Hamilton v Merck and Co Inc; Hutchinson v Merck Sharp and Dohme

DECISION: 1. Question 1 answered no.; 2. Question 2 does not arise.; 3. The defendants to pay the plaintiffs' costs of the stated cases and two-thirds of the costs of the hearing in this Court.; 4. Order on the notice of motion of 9 September 2005 in matter No 40575 of 2005 in this Court that the plaintiff have leave to file and serve an amended statement of claim incorporating the original statement of claim and in the alternative the proposed amended statement of claim annexed to the notice of motion.; 5. Such amendment is to take effect on and from 9 September 2005.; 6. The plaintiff is to file and serve the amended statement of claim within 28 days.; 7. The costs of the motion and the costs occasioned by the amendment and one-sixth of the costs of the hearing in this Court to abide the order of the trial Judge.; 8. Order on the notice of motion of 9 September 2005 in matter No 40576 of 2005 in this Court that the plaintiff have leave to file and serve an amended statement of claim incorporating the original statement of claim and in the alternative the proposed amended statement of claim annexed to the notice of motion.; 9. Such amendment is to take effect on and from 9 September 2005.; 10. The plaintiff is to file and serve the amended statement of claim within 28 days.; 11. The costs of the motion and the costs occasioned by the amendment and one-sixth of the costs of the hearing in this Court to abide the order of the trial Judge.; 12. Both actions remitted to the Common Law Division.

CATCHWORDS: FEDERAL JURISDICTION - tort committed in Queensland - action in New South Wales - whether provisions of Queensland Act procedural or substantive - PRIVATE INTERNATIONAL LAW - tort committed in Queensland - action in New South Wales - whether provisions of Queensland Act procedural or substantive - PRIVATE INTERNATIONAL LAW - distinction between substance and procedure - determined by law of forum - provisions which do not prevent cause of action accruing and time running procedural - D

Judiciary Act 1903 (Cth) LEGISLATION CITED: Personal Injuries Proceedings Act 2002 (Qld) Supreme Court Rules 1970 Trade Practices Act 1974

Austral Pacific Group Ltd (in liq) v Airservices Australia (2000) 203 CLR 136 Aydar v Pashen [2003] 1 Qd R 601 Baldry v Jackson [1976] 2 NSWLR 415 Board of Trade v Cayzer, Irvine & Co Ltd [1927] AC 610 Bonser v Melnacis [2002] 1 Qd R 1 Cameron v National Mutual Life Association of Australasia [No 2] [1992] 1 Qd R 133 Chisholm v Pasminco Metals - BHAS Pty Limited (Unreported, New South Wales Court of Appeal, Kirby ACJ, Sheller and Powell JJA, 24 July 1995) Coburn v Colledge [1897] 1 QB 702 Dandashli v Dandashli (Unreported, New South Wales Court of Appeal, Handley JA and Cohen AJA, 16 December 1996) Deputy Commissioner of Taxation v Moorebank Pty Ltd (1988) 165 CLR 56 Distillers Co (Biochemicals) Ltd v Thompson [1971] AC 458 Felton v Mulligan (1971) 124 CLR 367 Fostif Pty Ltd v Campbells Cash & Carry Pty Ltd (2005) 63 NSWLR 203 Francis v Emijay Pty Ltd [2006] QCA 62 Gordon v Berowra Holdings Pty Ltd (2005) 62 NSWLR 427 Guaranty Trust Co of New York v York, 326 US 99 (1945) Haley v Roma Town Council [2005] QCA 3; 1 Qd R 478 Harding v Lithgow Municipal Council (1937) 57 CLR 186 Holmes v Adnought Sheet Metal Fabrications Pty Ltd [2004] 1 Qd R 378 Horinack v Sun Corp Metway Insurance Ltd [2001] 2 Qd R 266 James Hardie & Co Pty Ltd v Hall (1998) 43 NSWLR 554 John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 CASES CITED: John Robertson & Co Ltd v Ferguson Transformers Pty Ltd (1973) 129 CLR 65 Johnson v Hill [2002] 2 Qd R 486 Kinzett v McCourt (1999) 46 NSWLR 32 Martin v Kelly (1995) 22 MVR 115 Maxwell v Murphy (1957) 96 CLR 261 McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 Middleton v O'Neill (1943) 43 SR (NSW) 178 Nalpantidis v Stark (1996) 65 SASR 454 Nicholls v Brisbane Slipways & Engineering Pty Ltd [2003] QSC 193 Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 PCS Operations Pty Ltd v Maritime Union of Australia (1998) 72 ALJR 863 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Rahim v Crawther (1996) 25 MVR 190 Roberts v ANZ Banking Group [2005] QCA 470 Scott v Avery (1856) 5 HLC 811; 10 ER 1121 Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261 Stevens v Head (1993) 176 CLR 433 Sweedman v Transport Accident Commission [2006] HCA 8 Thompson v Hill (1995) 38 NSWLR 714 United Australia Ltd v Barclays Bank Ltd [1941] AC 1 Wilson v Nattrass (1995) 21 MVR 41 Young v Keong [1999] 2 Qd R 335 Zanatta v Netpro Employees Pty Ltd [2004] QSC 131

Matter 40575/05 Mark Hamilton (Appellant) Merck and Co Inc (Respondent) PARTIES: Matter 40576/05 Luke Hutchinson (Appellant) Merck Sharp and Dohme (Australia) Pty Ltd (Respondent)

COUNSEL: P Semmler QC/D Graham/R Steele (Appellants) P Garling SC/C Loveday (Respondents)

SOLICITORS: Shine Roche McGowan (Appellants) Clayton Utz (Respondents)

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S): SC 20174/05; SC 20431/04

LOWER COURT JUDICIAL OFFICER: Malpass AsJ - 27 June 2005

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40575/05 CA 40576/05

SPIGELMAN CJ HANDLEY JA TOBIAS JA

30 MARCH 2006 MARK HAMILTON v MERCK AND CO INC LUKE HUTCHINSON v MERCK SHARP AND DOHME (AUSTRALIA) PTY LTD CATCHWORDS

FEDERAL JURISDICTION - tort committed in Queensland - action in New South Wales - whether provisions of Queensland Act procedural or substantive

PRIVATE INTERNATIONAL LAW - tort committed in Queensland - action in New South Wales - whether provisions of Queensland Act procedural or substantive

PRIVATE INTERNATIONAL LAW - distinction between substance and procedure - determined by law of forum - provisions which do not prevent cause of action accruing and time running procedural FACTS

The plaintiffs purported to commence representative proceedings under then SCR Pt 8 r 13 (now UCPR Pt 7 r 7.4) on 2 December 2004 and 31 May 2005 respectively on behalf of persons in New South Wales and Queensland allegedly injured through the ingestion of Vioxx, a non-steroidal anti-inflammatory drug, imported and formulated by the defendant in the first action, and manufactured in the United States by the defendant in the second.

The statements of claim pleaded causes of action in negligence and for breaches of ss 74D and 75AD of the Trade Practices Act. The plaintiffs purported to bring the proceedings on behalf of themselves and others, including those identified in Schedules to the statements of claim, many of whom were residents of Queensland, who had ingested the drug and allegedly suffered injuries in that State.

The Queensland claimants had not complied with the notice before action and compulsory conference provisions of the Personal Injuries Proceedings Act 2002 (Qld) before being nominated as representative parties in the proceedings. The defendants contended that these provisions were substantive and because they had not been complied with the claims of the Queensland claimants were not enforceable in New South Wales. On 27 June an Associate Judge ordered, pursuant to SCR Pt 12 r 12, that questions concerning the affect of the Queensland Act be determined separately and that the proceedings be removed to the Court of Appeal. HELD: (1) The claims under the Trade Practices Act arose under Federal law and since the claim in negligence at common law rested upon the same substratum of fact there was a single inseverable matter, and the jurisdiction was wholly Federal; (2) The governing law for any torts committed in Queensland against the Queensland claimants represented in these proceedings was the law of Queensland; (3) The procedure in these proceedings was governed by the law of New South Wales as the law of the forum; (4) The characterisation of the notice before action and compulsory conference provisions of the Queensland Act as substantive or procedural had to be determined by the Court in accordance with ss 79 and 80 of the Judiciary Act and was not foreclosed by s 7 of the Queensland Act which provided that such provisions were substantive; (5) The notice before action and compulsory conference provisions did not prevent the accrual of complete causes of action and time running under the Limitation Act and they were therefore procedural and not substantive; (6) Accordingly the questions referred should be answered in favour of the plaintiffs.

1. Question 1 answered no.
2. Question 2 does not arise.
3. The defendants to pay the plaintiffs' costs of the stated cases and two-thirds of the costs of the hearing in this Court.
4. Order on the notice of motion of 9 September 2005 in matter No 40575 of 2005 in this Court that the plaintiff have leave to file and serve an amended statement of claim incorporating the original statement of claim and in the alternative the proposed amended statement of claim annexed to the notice of motion.
5. Such amendment is to take effect on and from 9 September 2005.
6. The plaintiff is to file and serve the amended statement of claim within 28 days.
7. The costs of the motion and the costs occasioned by the amendment and one-sixth of the costs of the hearing in this Court to abide the order of the trial Judge.
8. Order on the notice of motion of 9 September 2005 in matter No 40576 of 2005 in this Court that the plaintiff have leave to file and serve an amended statement of claim incorporating the original statement of claim and in the alternative the proposed amended statement of claim annexed to the notice of motion.
9. Such amendment is to take effect on and from 9 September 2005.
10. The plaintiff is to file and serve the amended statement of claim within 28 days.
11. The costs of the motion and the costs occasioned by the amendment and one-sixth of the costs of the hearing in this Court to abide the order of the trial Judge.
12. Both actions remitted to the Common Law Division.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40575/05 CA 40576/05

SPIGELMAN CJ HANDLEY JA TOBIAS JA

30 MARCH 2006 MARK HAMILTON v MERCK AND CO INC LUKE HUTCHINSON v MERCK SHARP AND DOHME (AUSTRALIA) PTY LTD Judgment 1 SPIGELMAN CJ: The background to these proceedings and the issues that arise are set out in the judgment of Handley JA, which I have read in draft.

