Hatfield v Agtrack

Supreme Court of Victoria|2001-06-06|Before: Ashley J

For the reasons thus summarised, I consider that Staples should be viewed with some caution when considering the circumstances in which State legislation (in which I include rules of court) will be considered to permit amendment where the effect is to revive a cause of action extinguished by State law.

I should next refer to Harris & Anor v Western Australian Exim Corporation[57]. Both counsel relied upon it. According to the defendant's argument it supported the fourth concession which was made; and supported a conclusion that neither the Victorian Rules nor s. 34 of the Limitation of Actions Act can have the effect of permitting resurrection of an extinguished right of action under the Carriers Act.

Hill J held that the court had power to permit the amendment. Order 13 r. 2(1), (2), (3) and (7), of the Federal Court Rules, authorised by s. 59(2B) of the Federal Court of Australia Act 1976 (Cth) provided a sufficient warrant to do so for several reasons. First, the limitation provision was procedural [58], so that there was no need to have Commonwealth legislation which expressly or as a matter of construction amended the statute imposing the limitation period.[59] Second, an action had been commenced within the relevant limitation period. Amendment operated retrospectively to the date of the original pleading. Once there was amendment, there had been compliance with s. 79(2) and the right of action conferred on the plaintiff had not been destroyed.[60]

His Honour found support for the second reason which he gave why he had power to grant amendment in the decision of Hunt, J in Larcos. He said that it proceeded on the basis that "the matter" was one of procedure rather than of substance.[61] What his Honour was there referring to was, I think, the rule of court, not the limitation provision.

In deciding that s. 79(2) was procedural rather than substantive his Honour noted that no submission had been made to the contrary. He noted also the observation of Windeyer J in Australian Iron & Steel Ltd v Hoogland[62] that:

"... even when a time limit is imposed by the statute that creates a new cause of action or right, it may be so expressed that it is regarded as having a purely procedural character, as a condition of the remedy rather than as an element in the right."

He finally noted that in Western Australia v Wardley Australia Ltd[63] the Full Court of the Federal Court had expressed the view (unaffected by anything said in the later decision of the High Court) that s. 82(2) of the Trade Practices Act 1974 (Cth), a provision identical to s. 79(2) of the Fair Trading Act 1987 (WA) was a limitation provision of procedural rather than substantive character[64].

I doubt that Hill J treated the case (contrary, as I understand it, to para. 6 of the defendant's note of submission) as one in which a claim extinguished by State law was resurrected by Commonwealth legislation. But what if s. 79(2) had been viewed as a limitation provision barring "not merely the remedy but also the right such that" (as the law was then understood) "it was properly to be construed as one of substantive law?" Then, his Honour said:

"... the specific authorisation by Parliament in the Federal Court Act[65] could be seen as operating to amend all statutes imposing such limitations, State or Federal, to the extent necessary for amendments of the kind which the Rules of Court dealt with. (This) would give rise to a possible inconsistency argument under s. 109 of the Constitution."[66]

According to the defendant's submission, his Honour, recognising that there is a difference between limitation provisions which bar the remedy and provisions which bar the right, in effect proposed that Commonwealth legislation permitting amendment would collide with State legislation of the latter type. I think that this puts his Honour's remarks too strongly. They were obiter dicta and were couched in guarded terms. In light of the concession implicitly made by the defendant that s.79(2) was procedural, the issue had the contention been otherwise could not have been fully ventilated.

79 Rodgers v Commissioner of Taxation[67] was cited as a case in which a State law extinguishing a right of action (s.588FF of the Corporations Law) was held to be capable of resurrection by the Federal Court relying upon rules of court which in effect abrogated the effect of the rule in Weldon v Neal, such rules having statutory support. It is, I think, uncertain that the Court treated s. 588FF(3)(a) as having an extinguishing operation[68]; although it certainly indicated its opinion that there was sufficient statutory support for rules which did operate upon a "substantive" time limit. The true basis of the decision was, I think, that there was no collision between the rules and s. 588FF because they addressed different matters. In that respect the decision echoes Larcos.

80 Star v National Australia Bank[69] was another case concerning s. 588FF of the Corporations Law. There the matter was brought in a State court. A question arose as to the powers of that court to grant amendment.

Rolfe, J certainly decided that it was "a condition of bringing an application under s. 588FF that the application ... be made" within the time fixed by or in reliance upon sub-s.(3) of that section.[70]

But his Honour decided that there was no collision between s. 588FF and grant of leave to amend because there was an application on foot within time, because the rules addressed amendment, and because the particular application was to amend to add to the transactions sought to be set aside. The section and the rules addressed different subject matters. In that connection Rodgers was accepted as being correct.

