Commonwealth v Mewett

Once it is understood that the acquisition of property which s 44 of the Safety, Rehabilitation and Compensation Act 1988 Cth (the Comcare Act) purported to effect was the extinguishment of the causes of action which existed when that provision came into effect on 1 December 1988, the invalidity of s 44 of the Comcare Act in its purported application to those causes of action is established. Then, as neither s 64 nor s 79 of the Judiciary Act had any operation upon the respondents' causes of action before proceedings were commenced on 20 June 1994, the question is simply whether the respondents' causes of action were statute-barred on 20 June 1994.

Although s 79 of the Judiciary Act picked up and applied the Limitation Act 1969 NSW as amended by the Limitation (Amendment) Act 1990 NSW to the respondents' suits against the Commonwealth on their commencement, the periods of limitation fixed "by or under" the New South Wales statute [2] have not been finally determined. In Mewett's case, the Commonwealth has not pleaded a limitation under the Limitation of Actions Act 1958 Vic and, for the reasons given by Dawson J, that Act is immaterial to the result of these appeals.

I should add that, in my opinion, s 80 of the Judiciary Act is immaterial, for the common law is expressed to apply only "[s]o far as the laws of the Commonwealth are not applicable". The "laws of the Commonwealth" are the statute laws of the Commonwealth including s 79. Section 79 picks up the State's laws relating to procedure, evidence and the competency of witnesses, whether those laws be statutory or common law. So the common law relating to procedure, evidence and the competency of witnesses is picked up by s 79 as modified by local statutory laws relating to those subjects. Section 80, on the other hand, picks up the general common law in the circumstances which it states. It would attribute a supererogatory operation to s 80 if it picked up the common law relating to procedure, evidence and the competency of witnesses that is picked up by s 79. The common law is uniform throughout the States and Territories of Australia as the language of s 80 recognises. It speaks not of the common law of the Commonwealth, nor even of the common law of Australia, but of the common law in Australia. The common law in Australia includes the rules to be found in McKain v R W Miller & Co (SA) Pty Ltd [3] . Those rules are postulated on the footing that, by reason of the legislative competence of each State or Territory, Australia consists of different law areas. For that reason, when s 79 picks up State laws relating to procedure, it treats a court exercising federal jurisdiction as though it were a court of the State in which the court is sitting. It is in that sense that the section speaks of the exercise of "federal jurisdiction in that State or Territory". So treated, the court will apply the law of the relevant State or Territory including, subject to local statute, the common law.

On 20 June 1994, three former members of the Royal Australian Navy commenced separate proceedings against the Commonwealth in the Sydney office of the registry of this Court. In the first proceeding, Robert John Mewett alleges that he suffered acute psychological injury resulting in post traumatic stress disorder in August 1979 when the ship on which he was serving, HMAS " Kembla ", was swamped by waves as it proceeded out of Port Phillip Bay in Victorian waters. In the second and third proceedings, Michael John Rock and Mark John Brandon each alleges that on or about 22 October 1985 he was exposed to gases and vapours whilst serving on HMAS " Stalwart ", which at the time was proceeding on the high seas between Sydney and Surabaya. Each of them (who are respondents to these appeals) alleges that, as a result of these events, he has sustained injuries and disabilities and suffered loss and damage, and each seeks damages from the Commonwealth in tort for breach of duty and in contract for breach of an implied term of his contract of employment.

Each proceeding was remitted by consent to the Federal Court pursuant to s 44(2A) of the Judiciary Act 1903 Cth. The Commonwealth filed defences which contended that each proceeding was barred by relevant statutes of limitation and also by s 44 of the Safety, Rehabilitation and Compensation Act 1988 Cth (the Comcare Act) [4] . The substantive provisions of the Comcare Act (including s 44) commenced on 1 December 1988 and introduced a new workers' compensation scheme for persons employed by the Commonwealth or one of its agencies. Section 44(1) relevantly provides that:

an action or other proceeding for damages does not lie against the Commonwealth, a Commonwealth authority, a licensed corporation or an employee in respect of:

(a) an injury sustained by an employee in the course of his or her employment, being an injury in respect of which the Commonwealth, Commonwealth authority or licensed corporation would, but for this subsection, be liable (whether vicariously or otherwise) for damages; or

(b) the loss of, or damage to, property used by an employee resulting from such an injury;

whether that injury, loss or damage occurred before or after the commencement of this section. 1. The defence also referred to s 45 of the Comcare Act but that section is no longer relied upon.

Each respondent filed a notice of motion seeking to extend time under the relevant limitation statute in which to bring his proceedings. However, the Commonwealth filed notices of motion seeking to have each proceeding struck out. The Commonwealth contended that s 44 of the Comcare Act extinguished any causes of action that any of the respondents may have had and that their claims were, as a result, clearly untenable. The Commonwealth also contended that the Federal Court had no jurisdiction to entertain any of the applications for extensions of time by reason of the operation of s 44.

Foster J at first instance rejected the Commonwealth's claims and dismissed each of its notices of motion [5] . The Commonwealth was granted leave to appeal to the Full Federal Court and, having regard to the fact that the Commonwealth desired to obtain a final, as opposed to a preliminary, determination of the validity of s 44 of the Comcare Act in the present context, Foster J set aside that question, pursuant to s 25(6) of the Federal Court of Australia Act 1976 Cth, as one requiring determination. The Full Court dismissed the appeals and answered the question reserved by saying that s 44 was invalid in its application to each proceeding [6] . It is from that decision, pursuant to a grant of special leave, that the Commonwealth appeals to this Court in each proceeding. Although in disposing of the appeals it will be necessary to consider the effect of the relevant limitation statutes, the respondents' applications for extensions of time are not as yet in issue. If the appeals to this Court are dismissed, those applications will then proceed to be heard in the Federal Court.

1. Foster J's reasons for judgment in Mewett's proceedings are reported: The Commonwealth v Mewett (1994) 126 ALR 391 2. See The Commonwealth v Mewett (1995) 59 FCR 391

The respondents have at all stages disputed the suggestion that s 44 is fatal to their proceedings by relying on the decision of this Court in Georgiadis v Australian and Overseas Telecommunications Corporation [7] . In that case it was held that s 44 of the Comcare Act was invalid in its application to a claim which had arisen before the commencement of s 44 and which had been instituted before the expiry of the relevant limitation period, since it purported to effect an acquisition of property otherwise than on just terms in contravention of s 51(xxxi) of the Constitution.

The Commonwealth, however, challenges the correctness of Georgiadis and submits in this Court that it should be reopened and overruled. It contends that the rights which the respondents claim against the Commonwealth arise under a Commonwealth statute, namely, the Judiciary Act, and that those rights are inherently susceptible of modification or extinguishment without such modification or extinguishment amounting to an acquisition of property within the meaning of s 51(xxxi) of the Constitution.

The respondents, on the other hand, submit that the Commonwealth is rendered liable in tort and contract by s 75(iii) of the Constitution and not pursuant to the provisions of the Judiciary Act. If that contention is rejected, they say that, in any event, their rights against the Commonwealth have their origin in the common law. Thus the respondents contend that their rights are not inherently susceptible to modification by Commonwealth statute and that in purporting to extinguish them, s 44 of the Comcare Act constitutes an acquisition of property otherwise than upon just terms. Accordingly, they submit that Georgiadis was correctly decided but that even if it was not, it should not now be reopened.

If the authority of Georgiadis is affirmed in these proceedings, the Commonwealth submits that this case is distinguishable from Georgiadis in that each respondent's claim is statute-barred. That is said to be the result of the operation of certain limitation statutes picked up by s 79 of the Judiciary Act.

The respondents deny that s 79 of the Judiciary Act has that operation. In any event, and assuming that their submission that s 75(iii) of the Constitution is the source of the Commonwealth's liability is unsuccessful, the respondents submit that the expiration of the limitation period does not extinguish the underlying cause of action or change its legal character. The cause of action retains, upon that argument, its character as property and the reasoning in Georgiadis applies to prevent s 44 of the Comcare Act from extinguishing that property otherwise than upon just terms.

Those submissions give rise to three broad issues: the source of Commonwealth liability in contract and tort, the authority of Georgiadis , and the effect of the relevant limitation statutes. It is convenient to deal with them in order.

The source of Commonwealth liability in contract and tort

Section 75 of the Constitution confers original jurisdiction upon the High Court in a number of matters. Paragraph (iii) provides that the Court has original jurisdiction in all matters in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party. "Matters" is a word of wide connotation [8] and there can be no doubt that the respondents' claims constitute matters within the description contained in s 75(iii). They are matters in which the Commonwealth is a party and this Court therefore has original jurisdiction to hear the respondents' claims. But it is one thing to say there is jurisdiction; it is quite another thing to say that by conferring jurisdiction s 75(iii) removes the immunity of the Crown from suit in contract and tort. In The Commonwealth v New South Wales [9] , Isaacs, Rich and Starke JJ, in a joint judgment, took the view that s 75(iii) did remove Crown immunity, but that view has been doubted or disregarded in subsequent cases [10] . The better view is that s 75(iii) confers jurisdiction on this Court to entertain claims against the Commonwealth in contract or in tort but does not itself remove the immunity of the Crown from such suits or confer upon a litigant the right to proceed against the Crown in contract or in tort. Any such right must be conferred by statute; if and when it is, the High Court may not only entertain proceedings under s 75(iii) but may enforce the right. It is to be noted that s 75(iii) speaks of parties, not remedies [11] . In that respect it may be contrasted with s 75(v) which confers original jurisdiction on the High Court in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. The contrast further suggests that s 75(iii) is confined in its operation to conferring jurisdiction to entertain proceedings.

1. See South Australia v Victoria (1911) 12 CLR 667 at 675, 708. 2. (1923) 32 CLR 200. 3. See Mutual Pools & Staff Pty Ltd v The Commonwealth (1994) 179 CLR 155 at 217, per McHugh J. 4. See Mutual Pools & Staff Pty Ltd v The Commonwealth (1994) 179 CLR 155 at 216, per McHugh J.

Not only does that seem to be the correct construction of s 75(iii) but it is a construction which is suggested by the presence of s 78 in the Constitution. Section 78 empowers the Parliament of the Commonwealth to confer rights to proceed against the Commonwealth or a State in respect of matters within the limits of the judicial power. That section appears to assume Crown immunity from suit in contract and tort and to confer power on the Parliament to remove it should it wish to do so. That was certainly the view taken at the Convention debates [12] . A contrary view was taken in The Commonwealth v New South Wales , but as Dixon J pointed out in Werrin v The Commonwealth [13] the joint judgment in the former case "regards s 78 as not being supplementary to s 75 but as enabling the Parliament in other matters within judicial power, ie, in matters within s 76, to do the same as s 75 does by its own force and also to give rights of suit in Federal courts other than the High Court". Upon that view, s 78 would seem to be largely unnecessary. If by conferring jurisdiction s 75(iii) confers a right to proceed against the Crown, there is no reason why s 76, in providing for the matters in which original jurisdiction may be conferred upon the Court, does not confer power on the Parliament to do likewise in respect of matters in which such jurisdiction is conferred. That would confine the power of Parliament under s 78 to giving rights to proceed against the Commonwealth or a State in courts other than the High Court which exercise federal jurisdiction. Simply as a matter of construction I think it is difficult to accept that s 78 was intended to have such a limited effect.

1. See Official Record of the Debates of the Australasian Federal Convention, (Melbourne) 1 March 1898, vol V, pp 1653-1679; Mutual Pools & Staff Pty Ltd v The Commonwealth (1994) 179 CLR 155 at 215 Commissioner for Railways (Q) v Peters (1991) 24 NSWLR 407 at 433, 443. 2. (1938) 59 CLR 150 at 165.

The immunities which the Crown enjoys from suit in contract and tort rest, however imperfectly and in different ways, upon the propositions that the sovereign cannot be sued in its own courts and that the sovereign can do no wrong. But it is apparent that those propositions have no application to situations in which the observance of constitutional boundaries is ultimately to be maintained by this Court. As Dixon J said in Bank of NSW v The Commonwealth [14] , the Constitution treats the Commonwealth and States as organisations or institutions of government which, though not formally juristic persons, are conceived as politically organised bodies having mutual legal relations and amenable to the jurisdiction of courts "upon which the responsibility of enforcing the Constitution rests". Thus, where the principle in Marbury v Madison [15] is invoked to ensure that the constitutional allocation of powers is observed by the legislature or the executive, or where proceedings are brought under s 75(v) of the Constitution to prevent officers of the Commonwealth exceeding federal powers, or where rights or obligations conferred or imposed by the Constitution itself [16] might be the subject of proceedings in federal jurisdiction, the Commonwealth, and where relevant the States, do not enjoy immunity from suit. As McHugh J said in Mutual Pools & Staff Pty Ltd v The Commonwealth [17] , "it would not be open to the federal Parliament to bar the right to proceed against the Commonwealth in respect of the scope of its constitutional powers". But the immunity of the Crown from suit in contract and tort raises no question involving the principle in Marbury v Madison or any of the other situations in which suits may be brought against the Commonwealth or the States in federal jurisdiction for constitutional purposes.

1. (1948) 76 CLR 1 at 363. 2. (1803) 5 US 137. 3. See, eg, ss 84, 89(iii), 93(ii). 4. (1994) 179 CLR 155 at 217.

The executive power of the Commonwealth is vested in the Crown under s 61 of the Constitution and the Crown in that capacity carries with it the privileges and immunities attaching to it at common law, subject to modification by valid legislation [18] . It is true that s 75 of the Constitution speaks not of the Crown but of the Commonwealth and of the States, but this was no doubt necessary in order to distinguish between them as separate polities under the Crown. The now familiar expressions "Crown in right of the Commonwealth" and "Crown in right of a State" seem to have their origin [19] later in the judgment of Griffith CJ in Sydney Municipal Council v The Commonwealth [20] where he said:

It is manifest from the whole scope of the Constitution that, just as the Commonwealth and State are regarded as distinct and separate sovereign bodies, with sovereign powers limited only by the ambit of their authority under the Constitution, so the Crown, as representing those several bodies, is to be regarded not as one, but as several juristic persons, to use a phrase which well expresses the idea. No better illustration can be given than is afforded by the lands now sought to be rated, which, having originally been "property of the State," ie, lands of the Crown in New South Wales, have become "vested in the Commonwealth," ie, vested in the Crown in right of the Commonwealth. 1. See Federal Commissioner of Taxation v Official Liquidator of E O Farley Ltd (1940) 63 CLR 278 at 304 2. See Cuppaidge, The Divisibility of the Crown, Australian Law Journal, vol 27 (1954) 594, at p 595. 3. (1904) 1 CLR 208 at 231.

The use of the term "the Commonwealth" in s 75 and elsewhere throughout the Constitution neither diminishes nor denies the centrality of the Crown in the Constitution. That centrality was recognised by Dixon J in Federal Commissioner of Taxation v Official Liquidator of E O Farley Ltd [21] where he said that the Crown "is as much the central element in the Constitution of the Commonwealth as in a unitary constitution". The term "the Commonwealth" is used loosely in the Constitution and it takes its meaning from its context [22] . To speak of the Commonwealth committing a tort or breaching a contract is to speak of a wrong committed by executive act. To sue the Commonwealth for such a wrong is to sue it in its executive capacity, that is to say, as the Crown in which the executive power of the Commonwealth is vested by s 61 of the Constitution. Statutory provision to sue the Commonwealth may be made under s 78, but in the absence of such provision, the Crown enjoys immunity from suit in contract and in tort.

1. (1940) 63 CLR 278 at 304. 2. See Lumb, The Commonwealth of Australia - Constitutional Implications, Federal Law Review, vol 10 (1979) 287; Sawer, Australian Federalism in the Courts (1967), pp 123-124.

A suit in contract or tort between the Crown in right of the Commonwealth and the Crown in right of a State, or between the Crown in right of one State and the Crown in right of another, may be thought to raise a peculiar problem of its own [23] . But the obvious answer to that problem is that Crown immunity simply has no application in such a situation, its basis being, at least in part, an attribution of a certain position to the Crown in relation to its subjects [24] . But however that question is approached, the joint judgment in The Commonwealth v New South Wales went much further. In Werrin v The Commonwealth [25] , Dixon J pointed out that the view expressed in the joint judgment was not necessary for the actual decision in that case and that were it not for that view he would have [26] :

felt little or no hesitation in saying that the Federal Parliament had complete authority over all ordinary causes of action against the Commonwealth and over the remedies for enforcing them. I should have thought that the right of the subject to recover from the Crown in right of the Commonwealth, whether in contract or in tort, is the creature of the law which the Federal Parliament controls. 1. See South Australia v Victoria (1911) 12 CLR 667 The Commonwealth v New South Wales (1923) 32 CLR 200 South Australia v The Commonwealth (1962) 108 CLR 130 at 139-140 2. cf The Commonwealth v Cigamatic Pty Ltd (In liq) (1962) 108 CLR 372 at 378 3. (1938) 59 CLR 150. 4. Werrin (1938) 59 CLR 150 at 167

Before the decision in The Commonwealth v New South Wales it does not seem to have been doubted that the source of the liability of the Commonwealth in contract and in tort was statutory rather than constitutional [27] . In Werrin v The Commonwealth [28] Rich J, who was a party to the joint judgment in The Commonwealth v New South Wales , denied that that case "was intended to mean that s 75 of the Constitution produced the effect of establishing as constitutional rights incapable of legislative control causes of action to which subjects might become entitled under the general law against either Commonwealth or State". Yet as Dixon J pointed out [29] , the joint judgment would appear to have just that effect (or at least the effect of placing Commonwealth liability in contract and tort beyond the reach of qualification, limitation or extinguishment by Commonwealth legislation) and, in fact, contemplates that result explicitly.

1. See The Commonwealth v Baume (1905) 2 CLR 405 Baume v The Commonwealth (1906) 4 CLR 97 The Commonwealth v Miller (1910) 10 CLR 742 Sargood Bros v The Commonwealth (1910) 11 CLR 258 2. (1938) 59 CLR 150 at 161. 3. Werrin (1938) 59 CLR 150 at 166See also Musgrave v The Commonwealth (1937) 57 CLR 514 at 546

Upon the authorities up to and including Werrin v The Commonwealth , Jordan CJ in the Supreme Court of New South Wales was able to say in Washington v The Commonwealth [30] that s 75(iii) is concerned:

with the jurisdiction of a Court and not with the rights or liabilities of persons who may be litigants in the Court. It says, in effect, that if any person desires to litigate a legal claim which he may conceive himself to have against the Commonwealth or the Commonwealth to litigate a legal claim which it may conceive itself to have against any person, he or it may do so by means of an original proceeding in the High Court; but it neither invests them with substantive rights nor subjects them to substantive liabilities. Subsequent judgments in this Court have confirmed that view. In Asiatic Steam Navigation Co Ltd v The Commonwealth [31] , Fullagar J expressed a preference for a statutory rather than a constitutional basis for the right to bring an action against the Commonwealth in contract or in tort, as did Windeyer J in Suehle v The Commonwealth [32] . Jacobs J took the same view in Maguire v Simpson [33] , a view which is implicit in other judgments in that case. In The Commonwealth v Evans Deakin Industries Ltd [34] the majority said that "[t]here can be no doubt that the Commonwealth Parliament has full power to make laws governing the liability of the Commonwealth", whilst Brennan J expressly rejected the view that "s 75(iii) operates without the assistance of any law made pursuant to s 78 to impose substantive liability on and to authorise proceedings against the Commonwealth in this Court" [35] . Toohey J in Breavington v Godleman [36] spoke of "the Commonwealth's common law immunity", and in both Mutual Pools & Staff Pty Ltd v The Commonwealth [37] and Georgiadis [38] , McHugh J was of the opinion that the immunity of the Crown in right of the Commonwealth in contract and tort was unaffected by s 75(iii) of the Constitution. His Honour was in dissent in Georgiadis , but the majority assumed [39] , without deciding, the correctness of the view which he took and determined the case on that assumption. 1. (1939) 39 SR (NSW) 133 at 140. 2. (1956) 96 CLR 397 at 422-423. 3. (1967) 116 CLR 353 at 355. 4. (1977) 139 CLR 362 at 404. 5. (1986) 161 CLR 254 at 263. 6. Evans Deakin Industries (1986) 161 CLR 254 at 269-270. 7. (1988) 169 CLR 41 at 169. 8. (1994) 179 CLR 155 at 217. 9. (1994) 179 CLR 297 at 325-326; see also at 318, per Toohey J. 10. Georgiadis (1994) 179 CLR 297 at 306, per Mason CJ, Deane and Gaudron JJ; at 312, per Brennan J.

