Yrttiaho v Copely

Again if the rights of the parties depended solely on the provisions of s. 20 (1) (c) of The Acts Interpretation Acts, 1954 to 1962 Q. (the Act) I would agree that the Order in Council, being for purposes of that provision an Act, did not affect any right, interest, title, power or privilege within the meaning of that paragraph of s. 20 (1). Consequently on that assumption I would agree that the Order in Council could not be ignored in considering what procedure was applicable to the appellant's proceedings after it had become effective.

However, the rights of the parties quite clearly, in my opinion, do not depend either upon the common law rules or solely upon the provisions of s. 20 (1) (c). They depend in my view upon the provisions of s. 20 (1) (e) and its proper construction and application. The point of the case, in my opinion, is simply one of construction of that provision. The paragraph must of course be read as a whole. The matter cannot be resolved by merely reading so much of it as precedes the words "and any such investigation" etc. These words are part of par. (e), following the words "punishment as aforesaid". Read as a whole, I am quite unable to accept the view that when it refers to an investigation or legal proceeding or remedy that it is referring to the existence of a right to bring proceedings or to seek remedies or to conduct investigations. The prior paragraph does that if the right satisfies its terms. Paragraph (e) includes in its premise the supposition that at the time of the amendment there is on foot an actual investigation, legal proceeding, etc. It says and I quote it "any such investigation, legal proceeding, or remedy may be continued as if the repealing or amending Act had not been passed,". After due consideration, and with due respect for the views of those who may not share my opinion I am quite unable to apply this provision to the facts of this case otherwise than to treat the appellant as being in the position of being able to continue his action as if no amendment had been made to O. 90, r. 9. Prior to the amendment he was undoubtedly in the position that he could continue that action without the assistance of an order of a judge up to the expiry of six years from the date of the last step having been taken. The section, in my opinion, says in the plainest, and to my view the most unambiguous of language that he is to remain in that situation notwithstanding the amendment. It is not a matter of conceding him some vested right in court procedure. It is simply a matter of applying the clearly expressed provision of the statute.

It would, in my opinion, be an error first narrowly to construe the words "affect any legal proceeding" in the first part of the paragraph without reference to the latter part and then to treat the latter part as no more than an extrapolation of the first part so interpreted. No doubt the view which commends itself to me allows the statute to make a very considerable inroad upon accepted notions. But that results from the combination of the circumstances that the Parliament has seen fit to extend the Act so as to include Orders in Council and that this Order in Council is itself an amendment of Rules of Court dealing, at least prima facie, with matters of procedure. I am quite unable to give any other effect to what the Parliament has said than to say that, in my opinion, as the rights of the parties in relation to the continuance of the action in the circumstances do depend upon the application of s. 20 (1) (e) that paragraph does expressly provide that the legal proceeding, the action itself, may be continued as if there had been no amendment of O. 90, r. 9. Accordingly, in my opinion, the judgment of the Full Court ought not to be sustained.

However, a very difficult question arises as to what ought to be done in these circumstances. The original summons was misconceived. Viewing it narrowly, and applying the opinion I have expressed, the order dismissing the summons was right. The application was unnecessary and inappropriate. However, because of the course of events in the Full Court, it seems to me proper, and it seemed also proper to the parties in arguing before this Court that, if the appellant was right in the view that the Act operated to make it unnecessary for him to have had the leave of the judge to continue his action as at the date of the summons, it would be proper to treat that summons as large enough to enable an order to be made pursuant to it and as of the date of the primary judge's order that the appellant have leave to set the action down for trial and the appropriate directions as might be necessary to enable the trial to proceed. Accordingly, but only because of the course which was taken in the Full Court and before this Court I am of opinion that if the appeal is allowed as, in my opinion, it ought to be, the order should be that the order of the Supreme Court be set aside and that the appeal to that Court be allowed by varying the order of the primary judge so as to order that the plaintiff have leave to set the case down for trial and that the matter otherwise be remitted to a judge to give such directions as upon a summons for directions as might be proper.

This is an appeal from an order of the Full Court of Queensland [1] (Wanstall and Matthews JJ., W. B. Campbell J. dissenting) which, upon appeal from Skerman J., decided that the appellant's action was barred by O. 90, r. 9 of the Rules of the Supreme Court of Queensland.

This rule, as it stood before 12th February 1966, so far as is material, read:

When no proceeding has been taken in a cause for one whole year from the time when the last proceeding was taken, any party who desires to proceed shall, before taking any step in the cause, give a month's notice to every other party of his intention to proceed. When six years have elapsed from the time when the last proceeding was taken, no fresh proceeding shall be taken without the order of the Court or a Judge

By an amendment made on 4th December 1965, but taking effect from 12th February 1966, the word "three" was substituted for the word "six".