Question 1 2 In the questions posed for this Court, Associate Justice Malpass refers to "the PIPA Provisions", being a reference to Divs 1, 2 and 4 of Pt 1 of Ch 2 of the Personal Injuries Proceedings Act 2002 (Qld). The first question is: "In a claim commenced in the New South Wales Supreme Court seeking remedies in negligence and under the Trade Practices Act 1974 (Cth) for which the lex loci delicti is the law of Queensland do the PIPA Provisions form part of the law which must be applied by the New South Wales Court?" 3 The issue turns on whether or not the PIPA Provisions identified are substantive or procedural, in accordance with that distinction in the choice of laws rules of Australian common law. 4 It has not been suggested that the PIPA Act impinges in any relevant way upon the Trade Practices Act causes of action. Accordingly, the reference in question 1 to the Trade Practices Act should be separated from the balance of the question in any answer this Court may give. There has been no contention in this Court that, with respect to the hearing of the Trade Practices Act claim, the PIPA Provisions are of any materiality at all. 5 The terminology "lex loci delicti" is entirely inappropriate to a cause of action under the Trade Practices Act. The jurisdiction of this Court in the exercise of federal jurisdiction is Australia-wide and national in nature. (See John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at [53]; Sweedman v Transport Accident Commission [2006] HCA 8 at [33].) No issue of choice of law arises and the question of whether or not the PIPA Provisions are substantive or procedural is irrelevant. 6 As Handley JA notes, by reason of the inclusion of the Trade Practices Act claim, this Court is exercising federal jurisdiction. As the High Court said in John Pfeiffer at [53], in such circumstances the issue is not one of choice of law but one of the identification of the applicable law in accordance with s79 and s80 of the Judiciary Act 1903 (Cth). 7 Most recently in Sweedman supra at [33], the High Court explained the approach as follows: "[33] … [Federal Jurisdiction] is national in nature. In those circumstances, there was presented no direct choice between laws of competing States. Rather, federal law controlled and required the ascertainment under the Judiciary Act of the applicable law. Section 80 of the Judiciary Act was engaged. Federal jurisdiction was to be exercised by the County Court in respect of a matter, being the controversy as to the enforcement of an obligation the governing law of which under the common law choice of law rules was that of Victoria. The County Court was exercising jurisdiction in Victoria. No Victorian statute was identified as modifying that common law choice of law rule. There was no applicable provision in a law of the Commonwealth. The upshot was that s 80 required the County Court to apply that common law choice of law rule in determining the law to govern the action." 8 The common law choice of law rule, relevant to the action in negligence in this case, is as stated in the joint judgment in John Pfeiffer supra. The substantive law of the lex loci delicti must be applied. The answer to Question 1 turns on whether the PIPA Provisions are substantive or procedural. In that regard the High Court said in John Pfeiffer: "[99] … [M]atters that affect the existence, extent or enforceability of the rights or duties of the parties to an action are matters that, on their face, appear to be concerned with issues of substance, not with issues of procedure. Or to adopt the formulation put forward by Mason CJ in McKain (1991) 174 CLR 1 at 26-27, 'rules which are directed to governing or regulating the mode or conduct or court proceedings' are procedural and all other provisions or rules are to be classified as substantive ( Stevens v Head (1993) 176 CLR 433 at 445 per Mason CJ)." 9 The passage from the judgment of Mason CJ in McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1, as explained by his Honour in Stevens v Head (1993) 176 CLR 433 at 445, which was adopted by the joint judgment in John Pfeiffer, also adopted other terminology by way of 'description' rather than of 'definition' of the criterion to determine what was substantive and what was procedural. His Honour referred to the "mechanism or machinery of litigation". 10 The joint judgment in John Pfeiffer went on, in par [100], to give a pertinent example of matters which should be regarded as substantive. The Court indicated that the application of a limitation period should be taken to be a question of substance and that is so for both of the two kinds of limitation provisions which had hitherto been considered in the case law, i.e. whether barring the remedy or extinguishing the right. (See John Pfeiffer at [97]-[98].) As the joint judgment put it at [98] "all limitation provisions can affect whether a plaintiff recovers". 11 John Pfeiffer makes it clear that the determination of whether or not a statutory provision constitutes a matter of substance is itself a matter of substance and not of form. It is pertinent to bear in mind the long history of the common law in which, as Sir Henry Maine famously said, substantive law was secreted in the interstices of procedure. (Dissertations on Early Law and Custom (1883) at 389.) 12 The issue to be determined is whether each of the PIPA Provisions satisfies the common law test for a substantive rule, most relevantly, does it affect the "enforceability of rights or duties". 13 Where, as here, the Court must determine the matter on the basis that it is exercising federal jurisdiction then, as the extract from [35] of Sweedman quoted above makes clear, the identification of the relevant applicable law must proceed in accordance with s80 of the Judiciary Act, which relevantly provides: "80 … 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 … govern all courts exercising federal jurisdiction in the exercise of their jurisdiction in civil … matters." 14 Accordingly, by force of s80, this Court, exercising its jurisdiction in New South Wales, is obliged to apply the common law, but only as modified, relevantly, by the statute law of New South Wales. A Queensland act is not "statute law in force in" New South Wales. There is no modification of the choice of law rule that this Court must apply the substantive law of the lex loci delicti. Nor is there any Commonwealth statute which modifies s79 of the Judiciary Act requiring this Court to apply the procedural law of this State and, implicitly, requiring it not to apply the procedural law of another State. 15 Handley JA concludes that the PIPA Provisions are procedural. I wish to express my own reasons on this issue. This is an issue of statutory interpretation which requires consideration of the legislative regime.

The Statutory Regime 16 The relevant provisions of PIPA in the questions posed for this Court are found in Divisions 1, 2 and 4 of Pt 1 of Ch 2. Chapter 2 is concerned with a subject of "Claims". Part 1 is concerned with "Pre-court procedures". 17 Division 1 is headed "Claims procedures". The critical operative provision is s9 which makes provision for notice of a claim, specifically: "9(1) Before starting a proceeding in a court based on a claim, a claimant must give written notice of the claim, in the approved form, to the person against whom the proceeding is proposed to be started." 18 Division 2 is concerned with "Obligations of the parties". Section 21 identifies the purpose of Div 2 as follows: "21 The purpose of this division is to put the parties in a position where they have enough information to assess liability and quantum in relation to a claim." 19 The principal obligations are introduced by identical words: "22(1) A claimant must give a respondent - …" "27(1) A respondent must give a claimant - …" 20 Thereafter the sections impose obligations to provide particular documents and information. 21 Division 4 is on the subject of "Compulsory conferences". The primary obligation is established by s36(1): "36(1) Before starting a proceeding in a court based on a claim, there must be a conference of the parties." 22 The legislative scheme has been comprehensively set out in narrative form by McMurdo P in Haley v Roma Town Council [2005] QCA 3; 1 Qd R 478 at [9]-[22]. 23 Part 2 of Ch 2 of PIPA sets out the objects of the Act as follows: "4(1) The main purpose of this Act is to assist the ongoing affordability of insurance through appropriate and sustainable awards of damages for personal injury. (2) The main purpose is to be achieved generally by - (a) providing a procedure for the speedy resolution of claims for damages for personal injury to which this Act applies; and (b) promoting settlement of claims at an early state wherever possible; and (c) ensuring that a person may not start a proceeding in a court based on a claim without being fully prepared for resolution of the claim by settlement or trial; and (d) putting reasonable limits on awards of damages based on claims; and (e) minimising the costs of claims; and (f) regulating inappropriate advertising and touting." 24 The three Divisions of the Act referred to in Question 1 can readily be seen to fall within s4(2)(a), (b), (c) and, possibly, (e). However, these paragraphs are expressed to be instrumental in character, being means to achieve the "main purpose" identified in s4(1), namely, enhancing the affordability of insurance. The reference in s4(1) to "awards of damages" encompasses the whole of the process which culminates in such an award. 25 With respect to the Div 1 requirement of Notice of a claim, periods within which the obligation must be carried out are identified in s9(3). Provision is then made for the handling of the Notice within certain prescribed periods, including the joinder of other persons as contributors. 26 An obligation is imposed upon a respondent to attempt to resolve a claim: "20(1) Within the period prescribed under a regulation or, if no period is prescribed, within 6 months after a respondent received a complying part 1 notice of claim, the respondent must - (a) take reasonable steps to inform himself, herself or itself about the incident alleged to have given rise to the personal injury to which the claim relates; and (b) give the claimant written notice stating - (i) whether liability is admitted or denied; and

(ii) if contributory negligence is claimed, the degree of the contributory negligence expressed as a percentage; and (c) if the claimant made an offer of settlement in part 2 of the notice of a claim, inform the claimant whether the respondent accepts or rejects the offer, or if the claimant did not make an offer of settlement in part 2 of the notice, invite the claimant to make a written offer of settlement; and (d) make a fair and reasonable estimate of the damages to which the claimant would be entitled in a proceeding against the respondent; and (e) make a written offer, or counteroffer, of settlement to the claimant setting out in detail the basis on which the offer is made, or settle the claim by accepting an offer made by the claimant. …"

