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

The demurrer and cross-demurrer in this case raise three questions. The first, raised by the plaintiff's demurrer to par. 26 of the defence of the fourth defendant (to which I shall henceforth refer simply as "the defendant") and by the defendant's cross-demurrer to par. 2 (b) of the reply, is whether the proceedings against the defendant had been instituted without the written consent of the Attorney-General, contrary to s. 14 (2) of the Australian Industries Preservation Act 1906-1950 Cth. I incline to the view that the alleged want of consent should not have been raised as a defence; the appropriate course would, I think, have been for the defendant to apply for a dismissal of the proceedings. It is unnecessary to decide whether, once the defendant had raised this matter by way of defence, it was appropriate for the plaintiff to demur in reply, or for the defendant to raise a cross-demurrer to the reply, for the parties wished the point to be disposed of on the demurrers and it is convenient so to dispose of it.

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.

1. [1968] 2 Q.B. 46. 2. [1968] 2 Q.B., at p. 51.

The second question, raised by par. 27 of the defence, is whether the action is barred because it was not commenced against the defendant within two years after the alleged cause of action accrued. The action is brought to recover treble damages under s. 11 of the Australian Industries Preservation Act. The defendant's contention was that it is barred by the lapse of time, by reason of the provisions of s. 37 of the Limitation of Actions Act 1936 SA which, it is said, are applicable by virtue of s. 79 of the Judiciary Act.

Section 37 of the Limitation of Actions Act provides as follows:

All actions for slander and all actions for penalties damages or sums of money given to any party by any statute in force at or after the commencement of this Act shall be commenced within two years next after the cause of action accrued, but not after. It was conceded by the defendant that this section cannot of its own force apply to bar the present action. That concession was, in my opinion, correct. 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, and a statute of limitations enacted by that legislature must be construed as applicable only to proceedings in courts subject to the legislative power of South Australia: Pedersen v. Young [1] . However, the question arises whether s. 37 is made applicable in the present case by s. 79 of the Judiciary Act 1903-1969 Cth, which provides as follows: The laws of each State, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all courts exercising federal jurisdiction in that State in all cases to which they are applicable. 1. (1964) 110 C.L.R. 162, at pp. 165, 167.

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.

1. (1964) 110 C.L.R., at pp. 165, 167-168. 2. (1953) 88 C.L.R. 168. 3. (1964) 110 C.L.R., at pp. 165-166. 4. [1969] V.R. 977, at p. 979. 5. (1964) 110 C.L.R., at pp. 167-168. 6. (1929) 42 C.L.R. 91, at p. 99. 7. (1964) 110 C.L.R. 162. 8. (1963) 109 C.L.R. 490, at p. 494. 9. (1950) 81 C.L.R. 502, at pp. 507-508. 10. (1921) 29 C.L.R. 596. 11. (1958) 99 C.L.R. 521, at pp. 536-537.

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.

The third question, raised by the demurrer to par. 28 of the defence, is whether the judgment given in an action brought by the plaintiff against the defendant (under a former name) for breach of contract gives rise to an issue estoppel. On that question I am in agreement with the reasons given by my brother Mason, which I have had the advantage of reading, and do not desire to add anything to them.

In my opinion, therefore, the plaintiff's demurrers to pars. 26, 27 and 28 of the defence should be allowed and the defendant's demurrer to par. 2 (b) of the plaintiff's reply should be overruled.

By a writ which was issued out of the South Australian Registry of this Court on 27th January 1967 the plaintiff commenced an action for treble damages against the defendants in the suit, other than the defendant Philips Industries Pty. Ltd., under s. 11 of the Australian Industries Preservation Act 1906-1950. There was endorsed on the writ when issued the consent of the then Attorney-General for the Commonwealth to the institution of the suit. The endorsement was in the following terms:

In pursuance of s. 14 of the Australian Industries Preservation Act 1906-1950 I Nigel Bowen, M.P. the Attorney-General of the Commonwealth of Australia hereby consent to the institution of an action in the High Court of Australia by the within writ of summons. By an order dated 30th September 1971 this Court ordered that the defendant Philips Industries Pty. Ltd. be added as a party to the suit.

What then occurred is not entirely clear. But on 24th January 1972 the consent of the then Attorney-General for the Commonwealth was endorsed on the writ as follows:

In pursuance of s. 14 of the Australian Industries Preservation Act 1906-1950 I Ivor John Greenwood, the Attorney-General of the Commonwealth of Australia, hereby consent to the institution of an action in the High Court of Australia by the within writ of summons against Philips Industries Pty. Ltd. Pursuant to the order made on 30th September 1971 the defendant Philips Industries Pty. Ltd. was added as a party.

