim, there would ordinarily be little reason why an amendment should not be permitted to satisfy the rule. It would thus merely characterise a liability which the facts would otherwise establish. Of course, in the present case the time limit imposed by s.34 of the Act has expired and so a question arises as to whether an amendment should be allowed to identify the cause of action upon which the respondent would now seek to rely. Before turning to the question of amendment, however, it must be said that it would be remarkable if a party intending to sue in respect of Part IV liability would be refused leave to amend because of a technical failure to comply with O.13.02(1)(b) and it would be equally remarkable if an action with such a deficiency could be finally stayed or judgment given for a defendant because of that deficiency. The omission, therefore, in my opinion is one which ought not in itself to prevent amendment, as Ashley, J. held, and the appellant's case thus depends upon showing either a lack of intent to sue, which must be a doubtful basis, or a failure generally to allege the necessary facts to support a claim under Part IV, which must depend upon the matters described above[23]

76. 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.

79. 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.

82. 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.

85. 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.

88. Consequently, with some reluctance, I feel bound to hold that the original statement of claim failed adequately to set out all the necessary allegations supporting the respondent's claim under Part IV of the Act and it will thus be necessary to turn to the question of amendment.

91. Upon the basis that the original statement of claim did not sufficiently state a relevant cause of action, namely one under Part IV of the Act, the appellant also sought an order that the action be dismissed or that it be forever stayed. The conclusion so far reached is not sufficient to justify that drastic remedy, unless it be held that there is no power to amend the statement of claim, in which case it would be futile to allow the proceeding to continue. The latter question remains to be considered. Generally, however, an inadequate statement of claim will not justify an order summarily terminating a proceeding unless it can be shown that no amendment could restore some viable claim. As will be seen, an order dismissing the proceeding cannot presently be justified.

(ii) Whether statement of claim can properly be amended - General

95. 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.

98. It is important first to see what the nature of amendment was before the recent legislative changes, for in substance both the Victorian and Northern Territory Rules and the amending sections of the Victorian and Northern Territory limitations legislation were directed to what was described as the "abrogation" of the rule of practice laid down by the English Court of Appeal in Weldon v. Neal[33].

102. Some understanding of the history of the "rule" in Weldon v. Neal is important, for its precise scope was, and is in those jurisdictions where it has not been entirely "abrogated", a matter of some dispute. Some courts, including the members of the Full Court of this state in Cutrona v. Harnischfeger of Australia Pty. Ltd.[34], took a very strict view of what amendments should be permitted which might affect the operation of the Limitation of Actions Act, while other courts, such as the English Court of Appeal in Dornan v. J.W. Ellis & Co. Ltd.[35], took a more benevolent approach. In substance the rule stated that no amendment should be permitted if the effect would be to allow a plaintiff to rely on a cause of action which was statute-barred at the time of the application. In its application there were more subtle nuances, for not every alteration to a former statement of claim was rejected, certainly where the amendments merely altered the non-material particulars of the existing claim, whereas, for the most part, an additional or substituted cause of action, different from one already pleaded, was almost invariably rejected. On some occasions the question arose whether the new or substituted cause of action was merely a new characterisation or categorisation to describe the material facts which had already been pleaded, as opposed to one which altered or added to those material facts.

105. The primary test, however, was, as it still is, that applicable to any application for amendment of pleading, namely, whether it is fair to the other party in all the circumstances to permit the new or altered claim to be made. It was not difficult to say, as courts in all jurisdictions regularly did, that, if (subject to the rules as to joinder of causes of action) a quite different statute-barred cause of action were sought to be added or substituted, it would be so unfair to the defendant that such application ought to be dismissed. A problem could really arise only if the proposed amendment was of a less fundamental character, for then the unfairness might not be so obvious. For better or for worse, when the English Court of Appeal first visited the question in Weldon v. Neal itself, the Master of the Rolls, Lord Esher, with the concurrence of Lindley and Lopes, L.JJ., expressed the Court's views in apparently rigid terms as follows[36]:

"We must act on the settled rule of practice, which is that amendments are not admissible when they prejudice the rights of the opposite party as existing at the date of such amendments. If an amendment were allowed setting up a cause of action, which, if the writ were issued in respect thereof at the date of the amendment, would be barred by the Statute of Limitations, it would be allowing the plaintiff to take advantage of her former writ to defeat the statute and taking away an existing right from the defendant, a proceeding which, as a general rule, would be, in my opinion improper and unjust."

To this his Lordship allowed only one qualification that "under very peculiar circumstances"[37] a court might have power to allow such an amendment. Of course, it is apparent from a reading of those words that, notwithstanding the courts' general approach to amendments is that "all reasonable indulgence" with regard to amendments should be given[38], nevertheless prejudice of an irremediable kind would be caused to a defendant if amendments were allowed to "set up causes of action which were not in the original claim and which are now barred by the Statute of Limitations".[39] Two matters may be noticed from the judgments, one, that what was involved precisely in the setting up of a new "cause of action" was not defined and, secondly, that the vice was seen to flow from an assumption that the amendment, if permitted, would not merely date from the day of amendment but would be treated as having effect from the day the writ was issued. Each aspect will be considered a little further.

110. These aspects and the precise scope of the "rule" in Weldon v. Neal must be examined in order to understand what the amending rule and statutory provision were intended, so it might appear, to achieve. It was a rule of practice, indeed on one view merely a rule as to the exercise of a discretion given under rules of court, intended to restrict the circumstances in which an amendment would be permitted which might affect a statute-barred claim. Although devised at a time when limitation periods were thought to be procedural rules, it had what some[40] thought to be a substantive effect inasmuch as it sought to protect rights and immunities given pursuant to statute. Although it was applied with relative rigour whenever it was thought that the allowing of an amendment to a pleading might seek to bypass the relevant statutory limitation period, the "rule" was not an inevitable consequence of the application of rules of court relating to amendment.[41] That it was not inevitable may best be seen from the discussion of the rule by Jordan, C.J., who delivered the judgment of the Full Court of New South Wales, in Horton v. Jones (No. 2)[42]. From that it may be seen that originally the Court of Exchequer and the Court of Common Pleas had taken a more generous approach to amendments where limitation periods were involved, although the Court of King's Bench had from a relatively early stage taken a restrictive attitude: see esp. Roberts v. Bate[43]. According to Jordan, C.J. it was this latter approach which prevailed under the Judicature Act system. This part of the reasoning in Horton v. Jones was cited with approval by Owen, J., with whom Kitto and Menzies, JJ. concurred, in Renowden v. McMullin[44].

113. Unfortunately, neither Weldon v. Neal, nor, so far as I have been able to ascertain, any of the authorities upon which that decision was based, made clear precisely what amounted to a "new cause of action". The reasoning of the learned members of the Court of Appeal was very briefly stated in judgments given off the cuff, the substance of which I have just set out.[45] The facts which gave rise to the decision, not often referred to, make it clear why the Court saw prejudice in the proposed amendments, in that the plaintiff sought to add to a claim in slander fresh claims in assault and false imprisonment which were barred at the time of the application.

116. It was thus only over the next 90 years that the particular scope of the "rule" was worked out so that, at the end of that period, doubts as to its fairness and desirability led to changes in the amendment rules in virtually all jurisdictions. The primary difficulty was seen in determining what amendments to factual allegations gave rise to a new cause of action, whereas, for the most part, any change to the characterisation of the cause of action in law, albeit resting on the same facts, was almost invariably categorised as a new cause of action bringing the rule into operation. Thus, on the one hand, it was said by Walsh, J.[46] in O'Grady v. Botany Wools (Australia)[47], a judgment which was firmly approved by the Full Court in Cutrona[48] and by Owen, J. on behalf of the majority in the High Court in Renowden[49], that the rule applied where an amendment would introduce a new cause of action, but, on the other hand, it would not apply "when it would do no more than state in a different way, or give different or additional particulars in respect of, the same cause of action".[50] Furthermore, Walsh, J. also laid down, in terms cited with approval by the Full Court in Cutrona[51], a rigid test, as follows:[52]

"For the purpose here relevant, the addition of a statutory count in an action originally based on common law negligence has been treated as an amendment which introduces a new cause of action. I think this must now be regarded as settled law."[53]

It is possible, one may concede, that his Honour did not mean to be so restrictive when talking of two causes of action arising out of the same facts, for the facts in O'Grady related to an application to amend to add a claim for breach of statutory duty arising out of additional circumstances said to be in breach of certain regulations under the Scaffolding & Lifts Act 1912 (N.S.W.).