Further provision is made for offers and counteroffers. 27 Of particular significance for present purposes is the effect of a failure to give a part 1 notice, for which s18 provides: "18(1) A claimant's failure to give a complying part 1 notice of claim prevents the claimant from proceeding further with the claim unless - (a) the respondent to whom part 1 of a notice of a claim was purportedly given - (i) has stated that the respondent is satisfied part 1 of the notice has been given as required or the claimant has taken reasonable action to remedy the non-compliance; or (ii) is conclusively presumed to be satisfied it is a complying part 1 notice of claim under section 13; or (b) the respondent has waived compliance with the requirement; or (c) the court, on application by the claimant - (i) declares that the claimant has remedied the non-compliance; or (ii) authorises the claimant to proceed further with the claim despite the noncompliance. (2) An order of the court under subsection (1)(c) may be made on conditions the court considers necessary or appropriate to minimise prejudice to a respondent from the claimant's failure to comply with the requirement." 28 Section 13 provides: "13 If a claimant gives part 1 of a notice of a claim under this division or purportedly under this division to a person against whom a proceeding is proposed to be started, and the person does not respond to it under section 10 or 12 within the prescribed period under the section, the person is conclusively presumed to be satisfied it is a complying part 1 notice of claim." 29 Furthermore, s35 provides: "35(1) If a party fails to comply with a duty imposed under division 1 or 2, the court may, on the application of another party to whom the duty is owed, order the first party to take specified action to remedy the default within a time specified by the court. (2) The court may make consequential or ancillary orders, including orders as to costs." 30 In the case of Div 1, s48 makes further provision for the effects of non-compliance as follows: "48(1) If a claimant does not comply with the requirements of part 1, division 1, a court in which the claimant starts a proceeding based on the claim - (a) may, on a respondent's application in the proceeding, award in the respondent's favour costs (including legal and investigation costs) reasonably incurred by the respondent because of the claimant's default; and (b) may only award interest in the claimant's favour for a period for which the claimant was in default if the court is satisfied there is a reasonable excuse for the default. (2) If a respondent does not comply with the requirements of part 1, division 1, a court in which the respondent defends a proceeding based on the claim may, on a claimant's application in the proceeding, award in the claimant's favour costs (including legal and investigation costs) reasonably incurred by the claimant because of the respondent's default." 31 Further relevant provision is made in s59: "59(1) If a complying part 1 notice of claim is given before the end of the period of limitation applying to the claim, the claimant may start a proceeding in a court based on the claim even though the period of limitation has ended. (2) However, the proceeding may be started after the end of the period of limitation only if it is started within - (a) 6 months after the complying part 1 notice is given or leave to start the proceeding is granted; or (b) a longer period allowed by the court. (3) Also, if a proceeding is started under subsection (2) without the claimant having complied with part 1, the proceeding is stayed until the claimant complies with the part or the proceeding otherwise ends. (4) If a period of limitation is extended under the Limitation of Actions Act 1974 , part 3, this section applies to the period of limitation as extended under that part." 32 Sections 48 and 59, which are found in Part 3 of the Act entitled "Proceedings in court", turn in part on definitions which are contained in the Dictionary of the Act: " claim means a claim, however described, for damages based on a liability for personal injury, whether the liability is based in tort or contract or in or on another form of action including breach of statutory duty and, for a fatal injury, includes a claim for the deceased's dependants or estate. Claimant means a person by whom, or on whose behalf, a claim is made. … Complying part 1 notice of claim means part 1 of a notice of a claim complying with section 9 and, if a respondent is added under section 14, section 14 that is given as required under chapter 2, part 1, division 1." 33 In the case of Div 2, with respect to supply of information, the enforcement provisions are found in s31 and s32: "31 A respondent must not withhold information or documentary material from disclosure under division 1 or this division unless the withholding is permitted under the division or the court approves the withholding. 32(1) This section applies if a party fails to comply with a provision of division 1 or this division requiring the party to disclose a document to another party. (2) The document can not be used by the party in a subsequent court proceeding based on the claim, or the deciding of the claim, unless the court orders otherwise. (3) If the document comes to the other party's knowledge, the document may be used by the other party." 34 I have set out s36(1) above. It is also pertinent to note subsections (4), (5) and (6): "(4) The parties may, for good reason, dispense with the compulsory conference or the signing of a certificate of readiness under section 37(1)(d) by agreement. (5) The court may, on application by a party - (a) fix the time and place for the compulsory conference; or (b) dispense with the compulsory conference for good reason; or (c) dispense with the requirement to sign a certificate of readiness under section 37(1)(d) in cases of complexity including, for example, a case involving multiple respondents, non-party discovery and the need for further expert evidence; and make any other orders the court considers appropriate in the circumstances. (6) In considering whether to make any order under subsection (5), the court must take into account - (a) the extent of compliance by the parties with their respective obligations relating to the claim; and (b) how the main purpose of this Act is to be achieved having regard, in particular, to section 4(2)(a) to (e)." 35 With respect to Div 4 - the requirement for compulsory conferences - the Act makes detailed provision for the making of offers to settle at such a conference.

Substantive or Procedural? 36 It is convenient first to deal with that part of Question 1 which refers to Div 2. There is no reasonable argument for the proposition that this division, whether on a stand-alone basis or in its context, could be considered to be substantive. The division is concerned exclusively with the provision of information. The only sanction for a failure to comply with the division is found in s32, which prevents a party using a document that has not been disclosed without an order of the court. This is plainly procedural and could not be regarded as relating to the "enforceability" of the tort. 37 With respect to Divs 1 and 4 concerned, respectively, with notice of claim and compulsory conference, each of the operative provisions, s9 and s36, commences with the formulation: "Before starting a proceeding in a court based on a claim …", a claimant must give, respectively, written notice or there must be a conference of the parties. 38 Both Divs 1 and 4, in s9 and s59 on the one hand and s36 and s42 on the other, specify periods within which certain steps must be taken in order to comply with the legislative regime. 39 A prohibition upon the institution of proceedings is capable of satisfying the test for a substantive law expressed in terms of "enforceability", as set out in John Pfeiffer. It could be said that denying the plaintiff the right to institute proceedings at all is, as a matter of substance, similar in its effect to a statute of limitation provision which denies the remedy. 40 Accordingly, it is arguable that the PIPA Provisions in Divs 1 and 4 deny "enforceability", in the same way that the traditional form of limitation act provisions were found to do in John Pfeiffer. 41 As noted above, s18 states that a claimant who has not given a Part 1 notice may not proceed further with the claim unless one of the paragraphs of s18 have been made out. There is no equivalent provision with respect to Div 4. For this reason, the case for Div 1 is stronger than for Div 4. I do not find it necessary to separately consider Div 4 in detail below. 42 It is convenient to first deal with the Defendants' reliance on s7 of PIPA, which provides: "7(1) … The provisions of Chapter 2, Part 1, Divisions 1, 1A, 2 and 4, are provisions of substantive, as opposed to procedural, law." 43 This section cannot conclusively determine for this Court the issue of whether or not the PIPA Provisions are part of the substantive law of the lex loci delicti of the tort alleged in the Statement of Claim in these proceedings. Provisions of this kind have been described as "self-characterising legislative provisions". (See Tilbury, Davis & Opeskin Conflict of Laws in Australia Oxford Uni Press Melbourne 2002 at 345.) It does appear that such sections were intended, at least in part, to achieve the result that a tort committed in the State of enactment would be subject to the same requirements, even if proceedings were initiated in an interstate court. 44 The Parliament of Queensland can, of course, modify the common law for purposes of the rules to be applied by the courts of that State. However, the Parliament of Queensland cannot vary the common law choice of the law rule that is to be applied by the courts of this State. For the reasons set out in pars [12]-[13] above, this conclusion is inescapable where s80 of the Judiciary Act applies. 45 Self-characterising provisions have not proven to be effective. (See Chisholm v Pasminco Metals - BHAS Pty Limited (Unreported, New South Wales Court of Appeal, Kirby ACJ, Sheller and Powell JJA, 24 July 1995) esp at 5-6; Thompson v Hill (1995) 38 NSWLR 714 esp at 731, cf 744; Martin v Kelly (1995) 22 MVR 115 (Supreme Court of Victoria) at 124; Nalpantidis v Stark (1996) 65 SASR 454 esp at 458: Rahim v Crawther (1996) 25 MVR 190 (Supreme Court of Western Australia) at p198; Tilbury, Davis & Opeskin (supra) at 345-348; Nygh & Davis Conflict of Laws in Australia (7th ed) LexisNexis Butterworths, Sydney, 2002 at [16.31].) 46 Such provisions stand in contrast to the legislative response to the common law position before John Pfeiffer, when limitation provisions which barred the remedy were treated as procedural. Uniform legislation in all States and Territories and New Zealand declared that a limitation provision of another State or Territory or of New Zealand, not of the enacting state, was substantive. Such a provision falls within s80 of the Judiciary Act. 47 There are references in the authorities (eg in Nalpantidis at 458) suggesting that a self-characterising provision will play a part in the process of statutory interpretation required to determine whether a provision is in fact substantive for the purposes of the common law rule. I do not see for myself that an ineffective attempt to bind the courts of other States should be given weight in the task of statutory interpretation. 48 The section has work to do in choice of law territory in the case of proceedings in a Queensland court for a tort of which the lex loci delicti is another state. In such a case, the statutory preconditions would not apply. They would have done so if they were procedural. (See Zanatta v Netpro Employees Pty Ltd [2004] QSC 131, but cf Francis v Emijay Pty Ltd [2006] QCA 62 at [2].) 49 Before John Pfeiffer, when the double actionability rule applied to interstate torts, the position would have been different. See Wilson v Nattrass (1995) 21 MVR 41. 50 The section has further work to do in the law of Queensland when interpreting subsequent amendments to these provisions. The presumption against statutes being given a retrospective operation does not apply to procedural provisions. Accordingly, any amendment to a provision said to be substantive may not have retrospective effect. 51 I have outlined the effect of s79 and s80 of the Judiciary Act above. 52 Section 7 is not, in my opinion, determinative of the issue before the Court.

