High Court of Australia|1989-06-20|Before: Toohey J, Menzies J

Bowtell v Commonwealth [1989] HCA 31; (1989) 86 ALR 31; (1989) 63 ALJR 465 (20 June 1989)

Re: CLIFFORD JOHN BOWTELL v. THE COMMONWEALTH OF AUSTRALIA

TOOHEY J. This is a remitter application by the plaintiff.

3. There is no doubt as to why the plaintiff proceeded in this Court rather than in the Supreme Court of Queensland where action would ordinarily have been brought. Had the plaintiff issued a writ out of the Supreme Court, he would have been met with a defence under s.11 of the Limitation of Actions Act 1974 (Q.). It is common ground that, while the action remains in this Court, that statute is inapplicable: Pedersen v. Young [1964] HCA 28; (1964) 110 CLR 162.

4. For a period of about twelve months before the remitter application was lodged, the parties' solicitors engaged in an exchange of letters relating to the particular court to which remitter should be ordered. Although remitter to the Federal Court was canvassed, the correspondence proceeded on the basis that the Supreme Court of Queensland would ordinarily be the appropriate court. The parties were unable to reach agreement. The plaintiff's solicitors sought from the defendant's solicitor a consent to a remitter to the Supreme Court of Queensland, with a term that the provisions of the Limitation of Actions Act would not apply to the action. The defendant's solicitor was not prepared to give that consent or an undertaking to the same effect but did acknowledge that, as the authorities stood, the Act was unavailable to the defendant. Indeed, in a letter dated 1 September 1988, the defendant's solicitor wrote in regard to remitter to the Supreme Court of Queensland: "Upon such remittal my client cannot seek to rely upon a defence that the action, properly commenced in the High Court, was statute barred having regard to the Limitation of Actions Act (Qld)."

5. Counsel for the plaintiff invited me to put the matter beyond doubt by including in a remitter to a Queensland court (Supreme Court or, it may be, Federal Court) a direction that the provisions of s.11 of the Limitation of Actions Act not apply to this action, alternatively by remitting the matter to the Federal Court in Canberra. It may be appropriate to give directions as part of a remitter order but "the power in this Court to give directions is confined to matters of procedure": Pozniak v. Smith [1982] HCA 39; (1982) 151 CLR 38, at p 44; see also at pp 55, 56. Although "statutes of limitations ... are rules of procedure only" (Menzies J. in Pedersen v. Young, at p 166), a decision as to whether the Limitation of Actions Act is applicable on remittal is not procedural. What the plaintiff seeks is in truth a direction as to the law that the court to which remittal is ordered will apply. That, in my view, is not within the contemplation of s.44 of the Judiciary Act 1903 (Cth). On remittal to the Supreme Court of Queensland, either the provisions of the Limitation of Actions Act are available to the defendant or they are not and that depends largely upon decisions of this Court. Those decisions will be applied by the judge of the Supreme Court of Queensland before whom the matter is heard. If their application proves to be incorrect, there is a remedy available to the aggrieved party. But it is not apt, in the context of a remitter application, to seek to bind the Supreme Court of Queensland to a particular view of the law it is to apply by pre-empting a decision as to the applicability of the Queensland statute. It is enough to say that, as the authorities stand, remittal to that Court would not bring the Limitation of Actions Act into play; the authorities are noted by Dawson J. in Fielding v. Doran (1985) 59 ALJR 511, at pp 513-514; 60 ALR 342, at p 346. Doubts expressed in Commonwealth of Australia v. Dixon (1988) 13 NSWLR 601 are, I think, explicable on the basis that the order of remitter in that case directed that an action against the Commonwealth, begun in the Victorian registry of the High Court, proceed in the Supreme Court of New South Wales "as if the steps already taken in the action in this Court had been taken in that Court". I do not propose to include such a provision in the order to be made in these proceedings.

