Maguire v Simpson

The reasons for judgment of Gibbs J., which I have had the advantage of reading, do, by their full reference to relevant legislation and to the facts and circumstances of this matter, relieve me of the need for any recitals. In my view the present proceedings may be disposed of upon a quite narrow ground, and to it I shall confine myself.

For the Commonwealth Trading Bank of Australia to make good its claim to the moneys paid into Court by the plaintiff Maguire it must overcome the effect upon its claim of the Limitation Act 1969 N.S.W.; otherwise that claim must fail as statute-barred.

The Bank's answer to the plea of the statute must be to claim for itself the like immunities as are possessed by the Crown in right of the Commonwealth and also to assert that those immunities would prevent a like claim by that Crown from becoming statute-barred. To test the latter assertion I make two assumptions in favour of the Bank: first, that its claim is to be treated in all relevant respects as if it were being made by the Crown in right of the Commonwealth - as to which see Inglis v. Commonwealth Trading Bank of Australia [56] ; secondly, that, to the extent to which the State legislature, by s. 11 (1) of the Limitation Act, has purported to apply that Act to the Crown in all its capacities, this will be ineffective so far as concerns the Crown in right of the Commonwealth.

Upon these assumptions it can only be by virtue of some law of the Commonwealth that the Limitation Act will operate to defeat the Bank's claim and the question is whether s. 64 of the Judiciary Act 1903 is such a law. Its applicability in the proceedings in the Supreme Court of New South Wales in which the Bank is a claimant is not in doubt, the fact that the Commonwealth, in the person of the Bank, is a party to those proceedings suffices to invest that Court with federal jurisdiction: Constitution s. 75 (iii.) and Judiciary Act s. 39 (2). It also renders applicable s. 64 of the Judiciary Act: The Commonwealth v. Anderson [57] , per Dixon C.J., with which aspect of his judgment McTiernan, Kitto and Windeyer JJ. expressed agreement.

If, then, s. 64 of the Judiciary Act be applicable, what precisely is its effect and, in particular, does it enable the plaintiffs to invoke the Limitation Act so as to bar this claim by the Bank? A preliminary point may be disposed of at the outset. If the Bank is to be assumed to be the agent of the Commonwealth, so as to attract to itself the immunities of the Crown, it must also, I think, be taken to be affected by s. 64 in like manner as is the Commonwealth; in both Pitcher v. Federal Capital Commission [58] and Naismith v. McGovern [59] the section was applied in this way to parties which, not being the Commonwealth itself, were in no relevantly different position from that of the Bank.

1. (1928) 41 C.L.R. 385. 2. (1953) 90 C.L.R. 336.

Section 64, then, requires that in the present proceedings in the Supreme Court "the rights of parties shall as nearly as possible be the same as in a suit between subject and subject". Read literally this would mean that when the Bank makes its claim to this fund in Court its entitlement is to be determined as if it were an ordinary, subject litigant. To a subject as litigant the provisions of the Limitation Act will of course apply; why then should those provisions not apply in like manner to the Bank, at least so long as whatever is to be regarded as the content of the qualification "as nearly as possible" is not found to stand in the way? In my view the section does apply s.14 (1) (a) of the Limitation Act in this quite straightforward way to the facts of the present case and the qualifying phrase of s. 64 never becomes operative. Section 64 of the Judiciary Act has long been regarded as involving considerable difficulties of interpretation; I am far from discounting those difficulties, but do not see them as arising on the facts of the present case.

One of the aspects of s. 64 which has long occasioned difficulty and has led to a marked division of opinion in this Court is "whether s. 64 is limited to questions of procedure or extends to the substantive law governing the liability put in suit": Dixon J. in South Australia v. The Commonwealth [60] . Perhaps the most emphatic expressions of the first view were those of O'Connor J. in The Commonwealth v. Baume [61] and of Isaacs A.C.J. in Griffin v. South Australia [62] . On the other hand s. 64 has been described as applying to the Crown "the whole body of the law, statutory or not, by which the rights of the parties would be governed if the Commonwealth or State were a subject instead of being the Crown": Kitto J. in Asiatic Steam Navigation Co. Ltd. v. The Commonwealth [63] . In citing for the first view judgments much earlier in date than are the views of Kitto J., I am not to be taken as suggesting that his Honour's view represents modern orthodoxy; on the contrary, I regard the question as still unresolved.

1. (1962) 108 C.L.R., at p. 340. 2. (1905) 2 C.L.R. 405, at p. 418. 3. (1924) 35 C.L.R. 200, at p. 204. 4. (1957) 96 C.L.R. 397, at p. 427.

No occasion for choosing between these two views arises in the present case. Section 14 (1) of the Limitation Act is clearly only procedural in character and is all that need be invoked in order effectively to bar the Bank's claim to the fund in Court; accordingly, if s. 14 (1) (a) be applicable to that claim it is unnecessary to consider whether the substantive provisions of s. 63 of the Limitation Act may also be applied. Section 14 (1) (a) enacts that an action of the relevant sort brought after more than six years is not "maintainable". As was said as long ago as 1663 in Lee v. Rogers [64] a provision such as this is made "for the ease of those who would take advantage thereof"; it simply bars the remedy without abolishing the right: Isaacs J. in The Crown v. McNeil [65] , and see per Kitto J. in Chang Jeeng v. Nuffield (Australia) Pty. Ltd. [66] . With such a provision may be contrasted s. 63 of the Limitation Act, which is substantive in nature, providing for the extinguishment of right and title. The contrast is noted and discussed in the leading case of Huber v. Steiner [67] , per Tindal C.J., although the whole basis for this distinction has been the subject of critical examination by Professor Jackson in Melbourne University Law Review, vol. 7 (1970), pp. 407 and 449.