The plaintiff has now demurred to three paragraphs in the defence of the new defendant. To appreciate the questions which thereby arise it is necessary that I should refer to the statement of claim and the cause of action which it pleads.

The plaintiff alleges that at all material times it carried on the business of assembling and selling fluorescent lights and that an essential component in these lights was a ballast. The plaintiff further alleges that the defendants and each of them were at all material times engaged in the business of manufacturing or importing, and selling fluorescent ballasts across State borders in the Commonwealth of Australia and that they were in consequence at all material times engaged in trade and commerce among the States.

The plaintiff then alleges that on or about 17th November 1961 the defendants and each of them entered into a contract among themselves and became members of and engaged in and thereafter continued to be members of and engage in a combination among themselves in respect of the sale and delivery of fluorescent ballasts. The plaintiff claims that the contract provided, or the objects of the combination were, that the defendants should fix the price at which ballasts, or alternatively code ballasts (being ballasts which complied with the requirements of the Standards Association of Australia), should be sold in Australia and that they and each of them should thereafter refuse to manufacture or sell sub code ballasts and that they should from 20th November 1961 refuse to sell ballasts, or alternatively code ballasts, other than at the price fixed by them. The plaintiff then claims that the contract and combination was a contract and combination in relation to trade and commerce among the States and that in pursuance of that contract and combination the defendants and each of them were unwilling to sell or deliver, and refused to sell or deliver, ballasts, or alternatively code ballasts, to the plaintiff at any price other than the price so fixed by them.

The plaintiff claims that the contract was made and the combination engaged in in restraint of trade and commerce and that, in the alternative, the contract was made and the combination engaged in with intent to restrain trade and commerce within the meaning of s. 4 of the Australian Industries Preservation Act.

In the alternative the plaintiff claims that by making the contract and by engaging in the combination the defendants and each of them were monopolizing, or alternatively attempting to monopolize, and combining and conspiring with each other to monopolize part of trade and commerce among the States.

In the result, the plaintiff claims that the entry into the contract and combination and the acts done in pursuance thereof constituted contraventions of ss. 4 and 7 of the Act and that by reason thereof the plaintiff was injured in its property by the defendants and each of them, and the plaintiff claims treble damages in the sum of $76,361.25.

A defence was entered by Philips Industries Pty. Ltd. By par. 26 the defendant pleaded that the suit was a suit within the meaning of s. 14 (2) of the Act, that it was instituted within the meaning of that sub-section on 27th January 1967 and that the Attorney-General did not consent in writing to the institution of proceedings against the defendant before such institution of the suit.

The plaintiff demurred to the paragraph on the ground that it did not disclose a good defence to the plaintiff's cause of action. However, in the course of argument the plaintiff sought leave to amend its reply so that the question could be raised more appropriately by the defendant by way of demurrer to the plaintiff's reply. The Court granted leave to the parties to enable this course to be followed and I shall deal with this question after considering the demurrers to pars 27 and 28 of the defence.

By par. 27 the defendant pleaded by way of answer to the whole of the statement of claim that the action was an action for penalties, damages or sums of money given to the plaintiff by a statute in force at the commencement of the Limitation of Actions Act, 1936 of the State of South Australia and that the said action was not commenced against the defendant within two years next after the alleged cause of action accrued. The defence was based upon the provisions of s. 37 of the Limitation of Actions Act, 1936 SA, which provides as follows:

All actions for slander and all actions for penalties damages or sums of money given to any party by any statute in force at or after the commencement of this Act shall be commenced within two years next after the cause of action accrued, but not after. The plaintiff demurred on the ground that the provisions of the section do not apply to proceedings instituted under the Australian Industries Preservation Act and that, accordingly, the paragraph did not disclose a defence to the cause of action. The plaintiff submitted that on its true construction the provision did not apply to causes of action created by a law of the Commonwealth and enforceable by action in the High Court of Australia. The plaintiff further submitted that a proceeding under s. 11 of the Australian Industries Preservation Act is not an action for "penalties damages or sums of money" within the meaning of s. 37 of the South Australian Act.

