Commonwealth of Australia v Mewett R.J. Commonwealth of Australia v Rock M.J. Commonwealth of Australia v Brandon M.J. [1995] FCA 681

CATCHWORDS

LIMITATION OF ACTIONS - whether expiry of limitation period denies to a cause of action the status of 'property' - whether holding in Georgiadis v Australian & Overseas Telecommunications Corporation (1994) 179 CLR 297 that s 44 of Safety Rehabilitation and Compensation Act 1988 (Cth) may effect constitutionally invalid "acquisition" of "property" extends to "statute-barred" cause of action - effect of provision for extension of limitation period - whether cause of action "statute-barred" where provision of extension of time - distinction between true limitation provision barring remedy and provision extinguishing right.

PRIVATE INTERNATIONAL LAW - injuries suffered in Victoria and on high seas - proceedings commenced in Sydney Registry of High Court - remitter to Federal Court - limitation statute applicable.

PRACTICE AND PROCEDURE - federal system - operation of ss 44 (2A), 56, 64, 79 and 80 of Judiciary Act 1903 (Cth) - common law causes of action against Commonwealth arising in Victoria - common law causes of action against Commonwealth arising on high seas - in both cases, proceedings commenced in Sydney Registry of High Court and remitted to Federal Court - operation of Judiciary Act on substantive law and provisions of limitation statutes of Victoria and New South Wales.

Judiciary Act 1903 (Cth) ss 44(2A), 56, 64, 79 and 80

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 44 and 45

Limitation Act 1969 (NSW) ss 14, 58, 60F, 60G, 61, 63 and 68A

The Constitution s 51(xxxi)

Limitation of Actions Act (1958) (Vic) ss 5 and 23A

Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297

Musgrave v Commonwealth (1937) 57 CLR 514

Maguire v Simpson (1977) 139 CLR 362

Suehle v The Commonwealth (1967) 116 CLR 353

McKain v R. W. Miller & Co (South Australia) Pty Ltd (1991) 174 CLR 1

Commonwealth v Verwayen (1990) 170 CLR 394

Ronex Properties Limited v John Laing Construction Limited [1983] 1 QB 398

Gilvarry v Commonwealth (unreported, 15 November 1994, Vic, Nathan J)

Australian Iron & Steel Limited v Hoogland (1962) 108 CLR 471

Parker v Commonwealth (1965) 112 CLR 295

Anderson v Eric Anderson Radio & TV Pty Ltd (1965) 114 CLR 20

COMMONWEALTH OF AUSTRALIA V ROBERT JOHN MEWETT

FFC No. NG 834 of 1994

FC No. NG 376 of 1994

COMMONWEALTH OF AUSTRALIA V MICHAEL JOHN ROCK

FFC No. NG 833 of 1994

FC No. NG 375 of 1994

COMMONWEALTH OF AUSTRALIA V MARK JOHN BRANDON

FFC No. NG 832 of 1994

FC No. NG 374 of 1994

SPENDER, COOPER & LINDGREN JJ

SYDNEY

31 AUGUST 1995

IN THE FEDERAL COURT OF AUSTRALIA)

NEW SOUTH WALES DISTRICT REGISTRY)

GENERAL DIVISION )

On appeal from a Judge of the Federal Court of Australia

FFC No NG 834 of 1994

FC No NG 376 of 1994

BETWEEN:

COMMONWEALTH OF AUSTRALIA

Appellant

AND:

ROBERT JOHN MEWETT

Respondent

CORAM: Spender, Cooper and Lindgren JJ

PLACE: Sydney

DATE: 31 August 1995

MINUTE OF ORDERS

THE COURT ORDERS

1. THAT the following question reserved pursuant to sub-s 25 (6) of the Federal Court of Australia Act 1976 (Cth) to a Full Court for determination be answered as below:

Question:

"Whether section 44 (1) of the Safety, Rehabilitation and Compensation Act 1988 (Commonwealth) ("the Comcare Act") is invalid in its application to these proceedings as pleaded by the applicant in paragraph 4 of the Reply to the Commonwealth's Defence paragraph 8."

Answer: Yes.

2. THAT the appeal be dismissed.

3. THAT the appellant pay the respondent's costs of the

proceedings on the question for separate determination and on the appeal.

4. THAT the costs referred to in order 3 shall include the respondent's costs of the appellant's motion brought by notice of motion filed on 8 November 1994.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA)

NEW SOUTH WALES DISTRICT REGISTRY)

GENERAL DIVISION )

On appeal from a Judge of the Federal Court of Australia

FFC No NG 833 of 1994

FC No NG 375 of 1994

BETWEEN:

COMMONWEALTH OF AUSTRALIA

Appellant

AND:

MICHAEL JOHN ROCK

Respondent

CORAM: Spender, Cooper and Lindgren JJ

PLACE: Sydney

DATE: 31 August 1995

MINUTE OF ORDERS

THE COURT ORDERS

1. THAT the following question reserved pursuant to sub-s 25 (6) of the Federal Court of Australia Act 1976 (Cth) to a Full Court for determination be answered as below:

Question:

Answer: Yes.

2. THAT the appeal be dismissed.

3. THAT the appellant pay the respondent's costs of the

proceedings on the question for separate determination and on the appeal.

4. THAT the costs referred to in order 3 shall include the respondent's costs of the appellant's motion brought by notice of motion filed on 8 November 1994.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA)

NEW SOUTH WALES DISTRICT REGISTRY)

GENERAL DIVISION )

On appeal from a Judge of the Federal Court of Australia

FFC No NG 832 of 1994

FC No NG 374 of 1994

BETWEEN:

COMMONWEALTH OF AUSTRALIA

Appellant

AND:

MARK JOHN BRANDON

Respondent

CORAM: Spender, Cooper and Lindgren JJ

PLACE: Sydney

DATE: 31 August 1995

MINUTE OF ORDERS

THE COURT ORDERS

1. THAT the following question reserved pursuant to sub-s 25 (6) of the Federal Court of Australia Act 1976 (Cth) to a Full Court for determination be answered as below:

Question:

Answer: Yes.

2. THAT the appeal be dismissed.

3. THAT the appellant pay the respondent's costs of the

proceedings on the question for separate determination and on the appeal.

4. THAT the costs referred to in order 3 shall include the respondent's costs of the appellant's motion brought by notice of motion filed on 8 November 1994.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY )

GENERAL DIVISION )

On appeal from a Judge of the Federal Court of Australia

FFC No. NG 834 of 1994

FC No. NG 376 of 1994

BETWEEN : COMMONWEALTH OF AUSTRALIA

Appellant

AND : ROBERT JOHN MEWETT

Respondent

FFC No. NG 833 of 1994

FC No. NG 375 of 1994

BETWEEN : COMMONWEALTH OF AUSTRALIA

Appellant

AND : MICHAEL JOHN ROCK

Respondent

FFC No. NG 832 of 1994

FC No. NG 374 of 1994

BETWEEN : COMMONWEALTH OF AUSTRALIA

Appellant

AND : MARK JOHN BRANDON

Respondent

CORAM: Spender, Cooper and Lindgren JJ

PLACE: Sydney

DATE: 1995

REASONS FOR JUDGMENT

SPENDER J:

I agree with the reasons for judgment of Cooper J, and with the orders he proposes.

I certify that this page is a true copy of the reasons for judgment herein of the Honourable Justice Spender.

Associate

Date:

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

On appeal from a Judge of the Federal Court of Australia

FFC No. NG834 of 1994

FC No. NG376 of 1994

BETWEEN: COMMONWEALTH OF AUSTRALIA

Appellant

AND: ROBERT JOHN MEWETT

Respondent

FFC No. NG833 of 1994

FC No. NG375 of 1994

BETWEEN: COMMONWEALTH OF AUSTRALIA

Appellant

AND: MICHAEL JOHN ROCK

Respondent

FFC No. NG832 of 1994

FC No. NG374 of 1994

BETWEEN: COMMONWEALTH OF AUSTRALIA

Appellant

AND: MARK JOHN BRANDON

Respondent

CORAM: Spender, Cooper and Lindgren JJ

PLACE: Sydney

DATE: 31 August 1995

REASONS FOR JUDGMENT

Cooper J.

Commonwealth v. Mewett

Background and Contentions:

On 20 June 1994 Robert Mewett commenced proceedings against the Commonwealth in the High Court of Australia. The proceedings were filed in the Sydney office of the High Court registry. The proceedings were remitted by consent pursuant to
s.44(2A) of the Judiciary Act 1903 (Cth) to this court.

Mr Mewett, as appears from his statement of claim, alleges that he suffered personal injury in August 1979 whilst employed as a seaman on board HMAS "Kembla". The injury is alleged to have been caused by the Commonwealth failing to properly discharge its duty of care to Mewett such duty arising either in contract or in tort. At the time of the alleged injury the "Kembla" was proceeding out of Port Phillip Bay, Victoria.

On 1 November 1994 Foster J dismissed with costs a notice of motion brought by the Commonwealth seeking to strike out the whole of the proceedings on the ground that Mewett had no reasonable cause of action because of the operation of s.44(1) of the Safety Rehabilitation and Compensation Act 1988 (Cth) ("the Comcare Act"). On 8 November 1994 his Honour granted leave to the Commonwealth to appeal against the orders of 1 November 1994 and reserved the following question to a Full Court of this court :-

"Whether section 44(1) of the Safety, Rehabilitation and Compensation Act 1988 (Commonwealth) is invalid in its application to these proceedings as pleaded by the applicant in paragraph 4 of the Reply to the Commonwealth's Defence paragraph 8."

Paragraph 4 of the reply stated :-

"4. In reply to paragraph 8 of the Respondent's defence, the Applicant denies that the cause of action is barred by sections 44 and 45 of the Safety Rehabilitation and Compensation Act 1988 and further denies the application of those sections because of the majority decision in Georgiadis -v- AOTC, having regard to the facts and circumstances of the subject cause of action."

Paragraph 8 of the defence stated :-

"8. Further and in the alternative the respondent states that the action is barred by ss.44 and 45 of the Safety Rehabilitation and
Compensation Act (1988)."

By its defence and before Foster J, the Commonwealth contended that Mewett's action was not maintainable by virtue of s.14 of the Limitation Act 1969 (NSW) ("the NSW Act"), a period of six years having expired since the alleged cause of action accrued in August 1979. Further, the Commonwealth contended that by virtue of s.63(1) of the NSW Act any cause of action which Mewett had against the Commonwealth had been extinguished by the expiration of the relevant limitation period provided under that Act. In the alternative the Commonwealth contended that ss.44 and 45 of the Comcare Act upon its commencement on 1 December 1988 extinguished any of Mewett's causes of action which might then have existed.