1. (1663) 1 Lev. 110, at p. 110 [83 E.R. 322, at p. 323]. 2. (1922) 31 C.L.R. 76, at p. 100. 3. (1959) 101 C.L.R. 629, at p. 642. 4. (1835) 2 Bing. (N.C.) 203, at p. 210 [132 E.R., at p. 83].

In Downs v. Williams [68] Windeyer J. pointed out that the question whether the Crown is bound by some Act of Parliament really asks no more than whether some particular enactment or enactments of that legislation so binds; the same is true of the effect of s. 64 of the Judiciary Act when it applies to the Crown provisions of the Limitation Act. Each section of the Limitation Act is to "have effect as a substantive enactment" - Interpretation Act of 1897 N.S.W., s. 11 - and of any particular section of the Limitation Act the question of the operation of s. 64 must be separately asked and answered. If the question be asked of s. 14 (1) (a), a provision procedural in character, the answer, on any view of the authorities, to some of which I have referred, must be that that section is made applicable to the Bank's claim and that will, without regard to the applicability or otherwise of s. 63 of the Limitation Act, be enough to dispose of the Bank's claim; the Bank's claim will be statute-barred and no need arises to consider whether the substantive provisions of s. 63 of the Limitation Act are also made applicable by virtue of s. 64 of the Judiciary Act.

Quite apart from the debate whether s. 64 applies only to matters of procedure or extends also to substantive law there exists some uncertainty concerning the content of the qualifying phrase "as nearly as possible". In The Commonwealth v. Baume Griffith C.J. described it as meaning "as far as the provisions the aid of which is invoked are applicable to such a party as the Commonwealth" [69] ; his Honour regarded as not so applicable a provision which required affidavits to be sworn by a party in person. O'Connor J. took a like view [70] . However it was not only the fact that the Commonwealth was not a natural person, and hence incapable of swearing an affidavit, that the Chief Justice thought might bring into operation the qualification involved in "as nearly as possible"; any inconsistency with "the notion of a sovereign State" would have a like effect and the Chief Justice instanced process for contempt as something accordingly excluded from possible application to the Crown [69] . In The Commonwealth v. Miller [71] Isaacs J. gave to "as nearly as possible" the effect of excluding from application to the Crown "all coercive action incompatible with the dignity of the Crown and unwarranted by the express words of the enactment"; his Honour would thus have viewed this qualifying phrase as excluding from application to the Crown any provision inconsistent with its dignity. He regarded the furtherance of public justice, which is the concern of s. 64, as obliged to give way in face of "the still higher consideration of the general welfare" [71] - and accordingly also regarded the qualifying phrase as preserving an adequate measure of Crown privilege in the discovery of documents. Higgins J. regarded s. 64 as not carrying the process of assimilation of Crown to subject so far, as to take away, in the case of orders for discovery, the "privilege of the Crown's officers as to affairs of State, etc." [73] . In Marconi's Wireless Telegraph Co. Ltd. v. The Commonwealth [No. 2] [74] the Court was unanimous in concluding that Crown privilege against discovery was not abrogated by the effect of s. 64. The Chief Justice regarded a claim to privilege as examinable but if, on examination, it proved to be well founded the Crown might still take advantage of it [75] . Barton J. appears to have taken a similar view; Isaacs J. took the opportunity of repeating what he had said in Miller's Case [72] and of emphasizing that the privilege of public interest remained available to the Crown.

1. (1905) 2 C.L.R., at p. 417. 2. (1905) 2 C.L.R., at p. 418. 3. (1905) 2 C.L.R., at p. 417. 4. (1910) 10 C.L.R. 742, at p. 756. 5. (1910) 10 C.L.R. 742, at p. 756. 6. (1910) 10 C.L.R., at p. 758. 7. (1913) 16 C.L.R. 178. 8. (1913) 16 C.L.R., at p. 186. 9. (1910) 10 C.L.R., at p. 756.

More recent cases throw little further light upon the effect of the qualification, "as nearly as possible". In Asiatic Steam Navigation Co. Ltd. v. The Commonwealth [76] the joint judgment of Dixon C.J., McTiernan and Williams JJ. suggests that where "purposes or functions peculiar to Government" are in question, s. 64 may have but limited application [77] - and see the reference to ships of war [78] . On the other hand Kitto J. speaks [79] of s. 64 as making the law as between subjects applicable "as completely as possible" to the Crown, any "special position of the Crown" being put out of account [80] . This would appear to give a relatively narrow field of operation to the words "as nearly as possible". In South Australia v. The Commonwealth [81] Dixon C.J. observed that the necessary difference between principles of private and public law had to be borne in mind in applying the law as between subject and subject to a cause concerning the rights and obligations of government. In Downs v. Williams [1] Gibbs J. remarked that "not every statute which imposes a duty on a subject can be rendered applicable to the situation of the Crown". The observations of Owen J. [2] , if they are to be understood as concerned with the effect of "as nearly as possible", would seem to give that phrase a very wide operation and one which I find difficult to reconcile with that not inconsiderable number of cases in which the substantive law applicable to subjects has been applied to the Crown. To these references may be added what was said by Newton J. inThe Commonwealth v. Burns [3] in relation to the Chief Justice's observations in South Australia v. The Commonwealth [4] to which I have already referred and, in particular, to the judgment of Else-Mitchell J. in The Commonwealth v. Lawrence [5] . In the latter case his Honour [6] provides instances of the possible operation of the phrase "as nearly as possible", instances which serve to emphasize the variety of cases to which the phrase may possibly have occasion to operate.