The plaintiff's writ had been issued in May 1963. An appearance had been entered on 24th June 1963 and it has been common ground that this entry of appearance was the last proceeding in the action taken prior to an application made on 15th August 1967 which is the subject matter of these proceedings. That was an application by the plaintiff -

For an order that, notwithstanding that three years may have elapsed from the time when the last proceeding was taken in this action, the Plaintiff may be at liberty to deliver a Statement of Claim and to take all such other steps as may be requisite under the Rules of the Supreme Court in order to bring this action to trial and in order to recover judgment herein against the abovenamed defendants. This application, which was made on the footing that O. 90, r. 9 as amended applied, was refused on its merits by Skerman J. In the Full Court the question of the application of the amended rule was raised and there the appeal was dismissed, the court deciding that the amended rule did apply. The case for the plaintiff appellant here is that it is the rule as it stood before its amendment that applies to this action; that the amended rule does not apply; that, accordingly, the application was not necessary under the rule as it stood because six years had not elapsed from the taking of the last step in the action; and that, despite its form, the summons should simply have been treated as a summons for directions made within time.

The point of substance is whether it is the rule as it stood before the amendment, or the rule as it stands after the amendment, that applies to this action. With this I will deal, disregarding what I see as other problems, including how a refusal to grant what is now said to have been an unnecessary application, or, to make an order upon a summons for directions, gives rise to an appeal as of right.

Prima facie, of course, it is the amended rule that governs procedure in current actions. Moreover, an application could have been made under the amended rule between 12th February 1966 and 24th June 1966. In the reasons for judgment of Gibbs J., which I have had the advantage of reading, authorities are cited which fully bear out the proposition that, were the matter to be governed by the common law, the rule applicable would be the rule as amended.

It is the existence of s. 20 (1) of The Acts Interpretation Act, 1954 to 1962 that is relied upon to preserve the operation of the rule as it stood before the amendment. This section, so far as it is relevant, is as follows:

18. (1) Saving of operation of repealed or expired Act as regards rights and liabilities thereunder, etc. Where any Act repeals or amends or has repealed or amended wholly or in part any former Act, or any Act or part of an Act expires or has expired, then, unless the contrary intention appears, such repeal or amendment or expiry shall not

(c) Affect any right, interest, title, power, or privilege created, acquired, accrued, established, or exercisable, or any status or capacity existing, prior to such repeal or amendment or expiry; or

(e) Affect any investigation, legal proceeding, or remedy in respect of any such right, interest, title, power, privilege, status, capacity, duty, obligation, liability, penalty, forfeiture, or punishment as aforesaid,

and any such investigation, legal proceeding, or remedy may be instituted, continued, or enforced, and any such penalty, forfeiture, or punishment may be imposed and enforced, as if the repealing or amending Act had not been passed, or as if the expired Act or part had not expired, as the case may be.

According to its terms this section applies to Acts, not Rules of Court, but by s. 3 of the Act its provisions in general apply to regulations made under an Act and the term "regulation" is expressed to include "Proclamation, Order in Council, rule, by-law and ordinance". Section 28 is a more particular provision making the Act applicable to Orders in Council and regulations. It follows, therefore, that the Rules of the Supreme Court of Queensland, being made by Order in Council, fall within the operation of s. 20 (1).

What then is the effect of s. 20 (1) upon O. 90, r. 9 for the purposes of this case?

Order 90, r. 9 was, and is, a provision operating to the disadvantage of a party to an action wanting to proceed therein after a season of delay. It gives nothing. What it takes away eventually is the right to proceed without a dispensing order of the Court. Such an order the Court may, in its discretion, refuse. In one sense, therefore, it gives a right to apply for dispensation, but that is merely a means of preventing the operation of the rule to halt proceedings. In substance, it gives nothing. In the absence of the rule a party could have proceeded with an action notwithstanding indefinite delay.

The first question is whether the restriction which the rule imposes is properly to be described as a "right, interest, title, power, or privilege created, acquired, accrued, established or exercisable". I think not. In the first place the language is not apt to cover the taking of steps in an action. The words I have cited are not appropriate to cover, for instance, the delivery of a statement of claim, the obtaining of an order for interrogatories or the setting down of an action for trial. In the second place the context is against reading s. 20 (1) (c) as maintaining, for a party to an action, the rules as they were when the action was commenced. It is s. 20 (1) (e) and the following words of s. 20 (1) that secure for a person who has something covered by s. 20 (1) (c) - and which may be referred to as a vested right - that legal proceedings may be instituted or continued in respect thereof.

The critical problem here, as I see it, is not whether s. 20 (1) (c) made the plaintiff's application for leave to proceed unnecessary, but whether s. 20 (1) (e) and the following words of s. 20 (1) did so.