121. Whatever was the precise intention of Walsh, J., the Full Court in Cutrona took a similarly restrictive attitude to amendments, in a case where a claim for breach of statutory duty was sought to be added, and for the purpose it relied on O'Grady, together with observations of the majority in the High Court in Renowden and an obiter dictum of Barwick, C.J. in Black v. City of South Melbourne[54]. Regrettably it would seem that the Full Court took the view that it was sufficient merely to know that the amendment contained an additional cause of action, strictly so described, without enquiry as to whether that was supported by the same or different facts. This conclusion follows, I think, from its disapproval of Christadoulopoulos v. Rowntree & Co. (Australia) Pty. Ltd.[55] and the fact that the Court did not consider a further argument whether the amendments there sought involved "an entirely new set of ideas", for they thought it was unnecessary in the circumstances to reach a conclusion upon that contention.[56] The end result seems to have been that, although some discretion was left to a court where an amendment sought to add new facts but without changing the basis of the plaintiff's claim, there was in effect no discretion to allow an amendment where it was sought to add a new cause of action, however little the factual foundation of that cause of action varied from one set out in the original statement of claim. The only exception appears to have been "peculiar circumstances", an expression which has, to my knowledge, never been examined for this purpose.

124. Although they would appear to deny a right to amendment, the authorities (other than Christadoulopoulos[57]) and the passages in them to which I have referred have not explicitly dealt with a case where the only alteration to a statement of claim was a change or addition to the cause of action without any related alteration in the necessary pleaded facts. It is interesting to note that in the United States[58], although a rule akin to that in Weldon v. Neal and a similar practice as to relation back seem likewise to have been developed, a mere change in the nature of the basis for recovery has generally not been thought to be covered by the rule. For example, in Friedenthal, Kane & Miller: Civil Procedure[59] it is said:

"It is clear that a mere change of the legal theory does not prevent an amendment from relating back. An amendment may shift a case from a tort to a contract theory or vice versa or alter a claim based on common law liability to one having a statutory base. Technical or mechanical tests will not be applied."[60]

Of course, in many cases the difficulty may be more theoretical than real for it remains a conventional rule of pleading that it is ordinarily sufficient to allege only the material facts without identifying the legal basis upon which the plaintiff asserts liability: see O.13.02(1)(a). Nevertheless, it is permitted now by O.13.02(2)(b) to "plead a conclusion of law", if that be thought desirable and, although in the simpler claims the latter rule is not frequently resorted to, its use is not an undesirable trend in longer pleadings where a proper understanding of complex facts and allegations may be assisted by an assertion of legal conclusions. In a simple claim such as the present it might fairly be said that the pleader was obliged merely to state the material facts upon which the respondent relied. If so, the respondent's objective intention might be here relevant, so long as all material facts had been pleaded. The problem was adverted to by Sheller, J.A. in Air Link, citing but distinguishing Wickstead v. Browne[61], although his Honour found there to be a fundamental failure to plead acts supporting liability under Part IV of the Act. It cannot here be said that all the relevant facts have been fully pleaded, so that there remains the question whether an apparent change of characterisation may properly be accompanied by minor changes of fact and circumstance, so long as the essential factual basis is not altered. To that it will be necessary to return below.

129. Nevertheless, the uncertainty and then apparent rigidity of the "rule" in Weldon v. Neal led to a good deal of dissatisfaction. In 1971 an experienced judge, Lush, J., in Christodoulopoulos had wended his way carefully through the authorities to reach a benevolent conclusion in a case where the facts relied on were largely unchanged but an additional claim for breach of statutory duty was sought to be added by way of amendment. In Cutrona, however, the Full Court had seen the dicta in the High Court decisions of Black and Renowden as denying any means of reaching a similar conclusion in a case where the plaintiff had made claims in negligence and for breach of a statutory duty imposed by the Lifts & Cranes Act 1958, but sought later to add a claim for breach of statutory duty arising out of the Labor & Industry (Building Industry) (Safety, Health & Welfare) Regulations 1969, notwithstanding the incident causing injury was essentially the same. The dissatisfaction manifested itself in a detailed and interesting article in the Australian Law Journal by Susan Campbell, entitled "Amendments and Limitations: The Rule in Weldon v. Neal"[62], in which a critical analysis was made of the leading cases, especially those decided in Victoria, and a submission made that, if the Victorian practice remained unchanged, a similar provision should be made in the Victorian rules to that then contained in the English Rules of the Supreme Court O.20 r.5, especially paragraph (5), permitting a new cause of action to be added if arising out of the same or substantially the same facts.[63]

132. It was at about the same time that Mr N.J. Williams made a similar proposal to the Rules Committee of this Court and a detailed submission forwarded on behalf of the Committee to the Council of Judges.[64] In essence it was asserted that, although a discretion was fairly permitted as to what new facts might be added as constituting a particularisation of an existing cause of action without departing from it, it was not reasonable to shut out a plaintiff from amending merely because it was desired to place a new or added legal characterisation on facts already pleaded. It was one thing to object to a cause of action being brought out of time dependent on new facts, but quite another to object to a change in form or characterisation of an action otherwise commenced in time, where the fresh claim was directly related to its original subject matter. Prejudice might be obvious in the first case but not in the second. Consequently a discretionary rule such as existed in England or New South Wales should be introduced. Moreover, there was thought at that time to be no essential objection to effecting the change by amending the rules because in Mitchell v. Harris Engineering Co. Ltd.[65] the Court of Appeal had held that a similar rule had been validly passed by the judges in England.[66]

135. Mr Williams' paper also referred with approval to the new rules relating to amendment passed in 1970 in New South Wales and a Court of Appeal decision which explained them, namely, McGee v. Yeomans[67]. The gist of the principal judgment in that case given by Glass, J.A. was that the New South Wales Rules had displaced "all the fine spun distinctions which [Weldon v. Neal] engendered", and that the discretion having been set free "should not again be confined by rigid technicalities".[68] Some qualifications were later placed on the breadth of those expressions by the Court of Appeal in Proctor v. Jetway Aviation Pty. Ltd.[69]; see also Clutha v. Millar (No. 2)[70]; but the vice which Mr Williams thought desirable to overcome was the application of the rule to new "causes of action", albeit that proceedings relying on the same or substantially the same facts[71] had been commenced within time. Upon that hypothesis an amendment so made would not be "tantamount to commencing another action", for the factual subject matter of the claim was already in issue and the defendant had been put on notice of the plaintiff's claim generally within the relevant limitation period. In essence, that would have been within the spirit of Weldon v. Neal, but for the strict interpretation placed upon it, both in England and Australia. An amendment to the rules could properly overcome that, since it would reopen the discretion only in relation to claims already on foot. This was not the form the amending rule, passed in 1986, ultimately took, different from the form of rule adopted in England and New South Wales, but the history is important to show what was then seen to be the problem and what was sought to be achieved.

139. One element, indeed some might say the most important element, in this analysis of the rule in Weldon v. Neal, was the assumption that an amendment when made would operate from or "relate back" to the time proceedings had been issued. If that were not the case, (and it was not treated as being so when a party was added), then there could have been no difficulty in making an amendment, for the added cause of action would then date only from the date of amendment and the statutory bar could be pleaded in the ordinary way. It is another question altogether whether the concept of the added or varied claim relating back to the date of issue of process can be characterised as a "principle" of the common law, as the learned judge here held.

142. Therefore, before further examining the scope of the rule in Weldon v. Neal and of the amending rules and legislation, it is necessary to examine what has been seen to be this corollary, namely the so-called "principle" that, whenever any amendment of the terms of the statement of claim (or other commencing process) is made, it "dates back" to the time the action was issued, in this State when the proceeding by way of writ was filed. This concept seems to have taken on a particular significance for the learned judge in that he used it as the basis for saying that the amendment sought could be justified by reference to this "common law rule" rather than by reference to the power to amend, qualified or expressed as it now is since the 1986 amendments both to the rules and the Limitation Act.