1. (1956) 96 C.L.R. 397. 2. (1956) 96 C.L.R., at p. 417. 3. (1956) 96 C.L.R., at p. 420. 4. (1956) 96 C.L.R., at p. 427. 5. (1956) 96 C.L.R., at p. 428. 6. (1962) 108 C.L.R., at p. 140. 7. (1971) 126 C.L.R., at p. 103. 8. (1971) 126 C.L.R., at pp. 91-92. 9. [1971] V.R., at p. 830. 10. (1962) 108 C.L.R. 130. 11. (1960) 77 W.N. (N.S.W.) 538; [1960] N.S.W.R. 312. 12. (1960) 77 W.N. (N.S.W.), at p. 540; [1960] N.S.W.R., at p. 315.

Whatever may ultimately come to be regarded as involved in the qualification, "as nearly as possible", I see no good reason for treating the provisions of s. 14 (1) (a) of the Limitation Act as subject to it. The considerations which in past cases have been suggested as guides to the content of this qualification do not suggest that such a section falls within its terms; were it otherwise the operation of s. 64 would be diminished to an extent far greater than is justified by the words "as nearly as possible", whether understood either according to their ordinary meaning or in the somewhat extended sense suggested by observations such as those of Isaacs J. in The Commonwealth v. Miller [7] .

Without attempting any general analysis of the extent of the qualification involved in "as nearly as possible", I am content to conclude that it does not operate to exclude from the operation of s. 64 the provisions of s. 14 (1) (a) of the Limitation Act.

The provisions of s. 64 antedate s. 14 of the Limitation Act by almost seventy years and were s. 64 to be regarded as applying only to laws then in force, as has sometimes been said to be the case, it would be necessary to look elsewhere than in the Limitation Act 1969 for some time bar possibly applicable in the present proceedings. However I prefer the view expressed by Windeyer J. in Suehle v. The Commonwealth [8] and adopted by Gibbs J. in Downs v. Williams [9] , namely that, as befits a provision which undertakes the sort of task which s. 64 performs, it has an ambulatory operation, applying to the state of the law as it changes with time.

1. (1967) 116 C.L.R. 353. 2. (1971) 126 C.L.R., at p. 100.

Finally, I observe that the facts of the present case are such as to avoid particular problems which have in the past been thought to give rise to particular difficulty. The legislation which the plaintiff seeks to invoke, the Limitation Act, is an enactment which involves no verbal infelicity when applied to the Commonwealth Crown; this no doubt because it is legislation which is intended to apply to the Crown - see s. 11 (1), indeed it is intended to extend to the Crown in all capacities so far as legislative power permits. Again, situations such as that envisaged by Else-Mitchell J. in The Commonwealth v. Lawrence [10] , in which s. 64 might seem, in federal jurisdiction, to override as against a State the operation of later State laws expressly excluding the State from particular obligations or liabilities, are of no relevance to the present case. These and other possible applications of s. 64 which may be thought to give rise to difficulty should, I think, await circumstances which bring them before the Court.

1. (1960) 77 W.N. (N.S.W.), at p. 541; [1960] N.S.W.R., at p. 316.

As has been remarked in the past, some of the possible effects of s. 64, both upon the Commonwealth and upon the States and in relation both to Commonwealth statutes and to those of a State, may prove both obscure and curious. This is, I think, good reason narrowly to confine the grounds of this judgment. It is even better reason for careful scrutiny by those concerned with law reform into the potentialities of the section with a view to its amendment, so that the already existing doubts as to its operation may be resolved and difficulties as yet to be encountered may be avoided.

I answer the questions asked as follows: (a) unnecessary to answer; (b) as to s. 14 (1) (a) of the Limitation Act 1969 N.S.W., Yes; as to s. 63 of that Act, it is unnecessary to answer.

The question which we have to answer in this case concerns the possible application of ss. 14 (1) (a) and 63 of the Limitation Act, 1969 N.S.W. to a claim made in the Supreme Court of New South Wales by the Commonwealth Trading Bank ("the Bank") to recover the balance of a current account said to be owing to it by a customer. The trustee of the Bank's customer paid into court under the provisions of the Trustee Act, 1925 N.S.W., as amended, a sum of money so that claims upon that fund by creditors might be judicially determined. The Bank made a claim against the fund on the footing that the customer was an unsecured creditor in respect of the amount of the debt. This claim was resisted on the ground that any action to recover the debt would be barred or extinguished by the statutory provisions to which I have referred. The issue is whether these provisions apply so as to bar or extinguish the Bank's claim.

