e JUDGMENT NO. senedcct Loa ne CATCHWORDS CONSTITUTIONAL LAW - Commonwealth - Commonwealth Employee - Employment Injuries - Safety Rehabilitation and Compensation Act 1988 (Cth) - s 44 - law extinguishing cause of action for damages sustained through employer's alleged negligence or breach of contract - Commonwealth Constitution - s 51(xxxi) - whether law with respect to the acquisition of property - whether claims statute barred before commencement of s 44 are "property" - whether cause of action "vested" - Judiciary Act (1903) (Cth) - s 44(2A) and (3) - jurisdiction of Federal Court of Australia to entertain actions. LIMITATION OF ACTIONS - application for extension of time of causes of action - Limitation Act 1969 (NSW) - s 14 - whether action is maintainable - s 63(1) - whether the right and title of the applicant is extinguished. PRIVATE INTERNATIONAL LAW - system of law to be applied in relation to tort allegedly committed in Australia - Judiciary Act 1903 (Cth) - s 79 - choice of law in relation to exercise of federal jurisdiction - ss 56(1) and 64 - choice of law for actions against the Commonwealth - Limitation Act 1969 (NSW) - 8 63 - whether provision is substantive or procedural. WORDS AND PHRASES - Commonwealth Constitution - s 51(xxxi) - "property" - "innominate or anomalous interest" - Safety bilitati an ompensation Act 1988 (Cth) - s 44 - "proceedings for damages" - Judicjary Act (1903) (Cth) - s 79 - "the laws of each State". PRACTICE - Notice of Motion to strike out claim - whether claim is untenable. The Commonwealth Constitution - s 51(xxxi), s 75(iii), 8 77, s 78, s 118 Judiciary Act (1903) (Cth) - s 39(2), s 44(1), s 44(2A), s 44(3), s 56, s 56(1), s 56(1)(b), s 64, s 79 Safety Rehabilitation and Compensation Act 1988 (Cth) - s 44, s 45 Limitation Act 1969 (NSW) - s 14, s 60F, s 60G, s 60M, s 61, 63, s 63(1), Schedule 5 Supreme Court Act 1970 - s 94 Mutual Pools and Staff Pty Limited v Commonwealth (1994) 119 ALR 555-77 Georgiadis v Australian and Overseas Telecommunications Corp (1994) 119 ALR 629 ission v Peverill (1994) 119 ALR 675 Re Direct ° ic osecutions;: E arte Lawler (1994) 119 ALR 655 WSGAL Pty Limited v Trade Practices Commission & Qrs (1994) 122 ALR 673 Commonwealth v Verwayen (1990) 170 CLR 394 Commonwealth v Dixon (1988) 13 NSWLR 603 Breavington v Godleman (1987-88) 169 CLR 41 McCauley v Hamilton Island Enterprises Pty Limited §& Ors (1986-87) 69 ALR 270 at n f£eN W. s v The Commonwealth Savings Bank of Australia (1984) 154 CLR 579 McKain v RW Miller & Co (SA) Pty Limited (1991-92) 174 CLR 1 Pozniak v Smith (1982) 151 CLR 36 Robinson v Shirley (1981-82) 149 CLR 132 Suehle v The Commonwealth (1967) 116 CLR 353 Chaplin v Boys {1971] AC 356 P sen v Young (1964) 110 CLR 162 John Robertson & Co Limited v Ferguson Transformer Pt Timitasd (1973) 129 CLR 65 ational Airlines issi v ommonwealt f Australia and Canadian Pacific Rirlines Limited (1974-5) 6 ALR Maguire & Anor v Simpson & Ors (1976-77) 139 CLR 362 oop v Bebb (1951) 84 CLR 629 Anderson v Eric Anderson Radio and TV Pty Limited (1965) 114 CLR 20 Phillips v Eyre [1870] LR 6 QB 1 Genera] Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 THE COMMONWEALTH QF AUSTRALIA V ROBERT JOHN MEWETT No. NG 326 of 1994 FOSTER J 1 NOVEMBER 1994 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. NG 326 of 1994 GENERAL DIVISION —eSwae ew BETWEEN: THE COMMONWEALTH OF AUSTRALIA Applicant AND: ROBERT JOHN MEWETT Respondent CORAM: FOSTER J DATE: 1 NOVEMBER 1994 PLACE: SYDNEY MINUTE OF ORDERS THE COURT ORDERS THAT: 1. The Notice of Motion be dismissed. 2. The applicant pay the respondent's costs of the Motion. 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 ) No. NG 326 of 1994 ) GENERAL DIVISION ) BETWEEN: THE COMMONWEALTH OF AUSTRALIA Applicant AND: ROBERT JOHN MEWETT Respondent CORAM FOSTER J DATE: 1 NOVEMBER 1994 PLACE: SYDNEY REASONS FOR JUDGMENT HIS HONOUR: By this Notice of Motion, The Commonwealth of Australia ("the Commonwealth"), the respondent in the principal proceedings, seeks to strike out the whole of the Statement of Claim of the respondent, Robert John Mewett ("Mewett"), the applicant in the principal proceedings. It also seeks that a Notice of Motion brought by Mewett be also struck out on the basis that the Court has no jurisdiction to entertain it. KGROUN On 20 June 1994, Mewett commenced proceedings against the Commonwealth in the High Court of Australia, Sydney Office of the Registry. By his Statement of Claim he alleged that in August 1979, whilst he was a seaman in the @ 2. Royal Australian Navy, he suffered physical injury and psychological trauma whilst aboard the vessel HMAS "Kembla". The injuries, physical and psychological, were occasioned to him when the vessel was swamped by waves whilst proceeding out of Port Phillip Bay, Victoria. He alleged that these injuries were occasioned by breach of contract by the Commonwealth in that it was a term of his employment that the Commonwealth would take reasonable precautions for his safety, that term being breached by exposing him to the risks of injury involved in taking the vessel to sea in the prevailing conditions. He also alleged breach of the employer's duty of care. Further particulars of these breaches, contractual and tortious, are set out in the Statement of Claim. There is no need to repeat them here. The Commonwealth entered an appearance at the Sydney Registry. Thereafter the following orders (inter alia) were made in the High Court, by consent:- "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 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." The proceedings in the High Court were, consequently, remitted to this Court pursuant to s 44(2A) of the Judiciary Act (1903) (Cth) (the "Judiciary Act"). On 1 3. ® July 1994 the Commonwealth entered a defence to the Statement of Claim. In addition to denying the breaches of contract, and duty of care and putting in issue other aspects of Mewett's claim, it raised the following further matters of defence: - "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)." There is no dispute that Mewett's causes of action accrued in August 1979 on the occasion when HMAS "Kembla" was swamped. For the purposes of the Notice of Motion, it is to be assumed, in his favour, that there were, on that occasion, relevant breaches of duty in contract and in tort by the Commonwealth and that those breaches there and then occasioned him physical and psychological injury in respect of which he sues. Consequently, if, as is contended and he disputes, ss 14 and 63 of the Limitation Act 1969 (NSW) (The "Limitation Act") are applicable then the relevant period of limitation expired in August 1985, nearly 9 years before he brought his action. @ 4. In relation to these two defences, Mewett seeks, by Notice of Motion, an extension of time for the bringing of proceedings sufficient to take the Statement of Claim filed in the High Court outside the operation of the sections of the Limitatjon Act. It is the Commonweaith's contention that this Notice of Motion cannot be brought, the Court having no jurisdiction to entertain it as a result of the provisions of s 44 of the Safety Rehabilitation and Compensation Act 1988 (Cth) (the "Compensation Act") which is relied upon in its defence. E ISING IN R i TQ THE ENSATION ACT It is accepted that s 45 of the Compensation Act has no part to play in these proceedings. Section 44, relevantly, provides as follows:- "44. (1) -.-an action or other proceeding for damages does not lie against the Commonwealth, a Commonwealth authority, a licensed corporation or an employee 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, Commonwealth authority or licensed corporation 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." Of course, Mewett had instituted no action or 5. proceedings for damages before the commencement of the section on 1 December 1988. It is Mewett's contention that the section does not bar his claims against the Commonwealth because it lacks legal validity in relation to those claims through its infringement of s 51(xxxi) of the Constitution of the Commonwealth. He asserts that the section, if applicable to those claims, would effect an acquisition of them by the Commonwealth otherwise than on just terms. For present purposes, he asserts that there exists a triable issue in this regard sufficient to prevent the striking out of his Statement of Claim. It is the Commonwealth's contention that insofar as those claims were statute barred by the Limitation Act before the commencement of the section, there can be no triable issue as to the application in Mewett's favour of s 51(xxxi) of the Constitution. In any event, Mewett seeks, by his Notice of Motion for extension of time, to overcome any difficulties that may be involved in the expiration of the relevant periods of limitation. He asserts that s 44 of the Compensation Act cannot operate to prevent him seeking this relief. For ease of dealing with the complex submissions that have been made in relation to the Commonwealth's motion and its defences set out above, I shall assume, for the present, that the sections of the Limitation Act relied upon do in fact apply to Mewett's claim with the result that as at 6. 