Mr Mewett disputed that ss.14 and 63 of the NSW Act are applicable. However, in the event that they have some application, he sought an extension of the limitation period under ss.60F, 60G and Schedule 5 of the NSW Act. Before Foster J the Commonwealth contended that the effect of s.44 of the Comcare Act is to deny to the court jurisdiction to entertain the application for an extension of time.

The substantial submission of Mewett before Foster J and repeated in this court, was that insofar as the Commonwealth relies upon s.44 of the Comcare Act, for the reasons of the majority in Georgiadis v. Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297, the constitutional protection in s.51(xxxi) of the Constitution operates to protect the property of Mewett in his cause of action against the Commonwealth from acquisition by it through the operation of s.44 or s.45 of the
Comcare Act. In respect of the Commonwealth's contention that the NSW Act operated because it was picked up by s.79 of the Judiciary Act, the proceedings being heard in New South Wales, Mewett submitted that as the claim was against the Commonwealth in respect of a wrong committed in Victoria, the applicable law was that of the lex loci delicti - Victoria.

For its part the Commonwealth submitted before this court that after the expiration of the limitation period, whether under the NSW Act or the Limitations of Actions Act 1958 (Vic) ("the Victorian Act"), Mewett had no vested valuable right in a cause of action and therefore had no property capable of being protected by s.51(xxxi) of the Constitution. In support of this contention the Commonwealth relied upon a decision of Nathan J in the Supreme Court of Victoria to that effect (Gilvarry v. Commonwealth (No. 4937 of 1994; 15 November 1994, Unreported).

The Applicable Law

The jurisdiction of this court on remitter is Federal jurisdiction co-extensive with that of the High Court (Johnstone v. Commonwealth (1979) 143 CLR 398 at 408-409). The law to be applied is Federal law, that is, law derived directly or indirectly from the Commonwealth Parliament as the principal source of Federal law (Maguire v. Simpson (1977) 139 CLR 362 at 369). To the extent that any State laws are picked up and applied in the discharge of the jurisdiction they are "surrogate Commonwealth law" (Maguire v. Simpson at 408). Where the Commonwealth is a defendant and the jurisdiction of the High Court (and this court on remitter) is Federal jurisdiction, ss.56 and 64 of the Judiciary Act prescribe the law which is to apply to determine the
Commonwealth's liability in an action in tort or contract. This follows, in my view, from the reasons of Dixon, Evatt and McTiernan JJ in Musgrave v. Commonwealth (1937) 57 CLR 514 and the decision of the court in Maguire v. Simpson. In Musgrave v. Commonwealth, Dixon J said (at 547-548) :-

"... Secs. 79 and 80 of the Judiciary Act apply only where otherwise Federal law itself is insufficient, and it may be considered that the provisions of Federal law to impliedly prescribe the law that is to govern the delictual responsibility of the Commonwealth for a given act of its servants. For once an intention is discovered, either in sec. 75 of the Constitution or in Part IX. of the Judiciary Act 1903-1934, that the Commonwealth should be under a substantive liability for tort, it may well be thought to be part of this intention that the liability should be that otherwise flowing from the law of the State or territory in which the wrongful act or omission is committed or made."

Evatt and McTiernan JJ said (at 550-551) :-

"... In any case, sec.56 of the Judiciary Act expressly recognizes that any person may bring any action of tort against the Commonwealth, either in the High Court or in the Supreme Court of the State in which the claim arose. In our opinion, the law to be applied in cases where the tort alleged is the publication of a libel in one of the States of the Commonwealth and action has been brought in the High Court, is the same law as must be applied where the action is brought in the Supreme Court of the State where the claim arose by reason of the publication of the libel, viz., the law of such State. In the present case, the claim arose in Queensland, the defamatory letter having been published in that State. Whatever may be the precise limits to be assigned to sec. 79 of the Judiciary Act, it does not introduce, for the purpose of determining the lawfulness of the publication complained of, the general body of New South Wales law, merely because the action, being instituted in the High Court, happens to have been heard at Sydney. Therefore, in our opinion, the principle embodied in such cases as Machado v. Fontes (1897) 2 Q.B. 231 has no application to the present case. The result is that the law of Queensland and it alone must determine the lawfulness of the defendant's publication, and the statement of defence, which is not based upon, or in any way referable to, the New South Wales law, but is based solely upon the Queensland law, will, if proved, afford an answer to the plaintiff's action."

In Suehle v. The Commonwealth (1967) 116 CLR 353, Windeyer J said (at 355-356) :-

"... 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."

(See also Washington v. Commonwealth (1939) 39 SR (NSW) 133 at 143; Commonwealth v. Dinnison (1995) 129 ALR 239 at 244-245).

There was nothing said in Breavington v. Godleman (1988) 169 CLR 41 which would detract from the reasoning in Musgrave v. Commonwealth or Suehle v. Commonwealth (see 169 CLR at 101, 118, 151-152). Section 64 of the Judiciary Act operates to make applicable both the substantive and procedural law of the lex loci delicti (Maguire v. Simpson at 373, 388, 402, 405, 407).

Because ss.79 and 80 of the Judiciary Act have no relevant operation there is no occasion to apply the choice of law rules as part of the common law of New South Wales in accordance with the principles laid down by the majority in McKain v. R.W. Miller (South Australia) Pty. Limited (1991) 174 CLR 1 at 37ff.

As all parties are agreed that the wrong of which Mewett complains occurred or should be treated as having occurred in Victoria, his cause of action arose under and falls to be determined in accordance with the law of Victoria including the provisions of the Victorian Act. Section 5 of that Act, so far as is relevant, provides :-

"5. Contracts and torts

(1) The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued:

(a) Actions founded on simple contract (including contract implied in law) or (subject to sub-section (1A)), actions founded on tort including actions for damages for breach of a statutory duty;

.....

(1A) An action for damages for negligence nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under a statute or independently of any contract or any such provision) where the damages claimed by the plaintiff consist of or include damages in respect of personal injuries consisting of a disease or disorder contracted by any person may be brought not more than six years from, and the cause of action shall be taken to have accrued on, the date on which the person first knows -

(a) that he has suffered those personal injuries; and

(b) that those personal injuries were caused by the act or omission of some person.

(1B) Sub-section (1A) as amended by the Limitation of Actions (Amendment) Act 1989 applies to each case where the date on which a person first knew the matters specified in paragraph (a) and (b) of that sub-section is within six years before the commencement of that Act.

(1C) Sub-sections (1A) and (1B) apply despite anything to the contrary in this or any other Act."

Power to extend the period of limitation in the case of an action for damages for personal injury is contained in s.23A of the Victorian Act.

The provisions of the Victorian Act are to be characterised as a true limitation provision. That is, s.5 of that Act operates to bar the remedy but leaves unimpaired the underlying cause of action (Maxwell v. Murphy (1957) 96 CLR 261 at 269; Pedersen v. Young (1964) 110 CLR 162 at 166; McKain v. R.W. Miller (S.A.) Pty. Ltd. at 19, 41-44).

Mr Mewett's causes of action against the Commonwealth arose in August 1979. Thereafter Mewett was entitled to enforce his causes of action by suit against the Commonwealth in a court of competent jurisdiction. When the limitation period expired under the Victorian Act, was Mewett thereby precluded from obtaining a remedy? The answer is a qualified "no". However, to understand the answer it is necessary to consider the nature of the right which Mewett obtained and its relationship with the Victorian Act.

Compliance with a limitation period under a true statute of limitations does not form part of the essential elements of a cause of action at common law for damages for personal injuries arising from breach of duty; nor is compliance with the time limit a condition precedent to the exercise of the right (Commonwealth v. Verwayen (1990) 170 CLR 394 at 497-498). Once a relevant limitation period has expired it is irrelevant until such time as a defendant raises the plea in bar to the remedy. Otherwise the question of limitation does not arise for consideration by the court (Commonwealth v. Verwayen at 473 where Toohey J cites with approval the decision of the English Court of Appeal in Ronex Properties Ltd. v. John Laing Construction Ltd [1983] 1 QB 398). In Ronex Properties, Donaldson LJ said (at 404-405) :-

"Authority apart, I would have thought that it was absurd to contend that a writ or third party notice could be struck out as disclosing no cause of action, merely because the defendant may have a defence under the Limitation Acts. Whilst it is possible to have a contractual provision whereby the effluxion of time eliminates a cause of action - and there are some provisions of foreign law which can have that effect - it is trite law that the English Limitation Acts bar the remedy and not the right; and, furthermore, that they do not even have this effect unless and until pleaded. Even when pleaded, they are subject to various exceptions, such as acknowledgment of a debt or concealed fraud, which can be raised by way of reply.

.....

The matter is not in fact free from authority. It was considered in Riches v. Director of Public Prosecutions [1973] 1 W.L.R. 1019, in which the earlier cases are reviewed. There the grounds put forward in support of the application to strike out included an allegation that the claim was frivolous and vexatious and an abuse of the process of the court. Accordingly, the court was able to consider evidence and it is understandable that the claim could be struck out. Of the cases referred to, it seems that only in Dismore v. Milton [1938] 3 All E.R. 762, was an attempt made to strike out solely upon the ground that the Limitation Acts applied and accordingly no cause of action was disclosed. Greer L.J. and Slesser L.J. held that such an application must fail for the reasons which I have already indicated and contrasted the effect of the Statute of Limitations with that of the Real Property Limitations Acts. That being a two-judge court, we are not strictly bound by its decision, but I have no doubt that it was right. Where it is thought to be clear that there is a defence under the Limitation Acts, the defendant can either plead that defence and seek the trial of a preliminary issue or, in a very clear case, he can seek to strike out the claim upon the ground that it is frivolous, vexatious and an abuse of the process of the court and support his application with evidence. But in no circumstances can he seek to strike out on the ground that no cause of action is disclosed."

The position was that Mewett's causes of action were complete, actionable
and fully vested in him when the wrong was committed in Victoria in August 1979. Those rights were valuable rights (Georgiadis at 304) which were capable of valuation (Georgiadis at 304; Johnson v. Perez (1988) 160 CLR 351). If for whatever reason the Commonwealth did not seek to rely on a plea of limitation, the proceedings instituted by Mewett, absent any relevant operation of s.44 or s.45 of the Comcare Act, would proceed to be determined on their merits, and if entitled to it Mewett would receive his remedy in the form of compensatory damages. The rights of action which became vested in Mewett in August 1979 were property within the meaning of s.51(xxxi) of the Constitution (Georgiadis at 304, 312, 314, 320, 325).

On 1 December 1988, the commencement date of the Comcare Act, Mewett continued to hold property in the cause of action he held against the Commonwealth. True it was that the limitation period under the Victorian Act had expired and any valuation of his rights would have to take into account that they were then at risk of being denied a remedy should the Commonwealth determine to invoke the defence of limitation and ultimately be successful in the plea. Nonetheless, his causes of action remained and were enforceable as such. For present purposes Mewett was in no different position to Georgiadis, he had a vested cause of action which he had not then sought to enforce in proceedings against the Commonwealth. In my opinion for the reasons expressed by the majority in Georgiadis, s.51(xxxi) of the Constitution operated to protect Mewett's property in his rights of action against the Commonwealth and ss.44 and 45 of the Comcare Act did not on 1 December 1988 or thereafter operate to extinguish those rights or their enforcement.