In each of Rodgers and Star an application meeting the requirements of s. 588FF was on foot within the period fixed by sub-s. 3(a) of that section. Those cases were thus unlike the present case. For here no action under the Carriers Act was commenced within the period fixed by s. 34 of that Act. The significance of the circumstance present in Star was the subject of reference by Rolfe J.[71] His Honour (and, I think, the Full Federal Court in Rodgers) would not have considered it possible to rely upon power to amend if no application had been instituted within time. That tells in favour of the defendant in the present case, if an analogy can be drawn. Whether it can is uncertain, for in neither of Rodgers nor Star was there an attempt to graft a s. 588FF application onto an existing proceeding of some other kind which had been commenced within time.

The defendant relied upon Timeny v British Airways Plc[72] to support its proposition that State legislation cannot be used to resurrect a right of action under the Carriers Act which has been extinguished by effluxion of time. That was a case in which application was made for an extension of time within which to commence a proceeding pursuant to the Carriers Act in respect of injuries sustained on an international flight. There was also some application to amend an existing proceeding. The amendment application is described in the judgment of Bollen J.[73]

The application for extension of time depended on s. 48 of the Limitation of Actions Act 1936 (SA). That section had application in respect of "an Act (limiting) the time for instituting an action". The Acts Interpretation Act 1915 (SA) gave a prima facie meaning to the word "Act" - it meant, pertinently, a South Australian Act.

King CJ held that "Act" where used in s. 48(1) had its prima facie meaning. It was beyond the constitutional power of the South Australian Government to make s. 48 apply to time limits imposed by Commonwealth Acts[74]. That was enough to decide the case - for it was not argued on appeal to the Full Court that the extant proceedings could be amended to add a claim under the Carriers Act. Nonetheless, the learned Chief Justice agreed with Bollen J that s. 48 could not operate to enforce a right that had been extinguished; and that was the situation by virtue of s. 34 of the Carriers Act.[75]

The cornerstone of the judgment of Bollen J was his Honour's conclusion that the right of action given by the Warsaw Convention, and imported by the Carriers Act, must be exercised within the two year period. "If not it is extinguished, dead and gone forever".[76] Section 48, even if it could apply to a Commonwealth statute, could not be used to revive that which had been extinguished.

Bollen J referred to Proctor this way[77]:

"The Court of Appeal in New South Wales said, in effect: `That which appears to have died can be revived.' The decision was one of revival or of resurrection, not of extension of time. The instrument of revival was a rule of court not in existence in South Australia."

The judgment of Bollen J, with its citation of authority, fully justifies a conclusion (even if the language of s. 34 of the Carriers Act did not compel it) that the two year period should be treated as "an integral part of the right" or "a condition precedent to the exercise of the right". King CJ described Article 29 of the Convention, an equivalent provision to s. 34 of the Carriers Act, as belonging to substantive law rather than to the area of procedural law. That was an apt description as the law then stood. Rogerson, assuming its application, confirms the characterisation of the provisions considered in Timeny.

I should refer to one further passage in the judgment of the learned Chief Justice. His Honour said this, in a passage relied upon by the defendant:

"If a State law were to purport to revive a right which had been validly extinguished by federal law, it would be inconsistent with federal law and invalid pro tanto by virtue of s 109 of the Constitution." [78]

In some respects Timeny does assist the defendant's argument. But it is important to remember that the case did not raise the issue of amendment, and thus the doctrine of relation back.

s First, s. 34 of the Carriers Act is a substantive rather than a procedural provision. It was so characterised pre Rogerson; and the characterisation remains accurate.

s Second, Proctor is authority that, in some circumstances, amendment may have the practical effect of reviving an extinguished claim, thus impacting upon substantive law. But that was a case of State legislation/rules of court operating upon a State extinguishment provision.

s Third, Rodgers and Star are some authority that amendment may have the practical effect of reviving an extinguished claim. But in each of those cases there was, within the period before extinguishment, a claim on foot which answered the statutory description - a circumstance not present in this case.

s Fourth, Harris, which gives support for the proposition that there is no collision between a limitation provision and a statute or rules which permit amendment whose effect by relation back is to preclude the operation of a limitation provision, proceeded in part upon a view that the limitation provision in question was procedural rather than substantive in operation. Assuming that the principle in Rogerson extends beyond claims laid in tort and to other than choice of law situations, such a characterisation could not stand in light of the majority opinion in that case. On the other hand, both in Larcos and Harris there was said to be no collision between rules of court having procedural effect and a limitation provision, whatever be the precise characterisation of the latter.