1 December 1988, it had been statute barred for over three years. In these circumstances the Commonwealth submits that s 44 of the Compensation Act provides a total and final answer to Mewett's claim because it both (a) destroys those claims themselves and (b) prevents the bringing of any application pursuant to the Limitation Act for any relevant extension of time. The latter assertion raises a question of the construction of s 44 which I shall defer. The first involves a consideration of the area of operation of s 44 and of its constitutional validity having regard to recent decisions of the High Court of Australia in relation to s 51(xxxi) of the Constitution. These decisions are Mutual Pools and Staff Pty Limited v Commonwealth (1994) 119 ALR 555-77, jadis v Australian and Overseas Telecommunications Corp (1994) 119 ALR 629, Health Insurance Commission v Peverill (1994) 119 ALR 675 and Re Director of Public Prosecutions; Ex parte Lawler (1994) 119 ALR 655. All these decisions were the subject of extensive consideration and discussion by a Full Court of this Court in t imited v Trade Practices Commission & Ors (1994) 122 ALR 673. There is no need for me to repeat or add to that discussion in these reasons. The decision of most obvious relevance to the present case is Georgiadis, where the Constitutional validity of s 44 of the Compensation Act was considered in relation to the common law claim of an injured 1, bad employee of a Commonwealth instrumentality. It is necessary to make fairly detailed reference to this case. Georgiadis was injured in the course of his employment with AOTC on five occasions before s 44 of the Compensation Act came into force as part of a new scheme of compensation for Commonwealth employees. He brought his action for damages in the Supreme Court of New South Wales. The action was commenced after s 44 came into effect. Of the five injuries sued upon, the first three had occurred on dates which meant that the relevant period of limitation under New South Wales law had expired well before Georgiadis commenced his action. The others were within time. As appears from the judgments, the actions in respect of the first three injuries, which were statute barred at the date of commencement of the scheme, were not the subject of any final decision in the case. The Court focussed its attention on the causes of action which, at the relevant time, were still within the period of limitation prescribed by the New South Wales legislation. The Court held, by majority, that s 44, in purporting to deprive Georgiadis of his right to litigate those causes of action, because of his failure to institute them before the commencement of the section, infringed the Constitutional guarantee given by s 51(xxxi). The destruction of the causes of action by the operation of the section amounted to an acquisition of Georgiadis' property in them other than on just' terms. The infringement of the Constitutional guarantee and its effect upon the validity of s 44 in relation to his claims had been specifically pleaded 8. by Georgiadis, as it has been in the present case. The present case, however, raises for decision the question whether claims which were statute barred before the commencement of s 44 can be treated as "property" for the purposes of the Constitutional guarantee. As indicated, this question was specifically left undecided in Georgiadis, although it was the subject of judicial comments to which I shali refer. In the first instance, however, it is convenient and useful to have regard to what was said in the majority judgments as to the Constitutional invalidity of the section in relation to the claims which had not been previously statute barred. Mason CJ and Deane and Gaudron JJ posed the question for decision (at 632) as follows:- "It is well established that s 51(xxxi) operates as a constitutional guarantee and that, for that reasons, 'acquisition' and 'property' as used in that paragraph are to be construed liberally. In particular, s 51(xxxi) is 'not to be confined pedantically to the taking of title ... to some specific estate or interest in land recognised at law or in equity ... but ... extends to innominate and anomalous interests'. And 'property' as used in s 51(xxxi) extends to 'every species of valuable right and interest including ... choses in action', 'money and the right to receive a payment of money'. Clearly, a right to bring an action for damages for negligence is a valuable right. Thus, the question in this case is whether s 44 is a law with respect to the acquisition of that right for a purpose in respect of which the parliament has power to make laws within s 51(xxx1)." (The quotations in the passage are taken from previous judgments of the High Court referred to in footnotes which I do not repeat here.) 9. Their Honours went on the say (at 633):- "... 'acquisition' directs attention to whether something is or will be received. If there is a receipt, there is no reason why it should correspond precisely with what was taken. That is particularly so with 'innominate and anomalous interests'. Thus, the fact that neither Telecom nor any one else now has that cause of action which was previously vested in Mr Georgiadis is not conclusive of the question whether there has been an acquisition of property for the purposes of para (xxxi)." Their Honours dealt further with the concept of "acquisition" (at 634-5) where they said:- «+. 'acquisition' in s 51(xxxi) extends to the extinguishment of a vested cause of action, at least where the extinguishment results in a direct benefit or financial gain (which, of course, includes liability being brought to an end without payment or other satisfaction) and the cause of action is one that arises under the general law. The position may be different in a case involving the extinguishment or modification of a right that has no existence apart from statute. That is because, prima facie at least and in the absence of a recognised legal relationship giving rise to some like right, a right which has no existence apart from statute is one that, of its nature, is susceptible of modification or extinguishment. There is no acquisition of property involved in the modification or extinguishment of a right which has no basis in the general law and which, of its nature, is susceptible to that course. A law which effected the modification or extinguishment of a right of that kind would not have the character of a law with respect to the acquisition of property within s 51(xxxi) of the Constitution. (See Health Insurance Commission v Peverill (1994) 119 ALR 675 per Mason CJ, Deane and Gaudron JJ) So far as the issues in this case are concerned, the effect of s 44, if valid, is to extinguish a vested cause of action that arose under the general law. That is so even if the right to proceed against the Commonwealth is properly identified as a statutory right. And its effect is to confer a distinct financial benefit on the Commonwealth and its agencies in respect of their pre-existing liability for employment injuries falling outside s 45 of the 10. Act. In our view, the position is no different from that involved in the extinguishment of a vested cause of action against the Commonwealth for goods sold and delivered. Doubtless, Mr Georgiadis and other workers provided their skill and labour on the basis that they were entitled to damages at common law as well as workers' compensation benefits if injured as a result of Telecom's negligence. In that context, the right to damages can realistically be seen as part of the overall quid pro quo for the work performed. Thus and so far as it bears on the issues in this case, s 44 is, in substance, if not in form, a law for the acquisition of causes of action against the Commonwealth and its agencies which vested in employees before s 44 came into operation but which now fall outside s 45 of the Act." In relation to the nature and operation of s 44, their Honours said (at 635):- ... it is by no means accurate to describe s 44 as a law modifying the limitation period applicable to causes of action with respect to injuries sustained by Commonwealth employees before the new scheme came into effect. Subject to s 45, which does not apply in the present case, s 44 puts an end to a cause of action against the Commonwealth or its agencies if it was not sued upon before it, s 44, came into effect. Section 44 operated once and for all as a final measure terminating those causes of action which ffall outside s 45, not as a measure prescribing the time in which proceedings were to be commenced." Having said that the present case