In Gilvarry v. Commonwealth, Nathan J held that after the expiration of the limitation period, the plaintiff's rights had not vested and were "... putative causes of action ... which are not yet vested in anybody. To my mind putative or inchoate causes of action include actions which are statute barred. They have no substance after the limitation period expires" (reasons at pp.9-10). Having regard to my analysis of the rights required and held by Mewett, I do not accept the conclusion reached by Nathan J. It is this conclusion which is the basis underlying his Honour's refusal to extend the reasoning of the majority in Georgiadis to a case where a limitation period has expired.

Being of the view that the NSW Act has no relevant operation on the rights of Mewett to maintain the proceedings against the Commonwealth, its pleading of that Act in paragraph 7 of its defence does not constitute an effective plea in bar. If, however, the Commonwealth had sought to plead the bar under the Victorian Act, the position as to the underlying substantive right of action would not have altered, it is only the question of remedy which would clearly be in issue. The position was considered in Australian Iron and Steel Limited v. Hoogland (1962) 108 CLR 471. In Hoogland the court was concerned with s.63(3) of the Workers' Compensation Act 1926-1951 (NSW) which provided that proceedings against an employer independently of that Act might be commenced within twelve months of the date of receipt of workers compensation. That Act also provided for an application to extend the prescribed period being made at any time within that period or within twelve months thereafter. As to the operation of s.63(3), Dixon CJ said (at 476) :-

"... I retain the opinion that s.63(3) is a provision controlling the exercise of a common law right of action and that the substantive right from which the controlled right of action springs continues to subsist. On the whole I think that the correct view to apply is that until the substantive right is
completely lost by the final extinguishment of all remedy its subsistence should be recognized and the enlargement of the period of limitation upon the remedy treated as applicable to it."

Windeyer J said (at 489) :-

"When time has run against a purely personal action the result, for a plaintiff, is that his remedy is barred but his cause of action is not extinguished; for a defendant, it is that he has, if he chooses to assert it, an immunity which Lord Esher called `his existing right to the benefit of the Statute of Limitations' (Hewett v. Barr [1891] 1 Q.B. 98, at p.99). What then were the rights of the parties in this case immediately before the amending Act was passed? For Hoogland, the prescribed period, then twelve months, within which he could have brought an action as of right had already passed; but he could still apply for an extension of the prescribed period, for twelve months from the end of that period had not yet passed. For the appellant, it could not be subjected to an action unless either it waived the defence that the prescribed period had expired, or that period was extended. So that at the time when the amendment came into force the respondent's cause of action had not been extinguished, his remedy had not been finally barred, the appellant had not gained an absolute immunity from suit, and the respondent still could apply for an extension of time to put his cause of action in suit."

Should it become necessary for Mewett to obtain an extension of the limitation period it is not a new or different cause of action which he obtains. It is simply that any prospect of a bar to his remedy due to the expiration of the operative limitation period is removed. His property in his rights of action against the Commonwealth have continued throughout to be vested in him from the time of their accrual in August 1979.

For the above reasons Foster J did not err in refusing to dismiss or strike out Mewett's proceedings on the basis that he had no cause of action against the Commonwealth and the appellant's appeal should be dismissed with costs.

The question reserved for this court should be answered "yes".

The Commonwealth should pay the costs of and incidental to the notice of motion filed 8 November 1994, seeking the reservation of the questions, including the costs of the hearing on the motion and the hearing before this court.

Rock v. Commonwealth

Brandon v. Commonwealth

Background and Contentions

On or about 22 October 1985 Rock and Brandon were seamen on board HMAS "Stalwart". At the time the ship was at sea proceeding between Sydney and Surabaya and some hundreds of miles off the Queensland coast. On that day they suffered personal injury when exposed to certain gases and vapours on board the ship in the course of their service as seamen.

On 20 June 1994 Rock and Brandon separately commenced proceedings in the High Court of Australia, in the Sydney office of the registry. Both pleaded common law causes of action in terms of breach of a contractual or tortious duty of care. On the same date the Commonwealth entered an appearance in the Sydney office of the registry and the proceedings were remitted to this court.

The Commonwealth filed defences in each action in identical terms to that filed in Mewett's proceedings and a reply in each action was filed in terms identical with that in Mewett's proceedings. As in Mewett's proceedings, the Commonwealth applied to have the statements of claim struck out on the basis that they were not maintainable because of the effect of s.44(1) of the Comcare Act.

On 1 November 1994 Foster J dismissed the two further notices of motion with costs. In short reasons he stated that he did so for reasons substantially similar to those which he gave in Mewett. On 8 November 1994 his Honour gave the Commonwealth leave to appeal in each matter and also reserved the same question for determination by a Full Court as that reserved in the Mewett proceedings.

The notices of appeal filed by the Commonwealth in each matter are identical.

The Commonwealth relied upon the same submissions as were relied on in Mewett.

The Applicable Law

On the statements of claim filed by Rock and Brandon the wrong suffered by each of them occurred on the high seas on board an Australian vessel. Acts done on board a ship on the high seas are governed by the law of the country to which the ship belongs so far as liability for those acts under the law of tort is concerned ie., to the law of the place where the ship is registered or the country to which the ship belongs if a unitary state (Cotter v. Huddart Parker Ltd. (1941) 42 SR (NSW) 33 at 46, 61; Parker v. Commonwealth (1965) 112 CLR 295). In relation to Her Majesty's Australian ships the law to be applied is Commonwealth law (Parker at 306). However there is no single body of common law in force throughout the country as the common law of the Commonwealth as a political entity that is a body of law separate and distinct from the common law of the several states. As Kitto J said in Anderson v. Eric Anderson Radio & TV Pty. Ltd. (1965) 114 CLR 20 at 30 :-

"... To confer federal jurisdiction in a class of matters upon a State court is therefore not, if no more be added, to change the law which the court is to enforce in adjudicating upon such matters; it is merely to provide a different basis of authority to enforce the same law. The concept of federal jurisdiction does not imply the existence of a single body of law in force throughout the Commonwealth. The claim, that `matter' which the action brings before the State court, is necessarily a claim to enforce a right of action alleged to exist in the State."

See also, Wynes "Legislative Executive and Judicial Powers in Australia" 5th Edition at 58-59; Lane "The Australian Federal System" 2nd Ed. at 511; Renfree "The Judicial System of Australia" at 312 ff).

It was assumed by the parties before this court that ss.79 and 80 of the Judiciary Act would operate to vest in Rock and Brandon common law actions. It was not sought to establish whether those causes of action were to be given by the common law of New South Wales as the lex fori or the common law of England as modified by the Constitution and by the statute law in force in the State in which the court in which the jurisdiction is exercised is held (s.80 of the Judiciary Act). Nor was it sought to sustain the causes of action as being under Federal law being the State common law made applicable by s.64 of the Judiciary Act (see Asiatic Steam Navigation Co. Ltd. v. Commonwealth (1956) 96 CLR at 427 per Kitto J; Maguire v. Simpson). The case was conducted on the basis that such causes of action as Rock and Brandon had were common law causes of action. Accordingly the question is to be answered on that basis.

So far as the question of limitation statutes was concerned, it was common ground that such rights as Rock and Brandon acquired on 22 October 1985 were subject to the operation of the NSW Act. By s.14 of that Act, the remedies of Rock and Brandon in contract or tort were barred at the expiration of six years from the accrual of each cause of action. Section 14 operates as a true statute of limitations and is procedural in nature (Maguire v. Simpson at 368, 392, 399; Commonwealth v. Dixon (1988) 13 NSWLR 601). Section 63 of the NSW Act operates on the expiration of the limitation period to extinguish the right and title of the holder of the cause of action. Section 63 thus is a substantive provision which destroys the underlying cause of action (Maguire v. Simpson; Commonwealth v. Dixon).

On 1 December 1988 Rock and Brandon were in exactly the same position as Mr Georgiadis; each had an enforceable cause of action and the relevant limitation period had not expired. For the reasons given by the majority in Georgiadis, s.51(xxxi) of the Constitution operated to protect those causes of action from being extinguished on 1 December 1988 upon the commencement of the Comcare Act or thereafter by the operation of s.44 or s.45 of that Act. If either of Rock or Brandon was to lose the cause of action which vested in each on 22 October 1985, then it must be from the operation of the NSW Act and not from the operation of s.44 or s.45 of the Comcare Act.

On the expiration of the limitation period under the NSW Act the causes of action were subject to the operation of s.63. Section 63 in terms purports to extinguish the right in the underlying cause of action. However, for so long as it remained open to Rock and Brandon to bring an application under s.58, s.60F, s.60G or Schedule 5 to extend the limitation period such extinguishment as occurred was not absolute and the Commonwealth did not obtain an absolute right of immunity. Additionally, in order to claim the benefit of the extinction in any proceedings it is necessary to plead the extinguishment of the right and title under s.63 (s.68A(1) of the NSW Act). Thus, in the absence of a plea of extinguishment, Rock and Brandon would be free to litigate their causes of action against the Commonwealth as if s.63 had no operation in respect of their individual rights. Where the limitation period is extended under Division 3 of Part 3 of the NSW Act, the prior expiration of the limitation period has no effect for the purposes of that Act (s.61).

Taken literally, s.61 operates to annul the prior extinguishment of the right or title in and to the causes of action (Commonwealth v. Dixon at 610, 612). However, in my opinion, the effect of ss.61 and 68A is to postpone the absolute extinguishment until the expiration of the period to apply for an extension of the limitation period, or, to the time when the plea of extinguishment is properly raised, whichever is the later. Until that time Rock and Brandon retain a sufficient title to progress the litigation to a determination on the merits in the absence of a plea, or, to remove the fetter on the title caused by the expiration of the limitation period, the operation of s.63A and the plea of extinguishment by the obtaining of an order for extension of the period.

Until the extinguishment is absolute, the rights of action are the same rights of action which accrued on 22 October 1985. Although their enforceability is seriously impaired by the threat of absolute extinction, until such time as the threatened extinction occurs they remain and the rights would constitute a sufficient consideration to support a settlement of the causes of action with the Commonwealth (Commonwealth v. Verwayen at 461; McKain v. R.W. Miller & Company (South Australia) Pty. Limited at 44). The value of that right prior to an absolute extinguishment would be dependent upon an assessment of the prospect of obtaining a favourable exercise of discretion, or, the Commonwealth determining not to plead the extinguishment and to allow the action to proceed to a determination on the merits. Until absolute extinguishment, such right remains as the original cause of action and valuable property for the purposes of s.51(xxxi) of the Constitution, albeit depreciated in value with the passage of time.