The appellant's contention, in essence, is that, by virtue of these provisions, an amendment to the rules, in the absence of a provision to the contrary, does not affect an action in respect of what I have called the vested right, so that the action may be instituted and continued under unamended rules. This claim is a large one and its acceptance would be productive of a good deal of complexity.

The initial question is whether the plaintiff's cause of action, which arose on the day of his injury on 21st September 1962, is a vested right within s. 20 (1) (c); the second question is whether, if so, s. 20 (1) (e) and the concluding words of s. 20 (1) require an action to enforce the cause of action to be conducted according to the rules as they stood when the cause of action arose. It seems to me that the fact that the cause of action had been commenced before the amendment to the rules does not matter; the legal proceedings in respect of the cause of action may be "instituted, continued or enforced as if the amending Act had not been passed "

I am prepared to assume, rightly or wrongly, that the plaintiff, upon being injured, acquired a cause of action which is a right vested within s. 20 (1) (c) and propose to decide this case by reference to what I have called the second question. As to this I have had the advantage of reading the reasons of Gibbs J. for concluding, as his Honour does, that these provisions are intended to do no more than preserve the availability of proceedings and do not "preserve the procedure to be followed in the course of such legal proceedings". With that conclusion, and with his Honour's reasons for it, I agree, and to those reasons I do not wish to add anything. It is difficult to suppose that, had the time limited by the rule been extended instead of contracted, it is the unamended rule that would continue to apply.

Finally, no case has been made out for interfering with the discretion exercised by Skerman J. in refusing the order sought by the plaintiff appellant.

I have had the benefit of reading the judgment of Gibbs J. I concur generally in his Honour's reasons for concluding that this appeal should be dismissed: but, like Walsh J., I prefer not to indorse as a general proposition his Honour's view of the effect of the operation of a statute being postponed.

I have had the advantage of reading the reasons for judgment of Gibbs J. I agree with those reasons subject to one reservation, which I proceed to explain.

Gibbs J. came to the conclusion that the provisions of s. 20 (1) of The Acts Interpretation Acts, 1954 to 1962 Q., did not operate to prevent the application to the action in respect of which this appeal is brought of the amendment, which was made and took effect whilst that action was pending, of O. 90, r. 9 of the Rules of the Supreme Court. For that conclusion he gave reasons in which the terms of par. (c) and of par. (e) of s. 20 (1) were examined and were held not to prevent the amendment from applying to that action.

His Honour went on to express the opinion that if (contrary to his view) s. 20 (1) would preclude the operation of the amendment upon the pending action, unless the contrary intention appeared in the amending provision, then a contrary intention did appear in it. He regarded the fact that the operation of the amendment was postponed, by the Order in Council in which it was contained, to a future date some two months after that upon which the Order in Council was gazetted, as providing a sufficient indication of a contrary intention. It is upon this latter point that I wish to refrain from expressing any opinion. I agree with the conclusions as to the construction and effect of the provisions of s. 20 (1) which his Honour stated in his reasons before he dealt, upon the assumption that those conclusions were wrong, with the further question whether or not a contrary intention appeared in the amendment. Therefore I need not consider whether or not the postponement of the operation of the amendment should be held to have had the effect which his Honour would attribute to it As the question is one upon which judicial opinion has differed, I prefer to leave it unresolved in this case.

On or about 22nd May 1963 the appellant issued out of the Supreme Court of Queensland a writ against George Ernest Copely and Alfred Walker Smith claiming damages for personal injuries sustained by the appellant when a motor vehicle which he was driving came into collision on 21st September 1962 with another vehicle driven by Copely and owned by Smith. On 24th June 1963 Copely and Smith entered an appearance in the action. Under the Rules of the Supreme Court, as in force before the amendments effected by Order in Council published in the Queensland Government Gazette of 14th December 1965, it was then necessary for the appellant to take out a summons for directions (see O. 20, r. 1). However, the appellant did not take that or any other step. In explanation of this inaction evidence was given that the effects of the appellant's injuries had not become finally known until about June 1965, but even after that date nothing was done in the action until on 18th January 1967 a notice of intention to proceed was given in purported compliance with O. 90, r. 9 of the Rules of the Supreme Court. That rule now reads as follows:

When no proceeding has been taken in a cause for one whole year from the time when the last proceeding was taken, any party who desires to proceed shall, before taking any step in the cause, give a month's notice to every other party of his intention to proceed. When three years have elapsed from the time when the last proceeding was taken, no fresh proceeding shall be taken without the order of the Court or a Judge, which may be made either ex parte or upon notice. A summons on which no order has been made shall not be deemed a proceeding within this Rule; but notice of trial, although avoided by non-entry or countermanded, shall be deemed such a proceeding. However, the rule in its original form contained the words "six years" where the words "three years" now appear, and assumed its present form after its amendment by the Order in Council gazetted on 14th December 1965 to which I shall further refer. At the time when the notice of intention was given, both the defendants, Smith and Copely, had died, but the notice was given to the solicitors who had been acting for them. In reply to the notice, these solicitors pointed out that more than three years had elapsed from the date when the last proceeding had been taken in the action, which, it was agreed, was 24th June 1963. The appellant's solicitor assumed that O. 90, r. 9 in its amended form governed the proceedings in the action, and, on 15th August 1967, took out a summons for an order that, notwithstanding that three years might have elapsed from the time when the last proceeding was taken in the action, the appellant might be at liberty to deliver a statement of claim and to take all such other steps as might be requisite under the Rules of the Supreme Court in order to bring the action to trial and in order to recover judgment therein against the defendants. The summons was addressed to the defendants and to their solicitors.

The summons was adjourned from time to time before it was heard. During its currency, on 13th December 1968, the learned primary judge made an order that the Public Curator of Queensland as executor and trustee of the will of the defendant Copely and as executor of the will of the defendant Smith, be made a party to the action. The hearing of the summons commenced on 10th October 1969, and after a further adjournment the summons was finally dismissed by the learned primary judge on 4th June 1970. The learned primary judge held that there were sound reasons for not proceeding with the action before June 1965 and that the appellant himself could not properly be held blameworthy for the delay which had ensued after that time and for which his legal advisers were responsible. He was not prepared to find that any defendant would be likely to be prejudiced by reason of Copely's death, since that had occurred some months before June 1965. However, he held that, if the action were allowed to proceed, the Public Curator, as personal representative of Smith, would probably be prejudiced by the delay, because Smith, who died in August 1966, could probably have given material evidence and instructions had the action been prosecuted before his death.

From this decision an appeal was brought to the Full Court of the Supreme Court. The main ground argued in support of the appeal was that the amendment to O. 90, r. 9 was not applicable to the present action so as to affect the vested rights of the appellant. It followed from this argument that when the summons was issued the order which it sought was unnecessary, because six years had not then elapsed from the time when the last proceeding was taken. This six-year period did in fact elapse on 24th June 1969 while the summons was awaiting hearing, but in the view that I take it is not necessary to consider the consequences of this fact. The application was made to the learned primary judge on the basis that O. 90, r. 9 in its amended form was applicable to the case, and that his order was necessary before a further step could be taken. In the Full Court, an alternative argument was advanced that the learned primary judge had wrongly exercised his discretion and ought to have made an order under O. 90, r. 9, assuming that such an order was necessary before a fresh proceeding could be taken. The Full Court, by a majority, rejected these contentions and ordered that the appeal be dismissed [1] . From that order an appeal has been brought to this Court. The competency of the appeal is open to argument but no objection to competency has been lodged.

The question whether the appellant was prevented from taking a fresh proceeding in this action without the order of the Court or a judge when three years had elapsed from 24th June 1963, or only when six years had elapsed from that date, depends on whether O. 90, r. 9 applies in its amended or its unamended form. The amendment to the rule was effected by a Rule of Court made by Order in Council which, as I have said, was published in the Gazette on 14th December 1965. The rule commenced with the following words:

It is ordered that the Rules of the Supreme Court be amended as follows, such amendments to take effect as from the Twelfth day of February, 1966. It may be mentioned that Saturday 12th February 1966 was the day after the conclusion of the long vacation in Queensland which had commenced on Monday 20th December 1965. The rule then set out amendments to many of the existing rules of the Supreme Court; these amendments are extensive and varied in character. So far as O. 90, r. 9 is concerned the amending rule reads: Order 90 r. 9 is amended by deleting the word "six" and by inserting in lieu thereof the word "three".

The principal question that arises in the present case is whether the amendment so made applies in the present action, which was commenced before the amendment was gazetted, and in which the three-year period referred to in the amended rule had not expired either when the amendment was gazetted or when it took effect. The common law rules as to the interpretation of amending statutes are thus stated by Dixon C.J. in Maxwell v. Murphy [2] :

The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events. But, given rights and liabilities fixed by reference to past facts, matters or events, the law appointing or regulating the manner in which they are to be enforced or their enjoyment is to be secured by judicial remedy is not within the application of such a presumption. Changes made in practice and procedure are applied to proceedings to enforce rights and liabilities, or for that matter to vindicate an immunity or privilege, notwithstanding that before the change in the law was made the accrual or establishment of the rights, liabilities, immunity or privilege was complete and rested on events or transactions that were otherwise past and closed. The basis of the distinction was stated by Mellish L. J. in Republic of Costa Rica v. Erlanger [1] . "No suitor has any vested interest in the course of procedure, nor any right to complain, if during the litigation the procedure is changed, provided, of course, that no injustice is done" [2] . The learned Chief Justice went on to say that perhaps there could be no more practical summary of the principle which emerges from the cases than the following statement by a Canadian judge [1] : unless the language used plainly manifests in express terms or by clear implication a contrary intention -

(a) A statute divesting vested rights is to be construed as prospective.