was "finely balanced", their Honours said (at 636):- "But when s 44 is viewed in the context of a scheme which applies only to Commonwealth employees, it may be fairly characterised as a law for the acquisition of the causes of action which vested in those employees prior to the commencement of the new scheme. That acquisition is for the purposes of that scheme, that is to say, it is for a purpose for which the parliament has power to make laws. It is true that s 44 may be susceptible of other characterisations for other purposes. For the 11. @ purposes of s 51(xxxi) of the Constitution, however, it bears a distinct character as a law with respect to the acquisition of property within that paragraph. The Act provides no compensation whatsoever with respect to the causes of action which vested before the new scheme commenced and which, being outside s 45, are, in substance, acquired by s 44, Accordingly, s 44 is invalid to that extent by reason that it effects an acquisition of property other than on just terms as required by s 51(xxxi) of the Constitution." It is to be noted, of course, that their Honours' reasons relate only to Georgiadis' causes of action which, although not sued upon before the commencement of s 44, were, nevertheless, "vested", in the sense that they were otherwise available to found an action. In relation to the first three claims which had become statute barred, the following passage appears (at 636):- "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, 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 ae statute-barred cause of action, is largely, if not entirely, academic. It does not require an answer at this stage." It should also be noted that (at 633-4) their Honours made the following comments:- "Telecom and the Commonwealth relied on the difference between a taking and an acquisition to argue that the extinguishment of a cause of action cannot constitute an acquisition. Of course, it e 12. will often be the case that it does not, as, for example, where the cause of action is extinguished by judgment or by the effluxion of time." In a footnote their Honours indicated that "this will only occur if there is legislation which bars the action rather than the remedy". (See Commonwealth v Verwayen (1990) 170 CLR 394 at 405, 473, 486-7, 497). These last two passages are, understandably, relied upon by the Commonwealth in the present case. Brennan J, who was in agreement, indicated (at 637) that it was "unnecessary to consider whether s 44 had any effect on the plaintiff's 'stale' claims". He said that the validity of s 44 could "be tested by reference to its effect on claims which, s 44 apart, are enforceable against the defendant". In deciding whether there had been, relevantly, an acquisition of "property", his Honour said (at 638-9):- "The validity of s 44 therefore depends on whether 8 44 provides for an acquisition of property. For reasons which I have given in Mutual Pools & Staff Pty Ltd v Commonwealth, I would hold that, if the Plaintiff's rights against the Commonwealth were proprietary in nature, the extinguishment of those rights by s 44 would amount to an acquisition of property. The Corporation acquired a release from liability in damages to the plaintiff and as that liability was the correlative of the plaintiff's claim, the release acquired is of the same nature as the claim extinguished. What, then, is the nature of a claim in negligence for damages for personal injury? A plaintiff's claim in negligence causing personal injuries is a chose in action, as the Court of Appeal decided in Curtis v Wilcox. In that case it was held that a wife's claim for damages for pre- nuptial negligence was part of her property for 13. ® which she was entitled to sue her husband pursuant to the Married Women's Property Act 1882 (UK). Although such a cause of action is not assignable, their Lordships rejected the argument that assignability is the test of whether a claim in negligence was a chose in action and, in my respectful opinion, rightly so. It is not by reason of its nature that such a claim is not assignable; it is for reasons of public policy that the courts have held that such a claim is not assignable, thereby avoiding the evils of champerty. And, as Mason J pointed out in R v Toohey; Ex parte Meneling Station Pty Ltd: 'Assignability is not in all circumstances an essential characteristic of a right of property.' It needs no extension of the meaning of 'property' in s 51(xxxi) to comprehend a chose in action for damages for negligence causing personal injury. That paragraph, which is _ construed liberally as befits a constitutional guarantee of just terms, protects common law choses in action which are vested in an individual." (Footnotes to this passage have not been reproduced). It may also be noticed that in the course of his judgment his Honour referred more than once to claims which were "vested". However, it must equally be noted that his Honour was considering only such claims, the "stale" claims having been put out of consideration. Quite obviously, the majority judgments in Georgiadis apply directly only to claims which were directly available to be sued upon at the time of commencement of s 44. "Stale" claims are not the subject of favourable decision; indeed, some doubt is cast upon whether they could relevantly be regarded as "property" within the meaning of the Constitutional guarantee afforded by s 51(xxxi). However, it is equally clear that their Honours made no final decision that such claims could not receive the benefit of the 14. decision. The question was expressly left open as one for decision on another occasion. This case, of course, presents such an occasion. However, it must be remembered that what I have to decide, at present, is whether the applicant's Statement of Claim should be struck out. This course could be taken only if the defences in question were unarguably and necessarily fatal to its success. I am not persuaded that this is so. Assuming, as I do, in this part of these reasons that Mewett's claims are subject to the Limitation Act, there is in relation to the bars imposed by both s 14 and s 63(1), rights given by (inter alia) ss 60F, 60G and Schedule 5 of the Limitation Act to seek an extension of time for the bringing of action, notwithstanding that it was, at the time of commencement of s 44 of the Compensation Act, and still is, statute barred. It may also be noted that this right exists notwithstanding the fact that s 63(1) purports to extinguish the right of action and not merely bar the remedy. It follows, in my view, that, should Mewett be successful in his application for extension of time within which to sue, the extension so granted would retrospectively have the result that his cause of action could be described as "vested" at the time of commencement of s 44. In such circumstances it is, in my view, at least reasonably arguable that it would acquire the protection of Georgiadis. Arguably, this would be so even in the case of the extinguishment, prima 15. @ facie, resulting from the application of s 63(1) of the Limitation Act. That section, clearly, must be read with s 60M and s 61. Section 60M provides for the making of applications and orders as if s 63(1) "had never been in force" and for the making of orders for extension "even though the limitation period has already expired". Section 61 provides that where a limitation period is extended "the prior expiration of the limitation period has no effect for the purposes of this Act". The situation in relation to s 63(1) is, no doubt, anomalous (see per Hope JA Commonwealth v Dixon (1988) 13 NSWLR 603 at 609-601). I am satisfied that it is reasonably arguable that the effect of an order for extension, if successfully applied for, would be to produce the result that, at the commencement of s 44, Mewett would be regarded as having a "vested" cause of action, notwithstanding that it had been "extinguished" by operation of s 63(1) at the termination of the prescribed six year limitation period. Quite apart from these considerations, it would appear that a further argument would be available to Mewett. As at the commencement of s 44, although his causes of action were "stale" and indeed "extinguished", he nevertheless had a right to seek to reinstate or revive them by bringing appropriate proceedings. Could this not be, at least, an "innominate or anomalous interest"? If this were taken from him by the operation of s 44 there must, arguably, be some 16. benefit to the Commonwealth. Certainly the benefit would not be as substantial or direct as in the case where an immediately available cause of action was extinguished but, nevertheless, it would be freed from the risk of being subjected to a revived cause of action which could be just as expensive for it as a "vested" right to sue. In my view, it cannot be said that parity of reasoning with Georgiadis could not