If, contrary to my view, the position be that the NSW Act renders an effective extinguishment of the causes of action of Rock and Brandon leaving them with nothing more than a statutory right to apply for the exercise of a discretion to extend the limitation period and thereby resurrect their causes of action, ss.44 and 45 of the Comcare Act do not operate to deprive the court of the jurisdiction to exercise the discretion. The right to apply for the favourable exercise of the discretion is not a right of the character to which s.44(1) of the Comcare Act applies; it is not in itself "an action or other proceeding for damages" against the Commonwealth. Further, if the discretion is exercised favourably, the effect of s.63 is annulled so that by operation of s.61 the original causes of action are treated for all purposes as having continued in existence. In consequence the protection given by s.51(xxxi) of the Constitution has continued unbroken or attaches thereafter to the resuscitated causes of action.

For the further reasons set out in relation to Mewett the Commonwealth has not demonstrated that the actions disclosed no reasonable cause of action or that the reserved question ought to be answered in the negative.

Foster J was correct to hold that it cannot be said "that either of the actions themselves or the applications for extension of time are so untenable as to warrant their being struck out".

The appeals of the Commonwealth ought to be dismissed with costs.

The question reserved in each action for consideration by the court should be answered "yes".

The Commonwealth should pay the costs of and incidental to the notice of motion filed 8 November 1994 in each action, including the costs on the hearing of the motion and the costs of the hearing before this court.

I certify that this and the preceding 21 pages are a true copy of the reasons for judgment herein of his Honour Justice Cooper.

Date:

Associate

IN THE FEDERAL COURT OF AUSTRALIA)

NEW SOUTH WALES DISTRICT REGISTRY)

GENERAL DIVISION )

On appeal from a Judge of the Federal Court of Australia

FFC No NG 834 of 1994

FC No NG 376 of 1994

BETWEEN:

COMMONWEALTH OF AUSTRALIA

Appellant

AND:

ROBERT JOHN MEWETT

Respondent

FFC No NG 833 of 1994

FC No NG 375 of 1994

BETWEEN:

COMMONWEALTH OF AUSTRALIA

Appellant

AND:

MICHAEL JOHN ROCK

Respondent

FFC No NG 832 of 1994

FC No NG 374 of 1994

BETWEEN:

COMMONWEALTH OF AUSTRALIA

Appellant

AND:

MARK JOHN BRANDON

Respondent

CORAM: Spender, Cooper, Lindgren JJ

PLACE: Sydney

DATE: 31 August 1995

REASONS FOR JUDGMENT

LINDGREN J:

NATURE OF PROCEEDINGS BEFORE FULL COURT:

In each of the three sets of proceedings referred to above, there are before the Court,

(a) an appeal by leave of the trial judge, Foster J, from his Honour's dismissal of a motion by the appellant ("the Commonwealth") for the striking out of the statement of claim of the respondent ("Mewett", "Rock" and "Brandon" as the case may be); and

(b) the following question reserved by his Honour pursuant to sub-s 25 (6) of the Federal Court of Australia Act 1976 (Cth) to a Full Court for determination:

(The proceedings before the trial judge are reported at (1994) 126 ALR 391.) His Honour's dismissal of the Commonwealth's strike-out motion signifies, in effect, that his Honour thought that there was a triable issue as to whether the answer to the question is "yes". In other words, the Commonwealth failed to persuade his Honour that it was so clear that the answer is "no" that the proceedings should not be allowed to continue on foot. The appeal is to be determined by reference to the principles governing the determination of strike-out applications. The reserved question, however, calls for a final answer by the Full Court to the question.

HISTORY OF PROCEEDINGS AT FIRST INSTANCE

Mewett's proceedings

On 20 June 1994 Mewett commenced proceedings against the Commonwealth in the High Court of Australia, Sydney Office of the Registry. Neither the writ nor the statement of claim gave an address for the plaintiff, although a Sydney address was given for his solicitors. By his statement of claim Mewett alleged that in August 1979, when he was a seaman in the Royal Australian Navy and the relationship of employee and employer existed between him and the Commonwealth, he suffered physical injury and psychological trauma while aboard the vessel HMAS "Kembla". The injury and trauma are alleged to have been occasioned to him when that vessel was swamped by waves while proceeding out of Port Phillip Bay, Victoria. Notwithstanding the references to "physical injury" and "psychological trauma", Mewett particularised his "injuries" as "Acute psychological injury resulting in Post Traumatic Stress Disorder." He was discharged from the Royal Australian Navy on 28 January 1993. He pleaded that this was as a result of a Medical Board of Survey which found him unfit.

Mewett pleaded causes of action in breach of implied terms of his contract of employment and in tort based on breach of a general law duty owed by the Commonwealth to him.

Documents filed in the proceedings in this Court (see below) reveal that as at 22 August 1994 Mewett's address was 62 President Avenue, Kogarah (a suburb of Sydney), that the accident happened on 31 August 1979, and that it happened within three miles of the coast of Victoria.

On 20 June 1994 the Commonwealth entered an appearance at the Sydney Registry. On the same day, upon and in conformity with an application made by Mewett and with the Commonwealth's consent, the High Court made the following orders:

"1. That the further proceedings in this action be remitted to the Federal Court of Australia.

2. That the action proceed in that Court as if the step [sic - steps] already taken in the action in this Court had been taken in that Court and as if Sydney had been stated in the writ as the place of trial."

This was a remitter pursuant to sub-s 44 (2A) of the Judiciary Act, 1903 (Cth) ("the Judiciary Act"). Thereafter, by the operation of sub-s 44 (3) of the Judiciary Act, this Court had jurisdiction in the matter, and, subject to any directions of the High Court, further proceedings were to be as directed by this Court. Since the remitter, by the operation of s 44 this Court has stood in the jurisdictional shoes of the High Court and has had the jurisdiction in respect of the matter vested in the High Court by s 75 (iii) of the Constitution: Johnstone v The Commonwealth (1979) 143 CLR 398 at 408-409 (Aickin J); State Bank of New South Wales v Commonwealth Savings Bank of Australia (1984) 154 CLR 579 (Gibbs CJ) at 586-587; McAuley v Hamilton Island Enterprises Pty Ltd (1986) 69 ALR 270 (HCA/Mason J) at 275-276.

On 1 July 1994 the Commonwealth filed its Defence in this Court. In addition to non-admissions and denials, the Defence contained the following:

"6. The respondent states that by virtue of section 14 of the Limitation Act 1969 (NSW) the action is not maintainable since it is brought after the expiration of a limitation period of six years running from the date upon which the cause of action first accrued to the plaintiff.

7. The respondent further states that by virtue of section 63(1) of the Limitation Act 1969 (NSW) the right and title of the applicant is, as against the respondent, extinguished in that the limitation period fixed by the said Act has expired.

8. Further and in the alternative the respondent states that the action is barred by ss. 44 and 45 of the Safety Rehabilitation and Compensation Act (1988)."

Mewett does not dispute that the causes of action on which he relies accrued on 31 August 1979. He commenced the proceedings in the High Court nearly nine years after the familiar statutory limitation period of six years expired on 31 August 1985 (see later).

By notice of motion filed on 24 June 1994 Mewett applied for an extension of time sufficient to take his statement of claim filed in the High Court outside the operation of the Limitation Act 1963 (NSW) ("the Limitation Act"). Accordingly, both the Commonwealth and Mewett proceeded on the assumption that the limitation provisions of the Limitation Act applied to his claim. The Commonwealth contended that his Honour had no jurisdiction to entertain Mewett's motion as a result of s 44 of the Safety Rehabilitation and Compensation Act (1988) (Cth) ("the Compensation Act"). Section 44 of the Compensation Act provides, relevantly, as follows:

"44.(1) ... an action or other proceeding for damages does not lie against the Commonwealth, ... in respect of:

(a) an injury sustained by an employee in the course of his or her employment, being an injury in respect of which the Commonwealth, ... would, but for this subsection, be liable (whether vicariously or otherwise) for damages; or

(b) .......................................

whether that injury, loss or damage occurred before or after the commencement of this section.

(2)Subsection (1) does not apply in relation to an action or proceeding instituted before the commencement of this section."

Section 44 commenced on 1 December 1988. It was common ground that, in terms of that section, the proceeding commenced by Mewett in the High Court and remitted to this Court was "an action or other proceeding for damages ... against the
Commonwealth ... in respect of: (a) an injury sustained by an employee in the course of his employment".

Mewett sought to overcome the effect of para 44 (1) (a) of the Compensation Act on the basis of constitutional invalidity by reason of s 51 (xxxi) of the Commonwealth Constitution. He did so in para 4 of his Reply. That paragraph was as follows:

The reference to "Georgiadis v AOTC" is a reference to Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297 ("Georgiadis"). In that case the High Court held that s 44 was invalid in its application to an employee whose cause of action had not become statute-barred either by 1 December 1988 or subsequently. The Commonwealth would have it that Mewett's cause of action was already statute-barred by 1 December 1988 and that Rock's and Brandon's causes of action (discussed below), although not statute-barred by that date, became statute-barred subsequently with the result that in all three cases there ceased to exist any "property" in respect of which s 44 of the Compensation Act could operate and no question of its invalidity arose.

Paragraph 4 of Mewett's Reply was treated as raising the question whether s 44 of the Compensation Act, if valid, effected an "acquisition of property" otherwise than "on just terms from [Mewett]" for the purposes of s 51 (xxxi) of the Constitution, notwithstanding that the general limitation period of six years for the commencement of action on his pleaded causes of action had expired by 1 December 1988 and, of course, by the time when he commenced proceedings in the High Court on 20 June 1994. As noted earlier, the trial judge accepted Mewett's submission that there was a triable issue in this regard sufficient to prevent the striking out of his statement of claim. Mewett also submitted (the Commonwealth submitted to the contrary) that s 44 of the Compensation Act could not prevent his being granted an extension of the time to overcome the barring of action which, according to the submission, would otherwise have been effected by s 14 of the Limitation Act. Whether s 44 is valid or invalid in its application to Mewett was treated by the parties as determining whether the Court cannot or can (respectively) entertain his application for an extension of time.

The trial judge saw his task as being to decide, on the Commonwealth's motion, whether Mewett's statement of claim should be struck out on the basis that s 44 made his claim clearly untenable, and on Mewett's motion for an extension of time whether there was or was not jurisdiction to entertain it. His Honour held that para 4 of Mewett's Reply was not so clearly untenable that it could not possibly succeed. Accordingly, he dismissed the Commonwealth's strike-out motion with costs. It followed that there was, in his Honour's view, jurisdiction to entertain Mewett's motion for an extension of time.