The settled view, and in my view the correct one, is that s 75(iii) does no more than confer original jurisdiction on the High Court in matters in which the Commonwealth is a party. It does not operate to modify or remove Crown immunity from suit [40] .

1. See Cowen and Zines, Federal Jurisdiction in Australia, 2nd ed (1978), p 38.

It is necessary then to turn to certain provisions of the Judiciary Act enacted pursuant to s 78 of the Constitution. Section 56(1) of the Judiciary Act provides:

A person making a claim against the Commonwealth, whether in contract or in tort, may in respect of the claim bring a suit against the Commonwealth:

(b) if the claim arose in a State or Territory - in the Supreme Court of that State or Territory or in any other court of competent jurisdiction of that State or Territory; or

(c) if the claim did not arise in a State or Territory - in the Supreme Court of any State or Territory or in any other court of competent jurisdiction of any State or Territory.

Section 64 provides: In any suit to which the Commonwealth or a State is a party, the rights of parties shall as nearly as possible be the same, and judgment may be given and costs awarded on either side, as in a suit between subject and subject.

In Baume v The Commonwealth [41] this Court long ago held that by enacting s 56 (which was in different terms but not materially so) and s 64 of the Judiciary Act, Parliament had exercised its power under s 78 of the Constitution to abolish Crown immunity from suit in tort. In that case the Court did not distinguish between s 56 and s 64, but in Sargood Bros v The Commonwealth [42] , Higgins J thought that ultimately it was the words of s 64 which had that effect and the same view has been taken in later judgments [43] . On the other hand, in James v The Commonwealth [44] Dixon J attributed primary significance to s 56 and subsequent judgments have adopted that approach [45] . However, in Pitcher v Federal Capital Commission [46] this Court treated Baume v The Commonwealth as authoritative and rested Commonwealth liability upon both s 56 and s 64. There is support for that approach in the cases [47] . More recently, the question was effectively reserved in Breavington v Godleman [48] and Georgiadis [49] , except by Toohey J who expressed a preference in both cases for the view that s 56 is the operative section.

1. (1906) 4 CLR 97. 2. (1910) 11 CLR 258 at 309-310. 3. See Moore v The Commonwealth (1958) 99 CLR 177 at 182-183 Maguire v Simpson (1977) 139 CLR 362(esp at 381, 404-405); Groves v The Commonwealth (1982) 150 CLR 113 at 119 4. (1939) 62 CLR 339 at 359. 5. See Washington v The Commonwealth (1939) 39 SR(NSW) 133 at 142; Shaw Savill & Albion Co Ltd v The Commonwealth (1940) 66 CLR 344 at 357-358 Asiatic Steam Navigation Co Ltd v The Commonwealth (1956) 96 CLR 397 at 424 Suehle v The Commonwealth (1967) 116 CLR 353 at 355 Downs v Williams (1971) 126 CLR 61 at 82(and see the discussion by Gibbs J at 98-102); Breavington v Godleman (1988) 169 CLR 41 at 169 Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297 at 318 6. (1928) 41 CLR 385 at 392-393, 395. 7. See Shaw Savill & Albion Co Ltd v The Commonwealth (1940) 66 CLR 344 at 352-353 Asiatic Steam Navigation Co Ltd v The Commonwealth (1956) 96 CLR 397 at 419-420 Parker v The Commonwealth (1965) 112 CLR 295 at 300 Groves v The Commonwealth (1982) 150 CLR 113 at 121 8. (1988) 169 CLR 41 at 68-69, per Mason CJ; at 117-118, per Brennan J; at 151-152, per Dawson J. 9. (1994) 179 CLR 297 at 306, per Mason CJ, Deane and Gaudron JJ; at 312, per Brennan J.

Whilst it does not matter in this case and probably does not matter at all [50] , I think that the preferable view and the view that accords most with the trend of recent authority, particularly Maguire v Simpson [51] and The Commonwealth v Evans Deakin Industries Ltd [52] , is that s 64 is the provision which removes Crown immunity from suit and allows a citizen to proceed against the Commonwealth (or a State, for that matter) within federal jurisdiction. It is now settled that s 64 extends beyond matters of mere procedure to matters of substance. As was said in The Commonwealth v Evans Deakin Industries Ltd [53] of the decision in Maguire v Simpson :

That case establishes that in every suit to which the Commonwealth is a party s 64 requires the rights of the parties to be ascertained, as nearly as possible, by the same rules of law, substantive and procedural, statutory and otherwise, as would apply if the Commonwealth were a subject instead of being the Crown. That result seems entirely just; the Commonwealth acquires no special privilege except where it is not possible to give it the same rights and subject it to the same liabilities as an ordinary subject. If the same rules of law, substantive and procedural, statutory and otherwise, are to apply as they would if the Commonwealth were a subject instead of being the Crown, that must mean that, by power of s 64, the Commonwealth no longer has any immunity from suit in contract or tort in any suit to which it is a party in federal jurisdiction. 1. See Johnstone v The Commonwealth (1979) 143 CLR 398 at 401, per Gibbs J. 2. (1977) 139 CLR 362. 3. (1986) 161 CLR 254. See Breavington v Godleman (1988) 169 CLR 41 at 101-102, per Wilson and Gaudron JJ; at 152, per Dawson J. 4. (1986) 161 CLR 254 at 262-263.

It follows that each respondent's right to proceed against the Commonwealth arises from s 64, a provision contained in a Commonwealth statute which is inherently susceptible to alteration even to the extent of removing that right. The question which arises is whether s 44 of the Comcare Act, which provides that an action for damages for injury sustained by an employee does not lie in the circumstances specified, amounts to no more than an alteration of the right conferred by s 64 with the consequence that it does not constitute an acquisition of property within the meaning of s 51(xxxi) of the Constitution.

In Georgiadis [54] it was held by a majority [55] that in its application to an employee's cause of action which was not statute-barred before the action was commenced, s 44 was invalid because it effected an acquisition of property, namely, the employee's right to bring an action for damages, otherwise than on just terms as required by s 51(xxxi) of the Constitution.

1. (1994) 179 CLR 297. 2. Mason CJ, Brennan, Deane and Gaudron JJ, Dawson, Toohey and McHugh JJ dissenting.

Notwithstanding that I was in dissent in Georgiadis , I can discern no sufficient reason for leave to be given to reopen that decision. Georgiadis is one of four decisions handed down on the same day which together represent a principled statement of the effect of s 51(xxxi) of the Constitution [56] . The majority in Georgiadis reached a clear conclusion upon a confined issue by the application of accepted principle. The difference between the majority and the minority went not so much to principle as to its application in the particular circumstances, the majority preferring a broader approach than the minority in determining what amounts to an acquisition of property within the meaning of s 51(xxxi). Although I reserved my position on s 51(xxxi) in Victoria v The Commonwealth [57] , I would now accept the decision in Georgiadis and proceed on the footing that it is authority for what it decided.

1. See Mutual Pools & Staff Pty Ltd v The Commonwealth (1994) 179 CLR 155 Health Insurance Commission v Peverill (1994) 179 CLR 226 Re Director of Public Prosecutions; Ex parte Lawler (1994) 179 CLR 270 2. (1996) 187 CLR 416 at 573.

The view taken by the majority in Georgiadis was that the extinguishing of the cause of action in question was at least the equivalent of an acquisition of it by the Commonwealth. Mason CJ, Deane and Gaudron JJ held that this was so because it conferred a distinct financial benefit on the Commonwealth and that, in their view, amounted to an acquisition of property within the meaning of s 51(xxxi) [58] . Brennan J held that there was an acquisition of property since, by extinguishing the cause of action, the Commonwealth acquired a release from liability in damages to the employee. That release was in his view the correlative of the employee's claim [59] .

1. Georgiadis (1994) 179 CLR 297 at 306 2. Georgiadis (1994) 179 CLR 297 at 311-312

All judgments in Georgiadis proceeded on the footing that the liability of the Commonwealth in tort arose, not from the Constitution, but by force of the provisions of the Judiciary Act. McHugh J, however, took that reasoning one step further. He held that the employee's right to bring his action was wholly dependent upon the provisions of the Judiciary Act and therefore was inherently liable to be revoked by legislation enacted under a power other than s 51(xxxi) [60] . For that reason, in his view, there was no acquisition of property in the extinguishment of the employee's cause of action.

In the event of Georgiadis being reopened, the Commonwealth invited the Court in this case to adopt the approach of McHugh J in Georgiadis . I have already indicated that I do not think that Georgiadis should be reopened but, in any event, the reasoning of the majority in that case in answer to McHugh J's approach is, I think, convincing. Mason CJ, Deane and Gaudron JJ did not deny that a right which was merely statutory might be inherently susceptible of modification or extinguishment so that, to use the words of Dixon CJ in Burton v Honan [61] , "the whole matter lies outside the power given by s 51(xxxi)". They said [62] :

The position may be different in a case involving the extinguishment or modification of a right that has no existence apart from statute. That is because, prima facie at least and in the absence of a recognised legal relationship giving rise to some like right, a right which has no existence apart from statute is one that, of its nature, is susceptible of modification or extinguishment. There is no acquisition of property involved in the modification or extinguishment of a right which has no basis in the general law and which, of its nature, is susceptible to that course. A law which effected the modification or extinguishment of a right of that kind would not have the character of a law with respect to the acquisition of property within s 51(xxxi) of the Constitution. But Mason CJ, Deane and Gaudron JJ drew a distinction between a right to proceed and the underlying cause of action. They took the view [63] that in the case before them the effect of s 44, if valid, was to extinguish a vested cause of action that arose under the general law. That was so, in their view, even if the right to proceed against the Commonwealth which the employee enjoyed was properly identified as a statutory right. Likewise, Brennan J said [64] : Assuming, without deciding, that the Commonwealth's liability in tort is dependent on laws of the Commonwealth, that liability is not the creature of statute. The liability is created by the common law and, provided the corresponding common law cause of action is vested, the person in whom it is vested is entitled to the protection of s 51(xxxi). 1. (1952) 86 CLR 169 at 180. 2. Georgiadis (1994) 179 CLR 297 at 305-306 3. Georgiadis (1994) 179 CLR 297 at 306 4. Georgiadis (1994) 179 CLR 297 at 312

The majority, when they spoke of the Judiciary Act conferring a right to proceed against the Commonwealth, were making the point that the Judiciary Act waives the immunity of the Crown in contract and tort, that immunity being the only thing preventing such proceedings being pursued. But that is not to say that the cause of action that is then pursued is a statutory one. Unlike some statutory regimes, the Judiciary Act does not create any causes of action. The underlying causes of action which may be pursued because of the provisions of the Judiciary Act are the creatures of the general law of contract and tort and cannot be equated with causes of action that are created and conditioned by statute.

It follows, in my view, that, unless the Commonwealth makes good its contention that each respondent's cause of action does not constitute property within the meaning of s 51(xxxi) because it is statute-barred, s 44 is invalid in its purported extinguishment of those causes of action by reason of the failure to provide just terms.

Maguire v Simpson [65] establishes that s 64 of the Judiciary Act makes applicable a relevant statute of limitations in proceedings to which the Commonwealth is a party. As Gibbs J put it [66] , the words of s 64:

have the effect that if the Commonwealth is a party to proceedings its rights, and the rights of all other parties to the proceedings, will be governed by any statute of limitations that would be applicable if both parties were subjects. 1. (1977) 139 CLR 362. 2. Maguire (1977) 139 CLR 362 at 376-377

Whilst s 64 requires the rights of the parties in proceedings to which that section applies to be determined by treating them as nearly as possible on the same footing, the body of law by which those rights fall to be ascertained is unspecified. Sections 79 and 80 of the Judiciary Act are intended to remedy that deficiency. Section 79 provides:

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. Section 80 provides: So far as the laws of the Commonwealth are not applicable or so far as their provisions are insufficient to carry them into effect, or to provide adequate remedies or punishment, the common law in Australia as modified by the Constitution and by the statute law in force in the State or Territory in which the Court in which the jurisdiction is exercised is held shall, so far as it is applicable and not inconsistent with the Constitution and the laws of the Commonwealth, govern all Courts exercising federal jurisdiction in the exercise of their jurisdiction in civil and criminal matters.

Each of the proceedings before the Court was commenced in its original jurisdiction under s 75(iii) of the Constitution and involves the exercise of federal jurisdiction [67] . Sections 79 and 80 of the Judiciary Act apply in proceedings in this Court [68] . The effect of those two sections is to apply to each proceeding the whole body of law in the relevant State, except to the extent to which it is inconsistent with Commonwealth laws. There is no inconsistency in these cases, there being no Commonwealth statute of limitations. It was held in Georgiadis that s 44 is not such a law.

1. See Acts Interpretation Act 1901 Cth, s 26(c). 2. See Cohen v Cohen (1929) 42 CLR 91 at 99 Musgrave v The Commonwealth (1937) 57 CLR 514 at 531-532, 547; Bainbridge-Hawker v Minister for Trade and Customs (1958) 99 CLR 521 at 537 Pedersen v Young (1964) 110 CLR 162 at 165, 167-168, 169, 171; Parker v The Commonwealth (1965) 112 CLR 295 at 306 John Robertson & Co Ltd v Ferguson Transformers Pty Ltd (1973) 129 CLR 65 at 89, 93-94.

Whilst it can sometimes be a difficult question to determine in which State or Territory federal jurisdiction is being exercised [69] , the answer in these cases is clear. It is common ground that the proceedings commenced by Rock and Brandon are to be determined as though the events of which they complain occurred in New South Wales. The proceeding commenced by Mewett is to be dealt with on the footing that the events occurred in Victoria. But what is important for present purposes is that each proceeding was commenced by a writ accompanied by a statement of claim filed in the Sydney office of the High Court registry and upon remitter to the Federal Court was heard and determined in Sydney. Thus the law to be applied in the Federal Court was the law of New South Wales.

1. See Parker v The Commonwealth (1965) 112 CLR 295 at 306, per Windeyer J.

In the proceedings commenced by Rock and Brandon the statute of limitations which is picked up by s 79 of the Judiciary Act is the Limitation Act 1969 NSW (the New South Wales Act). Section 14(1) of the New South Wales Act fixes a limitation period of six years for causes of action in contract and tort. The period runs from the date of accrual of the cause of action. Section 44 of the Comcare Act came into force on 1 December 1988. Since Rock and Brandon's injuries were allegedly sustained on 22 October 1985, at the time s 44 came into force the six year limitation period applying to them was still running and would run until 22 October 1991. Applying Georgiadis , s 44 did not when it first came into force validly extinguish their causes of action. But upon the assumption that s 44 might have a subsequent valid operation, it is necessary to consider whether it validly applied when the relevant period of limitation expired, neither Rock nor Brandon having commenced an action by that time.

Section 14(1) of the New South Wales Act is couched in terms which, read alone, would result in its being regarded as procedural only and as not extinguishing the cause of action to which it applies, that is to say, as going to the remedy and not the right. However, s 63(1) provides:

Subject to subsection (2), on the expiration of a limitation period fixed by or under this Act for a cause of action to recover any debt damages or other money, the right and title of the person formerly having the cause of action to the debt damages or other money is, as against the person against whom the cause of action formerly lay and as against his successors, extinguished. Section 63(2) provides that there shall be no extinguishment where an action is commenced before the expiration of a limitation period fixed by or under the New South Wales Act.

It is also necessary to refer to s 78 of the New South Wales Act which was inserted by s 3 of the Limitation (Amendment) Act 1993 NSW. Section 78 provides that a limitation law, which is defined to include a law barring a right of action as well as a law excluding liability, is to be regarded as part of the substantive law of the State. That section cannot, however, change the effect of a limitation law. That is to say, if the law merely bars the remedy and does not extinguish the right, a statute-barred cause of action continues to exist even though the law is regarded as part of the substantive law. The intention behind s 78 appears to be that a limitation law of New South Wales which under the rules of private international law might otherwise not be applied in another place because it is procedural, should now be regarded as part of the substantive law and be applied in that other place.

In McKain v R W Miller & Co (SA) Pty Ltd [70] s 63 of the New South Wales Act was given as an example of a provision which was substantive rather than procedural in its operation because it extinguished liability. However, the observation in McKain did not extend to a consideration of the circumstances in which s 63 has that effect. In that regard, other provisions of the New South Wales Act are relevant.

Section 58(2) (which applies only to causes of action that accrued before 1 September 1990) enables a court to extend the limitation period in circumstances where "any of the material facts of a decisive character relating to the cause of action was not within the means of knowledge of the applicant until a date after the commencement of the year preceding the expiration of the limitation period for the cause of action". In addition, subdiv 3 of div 3 of Pt 3 (subdiv 3) of the New South Wales Act, which commences with s 60F, provides a procedure for a further discretionary extension of limitation periods where the plaintiff was unaware of the fact, nature, extent or cause of injury, disease or impairment at the relevant time. Section 60G confers a power, to be exercised on conditions laid down by s 60I, to extend time, but s 60G is expressed to apply only to a cause of action that accrues on or after 1 September 1990. However, under the provisions of Sch 5 to the New South Wales Act, the benefit of s 60G is extended in certain specified circumstances to a cause of action that accrued before 1 September 1990 [71] .

It is unnecessary to trace the requirements of Sch 5 in detail. It is sufficient to say that Rock and Brandon seek an extension of time under subdiv 3 and Sch 5 and accept that, in order to be successful in those applications, each must satisfy the court that, at the expiration of the relevant limitation period, he did not know that he had suffered personal injury or was unaware of the nature or extent of the personal injury suffered or was unaware of the connection between the personal injury and the Commonwealth's act or omission (see s 60I(1)(a)). Each of them must also establish that his application for extension was made within three years of the time when he first became aware of all three of these matters (see s 60I(1)(b)) and the court must be satisfied that it is just and reasonable that the limitation period be extended (see s 60G(2)).

Section 60M(1) provides that applications and orders may be made pursuant to subdiv 3 as if s 63 had never been in force and s 61 provides that where, after the expiration of a limitation period, the limitation period is extended, the prior expiration of the limitation period has no effect for the purposes of the New South Wales Act. Finally, s 68A provides that where a party to proceedings fails to plead that a right or title has been extinguished by the expiry of a limitation period, that party "shall not have the benefit in those proceedings of any such extinction of that right or title".