145. Undoubtedly, the consequence that amendment, once effected, relates back to the issue or filing of process is well accepted: see esp. per Phillips, J.A., with whom Brooking and Charles, JJ.A. concurred, in Anglo-Irish Beef Processors International v. Federated Stevedores Geelong[72] and the authorities therein cited.[73] But what does that statement mean? To my way of thinking it means no more than this: amendment [74] involves making an alteration to an existing document and that document will have come into existence at some time in the past; whoever amends such a document is not normally creating an entirely different document, but is merely effecting a change or changes to that which is already in existence, which itself has a known date upon which it came into effect. One could "substitute" a new document of the relevant kind and that might connote the creation of a document taking effect only at a later date. In fact, as a matter of practice, where some special problem has arisen, occasionally judges have directed that certain amendments to pleadings only take effect as at the date of the making of the amendment, but that ordinarily comes about by a specific order. [75]

148. The relation back of amendments is, therefore, hardly to be called a principle or rule, for it is merely the common sense characterisation of what is in fact sought and done. Moreover, if one were to analyse the process more fully, there ought to come a point at which amendment goes beyond merely affecting something already brought into existence or carried out in the past. If the amendment is sufficiently extensive, so as to change the character of the original document, as it were, then it might no longer be merely an amendment of an existing document but the creation of a new and substituted document. That substituted pleading or other document could, if the circumstances were appropriate, take effect at some other date, most obviously the date at which it was substituted, but that might well have other consequences. One would then have to take account of what has been done in the meantime and whether the new document might bring into operation rights and liabilities which differ because of the later date. The problem has most frequently occurred when amending and varying various orders, especially sentencing orders. However, when a civil judgment or order is not merely confirmed or formally varied on appeal, any substituted order (or order "in lieu") ordinarily takes effect on the date it is pronounced: see Nicol v. Allyacht Spars Pty. Ltd. (No. 2)[76] and Official Receiver in Bankruptcy v. Schultz[77].

151. 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]

154. Interestingly Brandon, L.J. said (obiter) in Liff v. Peasley[86] that there was no reason to quarrel with the proposition that an amendment relates back to the document amended, but that:

"This seems to me to be an entirely sensible proposition so long as the amendment concerned does not involve the addition of a new party, either as plaintiff or defendant, or the raising of a new cause of action, but involves only the modification, by addition, deletion or substitution, of pleas or averments made between existing parties in respect of a cause or cause of action already raised." (Emphasis added.)

In Ketteman His Lordship's judgment seemed to gain general approval in the House of Lords of which he was by then a member. Of course, the statement begs the question as to what is a new cause of action, but it does seem to provide a rationale for the following statement of American practice contained in 51 Am. Jur. 2d[87]

"If an amended pleading does not merely expand or amplify the initially filed pleadings, but introduces a new cause of action, one that is different and distinct from the one originally set forth, the amended pleading is equivalent to the bringing of a new action, and there is no relation back to the filing of the original pleading that prevents the Statute of Limitations from running against the new cause of action down to the time that it is introduced by the amendment."

This statement seems to derive from a number of propositions stated by Holmes, J., on behalf of the U.S. Supreme Court, in New York Central and Hudson River Railroad Co. v. Kinney[88]. Significantly he justified the distinction (and the decision in that case) by saying[89] that "when a defendant has had notice from the beginning that the plaintiff sets up and is trying to enforce a claim against it because of specified conduct, the reasons for the Statute of Limitations do not exist ...". That provides a rationale for the American practice, so far as I understand it, but it does not justify a conclusion that every amendment, once granted, must date back to the issue of proceedings. That practice only permits relation back in certain specified circumstances. It could not justify the order in the present case, unless the amendment did not raise a truly new case. Otherwise the argument is circular, for an order for amendment made beyond the fixed period would always defeat the limitation statute. This was recognised in Weldon v. Neal itself where Lord Esher, M.R. justified the strictness of the "rule" by saying that to grant all amendments outside limitation periods would allow "the plaintiff to take advantage of her former writ to defeat the statute."[90]

163. In the end none of this discussion contained in the authorities in England and Australia provides much enlightenment as to the reason lying behind the so-called "relation back" principle. If one excludes new parties and separate factual claims as quite inappropriate subject matters for a mere amendment, then there is no reason why an amendment not affecting the substance of a claim should not be treated as affecting and varying an originating document or pleading from the outset. As I have said, that is merely the nature of an amendment, that is, to take that which is in existence and alter it. It is only because the word "amend" has a wider connotation in most systems of pleading that one gets into difficulties. In the ordinary case, where questions of limitations or other prejudice do not arise, it is convenient, whatever the common law might once have said, to allow a proceeding to be amended pursuant to the present joinder rule by the addition of a cause of action, quite separate in substance from an existing cause of action: see now O.9. Whatever the requirements were under earlier rules, in practice there is now no limit on joinder except where the Court holds that it is prejudicial or inconvenient to the extent that it is desirable to hold separate trials or to order the exclusion of a particular claim. Generosity as to the extent of joinder, however, ought not to hide the fact that, when one "amends" to add a new and distinct cause of action, one is not merely amending the process but adding something quite new to it, and it is only as a matter of convenience that the Court permits both old and new claims to proceed together and treats them as having commenced at the same time, albeit that further pleadings, discovery and the like will be required: cf. O.36.06.[91]

166. The nature of relation back so far as pleading is concerned, subject only to the possible effects of the new rules as to the effect of amendments passed in 1986, may thus be summarised. The so-called "rule" merely recognises and gives effect to that which the plaintiff seeks to achieve, namely, the amendment of an existing document[92], ordinarily the statement of claim, already filed and served on the defendant. With the exception only of amendments made before close of pleadings, which are permitted without leave but are subject to disallowance (see O.36.03(a)), amendments are effected by leave given pursuant to court order: see O.36.01(1). Because the plaintiff is ordinarily seeking to amend an existing document which already has a date of filing and service, it is not customary for such orders to state the date from which the amendment is to have effect, for it is to be assumed that the plaintiff wishes it to take effect so as to vary that existing document. There is, however, no reason why the Court should not explicitly state by order the date the amendment takes effect and has done so from time to time: see e.g. Australia & New Zealand Banking Group Ltd. v. Larcos[93]

. It is therefore not difficult to see why an amendment adding a party has never been treated as dating back, for the very good reason that there has been in existence no document, writ or statement of claim, between the plaintiff and the added defendant, unless and until the order adding the defendant is made. There is no high principle of common law in issue, whatever order is sought to be made, and there is simply the recognition of that which the party seeks and is permitted to achieve. It has led to difficulties only where what is sought to be achieved is not merely amendment but joinder of a new and additional cause of action, something which in strictness involves more than the amendment of an existing claim, but which is treated as an amendment of a document such as a statement of claim, because that addition of a further claim to the original claim is permitted by the rules and practice as to joinder. As recognised by Lord Brandon, however, there is no reason, except convenience, why a claim for an additional cause of action should not be treated as having come into effect at the time of amendment. It will be necessary to see how these simple propositions, if they can be so dignified, have been affected by the 1986 rules as to amendment.

(v) Abrogation of the "rule in Weldon v. Neal"

172. Notwithstanding that the original proposals for changing the pleading amendment rule in this State were confined to a rule along the lines of rules recently introduced in England and New South Wales[94] allowing new claims arising "out of the same transaction or series of transactions" previously alleged, the ultimate form of the new O.36 was more broadly expressed so as to depend solely on the absence of prejudice in the conduct of the other party's case "notwithstanding the expiry of any relevant limitation period".[95] At some stage it was decided also that it would be desirable to seek legislative sanction, not merely for the rules as a whole, but in addition by way of amending the Limitation of Actions Act itself.

175. 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]

178. The provisions of rule and section are not identical. I shall set out only s.48A of the Northern Territory Limitation Act which is almost identical to s.34 of the Victorian Act:

"48A ABROGATION OF RULE IN WELDON v. NEAL[102] (1) If a court would, but for the expiry of a[103] relevant period of limitation after the day a proceeding in the Court has commenced, allow a party to amend a document in the proceeding, the Court shall[104] allow the amendment to be made if it is satisfied that no other party to the proceeding would by reason of the amendment be prejudiced in the conduct of that party's claim or defence in a way that could not be met by an adjournment, an award of costs or otherwise."

On the other hand, the rule (in both jurisdictions) is expressed, desirably, in permissive terms, so that O.36.01(6) commences:

"The Court may, notwithstanding the expiry of any relevant limitation period after the day a proceeding is commenced, make an order under paragraph (1) where it is satisfied that ... " (emphasis added).

An order under paragraph (1) is the general power given to the Court at any stage to "order that any document in the proceeding be amended or that any party have leave to amend any document" "for the purpose of determining the real question in controversy between the parties to any proceeding or of correcting any defect or error in any proceeding, or avoiding multiplicity of proceedings".

185. So far I have avoided a detailed examination of the very large number of authorities which were cited to us or which were referred to by Ashley, J. in his careful judgment. There is much in that judgment with which I agree, though not necessarily all of his Honour's analysis, for the argument before this Court was somewhat more extensive and supplemented by the argument in the PSL case. None of the cases cited are directly binding on the issue of amendment and as to the specific rules and sections, including s.34 of the Civil Aviation (Carriers' Liability) Act, but it will be necessary to touch on some of them later. The first question, however, is to characterise the effect of O.36.01(6) and of s.34 of the Limitation Act (and s.48A of the Territory Limitation Act).

188. 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.