That was on 1 November 1994. As Foster J noted, in the ordinary course the next step in the proceedings would be that Mewett's application for an extension of time would be heard and determined on its merits. However, on 8 November 1994 the Commonwealth filed a notice of motion seeking leave to appeal and an order that the question of law as to the effect of s 44 be set aside by his Honour for separate decision. Foster J recorded that it was clear that the Commonwealth desired to obtain a decision from an appellate court as to the applicability and validity of sub-s 44 (1) in the context of circumstances where, as in Mewett's case, the general six-year limitation period had expired before sub-s 44 (1) came into operation. His Honour was informed by the Commonwealth that cases had been brought in State courts in which this question had arisen and that the Commonwealth sought an early decision on the point.

Foster J considered that it would merely add to delay if he were to revisit the decision which he had given on the Commonwealth's motion and reconsider the legal issues on the basis that he was now determining, not a strike-out application, but a question set aside for separate decision. Rather, his Honour thought that it would be preferable for the issue to be decided by a Full Court without further assistance from a first instance decision other than the judgment (a detailed one) which he had already given on the strike-out application.

In the result, his Honour made an order pursuant to sub-s 25 (6) of the Federal Court of Australia Act 1976 referring to a Full Court the question which the Commonwealth had sought to have separately decided. As well, he granted the Commonwealth leave to appeal from the order dismissing its strike-out application.

The question of law raised is one of public importance and the Commonwealth has agreed to pay Mewett's (and Rock's and Brandon's) party/party costs of the hearing before the Full Court, whatever the result.

Rock's proceedings and Brandon's proceedings

Rock and Brandon also commenced proceedings against the Commonwealth in the High Court of Australia, Sydney Office of the Registry, on 20 June 1994. By their respective statements of claim, they allege that on or about 22 October 1985, when they were seamen in the Royal Australian Navy and the relationship of employer and employee existed between the Commonwealth and them, they were, while at sea aboard HMAS "Stalwart" between the ports of Sydney and Surabaya, exposed in the course of their service to gases and vapours, more particularly to hydrogen sulphide gas (H₂S), and so caused to sustain injuries and disabilities and to suffer loss and damage.

Each of Rock and Brandon pleaded, in identical terms to those in Mewett's statement of claim, causes of action in breach of implied terms of his contract of employment and in tort based on breach of a general law duty owed by the Commonwealth. It is common ground that the events on HMAS "Stalwart" which are said to give rise to the Commonwealth's liability to Rock and Brandon occurred when the vessel was some hundreds of kilometres off the Queensland coast. As in Mewett's case, no address was given for either plaintiff in the High Court writs or statements of claim, although in each case the name and address given for the plaintiff's solicitors were those of the Sydney firm which appeared in Mewett's case. Documents filed in the Federal Court proceedings (see below) show that as at 19 August 1994, Rock's address was at Byford in Western Australia and Brandon's address was at 80 Carnoustie Circuit, North Lakes, Northern Territory.

The course of pleading was virtually identical to that in Mewett's case. As in Mewett's case, the Commonwealth entered an appearance in the Sydney Registry of the High Court on 20 June 1994, on which date, upon and in conformity with applications made by Rock and Brandon and with the Commonwealth's consent, the High Court made orders remitting the proceedings to this Court in the same terms (noted earlier) as those of the orders made in Mewett's case. In each case the Defence and Reply were relevantly identical to those in Mewett's case. In particular, again all parties proceeded on the assumption that the relevant limitation provision to be considered was that found in the Limitation Act.

But whereas in Mewett's case the six year limitation period expired prior to the commencement on 1 December 1988 of the Compensation Act, in Rock's and Brandon's cases it expired on 22 October 1991. By notices of motion Rock and Brandon applied for an extension of time sufficient to take their statements of claim filed in the High Court outside the operation of the Limitation Act. As in Mewett's case, the Commonwealth contended that s 44 of the Compensation Act deprived the Court of jurisdiction to entertain those motions and moved for a striking out of the statements of claim.

Foster J's reasoning in Mewett's case determined the fate of the Commonwealth's motions in Rock's and Brandon's cases. As in Mewett's case, by notices of motion filed on 8 November 1994 the Commonwealth sought leave to appeal and an order for separate determination by his Honour of the question of law raised. For the reasons given in Mewett's case (noted earlier), his Honour granted leave to appeal and reserved to a Full Court the question which the Commonwealth had applied to have separately decided.

LIMITATION LEGISLATION

The relevant provisions of the Limitation Act and, as well, of the Limitation of Actions Act 1958 (Vic) ("the Limitation of Actions Act") and their applicability are discussed later, but it is convenient to set out those provisions at this stage.

Limitation Act

Sub-section 14 (1) of the Limitation Act provided, at all relevant times, as follows:

"14(1) An action on any of the following causes of action 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 to the plaintiff or to a person through whom he claims:

(a) a cause of action founded on contract ... ;

(b) a cause of action founded on tort, ...".

The Limitation Act was substantially amended by the Limitation (Amendment) Act 1990 (Act No 36 of 1990) which commenced on 1 September 1990. Previously, and in particular as at 1 December 1988, PART 3 had been entitled "POSTPONEMENT OF THE BAR" and had comprised ss 51-62. It had been divided into Division 1 (s 51) headed "General", Division 2 (ss 52-56) headed "Disability, confirmation, fraud and mistake", and Division 3 (ss 57-62) headed "Personal injury cases".

Division 3 had provided a procedure for the extension by the court of the limitation period for causes of action for damages for personal injury of the kind in question in the present three cases, based on the belated discovery of "material facts of a decisive character relating to the cause of action". The expression "personal injury" was (and is) defined in sub-s 11 (1) to include "any disease and any impairment of the physical or mental condition of a person". The substantive provisions were contained in ss 58 (see later), 59 and 60. Section 61 was as follows:

"61. Where, after the expiration of a limitation period to which this Division applies, the limitation period is extended by order under this Division, the prior expiration of the limitation period has no effect for the purposes of this Act."

Although s 61 is still in the same form, since the amending Act of 1990 Division 3 has included additional provisions for extension (see below) to which s 61 also applies.

The first section in PART 4 (headed "MISCELLANEOUS") was (and is) s 63 of which sub-s (1) was (and is) as follows:

"63.(1)Subject to subsection (2) [subsection (2) is not relevant for present purposes], on the expiration of a limitation period fixed by or under this Act for a cause of action to recover any debt damages or other money, the right and title of the person formerly having the cause of action to the debt damages or other money is, as against the person against whom the cause of action formerly lay and as against his successors, extinguished."

Section 68A (inserted by Act No 11 of 1977) was (and is) as follows:

"68A.(1)Where in proceedings before a judicial tribunal a question arises as to extinction under this Division of a right or title, a party to the proceedings shall not have the benefit in those proceedings of any such extinction of that right or title unless, as part of the proceedings, he has pleaded or otherwise appropriately claimed in accordance with the procedures of the tribunal that the right or title has been so extinguished.

(2)In subsection (1), a reference to proceedings before a judicial tribunal is a reference to proceedings before a court or person authorised by law or by agreement to bind the parties to the proceedings by a decision on a question arising in the proceedings as to whether or not a right or title has been extinguished under this Division."

The amending Act of 1990 amended and added to the provisions of Division 3 and divided it into four subdivisions. Sections 58, 59 and 60 of Division 3 referred to above were retained following the amending Act of 1990 as "Subdivision 1 - Discovery" of Division 3. Sections 61 and 62 were retained as part of "Subdivision 4 - General" of that Division.

The amending Act inserted s 18A which imposes a limitation period of three years for causes of action founded on negligence, nuisance or breach of duty, for damages for personal injury accruing on or after 1 September 1990. It
also introduced Subdivision 2 comprising ss 60A-60E and entitled "Secondary limitation period". Its purpose was to provide for a maximum five year extension of the three year limitation period for personal injury cases where the cause of action accrued on or after 1 September 1990 (ss 60A, 60B). Section 18A and Subdivision 2 (ss 60A-60E) of Division 3 of PART 3 have no relevance to the present three cases, in all of which the causes of action accrued prior to 1 September 1990.

The amending Act inserted a new Subdivision 3 (ss 60F-60J) headed "Discretionary extension for latent injury etc." in Division 3. This provided a procedure for a discretionary extension of the limitation period in respect of causes of action for damages for personal injury accruing on or after 1 September 1990 where, to put it broadly, the plaintiff was unaware of the fact, nature, extent or cause of his or her injury, disease or impairment at the relevant time. Importantly for present purposes, by the operation of the new Schedule 5 to the Limitation Act, this further discretionary extension is also made available in respect of causes of action which had accrued before 1 September 1990. It is this discretionary extension for which Mewett, Rock and Brandon had applied.

Against the above background, the relevant provisions of the Limitation Act, including, for assistance, relevant headings, may now be noted.

"PART 1 - PRELIMINARY

10(1) Subject to subsections (3) and (4), this Act binds the Crown and the Crown has the benefit of this Act.

11(1) In this Act, unless the context or subject matter otherwise indicates or requires:

'Crown' includes not only the Crown in right of New South Wales but also, so far as the legislative power of Parliament permits, the Crown in all its other capacities.

PART 2 - PERIODS OF LIMITATION AND RELATED MATTERS

Division 1 - Preliminary

12 The provisions of this Part have effect subject to the provisions of Part 3.

Division 2 - General

14(1) [The relevant parts of sub-s 14 (1) paras (a) and (b) were quoted earlier].

PART 3 - POSTPONEMENT OF THE BAR

Division 1 - General

51(1) Notwithstanding the provisions of this Part, an action on a cause of action for which a limitation period is fixed by or under Part 2 is not maintainable if brought after the expiration of a limitation period of thirty years running from the date from which the limitation period for that cause of action fixed by or under Part 2 runs.

(2) This section does not apply to a cause of action in relation to which an order has been made under Subdivision 3 of Division 3 (Discretionary extension for latent injury etc.).

Division 2 - Disability, confirmation, fraud and mistake.

[ss 52-56]

Division 3 - Personal injury cases.

Subdivision 1 - Discovery.

57 The purpose of this Subdivision is to provide a procedure for the extension of limitation periods, based on the belated discovery of material facts. This procedure was established by this Division as originally enacted, but is retained only for causes of action that accrued before 1 September 1990.

This Subdivision applies only to old causes of action.

57A This Subdivision applies only to causes of action that accrued before 1 September 1990.

[s 57B]

58(1) This section applies to a cause of action founded on negligence nuisance or breach of duty, for damages for personal injury, ...

(2) Where, on application to a court by a person claiming to have a cause of action to which this section applies, it appears to the court that:

(a) any of the material facts of a decisive character relating to the cause of action was not within the means of knowledge of the applicant until a date after the commencement of the year preceding the expiration of the limitation period for the cause of action; and

(b) there is evidence to establish the cause of action, apart from any defence founded on the expiration of a limitation period,

the court may order that the limitation period for the cause of action be extended so that it expires at the end of one year after that date and thereupon, for the purposes of an action on that cause of action brought by the applicant in that court, ... the limitation period is extended accordingly.