(b) A statute, merely procedural, is to be construed as retrospective.

(c) A statute which, while procedural in its character, affects vested rights adversely is to be construed as prospective.

1. (1957) 96 C.L.R. 261, at p. 267. 2. (1876) 3 Ch. D. 62. 3. (1876) 3 Ch. D., at p. 69. 4. (1957) 96 C.L.R., at p. 270.

Most of the rules amended by the Order in Council gazetted on 14th February 1969 dealt with matters of procedure, but this does not necessarily mean that O. 90, r. 9 must also be classed as merely procedural. The period of three years now mentioned in O. 90, r. 9 is the same as that provided in the Law Reform (Limitation of Actions) Act of 1956 Q. as the period of limitation of actions of negligence where the damages claimed consist of or include damages for personal injury, so that when three years have elapsed since the last step has been taken in an action for damages for personal injury caused by negligence a new writ cannot be issued on the cause. The result is that not only is the action itself for ever stayed, unless the Court or judge makes an order to the contrary, but the plaintiff's cause of action is for ever barred by the Statute of Limitations in every court to which the three-year period applies. Considerations of this kind led Dixon C.J. in William Crosby & Co. Pty. Ltd. v. The Commonwealth [2] to suggest that O. 60, r. 12 (2) of the High Court Rules, which derived from O. 90, r. 9, may go further than procedure. However, although the amendment to O. 90, r. 9 might have affected vested rights if it had applied to cases where the three-year period had elapsed before the amendment took effect, in the present case, in my opinion, the operation of the amendment to O. 90, r. 9 was purely procedural. The amendment did not impair the appellant's right or bar his cause of action. After the amendment took effect the appellant remained entitled to continue with his action and enforce his right. It is true that it then became necessary for him to take a fresh proceeding in the action before 24th June 1966, unless he could obtain the leave of the Court or a judge, whereas previously the rule had allowed him until 24th June 1969 for this purpose. This only means that the rule governing the manner in which the action has to be conducted had been amended. The change was one in procedure; the amendment to the rule affected the manner in which the appellant might proceed in his action for the purpose of enforcing his right but the right remained enforceable. It is also true that the appellant cannot now proceed in the action, and is barred by statute from bringing another action to enforce the right, but that is due, not simply to the fact that the rule was amended, but to the inaction of the appellant or his legal advisers after the amendment was gazetted.

In Maxwell v. Murphy, Williams J. drew a distinction between the two classes of case that can arise. He said [1] :

An existing statute of limitation may be altered by enlarging or abridging the time within which proceedings may be instituted. If the time is enlarged whilst a person is still within time under the existing law to institute a cause of action the statute might well be classed as procedural. Similarly if the time is abridged whilst such person is still left with time within which to institute a cause of action, the abridgment might again be classed as procedural. But if the time is enlarged when a person is out of time to institute a cause of action so as to enable the action to be brought within the new time or is abridged so as to deprive him of time within which to institute it whilst he still has time to do so, very different considerations could arise. A cause of action which can be enforced is a very different thing to a cause of action the remedy for which is barred by lapse of time. Statutes which enable a person to enforce a cause of action which was then barred or provide a bar to an existing cause of action by abridging the time for its institution could hardly be described as merely procedural. The reasoning of Dixon C.J. in Chang Jeeng v. Nuffield (Australia) Pty. Ltd. [2] , suggests that he recognized a similar distinction. It is in my opinion a valid distinction, and the decisions are consistent with it, even when they do not expressly recognize it. The authorities support the view that an amendment to a Statute of Limitations may be regarded as being only of a procedural nature and, therefore, unless a contrary intention appears, retrospective in operation, if, being an amendment enlarging time, it took effect before the right sought to be enforced had become finally barred by lapse of time, and if, being an amendment reducing time, it left time after its commencement within which an action might be brought. In these circumstances the substantive rights of the parties are not affected by the alteration of the limitation period. In The Ydun [1] it was held in the Court of Appeal that the Public Authorities Protection Act, 1893 U.K., which was passed on 5th December 1893 and came into force on 1st January 1894, and which introduced a new limitation period of six months in the case of certain actions, dealt with procedure, and operated so as to bar an action, commenced by writ not issued until 14th November 1898, for damages sustained by the grounding of the plaintiffs' vessel on 13th September 1893 through the alleged negligence of the defendants. The six months' limitation period did not expire in that case until some months after the Act came into operation, and the plaintiffs therefore had an opportunity to commence an action within time. The fact that the Act was expressed to come into operation at a future date might have been regarded as significant, for reasons which I shall give later, but the members of the Court in their judgments do not deal with this aspect of the matter. The decision has frequently been cited and although the judgments have been criticized (see Maxwell v. Murphy [2] ) the decision itself has never been disapproved or overruled and was in my opinion correct. The Ydun [1] was a case, like the present, in which the statutory period of time was reduced. In Chang Jeeng v. Nuffield (Australia) Pty. Ltd. [1] and Australian Iron & Steel Ltd. v. Hoogland [2] , an amendment extending the time within which proceedings for workers' compensation might be commenced was held applicable to the cases before the Court, where the right to compensation had arisen before the date of the amendment, but the proceedings had not become finally barred before that date. Those cases are to be distinguished from Maxwell v. Murphy [3] where the plaintiff's right, which had been barred by lapse of time before the amending statute took effect, was not revived by the amendment. 1. (1957) 96 C.L.R., at pp. 277-278. 2. (1959) 101 C.L.R. 629, at pp. 636, 638. 3. [1899] P. 236. 4. (1957) 96 C.L.R., at pp. 270-271. 5. [1899] P. 236. 6. (1959) 101 C.L.R. 629. 7. (1962) 108 C.L.R. 471. 8. (1957) 96 C.L.R. 261.