191. 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.

194. In the present case, however, the relevant limitation period is contained in a Commonwealth Act. Without the benefit of all the esoteric learning relating to the vesting of Federal jurisdiction in State courts and the possible operation of s.109 of the Constitution, one would consider it surprising if Parliament could be taken by the passing of s.34 of the State or s.48A of the Territory Limitation Act to have intended thereby to alter the ultimate effect of a limitations provision passed by the Parliament of the Commonwealth (or of another State or a Territory), especially as rules relating to limitations are now, since John Pfeiffer, to be treated as substantive.[105]

197. Here it is necessary to construe the rules only so far as will permit the Court to exercise its discretion unfettered by the view formerly taken in this jurisdiction as to the "rule in Weldon v. Neal". There must therefore, in my opinion, be a close connection between the claim which has already been instituted by the filing of the writ with the indorsed statement of claim and the claim which the respondent wishes to add by way of amendment, unless, of course, she wishes, and is able, to call in aid s.34 of the Limitation of Actions Act or its Northern Territory equivalent. In essence, for the discretion to be exercised favourably towards her under the rules, the new claim must arise out of the same facts or substantially the same facts as support the claims already pleaded. In truth, there will then be a mere amendment of an existing claim, albeit in the present case it involves a characterisation of the claim in a different way and in the form of a different cause of action, so long as it is a mere recategorisation (or change of legal theory) of the claim or a restatement in different legal terms of the alleged outcome of the essential pleaded facts.

Whether O.36.01(6) can apply to case involving federal jurisdiction

201. The answer suggested above nevertheless faces an argument that no provision of State (or Territory) rules (or legislation) can derogate from the full operation and effect of a section of a Commonwealth statute such as s.34 of the Act. One may accept that in this present day there can be no doubt that in suing to enforce her rights under the Act the respondent invoked federal jurisdiction, although the time at which she first sought to bring such an action is disputed. Likewise, though the action originally may have sought little more than remedies under the common law, as modified, presumably, by Northern Territory law, the now accepted view seems to be that the raising, or even the possible raising, of the "exclusive remedy" provisions of the Act (s.27), was itself sufficient to invoke federal jurisdiction: see, e.g., Felton v. Mulligan[106].

204. It is not here necessary to examine some of the more obscure examples of the autochthonous expedient (cf. Windeyer, J.'s fear as to "needlessly complex and obtuse legalism" expressed in Felton[107]), and it is sufficient to say that more recent decisions make it unarguable here that federal jurisdiction was invoked. Rather it is its consequences that are presently relevant.

207. Two aspects must first be looked at, the one direct and the other the consequence merely of the Act's being a valid Commonwealth statute. The latter has led to an argument that s.34 of the Victorian Limitation Act is "inconsistent" with s.34 of the Act within the meaning of s.109 of the Constitution and that s.48A of the Northern Territory Limitation Act likewise could not stand with s.34 having regard to the constitutional relationship between Commonwealth and Territory legislation.

210. The respondent said that the latter enquiry (or enquiries) was irrelevant for any relevant clash between s.34 and the Limitation Acts could not arise unless and until s.79 of the Judiciary Act rendered the State or Territory legislation "surrogate law" of the Commonwealth for the purpose of the exercise of federal jurisdiction. That could arise only if, pursuant to accepted authority, the state or Territory Act was not irreconcilable with the Commonwealth statute. If it was not irreconcilable, then there could be no further question of inconsistency. The latter proposition was said to flow from observations by a majority of judges in Austral Pacific Group Ltd. v. Air Services Australia[108]. But in my opinion that misunderstands the nature of those observations.

213. Central to the appellant's case was its argument that the relevant provisions of the Act constitute a code and that no provision of any other Act, certainly of a state or territory Act, can alter its effect. If there be a conflict between state and territory statutes or rules and the Act, so it was argued, the Commonwealth Act must prevail so there was no power to amend once the two year period had expired. One basis for this conclusion was that the Act "covered the field" of liability for injury, death and damage resulting from accidents in commercial (air) transport operations occurring on interstate and intra-territory flights, thus (so far as the Victorian Act and rule is concerned) bringing s.109 of the Constitution into operation so as to render the State limitation and amendment regime inoperative in that "field". Likewise a parallel concept of inconsistency was to be applied in considering the relationship of Commonwealth and Territory legislation and rules: see Northern Territory of Australia v. G.P.A.O.[109] It was argued that where s.79 is invoked no question of legislative inconsistency under s.109 could apply so far as state legislation was concerned, nor any question of a similar kind in relation to Territory statutes, in that the sole question, so it was contended, was whether the laws of the Commonwealth "otherwise provided", within the meaning of s.79 of the Judiciary Act. That section reads:

"The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable."

To the extent that the question raises a different issue, which in practical terms may here be doubted, s.109 still may demand an answer if the relevant inconsistency with State or Territory legislation can be perceived. This would appear to have been accepted by the High Court in cases such as N.T. v. G.P.A.O., see especially per Gleeson, C.J. and Gummow, J.[110] (with whom Hayne, J. agreed). One may suggest that s.109 must, on occasions, provide a conclusive answer where, for example, declaratory relief has already been granted to the effect that a particular state or territory Act is invalid by reason of inconsistency. In the circumstances it could hardly be argued that a different outcome must occur merely because federal jurisdiction has been invoked and s.79 has been called in aid. Whether answering both questions in the present case makes any difference is another matter: for present purposes, I would doubt that the answer is any different.

218. 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.

221. The respondent, for her part, said that all that had to be answered was whether, upon the assumption that s.79 picked up all relevant Victorian and Northern Territory Acts and rules, they could stand with s.34 of the Act or whether that Act and especially s.34 "otherwise provided" that two years should be the invariable maximum limitation period for the bringing of actions pursuant to Part IV of the Act.

224. 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.

227. It is perhaps unnecessary to resolve whether s.109 of the Constitution should first be applied so as to examine the inconsistency of s.34 of the Act with state and territory limitation laws, for in my opinion the answer here will be the same if one applies the irreconcilability test as to whether it is "otherwise provided" for the purpose of litigation akin to the present proceedings. It would seem hard to see how the question could arise in a matter involving the exercise of state jurisdiction alone. If the Act is being enforced or is otherwise relevant to rights being enforced in a state court, then federal jurisdiction is invoked and s.79 applies. But that, however, is an oversimplification for s.79 is concerned only to define rights in litigation to which the Judiciary Act applies. Every substantive statute has to be considered and applied on a day-to-day basis when no litigation is contemplated. The rights given by the Act may never be the subject of a proceeding in the courts but they must have an understood meaning and application. If Part IV and s.34, in particular, of the Act "cover the field" or are otherwise inconsistent with State or Territory legislation, that ought to be known by those given rights or subjected to liabilities under the Act. The answer must be capable of being given without the need to resort to litigation and before s.79 can have any operation.[114]

230. The question must therefore be answered both at the Constitutional level, by applying s.109, and, at the practical level, in this litigation now that s.79 is known to apply to the dispute and the present action. But whether the issue is one of inconsistency or one of irreconcilability, the answer is the same. The answer must be asked whether the Act is intended to control all rights and duties relating to the limitation period for the bringing of actions under Part IV or whether it is intended to cover a narrower field. In my opinion, s.34 (with which must be read all other related sections) is intended to lay down only the relevant limitation period, leaving questions of its application to particular parties, extension, power to amend proceedings, the manner in which actions are commenced and the like to the law which must be applied by the court in which the action is brought.

233. There were two ways in particular that the appellant sought to resist the idea that s.34 should be given such a limited operation. One argument was general, the others more specific. One more specific argument related to the form of the legislation and the description of the limitation periods, not only those applicable to claims arising out of personal injury but also to those arising out of physical damage. Nothing, of course, is said in s.34 as to extensions, amendments or the like in relation to claims arising out of personal injuries. It was argued, however, that the section was intended to be a code because similar sections relating to claims in respect of baggage, ss.29 and 30, contained a provision relating to extension of time. But in fact s.34 applies both to personal injury and claims in respect of baggage. The relevant provisions in ss.29 and 30 relating to baggage are not provisions relating to extension of time for bringing proceedings but are related to the requirement under the legislation to make prior complaint, for s.30(2) lays down that an action will not lie against a carrier in respect of baggage unless the passenger has complained in writing in the manner prescribed within a number of specified periods varying from three to 21 days. Under s.s.(3) of s.30 power to grant leave to institute a proceeding notwithstanding the failure to complain within time is given to the court having jurisdiction, but that is not a provision dealing with the extension of time to bring action: it gives a right to overcome a failure to give the requisite notice of claim to the carrier. Strictly speaking, therefore, it says nothing about limitation of actions but is concerned only with conditions precedent to the bringing of actions in relation to baggage.