s Fifth, there is no authority either way whether State rules of court or the inherent power of a court to permit amendment may be relied upon so as to resurrect a right of action extinguished by Commonwealth law. Timeny does not answer the question thus posed. Neither does Staples or the other Queensland cases to which I have referred.

s Sixth, r. 36.01 should be characterised, if it matters, as procedural. That is the way in which it would have been characterised before Rogerson. If Rogerson has application to other than torts matters, and to other than choice of law situations, that is how the rule would be characterised according to Rogerson.[79]

Three questions then arise. First, does s. 34 of the Limitation Act or O.36 purport to have an operation extending to causes of action to which a statutory limitation period applies other than a limitation period fixed by Part 1 of the Limitation Act? Second, if the section or rules do purport to have that application, is there an inconsistency between the section or rules and s. 34 of the Carriers Act? Third, if the answer to question 1 is "yes" and the answer to question 2 is "no", is there any other reason why s. 34 of the Limitation Act and/or the Rules should not operate so as to permit amendment to resurrect a right of action extinguished by Commonwealth law?

The first of the questions just posed raises what I earlier described as "an argument concerning the effect of the abrogation of the rule in Weldon v Neal" advanced by the defendant. The argument was this: that s. 34 of the Limitation Act and r. 36.01(6) are limited in their operation to limitation periods fixed by Part I of the Limitation Act. Counsel for the defendant relied upon Keller v Bayside City Council[80] and referred also to Anglo Irish Beef Processors International Ltd v Federated Stevedores Geelong & Ors.[81]

In Anglo Irish a plaintiff belatedly sought to amend a proceeding laid in negligence to add a claim on a bill of lading. According to Article III rule 6 of the Hague Rules "the carrier and the ship shall be discharged from all liability ... unless such is brought within one year ..." The time bar was one which extinguished the claim. It was imposed by contract.

Hayne J concluded that s. 34 of the Limitation Act "of course ... is intended to apply to cases in which a limitation period prescribed by statute has expired". But, he held, neither s. 34 nor r. 36.01 extended to deal with contractual stipulations as to time.

97 Keller was decided in the interim between the judgment in Anglo Irish at first instance and the judgment on appeal. Batt, J held that time limits imposed by ss.4(1) and 8(2) of the Administrative Law Act 1978 were mandatory, not directory: and that a proceeding not commenced within time was void. That was enough to dispose of the case. But his Honour considered an issue concerning the identity of a respondent to the proceeding. It was apparent that one person should have been named as a respondent, but was not. A question arose about the Court's power to grant amendment. His Honour concluded that the applicants could not avail themselves of r. 36.01(4) and (6) for a number of reasons. He held that s. 34, in speaking of "any relevant period of limitation" was referring to periods of limitation provided for in Part I of the Limitation Act [82]. That section gave meaning to r. 36.01(6). Further, s. 4(1) of the Administrative Law Act did "not prescribe a period of limitation". The provision `goes to jurisdiction, which periods of limitation do not do, is (sic) shown by the fact that they can be waived'."[83]

His Honour's conclusions were, I think, strictly obiter. But there is no doubt that they were considered. They support a conclusion that neither s. 34 of the Limitation Act nor r. 36.01(6) could be relied upon by the plaintiff in this case because s. 34 of the Carriers Act:

s if it is a limitation provision, is not a limitation provision provided for in Part I of the Limitation Act.

In Anglo Irish an appeal succeeded on a basis other than that which was central to the decision of Hayne J. It was concluded, in short, that there was a relevant suit on foot within the period prescribed by the Hague Rules. Phillips JA, in the leading judgment, identified but did not resolve a large number of questions arising in connection with s. 34 of the Limitation Act and r. 36.01(6).[84] His Honour referred to Keller, but only in passing.

In my respectful opinion, whatever may be said about the reach of s. 34 of the Limitation Act, r. 36.01(6) should at least be given operation in respect of statutory limitation periods generally. Considering purely Victorian legislation, for many years limitation provisions have been imposed by a variety of Acts in addition to the Limitation Act. It cannot be doubted that r. 36.01(6) was designed to free courts from the procedural straitjacket imposed by the rule in Weldon v Neal. It would be anomalous if the straitjacket had been removed in the case of some Victorian legislative provisions, but not others.