In my opinion, the amendment to O. 90, r. 9 was purely procedural in its operation in the present case. If the common law rules are applicable, the amendment will be given a retrospective operation and will govern the present case.

However, on behalf of the appellant, it is submitted that the case is governed, not by the common law, but by the provisions of s. 20 (1) of the Acts Interpretation Acts, 1954 to 1962 Q., the material parts of which read as follows:

Where any Act repeals or amends or has repealed or amended wholly or in part any former Act, or any Act or part of an Act expires or has expired, then, unless the contrary intention appears, such repeal or amendment or expiry shall not -

(c) Affect any right, interest, title, power, or privilege created, acquired, accrued, established, or exercisable, or any status or capacity existing, prior to such repeal or amendment or expiry;

(e) Affect any investigation, legal proceeding, or remedy in respect of any such right, interest, title, power, privilege, status, capacity, duty, obligation, liability, penalty, forfeiture, or punishment as aforesaid,

and any such investigation, legal proceeding, or remedy may be instituted, continued, or enforced, and any such penalty, forfeiture, or punishment may be imposed and enforced, as if the repealing or amending Act had not been passed, or as if the expired Act or part had not expired, as the case may be.

Section 20, by its own terms, applies only to Acts. However s. 28 of the Acts Interpretation Acts provides (inter alia):

Where any Act confers upon any authority a power to make, grant, or issue any instrument (including any Proclamations, Orders in Council, regulations, rules, by-laws, or ordinances), then -

(b) Where the context admits and unless the contrary intention appears, this Act shall apply to any instrument so made, granted, or issued as if it were an Act, and in the case of Proclamations, Orders in Council, regulations, rules, by-laws, or ordinances as if each such Proclamation, Order in Council, regulation, rule, by-law, or ordinance were a section of an Act.

The original Rules of the Supreme Court, and the amending rules, were made by an authority under a power conferred by an Act and s. 28 (b), therefore, applies the Acts Interpretation Acts to both the original and the amending rules. It follows that s. 20 (1) will apply to the amending rules, assuming of course that the section is otherwise applicable.

Counsel for the appellant in his submissions relied more heavily on par. (c) than on par. (e) of s. 20 (1). His main argument was that immediately before the amendment was made the appellant had a power at any time until 24th June 1969 to proceed with his action on giving one month's notice of his intention to do so. He preferred to call it a "power", but it was unnecessary for his argument to enter into jurisprudential analysis: it was immaterial whether, properly speaking, there was a right accrued, or a power acquired or exercisable, or a capacity existing, within the meaning of s. 20 (1) (c), provided that the case answered one of these descriptions. His argument was that if the amendment applied to the present case the power would be "affected" within s. 20 (1) (c); it would be converted from a power exercisable until 24th June 1969 into a power exercisable only until 24th June 1966, or, as it was put, from a six-year power into a three-year power.