236. Another argument founded on the specific terms of the legislation was that there were so many matters set out in the terms of Part IV (and Part IVA relating to insurance) that one must infer that Part IV was intended to cover the field relating to causes of action arising out of accidents on interstate and intra-territory flights. In particular, reference was made to the terms of ss.28, 29(1), 29(2), 30(2), 30(3), 31(1), 31(2), 32, 33, 34, 35(2), 35(3-9), 35(10), 36, 37, 39 and 41A. Without examining the terms of each of those provisions it is sufficient to state that I do not believe that those provisions indicate an intention to cover the field relating to the enforcement of liability for aircraft accidents of the kind made the subject of Part IV. Doubtless it sets up a "regime" and many matters are dealt with in terms which would deny the operation of specific common law rules and relevant statutory provisions of the states and territories. It is quite another thing to say that the regime was of a kind which was intended to cover all related fields so as to make inapplicable laws of the states and territories relating to evidence, procedure and the like which were not explicitly dealt with in Part IV.

239. It was contended that the decision of the full Federal Court in South Pacific Airmotive Pty. Ltd. v. Magnus[115] held that Part IV of the Act covered the field relating to the creation and extinguishment of the cause of action described therein.[116] I cannot accept that there was any such finding. That case did not raise any issue under s.109 of the Constitution, nor any questions of inconsistency with state law. It did examine, however, the general scope of the Act and in particular Part IV and the wide scope of the remedies given by Part IV, effectively to the exclusion of other claims, were discussed in a context which required the Court to consider what claims were in fact covered by Part IV. There was discussion of the provisions of the Warsaw Convention made applicable to international flights to and from Australia by Parts II and III of the Act and to certain decisions of overseas courts which had described the provisions of the Warsaw Convention as a "code": see Sidhu v. British Airways Plc[117]; El Al Israel Airlines Ltd. v. Tseng[118] and Emery Air Freight Corp. v. Nerine Nursery Ltd.[119], but one must be cautious as to precisely what was made the subject of a code and what was left to the laws of the states in which the relevant rights were to be enforced. There is no reason to doubt what was said about the Convention but it is interesting to note that the Convention's limitation article, Article 29, specifically provides (in Para.2) that "the method of calculating the period of limitation shall be determined by the law of the court seised of the case". More importantly, in Article 28 of the Warsaw Convention (and of each of the other relevant conventions) which vests jurisdiction in the courts either of the carrier's principal place of business or of the country of destination (in effect), Paragraph 2 explicitly provides: "Questions of procedure shall be governed by the law of the court seised of the case."

242. That points clearly to the conclusion that matters of procedure are not intended to be referable to the Convention and, subject to what appears below, I would draw a similar conclusion in relation to the rather less explicit provisions of Part IV, conceding nevertheless that there was an intention to copy the substance of those provisions so far as practical in an interstate and intra-territory context. I would have little doubt that Part IV was intended to cover the field as to liability for accidents of this kind, in the sense that it is intended to define the nature of the liability and its extent and, furthermore, to deal with those other specific matters which are addressed in the provisions of the Part. Even when it deals with specific subjects such as liability for the acts of servants and agents of the carrier (as in s.33), it leaves it to the general law, presumably in most jurisdictions the common law, to define what in fact is a servant or agent. But I would not assume that these provisions of the Part, even the specific provision of s.34, were intended to deal comprehensively with the manner in which those provisions, such as the limitation provision, should be applied. If it was, that would mean the complex matters which are now the subject of most limitation acts would have to be replicated in every Act of the Commonwealth Parliament which imposes a limitation period. I would find it hard to believe that Parliament intended to deal with such matters by impliedly excluding them: rather it intended to fix the primary limit, albeit in terms of extinguishment. It certainly did not say how one ascertained when "an action is ... brought by him or for his benefit", nor would one expect it to.[120] Of course, what matters of procedure and what matters of substance were intended to be covered by the provisions of Part IV must be further examined.

245. The argument based on general considerations relied on by the appellant asserted that the respondent's cause of action had been "extinguished" by the time the application to amend was brought, so that the claim was incapable of being revived by amendment or otherwise. There can be no doubt that the terms of s.34 directly state that the "right" for a person to claim damages under Part IV is "extinguished" if action is not brought within two years after the flight. So it was said that no claim could be resurrected after 14 August 1999, whether by new writ or by amendment. Emphatic metaphors have been used over the years to describe the fate of an extinguished claim but the essence is that extinguishment does not merely bar the remedy but it also puts an end to the right itself, in this case the right to recover damages.

248. I should immediately make clear that, if a state or territory statute or rule purported directly to resuscitate an extinguished claim such as one subject to s.34, then it would be clearly ineffective, whether or not one called in aid s.109 of the Constitution (or the parallel inconsistency rule relating to territorial legislation) or whether one asked, on applying s.79 of the Judiciary Act, whether the local limitation regime as set out in statute or rule, was irreconcilable with the terms of the Act as a Commonwealth law. Thus if there was a general state law providing for the extension of all limitation periods, that could not stand with s.34 of the Act. Moreover, although it is not necessary here to decide it, a state or territory provision which purported to excuse non-compliance with s.34 so as to permit the revival of an extinguished claim under Part IV would likewise seem to be inconsistent.

251. One must be careful, however, about characterising something which is said to be "extinguished". Colourful words have been used for the concept, e.g., "dead and gone forever"[121], but on other occasions caution as to its real meaning has been expressed judicially, for example by Tadgell, J. in Australian Shipping Commission v. Kooragang Cement Pty. Ltd.[122]. In some cases it has been said that, if it has been introduced as part of a limitation regime, the use of the word "extinguished" does not necessarily exclude the application of the ordinary ameliorative provisions of the same statute, for example the use of the term in s.63 of the Limitation Act 1969 (N.S.W.), as discussed in Proctor. On the other hand very strict effect has been given to the word in cases arising under the Warsaw and other carriage Conventions, which doubtless explains the decision in Timeny.

254. 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.

257. The appellant sought to rely on Timeny as clearly preventing the Court from making any order which could be seen as reviving the respondent's claim under Part

IV. There seems little doubt that those responsible for the drafting of the Convention did not desire that there should be any power to extend the agreed two year limit whether on the grounds of incapacity or pursuant to discretionary extension provisions, as was noted in Timeny and in particular in Kahn. It does not follow, however, that Part IV should be construed in the same way. There are many provisions of the Convention which are not replicated in Part IV and there are a number of provisions which are clearly different: see the examination by Sackville, J. (with whom Hill, J. substantially agreed) in South Pacific Air Motive[127]. Thus, some provisions which might appear to make the Convention a code for international flights do not appear in Part IV. For example, Article 28.2[128] applying the procedural laws of the forum does not appear in Part IV, not, I would suggest, because procedural rules of the forum are not intended to apply, but because it was seen to be unnecessary to say so in relation to a federal statute where the exercise of that federal jurisdiction would automatically bring with it the operation of provisions such as s.79 of the Judiciary Act.

261. It may be another matter to conclude that the reference to extinguishment in s.34 was intended to have a different operation under Part IV in contrast to that under the Convention and Part II of the Act. The concept is substantially the same but it must be read in Australia against a background in which it cannot be said that Part IV constitutes a complete code. I reiterate that the trend of authority suggests that limitation periods laid down by Commonwealth statutes may, in certain circumstances, be "tolled", i.e. held not to operate during disability or the like, or may be extended, pursuant to the only powers which exist for that purpose, that is pursuant to the applicable state or territory legislation. It is not, however, necessary to reach a conclusion as to that kind of provision, the only relevant one here being whether there is a power to amend in terms which might permit an expired claim to be relied upon pursuant to an amendment.

264. So long as one can characterise that power to amend as essentially procedural, I see no difficulty in that power being exercised pursuant to state or territorial laws "picked up" by virtue of s.79 of the Judiciary Act. In that respect I see no basis for an argument either in terms of inconsistency or irreconcilability. I concede that other powers of extension or qualification of limitation periods must now be treated as substantive, not procedural. Whatever may have been thought before the year 2000,[129] a majority of the High Court consisting of Gleeson, C.J., Gaudron, McHugh, Gummow and Hayne, JJ., have held in John Pfeiffer[130] that "the application of any limitation period, whether barring the remedy or extinguishing the right, would be taken to be a question of substance not procedure ...". This the majority justify in the following terms:

"[M]atters that affect the existence, extent and enforceability of the rights or duties of the parties to an action are matters that, on their face, appear to be concerned with issues of substance, not with issues of procedure. Or to adopt the formulation put forward by Mason, C.J. in McKain, `rules which are directed to governing or regulating the mode or conduct of court proceedings' are procedural and all other provisions or rules are to be classified as substantive."