I put to one side the question whether the provisions of the State statute could apply of their own force to a debt owing to the Bank, for it is my opinion that the provisions of the statute are picked up and made applicable in any action that the Bank could bring to recover the debt by s. 64 of the Judiciary Act 1903, as amended. That section provides:

In any suit to which the Commonwealth or a State is a party, the rights of parties shall as nearly as possible be the same, and judgment may be given and costs awarded on either side, as in a suit between subject and subject.

It is ambulatory in its operation and will therefore make applicable the terms of the relevant statute, whether Imperial, Commonwealth or State, as they are expressed from time to time (Moore v. The Commonwealth [11] ; Downs v. Williams [12] ).

1. (1958) 99 C.L.R. 177. 2. (1971) 126 C.L.R., at p. 100.

The first issue to be resolved is whether the Bank is comprehended by the expression "the Commonwealth" within the meaning of the section. Inglis v. Commonwealth Trading Bank of Australia [13] decided that when an action is brought against the Bank the action is one in which the Commonwealth or a person being sued on behalf of the Commonwealth is a party within the meaning of s. 75 (iii.) of the Constitution. Although it was unnecessary in that case to decide into which part of s. 75 (iii.) the matter fell, Barwick C.J. preferred "to regard the matter as one in which the Commonwealth was a party" [14] . The view of Kitto J., with whom Windeyer J. agreed, is less than clear upon this point. His Honour quoted the remarks of Griffith C.J. in Heiner v. Scott [15] concerning the original Commonwealth Bank Act 1911: "Probably the true effect of the Act is a declaration that the Commonwealth may itself carry on the business of banking under the name of the "Commonwealth Bank of Australia" ", and his Honour went on to say [16] :

The Banking Case [17] shows that the statement is true without the word "probably"; and in my opinion a similar statement may be made with respect to the provisions of the Commonwealth Banks Act 1959, substituting for the "Commonwealth Bank of Australia" the names of the three banks amongst which that Act divides so much of the business of government banking as the Reserve Bank Act has not declared that the Commonwealth may carry on under the name of the "Reserve Bank of Australia". 1. (1969) 119 C.L.R. 334. 2. (1969) 119 C.L.R., at p. 336. 3. (1914) 19 C.L.R. 381, at p. 393. 4. (1969) 119 C.L.R., at p. 342. 5. (1948) 76 C.L.R. 1.

From these observations it might be thought that Kitto J. was disposed to take the same view as that expressed by the Chief Justice. But his Honour's conclusion was that the action was one in which the Bank was being sued on behalf of the Commonwealth. How his Honour arrived at this conclusion in view of his earlier reference to the judgment of Griffith C.J. in Heiner v. Scott and the comment which he made as to its application to the Inglis Case is by no means apparent. For my part, agreeing as I do with Kitto J.'s reasoning, I prefer to accept the conclusion for which the Chief Justice expressed a preference, namely that the action was one in which the Commonwealth was a party.

The command in s. 81 of the Constitution that "All revenues or moneys raised or received by the Executive Government of the Commonwealth shall form one Consolidated Revenue Fund" is not an obstacle to this conclusion. This section is not addressed to statutory corporations which represent the Commonwealth through which the Commonwealth carries on an activity or undertaking. How the Commonwealth could effectively carry on or participate in banking business if it were compelled to pay all moneys raised or received in the course of the conduct of that business into Consolidated Revenue was not explained.

On the view that the Bank is the Commonwealth it would seem to follow that the suit is one to which the Commonwealth is a party within the meaning of s. 64 of the Judiciary Act. This conclusion is inevitable unless the expression "the Commonwealth" in that section is to be confined to the Commonwealth stricto sensu so as to exclude a statutory corporation which is an agent or instrumentality of the Commonwealth.

Section 75 (iii.) of the Constitution draws a distinction between the Commonwealth and a person suing or being sued on behalf of the Commonwealth. Yet the effect of the provision is to bring all actions in which the Commonwealth and such a person are parties within the perimeter of federal jurisdiction. Although the distinction that is drawn by s. 75 (iii.) provides some reason for thinking that the expression "the Commonwealth" might be used in a restricted sense in s. 64 of the Judiciary Act so as to exclude statutory corporations which represent the Crown, I do not think that the section should be given such a narrow construction. It would be a surprising result, to say the least of it, if s. 64 were to equate the rights of the Commonwealth to those of the citizen, yet leave a statutory corporation representing the Crown in right of the Commonwealth in possession of immunities and privileges attaching to it merely because it represents the Crown. The conclusion is, I think, inescapable that the expression "the Commonwealth", at least where it appears in ss. 56, 57 and 64 of the Judiciary Act, includes statutory corporations representing the Crown, certainly in cases where, as here, it is the Commonwealth that is carrying on the relevant activity under a corporate name.

There may be some question whether "the Commonwealth" bears such a broad meaning in ss. 61, 65, 66 and 67 of that Act, but these provisions are procedural in character, dealing with the name in which the Commonwealth may sue, and execution and satisfaction of judgments in suits in which the Commonwealth is a party. Likewise s. 55e, which was inserted by Act No. 55 of 1966, is a special provision setting out the persons or bodies for whom the Crown Solicitor may act. Even if in these provisions the expression "the Commonwealth" should be more narrowly construed, I would not regard that circumstance as requiring that a similar interpretation be given to ss. 56, 57 and 64.