As I have said, I think it is clear that s 14(1) of the New South Wales Act standing alone merely bars the remedy; it does not extinguish the underlying cause of action [72] . Thus s 14(1) does not of itself prevent a statute-barred cause of action from continuing in existence. Of course, the value of the property comprising the cause of action would be affected by the fact that the action was statute-barred and would further be affected by such factors as the likelihood of the limitation defence being pleaded or the likelihood of the limitation period being extended. But in the context of a law such as s 44, those matters would go only to the question of what would constitute just terms. The cause of action remains of a proprietary character and has sufficient substance to answer the description of property in s 51(xxxi) of the Constitution.

1. See Maxwell v Murphy (1957) 96 CLR 261 at 269 Australian Iron & Steel Ltd v Hoogland (1962) 108 CLR 471 at 476 Pedersen v Young (1964) 110 CLR 162 at 166, 169; Maguire v Simpson (1977) 139 CLR 362 at 376-377, 392, 399; The Commonwealth v Verwayen (1990) 170 CLR 394 at 473, 497-498; McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 at 19, 41-44.

But as we have seen, s 14(1) does not stand alone. Section 63(1) provides that "on the expiration of a limitation period fixed by or under this Act" (my emphasis) the cause of action is extinguished. It is clear that when s 63(1) takes effect it has a substantive rather than a procedural operation; it extinguishes the right rather than bars the remedy. But the question which arises is when s 63(1) takes effect. The limitation period fixed by s 14(1) is fixed by the New South Wales Act. But under the New South Wales Act that period may be extended. And where it is extended after the expiration of the limitation period, the prior expiration of the limitation period has no effect, under s 61, for the purposes of the New South Wales Act. When the statutory scheme is examined as a whole, it is apparent that, whilst a period of limitation for a cause of action may be extended under the New South Wales Act, the cause of action is not extinguished by s 63(1) because there is no expiration of a limitation period fixed under the New South Wales Act. Such a limitation period remains to be determined by way of an application for extension of time. The cause of action continues in the meantime, statute-barred under s 14(1) but not extinguished under s 63(1). The cause of action remains, therefore, sufficiently proprietary in character to be counted among the "innominate and anomalous interests" [73] to which s 51(xxxi) has been held to extend its protection.

1. See Bank of NSW v The Commonwealth (1948) 76 CLR 1 at 349, per Dixon J.

This is to express a view contrary to that expressed by Hope JA in The Commonwealth v Dixon [74] :

Anomalous though it may be, it is apparent that where the limitation period is extended by order made after the expiration of the limitation period the earlier extinguishment of the right is annulled, and the right is to be treated as though it had never been extinguished at some earlier point of time. But any anomaly disappears once it is appreciated that s 63(1) itself conditions its operation upon the expiration, not only of a limitation period fixed by, but also of a limitation period fixed under, the New South Wales Act. Where an extension of time is refused, the expiration of a limitation period fixed by the New South Wales Act will engage s 63(1). But until that time or until circumstances otherwise preclude an application for extension of time being made, s 63(1) does not take effect. 1. (1988) 13 NSWLR 601 at 610.

Thus, s 63(1) does not extinguish the causes of action which Rock and Brandon seek to pursue. Their applications for extensions of time under subdiv 3 have yet to be determined. Their causes of action, albeit statute-barred, continue in existence and are vested in them. Section 44 of the Comcare Act, in seeking to extinguish them, fails to provide just terms and is invalid.

As in the case of Rock and Brandon, Mewett's claims fall to be determined in the exercise of federal jurisdiction in New South Wales. Thus ss 79 and 80 of the Judiciary Act pick up the law in force in New South Wales and apply it to those claims. Clearly, s 14(1) of the New South Wales Act applies. The causes of action claimed by Mewett arose out of events which occurred in August 1979 so that at the time s 44 of the Comcare Act came into force on 1 December 1988 those causes of action were statute-barred under s 14(1). But Mewett also claims to be entitled to an extension of time under subdiv 3 and it must follow, as it did in the cases of Rock and Brandon, that his causes of action are not extinguished and remain property for the purposes of s 51(xxxi) of the Constitution.

It is necessary, however, to deal separately with Mewett's claim in tort. The law of New South Wales to be applied in Mewett's case includes the rules of private international law. McKain [75] confirms that under those rules the claim is maintainable according to the law of New South Wales as the lex causae, provided that the two conditions laid down in that case are met. The second of those conditions is that the events in question, which it is agreed are to be regarded as having occurred in Victoria, must give rise in Victoria to a civil liability of the kind which Mewett seeks to enforce in New South Wales.

In considering the question whether the second condition is met, a court in New South Wales would not take into account a Victorian statute of limitation which was merely procedural. However, s 5 of the Choice of Law (Limitation Periods) Act 1993 NSW relevantly provides that if the substantive law of another State is to govern a claim before a court of New South Wales, a limitation law of that other State is to be regarded as part of that substantive law and applied accordingly by the Court. In Gardner v Wallace [76] , I observed of the Victorian equivalent of s 5 [77] that it may be based upon a misconception of the decision in McKain . The only way in which that section may be given force is to regard it as having application in considering whether the second condition laid down by McKain is met. That is how I construed the Victorian equivalent of s 5 in Gardner v Wallace and I adopt the same construction of s 5 here. That is to regard the substantive law of Victoria as governing the question whether the relevant events gave rise to civil liability in Victoria and to regard any Victorian statute of limitation as part of that substantive law. As with s 78 of the New South Wales Act, to regard a statute of limitation as part of the substantive law is not to change its effect in accordance with its terms.

1. (1995) 184 CLR 95 at 98. 2. See Choice of Law (Limitation Periods) Act 1993 Vic, s 5.

In Victoria, s 5(1A) of the Limitation of Actions Act 1958 Vic (the Victorian Act) deals specifically with claims in tort which include a claim for damages in respect of personal injuries consisting of disease or disorder and provides that a limitation period of six years applies and begins to run from the date upon which the plaintiff first knows (a) that he has suffered those personal injuries and (b) that those personal injuries were caused by the act or omission of some other person. As a result of transitional provisions of the legislation which introduced s 5(1A) in 1983 and amended it in 1989, that provision applies to causes of action arising after 11 May 1977 [78] . It is necessary in Victoria to plead the Victorian Act in order to rely on it, but the Commonwealth, apparently under the misunderstanding that only the New South Wales Act was relevant, has not pleaded the Victorian Act. No doubt it may apply to amend the pleadings, but in their present state it is clear that the Commonwealth is precluded from alleging that Mewett's claim is statute-barred in Victoria.

1. See Limitation of Actions (Personal Injury Claims) Act 1983 Vic, ss 3, 11; Limitation of Actions (Amendment) Act 1989 Vic, s 3; Limitation of Actions Act 1958 Vic, s 5(1B).

In any event, Mewett's case is that he first became aware of his deterioration in health, and of the fact that it was caused by the events of 1979, in or about August 1990. Thus it may well be that the limitation period prescribed by s 5(1A) of the Victorian Act had not expired at the commencement of his action on 20 June 1994.

But even assuming the application of the Victorian Act, that Act would not destroy the character of Mewett's cause of action as property for the purposes of s 51(xxxi). Section 5(1A), like s 14(1) of the New South Wales Act, does not extinguish the cause of action; it merely bars the remedy (and there is no section which is the equivalent of s 63(1) of the New South Wales Act in the Victorian Act). Thus Mewett's cause of action continues to exist as property vested in him even though it is statute-barred.

The possibility of limitation periods being pleaded and not being extended by the Court, which is the most that the Commonwealth can ultimately point to, goes only to the value of the respondents' causes of action. Accordingly, s 51(xxxi), as construed and applied in Georgiadis , invalidates s 44 of the Comcare Act in its application to those causes of action. It follows that the Full Court was right to dismiss the appeal from Foster J and correctly answered the question which his Honour set aside for that Court's consideration. I would therefore dismiss the appeals to this Court.

The circumstances giving rise to these appeals appear in other judgments. There is no need to repeat them in any detail.

In my view each of these appeals should be dismissed. I reach this conclusion largely for the reasons which Dawson J has expressed in his judgment. However in one aspect of the first appeal I approach the matter somewhat differently, while reaching the same conclusion as to the disposition of the appeal. I shall try to make my position clear without referring in detail to his Honour's reasons.

Like Dawson J, I was in dissent in Georgiadis v Australian and Overseas Telecommunications Corporation [79] . Like his Honour, and for the same reasons, I see no sufficient justification to reopen that decision. Georgiadis therefore should stand for what it decided, namely, that in its application to an employee whose cause of action against the Commonwealth was not statute-barred before the action was commenced, s 44 of the Commonwealth Employees' Rehabilitation and Compensation Act 1988 Cth [80] was invalid on the ground that it effected an acquisition of property other than on just terms. The effect of s 44, it was said in Georgiadis , was that it "operated once and for all as a final measure terminating those causes of action" [81] . In the three appeals presently before the Court, the Full Court of the Federal Court held that s 44 was invalid in its application to the actions brought by the respondents against the Commonwealth [82] .

1. (1994) 179 CLR 297. 2. Now the Safety, Rehabilitation and Compensation Act 1988 Cth (the Comcare Act). 3. Georgiadis (1994) 179 CLR 297 at 307 4. The Commonwealth v Mewett (1995) 59 FCR 391

In challenging Georgiadis , the Commonwealth submitted that the rights claimed by each of the respondents arose by virtue of the Judiciary Act 1903 Cth. It followed, according to the submission, that those rights could be modified or extinguished without any acquisition of property in the terms of s 51(xxxi) of the Constitution. The argument of the respondents was that the liability of the Commonwealth to be sued in tort has its source in the Constitution rather than in the Judiciary Act. On that approach, the right of action against the Commonwealth which each of the respondents has or had arose because the Constitution removed such immunity from suit as the Crown previously possessed. Arguments can be mounted in support of either of these views, but I agree with the conclusion of Dawson J that s 75(iii) of the Constitution confers original jurisdiction on the High Court in claims against the Commonwealth in contract or tort but does not itself remove the immunity of the Crown from such claims. Although it has been suggested that the majority judgments in Georgiadis are consistent with the proposition that the cause of action in tort was actionable by virtue of the combined operation of the common law and the Constitution, those judgments do not assert such a combined operation. Rather, they tend to assume that the liability of the Commonwealth arose by force of the Judiciary Act [83] .

Although the Judiciary Act removed the immunity from suit hitherto enjoyed by the Crown, it did not create causes of action. They must be found in the general law of contract and tort. In Georgiadis Mason CJ, Deane and Gaudron JJ said [84] "the effect of s 44, if valid, is to extinguish a vested cause of action that arose under the general law".

There is debate as to whether the removal of Crown immunity is the product of s 56 or s 64 of the Judiciary Act. In Breavington v Godleman [85] , for the reasons there expressed, I posited the source in s 56. Dawson J prefers s 64 as the section which removes immunity. As no resolution of these views is required to dispose of these appeals, it is unnecessary to pursue this matter.

Against this background, in particular the authority of Georgiadis , I turn to the claims of the respondents. Mr Mewett suffered personal injury on 31 August 1979 while serving on HMAS " Kembla ", at a time when the vessel was proceeding out of Port Phillip Bay in Victoria. The other respondents, Messrs Rock and Brandon, suffered personal injury on 22 October 1985 while serving on HMAS " Stalwart ", at a time when the vessel was on the high seas off the coast of Queensland.

Each respondent commenced action against the Commonwealth on 20 June 1994; each action was commenced in the Sydney Registry of the High Court. Whether it is s 56 or s 64 of the Judiciary Act which removes Crown immunity, it is the latter section which renders applicable a relevant statute of limitations where the Commonwealth is a defendant in proceedings [86] . The Commonwealth argued that each claim is barred by s 44 of the Comcare Act which commenced on 1 December 1988, that is, before the proceedings were commenced in each case. On the authority of Georgiadis , s 44 could not have that effect if the cause of action was not otherwise statute-barred at the time proceedings were commenced.

At the hearing of the appeals it was said to be common ground that, in the case of Messrs Rock and Brandon, s 79 of the Judiciary Act applied the relevant law of New South Wales [87] . This was because the action, having been commenced in the Sydney Registry, was remitted to the Federal Court for determination pursuant to s 44(2A) of the Judiciary Act and upon remitter was heard and determined in Sydney. While a State limitation law does not of its own force operate on an action against the Commonwealth, "s 64 of the Judiciary Act incorporates by reference the provisions of the Limitation Act " [88] . Sections 64 and 79 of the Judiciary Act in combination "pick up" a State limitation statute which "becomes, for this purpose, surrogate Commonwealth law" [89] .

1. There is a discussion of the applicable law by Cooper J in The Commonwealth v Mewett (1995) 59 FCR 391 at 401-402 2. Maguire v Simpson (1977) 139 CLR 362 at 408 3. Maguire v Simpson (1977) 139 CLR 362 at 408

Section 14(1) of the Limitation Act 1969 NSW (the New South Wales Act) specifies a relevant limitation period of six years, after which the cause of action "is not maintainable". By s 63(1), "on the expiration of a limitation period fixed by or under this Act the right and title of the person formerly having the cause of action is extinguished". In consequence each cause of action ceased to be maintainable six years after the cause of action accrued.

In the case of Messrs Rock and Brandon, the limitation period had not expired at the time s 44 came into force. On the authority of Georgiadis , s 44 could not at that point in time affect their causes of action. To do so would effect an acquisition of property on other than just terms. Does this exhaust the operation of s 44? The Commonwealth says "no"; its submission is that s 44 "speaks continuously in the present and has an ambulatory operation". Accordingly, on the expiration of the limitation period on 22 October 1991 the section applied but there was no longer property on which it could operate and there was therefore no requirement of just terms. But this cannot be so. From the language of s 44, it is apparent that it purports to extinguish those causes of action which existed on 1 December 1988 and in respect of which proceedings had not been commenced. That is not the full extent of its operation because it applies whether the injury said to give rise to the liability of the Commonwealth occurred before or after the commencement of the section. But in respect of a cause of action existing on 1 December 1988, the section purports to extinguish that cause of action once and for all. In the case of Messrs Rock and Brandon, that effected an acquisition of property on other than just terms. Hence the section is invalid in its application to those causes of action. The fact that the limitation period later operated on the causes of action and that Messrs Rock and Brandon each seeks an extension of time does not alter the position.

As to Mr Mewett, the parties have proceeded on the footing that the New South Wales Act applies, even though the events constituting the tort and breach of contract on which the plaintiff relies occurred in Victoria.

Mr Mewett's situation gives rise to different considerations. The limitation period prescribed by s 14(1) of the New South Wales Act had expired before s 44 of the Comcare Act came into operation. In terms of that provision, therefore, his cause of action was "not maintainable". More than that however, by force of s 63(1) his right and title to damages was "extinguished". The argument of the Commonwealth was that, any cause of action having been extinguished, there was no property that could be acquired when s 44 came into operation and hence no question could arise as to just terms. The position is complicated however by the existence of provisions for the extension of limitation periods.

By way of introduction to those provisions, s 63(2) provides that there is no extinguishment where an action is commenced before the expiration of a limitation period "fixed by or under" the New South Wales Act. One provision for a limitation period is to be found in s 18A of the New South Wales Act. But that section does not apply to a cause of action accruing before 1 September 1990. Mr Mewett's cause of action accrued in 1979; the section therefore has no application. Section 58(2), which applies to causes of action that accrued before 1 September 1990 and therefore applies in Mr Mewett's case, relevantly reads:

Where, on application to a court by a person claiming to have a cause of action to which this section applies, it appears to the court that:

(a) any of the material facts of a decisive character relating to the cause of action was not within the means of knowledge of the applicant until a date after the commencement of the year preceding the expiration of the limitation period for the cause of action; and

(b) there is evidence to establish the cause of action, apart from any defence founded on the expiration of a limitation period, the court may order that the limitation period for the cause of action be extended so that it expires at the end of one year after that date and thereupon, for the purposes of an action on that cause of action brought by the applicant in that court the limitation period is extended accordingly.

By a combination of provisions an extension of time may be granted even where the cause of action accrued after 1 September 1990. It is unnecessary to detail the scheme of the Act; it was considered by this Court, though in a different context, in Dedousis v Water Board [90] . The provision for extension in s 58(2) is relevant in considering whether, at the time s 44 of the Comcare Act came into operation, Mr Mewett's cause of action had in truth been extinguished.

Section 14(1) of the New South Wales Act, in providing that after the expiration of the limitation period an action is not maintainable, is a bar to proceedings but it does not extinguish the cause of action [91] . But what of s 63 and its declaration that the right and title of the person having the cause of action is "extinguished"? That occurs "on the expiration of a limitation period fixed by or under this Act". The limitation period in s 14(1) is fixed by the New South Wales Act. While it may be true to say that the limitation period may be extended under the Act, that does not seem to me to carry the matter any further. The operation of s 63(1) is such that a cause of action fixed by the Act has expired. What may be said to have been done under the Act is, in that regard, irrelevant. Section 63(1) looks to two situations and if one of those situations exists, as it does here (fixed by the Act), the sub-section operates. If s 63(1) is to have no operation in the case of Mr Mewett, it must be because on the granting of an extension of time, the limitation period can no longer be said to have expired.

1. The Commonwealth v Verwayen (1990) 170 CLR 394 at 473, 497-498.

Section 58(2) speaks of the limitation period being "extended so that it expires at the end of one year after" the date mentioned in par (a). But the right and title of the person having the cause of action has been extinguished. In The Commonwealth v Dixon [92] Hope JA, speaking of the New South Wales Act as it then stood, said:

Anomalous though it may be, it is apparent that where the limitation period is extended by order made after the expiration of the limitation period the earlier extinguishment of the right is annulled, and the right is to be treated as though it had never been extinguished at some earlier point of time. 1. (1988) 13 NSWLR 601 at 610.

It is at this point that I take a different approach to Dawson J. In my view, at least as a matter of language, one cannot escape the conclusion that there is an anomaly in s 58(2). The ordinary meaning of extinguish is to "put out, quench put a total end to, blot out of existence" [93] . It does not resolve the anomaly to point to the words "under this Act" in s 63(1). In my view it is better to recognise the anomaly in the language employed and to conclude, as did Hope JA, that "the earlier extinguishment of the right is annulled, and the right is to be treated as though it had never been extinguished at some earlier point of time".

1. Shorter Oxford English Dictionary, 3rd ed (1944), vol 1.

The consequence is that until the extension of time contemplated by the New South Wales Act has been refused, it is not possible to say with any certainty that the cause of action has been extinguished. In the language of Hope JA, the earlier "extinguishment" may be annulled. Mr Mewett is seeking an extension of time for the bringing of an action against the Commonwealth. Until that application has been dealt with one cannot say, in relation to s 44 of the Comcare Act, that he had no cause of action immediately prior to that section coming into existence.

In relation to Mr Mewett's claim in tort, questions arise as to the Choice of Law (Limitation Periods) Act 1993 NSW and the Limitation of Actions Act 1958 Vic. I have read what Dawson J has said about those statutes but, as the Commonwealth has not pleaded the Victorian legislation, it is unnecessary for me to say anything on that question.

These appeals were heard together. They raise the question whether s 44(1) of the Safety, Rehabilitation and Compensation Act 1988 Cth (the Comcare Act) is applicable to actions commenced by the respondents seeking damages in consequence of injuries sustained by them while employed by the Commonwealth as seamen.