Relevant Case Law 53 Handley JA refers to Maxwell v Murphy (1957) 96 CLR 261 which was concerned with the substantive/procedural distinction in the context of the presumption against retrospectivity in the law of statutory interpretation. His Honour adopts the formulation of Dixon CJ at 267 - "appointing or regulating the manner in which they are enforced or their enjoyment is to be secured." 54 I agree that this formulation is helpful, although it should not be assumed that the procedural/substantive distinction will be drawn in the same way in the law with respect to retrospectivity as it is in the context of choice of law. The issues are cognate but not the same in the two bodies of doctrine. The use of similar terminology, "substantive" and "procedural", is convenient but should not lead to the assumption that the principles are identical. In each case a process of statutory interpretation is required and the incidents of that process may differ. 55 As Frankfurter J said in Guaranty Trust Co of New York v York, 326 US 99 (1945) at 108: "Matters of 'substance' and matters of 'procedure' are much talked about in the books as though they defined a great divide cutting across the whole domain of law. But, of course, 'substance' and 'procedure' are the same keywords to very different problems. Neither 'substance' nor 'procedure' represents the same invariants. Each implies different variables depending upon the particular problem for which it is used." 56 Maxwell v Murphy is consistent with John Pfeiffer in concluding that the limitation provision there in issue was substantive. However, that conclusion turned on the interpretation of the particular statute under consideration and the reasoning of the three majority judgments was not identical. 57 Maxwell v Murphy was concerned with the right to sue conferred by the Compensation to Relatives Act 1892. In that case the time limit of twelve months had expired before a statute amended the period to six years. That case was concerned with a new right of action created by statute. That is not the position in this case. 58 The clarification by John Pfeiffer that a limitation provision which 'bars the remedy' is substantive, echoes Dixon CJ's statement in Maxwell v Murphy at 267.9: "… enactments in truth conferring or denying rights are not seldom expressed in terms or remedy." 59 I find further assistance from Dixon J's observations at 269: "There are rights in English law which have an existence and a purpose although the remedy be suspended or wanting. But the right here in question is not one of them." 60 Unlike the Compensation to Relatives Act, the operation of the PIPA Provisions may be said to correspond to the category referred to by Dixon J of "rights … which have an existence and a purpose although the remedy be suspended or wanting". Such a provision may not fall within the scope of matter affecting "enforceability", as that word is used in John Pfeiffer. 61 The formulation found in each of s9 and s36, requiring that steps be taken "before starting a proceeding in a court", is capable of constituting a condition precedent that can be characterised as substantive. That would be the correct conclusion if that formulation were employed in a legislative scheme that creates a new right or, as a matter of construction, entirely substitutes a legislative scheme for pre-existing common law rights. The former was true of the Compensation to Relatives Act considered in Maxwell v Murphy, as discussed above. The latter was true of the New Zealand no fault liability scheme considered by this Court in James Hardie & Co Pty Ltd v Hall (1998) 43 NSWLR 554. 62 In Hall the critical section stated, relevantly: "No proceedings for damages … shall be commenced in any court in New Zealand independently of this Act …" 63 As Sheller JA said at 579: "While the language of the section in form bars an action to enforce a right to damages, its substantial effect, read in the context of the Act as a whole, is to substitute cover under the Act for the right to recover common law damages. It is a substantive law. … The section extinguished the plaintiff's common law right to recover damages for his injury." 64 This analysis is consistent with the subsequent judgment in John Pfeiffer. 65 Similarly, legislation which substituted a statutory entitlement for the common law in the case of motor accidents has been held to be substantive. (Wilson v Nattrass supra; Thompson v Hill supra.) 66 A similar conclusion has been reached by the Queensland courts in determining that the legislative scheme for work-related accidents was intended to substitute that scheme for all pre-existing common law rights. (See Bonser v Melnacis [2002] 1 Qd R 1; Roberts v ANZ Banking Group [2005] QCA 470.) 67 It cannot, in my opinion, be said that the PIPA Provisions as a whole, or the scheme of Div 1 in particular, can be characterised as either creating a new right or substituting a legislative scheme for common law rights. PIPA modifies the common law in a number of respects, both procedural and substantive, but does not substitute a new regime. 68 In support of the submission that Pt 1 affected enforceability and, accordingly, constituted a matter of substance, the Defendants relied on a body of case law in Queensland which has determined that proceedings instituted without complying with the notice provisions are a nullity. This Court would, of course, save in quite exceptional circumstances, follow the interpretation of a Queensland statute by the Queensland Court of Appeal. (See Thompson v Hill supra at 730-731.) 69 The legislative scheme of PIPA is clearly based on the pre-existing scheme for motor vehicle accidents in the Motor Accident Insurance Act 1994 (Qld) ("MAIA"). A number of the authorities which have been relied upon in Queensland cases dealing with PIPA are authorities on MAIA. 70 In Horinack v Sun Corp Metway Insurance Ltd [2001] 2 Qd R 266, the court held that non-compliance with the statutory regime for the giving of notices under MAIA in a manner which, on the court's interpretation of the legislative regime could not be rectified by leave of the court, rendered the proceedings instituted a nullity. (See at [22].) White J, who delivered the principal judgment in the Court of Appeal in Horinack, applied the case to PIPA in Nicholls v Brisbane Slipways & Engineering Pty Ltd [2003] QSC 193 and concluded that when a notice of claim under s9 of PIPA had not been given the proceedings were a nullity. (See at [12]. See also Holmes v Adnought Sheet Metal Fabrications Pty Ltd [2004] 1 Qd R 378 at [26].) 71 Doubts have been expressed in the Queensland Court of Appeal as to the authority of Horinack, but it has not been overruled. (See Aydar v Pashen [2003] 1 Qd R 601 esp at [76] per Wilson J and the dissent of Jerrard JA esp at [52]-[64].) 72 On these authorities compliance with the requirement of notice and, at least arguably, with the requirement of a compulsory conference, are an essential pre-condition to the validity of proceedings. This line of authority supports a conclusion that the provisions are substantive rather than procedural as a matter of statutory interpretation. This is not, however, determinative. A procedural condition may still be found to be essential in terms of validity. The issue is always one of statutory interpretation. (See Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355.) 73 A different approach to analogous issues has been taken in this Court. This Court has not concluded that the breach of similar procedural conditions precedent result in a nullity. (See e.g. Dandashli v Dandashli (Unreported, New South Wales Court of Appeal, Handley JA and Cohen AJA, 16 December 1996); Gordon v Berowra Holdings Pty Ltd (2005) 62 NSWLR 427 at [36]-[49].) 74 In Kinzett v McCourt (1999) 46 NSWLR 32, the Court was concerned with the words "no such action shall be commenced in any court except with the leave of the court" in s6(4) of the Law Reform (Miscellaneous Provisions) Act 1946. The issue turned on the essentiality of compliance. I said at [102]: "The use of the words 'no action shall be commenced' is suggestive of a procedural requirement rather than an essential precondition." 75 I relied on Coburn v Colledge [1897] 1 QB 702 set out by Handley JA in his Honour's judgment in this case. 76 I also relied on Harding v Lithgow Municipal Council (1937) 57 CLR 186 where Dixon J said of a notice before action provision at 194: " … it does not affect or destroy that person's cause of action considered as a title to a right to damages; it does no more than impose a condition upon the assertion or enforcement of the right by judicial process."

and at 195: " … [T]he imposition in favour of a particular defendant of a condition of suit, such as giving notice, is a procedural matter not going to the validity of the title to enforce the liability, but only to the mode of enforcing it, or the fulfilment of a preliminary procedural condition." 77 The statutory provision under consideration in Harding was found to be a preliminary procedural condition. By contrast the statutory provision under consideration in Austral Pacific Group Ltd (in liq) v Airservices Australia (2000) 203 CLR 136 at [32] was, in the context of the legislative scheme there under consideration, found to go to "title". 78 Nevertheless, as indicated above, even a finding that a condition precedent is essential, does not determine the choice of law issue before this Court. In that regard, I have found two other Queensland Court of Appeal decisions to be particularly helpful. 79 In Johnson v Hill [2002] 2 Qd R 486, the Queensland Court of Appeal, in order to decide whether an alleged tortfeasor was liable to make a contribution, had to determine whether the Queensland motor vehicle scheme had the effect of destroying the plaintiff's cause of action. 80 The case turned on the notice requirements in s37 of the MAIA which is the origin of s9 of PIPA. The section provided: "37(1) Before bringing an action in a court for personal injury arising out of a motor vehicle accident, a claimant must give written notice of the claim to the insurer … against which the action is to be brought …"