produce the result that the right to seek, in effect, a revival of the barred caused of action was not a "property" right capable of "acquisition". In making these observations, I have not lost sight of arguments presented on behalf of the Commonwealth to the effect that some statements made in the majority judgments in Georgiadis would necessarily obviate a finding that the right to seek an extension of the limitation period was "property". The arguments were based upon the reference in the passages already cited to the relevant rights of property being "common law" rights and not "statutory" rights which were inherently susceptible to variation or extinguishment by statutory amendment. I do not consider that these arguments must necessarily prevail. The basic rights asserted by Mewett are, in fact, common law rights. Although unavailable to him at the time of the commencement of s 44 they were, nevertheless, (I allow for the anomalous position created by s 63(1)) in a state of suspended animation rather than extinction. They had not, beyond argument, been converted into mere statutory creations capable of modification or extinguishment. In any 17, ® event, it would appear, the statutory modifications or variations contemplated in the passages relied upon were seen as arising from amendments via the statute, or some cognate statute, which had conferred the right in the first place. Section 44, it is clear from Georgiadis, is not to be seen as a4 statutory provision affecting limitation periods, and certainly not one directed to the alteration of rights conferred by the Limitation Act of the State of New South Wales. It operates in a different legal area. I am accordingly satisfied that these arguments on behalf of the Commonwealth do no necessarily require a finding that Mewett had, relevantly, no right of property which could be "acquired" by the Commonwealth through the operation of s 44. The question remains, however, whether s 44 must be construed, as submitted by the Commonwealth, as depriving Mewett of the right to bring an application for an extension of the limitation period. Assuming such a right is not of itself "property", then its extinguishment by s 44 would necessarily prevent Mewett from ever enforcing his dormant or suspended common law rights. This aspect of the case depends upon the construction to be given to the phrase in s 44 "proceedings for damages". It is submitted, on behalf of the Commonwealth, that this phrase necessarily encompasses an application for extension of time to bring an action for damages. I am not persuaded that this is so. Section 44, clearly enough, operates to deprive a citizen of common law rights hitherto enjoyed. In such circumstances it should not @ 18. be given a liberal construction. I think it is strongly arguable that the phrase is not apt to cover applications for extension of time. These are not proceedings which, in themselves, seek damages from the Commonwealth. I am satisfied that s 44 is not apt to cover the proceedings which Mewett brings for extension of time in which to. sue. Accordingly, he is free to bring these proceedings and, in my view, must be allowed to do so. If he is successful in these proceedings, then, as I have said, his claim will most likely escape the operation of s 44 of the Compensation Act. The foregoing findings are, in themselves, sufficient to prevent the Commonwealth's success in the strike-out application. I consider, however, that I should deal with other arguments which have been advanced as to the applicability, in the circumstances of this case, of the defences raised under the Limitation Act. TH ATI 1 NSW) APPLY TO TH LAIMS? It would appear to be clearly arguable that Mewett's cause of action in negligence and his claim for breach of contract both arose in the State of Victoria. His action against the Commonwealth, in respect of both of its breaches of duty to him, was initiated in the Sydney Registry of the High Court of Australia. It has been remitted to this Court for hearing as if the Writ and Statement of Claim had in fact been taken out in this Court and as if Sydney had been stated in the Writ as the place of trial. I confess to some 19. ® uncertainty as to the appropriateness of these last-mentioned orders. The Federal Court of Australia has no original jurisdiction to entertain actions against the Commonwealth. The High Court has such jurisdiction under s 75(iii) of the Constitution. Similar jurisdiction is conferred upon state courts within the terms of s 39(2) in conjunction with 8 56(1)(b) of the Judiciary Act. As a result of these sections claims in contract or in tort may be brought against the Commonwealth in the Supreme Courts of a State or Territory in which the claim arose (or any other Court of competent jurisdiction within the State or Territory) or in such courts in a State or Territory other than one in which the claim arose, provided that the Commonwealth, in that case, submits to the jurisdiction. (Breavington v Godleman (1988) 169 CLR 41 at 69, 100-106, etc). The Federal Court of Australia is not mentioned in these sections. Cross-vesting and associated jurisdiction apart, the jurisdiction of this Court, in relation to claims by or against the Commonwealth, derives from ss 77 and 78 of the Constitution and ss 44(2A) and (3) of the Judiciary Act. These latter two sections read as follows:- "(2A) Where a matter in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party is at any time pending in the High Court, the High Court may, upon the application of a party or of the High Court's own motion, remit the matter, or any part of the matter, to the Federal Court of Australia. (3) Where the High Court remits a matter, or any part of a matter, under subsection (2) or (2A) to a court: 20. (a) that court has jurisdiction in the matter, or in that part of the matter, as the case may be; and (b) subject to any directions of the High Court, further proceedings in the matter, or in that part of the matter, as the case may be, shall be as directed by that court." It may be that claims against the Commonwealth commenced in the High Court can also be remitted to the Federal Court of Australia under s 44(1). There is no need to consider that question here. The significant matter is that the Federal Court of Australia can gain jurisdiction in suits against the Commonwealth only by remitter of such suits from the High Court. It seems clear that when it receives jurisdiction in such matters in this way it is, in effect, exercising, in a derivative or surrogate fashion, the jurisdiction of the High Court in respect of the proceedings remitted. In McCauley v Hamilton Isjand Enterprises Pty Limited & Ors (1986) 69 ALR 270 at 275, Mason J said that in the case of remitter from the High Court to this Court under s 44(2A) that this Court "relevantly stands in the jurisdictional shoes" of the High Court. Also, in State Bank ° Ww, th Wales v The Commonwealth Savings Bank of us i (1984) 154 CLR 579, where the High Court was required to determine whether a remitter from the High Court should be to the Supreme Court of New South Wales or to the Federal Court, Gibbs CJ said (at £87) "it is clear that the law to be applied in the Federal Court would be the same as that applicable in this Court...". Accordingly, it is clear that in determining what law is to be applied in relation to 21. Mewett's claim in this Court, it is necessary to determine what law would have been applied in the High Court if no remitter had taken place. This does not mean, of course, that this Court must apply the purely procedural rules of the High Court rather than its own. Once the remitter has occurred, this Court must deal with the case in accordance with its own procedures in relation to interlocutory steps and the hearing. It is necessary to keep in mind that the present case is one of the exercise of federal jurisdiction by a federal Court. In Breavington (at 87) Wilson and Gaudron JJ said, in this regard:- "Chapter III jurisdiction, whether exercised by this Court, by courts created by the Commonwealth Parliament or by State courts invested with federal jurisdiction, is an Australian jurisdiction. A court when exercising federal jurisdiction, notwithstanding that it is exercising jurisdiction within a particular State or Territory, is not in any relevant sense a forum of the law district of that State or Territory. eee In the ordinary course of litigation in respect of tortious acts, involving what we have loosely described as an interstate element, matters may fall for adjudication by a court of a State or Territory exercising the judicial power of that State or Territory or by a court exercising federal judicial power. Thus, in the context of the Australian federation and the Australian legal system, the choice of law questions which may arise cannot be confined as in a unitary legal system. The question in relation to tortious acts becomes one of the law to be applied when the matter is litigated in a court other than a court exercising the judicial power of the State or Territory in which the tort was committed." 