268. Consequently, whatever may be said about the substantive provisions of limitation statutes of the states or territories, those relating to procedure, such as the commencement and amendment of proceedings, are prima facie not to be assumed to be covered by the provisions of the Commonwealth statute dealing with limitations or the like, unless that statute purports to embark upon the prescribing of procedural rules. In the present case there is nothing to suggest that Part IV of the Act was intended to cover the field in relation to the procedure to be adopted in relation to the commencement or amendment of proceedings. The assumption would ordinarily be to the contrary and there is nothing in this statute to deny that consequence. In the result there is no reason to believe that there is a provision in Part IV which contradicts either the Victorian or Northern Territory statutes or rules relating to amendment, or that the Commonwealth intended to "cover the field" so as to deny the states and territories the right to make relevant provisions relating to procedural aspects concerning limitation periods. Furthermore, there is nothing in the relevant amendment regime of State or Territory which can be said to be irreconcilable with Part IV of the Act inasmuch as it cannot be said to have been "otherwise provided" by Part IV of the Act as a Commonwealth Act that the relevant rules as to procedure concerning amendment should not apply. I should mention only that a vast number of other authorities were cited in relation to these various issues which I do not propose to discuss, except to observe that I have read them and taken them into account in reaching the conclusions stated herein.

271. I should here mention an argument put on behalf of the appellant as to the construction of s.34 of the Victorian Limitation Act (and its equivalent in the N.T.), which presumably was also directed to the operation of O.36. It suggested that both provisions were intended to apply only to limitation provisions prescribed by the Victorian (or N.T.) Limitation Act. For this it cited the tentative opinion of Batt, J. in Keller v. Bayside City Council[131], which was noted and not disapproved in Anglo Irish Beef Processors International v. Federated Stevedores Geelong[132]. I confess I am not attracted by the argument, or by the dicta which support this. The statutory provision in s.34 was very much a fail-safe, devised after the rule was drafted and in fact passed. The terms of O.36.01(6) are general in their operation and were intended to be so. The "rule in Weldon v. Neal" was likewise general and not confined to any particular statute; nor should the provision which abrogated that practice. Likewise the statutory provision should not be read down and there is insufficient in the context and the circumstances of its passing to point to any opposite conclusion. It forms part of the procedural law applicable in both State and Territory.

275. The opinions I have formed generally might lead to the conclusion that s.34 of the Victorian Limitation Act and s.48A of the Northern Territory Limitation Act are both directed to matters of procedure and ought to be given their full effect upon the application of s.79 of the Judiciary Act. There is a further complication, however, in relation to Part IV inasmuch as s.34 of the Act is expressed in terms of extinguishment and there is an argument that, to that extent, ss.34 and 48A might be seen to be derogating from the effect of that section to the extent that they would permit the revival of an otherwise stale and extinguished claim. For the present therefore I would not wish to express a final view on that issue.

278. The present case, however, is not a case where a completely new claim, said to have been extinguished by the Act, is sought to be added by away of amendment where no like claim previously was asserted. As I have previously sought to explain, all that the amendments in the present case sought to achieve was to add to an existing claim, which was already on foot, certain (effectively) jurisdictional allegations, together with an allegation that the proceeding was brought pursuant to Part IV of the Act. That is the sort of amendment which arguably could have been made before the "rule in Weldon v. Neal" was rigidly confined so as to exclude the possibility of such a claim being effected by way of amendment. As pointed out in cases such as Proctor, the change in court rules, both in England and Australia, without regard to any statutory endorsement of them, was designed to restore flexibility to the process of amendment, so as to allow the substantive claim to be litigated. For practical purposes, all the relevant facts were asserted in the original statement of claim and the only facts omitted were in substance jurisdictional facts or facts which one would have to prove only to show that the respondent had the right to bring the action.

281. Moreover, in the circumstances of this case it can be properly concluded that "an action was ... brought by [the respondent] or for [her] benefit within two years ...", within the meaning of s.34. The circumstances of this case are perhaps unusual and it would therefore be unwise to suggest that a failure properly to plead or make clear a separate cause of action will always be treated so benevolently. I would not wish to deny the need for clear and accurate pleading of causes of action, for there should not be any doubt in the mind of a defendant as to why it is being sued or on what basis, for its preparation to defend a claim may depend entirely on what it understands is being said against it. Nevertheless this is a case where there could not have been the slightest doubt what the plaintiff was attempting to do, albeit ineptly, for the Act itself made clear that no other cause of action could be asserted against it arising out of the accident other than one under Part IV. Of course the plaintiff alleged negligence and breach of contract, but they must have been known to be irrelevant and the best that could be put forward on behalf of the defendant was that it knew that the plaintiff and her advisers had overlooked the precise statutory basis upon which she would have to rely.

284. If a court has the power to allow an amendment properly to characterise the basis upon which a plaintiff seeks to recover, which I believe it has in all circumstances, then the right to seek such an amendment can only be limited by a plaintiff's failure to allege other matters which would put the defendant at prejudice if the amendment were allowed. The nature of the claim under the Act providing effectively absolute liability, subject only to proof of contributory negligence, would ordinarily make it difficult for a defendant to claim that it is prejudiced. The decision of the Court of Appeal in Air Link v. Paterson, referred to above, shows why that claim, like the present, was inadequately pleaded, but it says nothing as to the power of this Court to amend. There was arguably one further matter of significance in that case in that the allegation inaccurately described the flight as an intrastate flight whereas in truth it was an interstate flight. Whether in the circumstances that would truly have caused prejudice to the defendant is not clear, but undoubtedly there was at least a claim which on the face of it would have come under one statute, but which should have come under another, the Act under consideration in the present case, but that only could have become clear after amendment.

287. In conclusion, therefore, whatever may have been said while the "rule in Weldon v. Neal" was being applied in all its strictness in this State, especially after the Full Court decision in Cutrona, the amendments to O.36, which must be characterised as purely procedural, properly may be called in aid to amend an action which has already been brought. Technically the correct cause of action was not identified but I would hold that the identification and characterisation of the correct cause of action should be treated as a matter of mere form, capable of ready amendment, so enabling the plaintiff to prosecute a claim which must be known by the defendant to be the only claim capable of being pursued under Part IV of the Act from the outset of proceedings. That would accept what appears to be the approach of many courts in the United States to this limited kind of amendment.

290. I would add this, out of respect for the careful examination by Ashley, J. of the authorities and principles. Subject to what I have already said in this judgment and what immediately follows, his categorisation and analysis of those many authorities is both useful and instructive. I must add, however, that I am not persuaded by his reasons that the influence of the "common law" principle as to relation back, as he describes it, is as significant to those cases, or to the outcome of this application to amend, as he would have it. I have already said too much on the topic, but I have never seen it described in terms of the common law, only as a "principle" relevant to the amendment of claims in proceedings. 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. A degree of rigidity grew up late in the nineteenth century as to amendment, leading to the decision in Weldon v. Neal, because of the belief that that principle, which grew out of an accepted understanding of the effect of amendments, could defeat the genuine rights of defendants where it was sought to add a new claim against them after the relevant limitation period had expired. If the rules properly construed had had that retrospective effect, then it was only right that courts should have been careful that applications to amend were not used as a back-door means of avoiding the Statute of Limitations.

293. What went wrong was that, over the years, the "rule in Weldon v. Neal", as a rule of practice, hardened into an absolute, or near absolute, bar to certain amendments even if their practical prejudicial effect were negligible. The purpose of the new court rule (O.36.01(6)) in 1986, was to free courts of that more recent restrictive approach. As I have attempted to show, that alteration to the rules went further and gave the Court the right to ignore statutory limits if otherwise it was not prejudicial to the defendant's conduct of its case. That change was not consistent with the original practice and effectively denied limitations imposed by statute. That aspect of the change reflected in s.34 of the Victorian Limitation of Actions Act and s.48A of the Northern Territory Limitation Act may properly be seen to be inconsistent with every limitation period, whether imposed by State or Territory legislation or by Commonwealth legislation. To the extent that it seeks to ignore limitation periods laid down by Commonwealth statute, especially absolute bars effected by extinguishment, and to the extent that it seeks to achieve that in relation to Commonwealth legislation, it would be inconsistent, or, at the least, irreconcilable, with those Commonwealth provisions. Nevertheless, and although it is not strictly necessary to resolve the wider aspects of the effect of the State and Territory provisions, neither the statutory provisions, nor for that matter the rules, should be construed so widely.