(3) This section applies to a cause of action whether or not a limitation period for the cause of action has expired:

(a) before the commencement of this Act; or

(b) before an application is made under this section in respect of the cause of action.

[ss 59, 60]

Subdivision 2 - Secondary limitation period

[ss 60A-60E] [As noted above, this Subdivision is not of present relevance.]

Subdivision 3 - Discretionary extension for latent injury etc.

60F The purpose of this Subdivision is to provide a procedure for a further discretionary extension of limitation periods where the plaintiff was unaware of the fact, nature, extent or cause of the injury, disease or impairment at the relevant time. This procedure is available for causes of action accruing on or after 1 September 1990, and also (by the operation of Schedule 5) for causes of action that accrued before that date.

60G(1)This section applies to a cause of action that accrues on or after 1 September 1990, founded on negligence, nuisance or breach of duty, for damages for personal injury, but does not apply to a cause of action arising under the Compensation to Relatives Act 1897.

(2)If an application for an order under this section is made to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period as it determines.

[s 60H]

60I(1)A court may not make an order under section 60G or 60H unless it is satisfied that:

(a) the plaintiff:

(i) did not know that personal injury had been suffered; or

(ii) was unaware of the nature or extent of personal injury suffered; or

(iii) was unaware of the connection between the personal injury and the defendant's act or omission,

at the expiration of the relevant limitation
period or at a time before that expiration when proceedings might reasonably have been instituted; and

(b) the application is made within 3 years after the plaintiff became aware (or ought to have become aware) of all 3 matters listed in paragraph (a) (i)-(iii).

(2)..................................................

[s 60J]

Subdivision 4 - General

[ss 60K, 60L]

60M(1)Applications and orders may be made under Subdivision 2 or 3 as if Division 1 of Part 4 had never been in force.

(2)An order for the extension of a limitation period, and an application for such an order, may be made under Subdivision 2 or 3 even though the limitation period has already expired.

[ss 61, 62] [Section 61 was quoted earlier]

PART 4 - MISCELLANEOUS

Division 1 - Extinction of right and title"

[ss 63-68A] [Sub-section 63 (1) and s 68A were quoted earlier].

Schedule 5, which has effect by reason of sub-s 6 (2) of the Limitation Act, provides in sub-cl 4 (1) that s 60G also applies to a relevant cause of action that accrued before 1 September 1990. But sub-cl 4 (4), as amended by the Statute Law (Miscellaneous Provisions) Act 1993 (Act No 46 of 1993), s 3, Schedule 1, provides that the Court may make an order under s 60G in relation to a pre-1 September 1990 cause of action only if an application for such an order is made within the period of three years referred to in s 60I or the period of three years commencing on 1 September 1990. In the present three cases, the applications for extension of time were made after expiry of the latter alternative period. It will be recalled that s 60I refers to a period of three years after the injured person became aware (or ought to have become aware) of the following:

(i) that the personal injury had been suffered;

(ii) the nature or extent of the personal injury suffered; and

(iii) the connection between the personal injury and the act or omission of the party to be proceeded against.

The notices of motion filed by Mewett, Rock and Brandon on 24 June 1994 sought an extension of the limitation period pursuant to ss 60F and 60G of, and Schedule 5 to, the Limitation Act (in Dedousis v Waterboard (1994) 181 CLR 171 ("Dedousis"), the High Court held that s 60F was merely an introductory provision that indicated the purpose of Sub-division 3 and summarised the effect of its substantive provisions, and that it did not operate so as to limit the power to grant an extension pursuant to sub-s 60G (2) of, and cl 4 of Schedule 5 to, the Limitation Act).

Apparently each of Mewett, Rock and Brandon would wish, in their applications for an extension of time, to attempt:

(a) to satisfy the Court that as at the time of the expiration of the relevant limitation period (31 August 1985 in the case of Mewett and 22 October 1991 in the case of Rock and Brandon), he had not known that personal injury had been suffered, or had been unaware of the nature and extent of personal injury suffered or had been unaware of the connection between the personal injury and the Commonwealth's act or omission; and

(b) to establish that his application for extension was made within three years of the time when he first became aware of all three of those matters; and

(cf Dedousis).

Limitation of Actions Act

As at 1 December 1988, the date of commencement of the Compensation Act, para 5 (1) (a) of the Limitation of Actions Act provided that actions founded on, inter alia, simple contract and tort were not to be brought after six years from the date on which the cause of action accrued. But sub-s 5 (1A) was as follows:

"(1A) An action for damages for negligence ...
where the damages claimed by the plaintiff consist of or include damages in respect of personal injuries consisting of a disease or disorder contracted by any person may be brought not more than six years from the date on which the person first knows--

(a) that he has suffered those personal injuries; and

(b) that those personal injuries were caused by the act or omission of some person."

Sub-section 3 (1) defined "personal injuries" to include "any disease and any impairment of a person's physical or mental condition."

Clearly sub-s 5 (1A) provided for an "automatic postponement of accrual for late discovery". As from 30 May 1989, as a result of the Limitation of Actions (Amendment) Act 1989, sub-s (1A) was amended and sub-ss (1B) and (1C) were added. These were as follows (the amendments to sub-s (1A) being indicated by underlining):

"(1A) An action for damages for negligence ... where the damages claimed by the plaintiff consist of or include damages in respect of personal injuries consisting of a disease or disorder contracted by any person may be brought not more than six years from, and the cause of action shall be taken to have accrued on, the date on which the person first knows--

(a) that he has suffered those personal injuries; and

(b) that those personal injuries were caused by the act or omission of some person.

(1B) Sub-section (1A) as amended by the Limitation of Actions (Amendment) Act 1989 applies to
each case where the date on which a person first knew the matters specified in paragraph (a) and (b) of that sub-section is within six years before the commencement of that Act.

(1C) Sub-sections (1A) and (1B) apply despite anything to the contrary in this or any other Act."

The Limitation of Actions Act included not only sub-s 5 (1A)'s provision for automatic postponement of accrual for late discovery (noted above), but also a discretionary power of extension in s 23A, sub-ss (1) and (2) of which were as follows:

"23A.(1) This section applies to any action for damages for negligence nuisance or breach of duty (whether the duty exists by virtue of a contract or of a provision made by or under a statute or independently of any contract or any such provision) where the damages claimed consist of or include damages in respect of personal injuries to any person.

(2) Where an application is made to a court by a person claiming to have a cause of action to which this section applies, the court, subject to sub-section (3) and after hearing such of the persons likely to be affected by that application as it sees fit, may, if it decides that it is just and reasonable so to do, order that the period within which an action on the cause of action may be brought be extended for such period as it determines."

The above s 23A was inserted with effect from 11 May 1983 (from 1 January 1973 to 11 May 1983 a predecessor s 23A had also provided for a discretionary extension of the limitation
period in personal injury cases).

GEORGIADIS

Constantinos Georgiadis commenced an action in the Supreme Court of New South Wales against Australian and Overseas Telecommunications Corporation ("AOTC") claiming damages in negligence for personal injuries sustained on five separate occasions in the course of his employment by AOTC. AOTC pleaded, inter alia, that the action was barred by s 44 of the Compensation Act. In his reply Georgiadis pleaded that s 44 was beyond the power of the Commonwealth Parliament by reason of s 51 (xxxi) of the Constitution. AOTC applied for an order striking out the statement of claim. On application by Georgiadis, the matter was removed into the High Court under sub-s 40 (1) of the Judiciary Act. Mason CJ stated a question for determination by a Full Court. The question and the answer which the Court gave by majority were as follows:

"Question: On the basis of the facts alleged in the statement of claim herein, is s 44 ... invalid in its application to the plaintiff?

Answer: As to a cause of action that was not statute-barred before his action was commenced, s 44 is invalid in its application to the plaintiff. As to a cause of action that was statute-barred, unnecessary to answer at this stage."

Mason CJ, Deane and Gaudron JJ in a joint judgment, and Brennan J in an independent judgment, considered that s 44 effected an "acquisition" of "property" of Georgiadis, namely the right of action which he had had as at 1 December 1988 to recover damages for personal injuries. Dawson and Toohey JJ dissented on the basis that s 44 effected an "extinguishment" rather than an "acquisition" of Georgiadis's cause of action. McHugh J also dissented, but on the basis that the right to bring the action against the Commonwealth was dependent upon federal law and so could be revoked by federal law, and that the alteration or extinguishment of a statutory right to bring an action did not constitute an acquisition of property for the purposes of s 51 (xxxi) of the Constitution.

The first three injuries suffered by Georgiadis had been sustained more than six years before 1 December 1988. The most recent two had been suffered within that period. Mason CJ, Deane and Gaudron JJ said this:

"As noted earlier, what has been said thus far concerns only the two causes of action which were not statute-barred before these proceedings were commenced. The position with respect to a statute-barred cause of action was not explored in argument. It is arguable that a cause of action that is statute-barred, whether it is the action or the remedy that is barred, it is not a valuable right and, thus, not property for the purposes of s 51 (xxxi). Whatever the position, the reserved question, as it bears on a statute-barred cause of action, is largely, if not entirely, academic. It does not require an answer at this stage." (at 308)

Their Honours proposed the answer referred to earlier. Brennan J agreed, holding that sub-s 44 (1) of the Compensation Act attracted the operation of s 51 (xxxi) of the Constitution and was invalid "in relation to causes of action enforceable at the time when s 44 (1) commenced" (at 312).

Clearly, the present cases raise for decision questions which their Honours were not called upon to determine in Georgiadis.

SUBMISSIONS

The Commonwealth's submissions

The Commonwealth referred to various instances of the use of the word "vested" and "extinguish" and their derivatives in the majority judgments in Georgiadis, and submitted that this showed that there had to be a "vested" cause of action which was capable of being "extinguished" by s 44 of the Compensation Act before that section could be said to operate (and therefore before any question as to its constitutional validity could arise). This seems to me to beg, rather than to answer, the question in the present three cases. Alternatively, on any meaning of the word "vested", Georgiadis related to a "vested" cause of action which was, at 1 December 1988, capable of being "extinguished", and their Honours' words are to be understood as emphasising that on the facts of that case there was an acquisition of property rather than as laying down a general test to be satisfied in all cases.

The Commonwealth referred at length to Gilvarry v The Commonwealth, unreported, Supreme Court of Victoria, Nathan J, 15 November 1994. In that case, Gilvarry had been a sailor in the Royal Australian Navy who survived the collision between HMAS "Voyager" and HMAS "Melbourne" off Jervis Bay in February 1964. He issued proceedings in the Supreme Court of Victoria in March 1994 claiming damages for psychiatric injuries which he claimed to have suffered as a result of the collision.