Since the 1993 Choice of Law Act, and later Rogerson, the circumstances in which a limitation provision other than one prescribed by the Limitation Act could be pertinent to a proceeding brought in a Victoria court must have multiplied. If r. 36.01(6) were read as only applying to limitation provisions set out in the Limitation Act, the potential for there to be anomalous cases must have multiplied if r. 36.01(6) were read restrictively.

The language of r. 36.01(6) is quite wide enough to apply to statutory limitation provisions generally. True it is that the language has points of contact with s. 34 of the Limitation Act. But the language is not identical. In any event, I respectfully doubt whether it is clear that s. 34 refers only to limitation periods prescribed by Part I of that Act. Why, for example, should a "relevant period of limitation" in s. 34 not include a "period of limitation... prescribed by any other enactment" for the purposes of s. 33?

In Keller, Batt J drew a distinction between a provision prescribing a period of limitation and a period going to jurisdiction. In Anglo Irish Phillips JA referred to a possible distinction between a limitation barring the remedy and limitation extinguishing the right. In Rogerson, however, the majority judgment referred to "any limitation period, whether barring the remedy or extinguishing the right"[85]. I doubt, in the circumstances, that it is right to characterise a provision extinguishing a right of action as other than a "limitation period" for the purposes of r. 36.01(6) - and probably for the purposes also of s. 34 of the Limitation Act. Proctor, I should add, required a conclusion that a provision extinguishing a right of action was one imposing a "relevant limitation period".

I should refer to Lloyd Steel Co (Aust) Pty Ltd & Anor v Jade Shipping SA & Anor.[86] There a plaintiff sought to substitute a party, and relied upon Part 20 r 4(1) of the NSW rules, which was headed "Statutes of Limitation" and which referred to "any relevant period of limitation". The application was resisted. Reliance was placed particularly upon the heading to the rule. Clarke J concluded that, notwithstanding the heading, the body of the rule had wide application, and extended to contractual time bars[87] (the case concerned such a bar). His Honour said, inter alia, that the words were clear, and ought not be read down bearing in mind the social reform sought to be achieved.

105 Lloyd Steel could not decide the proper construction of the Victorian rule or of s. 34 of the Limitation Act. But it involved a problem, that is, the heading to the rule, which does not confront the Victorian rule; and I think that his Honour's reasons give some support for the conclusion which I have reached.

Just as Lloyd Steel could not determine the proper construction of the Victorian rule or s. 34 of the Limitation Act, neither could their reach be ascertained by consideration in cases to which I have referred of similar rules of the Federal Court and the New South Wales Supreme Court. There is, however, a certain consistency in the cases which would tend in favour of giving the Victorian rule, if not s. 34 of the Limitation Act, a broad application.

I should finally refer to Bridge Shipping Pty Ltd , which concerned the construction of r .36.01(4). McHugh J in whose judgment Brennan and Deane JJ agreed, treated that rule as remedial, one that should be given broad application[88]. Rules 36.01(4), (5) and (6) form a coherent scheme. It seems wrong in principle that one sub-rule should be construed expansively but that another should be construed restrictively.

It follows from what I have said that in my opinion the first of the three questions that I framed should be answered, at least in the case of the rules, "Yes".

I turn to the second question which I framed a little earlier. It is enough to consider that question by reference to s. 34 of the Carriers Act and r. 36.01(6). Resolution of the question can stand apart from s. 34 of the Limitation Act. The judges' power to make the rule did not depend upon the enactment of the Limitation Act provision. It was not argued for the defendant, I add, that the judges would have lacked power to make r. 36.01(6) in the absence of the Limitation Act provision.

The language of s. 109 of the Constitution is deceptively simple. It has given rise to a substantial jurisprudence. The circumstances in which it has been said that inconsistency may be discerned were encapsulated by Kenny JA in Felman v Law Institute of Victoria[89] as follows:

"Broadly speaking, for s. 109 purposes, 'inconsistency' may arise (i) where simultaneous obedience to the law of the Commonwealth and to the law of the State is impossible; (ii) where the law of the State takes away or varies a right, privilege, duty, power or immunity conferred by a law of the Commonwealth (or, conversely, a law of the Commonwealth takes away or varies a right, privilege, duty, power or immunity conferred by law of the State); or (iii) where the law of a State invades a field which the law of the Commonwealth was intended to cover exhaustively ..."

Those circumstances, particularly the third of them, conceal a task in which very fine points of distinction have proved decisive. What is "the field"? How is intention to "cover the field" to be discerned from the Commonwealth legislation?