296. If one interpreted the new rules of court otherwise, that would result in the vice the appellant sought to emphasise. Any barred or extinguished cause of action could be tacked on to an existing proceeding. What is now permitted by way of amendment, especially by way of joinder of causes of action, is far wider than was allowed in the common law courts (at least in the Court of King's Bench) or under the original Judicature Act rules. A simple rule of convenience now prevails. If that be so, it would be wrong to permit the addition years later of stale claims bearing little connection with the original claim, on the ground that both rule and section appear to give carte blanche to the Court to do so. It is, of course, unnecessary to resolve that aspect of the rules and the statutory provisions in this judgment. What is here in issue is an amendment seeking to add or vary a few minor details and to give the existing claim a new characterisation, closely akin and by no means remote from the subject matter of the original claim. That is a true amendment and the very kind which the Court ought to be free to give effect to. It affects only an action already on foot. The amendment to the rules alone has achieved that end. That is a mere change to the rules of practice and procedure and questions of inconsistency or irreconcilability with the substantive bar contained in s.34 of the Act are irrelevant

upon this analysis. The application to amend was properly granted.

300. In consequence the appeal should be dismissed.

305. I have had the considerable advantage of reading the draft judgment of Ormiston, J.A. in this case and, for the reasons given by his Honour, I agree that the appeal should be dismissed. As his Honour makes plain, the Victorian provisions which abrogate the rule in Weldon v. Neil only have procedural effect and thus are not relevantly in conflict with s.34 of the Civil Aviation (Carriers' Liability) Act 1959 (Cth) which prescribes the relevant period of limitation. Notwithstanding that the section effectively extinguished the respondent's cause of action before she had applied for leave to amend the statement of claim, the proposed amendment, if granted, would do no more than identify the correct cause of action upon which she proposes to rely to prosecute a claim under the above Act based on the facts originally pleaded in her statement of claim. Such an amendment, as Ormiston, J.A. has made plain, is one of form and could not cause the appellant any relevant prejudice. In the circumstances, no error has been demonstrated in the discretionary decision of the learned primary judge.

310. I have read in draft the very erudite judgment of Ormiston, J.A. with which I agree generally.

313. I have a degree of hesitancy about holding that the original statement of claim was inadequate because it did not include a reference to the Act supporting the claim. Characterisation of a cause of action can be apparent to a defendant in the absence of a specific allegation of the legislative basis for a claim for damages, e.g. a claim for damages by a widow under Part 3 of the Wrongs Act 1958 is adequately pleaded without reference to the Act, in my opinion. However, if the better view is that the statutory basis for Mrs Hatfield's required reference to Part IV of the Civil Aviation (Carriers' Liability) Act 1959 (Cth) in the original statement of claim, I unhesitatingly agree with Ormiston, J.A. that the amendment allowed by Ashley, J. was correct in law and that the appeal should be dismissed.

[1] At p.2 of The Forms of Action at Common Law by F.W. Maitland (first published separately 1936). The work was originally published in 1909, three years after the author's death, but it was in fact seven lectures given at Cambridge during his years there from 1884. See per Gummow, J. in Scott v. Davis (2000) 204 C.L.R. 333 at 385 para.[160] and cf. the recent wry comment of McHugh, J. in Western Australia v. Ward [2002] H.C.A. 28 at para.[473].

[2] No facts were altered in the proposed amendment, though a few minor facts had to be added to show why Part IV of the Act applied. See below paras.[[]-[].

3] If one were to ignore any claims to expertise in personal injury claims they might make, it is perhaps not entirely surprising that the precise nature of liability under the Act and its exclusion of tort liability (under s.37) were not easily discovered, for none of the standard Australian tort textbooks makes these matters clear: see Fleming on Torts (7th and 8th eds.); Trindade and Cane: Law of Torts in Australia (3rd ed.), and Balkin and Davis: Law of Torts (2nd ed.).

"The right of a person to damages under this Part is extinguished if an action is not brought by him or for his benefit within two years after the date of arrival of the aircraft at the destination, or, where the aircraft did not arrive at the destination;

(a) the date on which the aircraft ought to have arrived at the destination; or

[6] The reference, as the reference to "the Act" should make clear, is to s.34 of the Civil Aviation (Carriers' Liability) Act 1959. Whenever s.34 of the Limitation of Actions Act is mentioned below, a reference to the latter Act will be included.

[7] See ss.27, 28, 35 and 36 of the Act. This is qualified to the extent only that damages may be reduced on proof by the carrier of the passenger's contributory negligence: see s.39.

[10] I assume that it was so endorsed on the writ, for though neither writ nor statement of claim stated that explicitly, as was required under the former Rules of the Supreme Court, it was headed "Statement of Claim" and was "contained" in the writ, in a manner sufficient to satisfy Order 5.04 of the present rules and thus did not require a further statement of claim to be served: see Orders 14.01 and 14.02.

[11] This was set out as Annexure A to the judgment of Ashley, J. but unfortunately the report at [2001] VSC 182; (2001) 183 A.L.R. 674 omits that annexure: see at 675; and it is likewise omitted in the report at [2001] VSC 182; (2001) 162 F.L.R. 97. Nor is it available in the reports of the case on the Butterworths and Austlii databases.

[12] But again not reproduced in any printed or computer report of the case.

14] "Charter licence" is defined as having two alternative meanings, the first referring to a charter licence itself and the second, in para.(b), containing the alternative meaning of "an air operator's certificate in force under the Civil Aviation Act 1988 authorising charter operations".

[15] The "contract for the carriage of the passenger" required by s.27(1) includes, according to the definition of "contract" in s.26(1) "an arrangement made without consideration".

[16] [1936] 1 K.B. 697.

[17] [1960] V.R. 769.

[18] (1991) 105 A.L.R. 456 at 466 per Von Doussa, J.

[19] Cf. Air Link Pty. Ltd. v. Paterson [2002] N.S.W.C.A. 85 where, though the flight relied upon was pleaded as having taken place within New South Wales, in fact it had commenced in Queensland, thus bringing into operation Part IV of the Act.

[20] See the Warsaw Convention for the Unification of Certain Rules Relating to International Carriage by Air 1929 and also the Warsaw Convention as amended at The Hague (1955), in each of which Article 17 is identical, as set out and adopted in Schedules 1 and 2 to the Act.

[21] [1985] USSC 43; (1985) 470 U.S. 392 at 405.

[22] See, in the Court of Appeal, per Lord Phillips, M.R. [2001] EWCA Civ 790; [2002] Q.B. 100 at 109-110 paras.[16]-[26] and in the House of Lords, [2002] 2 W.L.R. 578 at 603 para.[71] per Lord Hope and at 620 para.[134] per Lord Hobhouse.

[23] See paras.[[] to [].

24] Cf. the discussion of similar facts by Moffitt, P. in Proctor v. Jetway Avaiation Pty. Ltd. [1984] 1 N.S.W.L.R. 166 at 169.

[25] [1988] HCA 12; (1988) 180 C.L.R. 491 at 497.

[27] Such as the right to make a claim under the rule in Rylands v. Fletcher.

[28] Such as the right to sue highway authorities for non-feasance.

[29] [2002] N.S.W.C.A. 85.

[31] It therefore provides no direct authority on the issue of amendment in circumstances such as the present.

[32] Section 48A of the Northern Territory Act (inserted by amendment in 1987) would appear to be now the relevant section as, by reason of choice of law rules, the issue of limitation periods is substantive: see John Pfeiffer Pty. Ltd. v. Rogerson [2000] HCA 36; (2000) 203 C.L.R. 503.

[33] (1887) 19 Q.B.D. 394. I have looked also at two parallel but unrevised reports of the case which appear in 56 L.J.Q.B. (N.S.) 621 and 35 W.R. 820 but, although there is some expansion of reasoning in the judgments of both Lord Esher, M.R. and Lopes, L.J., none varies substantially from the authorised report.

[34] [1977] VicRp 36; [1977] V.R. 306.

[35] [1962] 1 Q.B. 583.

[38] Weldon v. Neal per Lopes, L.J. at 396.

[40] See, e.g., per Herron, J. in Penrith Municipal Council v. Australian Blue Metal Ltd. [1960] S.R.(N.S.W.) 608 at 615.

[41] However, after its adoption by the English Court of Appeal, it became accepted in many common law jurisdictions, not only those which depended upon Judicature Act-type rules.

[42] (1939) 39 S.R.(N.S.W.) 305 at 311-315 and esp. at pp.313-314. The other members of the Court were Halse Rogers and Owen, JJ. See also the discussion by Priestley, J.A. in Proctor at 182, where he emphasised that these questions were "always regarded as rules of practice".