The respondent to the first appeal, Mr Mewett, claims to have suffered injury in August 1979 on board HMAS " Kembla ". At the time, the ship was proceeding out of Port Phillip Bay, Victoria. He claims that his injury was the result of the Commonwealth's failure to discharge a contractual duty of care, or, in the alternative, a duty of care arising under the general law. The respondents to the second and third appeals, respectively, Messrs Rock and Brandon, claim to have been injured on or about 22 October 1985 on board HMAS " Stalwart ". That ship was then some hundreds of kilometres off the Queensland coast and proceeding from Sydney to Surabaya, Indonesia. They also claim that their injuries were the result of the Commonwealth's breach of a contractual duty of care, or, in the alternative, a duty of care arising under the general law.

The respondents each commenced proceedings against the Commonwealth in the Sydney office of the Registry of this Court on 20 June 1994. On the same day, an order was made by consent in each matter, remitting it to the Federal Court of Australia pursuant to s 44(2A) of the Judiciary Act 1903 Cth. Each respondent applied to the Federal Court under ss 60F and 60G and Sch 5 of the Limitation Act 1969 NSW (the NSW Limitation Act) for an extension of the limitation period applicable to his action [94] . The Commonwealth filed defences pleading that the actions were barred and extinguished by the NSW Limitation Act and, in the alternative, that they were barred by s 44 of the Comcare Act [95] . In their replies, the respondents denied that their actions were either barred or extinguished by the NSW Limitation Act and also denied that s 44 of the Comcare Act had any application.

1. Notices of motion were apparently filed on 31 August 1993 on behalf of Messrs Mewett and Rock, and on 24 June 1994 on behalf of Mr Brandon. But cf (1995) 59 FCR 391 at 405, 412, per Lindgren J. 2. The Commonwealth's pleading is expressed in terms of ss 44 and 45 of the Comcare Act. The Commonwealth no longer relies on s 45 and it is, thus, convenient to proceed simply by reference to s 44.

In each case, the application for extension of time under the NSW Limitation Act was made on the basis of the late discovery of the nature of the medical condition suffered and its causal connection with the events in respect of which the action was brought. In Mr Mewett's case, it was claimed that he first became aware of these matters in or about August 1990; in Mr Rock's case, in July 1992. Mr Brandon claims to have become aware of different matters in October 1989 and in May 1994 [96] . The applications for extension of time were met by applications from the Commonwealth to have the actions struck out as a result of s 44(1) of the Comcare Act [97] .

1. These are the dates which appear in Mr Brandon's affidavit. However, his reply states that the relevant date is October 1990. 2. The Commonwealth also sought to have the notices of motion seeking extensions of time struck out on the ground that as a result of s 44(1), the court had no jurisdiction to entertain them.

Section 44 of the Comcare Act, which commenced on 1 December 1988, provides:

(1) Subject to section 45, an action or other proceeding for damages does not lie against the Commonwealth, a Commonwealth authority, a licensed corporation or an employee in respect of:

(a) an injury sustained by an employee in the course of his or her employment, being an injury in respect of which the Commonwealth, Commonwealth authority or licensed corporation would, but for this subsection, be liable (whether vicariously or otherwise) for damages; or

(b) the loss of, or damage to, property used by an employee resulting from such an injury;

whether that injury, loss or damage occurred before or after the commencement of this section.

(2) Subsection (1) does not apply in relation to an action or proceeding instituted before the commencement of this section.

The respondents' actions were not commenced before 1 December 1988, and fall squarely within the terms of s 44(1) of the Comcare Act. However, it was held by this Court in Georgiadis v Australian and Overseas Telecommunications Corporation that because, in respect of actions which are not statute-barred, that sub-section purports to effect an acquisition of property contrary to the Constitution's requirement of "just terms" [98] , it is invalid in its application to those actions [99] . The question whether it validly applies to actions that are statute-barred was left open in that case. The Commonwealth's strike out applications were made on the basis that the respondents' actions were statute-barred when commenced in 1994, and, on the further basis that s 44(1) validly applies to actions which are statute-barred.

1. Constitution, s 51(xxxi). 2. Georgiadis (1994) 179 CLR 297Note the Comcare Act was then entitled the Commonwealth Employees' Rehabilitation and Compensation Act 1988 Cth.

The strike out applications were determined against the Commonwealth by Foster J sitting in Sydney [100] . The Commonwealth then sought to have the question whether s 44(1) is invalid in its application to the respondents' actions determined conclusively by a Full Court, not merely the question raised by its strike out applications, namely, whether that was arguably so [101] . Accordingly, Foster J reserved the former question for determination by a Full Court of the Federal Court and, at the same time, granted leave to the Commonwealth to appeal from his decision dismissing its strike out applications. The matter then came before a Full Court sitting in Sydney (Spender, Cooper and Lindgren JJ). The question reserved by Foster J was answered "Yes" and the appeals brought by the Commonwealth dismissed [102] . The Commonwealth now appeals to this Court.

1. The reasons for judgment in respect of Mr Mewett's case have been reported: see The Commonwealth v Mewett (1994) 126 ALR 391Foster J dismissed the Commonwealth's notices of motion in the cases of Messrs Rock and Brandon for "reasons substantially similar" to those given in Mr Mewett's case. 2. As to the issue raised on a strike out application, see Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91-92 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128-130 3. The Commonwealth v Mewett (1995) 59 FCR 391

In addition to the argument advanced by it in the Federal Court, the Commonwealth now argues that Georgiadis was wrongly decided and should be reconsidered. It is, however, convenient to first consider the Commonwealth's contention that the respondents' actions were statute-barred when instituted and are barred by s 44(1) of the Comcare Act. Its argument to that effect has several steps, each of which must be considered in some detail.

The first step in the Commonwealth's contention is to argue that, there being no applicable Commonwealth statute, the Judiciary Act operates to "pick up" State limitation laws and apply them to the respondents' actions. It was common ground in the Federal Court that the NSW Limitation Act is applicable to the actions brought by Messrs Rock and Brandon. Notwithstanding his application for an extension of time under the NSW Limitation Act, Mr Mewett disputed that it applied to his action and it was held by the Full Court that, in his case, the Limitation of Actions Act 1958 Vic (the Victorian Limitation Act) applies. That is the position for which the Commonwealth now contends. The respondents now argue that no limitation provision is "picked up" by the Judiciary Act and, thus, none is applicable.

There are several different approaches which may be said to lead to the conclusion that the Judiciary Act "picks up" State limitation laws and applies them to actions commenced in this Court, in the Federal Court and in State courts exercising federal jurisdiction. It will later be necessary to outline those different approaches. For the moment, it is sufficient to note that they each involve s 64 of the Judiciary Act which relevantly provides that, in a suit to which the Commonwealth is a party, "the rights of parties shall as nearly as possible be the same as in a suit between subject and subject". It is not in doubt that if some other provision of the Judiciary Act "picks up" a State limitation provision, s 64 requires that it be applied in proceedings to which the Commonwealth is a party [103] .

One possible way in which a State limitation law is "picked up" in an action against the Commonwealth is by the combined operation of ss 56 and 64 of the Judiciary Act. Another is by the combined operation of ss 56, 64 and 79. In broad outline, the first approach treats s 56, which applies to claims against the Commonwealth in contract and tort, as requiring application of the substantive and limitation laws of the State or Territory in which the claim arose. That was the approach adopted by the Full Court in reaching its decision that the Victorian Limitation Act is "picked up" and made applicable to the action brought by Mr Mewett [104] .

1. Mewett (1995) 59 FCR 391 at 396-397, per Cooper J; at 416-417, per Lindgren J.

The second approach involving s 56 treats it as "picking up" the substantive law of the State or Territory in which the claim arose and treats s 79 as "picking up" the limitation law of the State or Territory in which jurisdiction is exercised. However, the States and Territories have each enacted uniform legislation (choice of limitation law legislation) directing that, if the substantive law of another State or Territory or of New Zealand is to govern a claim, the limitation law of that State or Territory or of New Zealand, if that be the case, is to be regarded as part of that substantive law and so applied [105] . Thus, s 79 is treated as "picking up" the relevant choice of limitation law legislation and, through it, the limitation law of the State or Territory in which the claim arose.

1. See Limitation Act 1969 NSW, s 78 and Choice of Law (Limitation Periods) Act 1993 NSW; Choice of Law (Limitation Periods) Act 1993 Vic; Limitation of Actions Act 1936 SA, s 38A; Limitation of Actions Act 1974 Q, s 43A and Choice of Law (Limitation Periods) Act 1996 Q; Choice of Law (Limitation Periods) Act 1994 WA; Limitation Act 1974 Tas, ss 32A-32D; Choice of Law (Limitation Periods) Act 1994 NT; Limitation Act 1985 ACT, ss 55-57. See also Gardner v Wallace (1995) 184 CLR 95

The third and more usual route by which it is said that a State limitation provision is "picked up" by the Judiciary Act involves the combined operation of ss 64 and 79. The latter section provides:

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.

Again in broad outline, the approach based on ss 64 and 79 of the Judiciary Act treats s 79 as picking up all relevant laws of the State or Territory in which jurisdiction is exercised, including its limitation and choice of law rules. If there is no occasion to resort to its choice of law rules, so much of its law as is necessary to determine the matter in issue is applied, including its limitation law. Seemingly, it was on this basis, coupled with the view that jurisdiction was being exercised in New South Wales, that it was accepted that, if a limitation law applies in the cases of Messrs Rock and Brandon, it is the NSW Limitation Act.

If, on the approach based on ss 64 and 79 of the Judiciary Act, it is necessary to apply the choice of law rules of the State or Territory in which jurisdiction is exercised and they direct the application of the substantive law of another jurisdiction, the latter law is then applied. And if that is the law of another State or Territory or of New Zealand, its limitation law is applied by reason of the relevant choice of limitation law legislation. The Commonwealth argues that on that approach, too, the Victorian Limitation Act applies to Mr Mewett. However, it is difficult to see what part the substantive law of Victoria has to play in the determination of his claim. Rather, so far as his claim is based in tort it would seem that it should be determined by the common law of Australia, and not simply the common law of Victoria [106] . And so far as it is based on a contract with the Commonwealth, it would seem that, unless the contract expressly or impliedly provides otherwise, it should be resolved by the application of the Australian law of contract, rather than that of a particular State or Territory.

1. cf the approach in the Full Court, the parties apparently eschewing the view that there was a common law of Australia applicable to actions in contract and tort in favour of the view that each State and Territory has its own common law: see Mewett (1995) 59 FCR 391 at 397, 401-402, per Cooper J; at 417-418, per Lindgren J.

The fourth approach involves s 80 of the Judiciary Act. Since its amendment in 1988, s 80 provides:

So far as the laws of the Commonwealth are not applicable or so far as their provisions are insufficient to carry them into effect, or to provide adequate remedies or punishment, the common law in Australia as modified by the Constitution and by the statute law in force in the State or Territory in which the Court in which the jurisdiction is exercised is held shall, so far as it is applicable and not inconsistent with the Constitution and the laws of the Commonwealth, govern all Courts exercising federal jurisdiction in the exercise of their jurisdiction in civil and criminal matters.

Prior to its amendment in 1988, s 80 referred not to "the common law in Australia" but to "the common law of England". For reasons which will be elaborated in due course, the choice of law rules developed by the common law of England to determine the legal consequences of events occurring in one independent nation state and litigated in another are, in my view, wholly inappropriate for the resolution of legal controversies with respect to events occurring in Australia and involving the exercise of federal jurisdiction. Rather, it is time, in my view, to recognise an Australian common law and to recognise that in some circumstances, including those involved in Mr Mewett's case, it directs the application of the body of law which operates in the State or Territory in which the events in question occurred, including the limitation laws of that State or Territory.

If choice of law rules for matters involving the exercise of federal jurisdiction are recognised as part of the common law in Australia, their application is directed by s 80. And as s 80 is one of "the laws of the Commonwealth" to which s 79 is expressly subjected, there is then no need to resort to s 79 to "pick up" State or Territory choice of law rules. Rather, s 79 will operate to "pick up" State or Territory laws only to the extent that the statute law of the Commonwealth and the common law in Australia need to be supplemented to enable the matter in issue to be determined. Before further elaborating the approach based on s 80, however, it is convenient to state my reasons for rejecting the approaches based on s 56.

As already indicated, s 56 of the Judiciary Act is concerned with claims against the Commonwealth in contract and tort. Section 56(1) provides that, in such cases, a suit may be brought in this Court, in a court of the State or Territory in which the claim arose, or, if it did not arise in a State or Territory, in any court of competent jurisdiction of any State or Territory. It does not, in terms, purport to do anything more than expose the Commonwealth to suit and dictate the court in which proceedings are to be instituted. However, in Suehle v The Commonwealth it was said by Windeyer J that s 56 impliedly directs that an action against the Commonwealth "is to be tried according to the lex loci delicti; and when the action is brought in this Court that becomes the lex fori" [107] . In Mr Mewett's case, the Full Court treated his Honour's observation as relating both to the substantive law and the limitation law of the State or Territory in which the claim arose.

1. Suehle (1967) 116 CLR 353 at 355-356See also Washington v The Commonwealth (1939) 39 SR(NSW) 133 at 143.

Were s 56 concerned solely with actions in tort, it might be possible to treat s 56 as having the effect ascribed to it by Windeyer J. However, it also applies to actions in contract which, by the general law, are governed by the proper law of the contract in question, not the law of the place of its breach. It is impossible to read s 56 as altering that situation. Moreover, s 56 leaves it to the common law or, perhaps, to s 79 of the Judiciary Act to determine the law to be applied in actions that do not arise in a State or Territory. These considerations present real obstacles in the path of an implication that s 56 directs the law to be applied in an action arising out of events in a State or Territory. And that is so even if the implication is confined to actions in tort.

Further, s 56 is not exclusive and exhaustive as to the courts in which actions can be brought against the Commonwealth in contract and tort. In this regard, it is sufficient to note that it was held in Breavington v Godleman , an action in tort, that the Commonwealth may submit to the jurisdiction of any court invested with jurisdiction by s 39(2) of the Judiciary Act, no matter in which State or Territory the claim arises [108] . It is difficult to read s 56 as directing the law to be applied in actions brought otherwise than in accordance with its terms. This consideration presents a further obstacle in the path of an implication that s 56 impliedly directs the law to be applied in an action against the Commonwealth.

1. Breavington (1988) 169 CLR 41 at 68-69, 105-106, 118, 139-140, 152-153, 169.

Given the matters to which reference has been made and given, also, that s 56 does not purport to deal with the law applicable in an action against the Commonwealth, it does not, in my view, operate to require the application of the law of the State or Territory in which the events giving rise to the action occurred. Thus, neither of the approaches involving s 56 leads to the conclusion that the Victorian Limitation Act is "picked up" and made applicable to Mr Mewett's action.

It is necessary to turn to the approach based on s 79 of the Judiciary Act which, as already indicated, may involve s 79 "picking up" the choice of law rules of the State or Territory in which jurisdiction is exercised. There are clear statements in judgments of this Court to the effect that s 79 is capable of operating in that way [109] . In the main, however, those statements were made when s 80 of the Judiciary Act directed the application of the common law of England, not the common law in Australia.

1. See Deputy Federal Commissioner of Taxation v Brown (1958) 100 CLR 32 at 39, per Dixon CJ; Pedersen v Young (1964) 110 CLR 162 at 169-170, per Windeyer J; Pozniak v Smith (1982) 151 CLR 38 at 48, per Mason J; Breavington v Godleman (1988) 169 CLR 41 at 87-88, per Wilson and Gaudron JJ and the cases there cited. See also Gardner v Wallace (1995) 184 CLR 95 at 100

As already indicated, the choice of law rules developed by the common law of England were directed to the resolution of controversies arising in one independent nation state and litigated in another. They were not developed for or, even, having regard to conditions in a federal nation state [110] . This notwithstanding, those choice of law rules have been applied within the Commonwealth on the basis that the States and Territories are "separate countries in private international law" [111] or "separate law area[s] enforcing [their] own laws" [112] . The incongruity of that approach has been noted on several occasions [113] . In particular, it is incongruous that, by operation of the choice of law rules developed by the common law of England, "the one set of facts occurring in [Australia] may give rise to different legal consequences depending upon the location of the court in which [the] action is brought." [114] The incongruity is even greater if that situation obtains in matters within federal jurisdiction.

1. Note, however, that it has been held that Scotland and England are separate countries for the purposes of choice of law rules: see, eg, M'Elroy v M'Allister [1949] SC 110 2. Pedersen v Young (1964) 110 CLR 162 at 170, per Windeyer J, applied in McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 at 36, per Brennan, Dawson, Toohey and McHugh JJ. 3. Breavington v Godleman (1988) 169 CLR 41 at 84-85See also Varawa v Howard Smith Co Ltd (1911) 13 CLR 35 at 69 Chaff and Hay Acquisition Committee v J A Hemphill and Sons Pty Ltd (1947) 74 CLR 375 at 396 Koop v Bebb (1951) 84 CLR 629 at 641-644 Laurie v Carroll (1958) 98 CLR 310 at 331 Anderson v Eric Anderson Radio & TV Pty Ltd (1965) 114 CLR 20 at 23, 27-28, 34-35, 40. 4. See Breavington v Godleman (1988) 169 CLR 41 at 77-79, per Mason CJ; at 85, per Wilson and Gaudron JJ; at 125, per Deane J; McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 at 36, per Brennan, Dawson, Toohey and McHugh JJ; at 47, per Deane J; Stevens v Head (1993) 176 CLR 433 at 442, per Mason CJ. 5. Breavington v Godleman (1988) 169 CLR 41 at 88, per Wilson and Gaudron JJ. See also Tolofson v Jensen [1994] 3 SCR 1022 at 1063-1064(1994) 120 DLR(4th) 289 at 314-315.

There can be no doubt that the Commonwealth is a single nation. And when matters fall for determination in the exercise of the judicial power of the Commonwealth, they fall for determination by courts in an integrated Australian legal system, comprised of federal courts created by the Parliament and State courts invested with federal jurisdiction, with this Court at its apex [115] . Given that the Commonwealth is a single nation and given, also, its integrated legal system, it is not strictly accurate to speak in terms of a court exercising federal jurisdiction in a State or Territory, as doess 79 of the Judiciary Act [116] . Rather, the jurisdiction of this Court extends throughout the Commonwealth, as does the jurisdiction of the Federal Court. In both cases, jurisdiction is exercised in Australia, not in a State or Territory. And federal jurisdiction is no different when exercised by State courts. They, too, exercise federal jurisdiction throughout Australia, not merely in its States.

1. See as to the integrated legal system, Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 2. See Kruger v The Commonwealth (1997) 190 CLR 1 at 136-137, 138-139, per Gaudron J.

So far as it is based on s 118 of the Constitution, the view that there is a constitutional requirement that one set of facts should "fall to "be adjudged by only one body of law and thus give rise to only one legal consequence, regardless of where in the Commonwealth the matter [should fall] for adjudication" " [117] was rejected in Breavington v Godleman [118] and, also, in McKain v R W Miller & Co (SA) Pty Ltd [119] . However, neither case was concerned to ascertain whether the common law in Australia operates or should be recognised as operating so that, in matters involving the exercise of federal jurisdiction, events occurring in Australia fall to be adjudged by a single body of law giving rise to only one legal consequence.