In its defence, the Commonwealth pleaded para 5 (1) (a) of the Limitation of Actions Act and s 44 of the Compensation Act. By his reply, Gilvarry pleaded sub-s 5 (1A) of the former Act and that he first learned that he was suffering from a severe psychiatric illness and its consequences caused by the collision, as recently as in March 1994, that being a time not more than six years before the issue of the proceedings.

After referring at length to the judgments in Georgiadis, Nathan J concluded that a "contingent" right of action, which his Honour thought was an appropriate way of describing what Gilvarry had as at 1 December 1988, was not touched by s 44 of the Compensation Act. His Honour also rejected an argument that the contingent right was property by reason of being an "innominate and anomalous interest". Nathan J gave the following answers to the following questions:

"(1) Is Mr Gilvarry's action statute-barred?

Answer:Yes.

(2) Is the statute-barred cause of action property capable of being acquired on terms
which are unjust?

Answer:No.

(3) Has the statute-barred cause of action been extinguished or acquired?

Answer:Extinguished.

(4) Even if answers 1-3 are wrong, is Comcare a code to which the Limitation Act 1989 [sic-1958] (Vic) does not apply, despite the Judiciary Act (Cth)?

Answer:Yes."

His Honour ordered that the relevant part of Gilvarry's reply be struck out and entered judgment for the Commonwealth.

The Commonwealth, further submitted that a "statute-barred cause of action" was not "property" which could be acquired by the Commonwealth and, in particular, did not constitute a chose in action; that the present cases involved statute-barred causes of action which were not "acquired" for the purposes of s 51 (xxxi); and that the right to apply for an extension of time in each in the present three cases was itself a "personal" right and not "proprietary" right. I accept the correctness of this last proposition.

Respondents' submissions

The respondents referred to two unreported decisions of Higgins J in The Supreme Court of The Australian Capital Territory in which his Honour held that s 44 was invalid in relation to causes of action accrued before 1 December 1988 in
respect of which an extendable limitation period had expired in circumstances where it was otherwise appropriate to extend the limitation period: see Fitzgibbon v The Commonwealth, 11 October 1994; Clark v Robb, 7 November 1994.

The respondents submitted that references in the legislation to the notion of "extending" a limitation period make clear the distinction between the continued subsistence of the cause of action itself and the expiry of an extendable limitation period for the enforcement of it.

Even in respect of s 63 of the Limitation Act, the respondents pointed out that by virtue of s 61, once a limitation period is extended, "the prior expiration of the limitation period has no effect for the purposes of [the] Act" and so, retrospectively, the extinguishment previously effected by s 63 is set at nought.

REASONING

The applicable limitation statute

There has been much discussion in the cases of the source of the Commonwealth's liability to suit, of the jurisdiction of various courts to hear and determine proceedings against the Commonwealth, and of the substantive and procedural law applicable (the discussions centres on ss 75 (iii) and 78 of the Constitution, ss 56 and 64 in Part IX of the Judiciary Act read in the light of Farnell v Bowman (1887) 12 App Cas 643 (PC), and ss 79 and 80 in Part XI of that Act): see Baume v The Commonwealth (1906) 4 CLR 97 at 110-111 (Griffith CJ with whom Barton J agreed), 118-120 (O'Connor J); The Commonwealth v New South Wales (1923) 32 CLR 200 esp at 206-207 (Knox CJ), 214-216 (Isaacs, Rich, Starke JJ), 217-222 (Higgins J); Musgrave v The Commonwealth (1937) 57 CLR 514 esp at 543-544 (Rich J), 546-548 (Dixon J), 550-551 (Evatt and McTiernan JJ); Werrin v The Commonwealth (1938) 59 CLR 150 at 161 (Rich J), 165-168 (Dixon J); Washington v The Commonwealth (1939) 39 SR (NSW) 133 (FC) at 140-144 (Jordan CJ with whom Halse Rogers and Maxwell JJ agreed); Shaw Savill and Albion Co Ltd v The Commonwealth (1940) 66 CLR 344 at 352-353 (Starke J); Bank of New South Wales v The Commonwealth (The Bank Nationalization Case) (1948) 76 CLR 1 at 363 (Dixon J); Asiatic Steam Navigation Co Ltd v The Commonwealth (1956) 96 CLR 397 at 416-417, 419-420 (Dixon CJ, McTiernan, Williams JJ), 427 (Kitto J); Deputy Federal Commissioner of Taxation v Brown (1958) 100 CLR 32 at 39-40 (Dixon CJ); The Commonwealth v Anderson (1960) 105 CLR 303 at 309-311 (Dixon CJ with whom Kitto and Windeyer JJ relevantly agreed), 317-318 (Menzies J); Pedersen v Young (1964) 110 CLR 162; Parker v The Commonwealth (1965) 112 CLR 295 (Windeyer J) at 300, 305-307; Suehle v The Commonwealth (1967) 116 CLR 353 (Windeyer J) esp at 355-357; Downs v Williams (1971) 126 CLR 61; Maguire v Simpson (1977) 139 CLR 362; The Commonwealth v Evans Deakin Industries Ltd (1986) 161 CLR 254 at 264-266 (Gibbs CJ, Mason, Wilson, Deane and Dawson JJ), 268-273 (Brennan J); Breavington v Godleman (1988) 169 CLR 41; Georgiadis, at 312 (Brennan J), 325-326 (McHugh J); and Commonwealth of Australia v Dinnison (1995) 129 ALR 239 (FCA/FC) at 242-245 (Gummow and Cooper JJ).

I do not find it necessary to refer to the many issues raised in these cases. It suffices that I identify the relevant substantive and procedural law applicable to the present three cases in accordance with those authorities.

Mewett pleads common law causes of action in contract and tort. It was not in issue that the events constituting the alleged tort and the alleged breach of contract occurred in Victoria. In my opinion, whether by the operation of s 75 (iii) of the Constitution, or (the preferred view) by the operation of s 64 and perhaps s 56 of the Judiciary Act, the common law of Victoria which would have determined the liability of a subject occupying the Commonwealth's position to Mewett on the pleaded causes of action in tort and for breach of contract, is made federal law to determine the Commonwealth's liability in Mewett's proceedings: see, for example, Baume v The Commonwealth (1906) 4 CLR 97; Pitcher v Federal Capital Commission (1928) 41 CLR 385 at 390-391 (Knox CJ and Powers J), 395-397 (Gavan Duffy and Starke JJ); Musgrave v The Commonwealth (1937) 57 CLR 514 at 543-544 (Rich J), 546-548 (Dixon J), 550-551 (Evatt and McTiernan JJ); Washington v The Commonwealth (1939) 39 SR (NSW) 133 at 142-143 (Jordan CJ with whom Halse Rogers and Maxwell JJ agreed); Asiatic Steam Navigation Co Ltd v The Commonwealth (1956) 96 CLR 397 at 416-417, 419-420 (Dixon CJ, McTiernan, Williams JJ), 427 (Kitto J); Suehle v The Commonwealth (1967) 116 CLR 353 (Windeyer J) at 355-357; Maguire v Simpson (1977) 139 CLR 362. The effect of this is that there is no occasion to resort to ss 79 and 80 of the Judiciary Act or to the private international law of New South Wales, in which State is located the High Court Registry office in which Mewett commenced his proceedings.

The limitation provision in the Limitation of Actions Act (whether or not such a provision is appropriately described as "procedural" or "adjectival" (cf McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1, Stevens v Head (1993) 176 CLR 433 and note on those cases by Richard York at (1993) 13 Syd L Rev 403)) are made applicable to Mewett's proceedings by s 64 of the Judiciary Act with the same effect, there being no applicable limitation provision in the Constitution or in any federal law: Maguire v Simpson (1977) 139 CLR 362; Commonwealth of Australia v Dinnison (1995) 129 ALR 239 (FCA/FC) at 241-245 (Gummow and Cooper JJ).

As will appear, however, the conclusion which I reach below in Mewett's case would be no different if the Limitation Act, rather than the Limitation of Actions Act, applied in his case.

Rock and Brandon were injured on a ship on the high seas beyond the territorial limits of any State. The HMAS "Stalwart" was a Commonwealth ship and the law to be applied is Commonwealth law: Parker v The Commonwealth (1965) 112 CLR 295 (Windeyer J) at 306. The parties proceeded on the basis that there is no Commonwealth common law of contract or tort as distinct from the common law of the respective States on these subjects (cf the Hon Mr Justice L J Priestley, "A Federal Common Law in Australia?" (1995) 46 South Carolina Law Rev 1043) and that ss 79 and 80 of the Judiciary Act operated to vest in Rock and Brandon causes of action under the common law of New South Wales (cf Commissioner of Stamp Duties (NSW) v Owens (No 2) (1953) 88 CLR 168 at 170; Parker v The Commonwealth (1965) 112 CLR 295 (Windeyer J) at 305-307 (but see what his Honour said of this case in Suehle v The Commonwealth (1967) 116 CLR 353 at 356)). It was also common ground that the Limitation Act applied in these two cases (cf Barton v Commissioner for Motor Transport (1957) 97 CLR 633 at 650 (Webb J); John Robertson & Co Ltd v Ferguson Transformers Pty Ltd (1973) 129 CLR 65 at 87-88 (Gibbs J), 93-95 (Mason J)). I proceed accordingly.

General

The only distinction between the present three cases and Georgiadis which was argued was that based on the effect of the Limitation Act. Georgiadis is authority for the proposition that down to the time when the six year limitation period expired, all three causes of action were "property" for the purposes of s 51 (xxxi) of the Constitution: Georgiadis at 303-304 (Mason CJ, Deane and Gaudron JJ), 311-312 (Brennan J), 319-320 (Toohey J). Whether their proprietary nature was lost can be tested in two interrelated ways: first, by inquiring into the juristic effect of the statutory provisions, and secondly, by inquiring whether those provisions denuded the respondents' rights of all value.

Juristic effect

Sub-section 14 (1) of the Limitation Act and sub-s 5 (1) of the Limitation of Actions Act, are both true limitation provisions in that they "bar the remedy but not the right" and because of this have been often referred to as "procedural" rather than "substantive": Australian Iron & Steel Ltd v Hoogland (1962) 108 CLR 471 at 488-489 (Windeyer J); Pedersen v Young (1964) 110 CLR 162 at 166 (Menzies J) (Kitto J), 169 (Windeyer J); Commonwealth of Australia v Dixon (1988) 13 NSWLR 601 (CA) at 605F-606B (Hope JA), 612G (Samuels JA) Maguire v Simpson (1977) 139 CLR 362 at 376-377 (Gibbs J), at 392 (Stephen J), 399 (Mason J); McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 at 18 et seq (Mason CJ), 41-45 (Brennan, Dawson, Toohey and McHugh JJ), 46-47 (Deane J). Section 63 of the Limitation Act, on the other hand, extinguishes a right and so has a substantive effect. It will be recalled that s 63 applies to Rock's and Brandon's claims but not to Mewett's. I will defer consideration of s 63 until later. The discussion which follows leaves it out of account.