22. In the High Court decision of McKain v RW Miller & Co _ (SA) Pty Limited (1991) 174 CLR 1, a case in which the choice of law rules in relation to foreign torts were extensively considered and which did not involve the exercise of federal jurisdiction, the following passage occurs in the judgment of the majority (Brennan, Dawson, Toohey' and McHugh JJ) (at 35):- "In the absence of any overriding constitutional or statutory provision, a State or Territorial court exercising jurisdiction in a claim for damages for a tort which has occurred outside the jurisdiction, but within Australia, must apply the common law rules governing conflict of laws. (The problem for federal courts exercising Australia-wide jurisdiction and bound by s. 79 of the Judiciary Act 1903 (Cth) raises additional questions for consideration which need not delay us here.)" I shall return to this judgment but note, at this stage, the reservation made as to the situation where federal jurisdiction is being exercised. It is also worth noting that the High Court has not infrequently been called upon to deal with the problem, arising in its original jurisdiction, of determining what system of law should be applied in relation to an action for tort committed in Australia. The problem arises, of course, from the fact that individual States of the Commonweaith have had and still have different laws relating to liability and the assessment of damages and also limitation periods in the area of tort law. I do not propose, in these reasons, to rehearse the many cases in which such problems have arisen 23. @ over the years. Quite frequently, an accident in respect of which a claim is made, occurs in one State of the Commonwealth whereas the claimant resides in another State, the defendant residing in the State of the accident. A claimant brings an action in the High Court of Australia and the question arises as to what system of law is appropriate to the case. It appears that, not infrequently, the solution has been adopted of remitting the case for hearing to the court of the State where the accident happened or the High Court itself sitting in that State to hear the matter (see e.g. Pozniak v Smith (1982) 151 CLR 38; Robinson v Shirley (1982) 149 CLR 132). Here, of course, the situation is complicated by the fact that proceedings were commenced in the High Court in Sydney in respect of the Victorian accident and the claim has been remitted for hearing in this Court in Sydney. Accordingly, that solution is not available. In the present case, it is contended on behalf of the Commonwealth that the Limitation Act should be applied to these proceedings when heard in this Court as the Court is sitting to determine the matter in New South Wales. For Mewett it is contended, on the other hand, that as_ the relevant accident happened in Victoria, the Victorian limitation legislation should be applied. The New South Wales legislation has the effect of barring his claim. The Victoria legislation may not. Because the case is to be heard in the exercise of federal jurisdiction, and because the Commonwealth is a party, there are complications over and above those which 24. would apply in an ordinary choice of law situation. It is best that I come to these considerations immediately. The Judiciary Act makes provision for dealing with choice of law problems in relation to the exercise of federal jurisdiction. It does so explicitly by s 79 which provides as follows: - "79. The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable." This section was, of course, enacted before the creation of the Federal Court of Australia. On behalf of the Commonwealth, however, it is submitted that, so far as the present proceedings are concerned, it necessarily requires that the Limitation Act, being a law of the State in which the case is to be heard, should apply to it to the exclusion of the limitation legislation of the State of Victoria. There can be no doubt that if the case had no federal element and was simply an action for damages brought in the State of New South Wales in respect of the cause of action arising in Victoria, the majority decision in McKain would require that the New South Wales statute, as part of the lex fori should, at least, insofar as it was procedural in operation, govern the situation. Does the application of s 79 of the Judiciary Act necessarily produce the same result where a federal 25. @ element is involved? There is some authority to suggest that it may not, at least where the Commonwealth is sued. As the ensuing discussion involves some consideration of ss 56(1) and 64 of the Judiciary Act, I shall set them out at this stage. They provide, so far as relevant, as follows:- "56. (1) A person making a claim against the Commonwealth, whether in contract or in tort, may in respect of the claim bring a suit against the Commonwealth: (a) in the High Court; (b) if the claim arose in a State or Territory - in the Supreme Court of that State or Territory or in any other court of competent jurisdiction of that State or Territory; or (c) if the claim did not arise in a State or Territory - in the Supreme Court of any State or Territory or in any other court of competent jurisdiction of any State or Territory. 64. In any suit to which the Commonwealth or a State is a party, the rights of parties shall as nearly as possible be the same, and judgment may be given and costs awarded on either side, as in a suit between subject and subject." The operation of these sections was considered by Windeyer J in §Suehle v The Commonwealth (1967) 116 CLR 353. In that case the plaintiff, an employee of the Commonwealth sued it in negligence claiming damages occasioned by an employment injury. The injury had been sustained in South Australia. He commenced his action in the Canberra Registry 26. of the High Court. The proceedings were heard before Windeyer J in Sydney. In New South Wales, at that time, the contributory negligence of a plaintiff afforded a complete defence to his action. In South Australia, however, a finding of contributory negligence led only to an apportionment of damages which would otherwise be awarded to a _ successful plaintiff. In these circumstances, it was contended on behalf of the plaintiff that the appropriate law to be applied to the proceedings was the law of South Australia, whereas' the defendant contended that it should be the law of New South Wales. In the event, his Honour did not have to decide this question but as it had been very fully argued before him, he said that he thought it desirable that he should state by what law he considered he "was governed in exercising jurisdiction". He expressed the decided view that it was the law of South Australia and gave the following reasons (at 355- 56):- "In my view the liability of the Commonwealth for a tort has its source in s. 56 of the Judiciary Act 1903-1965 (Cth). This Court has jurisdiction to entertain such an action by virtue of s. 75 of the Constitution. But in my view the Constitution does not of its own force subject the Commonwealth to liability in tort at the suit of a subject. The Judiciary Act I consider does that. I say this having regard especially to what Dixon J. said in Werrin's Case (Werrin v. The Commonwealth (1938) 59 C.L.R. 150, at p. 167) although I am aware that the reasoning of the majority in The Commonwealth v. New South Wales (1923) 32 C.L.R. 200, and some later judgments in this Court can be invoked for a contrary view. If, as I think, it is s. 56 of the Judiciary Act which makes the Commonwealth liable in tort at the suit of a subject, then, in my view that section also provides the answer to the question of law to be applied when a subject brings such a suit. That, as I said during the hearing, is because s. 56 seems to me to contain within itself an implication 27. that the law to be applied is the law of the State where the tort was committed and the cause of action arose. That is because jurisdiction in such a cause is not exerciseable by all courts which, anywhere in Australia, have jurisdiction in actions arising out of 'foreign' torts. The section states that a plaintiff who sues the Commonwealth in contract or tort may do so in this Court, or in the Supreme Court of the State or Territory in which the claim arose, or (since the amendment made in 1960) in any other court of competent jurisdiction in that State or Territory. These are the only courts in which an action can be brought by a subject against the Commonwealth. From this I conclude that the intention of the Parliament of the Commonwealth when it made the Commonwealth liable at the suit of a subject was that, in whichever court of those authorized to try it the action is brought, it is to be