1. Thompson v The Queen (1989) 169 CLR 1 at 35, per Deane J, citing Breavington v Godleman (1988) 169 CLR 41 at 97-99, per Wilson and Gaudron JJ. 2. (1988) 169 CLR 41. 3. (1991) 174 CLR 1.

As already indicated, s 80 was amended in 1988 - shortly after the decision in Breavington v Godleman - to require application of "the common law in Australia", as distinct from "the common law of England". So long as s 80 referred to "the common law of England", there was, perhaps, some basis for thinking that the laws of the States and Territories were to "be treated as if they were the discrete systems of law of independent nations." [120] And if treated in that way, there was also some basis for thinking that, in matters of federal jurisdiction, s 79 operated to "pick up" State and Territory choice of law rules and to apply the law directed by those rules. However, s 80 now directs the application of "the common law in Australia". And as s 80 is one of "the laws of the Commonwealth" to which s 79 is expressly made subject, it must be given full effect before resort is had to s 79 to "pick up" State laws.

1. Thompson v The Queen (1989) 169 CLR 1 at 34, per Deane J.

One aspect of the common law in Australia with respect to matters litigated in a State or Territory other than that in which the events in issue took place was exposed in McKain v R W Miller & Co (SA) Pty Ltd [121] . In that case, this Court reformulated the double actionability test laid down in Phillips v Eyre [122] . McKain was concerned with matters falling for decision in the exercise of State jurisdiction and did not purport to address "[t]he problem for federal courts exercising Australia-wide jurisdiction and bound by s 79 of the [Judiciary Act]" [123] . Nor can it apply in matters of federal jurisdiction. In this regard, it is sufficient to note that it makes no sense to apply a double actionability test to proceedings instituted in this Court or in the Federal Court. And there is no reason in principle why it should be different in proceedings in a State court exercising federal jurisdiction.

1. (1991) 174 CLR 1. 2. (1870) LR 6 QB 1. See McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 at 38-40, per Brennan, Dawson, Toohey and McHugh JJ. Note that in relation to domestic torts, the double actionability test has been rejected by the Supreme Court of Canada in favour of a strict application of the lex loci delicti: see Tolofson v Jensen [1994] 3 SCR 1022(1994) 120 DLR(4th) 289. 3. McKain (1991) 174 CLR 1 at 35

Whatever the position with respect to other matters, those falling for decision in the exercise of federal jurisdiction ideally ought to be determined by the application of "one body of law [which] is the law of the Australian nation [and] which speaks with a single voice and not as a babel of nine different Commonwealth, State or Territory voices all speaking at the same time but saying different things." [124] However, as Deane J pointed out in Thompson v The Queen , that does not mean "that the content of the national law will be identical regardless of where [the facts giving rise to the matter in issue] occur within the Commonwealth." [125] It does, however, mean that "the rules for identifying the law applicable to particular circumstances themselves [must be] part of the national law" [126] . In my view, s 80 of the Judiciary Act now requires that, for matters within federal jurisdiction, those rules be identified as part of "the common law in Australia".

1. Thompson v The Queen (1989) 169 CLR 1 at 35, per Deane J. 2. Thompson (1989) 169 CLR 1 at 35 3. Thompson v The Queen (1989) 169 CLR 1 at 35, per Deane J.

Before identifying the relevant choice of law rules required by "the common law in Australia" for matters within federal jurisdiction, it is convenient to note another incongruity which presents itself in cases of this kind. That is the notion that it is the common law of the States or Territories which determines the Commonwealth's liability in tort. In my view, there is one common law, the common law in Australia, which may be modified in its operation in the States and Territories by Commonwealth, State or Territory legislation [127] . On that view, it is the common law in Australia, not that of Victoria or New South Wales, which is determinative of the Commonwealth's liability in tort in these cases. And because the contracts involved in these cases are contracts with the Commonwealth, it may well be that it is Australian contract law that determines liability in the claims based on contract.

1. See Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 112-113, per McHugh J; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 562-563

It is not suggested that there is any statute law bearing on the question of liability in these cases. That being so and on the view that it is the common law in Australia that applies, it follows that, putting limitation laws aside, the legal consequences which attach to the events in issue in these matters cannot vary according to the location of the court in which proceedings are brought. And it is the need to ensure that the one set of facts occurring in Australia gives rise to only one possible legal consequence, regardless of the location of the court in which proceedings are brought, that must determine the content of the choice of law rules for matters within federal jurisdiction.

So far as claims in tort are concerned, the only rule that ensures that there is but one possible legal consequence for events occurring in Australia is a rule which directs that, to the extent that the common law in Australia does not determine liability, or, if the common law has been modified in its operation in the State or Territory in which the events in question occurred, the body of law that operates in that State or Territory should be applied. That conclusion is consistent with s 75 of the Constitution and Pt IX of the Judiciary Act. Indeed, in Musgrave v The Commonwealth , Dixon J thought that there was to be discerned from s 75 or Pt IX an overall intention that, in actions against the Commonwealth in tort, liability should be determined by the law of the State or Territory in which the events occurred [128] . And to ensure that there is but one legal consequence, it is also necessary, in applying the body of law that operates in the State or Territory concerned, to apply its limitation law, whether that law is substantive or procedural in character. On this basis, the Victorian Limitation Act applies to the action brought by Mr Mewett.

1. Musgrave (1937) 57 CLR 514 at 547-548See also at 550-551, per Evatt and McTiernan JJ.

In the actions brought by Messrs Rock and Brandon, the events which are said to give rise to tortious liability occurred outside Australia but are, nonetheless, to be determined by the application of Australian common law. In such cases, the need for there to be certainty as to legal outcome requires a choice of law rule that directs that, to the extent that the common law is insufficient to enable the matter to be fully determined, or, if the common law has been modified in its operation in the State or Territory with which the events in question have their closest connection, the body of law that operates in that State or Territory should be applied, including its limitation law. It may be taken that, as the last port of the ship on which Messrs Rock and Brandon were injured was Sydney, the NSW Limitation Act is to be applied to their claims in tort.

So far as concerns claims in contract, uniformity of legal outcome requires that if the law of a particular State or Territory is the proper law of the contract, its law, including its limitation law, should be applied. Where, as may be the case in these appeals, the contract is properly to be seen as governed by Australian contract law, rather than the law of a particular State or Territory, it should be taken that, to the extent that it is necessary to resort to some other law, resort should be had to the body of law operating in the State or Territory with which the contract is most closely connected. And to ensure that there is only one possible outcome, the limitation law of that State or Territory should also be applied.

No attempt has been made in the present cases to identify the law to be applied in resolution of the respondents' claims in contract. Nor is it necessary that that question be pursued. It is sufficient to indicate that, on the approach which, in my view, is directed by s 80, the Victorian Limitation Act applies to Mr Mewett's claim in tort and the NSW Limitation Act applies to the claims made by Messrs Rock and Brandon in tort.

I should indicate that, if the approach based on s 80 of the Judiciary Act be rejected with the consequence that s 80 has no part to play in determining choice of law rules, then, for the reasons which I give in Kruger v The Commonwealth [129] , s 79 must be construed as operating in this case to "pick up" New South Wales limitation and choice of law rules. And in Mr Mewett's case, that involves applying s 5 of the Choice of Law (Limitation Periods) Act 1993 NSW [130] , with the consequence that his claim in tort, is made subject to the Victorian Limitation Act. In this regard, it is sufficient to state that, for the reasons explained in Kruger , the choice of law rules of each State and Territory require that tortious liability be determined in accordance with the substantive law of the State or Territory in which the events in question occurred and, thus, the relevant choice of limitation law legislation requires the application of the limitation law of that State or Territory.

1. (1997) 190 CLR 1 at 135-141. 2. Section 5 provides: "If the substantive law of a place, being another State, a Territory or New Zealand, is to govern a claim before a court of the State, a limitation law of that place is to be regarded as part of that substantive law and applied accordingly by the court."

The second proposition in the Commonwealth's argument is that, when instituted, the respondents' actions were statute-barred. In this respect, it may be noted that the Commonwealth accepts that the actions of Messrs Rock and Brandon were not barred when s 44(1) of the Comcare Act came into operation. However, it argues that, on the basis that s 44(1) acquires property otherwise than on just terms by extinguishing a cause of action which is not statute-barred and is, to that extent, invalid, it, nonetheless, validly operates with respect to actions which were statute-barred when it came into operation and, also, actions which have subsequently become statute-barred. On the assumption that the extinguishment of a statute-barred cause of action does not attract the operation of s 51(xxxi) of the Constitution, I see no reason why s 44(1) of the Comcare Act should not be read in the manner for which the Commonwealth contends. And on that basis, the question is not whether the respondents' actions were statute-barred when s 44(1) came into operation on 1 December 1988, but whether they were statute-barred when proceedings were commenced on 20 June 1994.

So far as concerns Mr Mewett's action, s 5(1A) of the Victorian Limitation Act relevantly provides that in actions for negligence or breach of duty (including breach of contractual duty) to recover damages for personal injuries consisting of a "disease or disorder", the limitation period is a period of six years from the date on which the plaintiff first knows:

(a) that he has suffered those personal injuries; and

(b) that those personal injuries were caused by the act or omission of some person.

On the assumption that Mr Mewett's first knowledge of those matters was not more than six years before his action was commenced, it is not barred by the Victorian Limitation Act. However, there are no findings which enable that issue to be determined.

The position under the NSW Limitation Act, which is to be applied to the actions commenced by Messrs Rock and Brandon, is a little more complex than that arising under s 5(1A) of the Victorian Limitation Act. Section 14(1) of the NSW Limitation Act relevantly provides that neither an action in contract nor an action in tort is "maintainable if brought after the expiration of a limitation period of six years running from the date on which the cause of action first accrues". However, that section is to be understood in the context of the Act as a whole, including provisions which allow for the extension of limitation periods in personal injury cases and, also, s 63, which provides for the extinguishment of causes of action.

So far as is presently relevant, the combined operation of ss 60F, 60G and Sch 5 to the NSW Limitation Act [131] allows that a court may order the extension of a limitation period for a cause of action for damages for personal injury if satisfied of certain matters, including lack of knowledge with respect to the injury suffered or its connection with the events in issue [132] . Messrs Rock and Brandon claim that they can establish the various matters necessary to obtain an extension. By s 60K(1)(a), if a court orders an extension, "the limitation period is accordingly extended for the purposes of action[s] brought in that court on the cause[s] of action that [they claim] to have". Further, s 61 relevantly provides that "[w]here, after the expiration of a limitation period [for an action for personal injury [133] ], the limitation period is extended , the prior expiration of the limitation period has no effect for the purposes of [the] Act". Finally, s 63 relevantly provides, in sub-s (1), for the extinguishment of "the right and title of [a] person formerly having [a] cause of action" to recover damages, amongst others, "on the expiration of a limitation period fixed by or under [the] Act", but specifies, in sub-s (2), that "[w]here, before the expiration of a limitation period fixed by or under [the] Act an action is brought , the expiration of the limitation period does not affect the right of the plaintiff to damages".

1. As to the operation of ss 60F, 60G and Sch 5 to the Act, see Dedousis v Water Board (1994) 181 CLR 171 2. As to the matters of which a court must be satisfied, see s 60I(1). 3. Section 61 refers to "a limitation period to which this Division applies". The Division in question, Div 3 of Pt 3, applies to personal injury cases.

Within that statutory setting, it is clear that an action for damages for personal injury is not finally statute-barred merely because the initial limitation period of six years fixed by s 14(1) of the NSW Limitation Act has expired. Rather, the action is thereafter maintainable if the limitation period is extended. And by the combined operation of ss 60K(1) and 63(2), the cause of action is not extinguished if the limitation period is extended (in the words of s 63(2), if "a limitation period [is] fixed under [the] Act") and the action commenced within the extended period. As Messrs Rock and Brandon have each applied for an extension of the limitation period specified by s 14(1), it is impossible to say that their actions are statute-barred for the purposes of that Act. However, the Commonwealth argues that the position is different as a result of s 44(1) of the Comcare Act.

The Commonwealth argues that, no extension of limitation period having been granted, the causes of action upon which Messrs Rock and Brandon rely were statute-barred in 1991 and that s 44(1) then applied to bar their actions. Further, it argues that so far as the NSW Limitation Act allows for an extension of limitation periods, it is, in terms of s 79 of the Judiciary Act, "otherwise provided by the laws of the Commonwealth". In this respect, they say it is otherwise provided by s 44(1) of the Comcare Act. The Commonwealth's argument on this issue may be dealt with shortly. A similar argument was put in relation to Mr Mewett but, clearly, it cannot be maintained in the face of s 5(1A) of the Victorian Limitation Act.

There is no limitation law applicable to the actions of Messrs Rock and Brandon unless a State limitation law is applied by the common law in Australia in consequence of the operation of s 80 of the Judiciary Act or is "picked up" and applied by s 79. Neither s 79 nor s 80 can operate until some court is called upon to exercise federal jurisdiction. It is only when that occurs that the NSW Limitation Act is applied. And for the purposes of that Act, their actions are not barred.

Nor is it possible to argue that the NSW Limitation Act cannot be applied because s 44(1) of the Comcare Act otherwise provides. On the authority of Georgiadis , s 44(1) is invalid in its application to actions which are not statute-barred. The actions brought by Messrs Rock and Brandon can only be barred by operation of the NSW Limitation Act. If they are not statute-barred for the purposes of that Act, s 44(1) is invalid in its application to them and, thus, does not otherwise provide.

As it is not possible at this stage to say that the actions brought by the respondents to these appeals are statute-barred, the question whether s 44(1) of the Comcare Act is invalid in its application to them can only be answered if, in accordance with the Commonwealth's submission, Georgiadis is overruled. On that issue, I agree with Gummow and Kirby JJ that, for the reasons that their Honours give, that case was correctly decided. I would add only one further observation.

So far as it authorises laws with respect to "[m]atters incidental to the execution of any power vested by this Constitution in the Government of the Commonwealth", s 51(xxxix) of the Constitution permits the Commonwealth to legislate so as to prevent any liability arising for acts done in the exercise of its executive powers. But absent legislation of that kind, liability attaches to the Commonwealth under the general law and the Constitution applies to deny immunity from suit.

There is one final matter which should be noted. The question reserved by Foster J for determination by the Full Court of the Federal Court, namely, whether s 44(1) of the Comcare Act is invalid in its application to the actions commenced by the respondents, can only be answered "Yes" or "No" after first deciding whether their causes of action are statute-barred. In Mr Mewett's case, that depends on factual findings which have not been made; in the actions brought by Messrs Rock and Brandon, it depends on whether their applications for extension of time are successful. That being so, it was inappropriate for the Full Court to answer the question reserved by Foster J Accordingly, the appeals should be allowed to the extent necessary to set aside the answer given by the Full Court and, in lieu thereof, the question reserved by Foster J should be answered "Inappropriate to answer". Otherwise the appeals should be dismissed with costs.

In Georgiadis v Australian and Overseas Telecommunications Corporation [134] , a majority of this Court [135] held that s 44(1) of the Safety, Rehabilitation and Compensation Act 1988 Cth (the Comcare Act) [136] was invalid in so far as it purported to abolish a cause of action for damages in tort against the Commonwealth which arose before the commencement of s 44(1) and was not statute-barred before the action was commenced. The majority held that the subsection purported to effect an acquisition of property other than on just terms in so far as it declared that "an action for damages does not lie against the Commonwealth in respect of an injury sustained by an employee being an injury in respect of which the Commonwealth would, but for this subsection, be liable for damages".

1. (1994) 179 CLR 297. 2. Mason CJ, Brennan, Deane and Gaudron JJ, Dawson, Toohey and McHugh JJ dissenting. 3. The short title of this Act was previously the Commonwealth Employees' Rehabilitation and Compensation Act 1988 Cth. The change was made by s 4 of the Commonwealth Employees' Rehabilitation and Compensation Amendment Act 1992 Cth effective on 24 December 1992.

I dissented on the ground that the subsection did not effect an acquisition of property. A cause of action arising from a federal enactment is a property interest of an inherently determinable character which is always liable to modification or extinguishment by a subsequent federal enactment [137] . My view in Georgiadis was that causes of action against the Commonwealth in tort owe their existence entirely to federal legislation, in particular to ss 56 and 64 of the Judiciary Act 1903 Cth. Consequently, the liability of the Commonwealth in tort was subject to extinguishment by s 44(1) of the Comcare Act. The majority of the Court proceeded on the view that the liability of the Commonwealth depended on the Judiciary Act. But they did not accept my view that the cause of action also depended on the Judiciary Act [138] . They held that the cause of action arose from the general law of tort.

1. See Georgiadis (1994) 179 CLR 297 at 306, per Mason CJ, Deane and Gaudron JJ; at 326, per McHugh J. 2. Georgiadis (1994) 179 CLR 297 at 306, per Mason CJ, Deane and Gaudron JJ; at 312, per Brennan J.

In these appeals, the Commonwealth seeks leave to re-open the decision in Georgiadis . The Commonwealth contends that the Court should give effect to my reasoning in that case and hold that s 44(1) does not bring about an acquisition of the property of injured Commonwealth employees. However, no ground exists for re-opening Georgiadis . It was one of four decisions handed down on the same day [139] . Those decisions comprehensively examined the meaning and application of s 51(xxxi) of the Constitution. Nothing has emerged since they were decided that provides a reason for re-opening any of them.

1. The other three decisions were Mutual Pools & Staff Pty Ltd v The Commonwealth (1994) 179 CLR 155 Health Insurance Commission v Peverill (1994) 179 CLR 226 Re Director of Public Prosecutions; Ex parte Lawler (1994) 179 CLR 270

Once Georgiadis is accepted as governing the present appeals, these appeals must be dismissed. Subject to one qualification, my reasons for that conclusion are the same as those expressed by Dawson J. That qualification is that, like Toohey J, I take the view that the effect of s 63(1) of the Limitation Act 1969 NSW is to extinguish a cause of action that is statute-barred even though an application for an extension of time might subsequently be made under the Act. Nevertheless, as Toohey J points out, until the Federal Court refuses the extension of time the cause of action has not been forever extinguished. A successful application will result in the cause of action being treated as if it had never been extinguished [140] . If that occurs, s 44(1) will purport effectively to destroy the "revived" cause of action. Georgiadis decides, however, that s 44(1) cannot constitutionally achieve that result.

1. The Commonwealth v Dixon (1988) 13 NSWLR 601 at 610

These appeals, which were heard together, are brought from decisions of the Full Court of the Federal Court (Spender, Cooper and Lindgren JJ) [141] . The Full Court answered adversely to the present appellant, the Commonwealth, the question which had been reserved in each proceeding by a judge of that Court (Foster J) pursuant to s 25(6) of the Federal Court of Australia Act 1976 Cth. It also rejected appeals brought by leave from orders of Foster J dismissing applications by the Commonwealth that the statements of claim by the present respondents be struck out [142] .

1. Commonwealth v Mewett (1995) 59 FCR 391 2. The proceedings before Foster J concerning Mr Mewett are reported: The Commonwealth v Mewett (1994) 126 ALR 391

The appeals raise issues concerning the source and nature of the liability of the Commonwealth in contract and tort, the operation of ss 56, 64, 79 and 80 of the Judiciary Act 1903 Cth with respect to the limitation statutes of New South Wales and Victoria said to be "picked up" thereby, and the construction and validity of s 44 of the Safety, Rehabilitation and Compensation Act 1988 Cth (the Comcare Act) [143] .