Provision is made for the contents of the notice and the times within which it is to be given. 81 The notice requirement was reinforced by s39 which, relevantly, provided: "39(5) A claimant may bring a proceeding in a court for damages based on a motor vehicle accident claim only if - (a) the claimant has given notice to an insurer who may be liable on the claim under the statutory insurance scheme as required under this Division or the insurer has waived compliance with the requirement and - (i) at least 6 months have elapsed since the notice or the waiver was given; or (ii) the insurer has denied liability on the claim; or (iii) the insurer has admitted liability but only in part and the claimant has given the insurer written notice that the extent of liability is disputed; or (b) the court, on application by a claimant dissatisfied with the insurer's response to a notice of a claim under this division, declares that - (i) notice of claim has been given as required under this Division; or (ii) the claimant has taken to have remedied non-compliance with this Division; or (c) the court gives leave to bring the proceedings despite non-compliance with requirements of this Division." 82 This section is very similar to, but perhaps not as forcefully expressed as, s18(1) of PIPA, set out above. 83 Adopting the distinction made by Dixon J in Harding supra and distinguishing the Court's decisions in Bonser on the Workcover Queensland Act 1996 (Qld), Davies JA concluded: "[24] More importantly for present purposes, the provisions which led this Court to its decision in Bonser are not truly analogous with those of the Motor Accident Insurance Act. In the first place s 253(1) of the WorkCover Queensland Act speaks in terms of an 'entitlement to seek damages', a phrase which bears a striking similarity to Sir Owen Dixon's phrase 'title to enforce the liability', whereas s 37(1) of the Motor Accident Insurance Act requires merely that notice be given 'before bringing an action' and s 39(5) provides merely that 'A claimant may bring a proceeding a court for damages … only if' notice has been given. And secondly, s 353(2) of the WorkCover Queensland Act provides that all of the provisions of ch 5 of the Act, pt 2 of which contains s 253, described as 'entitlement conditions', are provisions of substantive law. Although, as pointed out in Tanks [ v Workcover Queensland [2001] QCA 103] , s 252(2) was no doubt inserted to resolve difficulties arising in conflictual situations, there is nothing in the Act which would restrict its operation to such situations and this Court plainly construed it in Bonser as having a general operation in that Act, at least except to the extent to which the Act indicated a contrary intention, as this Court later held it did with respect to limitation of actions. There is no provision in the Motor Accident Insurance Act similar to s 252(2). [25] In my opinion s 37 is a provision with respect to the mode of enforcement of the cause of action or to the fulfilment of a preliminary procedural condition rather than to the validity of the title to enforce it. In the first place, as already mentioned, in subs (4) (now subs (3)) it used the phrase 'the claim … is barred', as does s 39(8), a phrase which is more appropriate to enforcement of a right rather than its existence. Secondly, s 39(8) specifically prevents waiver by the Nominal Defendant of compliance with the requirements to give notice within nine months of the motor vehicle accident, a provision which would be unnecessary if the giving or the notice was a condition precedent to the existence of a cause of action rather than its enforcement." 84 The second Queensland Court of Appeal decision holds that s37 of MAIA, which to repeat is the model for s9 of PIPA, was procedural for the purposes of the choice of law rule. 85 In Young v Keong [1999] 2 Qd R 335 the Court had to consider the characterisation of s37 of MAIA, which I have set out above. The case involved a motor accident occurring in New South Wales. Proceedings were commenced in Queensland but no notice had been given under the Act. The defendant successfully applied to have the proceedings struck out. 86 McPherson JA said at 336-337: "In the case of a claim for damages for personal injuries arising out of a motor vehicle accident, the underlying policy of provisions like s37 is, broadly stated, to force the claimant toward negotiating a settlement of the claim before bringing an action 'in a court' for those damages. One of the objects of the Act expressed in s3(c) is to encourage the speedy resolution of such claims. To that extent the principal purpose or effect of those provisions is procedural or forensic; so they apply to an action brought in Queensland even if, as in the case here, the accident took place or the injury was sustained in New South Wales." 87 To similar effect are the observations of Williams J at 341: "… it is clear that the Queensland legislation requiring the giving of notice before action is a procedural requirement and therefore governed exclusively by the laws of the forum." 88 I should point out that there was no equivalent to s7 of PIPA in MAIA. If there had been, it seems difficult to resist the conclusion that, as a substantive requirement, compliance with the notice requirements of the Queensland legislative scheme would not have been required in the case of an accident for which the lex loci delicti was New South Wales. That is the obverse of the situation in Young v Keong. However, that is precisely the situation that this court faces in these proceedings. 89 On the authority of Young v Keong, it seems inevitable that, if the issue were to arise in Queensland, Divs 1 and 4 of PIPA would be found to be procedural, subject only to the effect of s7 of PIPA in the circumstances of the particular case. However, for the reasons I have identified above, this section does not affect the determination of the proceedings in this Court. 90 There has been a substantial body of case law in Queensland on PIPA. However, no case involving a choice of law question had arisen until Zanata supra, which found the provisions did not apply to an interstate tort because of the operation of s7. In that respect the authority in Queensland of Young v Keong is indistinguishable at least in the absence, as is effectively the case for this Court, of s7. In my opinion, Young v Keong should be followed.