It will be recalled that in Pitcher v. Federal Capital Commission [18] Knox C.J. and Powers J. held that ss. 56 and 64 applied to the Commission on the footing that it was "a corporation to which is handed over the administration of what is really a department of the Commonwealth Government". And in Naismith v. McGovern [1] , s. 64 was held to apply to a suit in which the Commissioner of Taxation was a party, his function in collecting the revenue being that of a department of government according to traditional notions. As Latham C.J. observed in South Australia v. The Commonwealth (the Uniform Tax Case) [2] , it is impossible to distinguish "within functions of government, between essential and non-essential or between normal or abnormal", and "any activity may become a function of government if parliament so determines". There is accordingly no reason why a distinction between essential and non-essential functions of government should be drawn in applying s. 64 to statutory corporations which represent the Commonwealth.

1. (1928) 41 C.L.R., at p. 389 et seq. 2. (1953) 90 C.L.R. 336. 3. (1942) 65 C.L.R. 373, at p. 423.

In one sense it is sufficient to dispose of this case to say that s. 64 certainly applies to procedural rights. Even if the authorities leave other questions obscure they at least speak plainly upon this point. The consequence is that s. 64 operates so as to make applicable to the Bank the provisions of s. 14 (1) of the Limitation Act which bar the remedy of the Bank after the expiration of six years from the date on which the Bank's cause of action first accrued, for this provision is unquestionably procedural and not substantive in character, barring the remedy after the lapse of the prescribed period of time (Pedersen v. Young [3] ; John Robertson & Co. Ltd. v. Ferguson Transformers Pty. Ltd. [4] ); it does not extinguish the cause of action itself: cf. William Crosby & Co. Pty. Ltd. v. The Commonwealth [5] .

1. (1964) 110 C.L.R. 162, at p. 166. 2. (1973) 129 C.L.R., at pp. 92-93. 3. (1963) 109 C.L.R. 490, at p. 493.

But, as there is the further question whether s. 63 (2), which is a substantive provision, also applies to extinguish the Bank's rights, there is a strong reason for examining the more controversial question whether s. 64 operates so as to pick up and make applicable to the Bank substantive as well as procedural provisions. In my opinion it does.

This conclusion is in conformity with the language of the section which refers to "the rights of the parties" "in any suit", without qualifying those rights in any way. The subsequent reference to the giving of judgment, a judgment which necessarily gives effect to the rights of the parties, both substantive and procedural, suggests that the rights dealt with by the section are of the same character. The immediate context in which s. 64 appears provides some support for the contrary view: ss. 61-63 and 65-67 are procedural in character. But the force of this consideration is diminished by the circumstance that these sections begin with the name in which the Commonwealth may sue and end with the provisions relating to execution. As they span the litigious process from institution to execution it is not incongruous that at an appropriate point the provisions happen to deal with the substantive rights to which effect shall be given.

Support for this broad view of the section is provided by the decision of the Privy Council in Farnell v. Bowman [6] on ss. 2 and 3 of the Claims against the Government Act, 1876 N.S.W., where the sections were held to apply to substantive as well as to procedural rights. There the statute contained an earlier reference to "proceedings" which perhaps assisted the conclusion that the reference to "rights" was not limited to matters of procedure. However, it is not a feature which in my view supplies a sufficient point of distinction from s. 64. In Baume v. The Commonwealth [7] , this Court unanimously held that s. 64 should be given a construction similar to that favoured in Farnell v. Bowman, being of opinion that the language of the section was indistinguishable from that of s. 3 of the Claims against the Government Act, 1876. Although Isaacs J. in Griffin v. South Australia [8] thought that s. 64 was confined to procedural rights, the current of opinion has flowed in the opposite direction. Pitcher's Case [9] , to which I have referred in another connexion, is authority for the proposition that the section applies to substantive as well as procedural rights. There all the members of the Court held that ss. 56 and 64 of the Judiciary Act operated to pick up and apply the provisions of the Compensation to Relatives Act, 1897 N.S.W.. In Asiatic Steam Navigation Co. Ltd. v. The Commonwealth [10] , Kitto J. said that the rights referred to in s. 64 included substantive as well as procedural rights and that the section made applicable to the Commonwealth and State "the whole body of the law by which the rights of the parties would be governed if the Commonwealth or State were a subject instead of being the Crown". Fullagar J. disagreed, asserting that s. 64 does not operate to pick up and apply to the Commonwealth a statute the express terms of which exclude the Crown [11] . Although Dixon C.J., McTiernan and Williams JJ. left the question undecided [12] , they said nothing to indicate their support for the view that the rights referred to in the section are procedural only.

1. (1887) 12 App. Cas. 643. 2. (1906) 4 C.L.R. 97. 3. (1924) 35 C.L.R., at p. 204. 4. (1928) 41 C.L.R. 385. 5. (1956) 96 C.L.R., at p. 427. 6. (1956) 96 C.L.R., at p. 424. 7. (1956) 96 C.L.R., at p. 417.