1. The short title of this Act was previously the Commonwealth Employees' Rehabilitation and Compensation Act 1988 Cth. The change was made by s 4 of the Commonwealth Employees' Rehabilitation and Compensation Amendment Act 1992 Cth effective on 24 December 1992.

Section 44 of the Comcare Act commenced on 1 December 1988. In so far as relevant, s 44(1) provides that "an action or other proceeding for damages does not lie against the Commonwealth" in respect of an injury sustained by an employee in the course of his or her employment, being an injury in respect of which the Commonwealth would, but for s 44(1), be liable for damages, "whether that injury, loss or damage occurred before or after the commencement of this section". Section 44(1) does not apply in relation to an action or proceeding instituted before 1 December 1988 (s 44(2)). However, the actions in all the appeals were commenced not before but after 1 December 1988.

The Commonwealth seeks to re-open, in a limited respect, the decision in Georgiadis v Australian and Overseas Telecommunications Corporation [144] . The Court there decided [145] , in respect of a cause of action for damages in tort which had not become statute-barred before the action was commenced, that s 44 was invalid as effecting an acquisition of property other than on just terms as required by s 51(xxxi) of the Constitution. In the present appeals, the Commonwealth renews its submission made in Georgiadis [146] that causes of action against it in tort and contract owe their existence entirely to federal legislation, in particular the above provisions of the Judiciary Act, and, therefore, its liability is subject to extinguishment by a later law such as s 44 of the Comcare Act. The Commonwealth submits that the majority judgments in Georgiadis wrongly proceed upon a contrary basis. Further, the Commonwealth contends that a statute-barred cause of action does not attract the guarantee in s 51(xxxi) of the Constitution, an issue not decided by Georgiadis . We begin with this last submission.

1. (1994) 179 CLR 297. 2. Mason CJ, Brennan, Deane and Gaudron JJ, Dawson, Toohey and McHugh JJ dissenting. 3. (1994) 179 CLR 297 at 300.

As will appear, in the result it will be unnecessary for the outcome of these appeals to determine whether the reasoning in Georgiadis applies in respect of the purported operation of s 44 of the Comcare Act upon a cause of action for damages in contract or tort which on 1 December 1988 was then subsisting but had become statute-barred. However, in our view, a cause of action of this nature upon which there has operated a bar of the kind imposed by a statute of limitations in the traditional form still has sufficient substance to answer the constitutional description of "property" in s 51(xxxi) of the Constitution.

This follows from a consideration of the rights and liabilities of the parties in that situation. First, a statutory bar, at least in the case of a statute of limitations in the traditional form, does not go to the jurisdiction of the court to entertain the claim but to the remedy available and hence to the defences which may be pleaded. The cause of action has not been extinguished. Absent an appropriate plea, the matter of the statutory bar does not arise for the consideration of the court [147] . This is so at least where the limitation period is not annexed by statute to a right which it creates so as to be of the essence of that right [148] . Secondly, in the circumstances the defendant may be estopped from pleading the statutory bar or otherwise be deemed to have waived the right to do so [149] .

1. The Commonwealth v Verwayen (1990) 170 CLR 394 at 473-474 2. Australian Iron & Steel Ltd v Hoogland (1962) 108 CLR 471 at 488-489 Pedersen v Young (1964) 110 CLR 162 at 169 The Commonwealth v Verwayen (1990) 170 CLR 394 at 497-498 McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 at 43 3. See The Commonwealth v Verwayen (1990) 170 CLR 394 at 482-486 Roebuck v Mungovin [1994] 2 AC 224 at 234-236

The constitutional guarantee operates in respect of a "species of valuable right and interest" [150] . Despite the existence of the statutory bar, the subsistence of the cause of action, particularly one for a liquidated sum, means that it still may be turned by the plaintiff to valuable account. A creditor may exercise rights in relation to a time-barred debt in a number of ways which do not require recourse to the courts. Where a debtor makes a payment to the creditor without directing that it be paid in reduction of a particular debt, the right of appropriation which thereby devolves upon the creditor may be exercised by application to payment of the time-barred debt rather than to another debt which is still enforceable [151] . A possessory lien may be exercised in respect of a statute-barred debt [152] . Further, where the debtor approaches the court for equitable relief in aid of other rights against the creditor, the debtor will be required to do equity. Thus, a mortgagor seeking equitable relief in a redemption action is obliged to do equity by paying to the mortgagee all arrears of interest from the date of the mortgage, not merely that interest due and owing for less than six years [153] .

1. Minister for the Army v Dalziel (1944) 68 CLR 261 at 290 2. Mills v Fowkes (1839) 5 Bing(NC) 455 [132 ER 1174]. 3. Higgins v Scott (1831) 2 B& Ad 413 [109 ER 1196]. 4. Dingle v Coppen; Coppen v Dingle [1899] 1 Ch 726 at 746 In re Lloyd; Lloyd v Lloyd [1903] 1 Ch 385 at 402Other examples of results which flow from the circumstance that the remedy rather than the right is barred are given in par 24 of the Law Revision Committee, Fifth Interim Report (Statutes of Limitation) (1936), Cmd 5334 and in Derham, Set-off, 2nd ed (1996), pp 64-65, 439-440, 505-507.

These latter considerations may not bear upon the facts of the particular case, being but illustrations of the proposition that the existence of direct curial remedy is not co-extensive with the juridical existence of the right. However, as we have indicated, it is the subsistence of the latter which suffices to engage the constitutional guarantee.

The salient facts in the Mewett appeal are as follows. The respondent, Robert John Mewett, allegedly suffered personal injury on 31 August 1979 whilst serving in the Royal Australian Navy as a seaman on board HMAS " Kembla ". At the time of the alleged injury, the ship was proceeding out of Port Phillip Bay in the State of Victoria. On 20 June 1994, by a writ accompanied by a statement of claim, Mr Mewett instituted in this Court an action in which he claimed against the Commonwealth damages in contract and tort for an injury identified as acute psychological injury resulting in post traumatic stress disorder. The initiating process was filed in the Sydney office of the Registry and the jurisdiction of this Court was said to be attracted by s 75(iii) of the Constitution, it being a matter in which the Commonwealth was the defendant.

Section 56 of the Judiciary Act provides that a person making a claim against the Commonwealth "whether in contract or in tort" may bring a suit against the Commonwealth in the High Court. Section 56 also invests State and Territory courts with federal jurisdiction in respect of claims against the Commonwealth in contract and tort identifying the court in question by the jurisdiction in which the claim arose [154] .

1. Section 56 states: "(1) A person making a claim against the Commonwealth, whether in contract or in tort, may in respect of the claim bring a suit against the Commonwealth: (a) in the High Court; (b) if the claim arose in a State or Territory - in the Supreme Court of that State or Territory or in any other court of competent jurisdiction of that State or Territory; or (c) if the claim did not arise in a State or Territory - in the Supreme Court of any State or Territory or in any other court of competent jurisdiction of any State or Territory. (2) For the purposes of paragraphs (b) and (c) of the last preceding subsection: (a) any court exercising jurisdiction at any place in the capital city of a State, or in the principal or only city or town of a Territory, that would be competent to hear the suit if the Commonwealth were, or had at any time been, resident in that city or town, or in a particular area in that city or town, is a court of competent jurisdiction; and (b) any other court is not a court of competent jurisdiction if its competence to hear the suit would depend upon the place where the Commonwealth resides or carries on business or at any time resided or carried on business."

On 20 June 1994, by consent and pursuant to s 44(2A) of the Judiciary Act [155] , a Justice of this Court ordered that further proceedings in the action be remitted to the Federal Court of Australia and that the action proceed in that Court as if the steps already taken in the High Court had been taken in the Federal Court and as if Sydney had been stated in the writ as the place of trial. In the Federal Court, the Commonwealth filed a defence and Mr Mewett a reply.

1. Section 44(2A) states: "Where a matter in which the Commonwealth is a party is at any time pending in the High Court, the High Court may, upon the application of a party or of the High Court's own motion, remit the matter, or any part of the matter, to the Federal Court of Australia."

Thereafter, on 1 November 1994, Foster J dismissed a motion by which the Commonwealth had sought to strike out the proceedings on the footing that no action lay against the Commonwealth by reason of the operation of s 44(1) of the Comcare Act. On 8 November 1994, Foster J granted the Commonwealth leave to appeal against dismissal of its motion. His Honour also reserved to the Full Court the question whether s 44 was invalid in its application to the action. After consideration of various authorities, notably Georgiadis , the Full Court answered in the affirmative the question reserved. It also dismissed the Commonwealth's appeal.

The question reserved to the Full Court was whether s 44(1) of the Comcare Act was "invalid in its application to these proceedings as pleaded by [the respondent] in paragraph 4 of the Reply to the Commonwealth's Defence paragraph 8".

The precise issue before the Full Court is of importance for a consideration of the arguments presented to this Court. By pars 6 and 7 of the defence, the Commonwealth maintained that the action by Mr Mewett was not maintainable and was extinguished by reason of the respective operations of ss 14 and 63(1) of the Limitation Act 1969 NSW (the NSW Act). Section 14 provided that causes of action founded on contract and tort were "not maintainable" if brought after the expiration of a limitation period of six years running from the date of the first accrual of the cause of action. Section 63, so far as is relevant, provided that, on the expiration of that limitation period, the right and title to the cause of action was "extinguished". These paragraphs of the defence were not raised by the question reserved to the Full Court. Paragraph 8 of the defence was raised by that question.

Paragraph 8 stated: "Further and in the alternative the [Commonwealth] states that the action is barred by ss 44 and 45 of the [Comcare Act]." Section 45 has been abandoned. Paragraphs 1, 2 and 3 of the reply responded to the reliance by the Commonwealth (in pars 6 and 7 of its defence) upon the NSW Act. Mr Mewett alleged that his knowledge of the accrual of his cause of action only arose in August 1990 and that, further or in the alternative, he was entitled to an extension of time within which to bring his action. In that regard, provisions for secondary limitation periods upon application made after expiry of the primary limitation period were made by amendments to the NSW Act effected by the Limitation (Amendment) Act 1990 NSW (the 1990 Act) [156] . The relevant provisions of the 1990 Act commenced on 1 September 1990. They are set out in the judgment of Lindgren J in the Full Court [157] .

1. The construction and operation of the 1990 Act was considered by this Court in Dedousis v Water Board (1994) 181 CLR 171and Harris v Commercial Minerals Ltd (1996) 186 CLR 1The NSW Act has been further amended since the 1990 Act, but nothing turns upon these changes for the present appeals. 2. Mewett (1995) 59 FCR 391 at 408-412

The issues with respect to the NSW Act so presented upon the pleadings were not placed before the Full Court by the question reserved. It was directed solely to the issue whether the action did not lie against the Commonwealth by reason of s 44(1) of the Comcare Act. In par 4 of the reply, Mr Mewett denied that the cause of action did not lie on that ground and further relied upon the decision in Georgiadis .

It follows that there has been no final determination below of the issues tendered on the pleadings as to the operation of the NSW Act. Further, there has been no determination of an application by Mr Mewett to the Federal Court, made on the footing that the NSW legislation is applicable, that he should have an extension of the time within which to bring his action. In the Full Court, after referring to the provisions of the NSW Act, particularly ss 60G, 60I and Sch 5, Lindgren J observed [158] :

Apparently each of Mewett, Rock and Brandon would wish, in their applications for an extension of time, to attempt: (a) to satisfy the Court that as at the time of the expiration of the relevant limitation period (31 August 1985 in the case of Mewett and 22 October 1991 in the case of Rock and Brandon), he had not known that personal injury had been suffered, or had been unaware of the nature and extent of personal injury suffered or had been unaware of the connection between the personal injury and the Commonwealth's act or omission; and (b) to establish that his application for extension was made within three years of the time when he first became aware of all three of those matters; and (c) to persuade the court that it is "just and reasonable" that the limitation period be ordered to be extended. However, by each notice of appeal in this Court, the Commonwealth seeks not only a negative answer to the question reserved by Foster J to the Full Court, but also an order that, in respect of the Commonwealth's strike-out application, the order of the Full Court upholding the dismissal thereof by Foster J be replaced by an order striking out the action. 1. Mewett (1995) 59 FCR 391 at 412-413

The salient facts in respect to the actions instituted by Messrs Rock and Brandon are identical. Each instituted an action against the Commonwealth on 20 June 1994 by a writ and statement of claim filed in the Sydney office of the Registry of this Court. They allege that on or about 22 October 1985, whilst they were serving in the Royal Australian Navy, they were at sea aboard HMAS " Stalwart " which was proceeding between Sydney and Surabaya and was some hundreds of miles off the coast of Queensland. They complain they were then exposed to gases and vapours, more particularly to hydrogen sulphide gas, and thereby sustained injuries and disabilities. They claim damages on causes of action pleaded in contract and tort. On 20 June 1994, orders of remitter were made by a Justice of this Court in the same terms as the orders made in Mewett .

The pleadings and the general course of the proceedings followed that in Mewett . In each of the three actions, the defence by the Commonwealth was dated 1 July 1994 and par 8 thereof set up s 44 of the Comcare Act as an answer to the respective action. As we have indicated, in respect of each action there is still pending an application to the Federal Court for an extension of the limitation period under the NSW Act. These appear to have been made on the footing that s 79 of the Judiciary Act operates to "pick up" the NSW Act. The text of s 79 is set out later in these reasons.

In his reply, Mr Rock alleges that his knowledge of the accrual of the cause of action arose only in July 1992. Mr Brandon alleges that his knowledge only arose in October 1990. Further, in contrast to the situation in Mewett (where the events causing the alleged injury took place in 1979, that is to say, more than six years before the commencement of s 44 of the Comcare Act on 1 December 1988), the events of which Messrs Rock and Brandon complain occurred in 1985. The result is that, viewed purely from the perspective of the NSW Act, the six year limitation periods were still running against Messrs Rock and Brandon on 1 December 1988.

As Gaudron J points out in her reasons for judgment, no attempt was made to isolate the actions in contract from those in tort and to identify the law to be applied in resolution of the contract claims. The submissions dealt with the application of limitation statutes to the tort claims, and it is to those that we turn.

Messrs Rock and Brandon complain of what happened to them whilst aboard HMAS " Stalwart " as it was sailing on the high seas beyond the territorial limits of any State. It was common ground between the parties that, in the circumstances of the litigation and consistently with the reasoning in Parker v The Commonwealth [159] , if any statute of limitations be applicable against Messrs Rock and Brandon in the Federal Court, it is that of New South Wales.

In Mewett , it is apparent from the course of the pleadings that the parties also have proceeded on the footing that in the Federal Court only the limitation provisions of the NSW Act are applicable to the causes of action alleged against the Commonwealth. However, the events constituting the alleged tort occurred in Victoria. The Choice of Law (Limitation Periods) Act 1993 NSW (the Choice of Law Act) commenced on 3 December 1993. As we have indicated, Mr Mewett's action was instituted thereafter, on 20 June 1994. Section 4 of the Choice of Law Act provides that it extends to a cause of action that arose before its commencement provided that the proceedings were instituted thereafter. Section 5 states that, if the substantive law of another State is to govern a claim before a court of New South Wales, "a limitation law of that place is to be regarded as part of that substantive law and applied accordingly by the court". The term "limitation law" is defined in s 3 as follows:

" limitation law " means a law that provides for the limitation or exclusion of any liability or the barring of a right of action in respect of a claim by reference to the time when a proceeding on, or the arbitration of, the claim is commenced.

Putting to one side questions arising in the exercise of federal jurisdiction, the effect of the reasoning of the majority in McKain v R W Miller & Co (SA) Pty Ltd [160] with respect to an action in tort brought in the courts of one State for a wrong committed in another State is that the forum will enforce the liability if two conditions are met. The first is that the claim arise out of circumstances of such a character that, had they occurred within the forum, a cause of action would have arisen entitling the plaintiff to enforce against the defendant a civil liability of the kind which the plaintiff claims to enforce. The second is that, by the law of the State where the wrong occurred, the circumstances of the occurrence give rise to a civil liability of the kind which the plaintiff claims to enforce and that liability is a continuing liability. If the civil liability is for any reason extinguished by the lex loci delicti the cause of action conferred in the forum likewise will be extinguished. However, a limitation statute which bars the remedy but does not extinguish the civil liability of the defendant is but a rule of procedure and thus a matter for the forum.

1. (1991) 174 CLR 1. The action in that case was brought in the Supreme Court of New South Wales between interstate parties but because one of them was a corporation the action was not between residents of different States within the meaning of s 75(iv) of the Constitution. The result was that the Supreme Court, at least until the raising of constitutional issues, was not exercising federal jurisdiction.

Section 5 of the Limitation of Actions Act 1958 Vic (the Victorian Act) provides that actions founded in contract and tort "shall not be brought" after the expiration of six years from the date of the accrual of the cause of action. Section 5(1A) (as amended with effect from 30 May 1989 by the Limitation of Actions (Amendment) Act 1989 Vic (the Amendment Act) [161] ) makes special provision in respect of actions for damages for negligence or for breach of duty existing by virtue of a contract or otherwise, where the damages claimed consist of or include damages in respect of personal injuries consisting of a disease or disorder. In such a case the action may be brought not more than six years from, and the cause of action should be taken to have accrued on, the date on which the plaintiff first knows that (a) those personal injuries have been suffered and (b) those personal injuries were caused by the act or omission of some person. Section 5(1A) as so amended extends to each case where the plaintiff knew of matters (a) and (b) within six years before 30 May 1989 (s 5(1B)).

1. The Amendment Act was repealed by s 3(1) of the Statute Law Revision Act 1995 Vic. However, the repeal does not affect in any way the operation of the amendments made to the Victorian Act by the Amendment Act: Interpretation of Legislation Act 1984 Vic, s 15(1).

The effect of s 5 of the Choice of Law Act is to render s 5 of the Victorian Act part of the substantive law which, consistently with McKain , would be applied in a New South Wales court as part of the lex causae in a tort action for a wrong committed in Victoria. This may be significant in considering the impact of federal law upon an action such as that brought by Mr Mewett.

The Commonwealth's submission is that Commonwealth "liability" in tort rests solely upon the provisions of the Judiciary Act and not directly on s 75(iii) of the Constitution.

One then asks what is involved in the submission that s 75(iii) of the Constitution, whilst it confers jurisdiction on this Court in respect of matters in which the Commonwealth or a person being sued on behalf of the Commonwealth is a party, does not "itself impose liability on the Commonwealth or confer a right to proceed" and that the causes of action with which this litigation is concerned owe their existence entirely to statute.

Much turns upon the use of the term "liability". Of the terms "sovereign" and "sovereignty", Story wrote that they were used in different senses, something which led "to a confusion of ideas, and sometimes to very mischievous and unfounded conclusions" [162] . Likewise, "liability" may be used in different senses and so lead to a confusion of ideas. A defendant may be said not to be liable because of an immunity from suit which the defendant is not prepared to waive. A defendant may deny liability by pleading facts which, if proved at trial, answer the allegations by the plaintiff. In this Court, a defendant still may demur to a statement of claim. A defendant may suffer entry of judgment and yet be said to avoid "liability" because there is lacking any means, or any effective means, for recovery of the judgment debt thereby created.