Conclusion 91 The PIPA Provisions under consideration in this case are clearly designed to encourage the earliest possible settlement of disputes prior to the institution of legal proceedings. Together with other provisions of PIPA they are designed to serve what is described as the "main purpose" of the Act in s4(1), namely to enhance the affordability of insurance for residents of Queensland. To the extent to which residents of Queensland may be entitled to institute proceedings in other courts, this "main purpose" will be rendered more difficult of attainment. 92 Nevertheless, it is clear that when one reviews the wide range of specific provisions in PIPA some of them would be clearly classified as substantive for purposes of the choice of law dispute and others would equally clearly be classified as procedural, eg Div 2 as discussed above. No doubt they are all individually significant and, the more so by reason of the cumulative effect, relevantly, of the pre-court procedures for which Pt 1 of Ch 2 provides in its respective divisions. However, 'significance' is not the sole touchstone of whether a particular statutory requirement can be classified as part of the substantive law of a Queensland tort. Procedural matters are also capable of having a significant effect, relevantly, on the affordability of insurance. 93 The introductory words of s18 itself state that a failure to give a complying Pt 1 notice "prevents the claimant from proceeding further with the claim". Even though s9 states that a written notice of claim must be given "before starting a proceeding in a court", s18 itself assumes that the claimant has in fact "proceeded" to some degree with the claim. Whilst recognising that the word "proceeding" is used in two quite different senses where first appearing in s9(1) and s18(1), nevertheless the assumption in s18 is that some steps with respect to litigation have in fact been taken notwithstanding the terms of s9(1). 94 Furthermore, there are a number of aspects of the legislative scheme which indicate that steps may be taken in legal proceedings despite the apparent prohibition. 95 The first indicative consideration is that by force of s18(1)(a) the claimant may proceed if the respondent has either stated that he or she is satisfied that the Pt 1 notice has been given, or is presumed by s13 (namely after the prescribed period has passed) to be satisfied that such a notice has been given. Secondly, the claimant may proceed if the respondent has waived compliance with the requirement for a notice by s18(1)(b). Thirdly, by s18(1)(c)(i), the court is empowered to declare that the claimant has remedied any non-compliance and upon such a declaration the claimant may also proceed. Fourthly, the Court has a general discretion to authorise the claimant to proceed despite non-compliance (s18(1)(c)(ii)). Fifthly, by force of s35, if a party failed to comply with a duty imposed under Div 1 then the court may make an order that, relevantly, the plaintiff, is to take such action to remedy the default within a time specified by the court. Sixthly, by s48 a failure to comply with Div 1 may result in an award of costs in the respondent's favour, after proceedings based on the claim are commenced. This particular provision presumes that such proceedings are effective at least for these purposes. Finally, s59(3) provides for a stay in situations in which a claimant has commenced proceedings without having complied with Pt 1, although it is not clear to me how this subsection links to s59(1) and (2). 96 Although the power in s59 has been held to confer a wide discretion, (see Haley v Roma Town Council supra esp at [30]), I am unaware of any interpretation of s59(3). Nevertheless, on its face it appears to contemplate the institution of proceedings without compliance with Pt 1 in circumstances where a period of limitation under the Limitation of Actions Act 1974 (Qld) has expired. However, the operation of the section may be limited to a situation in which a notice of claim complies with those particular sections referred to in the definition of "complying Part 1 notice of claim", but not with other sections of Part 1, eg s9A. 97 I have relied, in part, on the discretion to grant leave to proceed which, in my opinion, is not equivalent to the power to extend time in a limitation act. 98 As I have noted above, the joint judgment in John Pfeiffer referred to the formulation of what was a procedural matter in a choice of law context identified by Mason CJ in McKain v Miller at 26-27. Mason CJ gave particular attention to an argument in that case to the effect that the power to extend limitation periods in the Limitation of Actions Act 1936 (SA) was such as to lead to the conclusion that a limitation provision should be regarded as a matter of procedure. His Honour rejected this submission at 28-29: "A court's discretion to grant an extension of time will only be exercised when the court is of the view that, in all the circumstances of a case, it is just to grant an extension of time. It is difficult to relate such a discretion, so expressed, simply to the regulation of the mode or conduct of court proceedings." 99 To similar effect are the observations of Deane J at 50-51: "It is true that the bar on proceedings imposed by s 36(1) of the Limitation Act and s 82(2) of the Compensation Act is not absolute. Section 48 of the Limitation Act, which confers upon 'a court' the power to extend a limitation period in certain circumstances, is applicable to the limitation period which each of those two sub-sections imposes. The fact that the bar to proceedings may be removed in certain circumstances does not, however, militate against the conclusion that the statutory provision imposing the limitation period is substantive and not merely procedural. To the contrary, the power to extend the limitation period itself represents a power to affect substantive rights and immunities and the provision of s 48 conferring the power is itself a substantive, as distinct from a merely procedural, provision. Indeed, the South Australian Parliament would appear to have recognized the extent to which the power to extend the limitation period could affect rights and immunities by expressly providing in the Limitation Act that the power can be exercised only in a case where the court is satisfied that there was ignorance of material facts on the part of the plaintiff or relevant representations or conduct on the part of the defendant and that 'in all the circumstances of the case it is just to grant the extension of time'." 100 This is not a matter which I have found easy to determine. However, in my opinion, the powers conferred on the Court by s18 and s59 of PIPA cannot be categorised in the same way as the power to grant an extension of time under the Limitation of Actions Act was categorised by the dissenting judges in McKain v Miller, whose reasoning on this issue is consistent with the joint judgment in John Pfeiffer. 101 Unlike the Limitation of Actions Act section under consideration in McKain v Miller, s18(1)(c)(ii) and s59(2)(b) of PIPA are expressed in general terms i.e. to 'authorise the claimant to proceed further with the claim despite the non-compliance' and 'started within … a longer period allowed by the court'. Furthermore, in these sections there are other situations in which the proceedings may continue despite non-compliance, as set out above. These situations separately support the conclusion that the stipulation for notices is procedural, but they also remove force from the application of the reasoning of Mason CJ and Deane J to the dispensing power in s18 and s59 of PIPA. 102 The cumulative effect of the considerations I have identified, is such that in my opinion Div 1, to use the terminology of Mason CJ in McKain v Miller, concerns the "regulation of the mode or conduct of court proceedings" and constitutes part of the "mechanism or machinery of litigation". 103 The scheme for compulsory conferences under Div 4 also contemplates the involvement of the court, even though no compulsory conference has occurred. A court is empowered by s36(5)(b) to dispense with a compulsory conference "for good reason" and to make further orders. Furthermore, the parties may, by s36(4), agree to dispense with the conference. The above reasoning with respect to Div 1 applies to Div 4. 104 Not without some fluctuation of view, I have come to the conclusion that Div 1, and even more clearly Div 4, in their context do not affect "enforceability" in the sense that that term was used in John Pfeiffer. 105 I agree with Handley JA with respect to the application to amend the Statement of Claim. 106 I agree with the orders proposed by Handley JA. 107 HANDLEY JA: Between 1999 and October 2004 Vioxx, a non-steriodal anti-inflammatory drug was prescribed and used in Australia for the treatment of inflammatory conditions and pain. It was withdrawn from sale in October 2004 because of perceived unfavourable side effects. On 2 December 2004 Mr Luke Hutchinson (the first plaintiff) commenced proceedings in the Common Law Division against Merck Sharp and Dohme (Australia) Pty Ltd (the first defendant) purporting to do so pursuant to SCR Pt 8 r 13 (now UCPR Pt 7 r 7.4). Paragraph 2 of his statement of claim stated: "The plaintiff brings this action as a representative action on his behalf and on behalf [of] those injured (in the annexed Schedule) pursuant to Part 8 Rule 13 of The Rules, as a result of the use of Vioxx and such others who may from time to time be joined." 108 The statement of claim alleged that the first defendant marketed and distributed the drug in Australia, and was deemed to be its manufacturer (s 74A(4) of the Trade Practices (TP) Act), because it had been manufactured by its parent company in the United States, and the latter did not have a place of business in Australia (paras 5, 6). It also alleged that between mid-2001 and January 2004 the plaintiff ingested the drug and as a result suffered a cardiac arrest. Causes of action were pleaded in negligence (paras 11-12), supply of goods not of merchantable quality in breach of s 74D of the TP Act (paras 16-18), and supply of defective goods in breach of s 75AD (paras 15, 19-22). 109 On 31 May Mark Hamilton, one of the persons in the Schedule to the first statement of claim (the second plaintiff) commenced proceedings in the Common Law Division pursuant to Pt 8 r 13 against Merck & Co Inc (the second defendant) purporting to do so, as alleged in paras 2-4 of the statement of claim, on his own behalf and on behalf of 92 persons identified in the Schedule who had allegedly been injured as a result of the use of Vioxx "and such others who may from time to time be joined". Expanded Schedules were served on 29 July 2005. It was common ground that slightly over half of the persons in the latest Schedules are residents of Queensland and allegedly ingested Vioxx and suffered any injuries that resulted in that State (the Queensland claimants). Any tort or breach of statutory duty committed by the defendants in respect of those claimants was committed in Queensland (Distillers Co (Biochemicals) Ltd v Thompson [1971] AC 458). 110 On 27 June Associate Justice Malpass ordered, pursuant to SCR Pt 31 r 2, that certain questions arising in both actions be determined separately from other questions, and pursuant to SCR Pt 12 r 2, that the proceedings be removed to this Court. The questions concern the effect on the proceedings of the Personal Injuries Proceedings Act 2002 of Queensland as amended (the Queensland Act) because of the plaintiffs' claims to represent the Queensland claimants. 111 The first question referred was: "In a claim commenced in the NSW Supreme Court seeking remedies in negligence and under the Trade Practices Act 1974 (Cth) for which the lex loci delicti is the law of Queensland do the … provisions [of the Queensland Act] form part of the law which must be applied by the NSW Court?" 112 Questions 2 and 3 concerned the effect on the proceedings of the admitted failure of the Queensland claimants to comply with the notice before action and compulsory conference provisions of the Queensland Act. 113 The statutory causes of action under ss 74D and 75AD invoked an exercise of the Federal jurisdiction of this Court invested pursuant to s 77(iii) of the Constitution and s 86(2) of the TP Act. The claim in negligence arose under the common law and, viewed in isolation, invoked an exercise of State jurisdiction. However it cannot be viewed in isolation. 114 These claims under Federal and State law, in the language of Mason, Brennan and Deane JJ in Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261, 291, "rest upon a common substratum of facts"; this Court therefore has Federal jurisdiction "to determine the whole controversy or matter" (ibid 292); and "there is no room for the exercise of a State jurisdiction which apart from any operation of the Judiciary Act the State Court would have had" per Barwick CJ: Felton v Mulligan (1971) 124 CLR 367, 373. The same principles apply where Federal jurisdiction is invested under the TP Act. All this is now settled law: Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1, 29-30 per Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ; PCS Operations Pty Ltd v Maritime Union of Australia (1998) 72 ALJR 863, 865 per Gaudron J. 115 The joint judgment of Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 establishes that a matter in the exercise of Federal jurisdiction (530): "… does not involve any choice between laws of competing jurisdictions, but identification of the applicable law in accordance with ss 79 and 80 of the Judiciary Act." 116 The joint judgment also establishes that (540): "… the lex loci delicti is the governing law with respect to torts committed in Australia … which have an interstate element." 117 Accordingly the governing law for any torts involving the Queensland claimants is the law in Queensland, while the governing law for the New South Wales claimants is the law in this State. There is no relevant difference because two of the causes of action arose under Federal law and the common law of negligence is the same throughout Australia. The fact that the governing law for the torts involving the Queensland claimants is that in Queensland does not answer the questions referred. The proceedings have been brought in New South Wales and, as the joint judgment in Rogerson states (542): "… a litigant who invokes the jurisdiction of a court must take the procedures and remedies of that court as they are … But that result would follow from the distinction between questions of procedure (which are to be governed by the lex fori) and questions of substance (which are to be governed by the lex loci delicti) …" 118 The Queensland Act applies in relation to personal injuries arising out of an incident before, on or after 18 June 2002 (s 6(1)) unless proceedings were commenced before that date (s 6(3)(a)). Incident is defined as "the accident, or other act, omission or circumstance, alleged to have caused all or part of the personal injury". The Queensland claimants are within the temporal reach of the Queensland Act. 119 The notice of claim before action provisions of the Queensland Act in s 9 take up three pages in the official reprint. The key provision is s 9(1) which provides: "Before starting a proceeding in a court based on a claim, a claimant must give written notice of the claim, in the approved form, to the person against whom the proceeding is proposed to be started." 120 The compulsory conference provisions in ss 36-8 take up four pages in the official reprint. The key provision is s 36(1) which provides: "Before starting a proceeding in a court based on a claim, there must be a conference of the parties (the compulsory conference)." 121 Its definition of court would normally refer to a court in Queensland but there is an additional definition: " Court , outside Queensland or Australia, includes any entity outside Queensland or Australia having an adjudicative function." 122 The expression "a court outside Queensland or Australia" occurs in s 6(3)(a) and s 77D(1)(b) without any comma between "court" and "outside Queensland". It is not clear whether the second definition only applies where the words "a court outside Queensland or Australia" appear or whether it also extends the meaning of "court" wherever it appears and excludes the application of s 35 of the Queensland Interpretation Act. It is not necessary to resolve this awkward question. 123 Sections 9(1) and 36(1) (the relevant provisions) are analogous to standard limitation provisions although the latter prevent proceedings being commenced after the limitation period expires while the former prevent proceedings being commenced until conditions precedent have been satisfied. 124 The questions for determination require the Court to determine whether the relevant provisions are to be characterised as procedural or substantive. Section 7(1) of the Queensland Act provides: "… the provisions of Chapter 2, Part 1, Divisions 1 … and 4 are provisions of substantive, as opposed to procedural, law." 125 Section 9 is in Division 1 and s 36 is in Division 4. Section 7(1) settles the question for the courts of Queensland but not for other courts. The law of the forum governs all questions of procedure and as the joint judgment in Rogerson explains (527): "… it is the governing system of law binding on the court of the forum which furnishes the rules for choice of law." 126 Thus the law of New South Wales, and not that of Queensland, determines whether the relevant provisions govern the substance of the causes of action of the Queensland claimants or are procedural and do not apply to those proceedings. The distinction was considered in the joint judgment in Rogerson (542-3): "… the choice of law rules traditionally distinguish between questions of substance and questions of procedure. There is much history that lies behind the distinction, but search as one may, it is very hard, if not impossible, to identify some unifying principle which would assist in making the distinction in a particular case. But, as the majority said in McKain (1991) 174 CLR 1, 40: 'Though the dividing line is sometimes doubtful or even artificial, the need to distinguish between substantive law and procedural law is clearly recognised for a number of forensic purposes'.