I will not attempt to review all the criteria which have been developed in the cases in an attempt to provide answers to such questions. Rather I will focus upon a relatively few principles which seem to be of potential importance in the present context[90].

First, it must be remembered that s. 109 is concerned with inconsistency between legislative enactments (which may include subordinate legislation) of the Commonwealth and a State. It is not concerned with inconsistency between Commonwealth legislation and the common law - though it would be possible for Commonwealth legislation to abridge an aspect of the common law[91].

Second, the High Court has been ready to conclude that it was the intent of Commonwealth legislation to cover the field where such legislation was enacted for the purpose of giving effect to an international convention[92]. The Carriers Act represents, in part, adoption of the Warsaw Convention 1929. Timeny involved article 29.1 of the Convention. Part IV of the Carriers Act picks up cases in which the Warsaw Convention as adopted does not apply. But it does set up a similar regime to that operating under Parts II and III. In particular, s. 34 mirrors Article 29.1 of the Warsaw Convention.

Third, it does not follow from the fact that Commonwealth and State legislation addresses the same subject matter that there is inconsistency. The legislation may serve different purposes or ends, and so not be inconsistent[93].

Fourth, even though Commonwealth and State legislation may, on the whole, address different subject matter, yet there may be a point of contact, and inconsistency at that point.[94]

Fifth, the fact that there is no necessary inconsistency between Commonwealth and State statutes which address the same subject matter, and that there may be inconsistency even though Commonwealth and State statutes address essentially different subject matter, illustrates the difficulties of practical application of the celebrated dicta of Dixon J in ex Parte McLean[95] and Victoria v Commonwealth[96].

Sixth, it is clear that a State limitation provision cannot apply to a proceeding brought in a court of that State founded on Commonwealth legislation if that legislation evinces a clear intention that it is to cover the field - as being impracticable of operation if the State limitation provision applied. In such cases s. 64 of the Judiciary Act cannot be used to indirectly subvert s. 109 of the Constitution - the necessary conclusion being that the Commonwealth legislation sets up its own procedural regime.[97]

Where do the six considerations which I have particularly identified and the broader learning concerning s. 109 lead in the present case? In my opinion to the conclusion that there is no inconsistency. The following considerations are pertinent:

First, by analogy with what Rogers J said in Larcos concerning the New South Wales rule and s. 82 of the Trade Practices Act, r. 36.01(6) and s. 34 of the Carriers Act operate in different fields. The Commonwealth provision sets up a limitation provision (I use the term in the widest sense). The Victorian rule addresses a matter of procedure bearing upon the exercise by judges of a common law discretion. The impact of exercise of the discretion in a particular way can have the result that the Commonwealth provision does not operate to extinguish a particular cause of action. But that is by operation of the common law.

Second, the rule does not enliven a cause of action which has been extinguished by the Carriers Act. The cause of action is preserved, if a discretion is exercised to grant amendment, by the common law doctrine of relation back. In truth, any inconsistency could at most arise between s. 34 of the Carriers Act and the operation of the common law doctrine.[98]

Third, viewed in such a way nothing can be found in s. 34 which should lead to a conclusion that it was intended to abridge the common law doctrine of relation back. It would be highly artificial to imply any such intention into that section. The section and the relevant common law doctrine are readily able to co-exist, just as many limitation provisions (using that term in its broadest sense) co-exist with that doctrine.

Fourth, even before the rule was made a judge would have had power to grant an amendment which had the effect, by the common law doctrine of relation back, of preserving a cause of action. The effect of authorities dealing with the exercise of discretion was that rarely if ever was leave to amend granted in such circumstances. But had there been grant, it could not have been said, in a case such as the present, that there was any inconsistency between s. 34 of the Carriers Act and "a law of a State".

The fact that a judge would have had power to do what the rule now proclaims can be done tends to emphasise the true subject matter of the rule, that is, the exercise of an always present judicial discretion freed of a judge-imposed straightjacket.

Fifth, Part IV of the Carriers Act evidently covers the field pertaining to the creation and extinguishment of a cause of action to which the Part applies. But it does not follow that the rule, which may lead to an exercise of discretion having the effect that the common law doctrine of relation back applies, intrudes upon that field.

Sixth, the type of State legislation considered in Timeny[99], upon which case counsel for the defendant particularly relied, was quite different to the rule now under consideration. It was an extension of time provision, akin to s. 23A of the Limitation Act.

I should mention an additional matter in the present connection.