1. Story, Commentaries on the Constitution of the United States (1833), vol 1, par 207.

The last point may be illustrated by reference to s 83 of the Constitution. In stating that "[n]o money shall be drawn from the Treasury of the Commonwealth except under appropriation made by law", s 83 applies to any fund or sum of money standing to the credit of the Commonwealth and gives effect to established principles in the United Kingdom [163] . Sections 65 and 66 of the Judiciary Act accommodate this principle in respect of judgments given against the Commonwealth and States. There is to be no execution or attachment, but upon receipt of a certificate of judgment, the Commonwealth Minister for Finance or State Treasurer, as appropriate, shall satisfy the judgment out of moneys legally available.

1. Northern Suburbs General Cemetery Reserve Trust v The Commonwealth (1993) 176 CLR 555 at 572-573, 580-581, 591, 597-599.

What is involved in the Commonwealth's submission is a denial of liability in the first sense mentioned above, that of an immunity from suit. The question is whether Crown immunity as developed in English common law not only denied adjudication of claims against the Crown in tort and contract but went further and denied the very existence of the contract and any wrongful act or omission.

In England, before the reforms made by the Crown Proceedings Act 1947 UK, Crown immunity was not absolute. The Court of Exchequer in its equitable jurisdiction granted declaratory and certain consequential equitable relief affecting the rights of the Crown, which appeared by the Attorney-General [164] . Further, it was well settled that a trust of which the trustee was the Crown was a validly constituted trust [165] . Remedial difficulties with enforcement of the trust did not mean that the Crown might not "sustain the character of a trustee" [166] .

1. Dyson v Attorney-General [1911] 1 KB 410 at 415-416, 419, 421-422; Holdsworth, The History of Remedies Against the Crown, Law Quarterly Review, vol 38 (1922) 141 (Pt 1); 280 (Pt 2), at pp 280-283. The equity jurisdiction of the Exchequer was transferred to Chancery by the Court of Chancery Act 1841 (5 Vic c 5): Bryson, The Equity Side of the Exchequer (1975), pp 160-166. 2. Spence, The Equitable Jurisdiction of the Court of Chancery (1849), vol 2, pp 32-33; R v Mayor, etc, of Blenheim (1907) 28 NZLR 249 at 256 Attorney-General v Nissan [1970] AC 179 at 223 Registrar of the Accident Compensation Tribunal v Federal Commissioner of Taxation (1993) 178 CLR 145 at 162-164, 180. 3. Lewin, A Practical Treatise on The Law of Trusts, 6th ed (1875), p 29; cf Casberd v Attorney-General (1819) 6 Price 411 at 463[146 ER 850 at 868].

The petition of right was said to give effect to the principle that the subject should receive redress from the Crown in those cases where redress would be available from a fellow subject [167] . The authorities in which the petition of right was used in the common law courts for actions in contract [168] proceeded on the footing that, independently of enforcement, the common law had operated to bring about a contract between the Executive and the citizen. Windsor and Annapolis Railway Co v The Queen and the Western Counties Railway Co [169] was a case in which proceedings had been commenced by petition of right in the Exchequer Court of Canada under the Petition of Right Act 1876 Can [170] . Lord Watson said [171] :

Their Lordships are of opinion that it must now be regarded as settled law that, whenever a valid contract has been made between the Crown and a subject, a petition of right will lie for damages resulting from a breach of that contract by the Crown. 1. Holdsworth, A History of English Law, 3rd ed (1944), vol 9, pp 40-42. 2. These are collected in Robertson, The Law and Practice of Civil Proceedings By and Against the Crown and Departments of the Government, (1908), pp 337-340. 3. (1886) 11 App Cas 607. 4. 39 Vict c 27. 5. Windsor and Annapolis Railway Co (1886) 11 App Cas 607 at 613.

Actions in tort were differently considered. In delivering the judgment of the Queen's Bench in Feather v The Queen [172] , Cockburn LCJ said:

For it must be borne in mind that the petition of right, unlike a petition addressed to the grace and favour of the Sovereign, is founded on the violation of some right in respect of which, but for the immunity from all process with which the law surrounds the person of the Sovereign, a suit at law or equity could be maintained. The petition must therefore shew on the face of it some ground of complaint which, but for the inability of the subject to sue the Sovereign, might be made the subject of a judicial proceeding. Now, apart altogether from the question of procedure, a petition of right in respect of a wrong, in the legal sense of the term, shews no right to legal redress against the Sovereign. For the maxim that the King can do no wrong applies to personal as well as to political wrongs; and not only to wrongs done personally by the Sovereign, if such a thing can be supposed to be possible, but to injuries done by a subject by the authority of the Sovereign. For, from the maxim that the King cannot do wrong it follows, as a necessary consequence, that the King cannot authorise wrong. For to authorise a wrong to be done is to do a wrong; inasmuch as the wrongful act, when done, becomes, in law, the act of him who directed or authorised it to be done. It follows that a petition of right which complains of a tortious act done by the Crown, or by a public servant by the authority of the Crown, discloses no matter of complaint which can entitle the petition to redress. Nevertheless, as his Lordship went on to point out [173] , a servant of the Crown was responsible at common law for a tortious act done to a fellow subject, although done by the authority of the Crown, and to that tortfeasor the immunity of the Crown would afford no defence. Moreover, in most instances, the action against the officer or servant of the Crown would have the same effect as a petition of right would have, "since, in a proper case, the Crown [would] defend its officer and become responsible for any damages awarded" [174] . 1. (1865) 6 B & S 257 at 295-296 [122 ER 1191 at 1205]. 2. Feather (1865) 6 B& S 257 at 297 [122 ER 1191 at 1205-1206]. 3. Robertson, The Law and Practice of Civil Proceedings By and Against the Crown and Departments of the Government (1908), p 351.

The affinity, with respect to their mediæval origins, between the law of civil wrongs and the criminal law lingered in the attribution to modern tort law of a punitive character. This may have found some expression in the meaning attributed by the nineteenth century judges to the mediæval maxim that the Crown could do no wrong. The present state of development of the law was expressed as follows by Windeyer J in Uren v John Fairfax & Sons Pty Ltd [175] :

Compensation is the dominant remedy if not the purpose of the law of torts today. But fault still has a place in many forms of wrongdoing. And the roots of tort and crime in the law of England are greatly intermingled. 1. (1966) 117 CLR 118 at 149.

On the other hand, Holdsworth was of the view that a petition of right did lie in mediæval times, before modern distinctions between property, contract and tort were made, in certain cases where, as between subjects, a real action could have been brought [176] . Further, it is suggested [177] that the reliance upon the maxim in the nineteenth century cases proceeded upon an inaccurate understanding of a passage in Bracton [178] , headed "For what purpose a king is created; of ordinary jurisdiction" and the substance of which is not that the King could do no wrong but that the King was not allowed or entitled to do wrong and that regal acts, if against the law, were wrongs (iniuriae). The Crown cannot sanction an act forbidden by law [179] . Moreover, as Chitty put it [180] :

The splendour, rights and powers of the Crown were attached to it for the benefit of the people, and not for the private gratification of the sovereign. 1. Holdsworth, The History of Remedies Against the Crown, Law Quarterly Review, vol 38 (1922) 141 (Pt 1), at pp 151-156; 280 (Pt 2), at p 294. 2. Ehrlich, Proceedings Against the Crown (1216-1377), in Vinogradoff (ed), Oxford Studies in Social and Legal History (1974), vol 6, pp 42-44, 127-131. 3. Bracton on the Laws and Customs of England, Folio 107a-107b, translated, with revisions and notes, by Thorne (1968), vol 2, pp 305-306. 4. A v Hayden [No 2] (1984) 156 CLR 532 at 580-581 5. Chitty, A Treatise on the Law of the Prerogatives of the Crown (1820) p 4 (footnotes omitted); see also Repatriation Commission v Kirkland (1923) 32 CLR 1 at 11-12

In Scotland, whilst actions in delict could not be brought against the Crown, other actions could be brought against it as of right, without a petition of right, and interdict was available against the Crown [181] . Section 1 of the Crown Suits (Scotland) Act 1857 UK [182] provided that every action, suit or proceeding to be instituted against the Crown "or against any public department" might be lawfully raised against the Lord Advocate.

1. British Medical Association v Greater Glasgow Health Board [1989] AC 1211 at 1225It appears that interdict in that situation is no longer available for reasons we outline below. 2. 20 & 21 Vict, c 44.

What is perhaps of more significance for present purposes is that before federation, in all the Australian colonies save Victoria, legislation had established procedures whereby claims in tort as well as in contract might be brought against the colonial governments [183] . This result had been confirmed by the Privy Council in Farnell v Bowman [184] , an appeal concerning a New South Wales law. Accordingly, Ch III of the Constitution is to be considered "in the light of the tradition already established by 1900 in the Australian colonies with respect to the liability of the Crown to be sued and to suffer judgment in respect of any cause of action for which a citizen in like circumstance was liable" [185] .

1. Maguire v Simpson (1977) 139 CLR 362 at 371-373See Finn, Claims Against the Government Legislation, in Finn (ed), Essays on Law and Government, vol 2, The Citizen and the State in the Courts (1996) 25, at pp 26-32. 2. (1887) 12 App Cas 643. 3. Maguire v Simpson (1977) 139 CLR 362 at 371

The differential treatment in England in the nineteenth century between claims against the Crown in contract and in tort illustrates the distinct character of the principles or precepts conveyed by the then understanding of the maxims that the Crown was not to be sued in its own courts and that the Crown could do no wrong. Nevertheless, they were related aspects of what might be called the common law Crown immunity doctrine [186] . The common law accepted that a contract had been made and broken and that a wrongful act had been committed. But the rights thereby engendered in the plaintiff were rendered imperfect by that further branch of the common law which provided the Crown with an immunity to action. In addition, even where, as in the case of contract, an adjudication might be obtained through the use of a petition of right [187] , or where the Executive Government stood behind an officer or servant sued personally in tort, there remained a further hurdle. This was the requirement after the Revolution of 1688 for legislative appropriation of moneys to answer the judgment for breach of contract or the ex gratia payment in respect of the tort liability. The petition of right which was originally based on the personal control the Sovereign exercised over Crown servants and over the funds in their hands, came to be used for claims against the Executive Government which could only be satisfied after Parliamentary appropriation [188] .

1. See Finn, Law and Government in Colonial Australia (1987), pp 141-142. 2. Provision for the form of judgment or decree was made by ss 9 and 10 of the Petitions of Right Act 1860 UK. 3. Harrison Moore, The Crown as Corporation, Law Quarterly Review, vol 20 (1904) 351, at pp 352-353.

What then was the consequence of the introduction of Ch III of the Constitution? The establishment of the judicial power of the Commonwealth as an essential element in the federal system meant that doctrines of executive immunity from curial process which had been developed in England could not be carried immediately into the federal system. Chapter III required adjudication upon "matters" of a nature unknown in England. It also required that in Australia the common law be informed by the structure of and institutions established by the Constitution. This, by covering cl 5 thereof, was made binding on the courts, judges and people of every State and of every part of the Commonwealth "notwithstanding anything in the laws of any State".

It is well settled that in 1900 the term "matters" was in common use as the widest term to denote controversies which must come before a court of justice and that in Ch III of the Constitution "matter" encompasses all claims made within the scope of a justiciable controversy which is identifiable independently of a proceeding brought for its determination [189] . Further, s 75 of the Constitution speaks of matters in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party (s 75(iii)) and matters between States or between a State and a resident of another State (s 75(iv)), rather than identifying the Crown in any particular capacity. The Commonwealth and States are thus treated by the Constitution as organisations or institutions of government, conceived as politically organised bodies having mutual relations and amenable to the jurisdiction of courts exercising federal jurisdiction [190] . This new state of affairs, established by the Constitution, required adjustment to habits of thought formed in a common law system with a unitary structure of government. Those earlier habits of thought assumed the historical derivation of the courts of justice as the Sovereign's "own" courts, thus supplying the principle that the Sovereign was not to be sued in the Sovereign's courts.

1. Fencott v Muller (1983) 152 CLR 570 at 603 2. Bank of NSW v The Commonwealth (1948) 76 CLR 1 at 363 Deputy Commissioner of Taxation v State Bank (NSW) (1992) 174 CLR 219 at 230-231 State Authorities Superannuation Board v Commissioner of State Taxation (WA) (1996) 189 CLR 253 at 282-284

In Johnstone v The Commonwealth [191] , Murphy J said:

In Australia, the federal courts are not the Sovereign's courts in the sense used in the United Kingdom. Under the Commonwealth Constitution, the legislative power of the Commonwealth is expressed to be vested in the Queen, the Senate and the House of Representatives (s 1); and the executive power is vested in the Queen (s 61). However, the judicial power is not vested in the Queen, but in "a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction" (s 71). 1. (1979) 143 CLR 398 at 406.

Chapter III of the Constitution created this Court as the primary arm of one of three branches of federal government and as the forum for the resolution of justiciable controversies between the federal and State polities.

Moreover, the acceptance in Australia of the principle in Marbury v Madison [192] as "axiomatic" [193] , placed a fundamental limitation upon any general acceptance in the exercise of federal jurisdiction of the maxim that the Sovereign could do no wrong. To the contrary, it was for the judicial branch of government to determine controversies as to whether the legislative or executive branches had exceeded their constitutional mandates. The authority given by s 75(iii) in respect of matters in which the Commonwealth is a party was supplemented by s 75(v) which provides for writs of mandamus and prohibition, and for injunctions, against officers of the Commonwealth.

1. (1803) 5 US 137. 2. Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 262

The operation of the Constitution gives rise to at least four species of justiciable controversy which were not encompassed by the common law as it developed in England. First, the mutual relations between the Commonwealth and the States may give rise to actions between them in tort [194] and contract [195] .

1. South Australia v Victoria (1911) 12 CLR 667(trespass to land); The Commonwealth v New South Wales (1923) 32 CLR 200(collision between vessels). 2. South Australia v The Commonwealth (1962) 108 CLR 130 at 139, 148.

Secondly, the Constitution itself created legal standards of right and obligation, infringement of which would engage the judicial power of the Commonwealth. For example, ss 89(iii) and 93(ii) of the Constitution of their own force required the Commonwealth to make certain payments to the States and gave to the States "an absolute vested right to receive the money" [196] . Section 84 of the Constitution directly created an obligation, enforceable in this Court against the Commonwealth, to pay certain pensions and retiring allowances [197] . In The Commonwealth v New South Wales [198] , after referring to the maxim "[t]he King can do no wrong", Isaacs, Rich and Starke JJ said [199] :

Suppose a State proceeded to raise a military force, contrary to s 114, or suppose the Commonwealth imposed a tax on the property of a State, or suppose the Commonwealth proceeded to make a railway in a State without that State's consent: in any of those cases is it possible to think that s 75 of the Constitution was not intended to enable the complaining party - whether Commonwealth or State - to approach the High Court for redress? And if so, where is the room for the maxim at all in s 75 in view of this new Constitutional situation? 1. Tasmania v The Commonwealth and Victoria (1904) 1 CLR 329 at 340 2. See Flint v The Commonwealth (1932) 47 CLR 274 McDonald v Victoria (1937) 58 CLR 146 3. (1923) 32 CLR 200 at 212. 4. The Commonwealth v New South Wales (1923) 32 CLR 200 at 213

Thirdly, s 75(v) authorised the grant of injunctive relief against officers of the Commonwealth, including the Queen's Ministers of State for the Commonwealth, to restrain acts not permitted by their constitutional or legislative authority. In the United Kingdom, after the Crown Proceedings Act, and until the recent decision of the House of Lords in M v Home Office [200] , there was still an issue as to whether the courts had any jurisdiction to grant injunctive relief against Ministers. In the result, the authority of the English courts to grant such relief was found in s 31 of the Supreme Court Act 1981 UK [201] . In Scotland, there is no such provision, with the consequence that in its courts an interdict cannot now be obtained against a Minister because the Crown Proceedings Act restricted what had been the law in Scotland and no later legislation has restored it [202] .

1. [1994] 1 AC 377. See Wade, Injunctive Relief against the Crown and Ministers, Law Quarterly Review, vol 107 (1991) 4. 2. M v Home Office [1994] 1 AC 377 at 422 3. McDonald v Secretary of State for Scotland [1994] SLT 692See Edwards, Interdict and the Crown in Scotland, Law Quarterly Review, vol 111 (1995) 34.

The fourth class of controversy concerns litigation by which an individual or corporation seeks redress for tortious injury to private or individual rights by government action in administration of a law which the plaintiff asserts was not authorised by the Constitution but upon which the defendant relies for justification of the alleged tortious conduct [203] . To deny such a claim on the footing that, in the absence of enabling legislation, the Crown can do no wrong and cannot be sued in its own court would be to cut across the principle in Marbury v Madison . It would mean that the operation of the Constitution itself was crippled by doctrines devised in other circumstances and for a different system of government.

1. eg, James v Cowan (1932) 47 CLR 386 James v The Commonwealth (1936) 55 CLR 1 McClintock v The Commonwealth (1947) 75 CLR 1 Burton v Honan (1952) 86 CLR 169 Poulton v The Commonwealth (1953) 89 CLR 540

The actual decision in The Commonwealth v New South Wales [204] was that in this Court a State might be sued in tort by the Commonwealth without the consent of that State. But the reasoning in the joint judgment of Isaacs, Rich and Starke JJ supplies authority for the proposition that, in respect of those matters against the Commonwealth and against the States for which provision is made in s 75, the Constitution itself denies any operation of either of the maxims which together stated the immunity doctrine as developed in England [205] . Isaacs, Rich and Starke JJ commenced their discussion of the matter by restating both maxims. Their Honours said [206] :

There is undoubtedly in our common law a principle that the Sovereign cannot be sued in his own Courts. A tort by the Sovereign is impossible at common law; the fault, if any, being attributed to the subject who actually committed or authorised it - the Sovereign being assumed never to authorise a breach of the law. Whilst the Commonwealth was plaintiff in that case, the reasoning equally supported the conclusion that s 75(iii) submitted the Commonwealth to liability [207] . Further as Evatt J later pointed out, [208] , the reasoning extends to s 75(iv) and to an action brought against a State by a resident of another State. 1. (1923) 32 CLR 200. 2. The Commonwealth v New South Wales (1923) 32 CLR 200 at 210-214 3. The Commonwealth v New South Wales (1923) 32 CLR 200 at 211 4. Heimann v The Commonwealth (1935) 54 CLR 126 at 129-130see also Musgrave v The Commonwealth (1937) 57 CLR 514 at 550 South Australia v The Commonwealth (1962) 108 CLR 130 at 148 5. New South Wales v Bardolph (1934) 52 CLR 455 at 459

Some care, and further analysis, is required before accepting the broad proposition that s 75 of the Constitution by its own force imposes liability upon the Commonwealth and the States. In Musgrave v The Commonwealth [209] , Dixon J said that, if it were correct that s 75 was itself the source of delictual responsibility, it would appear to follow that this constitutional liability for tort "could not presumably be impaired or controlled by legislation". For Dixon J, the better view was that the Parliament has "complete authority over all ordinary causes of action against the Commonwealth and over the remedies for enforcing them" [210] . However, his Honour accepted that "difficulties" with that conclusion were presented by s 75(iii) and (iv) regarding the source from which one was to derive the substantive law for determining the duties of governments [211] .