tried according to the lex loci delicti; and when the action is brought in this Court that becomes the lex fori. I see no reason at all for supposing that the law to be applied in such a case should vary according to whether the action were brought in a South Australian court or in this Court and that in this Court it would depend upon whereabouts in the Commonwealth the Court should sit to try the case. I do not think that ss. 79 and 80 of the Judiciary Act compel me to any such conclusion. The policy which they reflect is, I assume, that when this Court exercises jurisdiction in a State in a matter which might have been litigated in a court of that State the law which it is to apply should be the same law as the State court would apply in like case. Sections 79 and 80 thus attract the State law (including the rules of private international law applicable as part of the State law), and make it govern the proceedings in this Court. But those sections apply only when the laws of the Commonwealth do not otherwise provide. And in my view s. 56 is a law of the Commonwealth which makes a different provision. The defendant sought to displace this conclusion by reference to s. 64; but I do not think it has the effect suggested." This passage is, of course, obiter but it, nevertheless, represents the considered view of Windeyer J after hearing full argument on the question. This is clear form the fact that his Honour referred to his intention not to enter into "any detailed discussion of the authorities" to 28. which he was referred. The topic was, he said, "tangled and technical". He expressed the hope (at 357) that "some day Parliament may do something to simplify it". At the very least this passage must provide a strong basis for an argument that where the Commonwealth is sued in the High Court and the action is remitted to the Federal Court, the fact that the case is heard in a particular State or Territory does not necessarily require that the law of that State or Territory be the governing law for the proceedings. Section 56 of the Judiciary Act can operate to prevent what might otherwise be the effect of s 79 upon the selection of the relevant law. This could mean that in actions against the Commonwealth in the national courts, the choice of the governing law is not to be determined by what might be the accidental circumstance of the actions being commenced or heard in a State or Territory other than that in which the cause of action arose. The court, if not constrained by such an artificial restriction, would be free to determine what, in all the circumstances, appeared to be the appropriate law to determine all the rights of the parties. There could, perhaps, even be room for the application of the "flexible exception" enunciated by Lord Wilberforce in Chaplin v Boys [1971] AC 356. The decision of the majority in McKain would not necessarily preclude this approach, as the operation of the Judiciary Act was specifically left out of consideration in the judgment. 29. @ Suehle has not, so far as I am aware, been the subject of authoritative disapproval. It is referred to, with apparent acceptance, in Breavington. Thus (at 101) Wilson and Gaudron JJ say in relation to s 56 of the Judiciary Act:- "Various functions have from time to time been ascribed to s. 56 of the Judiciary Act. It has been ascribed the function of impliedly directing the application of the substantive law of the State or Territory in which the claim arose in actions in which the Commonwealth is sued in tort or contract: Washington v. The Commonwealth (1939) 39 S.R. (N.S.W.) 133, at p. 143; Musgrave (1937) 57 C.L.R., at pp. 547-548, per Dixon J; Suehle (1967) 116 C.L.R., at pp. 355-356. If it has this function, it is in any event achieved by the adoption of the choice of law rule that tortious liability be determined by the substantive law that would be applied if the action were brought in a_ court exercising the judicial power of the State of Territory in which the events occurred." Brennan J in Breavington (at 118) would appear to accord authority to Suehle. He said:- "If the action is brought in this Court pursuant to s. 56(1)(a) of the Judiciary Act, the kind of liability to which the Commonwealth is subject is determined by the law of the relevant Territory for that becomes the lex fori for the purpose of the action: Suehle v. The Commonwealth (1967) 116 C.L.R. 353. If the action is brought in the court of the appropriate Territory pursuant to s. 56(1)(b), that court will, of course, apply the law of that Territory. And if the action is brought in a court on which jurisdiction is conferred only by s. 39(2) of the Judiciary Act, and the Commonwealth submits to the jurisdiction of that court, that court will adopt the same choice of law principles as it adopts in actions between subjects: see s. 79 of the Judiciary Act. No exception is made to that rule in an action in which the Commonwealth is a party: s. 64 of the Judiciary Act." 30. On the basis of this passage, it must be strongly arguable that this Court, when exercising the remitted jurisdiction of the High Court in a claim against the Commonwealth, is prima facie bound to apply the lex loci delicti as the law governing the determination of the proceedings, rather than the law of the State or Territory where the proceedings are being heard. This would be so despite the requirements of s 79 which would point to the lex fori as being appropriate. Section 79 would be restricted in its operation to cases in the national Courts where the Commonwealth was not the respondent. In the present case this would mean that the Federal Court of Australia, although sitting in New South Wales, would look to the law of Victoria to determine the issues raised in the proceedings. This law, presumably, would govern both matters of substance and of procedure except, of course, for matters obviously falling for determination in accordance with the Rules of this Court. In making these observations I do not lose sight of what has been said in earlier cases in the High Court as to the operation of s 79 in rendering inapplicable the limitation statutes of the lex loci delicti when proceedings were brought or heard in another State (see e.g. Pedersen v Young (1964) 110 CLR 162). In such cases s 79 was held to "pick up" the local statute in preference to the statute of the State where the cause of action arose. In John Robertson Oo Limited v Ferguson Transformers Pty Limited (1973) 129 CLR 65, a case which does not appear to display total uniformity of opinion on the topic, Gibbs J said (at 87-88), in relation to the 31. question of the applicability of the relevant South Australian statute of limitations to an action brought in the High Court of Australia in its Adelaide Registry, as follows:- "The legislature of South Australia has no constitutional power to prescribe a limit of time within which proceedings may be brought in this Court or in any other federal court, and a statute of limitations enacted by that legislature must be construed as applicable only to proceedings in courts subject to the legislative power of South Australia: Pedersen v. Young (1964) 110 C.L.R. 162, at pp. 165, 167. However, the question arises whether s. 37 is made applicable in the present case by s. 79 of the Judiciary Act 1903-1969 (Cth)... It may, I think, safely be taken as settled that this Court, at least when exercising original jurisdiction, is a court exercising federal jurisdiction within the meaning of s. 79: see Pedersen v. Young (1964) 110 C.L.R., at pp. 165, 167-168, and cases there cited. It is also settled that s. 79 does not give a new and more extensive meaning to State laws which it renders binding on a court exercising federal jurisdiction; it applies those laws with their meaning unchanged: Commissioner of Stamp Duties (N.S.W.) v. Owens {No. 2] (1953) 88 C.L.R. 168; Pedersen v. Young (164) 110 C.L.R., at pp. 165-166; Re Young's Horsham Garage Pty. Ltd. [1969] V.R. 977, at p. 979. To that last proposition it is, however, necessary to add a qualification. Section 79 may render applicable in a court exercising federal jurisdiction a State statute which either by its express provisions or upon its proper construction is limited in its application to the courts of the State: see per Menzies J. in Pedersen v. Young (1964) 110 C.L.R., at pp. 167-168. If the laws of a State could not apply if, upon their true construction as State Acts, they related only to the courts of the State, it would seem impossible ever to find a State law relating to procedure, evidence or the competency of witnesses that could be rendered binding on courts exercising federal jurisdiction, because most, if not all, of such laws, upon their proper construction, would be intended to apply in courts exercising jurisdiction under State law. In spite of the doubts that have been expressed, I consider that s. 79 would require this Court, sitting in original jurisdiction in a State, to apply a State statute of limitations ..." 