In Victorian WorkCover Authority v Anderson[100] an extinguishment argument was mounted. It turned upon the Civil Aviation (Carriers' Liability) Act 1961 which is this State's equivalent of the legislation considered in Proctor. I was content to assume that there had been extinguishment in the circumstances of that case. The assumption did not affect the outcome of the plaintiff's claim, which was a recovery proceeding brought under s. 138 of the Accident Compensation Act 1985. But obiter dicta I expressed tentative conclusions[101] to which, having regard to the substantial argument and many authorities cited in the present contextually different matter, I would no longer adhere.

I go to the third question which I framed. It pertains to the exercise of discretion. In my opinion I should exercise it favourably to the plaintiff. A main purpose of amendment is to permit the true issues arising between parties to be determined. Recent decisions of high authority illustrate the strong tide which is flowing in favour of grant of leave to amend[102]. The purpose to which I just referred is not incompatible with a grant of leave to amend which by operation of the doctrine of relation back permits a plaintiff to raise a matter that would otherwise be statute barred, using that term in its broadest sense. The consequence of operation of the doctrine is that the pertinent claim is treated as having been commenced within time. It cannot be said, at least as a general rule, that this consequence subjects a defendant to irretrievable prejudice such that leave to amend should be refused[103]. In the present case, additional to the general tide in favour of grant of leave to amend, I think that it is right to have some account of the circumstance that the true nature of the claim that the plaintiff could pursue should have been - and inferentially was in fact - known to the defendant's side well before the period fixed by s. 34 of the Carriers Act had expired. In this context the failure of the defendant to fully plead its defence[104] is also not without relevance. Had it complied with the Rules the plaintiff would no doubt have corrected the pleading deficiency well within the two year period. That is not to excuse, and I take it into account, the unexplained failure of the plaintiff's side to understand and plead the plaintiff's claim to raise a claim under the Carriers Act.

I have not ignored the form of s. 34 of the Carriers Act in deciding that I should exercise my discretion favourably to the plaintiff. Counsel for the plaintiff conceded that the fact that this was an extinguishment provision and not merely a provision barring the remedy could be pertinent to the exercise of discretion. I have accepted that concession and taken that circumstance into the balance.

In the event, I conclude that I have power to grant the plaintiff leave to amend her statement of claim to raise a claim under the Carriers Act, and that I should exercise my discretion to grant her leave to do so.

Should the Defendant be held to its defence as pleaded at the outset?

In light of my conclusion that the plaintiff should have leave to amend her statement of claim to raise a claim under the Carriers Act, it is strictly unnecessary to deal with the third contention raised for the plaintiff. But in case there should be any appeal I should indicate my opinion about the matter.

The factual basis for the plaintiff's contention was this: conceding for purposes of argument that the statement of claim raised only a claim under the Wrongs Act, counsel for the plaintiff submitted that the defendant, by inference deliberately - or at least by conduct which raised a real suspicion of sharp practice - had concealed the decisive basis of its defence to that claim - that is, that the only claim possible was one pursued under the Carriers Act - so as to put his client out of court if the defendant was now permitted to amend its defence to rely upon provisions of the Carriers Act. The concealment was said to lie in what was said to be the ambiguous pleading in paragraph 7 of the defence, and in the failure to plead the Carriers Act specifically - as to the latter counsel relied upon r. 13.07(1)(a) or (b). The inference that the concealment was deliberate, or that it involved real suspicion of sharp practice, was said to arise from consideration of paragraph 7 of the defence and the defendant's solicitors letter dated 20 August 1999 - albeit that the letter was a response to a notice to admit belatedly served by the plaintiff's solicitors, and albeit also that the letter did not itself refer to s. 34 of the Carriers Act.

In the factual context thus identified counsel for the plaintiff submitted that, by analogy, principles outlined in Commonwealth v Verwayen [105] led to a conclusion that the defendant should be held to its hitherto pleaded defence.

Counsel for the defendant submitted that the issue whether the defendant should be held to its existing defence only arose on the defendant's application for judgment. It was not a question of the plaintiff's contentions supplying a remedy to the pleading deficiency without more. The matter could arise either by the plaintiff applying to deliver a reply out of time, it pleading an estoppel; or possibly (as counsel for the plaintiff submitted) by the plaintiff seeking to strike out part of paragraph 7 of the defence.

That said, counsel for the defendant sensibly and helpfully addressed the substance of the plaintiff's contention. He submitted, and I agree, that the circumstances thus far relied upon by the plaintiff were very far from the circumstances of Verwayen. He further submitted that the ratio in that case could not be applied to the circumstances relied upon by the plaintiff. What evidence was there of assumption made and reliance thereon?