1. (1937) 57 CLR 514 at 546. 2. Werrin v The Commonwealth (1938) 59 CLR 150 at 167 3. Werrin v The Commonwealth (1938) 59 CLR 150 at 167

The Crown immunity doctrine straddled the divide between substance and procedure and, indeed, illustrated the point made by Fullagar J, with reference to the writings of Maine, that the distinction does not represent a logical dichotomy [212] . The judgment of Dixon J in Werrin v The Commonwealth [213] displays awareness of this. Dixon J considered the reasoning in the joint judgment in The Commonwealth v New South Wales [214] in a passage of significance for the present litigation. His Honour said:

It must be remembered that the question to which the material parts of the judgment are directed is the actionable liability of the Crown for tort and this is a subject upon which the distinction between procedure and substantive law has never been steadily maintained, at all events in the manner in which the Crown's immunity has been stated and explained. For one traditional mode of expressing and indeed accounting for the absence of any liability on the part of the Crown for the torts of its servants has been to say that the Crown cannot be sued except by its own consent and no fiat will be granted for a petition of right for tort. Farnell v Bowman [215] is based upon the view that the grant of a general remedy against the Crown makes the torts committed on its behalf actionable. Implicit in this view appears to be the assumption that the Crown's substantive responsibility existed in contemplation of law but had not been the subject of legal remedy. If this mode of reasoning is applied, it is easy to understand how s 75 should be considered enough to expose the State and the Commonwealth to a remedy for tortious liability. It treats the liability as already existing in abstracto as a duty of imperfect obligation and made perfect by the creation of a jurisdiction in which the Crown may be sued without its consent. (Emphasis added.) Dixon J decided that the joint judgment in The Commonwealth v New South Wales probably was not intended as a pronouncement that the liability of the State within federal jurisdiction and of the Commonwealth was imposed directly by the Constitution "so as to be unalterable and indestructible by legislation" [216] . His Honour concluded [217] that the interpretation which he would give to s 75, and which he considered was consistent with the joint judgment of Isaacs, Rich and Starke JJ, did not deny to the Parliament the power to extinguish a cause of action which has accrued against the Commonwealth. Of course, since Georgiadis , it has become clear that a law which extinguishes a non-statutory cause of action which accrued before the commencement of that law may have to provide just terms within the constitutional guarantee provided by s 51(xxxi) of the Constitution. 1. Maxwell v Murphy (1957) 96 CLR 261 at 286 2. (1938) 59 CLR 150. 3. Werrin v The Commonwealth (1938) 59 CLR 150 at 167-168See also Dixon J's remarks in Bank of NSW v The Commonwealth (1948) 76 CLR 1 at 367and those of Murphy J in Johnstone v The Commonwealth (1979) 143 CLR 398 at 405-406 4. (1887) 12 App Cas 643. 5. Werrin (1938) 59 CLR 150 at 167 6. Werrin (1938) 59 CLR 150 at 168

Once the joint judgment in The Commonwealth v New South Wales and the judgment of Dixon J in Werrin are read together, the position, for the purposes of the present litigation, is clarified. As Brennan J put it in Georgiadis [218] , the liability is created by the common law. In respect of that liability, the Constitution applies to deny any operation to what otherwise might be doctrines of Crown or executive immunity which might be pleaded in bar to any action to recover judgment for damages in respect of that common law cause of action. The constitutional denial of the operation of any immunity doctrine in respect of matters in which this Court has original jurisdiction under s 75 of the Constitution is carried forward when, under s 77 of the Constitution, the Parliament makes laws with respect to the matters mentioned in s 75, whether to define the jurisdiction of any other federal court or to invest any court of a State with federal jurisdiction.

That still leaves much scope for the exercise of the powers conferred upon the Parliament by s 51(xxxix) in respect of matters "incidental to the execution of any power vested by [the] Constitution in the Government of the Commonwealth, or in the Federal Judicature", and by s 78 in respect of the conferral of "rights to proceed against the Commonwealth or a State in respect of matters within the limits of the judicial power". A law which confers jurisdiction with respect to matters arising under a law made by the Parliament (s 76(ii)) may give a new substantive right against the Commonwealth or a State (s 78).

Section 56 of the Judiciary Act recognises, rather than provides the origin of, Commonwealth liability [219] . It does so by identifying the forum in which certain (but not all) actions against the Commonwealth may be instituted. It deals solely with contract and tort and is facultative in nature [220] . If sued in contract or tort, the Commonwealth may submit to the jurisdiction of a court which is invested with federal jurisdiction by s 39(2) of the Judiciary Act, even though that court is not a court specified in s 56 [221] . Section 79 prescribes not only the procedural but also the substantive law to be applied in certain exercises of federal jurisdiction.

1. cf Breavington v Godleman (1988) 169 CLR 41 at 152, 169; see also at 101-102. 2. Breavington v Godleman (1988) 169 CLR 41 at 118cf Shaw Savill and Albion Co Ltd v The Commonwealth (1940) 66 CLR 344 at 357-358 Suehle v The Commonwealth (1967) 116 CLR 353 at 355 3. Breavington v Godleman (1988) 169 CLR 41 at 68-69, 105-106, 118, 139-140, 152-153, 169.

We have referred to the provisions in the Judiciary Act with respect to the recovery of money judgments obtained against the Commonwealth or a State. Further, in a garnishee case, New South Wales v The Commonwealth [No 1] [222] , Rich and Dixon JJ said:

[I]f the obligation incurred to the Commonwealth by the States be unconditional, and the Constitution of the State impose no obstacle to the assumption of an obligation which is absolute and independent of parliamentary appropriation, we can see no reason why judgment should not be given according to the nature of the obligation, and why a law should not be made by the Parliament for the enforcement against the State of such a judgment. It is true that ss 65 and 66 of the Judiciary Act 1903 recognise the principle that the liabilities of the Crown in right of the States are subject to parliamentary appropriation of funds. This accords with the general character of the liabilities of the States usually put in suit. But we can see no reason why, if liabilities of an absolute nature are incurred by the States, the Commonwealth Parliament should not make a different provision. Likewise, it will be within the powers of the Parliament to enact statutes of limitation as well as by the indirect means provided by the Judiciary Act to "pick up" the limitation regimes of the States. Section 64 of the Judiciary Act further advances the denial by the Constitution of the immunity doctrine, as it has been identified above. It does so by making a general provision that in any suit to which the Commonwealth or a State is a party, "the rights of parties shall as nearly as possible be the same, and judgment may be given and costs awarded on either side, as in a suit between subject and subject". 1. (1932) 46 CLR 155 at 176-177.

What follows from the above analysis is that no doubt has been thrown by the Commonwealth upon the decision in Georgiadis . The majority judgments are consistent with the proposition that the cause of action in tort was enjoyed by the appellant and was actionable by virtue of the combined operation of the common law and the Constitution [223] . The Commonwealth's submission that the rights of action of the present respondents in contract and tort owed their existence entirely to statute, so that those causes of action were in their nature subject to modification or extinction by further legislation, should be rejected. Even if this were so, there would remain questions as to whether the extinguishment amounted to an acquisition of property. Such questions do not need to be considered in these appeals. Rather, and consistently with Georgiadis , the present respondents, on their pleadings, enjoyed causes of action to which were attached the constitutional guarantee of acquisition only on just terms.

1. Georgiadis (1994) 179 CLR 297 at 306, per Mason CJ, Deane and Gaudron JJ; at 312, per Brennan J.

There is no law of the Commonwealth which prescribes a limitation regime of general operation to civil actions within federal jurisdiction. Nor, s 44 of the Comcare Act apart, was it suggested that there is any particular limitation period under a specific Commonwealth legislative scheme. The effect of s 64 of the Judiciary Act upon proceedings in which the Commonwealth is a party is to render the rights of all parties subject to any statute of limitation which would apply if all parties were private persons [224] . However, s 64 does not itself identify any limitation statute which would be applied for that purpose.

Section 44 of the Comcare Act provides for three situations. First, the common law rights upon which it otherwise operates are untouched if an action or proceeding was instituted before 1 December 1988 (s 44(2)). Secondly, in respect of injury, loss or damage which occurs after that date, no action or other proceeding for damages lies (s 44(1)). The third situation is also dealt with by s 44(1) and, in particular, by the phrase "an action does not lie". It concerns injuries, loss or damage which occurred before 1 December 1988 but in respect of which no action or other proceeding had been instituted before that date. Only this third situation applies to these appeals.

Here, the phrase "an action does not lie" has the particular operation given by Georgiadis . That decision established that s 44 is not to be regarded as operating simply to shorten what otherwise would be any period of limitation applicable to a then current cause of action. Rather, s 44 extinguishes those causes of action to which it refers, being those in existence upon the commencement of s 44 on 1 December 1988 and which had not been sued upon before that date [225] . Submissions by the Commonwealth to the effect that s 44 had some other, and ambulatory, operation should be rejected. Further, Georgiadis establishes that, at least in its application to such a cause of action which was not statute-barred before its commencement, s 44 is invalid on the ground that it effected an acquisition of property other than on just terms.

Once the source of the liability of the Commonwealth in contract and tort is understood and it is appreciated that s 44 purported to extinguish on 1 December 1988 the causes of action to which it refers, the case for the Commonwealth on these appeals cannot succeed. Before 1 December 1988 Messrs Mewett, Rock and Brandon had not ceased to enjoy their common law rights to damages against the Commonwealth for tort and breach of contract. There was no Commonwealth law, and in particular no statute of limitations, which on its face applied directly to those causes of action. They were subsisting and the reasoning in Georgiadis applies to them.

It is settled that State laws cannot, of their own force, bar the causes of action alleged by Messrs Mewett, Rock and Brandon against the Commonwealth [226] . If any such State law is applicable, it can only be because a law of the Commonwealth operates to render it "surrogate Commonwealth law" [227] .

1. John Robertson & Co Ltd v Ferguson Transformers Pty Ltd (1973) 129 CLR 65 at 79, 84, 87, 93. 2. Maguire v Simpson (1977) 139 CLR 362 at 408

For that purpose, the Commonwealth relies upon s 79 of the Judiciary Act. This states:

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.

The law of a State upon which s 79 operates includes its choice of law rules [228] . The Commonwealth submits that s 79 renders applicable the New South Wales Act. In the case of Mewett , the Commonwealth submits that, at least as regards the action in tort, s 79, as a consequence of the operation of the Choice of Law Act, also picks up the Victorian Act. It then submits that those laws, as surrogate Commonwealth laws, barred or extinguished the causes of action against the Commonwealth.

In its terms, s 79 applies "except as otherwise provided by the laws of the Commonwealth". One such law is s 80 of the Judiciary Act. Since its amendment by s 41 of the Law and Justice Legislation Amendment Act 1988 Cth, this refers to the common law in Australia. Section 80 provides:

So far as the laws of the Commonwealth are not applicable or so far as their provisions are insufficient to carry them into effect, or to provide adequate remedies or punishment, the common law in Australia as modified by the Constitution and by the statute law in force in the State or Territory in which the Court in which the jurisdiction is exercised is held shall, so far as it is applicable and not inconsistent with the Constitution and the laws of the Commonwealth, govern all Courts exercising federal jurisdiction in the exercise of their jurisdiction in civil and criminal matters. Accordingly, there is much to be said for the view that regard is to be had to s 80, and to the common law in Australia, before turning to s 79 to ascertain whether a State or Territory law is to be picked up in the case at hand. In particular, that common law may be developed so as to provide choice of law rules applicable in federal jurisdiction. That is the course taken by Gaudron J in her reasons for judgment and leads her Honour to conclude that the Victorian Act alone applies to Mr Mewett's claim in tort and the NSW Act applies to the claims in tort by Messrs Rock and Brandon. We see much to recommend this approach, but it was not the subject of submissions. At least in the present appeals, we prefer to deal with the matter on the footing that it is s 79 which applies.

The Commonwealth puts the case that at the commencement of s 44 of the Comcare Act on 1 December 1988 there was no relevant property then enjoyed by Mr Mewett because on 31 August 1985, six years after he allegedly sustained the injury, his cause of action against the Commonwealth had become statute-barred under both the NSW Act and the Victorian Act. On this argument the Commonwealth concedes that Messrs Rock and Brandon stand in a different position because the six-year period under the NSW Act in respect of their causes of action did not expire until 22 October 1991. It would follow, consistently with the holding in Georgiadis , that s 44 did not operate to extinguish their causes of action. However, the Commonwealth seeks to circumvent this situation by the submissions that (i) since the commencement of s 44, the claims have been extinguished by force of the NSW Act, and (ii) s 44 of the Comcare Act now validly operates to prevent there coming into existence any right or cause of action under the 1990 Act which might facilitate the revival or resurrection of their causes of action upon orders that might be made in their pending applications thereunder. The submissions by the Commonwealth should be rejected.

In the course of considering in its written submissions the respective legal rights of the parties at various stages before and after 1 December 1988, the Commonwealth spoke of rights having become barred or extinguished "by force of" the State legislation. Plainly this was not so. The question is whether that result followed from the operation of the State laws as "picked up" by Commonwealth law. That in turn involves consideration of the nature and effect of the federal surrogacy provision.

Section 79 of the Judiciary Act does not apply the laws in question in all circumstances and for all purposes. Rather, in the present case, s 79 rendered the laws of New South Wales (including its choice of law rules) binding on the Federal Court, on the footing that it was "exercising federal jurisdiction in that State". The exercise of federal jurisdiction by a particular court in a particular matter is the essential condition both of the operation of s 64 and the application of s 79 to "pick up" the limitation laws of a State [229] .

1. cf Crouch v Commissioner for Railways (Q) (1985) 159 CLR 22 at 26 The Commonwealth v Evans Deakin Industries Ltd (1986) 161 CLR 254 at 263, 268-269.

It is unnecessary for the purposes of this appeal to determine whether any relevant distinction turns upon the circumstance that the actions were commenced in the Sydney office of the Registry of this Court and, after remitter under s 44(2A) of the Judiciary Act, were dealt with in the New South Wales District Registry of the Federal Court. However, four points are critical.

The first is that the consequence of the rendition by s 79 of the Judiciary Act of the NSW Act as a surrogate law of the Commonwealth was, in conjunction with s 64 of the Judiciary Act, to afford to the Commonwealth such defences under the NSW Act as apply in litigation between citizens.

Secondly, the adoption of the NSW Act allowed the plaintiffs to utilise the means and procedures for extensions of time as counters to what otherwise would be limitation defences against them.

Thirdly, the Commonwealth could utilise the NSW Act only on its own terms and after the amendments by the 1990 Act. These provide for a regime of extensions of limitation periods as an integral part of the legislative scheme. Section 79 could not operate to pick up some but not all of the otherwise applicable terms of the NSW Act, for to do so would be to give an altered meaning to the State legislation. This would be in the face of the authorities discussed by Gibbs J in Maguire v Simpson [230] . Further, and contrary to what appeared to be submitted for the Commonwealth, from this operation of s 79 there arises no question of inconsistency, in any constitutional sense of that term. The NSW Act is not applied by s 79 to circumstances to which its direct application would be invalidated by reason of inconsistency with an existing law of the Commonwealth [231] . Again, this is not a case where some other federal law applies so that partial relevant provision is "otherwise provided" within the terms of s 79.

1. (1977) 139 CLR 362 at 376. 2. cf Dao v Australian Postal Commission (1987) 162 CLR 317 at 331-332 Deputy Commissioner of Taxation v Moorebank Pty Ltd (1988) 165 CLR 55 at 63-64

The fourth point looks to the situation when s 44 of the Comcare Act commenced on 1 December 1988. In its operation upon the State limitation legislation, s 79 had not then been engaged. There was at that stage no applicable law of the Commonwealth with respect to limitation of actions. It is erroneous to assert that Mr Mewett's action had already been barred or extinguished by State legislation and from this to argue that s 44 was valid in its operation because there remained no "property" of Mr Mewett to which the constitutional guarantee applied when s 44 came into operation.

No State law can now be identified as having barred Mr Mewett's cause of action in or before 1988. The application of any one of a number of State and Territory laws awaited the enlivening of the judicial power of the Commonwealth by the institution of an action in this Court or in another of the courts invested by the Parliament with the necessary federal jurisdiction. The differential operation of s 79 of the Judiciary Act, in combination with s 64, upon State law meant that it could not be known before commencement of an action what the rights of the parties would be after that commencement [232] . Indeed, on one view, this knowledge may have awaited not the commencement of the action in this Court on 20 June 1994 but the subsequent filing of the defence in the Federal Court by which the Commonwealth set up the NSW Act in bar of the action against it. In the event, nothing turns for the outcome of the Mewett appeal in this Court upon the apparent picking up of the Victorian Act, consistently with Musgrave v The Commonwealth [233] , as well as the NSW Act.

1. cf The Commonwealth v Evans Deakin Industries Ltd (1986) 161 CLR 254 at 266 2. (1937) 57 CLR 514.

With respect to the actions by Messrs Rock and Brandon, the sequence of events is such that on no basis might it be held that before 1 December 1988 they had been barred or extinguished by statute. On the footing that they then had the presently subsisting causes of action against the Commonwealth in contract and tort, s 44 was ineffective to extinguish them. Does any different conclusion follow from the circumstance that, at some time thereafter, namely on 22 October 1991, their actions would have become barred or extinguished if the situation had been governed solely by a State limitation law? It does not.

Georgiadis is authority for the proposition that, in respect of then subsisting causes of action where a suit had not been instituted, and in its terms, s 44 "operated once and for all as a final measure terminating those causes of action" [234] and "extinguished" those causes of action [235] . The result was to attract the constitutional guarantee.

1. Georgiadis (1994) 179 CLR 297 at 307 2. Georgiadis (1994) 179 CLR 297 at 310

As we have indicated, the Commonwealth sought to avoid this conclusion. It did so by directing attention to the provisions in ss 60G, 60I and Sch 5 of the NSW Act for extension of certain limitation periods. These additions to the NSW Act were first made by the 1990 Act, which commenced on 1 September 1990. At that stage, on the present hypothesis, the actions of Messrs Rock and Brandon were not barred or extinguished by the NSW Act. That did not occur until 22 October 1991. However, the Commonwealth submits that s 44 of the Comcare Act so operated as to extinguish any right or entitlement of Messrs Rock and Brandon to obtain thereafter any extension of the limitation period. The result is said to be that their applications under the 1990 Act which are presently pending before the Federal Court are incompetent for want of subject matter.

To that submission there are several answers. First, ss 60G, 60I and Sch 5 were picked up as provisions of a surrogate Commonwealth law only when they became binding upon a court which was exercising federal jurisdiction in New South Wales. They had no such operation when s 44 of the Comcare Act came into force on 1 December 1988. Indeed, they were not then part of New South Wales law. Secondly, an application for an order that the limitation period for a cause of action be extended does not answer the description in s 44(1) itself as "an action or other proceeding for damages against the Commonwealth". Such an order is not made as of right nor does it produce a judgment debt. In the Full Court, Cooper J said [236] :

The right to apply for the favourable exercise of the discretion is not a right of the character to which s 44(1) of the Comcare Act applies; it is not in itself "an action or other proceeding for damages" against the Commonwealth. We agree. 1. Mewett (1995) 59 FCR 391 at 403

The result is that Foster J and the Full Court were correct in their view that the strike-out applications by the Commonwealth should be dismissed. The pending applications for extension of time should now proceed for disposition by the Federal Court.

Section 44 of the Comcare Act spoke on 1 December 1988 and purported to extinguish what on the pleadings by Messrs Mewett, Rock and Brandon were then subsisting causes of action against the Commonwealth for damages in contract and tort. Section 44 was relevantly invalid. It follows that the Full Court correctly answered the question reserved to it by Foster J and that the appeals against the relevant orders also should be dismissed.

The Commonwealth should pay the costs of the respondents in this Court.