In The Commonwealth v. Anderson [12a] , Menzies J. referred to the remarks of Kitto J. in the Asiatic Case, specifically disagreeing with the remarks of Kitto J. in that case, pointing out that if s. 64 were held to apply to substantive rights, its validity would require consideration in view of its reference to the rights of a State as well as to those of the Commonwealth. Menzies J. reiterated his view in Downs v. Williams [13] . However, in that case Gibbs J. [14] expressed his agreement with the observations of Kitto J. in the Asiatic Case and his disagreement with the view of Fullagar J. His Honour drew attention to the fact that Fullagar J. had relied on the remarks of Viscount Simonds in Nisbet Shipping Co. Ltd. v. The Queen [15] , evidently without appreciating, as Dixon C.J., McTiernan and Williams JJ. noted, that the Nisbet Shipping Co. Case, unlike the Asiatic Case, was one in which it was necessary to reconcile two enactments of the one legislature.

1. (1960) 105 C.L.R., at pp. 317-318. 2. (1971) 126 C.L.R. 61, at p. 69. 3. (1971) 126 C.L.R., at pp. 100-102. 4. [1955] 1 W.L.R. 1031, at p. 1036; [1955] 3 All E.R., at p. 164.

The inclusion in s. 64 of the reference to the rights of a State does create a difficulty which is more readily eliminated if the section is confined to procedural rights. The extent to which the Commonwealth may legislate so as to affect the substantive rights of a State in the exercise of federal jurisdiction is an unexplored question. In the exercise of the powers conferred by s. 51 the Commonwealth may make laws which alter or affect such substantive rights, but it is doubtful, to say the least of it, whether the Commonwealth possesses a universal competence with respect to such rights, say, for example, by virtue of s. 51 (xxxix.). Even so, this is not to my mind a sufficient reason for confining the operation of s. 64 to procedural matters. The section can, and if need be should, be read as applying to all such rights as lie within the reach of the legislative power.

In this case we are not concerned to decide whether a State statute, which explicitly excludes the Crown from its operation, is attracted to the Commonwealth by virtue of s. 64 because the Limitation Act is expressed to apply to the Crown. Consequently, the observations of Fullagar J. in the Asiatic Case [16] do not assist the Bank. It will be recalled that his Honour thought that the section could not attract to the Commonwealth State laws which were expressed to exclude the Crown. As I understand his Honour's remarks, he did not confine the operation of the section to procedural matters but thought that it extended to substantive rights, subject to the qualification which I have already mentioned. However, I should not let the occasion pass without expressing my disagreement with his Honour's view. What the section does is to equate the rights of the Commonwealth to those of the citizen. In so far as the rights of the citizen are created by a State law, it is an irrelevant consideration that the Crown is excluded from the operation of the State law. The section looks to the rights of the citizen as against a fellow citizen; it does not look to the rights of the citizen as against the Crown. The precise content of the words "as nearly as possible" is obscure. Whatever they may mean, they cannot be regarded as preserving in every case the special position of the Crown as it exists under State law.

In the view I take of this case I have no occasion to consider the doctrine which was enunciated in The Commonwealth v. Cigamatic Pty. Ltd. [17] . However, I should point out that no mention was made of s. 64 in that case, although there seems to be no reason why it should not have had an application if it extended to substantive rights. None the less, as the section was not argued I do not regard the decision as constituting authority for the proposition that the section does not apply to substantive rights.

I would answer the questions asked - (a) Unnecessary to answer. (b) Yes.

The Limitation Act, 1969 N.S.W. provides in s. 14 (1) that action on certain causes of action (among them simple contract debts) is not maintainable if brought after the expiration of a limitation period of six years running from the date on which the cause of action first accrues. It further provides by s. 63 (1) that on the expiration of a limitation period for a cause of action to recover, among other things, a debt, the right and title of the person formerly having the cause of action is, against the person against whom the cause of action formerly lay and as against his successors, extinguished.

The Commonwealth Trading Bank of Australia was owed certain money on current account by partners carrying on the business of Nobles Narrandera Quarries. The last dealing in the partnership bank account was entered on 15th February 1966 and that left a debit balance in the account at that date of $5,325.17. Shortly thereafter the main assets of the partnership were agreed to be sold. The sale was not completed until 1972. The net proceeds of sale, $9,832, were retained in solicitors' trust accounts until 7th February 1975 when an order of the Supreme Court of New South Wales was made that that sum be paid into court, to be retained pending the further order of the Court. Notice of proceedings to determine claims to the fund was given to various interested parties. In the proceedings before Holland J. in early April 1976 the Bank appeared to support its claim. The plaintiffs submitted that the Bank's claim was not an enforceable debt because it was barred and extinguished by operation of s. 14 (1) and s. 63 (1) of the Limitation Act. In reply the Bank asserted that the Limitation Act did not validly apply to the Bank. Holland J. held that an inter se question had thereby arisen and that the proceedings were removed into this Court by the operation of s. 40a of the Judiciary Act.