It was conceded for the defendant that s. 37 of the State Act did not and could not apply directly to an action under s. 11 of the Commonwealth Act. The defendant submitted, however, that the provisions of s. 37 applied to an action under s. 11 because they were made applicable by s. 79 of the Judiciary Act 1903-1966, a submission which was contested by counsel for the plaintiff. Before the meaning and application of s. 79 can be examined, it is necessary to state precisely why it is that s. 37 does not apply of its own force to the proceedings.

The section of the South Australian Act is a provision which bars the remedy, not the right. It is therefore a rule of procedure only (see Harris v. Quine [1] ; Alliance Bank of Simla v. Carey [2] ). As such it is a rule which applies to actions brought in the courts of South Australia and not elsewhere. In Pedersen v. Young [1] , Menzies J., speaking with reference to a statutory provision expressed in the usual form of a statute of limitation, said:

A statute in this form, notwithstanding any generality of expression, must of necessity be construed as applying to the commencement of actions in courts subject to the power of the legislature enacting it and to no other courts. 1. (1869) L.R. 4 Q.B. 653. 2. (1880) 5 C.P.D. 429. 3. (1964) 110 C.L.R. 162, at p. 167.

For the plaintiff it was submitted that the reference to "statute" in s. 37 should be read as a reference to Acts of the Parliament of South Australia only, and that it had no application to actions based on Imperial or Commonwealth statutes or the statutes of other States. In my opinion this submission misconceived the true character of the provision.

Had I not been persuaded by the very character of the provision to the conclusion that it applied to actions in South Australian courts only, I should in any event have arrived at the same conclusion by construing the section in the light of considerations of constitutional validity. I am unable to perceive any basis on which the Parliament of South Australia could validly prescribe a rule of procedure to be applied directly in actions in the High Court. That topic, so it seems to me, is one which falls within the legislative power of the Commonwealth Parliament (see Pedersen v. Young per Menzies J. [1] ).

I turn now to the provisions of s. 79 of the Judiciary Act. It was once thought that the exercise of original jurisdiction by the High Court was not an exercise of federal jurisdiction (see Lady Carrington Steamship Co. Ltd. v. The Commonwealth per Higgins J. [2] ). But the weight of authority is now strongly against this view (see Alexander's Case per Isaacs J. [3] ; Cohen v. Cohen per Dixon J. [4] ; Musgrave v. The Commonwealth [5] ; Bainbridge-Hawker v. Minister of State for Trade and Customs [6] ; Deputy Commissioner of Taxation v. Brown per Dixon C.J. [7] ).

1. (1921) 29 C.L.R. 596, at pp. 599, 601. 2. (1912) 15 C.L.R. 308, at p. 321. 3. (1929) 42 C.L.R. 91, at p. 99. 4. (1937) 57 C.L.R. 514. 5. (1958) 99 C.L.R. 521, at p. 536. 6. (1958) 100 C.L.R. 32, at p. 39.

In Commissioner of Stamp Duties (N.S.W.) v. Owens [No. 2] [8] , the Court rejected the suggestion that s. 79 of the Judiciary Act picked up s. 6 of the Suitors' Fund Act, 1951 NSW and authorized the High Court to grant an indemnity certificate. The Court said [9] :

"The purpose of that section" [that is, s. 79] "is to adopt the law of the State where federal jurisdiction is exercised as the law by which, except as the Constitution or federal law may otherwise provide, the rights of the parties to the lis are to be ascertained and matters of procedure are to be regulated." Finally, in Pedersen v. Young [1] , all the members of the Court with the exception of Taylor J. accepted that the exercise of original jurisdiction by the High Court was an exercise of federal jurisdiction which brought into operation the provisions of s. 79. 1. (1953) 88 C.L.R. 168. 2. (1953) 88 C.L.R., at p. 170. 3. (1964) 110 C.L.R. 162.

There nevertheless remains a difficulty in applying in accordance with the requirements of that section State laws in the exercise of federal jurisdiction by the High Court, a difficulty which has no counterpart in the application of State laws in the exercise of federal jurisdiction by State courts. Some State laws, in particular laws which prescribe and regulate the procedure to be followed in an action, are expressed so as to apply to proceedings in the courts of the States, or to particular State courts. Does s. 79 pick up these provisions and give them an operation different from, and larger than, the operation which they would have according to the terms in which they are expressed?

