the Commonwealth of Australia v Robert John Mewett [1994] FCA 1444;

the Commonwealth of Australia v Robert John Mewett [1994] FCA 1444; - FCA 1994 case summary — Zoe

[44]

"... 'acquisition' in s 51(xxxi) extends to the

extinguishment of a vested cause of action, at least where

the extinguishment results in a direct benefit or financial

gain (which, of course, includes liability being brought to

an end without payment or other satisfaction) and the cause

of action is one that arises under the general law. The

position may be different in a case involving the

extinguishment or modification of a right that has no

existence apart from statute. That is because, prima facie

at least and in the absence of a recognised legal

relationship giving rise to some like right, a right which

has no existence apart from statute is one that, of its

nature, is susceptible of modification or extinguishment.

There is no acquisition of property involved in the

modification or extinguishment of a right which has no basis

in the general law and which, of its nature, is susceptible

to that course. A law which effected the modification or

extinguishment of a right of that kind would not have the

character of a law with respect to the acquisition of

property within s 51(xxxi) of the Constitution. (See Health

Insurance Commission v Peverill [1994] HCA 8; (1994) 119 ALR 675 per

Mason CJ, Deane and Gaudron JJ)

So far as the issues in this case are concerned, the effect

of s 44, if valid, is to extinguish a vested cause of action

that arose under the general law. That is so even if the

right to proceed against the Commonwealth is properly

identified as a statutory right. And its effect is to

confer a distinct financial benefit on the Commonwealth and

its agencies in respect of their pre-existing liability for

employment injuries falling outside s 45 of the Act. In our

view, the position is no different from that involved in the

extinguishment of a vested cause of action against the

Commonwealth for goods sold and delivered. Doubtless, Mr

Georgiadis and other workers provided their skill and labour

on the basis that they were entitled to damages at common

law as well as workers' compensation benefits if injured as

a result of Telecom's negligence. In that context, the

right to damages can realistically be seen as part of the

overall quid pro quo for the work performed. Thus and so

far as it bears on the issues in this case, s 44 is, in

substance, if not in form, a law for the acquisition of

causes of action against the Commonwealth and its agencies

which vested in employees before s 44 came into operation

but which now fall outside s 45 of the Act."

[86]

"In my view the liability of the Commonwealth for a tort has

its source in s. 56 of the Judiciary Act 1903-1965 (Cth).

This Court has jurisdiction to entertain such an action by

virtue of s. 75 of the Constitution. But in my view the

Constitution does not of its own force subject the

Commonwealth to liability in tort at the suit of a subject.

The Judiciary Act I consider does that. I say this having

regard especially to what Dixon J said in Werrin's Case

(Werrin v. The Commonwealth [1938] HCA 3; (1938) 59 CLR 150, at p 167)

although I am aware that the reasoning of the majority in

The Commonwealth v. New South Wales (1923) 32 CLR 200,

and some later judgments in this Court can be invoked for a

contrary view. If, as I think, it is s. 56 of the Judiciary

Act which makes the Commonwealth liable in tort at the suit

of a subject, then, in my view that section also provides

the answer to the question of law to be applied when a

subject brings such a suit. That, as I said during the

hearing, is because s. 56 seems to me to contain within

itself an implication that the law to be applied is the law

of the State where the tort was committed and the cause of

action arose. That is because jurisdiction in such a cause

is not exerciseable by all courts which, anywhere in

Australia, have jurisdiction in actions arising out of

'foreign' torts. The section states that a plaintiff who

sues the Commonwealth in contract or tort may do so in this

Court, or in the Supreme Court of the State or Territory in

which the claim arose, or (since the amendment made in 1960)

in any other court of competent jurisdiction in that State

or Territory. These are the only courts in which an action

can be brought by a subject against the Commonwealth. From

this I conclude that the intention of the Parliament of the

Commonwealth when it made the Commonwealth liable at the

suit of a subject was that, in whichever court of those

authorized to try it the action is brought, it is to be

tried according to the lex loci delicti; and when the action

is brought in this Court that becomes the lex fori. I see

no reason at all for supposing that the law to be applied in

such a case should vary according to whether the action were

brought in a South Australian court or in this Court and

that in this Court it would depend upon whereabouts in the

Commonwealth the Court should sit to try the case. I do not

think that ss. 79 and 80 of the Judiciary Act compel me to

any such conclusion. The policy which they reflect is, I

assume, that when this Court exercises jurisdiction in a

State in a matter which might have been litigated in a court

of that State the law which it is to apply should be the

same law as the State court would apply in like case.

Sections 79 and 80 thus attract the State law (including the

rules of private international law applicable as part of the

State law), and make it govern the proceedings in this

Court. But those sections apply only when the laws of the

Commonwealth do not otherwise provide. And in my view s. 56

is a law of the Commonwealth which makes a different

provision. The defendant sought to displace this conclusion

by reference to s. 64; but I do not think it has the effect

suggested."

[95]

"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 [1964] HCA 28; (1964) 110 CLR 162, at pp 165, 167.

However, the question arises whether s. 37 is made

applicable in the present case by s. 79 of the Judiciary Act

1903-1969 (Cth)...

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 (1964) 110 CLR, at pp 165, 167-168,

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) [1953] HCA 62; (1953) 88 CLR 168; Pedersen v. Young (164) 110

CLR, at pp 165-166; Re Young's Horsham Garage Pty. Ltd.