Upon the matter being removed into this Court, Barwick C.J. stated a question on agreed facts for determination by a Full Court as follows:

Would ss. 14 (1) (a) and 63 of the Limitation Act, 1969 N.S.W. be applicable in an action commenced in the Supreme Court of New South Wales by the Commonwealth Trading Bank of Australia in which it sought to recover the balance of a current account said to be owed to it by a customer -

If any provision of the Judiciary Act governs the matter then the question whether in the absence of that provision the sections of the Limitation Act would be applicable to the Bank, a question which would probably require a reconsideration of the reasons for decision in The Commonwealth v. Cigamatic Pty. Ltd. [18] , is hypothetical. I think that it is therefore correct to examine first the effect of the Judiciary Act. At the same time, however, I am conscious of the somewhat curious situation that the effect of the Judiciary Act was not discussed in the reasons for judgment of any member of the Court in Cigamatic and yet it would appear to me that, at least in respect of the moneys owing to the Commonwealth under the Post and Telegraph Act 1901 and the Telephone Regulations and Telegraph Regulations, the provisions of the Judiciary Act were as relevant there to be considered as they are in the present case. Nevertheless it appears to me that the question whether the reasoning in Cigamatic involves a revival of the doctrine of implied immunity of instrumentalities and whether it is essentially consistent with the Engineers' Case [19] should not be pursued unless its determination is essential to the present decision.

1. (1962) 108 C.L.R. 372. 2. (1920) 28 C.L.R. 129.

I turn therefore to the Judiciary Act, and in particular to s. 64 which provides:

In any suit to which the Commonwealth or a State is a party, the rights of parties shall as nearly as possible be the same, and judgment may be given and costs awarded on either side, as in a suit between subject and subject.

The power to enact this provision, so far as it confers rights to proceed against the Commonwealth or a State, springs from s. 78 of the Constitution - "The Parliament may make laws conferring rights to proceed against the Commonwealth or a State in respect of matters within the limits of the judicial power." The matters within the limits of the judicial power, as set out in ss. 75 and 76, include those in s. 75 (iii.) and (iv.). It appears to me to be the acceptable interpretation that the latter sub-sections are the source of federal jurisdiction, but that the rights against the Commonwealth or a State enforceable in that jurisdiction are those conferred by the Parliament by virtue of s. 78. The opinion of the majority in The Commonwealth v. New South Wales [20] was that s. 75 (iii.) was itself the source of substantive rights; but see Musgrave v. The Commonwealth [21] and Werrin v. The Commonwealth [22] , in particular the discussion of the problem by Dixon J. in the latter case [23] . Since s. 64 deals not only with suits where the Commonwealth is a party but also with suits where a State is a party, it appears to me that the source of its validity is partly at least to be found in s. 78 of the Constitution.

1. (1923) 32 C.L.R. 200. 2. (1937) 57 C.L.R. 514. 3. (1938) 59 C.L.R. 150. 4. (1938) 59 C.L.R., at pp. 167-168.

It is true that s. 78 of the Constitution deals only with rights to proceed against the Commonwealth or a State whilst s. 64 of the Judiciary Act deals with rights of the Commonwealth or a State in all suits where the Commonwealth or a State is a party, plaintiff or defendant. The source of the power to prescribe the rights of a State when that State is seeking relief rather than the subject of proceedings against it is not clear to me, but that question does not arise in the present case. However, the fact remains that s. 64 of the Judiciary Act in so far as it deals with rights to proceed against the Commonwealth or a State is enacted pursuant to s. 78 and that fact is, I think, of some assistance in determining whether the subject matter of s. 64 includes not only procedural rights but also substantive rights. Once jurisdiction is found to be conferred by s. 75 (iii.) and (iv.), procedural rights would, in the absence of particular provision by the Parliament, be governed by the rules of procedure of the court exercising the federal jurisdiction. It therefore appears to me that when the Parliament enacted s. 64 of the Judiciary Act a main purpose was to prescribe by virtue of s. 78 of the Constitution the rights against the Commonwealth or a State which would be enforceable in a court exercising federal jurisdiction when the source of the federal jurisdiction was the fact that the Commonwealth was a party as provided in s. 75 (iii.) or a State was a party in the circumstances provided in s. 75 (iv.) of the Constitution.

Since the prescription of rights to proceed against the Commonwealth or a State was in this way a purpose of s. 64 the section cannot be treated as dealing only with procedural matters. The words "rights to proceed" in s. 78 are appropriate to refer to rights which entitle a person to proceed, to initiate an action, against the Commonwealth or a State. They cannot be limited to procedural matters in an action already initiated. That being so, there is no reason why s. 64 should not be construed as dealing with the prescription of substantive rights, including the rights of the parties when the Commonwealth is a plaintiff as well as when it is a defendant. This conclusion, I think, accords with the general current of authority in this Court although it must be conceded that the line of authority is not wholly clear and consistent. I cannot usefully add anything to the analysis of the cases which has been made in the reasons for judgment of other members of the Court.