6. The choice of courts other than the Supreme Court of Queensland may be disposed of in a few words. No principle dictates a remitter to the Federal Court in Canberra unless the Limitation of Actions Act were thought to apply on remittal to a Queensland court: see Fielding v. Doran, at p 514; p 346 of ALR. Such an order would cause considerable inconvenience to both parties since the entirety of the evidence, as I understand it, is to be found in Queensland. The only argument offered by the plaintiff for remitter to the Federal Court in Brisbane is that a hearing date may be obtained substantially earlier than in the Supreme Court of Queensland. In Crouch v. The Commissioner for Railways (Queensland) (unreported decision of High Court, delivered 9 May 1989) I regarded the time within which an action might be heard as a relevant consideration, but only as one of a number of considerations. To give this factor a force of its own would be simply to sanction forum-shopping. The plaintiff's cause of action is not within the jurisdiction of the Federal Court but is within the jurisdiction of the Supreme Court of Queensland.

7. Nevertheless, the plaintiff submitted that, on the true construction of s.44(2A) of the Judiciary Act, any remitter must be to the Federal Court. I do not accept that submission. Section 44(1) of the Act provides that any matter, or any part of such a matter, pending in the High Court, other than a matter to which sub-s.(2) applies, may be remitted "to any federal court, court of a State or court of a Territory that has jurisdiction with respect to the subject-matter and the parties ...". The operation of sub-s.(1) (then comprising s.44 in its entirety) was considered in Johnstone v. The Commonwealth [1979] HCA 13; (1979) 143 CLR 398. In the view of the Court, while jurisdiction over the kind of subject-matter is required, jurisdiction over the parties is conferred by the remittal. Section 44(2), however, provides that where a matter referred to in s.38(a), (b), (c) or (d) is pending in the High Court, the Court may remit the matter "to the Federal Court of Australia or any court of a State or Territory". Clearly, in a situation to which the relevant paragraphs of s.38 apply, remitter does not depend upon the jurisdiction of the court to which remittal is sought. None of the paragraphs is applicable to the present case. Therefore, on its face, the matter at issue falls within s.44(1).

8. Section 44(2A) was introduced in 1984. It reads:

override them. As Gibbs C.J. pointed out in State Bank (NSW) v. Commonwealth Savings Bank [1984] HCA 41; (1984) 154 CLR 579, at p 583, there remained outside sub-ss.(1) and (2) "some matters in respect of which neither the State courts nor the Federal Court had jurisdiction - particularly those matters in respect of which jurisdiction was removed from State courts by s.9 of the Administrative Decisions (Judicial Review) Act 1977 (Cth), but was not conferred on the Federal Court by s.5(1) of that Act". Sub-section (2A) was introduced to meet such an anomaly. However, as Gibbs C.J. noted, at p 584: "If a matter falls only under sub-s.(2A), it may be remitted only to the Federal Court, but if it falls under sub-s.(2) as well, it may be remitted to a State or Territory court or to the Federal Court." (emphasis added) The matter pending in this Court falls within s.44(1) and s.44(2A); in that event s.44(2A) is no bar to a remitter to the Supreme Court of Queensland.

9. I would just add this comment. Counsel for the plaintiff, in an effort to put beyond doubt any limitation problems that might result from a remittal to the Supreme Court of Queensland, suggested an order that remitted issues of liability and the assessment of damages but otherwise retained the matter in this Court. Such an order was made by Barwick C.J., as appears from the recital of facts in Bargen v. State Government Insurance Office (Q.) [1982] HCA 22; (1982) 154 CLR 318, at pp 318-319. The reason why this course was taken does not appear from the report but it is apparent from a reading of the transcript of the hearing that it was taken to avoid the sort of situation envisaged by the plaintiff in the present case. However, such an order may give rise to uncertainty, as Stephen J. noted in Bargen, at pp 321-322. In some circumstances it may be appropriate for this Court to retain general control over a matter that is remitted. Mabo v. The State of Queensland [1986] HCA 8; (1986) 60 ALJR 255, 64 ALR 1 is an illustration. But those circumstances will be unusual and this is not one of them.

10. There will be an order that the matter be remitted to the Supreme Court of Queensland. As to the question of costs, greater co-operation on both sides might have made a contested application unnecessary. Costs will be costs in the cause.

Order that the matter be remitted to the Supreme Court of Queensland. Order that the costs of the summons be costs in the cause. Certify for counsel.

Decisions (Judicial Review) Act 1977

Bowtell v Commonwealth [1989] HCA 31;

At a glance

Court

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Judgment (14 paragraphs)

Bowtell v Commonwealth [1989] HCA 31; (1989) 86 ALR 31; (1989) 63 ALJR 465 (20 June 1989)

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Legislation Cited (2)

Cases Cited (10)