For convenience, I shall, in dealing with this argument, use the word "right", intending that word to include a reference to "power", "privilege" and "capacity", and, if it matters, to "interest", "title" and "status" as well. If on 12th February 1966 the appellant had a "right" within the meaning of s. 20 (1) (c) to proceed with the action in accordance with O. 90, r. 9, the amendment of the rule on that date would not affect that right, unless the contrary intention appeared from the Order in Council effecting the amendment. It may be noticed that O. 90, r. 9 did not itself give any right to proceed. If O. 90, r. 9 had not appeared in the rules, a party to an action was free to proceed with it in accordance with the other provisions of the Rules of the Supreme Court. Order 90, r. 9 placed restrictions on an existing right to proceed. If the appellant has a right which is affected by the amendment the source of that right must lie elsewhere in the rules and not in O. 90, r. 9. However, in my opinion, the appellant had no right within s. 20 (1) (c) because that paragraph on its proper construction does not refer to rights of a procedural kind, such as a right to take a fresh step in a pending proceeding. I do not, of course, deny that the expression "right", standing alone, would include a right belonging to the area of procedure. However, legal proceedings and remedies are dealt with in s. 20 (1) by par. (e) and by the words which follow it, which provide that prima facie an amendment shall not affect any investigation, legal proceeding or remedy in respect of an accrued right and which go on to provide for the institution, continuance or enforcement of any such investigation, legal proceeding or remedy as if the amending Act had not been passed. The express mention in these provisions of legal proceedings and remedies, and the contrast with the earlier paragraph which relates to rights, make it clear to my mind that par. (c) is not concerned with matters of procedure, but only with rights of a substantive kind (using the term "rights", as I have already indicated, to refer as well to the other concepts mentioned in the paragraph).

The real question, therefore, is whether the provisions of s. 20 (1) (e) and the following words of the subsection apply in the present case so as to preserve in force the procedure which was changed by the amendment of O. 90, r. 9. If they do have this effect, they completely reverse the rule of the common law that an amending statute which is purely procedural is to be construed as retrospective in its operation, unless a contrary intention appears, although the wisdom and convenience of that rule never seem to have been questioned. Plainly enough, par. (e) and the words which follow it require that, unless the contrary intention appears, an amending enactment shall be construed so that, notwithstanding the amendment, proceedings pending thereunder at the time of the amendment can be continued, and proceedings can be initiated after the amendment in respect of substantive rights acquired before the amendment took effect. The question is whether the subsection goes further and requires an amending statute to be construed, prima facie, in such a way as to preserve unaffected not only the legal proceeding or remedy itself, but also the course of procedure to be followed in taking the legal proceeding or pursuing the remedy. I had occasion to deal with this question in Smith v. Thiess Peabody Coal Pty. Ltd. [1] and I then said that it seemed to me -

that all par. (e) is intended to do is to preserve the availability of investigations, legal proceedings and remedies in respect of accrued rights, and not to preserve the procedure to be followed in the course of such legal proceedings. After further consideration I adhere to this view. It is true that the section provides that the amending Act shall not "affect" any legal proceeding and the word "affect" is of wide import. However, what is to remain unaffected is the legal proceeding or the remedy itself. A proceeding or remedy is not necessarily affected by an amendment to the procedure to be observed in the litigation. In the present case, for instance, if the amendment to O. 90, r. 9 is construed as applicable to pending matters, the amendment will not affect the legal proceeding, i.e. the action, which after as well as before the amendment could be continued in accordance with the procedure laid down in the Rules of the Supreme Court, or the remedy, i.e. an award of damages, which may still be obtained in a proper case. I conclude therefore that s. 20 (1) (e) refers to the legal proceeding and remedy themselves, and that the section does not reveal an intention to reverse the established rule of the common law that a merely procedural statute is, in the absence of an indication to the contrary, to be construed as retrospective. 1. [1965] Q.W.N. 38, at p. 47.

If I were wrong in this view, I would consider that a contrary intention appears from the amending provision sufficient to exclude the application of s. 20. As I have said, although the Order in Council was gazetted on 14th December 1965, it provided that the amendments should take effect as from 12th February 1966. Where the commencement of amending legislation, which shortens the time within which proceedings may be brought or continued, is postponed to a future date, no injustice is likely to result from giving retrospective effect to the amendment, since proceedings may be instituted, or a further step taken, before the amendment comes into operation. A provision postponing the commencement of a statute or rule in these circumstances may be regarded as revealing an intention that the enactment when it does come into effect should operate retrospectively. Reasoning of this kind was the foundation of the decision in Towler v. Chatterton [1] , and apparently also of that in Wright v. Hale [2] , and although the former case was the subject of some criticism in Moon v. Durden [1] , it was followed in Reg. v. Leeds and Bradford Railway Co. [2] . Some support for this view is also to be found in Ex parte Rashleigh; In re Dalzell [3] and Ings v. London and South Western Railway Co. [4] . In In re Athlumney; Ex parte Wilson [5] , Wright J. said:

"One exception to the general rule" (that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, other than as regards matter of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment) "has sometimes been suggested, namely, that where, as here, the commencement of the operation of an Act is suspended for a time, this is an indication that no further restriction upon retrospective operation is intended. But this exception seems never to have been suggested except in relation to statutes affecting procedure, such as Statutes of Limitation, and even in relation to them it is questioned in Moon v. Durden [6] ." In my opinion, although Wright J. was doubting the generality of any rule of construction that a postponing clause shows that the statute in which it appears is intended to operate retrospectively, he was not denying its application in some cases, such as the present, where the amendment is concerned with a matter of procedure, and particularly with the time within which something is to be done. For the reasons given, I hold that the amendment to O. 90, r. 9 had a purely procedural operation in the present case and, in my opinion, the fact that the Order in Council provided that the rules should take effect as from a date about two months thence was an indication that it was intended that when they did take effect they would govern pending proceedings as well as proceedings thereafter instituted. This would be a sufficient indication of intention that the provisions of s. 20 (1) (c) and (e) should not apply, assuming them to be otherwise applicable. 1. (1829) 6 Bing. 258, at p. 264 [130 E.R. 1280, at p. 1282]. 2. (1860) 6 H. & N. 227, at p. 231 [158 E.R. 94, at p. 95]. 3. (1848) 2 Ex. 22, at pp. 34-36 [154 E.R. 389, at pp. 394-395]. 4. (1852) 18 Q.B. 343 [118 E.R. 129]. 5. (1875) 2 Ch. D. 9, at pp. 13-14. 6. (1868) L.R. 4 C.P. 17, at p. 19. 7. [1898] 2 Q.B. 547, at p. 553. 8. (1848) 2 Ex. 22 [154 E.R. 389].

I hold, therefore, that the provisions of O. 90, r. 9 in their amended form applied to the present case once the amendments took effect on 12th February 1966, with the result that after 24th June 1966 the appellant was not entitled to take any fresh proceeding in the action without first obtaining the order of the Court or a judge.

The alternative ground stated in the notice of appeal, that the Full Court ought to have held that the learned primary judge exercised his discretion wrongly in failing to give leave to the plaintiff to take a fresh proceeding in the action, although not formally abandoned, was not pressed in argument before us. In exercising his discretion against the appellant the learned primary judge appears to have regarded as decisive the fact, as he found it, that the Public Curator, as personal representative of Smith, would probably be prejudiced in consequence of the delay if the action were allowed to proceed. The considerations relevant to the exercise of a discretion under O. 90, r. 9 have been discussed in a number of cases in the Supreme Court (see Campbell v. United Pacific Transport Pty. Ltd. [1] ; Kaats v. Caelers [2] ; Lucas v. Grimley [1] ; Tate v. McLeod [2] ; Gleeson v. Brock [3] ) and it has never been doubted that the prejudice that would be occasioned to a defendant by the delay if an order were made under O. 90, r. 9 is a material factor. It was right for the learned primary judge to consider in the present case the fact that prejudice would be occasioned by the delay and the weight which he gave to that matter lay within his discretion. Although it is impossible to say that the learned primary judge took any extraneous matter into account, it appears to have been suggested in the Full Court that he failed to have regard to a material consideration and that for that reason the exercise of his discretion is open to attack. In the reasons of W. B. Campbell J. it is said that the learned primary judge "did not have regard to the amendment to the rule, his attention not being drawn to it by counsel" [1] . Matthews J. said that "the attention of the judge in chambers was not directed to the change in the law which even then might have been considered to have had relevance to the exercise of his Honour's discretion" [2] . The record before us does not contain any material that would support these statements and we were not informed what additional communication, if any, was made to the Full Court on the point. Both the summons and the affidavits before the learned primary judge showed that the application was made under the rule in its amended form. I would not be disposed to assume that the learned primary judge was unaware of the important amendments effected by the Order in Council of 14th December 1965 or that the rule had been put into its present form by those amendments; certainly the fact that counsel did not expressly draw his attention to the matter is no ground for concluding that he was not aware of it. However, Matthews J. (with whose judgment on this aspect of the matter Wanstall J. agreed) went on to say [1] :

Assuming this to be so and this Court is, in the circumstances, permitted to review the matter without such restrictions as are generally applied to an appellate court's consideration of the exercise of discretion, I would still refuse the application. Having regard to the established principles on which an appellate court must proceed in reviewing a discretionary judgment, I cannot see any ground for interference by the Full Court with the exercise of the discretion of the learned primary judge and if such interference had been warranted, with the result that the Full Court was justified in exercising its own discretion, there would clearly be no ground for us to interfere with the decision of the Full Court. 1. [1966] Qd. R. 465. 2. [1966] Qd. R. 482. 3. [1968] Q.W.N. 2. 4. [1969] Qd. R. 217. 5. [1969] Qd. R. 361. 6. [1971] Qd. R. 37, at p. 53. 7. [1971] Qd. R., at p. 58. 8. [1971] Qd. R., at p. 58.