It has been held that the Commonwealth Trading Bank of Australia is "the Commonwealth or a person suing or being sued on behalf of the Commonwealth" within the meaning of those words in s. 75 (iii.): Inglis v. Commonwealth Trading Bank of Australia [24] . Section 78 refers only to the Commonwealth and not to a person being sued on behalf of the Commonwealth but I do not think that the difference in language has a significant difference in effect. Section 75 (iii.) deals with cases where the Commonwealth in substance, though not necessarily in form, is suing or being sued. The intention was to make the words as comprehensive as possible. I do not think that it was intended to make a definitive categorization between the Commonwealth on the one hand and on the other hand a person suing or being sued on behalf of the Commonwealth. In this context the word "Commonwealth" in s. 78 should be taken to embrace not only the case where in form the Commonwealth is the actual party on the record but also the case where the actual party is a person being sued on behalf of the Commonwealth. Section 64 of the Judiciary Act should be construed in the same manner. I would, however, add, although in the event it is not necessary to be decided, that it does not follow that, because the Bank falls within the descriptions in s. 75 (iii.) and the description in s. 78 of the Constitution, it is necessarily the Crown in right of the Commonwealth so that there is attracted to it any prerogative immunity of the Crown in respect of limitation of action. The latter subject matter and the subject matter of s. 75 (iii.) are different. Section 75 (iii.) should be given a wide construction and effect: the Banking Case [25] ; Inglis's Case [26] , per Barwick C.J. On the other hand the Crown prerogative does not generally extend as widely. Cf. Rural Bank of New South Wales v. Bland Shire Council [27] ; Rural Bank of New South Wales v. Hayes [28] . But on this aspect I do not need to express a concluded view. Section 64 of the Judiciary Act is applicable and therefore the rights of the Bank (as "the Commonwealth" within the meaning of the word in that section) and of a person sued by it for the recovery of money lent are to be as nearly as possible the same as in a suit between subject and subject. In a suit between subject and subject ss. 14 (1) and 63 (1) of the Limitation Act would apply and those sections likewise would be applicable in an action by the Bank to recover the balance of a current account.

1. (1969) 119 C.L.R. 334. 2. (1948) 76 C.L.R. 1. 3. (1969) 119 C.L.R., at pp. 335-336. 4. (1947) 74 C.L.R. 408, at p. 417. 5. (1951) 84 C.L.R. 140, at p. 146.

I would therefore answer the questions as follows: (a) Unnecessary to answer; (b) Yes, by virtue of s. 64 thereof.

This matter was removed into this Court by operation of s. 40a of the Judiciary Act 1903, as amended. The Chief Justice directed that the following question be argued before a Full Court:

Would ss. 14 (1) (a) and 63 of the Limitation Act, 1969 N.S.W. be applicable in an action commenced in the Supreme Court of New South Wales by the Commonwealth Trading Bank of Australia in which it sought to recover the balance of a current account said to be owed to it by a customer -

The Limitation Act, 1969 N.S.W., in so far as it purports to apply of its own force to the Commonwealth Trading Bank, is invalid (Williams v. Hursey [29] ). The collection of debts by the Commonwealth Trading Bank is a subject of dominant federal interest. The State Act is pre-empted by federal law in the absence of an intention to allow the State Act to operate. No such intention is expressed or implied in the Commonwealth Banks Act 1959 Cth.

The Commonwealth Banks Act does not confer any governmental (Crown) privileges on the Commonwealth Trading Bank in relation to its debts. The function of the Bank is to carry on general banking business (s. 28). The Parliament did not intend to put the Bank's customers in the position of a subject dealing with the Crown (that is, in a worse position than customers of private banks). This would have disadvantaged the Bank as well as its customers and others. I find no reasons for (and many against) introducing notions of governmental privilege into this area.

In any suit to which the Commonwealth or a State is a party, the rights of parties shall as nearly as possible be the same, and judgment may be given and costs awarded on either side, as in a suit between subject and subject. The Bank is regarded as the Commonwealth for the purposes of s. 75 of the Judiciary Act (Inglis v. Commonwealth Trading Bank of Australia [30] ). It is also the Commonwealth for the purposes of s. 64 of the Judiciary Act. The main arguments in this case centred on whether s. 64 was confined to procedural rights. In my opinion, s. 64 applies to substantive as well as procedural rights. This construction is supported by the weight of authority, the most important of which is Asiatic Steam Navigation Co. Ltd. v. The Commonwealth [31] . 1. (1969) 119 C.L.R. 334. 2. (1956) 96 C.L.R. 397.

Section 64 is ambulatory, as the Commonwealth conceded in Moore v. The Commonwealth [32] . Jordan C.J.'s construction in Washington v. The Commonwealth [33] was too restrictive.

1. (1958) 99 C.L.R., at p. 182. 2. (1939) 39 S.R. (N.S.W.) 133.

The consequence of this construction of s. 64 is that, in the absence of uniform State laws on a subject, the party to a suit to which the Commonwealth or a State is a party may be dealt with differently (not only procedurally but substantively) according to the State in which the action is heard or decided. This may mean that a person in one State will have a right to succeed against the Commonwealth while a person in similar circumstances in another State will not; and a person may be liable to the Commonwealth where a person in similar circumstances in another State will not be liable. The issue of the Parliament's competence to use (directly or, as in this case, indirectly) its legislative power to make different laws for those in different States, and so to discriminate between the people of various States was not raised. The effect, if any, of s. 99 of the Constitution was not raised. It was not contended that the discriminatory consequences should tell against imputing to Parliament the intention to deal with substantive law in s. 64.

Thus, s. 64 of the Judiciary Act incorporates by reference the provisions of the Limitation Act and makes them applicable to the Bank. The Limitation Act becomes, for this purpose, surrogate Commonwealth law.

Although s. 64 contains the qualification "as nearly as possible", I see no basis for holding that it is impossible to apply the Limitation Act. The present case is not concerned with "special situations arising out of purposes or functions peculiar to Government" (referred to by Dixon C.J. and McTiernan and Williams JJ. in Asiatic Steam Navigation Co. Ltd. v. The Commonwealth [34] ).

It follows that the questions asked should be answered: (a) No. (b) Yes.