Two guiding principles should be seen as lying behind the need to distinguish between substantive and procedural issues. First, litigants who resort to a court to obtain relief must take the court as they find it … Secondly, matters that affect the existence, extent or enforceability of the rights or duties of the parties to an action are matters that, on their face, appear to be concerned with issues of substance, not with issues of procedure. Or to adopt the formulation put forward by Mason CJ in McKain (1991) 174 CLR 1, 26-27 'rules which are directed to governing or regulating the mode or conduct of court proceedings' are procedural and all other … rules are to be classified as substantive … laws that bear upon the existence, extent or enforceability of remedies, rights and obligations should be characterised as substantive and not as procedural laws." 127 The relevant provisions do not affect the existence or the extent of the rights of the Queensland claimants, or the duties of the defendants. These are defined by the TP Act and the common law. The defendants argued that the relevant provisions affect the enforceability of the rights of the Queensland claimants and any duties owed to them by the defendants. 128 The joint judgment in Rogerson describes (at 543) as substantive those rules which affect "the existence, extent or enforceability of the rights or duties of the parties to an action". The relevant provisions operate before an action can be validly commenced, and attempt to prevent this occurring until they have been complied with. They literally do not "affect … the rights and duties of the parties to an action" once it has been validly commenced. However the case should not be decided on a literal interpretation of that statement of principle as if it were a statutory formula. 129 The joint judgment described the matters that should be characterised as procedural as (543-4) the "rules which are directed to governing or regulating the mode or conduct of court proceedings". Read literally this would treat as substantive any rules which requires steps to be taken by an intending litigant prior to commencing proceedings but again it would not be appropriate to decide the case on that basis. Literal constructions of the two statements does not assist because both refer to the position in an action, and neither to the position before one is commenced. 130 The only further guidance provided by the joint judgment was the direction (544) that "any limitation provision, whether barring the remedy or extinguishing the right, would be taken to be a question of substance not procedure" because (543) "all limitation provisions can affect whether a plaintiff recovers". Accordingly the limitation provisions of the law of the place of the tort apply to an action brought anywhere in Australia for a tort committed in Australia. 131 Limitation provisions "affect the … enforceability of the rights and duties of the parties to an action" (543), and bar proceedings which are "too late". The relevant provisions bar proceedings which are "too early" because mandatory preliminaries have not been completed. However the relevance of this analogy needs further consideration. 132 The High Court considered the distinction between substantive and procedural matters in Maxwell v Murphy (1957) 96 CLR 261 in connection with the presumption that an Act affecting substantive rights is not retrospective. The Act in question extended a limitation period and the question was whether it applied where the former period had expired. Dixon CJ said at 267: "… given rights and liabilities fixed by reference to past facts, matters or events, the law appointing or regulating the manner in which they are to be enforced or their enjoyment is to be secured by judicial remedy is not within the application of such a presumption. Changes made in practice and procedure are applied to proceedings to enforce rights and liabilities … notwithstanding that before the change in the law … the accrual or establishment of the rights [or] liabilities … was complete and rested on events or transactions that were otherwise past and closed … The distinction [between matters of substance and matters of procedure] is clear enough in principle and its foundation in justice is apparent. But difficulties have always attended its application … In [some] 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." 133 The preliminary steps mandated by the relevant provisions, in the words of Dixon CJ, appoint or regulate the manner in which the rights and duties of the parties are to be enforced or their enjoyment secured by judicial remedy. The question of characterisation may be tested by considering whether the Court would apply the presumption against retrospectivity to their repeal. It seems to me to be self evident that their repeal, without transitional provisions, would allow plaintiffs with accrued causes of action to commence proceedings without further ado. 134 Rights and liabilities fixed by reference to past facts, matters or events not only identify a matter of substance; they also define a cause of action. Compliance with the relevant provisions is not part of a plaintiff's cause of action and a plaintiff is not required to allege it in his statement of claim. Prima facie therefore time commences to run in respect of causes of action for personal injury torts governed by Queensland law as soon as damage is suffered. 135 This is confirmed by the Queensland Act which makes it clear that time runs for limitation purposes on accrual of a cause of action and not on compliance with the relevant provisions. Time continued to run for causes of action in existence when the Act commenced. See ss 9(9), 59(1), 59(3), and 77D. 136 Section 37 of the Solicitors Act 1837 (Eng) provided that a solicitor could not commence an action to recover his costs, charges and disbursements for work done as a solicitor "until the expiration of one month after such … solicitor … shall have delivered unto the party to be charged … a bill of such fees, charges and disbursements …". A similar provision has been part of the law of this State for well over a century. In Coburn v Colledge [1897] 1 QB 702 a solicitor who completed legal work for the client did not sue until more than six years later. He argued that time ran from delivery of his bill of costs but the Court of Appeal held it ran from completion of the work and the solicitor's claim was statute barred. Lord Esher MR said (706): "… to what extent does the statute alter the right of the solicitor in such a case, and does the alteration … affect … the cause of action? It takes away, no doubt, the right of the solicitor to bring an action directly the work is done, but it does not take away his right to payment for it, which is the cause of action. The Statute of Limitations itself does not affect the right to payment, but only affects the procedure for enforcing it in the event of dispute or refusal to pay. Similarly, I think s 37 … deals, not with the right of the solicitor, but with the procedure to enforce that right. It does not provide that no solicitor shall have any cause of action in respect of his costs … til the expiration of a month from his delivering a signed bill of costs, but merely that he shall not commence … any action for the recovery … until then." 137 Lopes LJ said (708): "The delivery of the bill form no part of the plaintiff's cause of action. Upon proof that the work had been done, prima facie the plaintiff was entitled to recover. It was for the defendant to set up by his pleading that no bill had been delivered. How, then, can it be said that the cause of action is not complete before the delivery of a signed bill? … Section 37 … appears to me to assume that there is a cause of action, and merely to postpone the bringing of an action upon it until the period of one month from the delivery of the bill." 138 Chitty LJ said, referring to the section, (710): "That enactment, like the Statute of Limitations, appears to me only to establish a limitation with regard to the remedy; it in no way affects the cause of action, which is money payable for work done, but only postpones the right of action upon it for at least one month from the delivery of the bill." 139 At the time the settled construction of the English limitation provisions for causes of action in contract and tort was that they were procedural because they affected the remedy and not the right. The decision cannot be applied automatically to the present cases because such limitation provisions are now characterised as substantive. This reflects the reality that in the absence of a power to extend time a statute barred cause of action cannot be enforced, and is worthless. This was recognised in Deputy Commissioner of Taxation v Moorebank Pty Ltd (1988) 165 CLR 56, 65 in a joint judgment where the Court said: "… it is relevant to note that it has long been recognised that to speak of even traditional limitation provisions as merely 'procedural' or as 'barring the remedy and not the right' is misleading in that such provisions will, at least in some circumstances, entail consequences which are substantive in that, by barring the remedy, they will effectively extinguish both rights and liabilities." 140 The relevant provisions have no such effect. A plaintiff's substantive rights can still be enforced, and are not worthless. However certain procedures, for that it was they are, must be followed before he can commence proceedings. The analogy of Coburn v Colledge no longer applies because limitation provisions are now substantive. 141 Another possible analogy is provided by the position under Scott v Avery clauses (1856) 5 HLC 811 [10 ER 1121]. The arbitration clause in that case provided that "no member … shall … maintain any action at law, or suit in equity, on his policy, until the matters in dispute have been referred to, and decided by, arbitrators … and then only for such sum as the said arbitrators shall award. And … the decision of such arbitrators … is hereby declared to be a condition precedent to the right of any member to maintain any such action or suit" (10 ER at 1123). 142 Arbitrators are bound to give effect to legal defences, including those arising under statutes of limitation. An arbitration was commenced in November 1923 arising out of a casualty in July 1917. A limitation defence relied on by the defendant was rejected by the House of Lords in Board of Trade v Cayzer, Irvine & Co Ltd [1927] AC 610 because the submission was in the Scott v Avery form. Viscount Cave LC said at 614-5: "The arbitration clause … in the charter party … provides that an arbitration under the clause shall be a condition precedent to the commencement of any action at law. The effect of that condition, as interpreted in Scott v Avery … is that, until the arbitrator has performed his duty … the claimant cannot even commence to enforce his claim at law - or (in other words) that until an award is made he has no complete cause of action … Under the [statute of limitations], which applies to this case, time runs from the cause of action; and it seems to me to follow beyond question that under the clause which we are considering … time runs not from the date of the loss of the steamship but only from the making of the award." 143 Since the relevant provisions of the Queensland Act do not prevent a cause of action in tort accruing as soon as damage is suffered, and time running from that date, one may conclude, in the language of Dixon CJ [para 132] that at that date there are "rights and liabilities fixed by reference to past facts, matters or events". It follows, in my judgment, that under New South Wales law, the relevant provisions are procedural because they appoint or regulate "the manner in which [those rights] are to be enforced or their enjoyment is to be secured by judicial remedy"; although, as in Coburn v Colledge [para 136] proceedings cannot be commenced until they have been complied with. 144 The application of Commonwealth law leads to the same conclusion. Section 79 of the Judiciary Act provides that the laws of each State relating to procedure shall, subject to the Constitution and the laws of the Commonwealth, be binding on all courts exercising Federal jurisdiction in that State. The characterisation of a law as procedural for the purposes of this section is governed, in the first instance, by the section, and subject thereto by the law of the forum. Under s 79 a court exercising Federal jurisdiction in a State cannot be bound to treat provisions as substantive which, properly characterised, are procedural, merely because they are deemed to be substantive by legislation of the place of the tort. 145 Constitutional considerations require the same conclusions. The jurisdiction invoked is Federal and State law, as such, cannot prevent the commencement of proceedings in a Federal court or a State court invested with Federal jurisdiction to enforce causes of action under Federal law. So much, in my judgment, was decided in John Robertson & Co Ltd v Ferguson Transformers Pty Ltd (1973) 129 CLR 65. That case involved the application of a State limitation statute to proceedings that could only be brought in the High Court to enforce a Federal cause of action. 146 Walsh J said (84) that a State statute of limitations "could never operate, in relation to an action based on a Commonwealth Act, directly and by its own force as a law of a State". Gibbs J said (87) that: "The legislature of South Australia has no constitutional power to prescribe a limit of time within which proceedings may be brought in this Court or in any other federal court." 147 He added (89): "If a State statute of limitations, enacted in general terms, would on its proper construction apply to an action brought under a Commonwealth statute in a State court, it would be applied by force of s 79 if the action were brought in a court exercising federal jurisdiction." 148 Question 1 asks whether the Queensland Act forms part of the law which must be applied by a New South Wales court. For the reasons given I would answer this question, No. Question 2 therefore does not arise. 149 After both actions were removed to this Court the plaintiffs filed notices of motion on 9 September 2005 seeking leave to amend their statements of claim. They were properly made returnable in this Court because in each case the whole proceeding had been removed from the Division. In most cases this Court, having answered the questions referred, would remit the proceedings to the Division without determining the notices of motion. However in this case we have been persuaded that, exceptionally, we should do so. 150 The defendants object to the amendments because of the risk of prejudice arising from the three year limitation periods under Queensland and New South Wales law for actions for personal injuries. The amendments add further causes of action and plead more fully the facts, including the facts to establish that these are representative proceedings under UCPR Pt 7 r 7.4. If the original statements of claim did not validly constitute representative proceedings pursuant to then SCR Pt 8 r 13, the only persons protected against the further running of time would have been the named plaintiffs. Time would continue to run against the other claimants until the amendments take effect. 151 If the amendments would validly constitute representative proceedings for the first time, and would take effect from the date of the original statement of claim the defendants could be prejudiced by the loss of accrued limitation defences against some of the persons in the Schedules, or claimants as yet unidentified. 152 In Fostif Pty Ltd v Campbells Cash & Carry Pty Ltd (2005) 63 NSWLR 203 [paras 144-6, 150-1] Mason P followed the judgment of McPherson J in Cameron v National Mutual Life Association of Australasia [No 2] [1992] 1 Qd R 133 which establishes that if representative proceedings are properly commenced the limitation clock is stopped for the whole group. Fostif is under challenge in the High Court, special leave having been granted, but it is not known whether the challenge extends to this part of the decision. 153 As a general rule amendments to a statement of claim take effect from the date of commencement of proceedings: Baldry v Jackson [1976] 2 NSWLR 415, although a court can order that they take effect at a later date: Middleton v O'Neill (1943) 43 SR (NSW) 178. There is an exception in the case of amendments which add new parties because, under UCPR Pt 19 r 19.2(4), proceedings in relation to such persons are commenced on the date the amended document is filed. Where the application to add additional parties is filed close to the expiration of a limitation period the delay before the amendment has been allowed, and the amended statement of claim filed, could cause hardship and injustice. 154 Any such problem, in the case of additional plaintiffs or claimants, can be dealt with by the Court exercising its power under UCPR Pt 36 r 36.4(3) to order that the amendment take effect as from an earlier date. Thus the court could order that the amendments take effect as from the date the notices of motion for leave to amend were filed. 155 The Court was informed by both senior counsel that the defendants had stated that they will take no point in relation to time running after the return date for the notices of motion on 19 September 2005. This was amended orally to 9 September, when the notices of motion were filed (T 5, 69, 77). If there was no consideration for the defendants' promise, but the claimants and their lawyers have acted upon it and changed their positions, it will become binding, like an agreed extension of the limitation period, under an estoppel by convention. The Court should nevertheless exercise its powers to back date any order which has the effect of adding claimants. 156 If the decision in Fostif on the effect of properly constituted representative proceedings is correct, the persons represented are not parties. If that is so amendments which have the effect of properly constituting representative proceedings for the first time will not add parties, and those amendments will, prima facie, relate back to the commencement of the original proceedings. This could prejudice the defendants if the claims of any of the persons represented have become statute barred in the meantime. 157 The original statement of claim in the first action comprised three pages of 25 paragraphs. The proposed amendments would delete the existing paragraphs and substitute a new statement of claim comprising 23 paragraphs on nine pages. The situation in the second action is much the same. The proposed statements of claim plead new causes of action for misleading and deceptive conduct contrary to s 52 of the TP Act, and for the supply of unsuitable goods contrary to s 74B. Under s 65(2)(c) of the Civil Procedure (CP) Act amendments to allow new causes of action may be allowed although the relevant limitation period may have expired, if they arise "from the same (or substantially the same) facts as those giving rise to an existing cause of action and claim for relief". 158 Under s 82(2) of the TP Act the limitation period for actions for contravention of s 52, s 74B (unsuitable goods), and s 74D (unmerchantable goods) is six years. Under s 75AO(1) the limitation period for actions for contravention of s 75AD in respect of defective goods is three years after the plaintiff becomes aware or ought reasonably to have become aware of the alleged loss, the defect, and the identity of the manufacturer. 159 Amendments to add new causes of action which were not statute barred would readily be granted. So would amendments to add new causes of action which met the requirements of s 65(2)(c) of the CP Act. If the original statements of claim did not validly commence representative proceedings, and the amendments cure the defects, and could relate back to defeat limitation defences that have accrued in the meantime which are not defeated by s 65(2)(c), the Court would hesitate to allow the amendments to take effect from the commencement of the proceedings. Argument would be required to establish that there was no such prejudice either in respect of some causes of action or claimants who became represented for the first time as a result of the amendments. 160 If the amendments are allowed as sought their effect and the effect of the original statements of claim would not be issues at the trial. Those issues would have to be determined on these applications before the amendments could be allowed. The matter is complicated by the pending High Court appeal in Fostif. 161 During argument the Court suggested that the new statements of claim be added to, instead of substituted for, the original statements of claim to stand as an alternative pleading. If that course were adopted, the position although unusual and inelegant, would not differ in substance from that which would have applied if the solicitors for the plaintiffs had commenced fresh proceedings by filing the proposed statements of claim, and all actions were consolidated and heard together. 162 If the amendments are allowed on that basis the question of election between the first and the second statements of claim will not arise unless and until the plaintiffs became entitled to final judgment: United Australia Ltd v Barclays Bank Ltd [1941] AC 1. The amendments can properly be allowed to add the proposed new statements of claim, by way of addition to the existing statements of claim, with effect from 9 September 2005. The paragraphs added by way of amendment will be pleaded in the alternative to the original paragraphs, and some editorial changes will be necessary. 163 Since preparing the above I have had the benefit of reading the judgment of the Chief Justice in draft and I agree with his additional reasons. 164 I would therefore propose the following orders:

(3) The defendants to pay the plaintiffs' costs of the stated cases and two-thirds of the costs of the hearing in this Court.

(4) Order on the notice of motion of 9 September 2005 in matter No 40575 of 2005 in this Court that the plaintiff have leave to file and serve an amended statement of claim incorporating the original statement of claim and in the alternative the proposed amended statement of claim annexed to the notice of motion.

(5) Such amendment is to take effect on and from 9 September 2005.

(6) The plaintiff is to file and serve the amended statement of claim within 28 days.

(7) The costs of the motion and the costs occasioned by the amendment and one-sixth of the costs of the hearing in this Court to abide the order of the trial Judge.

(8) Order on the notice of motion of 9 September 2005 in matter No 40576 of 2005 in this Court that the plaintiff have leave to file and serve an amended statement of claim incorporating the original statement of claim and in the alternative the proposed amended statement of claim annexed to the notice of motion.

(9) Such amendment is to take effect on and from 9 September 2005.

(10) The plaintiff is to file and serve the amended statement of claim within 28 days.

(11) The costs of the motion and the costs occasioned by the amendment and one-sixth of the costs of the hearing in this Court to abide the order of the trial Judge.

(12) Both actions remitted to the Common Law Division. 165 TOBIAS JA: I agree with the judgments of the Chief Justice and of Handley JA. **********

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