John Robertson & Co Ltd (In Liq) v Ferguson Transformers Pty Ltd

John Robertson & Co Ltd (In Liq) v Ferguson Transformers Pty Ltd - [1973] HCA 21 - HCA 1973 case summary — Zoe

[5]

The facts that emerge from the pleadings are that the action was instituted on 27th January 1967 with the prior written consent of the Attorney-General, that on 30th September 1971 the Court ordered that the defendant be added as a party and that the Attorney-General on 24th January 1972 consented to the institution of the action against the defendant. By par. 2 (c) of the reply it is alleged that "the defendant was added as a party to this cause on 1st March 1972 when the seal of this Honourable Court was affixed to the amended writ and statement of claim". The affixing of the seal to the amended writ does not in law determine the time at which the proceeding was instituted as against the defendant who was added as a party. Order 16 r. 4 (3) of the High Court Rules provides that a party whose name is added as a defendant shall be served with the amended writ or other originating process or notice thereof, as the case may be, in accordance with O. 16 or in such manner as is prescribed by a special order, "and the proceedings as against that party shall be deemed to have begun only on the service of the writ or other originating process or notice". It may have been assumed by those who drew the reply that the High Court Rules have a similar effect to the English Rules under which, as it was held in Seabridge v. H. Cox & Sons (Plant Hire) Ltd. [1] , an amended writ takes effect against an added defendant at the moment when the amendment is filed and the amended writ is stamped. However, the English Rules there considered differ materially from the High Court Rules and it was pointed out in that case [2] that if the former English rule, O. 16 r. 11, had been in force, the proceedings against the added defendant would have begun only on the service of the amended writ. The concluding sentence of O. 16 r. 11 was in words to the same effect as those of O. 16 r. 4 (3). It is clear that the proceedings against the defendant were deemed to have begun only on the service of the amended writ on him. It is not alleged in the pleadings when the amended writ was served on the defendant, or that it was served before the Attorney-General gave his consent on 24th January 1972, but it was conceded by counsel for the defendant that the Court could safely infer that the amended writ was not served until after 1st March. The matter must therefore be considered on the footing that the consent of the Attorney-General to the institution of proceedings against the defendant was given before the proceedings were instituted against the defendant. However, it was contended on behalf of the defendant that this was not enough to satisfy s. 14 (2); it was said that s. 14 (2) required that the consent be given before the action was commenced against any defendant, and that the consent then given should extend to the institution of the action against the defendant who was afterwards added as a party. In effect the defendant's submission was that it would never be permissible to join a defendant to an action which required the written consent of the Attorney-General under s. 14 (2), unless the consent given by the Attorney-General before the action was commenced allowed the proceedings to be instituted against that defendant. This would mean that a defendant could never be added unless he had been mentioned in the original consent but had for some reason not been named in the writ when it was issued. In my judgment this is not the effect of s. 14 (2). All that the section requires in terms is that a proceeding under Pt II of the Australian Industries Preservation Act (other than a proceeding for an indictable offence or for the recovery of penalties) shall not be instituted without the written consent of the Attorney-General. A defendant who seeks dismissal of a proceeding on the ground that it was instituted without the consent which this section requires must show that at the time when the proceeding was instituted against him the Attorney-General had not given the requisite consent. That has not been shown by the defendant in the present case. The consent of the Attorney-General was given before the amended writ was served and therefore before the proceeding commenced against the defendant. It follows that the plaintiff's demurrer to par. 26 should be allowed and the defendant's cross-demurrer should be overruled.

[10]

It may, I think, safely be taken as settled that this Court, at least when exercising original jurisdiction, is a court exercising federal jurisdiction within the meaning of s. 79: see Pedersen v. Young [1] , and cases there cited. It is also settled that s. 79 does not give a new and more extensive meaning to State laws which it renders binding on a court exercising federal jurisdiction; it applies those laws with their meaning unchanged: Commissioner of Stamp Duties (N.S.W.) v. Owens [No. 2] [2] ; Pedersen v. Young [3] ; Re Young's Horsham Garage Pty. Ltd. [4] . To that last proposition it is, however, necessary to add a qualification. Section 79 may render applicable in a court exercising federal jurisdiction a State statute which either by its express provisions or upon its proper construction is limited in its application to the courts of the State: see per Menzies J. in Pedersen v. Young [5] . If the laws of a State could not apply if, upon their true construction as State Acts, they related only to the courts of the State, it would seem impossible ever to find a State law relating to procedure, evidence or the competency of witnesses that could be rendered binding on courts exercising federal jurisdiction, because most, if not all, of such laws, upon their proper construction, would be intended to apply in courts exercising jurisdiction under State law. In spite of the doubts that have been expressed, I consider that s. 79 would require this Court, sitting in original jurisdiction in a State, to apply a State statute of limitations (Cohen v. Cohen [6] ; Pedersen v. Young [7] ; cf. William Crosby & Co. Pty. Ltd. v. The Commonwealth [8] ) or a State Act giving a court power to stay proceedings on the ground that the parties had agreed to submit the matter to arbitration (Huddard Parker Ltd. v. The Ship "Mill Hill" [9] ; cf. Lady Carrington Steamship Co. Ltd. v. The Commonwealth [10] ) or a State Act regulating procedure (Bainbridge-Hawker v. Minister of State for Trade and Customs [11] ), notwithstanding that those Acts, on their proper construction, were intended to apply only to the courts of the State, but provided that they were otherwise appropriate to the circumstances of the case.

[12]

I therefore consider that the provisions of s. 37 will not be inapplicable simply because on their proper construction they were intended to be applied only in the courts of South Australia. The question, however, is whether the words of s. 37, construed as part of a State statute with its meaning unchanged, would refer to an action for treble damages under s. 11 of the Australian Industries Preservation Act. I am prepared to accept that such an action would be one "for penalties damages or sums of money given to any party by any statute in force", if the word "statute" included any Commonwealth statute having the force of law in South Australia. However, in my opinion the legislature of South Australia would not have power to legislate to provide a limitation period in respect of an action that was given by a Commonwealth statute and that could be brought only in the High Court. We are not concerned in the present case with the application in a State court of a State statute of limitations to an action brought under a Commonwealth statute - a question discussed in Federated Sawmill, Timberyard and General Woodworkers' Employés' Association (Adelaide Branch) v. Alexander [1] . 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. However, it would seem to me to be quite outside the competence of the State Parliament to impose a limitation period on an action which neither arose under the law of the State (including in that expression the common law) nor was enforceable in any court of the State. If the right owed nothing to State law, and the remedy could only be pursued in a federal court, the State Parliament could not legislate either to extinguish the right or bar the remedy. If the words "actions given by any statute" in s. 37 included an action given by a Commonwealth statute which could be brought only in the High Court, the section would exceed the legislative power of the State. The section must be given a construction that would avoid that consequence. In short, s. 37, standing alone, does not refer to actions brought under s. 11 of the Australian Industries Preservation Act and when applied by virtue of s. 79 of the Judiciary Act it does not get an extended meaning so as to include such actions. On this difficult question I have therefore come to the conclusion that the plaintiff's demurrer should be allowed.

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Judgment (53 paragraphs)

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Cases Cited (1)