Counsel for the defendant conceded however, as I noted earlier, that whilst criticism could be made of the way in which the plaintiff's side sought to raise the general issue, and despite want of allegation of important factual matters, nonetheless I might conclude that the full evidentiary picture was yet to emerge; in which circumstances the appropriate course would be to allow the matter to proceed to trial upon the present pleadings.

I consider the concession to which I have just referred was properly made. I think it very likely that the factual situation presently disclosed is incomplete, both from the plaintiff's and the defendant's standpoint. Had it been necessary to decide the point I would have granted leave to the defendant to amend its defence, leave to the plaintiff to deliver a reply putting in question the defendant's right to rely upon the Carriers Act defence, and I would have left the matter for resolution at trial.

It follows from what I have said that I should, upon the plaintiff's summons filed 18 August 2000, grant leave to the plaintiff to amend her statement of claim to raise a claim under the Carriers Act. The appropriate form of the amended pleading is a matter requiring brief discussion between myself and Counsel.

It further follows from what I have said that I should order that the defendant's summons filed 29 August 2000 be dismissed.

[9] [1994] 119 FLR 291 at 294-295 per Cullinane J, Supreme Court of Queensland.

[14] See South Pacific Air Marine at 341-343 per Sackville J.

[15] See Patterson v Richards, supra, at 180 per Gavan Duffy J citing Lord Wright MR in Marshall v Lordon Passenger Transport Board [1936] 3 All ER 83 at 87.

[21] Christoduolopoulos was disapproved in Cutrona, supra.

[25] [1991] HCA 45; (1991) 173 CLR 231 at 236-237 and 240-241 per Dawson J.

[26] See Anglo Irish Beef Processors International Ltd v Federated Stevedores Geelong & Ors [1997] 2 VR 676 at 681 per Phillips JA.

[27] See, in Victoria, s. 34 of the Limitation of Actions Act 1958 ("the Limitation Act") and r. 36.01(6) of Chapter 1 of the Rules. See, in the Northern Territory, s. 48A(1) of the Limitation Act 1981 (NT) and r. 36.01(6) of the Supreme Court Rules of the Territory.

[28] See s. 4(1) of the Supreme Court (Rules of Procedure) Act 1986 and s. 6(1) of the Supreme Court (Rules of Procedure) Act 1987 (NT). See, also, as to the primacy of the rules, s. 6(a)(iv) of the Victorian Act and s. 7 of the Territory Act.

[29] Argument was conducted by reference to the Victorian Act and rules. That was convenient, though the decision of the High Court in John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 172 ALR 625 means, if it can be extrapolated to a claim other than in tort, that the indistinguishable Northern Territory legislation and Rules of Court should apply.

[30] Counsel cited McGee v Yeomans [1977] 1 NSWLR 273. The judgment of Glass JA at 280 B-E and Mahoney JA at 284 B-C show that their Honours approached resolution of the particular matter slightly differently, but that does not bear upon the issue of principle.

[31] An example of the first category was said to be Australian and New Zealand Banking Group Limited v Larcos (1987) 13 NSWLR 286; and an example of the second category was said to be McGee.

[32] Proctor v Jetway Aviation Pty Ltd, supra, was thus explained.

[33] Harris and Anor v Western Australian Exim Corporation (1994) 56 FCR 1.

[34] The qualification is this. By s. 63 of the Limitation Act 1969 (NSW) upon the expiry of a period of limitation fixed by that Act the cause of action is extinguished. McGee appears to have involved a limitation period fixed by that Act, rather than by s. 2(3) of the Law Reform (Miscellaneous Provisions) Act 1944. The case may thus be said to have raised an issue of extinguishment of the right rather than an issue of barring the remedy.

[35] At 295. No doubt State legislation could not alter Commonwealth legislation providing for limitation of actions. In the context of s. 82(2) see Vink v Schering Pty Ltd & Ors (1991) ATPR 41-064.

[38] Not that it is critical for purposes of the present case whether he did so or not.

[40] By the plaintiff, see at 170 A-B. By the defendant, see at 172 B-C. The defendant's argument was that to which I referred a moment ago.

[41] The topic was considered in the judgement of Moffitt P at 172 F, 173 B, 174 D - E, and 175 G- 176 A. But it was not mentioned expressly by either Glass or Priestley JJA.

[42] See per Moffitt P at 176 A-D, and per Priestley JA at 184B and 186 E-G.

[46] See per Thomas J at 474 line 25-475 line10, and per de Jersey J at 476 lines 24-36.