This question was considered in Pedersen v. Young [1] . There the issue was whether s. 5 of The Law Reform (Limitation of Actions) Act of 1956 Q, a limitation provision, was an answer to an action for damages for negligence in respect of personal injuries brought in the High Court in a State other than Queensland. It was held to be no answer. Taylor, Windeyer and Owen JJ. were of opinion that, even if s. 79 picked up the Queensland provision, it did not make it applicable in an action in the High Court brought in New South Wales. Kitto J. said [2] :

the Judiciary Act does not purport to do more than pick up State laws with their meaning unchanged: Commissioner of Stamp Duties (N.S.W.) v. Owens [No. 2] [3] . It cannot give s. 5 a new meaning, converting it into a provision limiting the time for the commencement of actions outside Queensland; and for that reason, s. 5 does not, even by force of the Judiciary Act, afford a defence to an action commenced, as the present action was commenced, outside the time it allows but in New South Wales. Menzies J. said [4] : As at present advised I do not think that the laws of a State relating to proceedings in State courts cannot apply in this Court by virtue of ss. 79 and 80 merely because, upon their true construction, as State Acts they relate only to the courts of the State. It may well be a part of the office of ss. 79 and 80 to make applicable in this Court some State statutes which, upon their true construction, apply of their own force only to courts governed by the laws of the State in which the court is exercising its federal jurisdiction although it is clear that some such statutes are outside the scope of these sections: Commissioner of Stamp Duties (N.S.W.) v. Owens [No. 2] [1] . 1. (1964) 110 C.L.R. 162. 2. (1964) 110 C.L.R., at pp. 165-166. 3. (1953) 88 C.L.R. 168. 4. (1964) 110 C.L.R., at pp. 167-168. 5. (1953) 88 C.L.R., at p. 170.

The broad purpose of s. 79 is to ensure that the laws of the States are applied by courts in the exercise of federal jurisdiction. In general that purpose is achieved by the application of a State law according to its terms. Indeed, s. 79 contains no express provision which would enable a court exercising federal jurisdiction to alter the language of a State statute and apply it in that altered form. However, the presence of the words "including the laws relating to procedure evidence and the competency of witnesses" exhibits a clear intention that State laws relating to those topics should apply to federal jurisdiction. This purpose would fail partly in its objective if State laws on these topics are to be given a literal application under s. 79 by courts other than State courts. State laws dealing with matters of procedure, as the earlier consideration of s. 37 of the Limitation of Actions Act has shown, are often expressed so as to apply to State courts only, and in some instances they refer to particular State courts.

To ensure that State laws dealing with the particular topics mentioned in the section are applied in the exercise of federal jurisdiction by courts other than State courts, it is necessary that State laws be applied according to the hypothesis that federal courts do not necessarily lie outside their field of application. Section 79 requires the assumption to be made that federal courts lie within the field of application of State laws on the topics to which it refers, at least in those cases in which the State laws are expressed to apply to courts generally. This departure from the general principle that the section requires a State law to be applied according to its terms is justified, indeed demanded, by the clear requirement that State laws on the topics mentioned are to be applied in federal jurisdiction. Whether that requirement supports the broader view that a similar approach is to be taken in applying s. 79 to substantive as well as procedural laws it is not now necessary to determine.

The final question which arises on this aspect of the demurrer to par. 27 of the defence is whether the action is one which falls within the expression "all actions for penalties damages or sums of money given to any party by any statute " within the meaning of s. 37 of the Limitation of Actions Act. For the plaintiff it was argued that the words "damages or sums of money" should be construed ejusdem generis with "penalties". The reasoning of the Court of Appeal in its decision in Thomson v. Lord Clanmorris [1] was invoked in support of the submission. In that case it was held that s. 3 of the Civil Procedure Act 1833 Eng, which provided that "all actions for penalties, damages or sums of money given to the party grieved by any statute", did not apply to an action by a shareholder to recover from the directors of a company compensation for loss or damage sustained by him by reason of untrue statements in the prospectus of the company on the faith of which he subscribed for shares on the ground that actions for "damages or sums of money" should be read as actions for damages or sums of money in the nature of penalties. Accepting that for the purposes of this case a similar construction should be given to s. 37, although the language of the provision provides no support for it, I am unable to perceive that the present action falls outside the provisions of s. 37.

An action under s. 11 of the Australian Industries Preservation Act is an action for treble damages. The plaintiff is not limited to the recovery of the damage which he has actually sustained. Under the statute he is entitled to recover three times the amount of his damage. The judgments of Dixon C.J. and Menzies J. in Redfern v. Dunlop Rubber Australia Ltd. [2] make it clear that to give a person injured by the commission of an offence a right to recover treble damages from the wrongdoer is a device to ensure compliance with the law and to discourage disobedience to that law. The action is therefore an action for penalties or damages in the nature of penalties.