[43] [1837] EngR 718; [1837] 6 Ad. & E. 778. The Chief Justice also saw no reason not to apply Weldon v. Neal to New South Wales where to that time the Judicature Act system had not been introduced.

[44] [1970] HCA 24; (1970) 123 C.L.R. 584 at 612.

[45] Lindley, L.J. said that he agreed with Lord Esher, M.R., as he did not think it "just" to "deprive [the defendant] of his defence under the Statute of Limitations": at 395-396.

[47] (1964) 64 S.R.(N.S.W.) 359 at 364.

[53] For this he cited in particular Marshall v. London Passenger Transport Board [1936] 3 All E.R. 83.

[54] (1964) 38 A.L.J.R. 309.

[55] [1971] VicRp 46; [1971] V.R. 378, where Lush, J. had allowed an amendment which raised a new cause of action only "in the technical sense": see at 383.

[57] This case, and other decisions at first instance, such as Hall v. National & General Insurance Co. Ltd. [1967] VicRp 41; [1967] V.R. 355, may be treated as having been overruled by Cutrona.

[58] I can speak of U.S. practice only with diffidence.

[60] See also 51 Am. Jur. 2d. title: Limitation of Actions para.264 p.620.

[61] [1992] 30 N.S.W.R. 1. See Air Link at paras.[27]-[31].

[62] (1980) 54 A.L.J. 643.

[64] I can speak of this as a member of the Rules Committee at the time, while still a member of the Bar. The matters are recounted only as showing the history of the matter and the issues which were seen to be relevant at the time.

[65] [1967] 2 Q.B. 703.

[66] Mitchell was cited with apparent approval by members of the High Court in Bridge Shipping Pty. Ltd. v. Grand Shipping S.A. [1991] HCA 45; (1991) 173 C.L.R. 231, esp. at 244, 245, 256 and 259 but, although there was general discussion of the effect of O.36 in that case, it was directed primarily to the power to correct a mistake in the name of a party and not to the present question.

[67] [1977] 1 N.S.W.L.R. 273.

[69] [1984] 1 N.S.W.L.R. 165.

[70] [2002] N.S.W.S.C. 523.

[71] The language adopted in the then current English and New South Wales rules.

[72] [1997] 2 V.R. 676 at 680-681.

[73] See also, in the High Court, Wigan v. Edwards (1973) 47 A.L.J.R. 586.

[74] Conventionally (i.e. by virtue of the terms of most relevant rules) the Court does not itself amend a pleading, but merely gives leave to a party to effect the amendment, so the necessary step is taken by the party itself. Ordinarily a court effects an amendment through a court officer only when the document to be amended is an order or some other document brought into existence, by the Court. See esp. r.36.03. Cf. J. Leavey & Co. v. George H. Hirst & Co. [1944] K.B. 24; Louftis v. C. Czarnikow Ltd. [1952] 2 All E.R. 823.

[75] In fact in New South Wales, in cases where amendments add new causes of action, when not dependent upon the same or substantially the same facts, an order may be made "to add or substitute" a claim, but the new cause of action shall be treated as commencing on the date on which the amendment is made: see Part 20 r.1(3A): cf. Part 20 r.4. In this State, though there is no similar rule, similar orders have been made from time to time. But cf. Nesnah Nominees Pty. Ltd. v. Blackwell [1998] VSC 130, though I would not, with respect, necessarily subscribe to the conclusion there reached.

[76] [1988] HCA 48; (1988) 165 C.L.R. 306.

[77] [1990] HCA 45; (1990) 170 C.L.R. 306 at 317-319.

[80] [1904] 1 K.B. 295 at 297.

[81] [1959] 1 Q.B. 297.

[82] [1976] 2 N.S.W.L.R. 415 at 419.

[83] [1980] 1 W.L.R. 781.

[84] [1987] 1 A.C. 189.

[85] See also Bridge Shipping Pty. Ltd. v. Grand Shipping S.A. [1991] HCA 45; (1991) 173 C.L.R. 231 at 236 per Dawson, J. (in essence concerning amendment of parties).

[87] Para.264. This is the passage to which the statement from that work, referred to above at para.[[] as to "merely changing the legal theory", is added by way of qualification: ibid at p.620.

88] [1922] USSC 183; (1922) 260 U.S. 340 at 346; 67 L. ed. 294 at 296.

[91] It is conceivable, though I do not know that it has been expressly stated, that the insistence on treating amendments as dating back to the commencement of proceedings derived from the other rule of practice that all causes of action upon which a plaintiff relied should be complete and in existence at the date of commencement: see Eshelby v. Federated European Bank [1932] 1 K.B. 254, Wigan and Baldry. That is no longer the case, at least so far as amendment is concerned in Victoria and the Northern Territory: see O.36.01(3): cf. O.13.08. The influence of the former practice is therefore not likely to be of present significance, except possibly by way of explanation.

[92] Of course in certain cases it would be preferable to describe the amendment as one relating to an "existing proceeding", where there has been a general endorsement or where it is commenced by originating motion, but that makes no difference to the principle.

[93] (1987) 13 N.S.W.L.R. 286. But see also para.[[] fn. above.

94] See, respectively, O.20 r.5 and Part 20 r.5.

[95] Neither my recollection nor my records reveal why the expansion was thought by the Rules Committee to be preferable, except, no doubt, that it seemed a good idea at the time.

[99] See s.3(3), (4) and (5) and, incidentally, s.25(1)(a).

[100] That amending s.136 has itself now been repealed by s.11 of Act 51 of 2000, although that has had no operative effect on s.34 itself.

[101] By the Supreme Court Act 1987 (N.T.): s.20.

[102] In the Victorian s.34 the citation "(1887) 19 Q.B.D. 394" is inserted in the heading.

[103] "Any" in s.34 of the Victorian Act, but not in O.36.01(6).

[104] "Must" in s.34 of the Victorian Act.

[105] See Timeny v. British Airways P.L.C. [1991] SASC 2961; (1991) 56 S.A.S.R. 287. One must, of course, bear in mind that amendments to both rule and Act took place before the decision in John Pfeiffer.

[106] [1971] HCA 39; (1971) 124 C.L.R. 367.

[108] [2000] HCA 39; (2000) 203 C.L.R. 136 at 144, 158 paras.[17], [61].

[113] We were referred to one specific example of a statute where it has been held that the detailed provisions as to recovery and the like "covered the field", namely the Income Tax Assessment Act 1936 (Cth): see Deputy Commissioner of Taxation v. Moorebank Pty. Ltd. [1988] HCA 29; (1988) 165 C.L.R. 55. One other section which has come to my attention which purports to deal with extension of limitation periods is s.37 of the Admiralty Act 1988 (Cth), albeit it does so by reference to the powers of the court in which the claim is heard.

[114] Arguably procedural rights may be given under Commonwealth Acts which s.79 will prescribe as applicable before litigation is commenced and so will be known as the relevant applicable federal law, but limitation periods are now substantive and the questions cannot be looked at as mere offshoots of the exercise of federal or state jurisdiction.

[115] [1998] FCA 1107; (1998) 87 F.C.R. 301.

[116] In particular, reliance was placed on passages at 318F, 341A and 348D-G.

[117] [1996] UKHL 5; [1997] A.C. 430 at 453, 454.

[119] [1997] 3 N.Z.L.R. 723.

[120] Compare the difference between state and federal practice in the U.S. discussed in K_ahn v. World Airlines Inc._ (1981) 443 N.Y.S. 2d 79 at 87.

[121] Per Bollen, J. in Timeny v. British Airways P.L.C. [1991] SASC 2961; (1991) 56 S.A.S.R. 287 at 301.

[122] [1988] VicRp 4; [1988] V.R. 29 at 37.

[123] See more recently: Nikolay Malakhov Shipping Co. Ltd. v. Seas Sapfor Ltd. (1998) 44 N.S.W.L.R. 371.

[124] (1997) 191 C.L.R. 471. Their observations may technically be obiter, but see esp. per Dawson, J. at 509-510, per Toohey, J. at 515-517, per McHugh, J. at 532-533; see also per Brennan, C.J. at 492 and per Gummow and Kirby, JJ. at 556.

[125] [1987] 13 N.S.W.L.R. 286.

[126] [2000] NSWSC 210; (2000) 48 N.S.W.L.R. 709.

[128] Likewise Art. 29.2 explicitly providing that the "method of calculating the period of limitation" (sic) is vested in courts of the forum.

[129] See also the more restrictive provisions of the Choice of Law (Limitation Periods) Act 1993.

[130] At 543-544 paras.[98]-[100].

[131] [1996] VicRp 23; [1996] 1 V.R. 356 at 375-376.

[132] [1992] 2 V.R. 676 at 680-682.