[49] The approach which his Honour took was in substance disapproved in Bridge Shipping Pty Ltd v Grand Shipping SA and Anor [1991] HCA 45; (1991) 173 CLR 231 at 258-261 per McHugh J, with whose judgment Brennan and Deane JJ agreed.

[58] I note that the defendant had not submitted the contrary.

[59] See at 8 B-C and 9B-C. The Court's power to deal with the application was made clear by the 1994 amendment to the Federal Court Act inserting s. 59(2B), by 1994 insertion into the Federal Court Rules of 0.13, r.2(3), (4), (5), (6) and (7), and by inserting into Order 13 r. 2(1) the words "subject to the following provisions of this rule". The amendments were not an attempt by the Commonwealth parliament to amend s. 79 of the Fair Trading Act. If there had been such an attempt, then, as Hill, J said: "no doubt a question of inconsistency could have arisen under s. 109 of the Constitution".

[64] In light of Rogerson, supra, it can no longer be said that a limitation provision - whether barring the remedy or extinguishing the right - is a matter of procedure rather than substance. At least that is so in actions in tort in which a choice of law issue arises. See per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ at paras. 98-100, and per Kirby J at para. 161. Before Rogerson there was, in Victoria, s. 5 of the Choice of Law (Limitation Periods) Act 1993.

[65] That is, s. 59(2B)., which conferred power on the Federal Court to make rules dealing specifically with pleading amendments to add causes of action otherwise Statute barred.

[70] See paras 42 and 66 and his Honour's reference, by analogy, to David Grant & Co Pty Limited (Receiver Appointed) v Westpac Banking Corporation [1995] HCA 43; (1995) 184 CLR 265.

[76] At 578 line 7; see also at 575 lines 4-13.

[79] See per Gleeson CJ Gaudron, McHugh Gummow and Hayne JJ at para. 99; see also Kirby J at paras. 160-161.

[81] Hayne J, judgment 1 September 1994, unreported; and on appeal [1997] 2 VR 676.

[90] That is not to say, and it is not the fact, that I have ignored the broad learning concerning s.109.

[91] See Jackson v Gamble [1983] VicRp 51; [1983] 1 VR 552 at 559-560 and the observation of Walsh J in the course of argument in Felton v Mulligan & Anor. [1971] HCA 39; (1971) 124 CLR 367 at 370.

[92] See, eg, Viskauskas v Niland [1983] HCA 15; (1983) 153 CLR 280 at 292.

[93] See, for example, Airlines of New South Wales Pty Ltd v New South Wales (No 2) [1965] HCA 3; (1965) 113 CLR 54 and R v Winneke; ex parte Gallagher [1982] HCA 77; (1982) 152 CLR 211.

[94] See the observation of McTiernan, Williams, Fullagar and Taylor JJ in Clarke v Kerr [1955] HCA 55; (1955) 94 CLR 489 at 505, to the effect that collision will less likely occur where the subject-matter is different; and examples of collision given by Latham CJ in Colvin v Bradley Bros Pty Ltd [1943] HCA 41; (1943) 68 CLR 151.

[96] [1937] HCA 82; (1937) 58 CLR 618 at 630: inconsistency obtains when "a State law... would alter, impact or detract from the operation of a law of the Commonwealth".

[97] See, for example, Deputy Commissioner of Taxation v Moorebank Pty Ltd [1988] HCA 29; (1988) 165 CLR 55.

[98] If there was any inconsistency it would thus not be an inconsistency to which s.109 could apply.

[99] Section 48(1) of the Limitations of Actions Act 1936, SA.

[102] Queensland v J.L. Holdings Pty Ltd (1997) CLR 146; Howarth v Adey [1996] VR 535

[103] See Williams, Civil Procedure Victoria, para. 36.01. 230 and the cases there cited.

[104] See r. 13.02(1)(b), r. 13.07(1)(a) and (b) and Teague v Jones [1925] VicLawRp 26; [1925] VLR 205.

Supreme Court Rules 1900(Qld)

Limitation Act 1981(NT)

Supreme Court (Rules of Procedure) Act 1987(NT)

Aviation (Carriers' Liability) Act 1959

Court of Australia Act 1976

Interpretation Act 1915

Aviation (Carriers' Liability) Act 1961

Compensation Act 1985

Court (Rules of Procedure) Act 1986

Reform (Miscellaneous Provisions) Act 1944

Law (Limitation Periods) Act 1993

Limitations of Actions Act 1936

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Cases Cited (25)