32. The width of operation of s 79 in picking up State legislation was, nevertheless, a matter of debate. In jan Nation Airlines ommission v onwt t f Australia and Canadian Pacific Airlines Limited (1975) 6 ALR 433, Mason J was not prepared to accord to s 79 the power to apply s 94 of the Supreme Court Act 1970 (NSW) to determine the question of interest payable on damages awarded in that case. His Honour said (at 435-436) :- "Both the plaintiff and the second defendant claim interest on damages up to judgment. The claim is based on s 94 of the Supreme Court Act 1970, as amended, (NSW) which confers a power on the Supreme Court of New South Wales to award interest in respect of damages as part of the judgment, a power which is said to be applicable in these proceedings by virtue of s 79 of the Judiciary Act 1903, as amended. Whether this step in the argument is well founded is a familiar question not without it difficulties - see John Robertson & Co Ltd v Ferguson Transformers Pty Ltd (1973) 129 CLR 65 at 80-1, 84, 88, 94-5; Pedersen v Young (164) 110 CLR 162; (1964] ALR 798. However, it is my view that s 79 does not operate to pick up and apply in proceedings in the High Court a provision such as _ s 94 which is contained in a statute designed to define and regulate the powers and procedure of the Supreme Court and which confers power on that court to order interest on damages in judgments entered by that court in proceedings before it. No matter how widely it may travel in some respects s 79 does not, in my view, pick up and apply in this court a provision which empowers a particular court of a State to make orders and enter judgments in proceedings in that court. The relevant powers of this court are conferred by the Judiciary Act and the High Court Procedure Act 1903, as amended; as I see it they are not to be supplemented by the operation of s 79 of the Judiciary Act in the manner suggested." In Maguire & Anor v Simpson & Ors (1977) 139 CLR 362, a case relied upon by the Commonwealth in these 33. sd proceedings, the Commonwealth Trading Bank of Australia (abbreviated to "the Commonwealth") brought proceedings in the Supreme Court of New South Wales claiming payment from a certain trust fund. It was argued, by way of defence, that this claim had become barred by lapse of time pursuant to ss 14 and 63 of the Limitation Act 1969 (NSW). In response, it was submitted on behalf of the Commonwealth that these limitation sections could not apply to its action. This raised for consideration the question whether, as federal jurisdiction was being exercised, s 79 of the Judiciary Act applied to render applicable the State limitation provisions. Gibbs J, having held that the Supreme Court was exercising federal jurisdiction said that it was required by s 79 "to apply the laws of New South Wales, insofar as they were applicable in determining the questions in issue". His Honour (at 376-377) went on to say:- "However, 8. 79 'does not purport to do more than pick up State laws with their meaning unchanged': Pedersen v. Young (1964) 110 C.L.R. 162, at p. 165; and see Commissioner of Stamp Duties (N.S.W.) v. Owens [No. 2] (1953) 88 CLR 168, at p. 170. It was pointed out in John Robertson & Co. Ltd. v. Ferguson Transformers Pty. Ltd. (1973) 129 C.L.R. 65 that there is an exception to the generality of that statement; a State law may be rendered applicable by s. 79 to a court exercising federal jurisdiction, which is not a State court, notwithstanding that the law according to its own terms is limited in its application to the courts of the State. The actual question which arose in that case, and upon which the Court was divided in opinion - whether a State statute of limitation was rendered applicable by s. 79 to an action which was given by a Commonwealth Act and which could only be brought in the High Court - does not here concern us. But the four Justices who considered the effect of s. 79 in that case were, I consider, all in agreement' that, 34. subject to an exception of the kind mentioned, s. 79 does not enable a court' exercising federal jurisdiction to give an altered meaning to a State statute which it is required to apply (1973) 129 C.L.R., at pp. 80-81, 83, 88, 94-95. Section 79 therefore has nothing to say on the question whether a State statute which is to be applied by a court exercising federal jurisdiction becomes binding on the Commonwealth. In the present case if the Limitation Act does not of its own force bind the Bank, s. 79 does not give its provisions an extended operation which would render them binding upon the Bank. However, s. 64 of the Judiciary Act provides as follows: 'In any suit to which the Commonwealth or a State is a party, the rights of parties shall as nearly as possible be the same, and judgment may be given and costs awarded on either side, as in a suit between subject and subject.' The words of this section, naturally construed, appear to have the effect that if the Commonwealth is a party to proceedings its rights, and the rights of all other parties to the proceedings, will be governed by any statute of limitations that would be applicable if both parties were subjects. In the present proceedings a subject in the position of the Bank would have no rights against the fund, because of the provision of s. 14(1)(a) and s. 63 of the Limitation Act. The other parties to the proceedings would, if the adverse claimant in the position of the Bank were a subject, have rights to the fund free from the claims of that adverse claimant. Unless some restriction should be placed upon the apparently plain meaning of the words of s. 64 their effect is that in any suit to which the Commonwealth is a party the litigants on both sides shall as nearly as possible have the same rights as if both were subjects. In the present case this would bring about the result that the rights of the Bank on the one hand and those of the other parties to the proceedings on the other hand will as nearly as possible be the same as if the Bank were in the position of an ordinary subject. The qualification introduced by the words 'as nearly as possible' creates no difficulty; it is quite possible to apply a statute of limitations to the Commonwealth and such a statute can readily be applied to the Bank. Indeed the provisions of a statute of limitations may as appropriately be applied to a trading bank as to any other party. The effect of s. 64, stated more directly, is that the Limitation Act, which is to be applied in the proceedings by virtue of s. 79, 35. is rendered applicable to the Commonwealth as though it were a subject, and therefore binds the Bank. The Limitation Act is so applied by force of Commonwealth law, and not by its own force as a State law. It may be accepted that because s. 63 of the Limitation Act extinguishes the right of the person whose claim is statute barred, the relevant provisions of that statute cannot be regarded as merely procedural. But s. 64 is not in terms limited to rights of a procedural kind and no reason exists to imply a limitation of that kind in a remedial provision expressed in the broad terms of s. 64." It was s 64 of the Judiciary Act, then, that required the decision that the New South Wales Limitation Act should apply to the Commonwealth instrumentality. Indeed, Gibbs J, later in his judgment (at 380-381), expressed the view that Suehle ultimately depended upon the application of s 64 rather than s 56 of the Judiciary Act. Maguire, however, it must be remembered, was not a case involving choice of law. Nor did it involve any special considerations that might apply to actions brought in a national court. The Commonwealth instrumentality had sued in a State court in a cause of action arising in that State. The only question was whether, in these circumstances, the State limitation legislation should apply to it. It could not do so, the court held, of its own force but it was made applicable by s 64. Moreover, this was a case in which s 56 could not apply. The Commonwealth was not being sued. It had submitted to the jurisdiction of the New South Wales Supreme Court by invoking it, that jurisdiction being the jurisdiction conferred by s 39(2). Bearing in mind the passage cited from the judgment of Brennan J in Breavington, it must, in my view, be arguable that this Court is not bound by s 79, nor s 64, to apply the 36. Limitation Act to these proceedings. It is free to have regard to the provisions of the lex loci delicti, namely the law of Victoria. As I understand it, it is the Commonwealth's submission in the present case that s 79 necessarily requires that the Limjtation Act be applied to Mewett's proceedings as it contemplates that it is the statute law of the State of hearing which is "picked up". I do not consider that such a narrow operation can be given to s 