[1969] VicRp 118; (1969) VR 977, at p 979. 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 (1964) 110 CLR, at pp 167-168. 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 ..."

[100]

"However, s. 79 'does not purport to do more than pick up

State laws with their meaning unchanged': Pedersen v. Young

[1964] HCA 28; (1964) 110 CLR 162, at p 165; and see Commissioner of

Stamp Duties (N.S.W.) v. Owens (No. 2) [1953] HCA 62; (1953) 88 CLR 168, at

p 170. It was pointed out in John Robertson and Co. Ltd. v.

Ferguson Transformers Pty. Ltd. (1973) 129 CLR 65 that

there is an exception to the generality of that statement; a

State law may be rendered applicable by s. 79 to a court

exercising federal jurisdiction, which is not a State court,

notwithstanding that the law according to its own terms is

limited in its application to the courts of the State. The

actual question which arose in that case, and upon which the

Court was divided in opinion - whether a State statute of

limitation was rendered applicable by s. 79 to an action

which was given by a Commonwealth Act and which could only

be brought in the High Court - does not here concern us.

But the four Justices who considered the effect of s. 79 in

that case were, I consider, all in agreement that, subject

to an exception of the kind mentioned, s. 79 does not enable

a court exercising federal jurisdiction to give an altered

meaning to a State statute which it is required to apply

(1973) 129 CLR, at pp. 80-81, 83, 88, 94-95. Section 79

therefore has nothing to say on the question whether a State

statute which is to be applied by a court exercising federal

jurisdiction becomes binding on the Commonwealth. In the

present case if the Limitation Act does not of its own force

bind the Bank, s. 79 does not give its provisions an

extended operation which would render them binding upon the

Bank.

However, s. 64 of the Judiciary Act provides as follows:

'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 words of this section, naturally construed, appear to

have the effect that if the Commonwealth is a party to

proceedings its rights, and the rights of all other parties

to the proceedings, will be governed by any statute of

limitations that would be applicable if both parties were

subjects. In the present proceedings a subject in the

position of the Bank would have no rights against the fund,

because of the provision of s. 14(1)(a) and s. 63 of the

Limitation Act. The other parties to the proceedings would,

if the adverse claimant in the position of the Bank were a

subject, have rights to the fund free from the claims of

that adverse claimant. Unless some restriction should be

placed upon the apparently plain meaning of the words of

s. 64 their effect is that in any suit to which the

Commonwealth is a party the litigants on both sides shall as

nearly as possible have the same rights as if both were

subjects. In the present case this would bring about the

result that the rights of the Bank on the one hand and those

of the other parties to the proceedings on the other hand

will as nearly as possible be the same as if the Bank were

in the position of an ordinary subject. The qualification

introduced by the words 'as nearly as possible' creates no

difficulty; it is quite possible to apply a statute of

limitations to the Commonwealth and such a statute can

readily be applied to the Bank. Indeed the provisions of a

statute of limitations may as appropriately be applied to a

trading bank as to any other party. The effect of s. 64,

stated more directly, is that the Limitation Act, which is

to be applied in the proceedings by virtue of s. 79, is

rendered applicable to the Commonwealth as though it were a

subject, and therefore binds the Bank. The Limitation Act

is so applied by force of Commonwealth law, and not by its

own force as a State law. It may be accepted that because

s. 63 of the Limitation Act extinguishes the right of the

person whose claim is statute barred, the relevant

provisions of that statute cannot be regarded as merely

procedural. But s. 64 is not in terms limited to rights of

a procedural kind and no reason exists to imply a limitation

of that kind in a remedial provision expressed in the broad

terms of s. 64."

[106]

58. In McKain the question was whether, in an action brought in the Supreme Court of New South Wales in respect of an employment injury suffered in South Australia, the claim was barred by the relevant provision of the limitation legislation of that State. It was held that, contrary to what would have been the position in Koop and Anderson, substantive matters in the proceedings fell to be determined by the law of South Australia and not the law of New South Wales. The minority judgments, for differing reasons, held that the South Australian limitation provisions necessarily applied to the New South Wales proceedings including provisions for extension of time. The majority, however, (Brennan, Dawson, Toohey and McHugh JJ) held that they did not. In so holding, their Honours adhered to the traditional distinction between procedure and substance in limitation statutes. They held that the South Australian provision, because it merely barred the remedy without extinguishing the cause of action was a law of limitation relating to procedure. They further held that, in accordance with established doctrine, questions of procedure fell for determination in accordance with the lex fori, the law of New South Wales. Accordingly, the South Australian statute had no application. The minority judgments held to the contrary, either on the basis that limitation statutes which merely barred the remedy should no longer be regarded as simply procedural but should now be regarded as having substantive operation, or because s 118 of the Commonwealth Constitution required that the South Australian legislation be applied in the New South Wales proceedings by way of according to it "full faith and credit". The effect of the majority decision, if applicable in cases where the Commonwealth is sued in a national court, would, in the present case, appear to be that the Victorian limitation legislation which bars only the remedy could not be applicable. Section 14 of the Limitation Act, which also bars only the remedy and is therefore procedural, would apply. It would do so as part of the lex fori. What, however, would be the position in relation to s 63 of the Limitation Act which extinguishes the cause of action?

At a glance

Court

Decision date

Before

Source

Judgment (113 paragraphs)

the Commonwealth of Australia v Robert John Mewett [1994] FCA 1444; (1994) 126 ALR 391 (1 November 1994)

Parties

Legislation Cited (5)

Cases Cited (29)