15 Her Honour then dealt with arguments that the provisions of s 108B were no more than procedural and that there was no relevant right accrued to the applicant. Her Honour dealt with those arguments in the following paragraphs as follows:
41. The respondents also argued that s30(1)(c) of the Interpretation Act had the effect that s108B operated retrospectively. Again, I disagree. Peterson J followed the approach of the High Court in Maxwell v Murphy (1956) 96 CLR 261. As Williams J discussed in the context of the common law position at pp277-8:
Statutes of limitation are often classed as procedural statutes. But it would be unwise to attribute a prima facie retrospective effect to all statutes of limitation. Two classes of case can be considered. An existing statute of limitation may be altered by enlarging or abridging the time within which proceedings may be instituted. If the time is enlarged whilst a person is still within time under the existing law to institute a cause of action the statute might well be classed as procedural. Similarly if the time is abridged whilst such person is still left with time within which to institute a cause of action, the abridgment might again be classed as procedural. But if the time is enlarged when a person is out of time to institute a cause of action so as to enable the action to be brought within the new time or is abridged so as to deprive him of time within which to institute it whilst he still has time to do so, very different considerations could arise. A cause of action which can be enforced is a very different thing to a cause of action the remedy for which is barred by lapse of time. Statutes which enable a person to enforce a cause of action which was then barred or provide a bar to an existing cause of action by abridging the time for its institution could hardly be described as merely procedural. They would affect substantive rights.
42. At p 267, Dixon CJ also discussed the distinction between rights and procedures, observing that the distinction 'is clear enough in principle and its foundation in justice is apparent. But difficulties have always attended its application. In some cases they have been due to the discovery in the nature or context of the legislation or in its subject matter of indications, whether faint and conjectural or strong and persuasive, of a desire to cover situations already existing. In other cases the difficulty has been traceable to the inveterate tendency of English law to regard some matters as evidentiary or procedural which in reality must operate to impair or destroy rights in substance. Again, enactments in truth conferring or denying rights are not seldom expressed in terms of remedy.
43 The views expressed by Williams J were discussed in Yrttiaho v The Public Curator of Queensland (1971) 125 CLR 228. Gibbs J observed at p241 that Dixon CJ recognised a similar distinction in Chang Jeeng v Nuffield (Australia) Pty Ltd (1959) 101 CLR 629 at pp636 and 638.
44 The common law must now be considered in the context of s30 of the Interpretation Act earlier quoted. In Yrttiaho, Gibbs J in dealing with the provision of the Act's Interpretation Acts 1954 to 1962(Q), said at p244 'I do not, of course, deny that the expression "right" standing alone, would include a right belonging to the area of procedure', but went on to construe s20(1)(c) of that Act as being concerned with substantive rights, rather than procedural rights. A similar question of construction arises in relation to s30(1)(c) of the Interpretation Act, which I find it unnecessary here to decide, for reasons which I will explain.
45 In Fisher v Madden (2002) 114 IR 119, the Court of Appeal discussed the operation of s106 of the Act, in the context of the operation of the Corporations Law. Meagher JA observed at [12] that 'Section 106 does not of itself confer any rights or obligations on anyone. Not only does she' (referring to the applicant in the proceedings) 'not have a right to a quantifiable order, she does not have a right to an order at all. She has the right to apply for an order, nothing more.' At [13], his Honour went on to say that the section granted 'the bare right to make a claim, nobody knowing whether it will succeed or not, or if so in what amount, or subject to what terms or condition.'
46 The respondents relied upon these observations, to urge the conclusion that the new limitation period was procedural in nature and did not affect substantive rights, so that the presumption against retrospective operation of the legislation would not arise. I do not agree at all with those submissions.
47 Reference to the decision of Sheller JA, in Madden, with whom Beazley JA agreed, explains why. His Honour referred to Majik Markets Pty Ltd v Brake and Service Centre Drummoyne Pty Ltd (1991) 28 NSWLR 443, where Mahoney JA described s88F of the Industrial Arbitration Act 1940, a predecessor to s106 of the Act, as conferring no rights or obligations, but rather, conferring particular jurisdiction on the then Industrial Commission. Handley JA there referred at p246 to the decision of the High Court in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 at p155 and pp165-6, in relation to legislation such as s88F, which confers jurisdiction on a Court to grant particular relief, as creating rights. Sheller JA concluded at [45]:
Section 88F therefore creates substantive rights and since proceedings under the section comprise a suit or action (see Minister for Youth and Community Services v Health and Research Employees' Association of Australia, NSW Branch (1987) 10 NSWLR 543 at 560) there is every reason for concluding that it gives rise to rights of action.
48 It follows that the right, so described, granted by s106 of the Act, is plainly a right of action whereby this Court may declare void or vary an unfair contract, as defined, and make money orders in connection with such a contract, just in the circumstances of the case. The right is not one to enforce existing rights or obligations, but to have new rights created. It is a right granted by the section, which also provides the only remedy by which that right can be enforced. It follows that s108B, introducing a new limitation upon the exercise of the right, cannot be regarded as merely procedural, so as to have retrospective effect. To so approach the section would have the effect of depriving parties of existing rights of action. The section may not properly be so construed.