79, in any event. The section speaks of "the laws of each State..". This phrase embraces more than the statute law of the State. It is certainly arguable that it includes the rules of private international law applied as part of the law of the State. Certainly Windeyer J appears to have been of that view. In Pedersen (110 CLR at 169-170) he said:- "When the Judiciary Act makes the law of a State binding upon courts exercising federal jurisdiction within the State, the law thus designated is, it has been held, the whole body of the law of the State including the rules of private international law so far as applicable." Allowing for this to be so, and accepting for the purpose of argument that this Court is, in the present case, required by s 79 to apply the law of New South Wales, it must have regard to the relevant private international law rules as part of the body of that law. When this area of jurisprudence was covered by the decisions of the High Court in Koop v Bebb 37. (1951) 84 CLR 629 and Anderson v Eric Anderson Radjo and TV Pty Limited (1965) 114 CLR 20, the result would have been that the Limitation Act would have applied both as a matter of substance and procedure because the law of New South Wales as the lex fori would have governed the whole situation. This is, of course, no longer the case since Breavington and icKain. This is not the occasion to enter into a consideration and discussion of the various judgments in those cases. There is, of course, a significant judicial division in those decisions both in terms of result and reasoning. However, it is clear that the lex loci delicti can now have a significant, if not determinative, role to play in actions for torts committed in a State other than the State of hearing. In McKain the question was whether, in an action brought in the Supreme Court of New South Wales in respect of an employment injury suffered in South Australia, the claim was barred by the relevant provision of the limitation legislation of that State. It was held that, contrary to what would have been the position in Koop and Anderson, substantive Matters in the proceedings fell to be determined by the law of South Australia and not the law of New South Wales. The minority judgments, for differing reasons, held that the South Australian limitation provisions necessarily applied to the New South Wales proceedings including provisions for extension of time. The majority, however, (Brennan, Dawson, Toohey and 38. McHugh JJ) held that they did not. In so holding, their Honours adhered to the traditional distinction between procedure and substance in limitation statutes. They held that the South Australian provision, because it merely barred the remedy without extinguishing the cause of action was a law of limitation relating to procedure. They further held that, in accordance with established doctrine, questions of procedure fell for determination in accordance with the lex fori, the law of New South Wales. Accordingly, the South Australian statute had no application. The minority judgments held to the contrary, either on the basis that limitation statutes which merely barred the remedy should no longer be regarded as simply procedural but should now be regarded as having substantive operation, or because s 118 of the Commonwealth Constitution required that the South Australian legislation be applied in the New South Wales proceedings by way of according to it "full faith and credit". The effect of the majority decision, if applicable in cases where the Commonwealth is sued in a national court, would, in the present case, appear to be that the Victorian limitation legislation which bars only the remedy could not. be applicable. Section 14 of the Limitation Act, which also bars only the remedy and is therefore procedural, would apply. It would do so as part of the lex fori. What, however, would be the position in relation to s 63 of the Limitation Act which extinguishes the cause of action? 39. @ Section 63 is, clearly enough, a provision which is to be regarded as substantive rather than procedural. There was unanimity in McKain, both in the majority and minority judgments, that the appropriate substantive law to be applied in the New South Wales proceedings was the law of South Australia, being the lex loci delicti. The majority judgment arrived at that position by a restatement of the rule in Phillips v Eyre (1870] LR 6 QB 1 and the application of the restated rule, particularly its second limb, to the facts of the case. In so doing, their Honours may have been assisted by a concession, made on behalf of the plaintiff, that the South Australian law should be the substantive law applied. The minority judgments refer to the concession, but do not appear to have placed any particular reliance upon it, it being accepted that, as a matter of principle, or as a result of the application of s 118 of the Constitution, South Australian law, as the lex loci delicti, should determine the substance of the matter wherever the proceedings were heard. Is the result of McKain that only the lex loci delicti can apply to determine questions of substance? If so, in the present case, the law of New South Wales can play no part in determining substantive matters. Accordingly, s 63, as it falls into the category of substantive rather than procedural law can have no bearing on the case. As against this, however, regard must be had to a passage in the majority judgment which appears to deal with this situation. After discussing the distinction between procedure and substance in 40. statutes of limitation, their Honours say (at 42):- "Of course, if a statute of limitations which is part of the lex fori not only bars the brining of an action after the expiration of a limitation period but extinguishes the civil liability which would otherwise exist under the lex fori, the courts of the forum will give effect to the statute according to its tenor, that is, both as a procedural law and as a law having a substantive operation." In a footnote to this passage specific reference is made to s 63 of the imitation Act providing clear indication that their Honours had this section in mind when enunciating this general proposition. It would appear that this passage is obiter. In an area as difficult and complex as this undoubtedly is, it cannot be said, in my view, that this statement would necessarily be finally accepted as representing the law if it were the critical question for decision and were the subject of full and focussed argument. In any event, as already indicated, there remains the question as to whether s 63 can properly be characterised as "substantive" in the circumstances where, in actions for personal injury, it can be set at nought by a successful application for an extension of time. I have to decide, in this Notice of Motion, whether Mewett's Statement of Claim should be struck out on the basis that, having regard to the defences which I have been discussing, it is clearly untenable. Similarly, I must decide 41. whether the Notice of Motion for extension of time should be struck out on the basis that there is no jurisdiction to entertain it. In accordance with the decision of the High Court in General Steel Industries Inc v Commissio Railways (NSW) (1964) 112 CLR 125, I must approach this question on the basis that the exercise of this jurisdiction should not be reserved for those cases "where argument is unnecessary to evoke the futility of the plaintiff's claim". I bear in mind that "argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed" (per Barwick CJ at 131). I have had the benefit of extensive argument in this matter. I have given close consideration to the authorities which appear to bear upon matters which have been raised. I am unable to hold that the plaintiff's case is so untenable that it cannot possibly succeed. In these circumstances, I must dismiss the Notice of Motion with costs. In my view, the appropriate course at this stage of the litigation is for the Court to determine Mewett's application for extension of time to sue. It would appear that such an application is necessary whatever limitation legislation is applicable. If he be unsuccessful, then that is the end of the matter. If he succeeds, then the defences will be considered in light of that fact. I accordingly order:~ 1. The Notice of Motion be dismissed. 42. 2. The applicant pay the respondent's costs of the Motion. I certify that this and the preceding forty one (41) pages are a true copy of the reasons for judgment herein of the Honourable Mr Justice M. L. Foster. Associate: Dre, Date: 1 NOVEMBER 1994 APPEARANCES MR J. McCARTHY Q.C. COUNSEL FOR THE APPLICANT: with MR B. KNOX INSTRUCTED BY: AUSTRALIAN GOVERNMENT SOLICITOR MR D. WHEELAHAN Q.C. COUNSEL FOR THE RESPONDENT: with MR M. BRABAZON INSTRUCTED BY: MESSRS TAYLOR SZEKELY KELSO DATE OF HEARING: 25, 26 AUGUST 1994 DATE OF JUDGMENT: 1 NOVEMBER 1994