I would therefore overrule the plaintiff's demurrer to par. 27 of the defence.

Paragraph 28 of the defence was presented in argument as a plea of issue of estoppel the object of which was to preclude the plaintiff from recovering more than $6,000 by way of damages in the action. It was submitted that the question whether the plaintiff had been injured by the contraventions of the Act which it now relied on and the amount of damage which it thereby sustained had already been determined in an earlier action between the plaintiff and the defendant in the Supreme Court of South Australia in which the plaintiff had recovered on 27th May 1965 a judgment in the sum of $3,000 against the defendant for breach of a contract made on 28th March 1961 by which the defendant had promised, but nevertheless failed, to deliver ballasts to the plaintiff. It followed, so the argument ran, that in this action the plaintiff could recover no more than the difference between three times the amount of the damages as then ascertained, that is $9,000, and the amount then recovered, namely $3,000, that is $6,000.

There are a number of reasons why the plaintiffs' demurrer to this part of the defence should be upheld. First, the defence as pleaded is inappropriately expressed. On examination it seems that the pleader was endeavouring to allege that the plaintiff at the commencement of this action had not sustained any damage in consequence of the defendant's contravention of the Act because the plaintiff had fully recovered the damage which it had suffered by means of the judgment recovered on 27th May 1965. Secondly, it does not appear from the defence that there is an exact or real co-extension between the contraventions of the Act sued upon by the plaintiff in this action, including the refusal to supply ballasts otherwise than under contract, and the breach of contract which was litigated in the earlier action in the Supreme Court. I would therefore uphold the plaintiff's demurrer to par. 28.

There remains the question of the Attorney-General's consent. It is to be decided in the light of the pleadings. Paragraph 26 of the defence alleges that the suit is a proceeding within the meaning of s. 14 (2) of the Australian Industries Preservation Act and was instituted within the meaning of that sub-section on 27th January 1967 and that the Attorney-General did not consent in writing to the institution of proceedings against the defendant before the institution of the suit. By its reply, as amended, the plaintiff says that by order dated 30th September 1971 this Court ordered that the defendant be added as a party to the cause, that pursuant to s. 14 the Attorney-General gave his written consent in the form set out in the amended writ on 24th January 1972 and that the defendant was added as a party to the cause on 1st March 1972 when the seal of the Court was affixed to the amended writ and statement of claim.

The defendant demurred to par. 2 (b) of the plaintiff's reply on the ground that

it does not answer the defence raised under par. 26 of the statement of defence to which it has pleaded, in that the proceeding herein was instituted on 27th January 1967 and the said paragraph does not allege that the Attorney-General for the Commonwealth gave his written consent to the institution of any proceeding against the defendant Philips on or before that date.

I confess that I find the defendant's argument in support of its demurrer somewhat elusive. The suit as originally constituted was commenced, it is conceded, with the consent of the Attorney-General. It is also conceded that the subsequent amendment by which the defendant was joined as a party was made with the Attorney-General's consent having been previously obtained. Yet the defendant argues that the proceeding as it now stands must be regarded as having been instituted on 27th January 1967 and that at that stage the Attorney-General had not consented to the institution of a proceeding against a number of defendants including the defendant Philips Industries Pty. Ltd. The short answer to the demurrer is that the institution of the proceedings, as they now stand, was preceded by the consent required by s. 14 (2). A consent of the Attorney-General has antedated each relevant step in the proceedings. If it be correct to say, as the defendant would now have it, that the relevant proceeding is a proceeding against five defendants including the defendant Philips Industries Pty. Ltd., the proceeding in that form was not commenced until 1st March 1972, the consent of the Attorney-General was obtained immediately before the suit was amended pursuant to the order of the Court dated 30th September 1971 so as to take this form.

In reaching this conclusion I should not wish to be taken as agreeing with the notion which seems to be implicit in the plaintiff's reply that an amendment is made when the Court's seal is affixed to the amendment. The provisions of O. 16 r. 15 dealing with amendment of the writ where a party is added as a defendant make no reference to the seal of the Court and indicate that the amendment is effective when it is made under the authority of the Court's order. However, this matter is not raised by the defendant's demurrer.

I would therefore overrule the defendant's demurrer to par. 2 (b) of the plaintiff's reply.