It has often been recognised that following expiry of a true limitation period relating to a cause of action which exists under the common law, such as for tort or for breach of contract, the cause of action continues to exist: see, for example, Maxwell v Murphy (1957) 96 CLR 261 at 269 (Dixon CJ); Australian Iron and Steel Ltd v Hoogland (1962) 108 CLR 471 at 476 (Dixon CJ), 488 (Windeyer J); McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 at 19-20 (Mason CJ). The position is otherwise in the case of a cause of action created by statute which also imposes a time limit for the seeking of a remedy in respect of it: Maxwell v Murphy (1957) 96 CLR 261 (the cause of action created by the Compensation to Relatives Act 1897 (NSW)); Australian Iron & Steel Ltd v Hoogland (1962) 108 CLR 471 at 488 (Windeyer J); McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 at 20 (Mason CJ); The Commonwealth v Verwayen (1990) 170 CLR 394 at 498 (McHugh J).

The fact that proceedings have been commenced within a limitation period is not an element of the cause of action and so need not be pleaded by the plaintiff/applicant but must be pleaded by way of defence, and unless and until this happens the limitation has no effect (Australian Iron & Steel Ltd v Hoogland (1962) 108 CLR at 488 (Windeyer J); Ronex Properties Ltd v John Laing Constructions Ltd [1983] 1 QB 398 (CA) at 404-405 (Donaldson LJ); The Commonwealth v Verwayen (1990) 170 CLR 394 at 473 (Toohey J), 497-498 (McHugh J); and see O 11 r 10 of the Federal Court Rules). A court will not, of its own motion, refuse a remedy although the "lateness" of the commencement of proceedings is apparent: Thursby v Warren (1628) Cro Car 159 (79 ER 738); Stile v Finch (1634) Cro Car 381 (79 ER 932).

Against the above background, the provisions of the Limitation of Actions Act and the Limitation Act as they affect Mewett's, Rock's and Brandon's cases respectively may be considered.

Mewett's case

The first inquiry conveniently to be made is as to the effect, if any, produced in Mewett's case on 1 December 1988 by the commencement on that date of s 44 of the Compensation Act. Ex hypothesi, common law causes of action had accrued to Mewett in Victoria on 31 August 1979. Could action be brought for the enforcement of those causes of action as at 1 December 1988? Notwithstanding the expiry of the limitation period of six years fixed in para 5 (1) (a) of the Limitation of Actions Act on 31 August 1985, Mewett was entitled to bring an action after that date and, if the Commonwealth did not plead the limitation provision, to have it heard.

The case which Mewett wished to make on his application before the trial judge for an extension of time was that he first became aware of the health condition from which he suffered and of the fact that it was caused by the events of 31 August 1979 in or about August 1990. If that case is made out, in terms of sub-s 5 (1A) of the Limitation of Actions Act, the primary six year limitation period had not even commenced to run as at 1 December 1988. In addition to this provision for automatic postponement of accrual for late discovery of sub-s 5 (1A), as at 1 December 1988 the potential for extension by court order provided for in s 23A was available to be invoked by Mewett once he acquired the necessary awareness.

Although I have concluded earlier that the Limitation of Actions Act rather than the Limitation Act applies to Mewett's claim, I digress to consider what the position would be if the Limitation Act applied (but I postpone consideration of s 63 until later). Under the Limitation Act, as at 1 December 1988 there was no automatic postponement of accrual for late discovery provision like sub-s 5 (1A) of the Limitation of Actions Act. But sub-s 58 (2) of the Limitation Act would have been available as at 1 December 1988: sub-s 58 (3), since according to his case, "material facts of a decisive character relating to the cause of action [were] not within the means of knowledge of" Mewett until long after 1 December 1988. Therefore there was, as at that date, the possibility of a court's granting an extension of time under sub-s 58 (2).

The amendments which were effected by the Limitation (Amendment) Act 1990 (NSW) were also noted earlier. They came into effect on 1 September 1990. According to the case which Mewett wishes to make, from 1 September 1990 he had a chance of being granted an extension of time under sub-s 60G (2).

In Georgiadis, the majority thought that in substance s 44 of the Compensation Act extinguished causes of action and could not be described as a law modifying limitation periods. In relation to a cause of action in respect of which, as at 1 December 1988, a primary limitation period had expired, but which continued to exist and in respect of which there was the possibility of an extension of the limitation period, s 44 of the Compensation Act could still have this effect.

In speaking of a "statute-barred" cause of action in Georgiadis, Mason CJ, Deane and Gaudron JJ surely contemplated only provisions of the kind found in para 14 (1) (a) and s 63 of the Limitation Act and para 5 (1) (a) of the Limitation of Actions Act, and in particular, did not give any consideration to provisions for extension.

Under s 58 and the later s 60G of the Limitation Act and s 23A of the Limitation of Actions Act, the granting of an extension is discretionary, whereas under sub-s 5 (1A) of the Limitation of Actions Act the "delayed commencement for belated discovery" is automatic. Under both discretionary and automatic extension provisions, as at 1 December 1988 and at all times subsequently, Mewett's cause of action subsisted and, consistently with the reasoning of the majority in Georgiadis, was property. Of course, the value of that property could be expected to be less than what it would have been if the primary limitation period had not expired.

Rock's case and Brandon's case

In these two cases, the causes of action had accrued within six years before 1 December 1988. The majority decision in Georgiadis is authority for the proposition that at that time they were property and that s 44 of the Compensation Act purported to effect an acquisition of them and was invalid to the extent that it would have done so. Accordingly, Georgiadis requires that it be accepted that notwithstanding s 44 of the Compensation Act, action could be brought on those causes of action down to 22 October 1991, the date on which the primary six-year limitation period expired.

According to an affidavit of his solicitor, Brandon's case will be that he became aware of the nature of the health condition from which he suffered and of the factual causal link between it and the events of 22 October 1985 on board the HMAS "Stalwart", in or about October 1989. According to an affidavit of his solicitor, the equivalent time in Rock's case was in or about July 1992.

Section 44 of the Compensation Act speaks not only as at 1 December 1988 but as at times after that date. What I have said above in relation to Mewett's case applies to Rock's case and Brandon's case in so far as they concern the limitation provision of sub-s 14 (1) of the Limitation Act as at 25 October 1991 and thereafter.

Now s 63 must be considered. The extinguishment worked by s 63 is expressed to occur "on the expiration of a limitation period fixed by or under this Act" (emphasis supplied). In my opinion, the words "or under" are apt to refer to extensions under the authority of the Act, such as those provided for in ss 58 and 60G. Sub-section 60M (1) provides that applications and orders may be made under, relevantly, s 60G as if, relevantly, s 63 had never been in force. Importantly, s 61 provides that where a limitation period is extended by order under Division 3 of PART 3 of the Limitation Act, "the prior expiration of the limitation period has no effect for the purposes of [the] Act". Division 3 includes both the provision for extension in s 58 (now in Subdivision 1) and the provision for extension in s 60G (in Subdivision 3). Section 68A makes it clear that even the benefit of the extinguishment under s 63 can be "waived" by a non-pleading of it.

Orders for extension may be made under ss 58 and 60G on application made after expiry of the limitation period of six years fixed in the Act: sub-ss 58 (3) and 60M (2). In the present cases, the applications were made after expiry of that period. This raises the possibility that the causes of action may have been already extinguished by the operation of s 63.

Sections 61 and 68A and the words "or under" in sub-s 63 (1) combine to suggest that a cause of action founded on negligence for damages for personal injury may not be extinguished immediately upon expiry of the six-year limitation period. They suggest that the cause of action continues to exist until the time when both of two conditions are satisfied: in proceedings the benefit of the extinction is claimed (see s 68A) and the time within which an extension might be applied for has passed (see sub-ss 51 (1) and (2), 58 (2) and 60I (1)). If this view is correct, in my opinion the cause of action continues until that time to have the character of property and Georgiadis leads to the conclusion that s 44 of the Compensation Act invalidly purports to effect an acquisition of the causes of action of Rock and Brandon.

A different view is that the cause of action is extinguished immediately upon expiry of the six-year limitation period subject to the possibility of retrospective nullification of the extinguishment and revival of the cause of action (this is the view which was taken in Commonwealth of Australia v Dixon (1988) 13 NSWLR 601 (CA) at 609E-610B, (Hope JA), 612G (Samuels JA)). At least this is clear: the legislature intended that it be possible for an extension of time to be applied for and granted after expiry of the six-year period, unaffected by s 63. Sub-section 44 (1) of the Compensation Act does not touch that right of application because it is not "an action or other proceeding for damages". Once an order for extension is made, s 61 operates to deny effect to the prior expiration of the limitation period. Thus, the cause of action is then shown to have continued in existence as property and Georgiadis leads again to the conclusion referred to above.

Value

Value has been treated as one of the indicia of "property": see, for example, Minister of State for the Army v Dalziel (1944) 68 CLR 261 at 290 (Starke J - "every species of valuable right and interest"); Georgiadis at 308 (Mason CJ, Deane and Gaudron JJ). Where an injured person is caused, by the actionable wrong of another, to lose the opportunity to enforce a cause of action in respect of the injuries, damages payable by the wrongdoer are assessed by reference to the value of the chance of recovery which has been lost: Johnson v Perez (1988) 166 CLR 351; Nikolaou v Papasavas, Phillips & Co (1988) 166 CLR 394; Kitchen v Royal Air Force Association [1958] 1 WLR 563 (CA). Damages are recoverable provided there was some prospect of success: Kitchen's case, supra. It was not suggested here that the claims in tort and for breach of contract had no prospects of success. It would only be if there were no prospects of success on the respondents' applications for extensions of time that those rights of action could be said to have lost all value. This cannot be said to be the case here.

CONCLUSION

For the foregoing reasons, in each of the three cases the question reserved for the Full Court should be answered "Yes", the Commonwealth's appeal should be dismissed and the Commonwealth should be ordered to pay the respondent's costs of the appeal and of the determination of the question reserved. The order for costs should extend to include the respondent's costs on the Commonwealth's motion brought by notice of motion filed on 8 November 1994 for leave to appeal from Foster J's dismissal of its motion for striking out and for an order reserving the subject question to a Full Court for determination.

I certify that this and the preceding 43 pages are a true copy of the Reasons for Judgment of the Honourable Justice Lindgren.

Associate:

Dated: 31 August 1995

Heard: 14, 17 February 1995

Place: Sydney

Decision: 31 August 1995

Appearances: Mr J A McCarthy QC with Mr J Lenczner and Mr B J Knox of counsel instructed by The Australian Government Solicitor appeared for the appellants.

Mr D A Wheelahan QC with Mr M L Brabazon of counsel instructed by Szekeley & Associates, solicitors, appeared for the respondents.

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