Commonwealth v Mewett

HIGH COURT OF AUSTRALIA

BRENNAN CJ, DAWSON, TOOHEY, GAUDRON, McHUGH, GUMMOW AND KIRBY JJ

COMMONWEALTH OF AUSTRALIA v ROBERT JOHN MEWETT(Matter No S 33 of 1996); COMMONWEALTH OF AUSTRALIA v MICHAEL JOHN ROCK (Matter No S 34 of 1996); COMMONWEALTH OF AUSTRALIA v MARK JOHN BRANDON (Matter No S 35 of 1996)
Constitutional law - Limitation of Actions - Private international law; (1997) 191 CLR 471, (1997) 146 ALR 299

31 July 1997
Constitutional law - Limitation of Actions - Private international law; (1997) 191 CLR 471, (1997) 146 ALR 299

Constitutional law—Nature and source of liability of the Commonwealth in contract and tort—Crown immunity—Effect of Ch III of Constitution. Constitutional law—Acquisition of property on just terms—Action by injured Commonwealth employees for common law damages—Statutory removal of right of action—Whether acquisition of property otherwise than on just terms—Effect of limitation statutes. Limitation of Actions—Alleged expiry of limitation period—Whether statute-barred cause of action property—Provision for extensions of limitation periods—Distinction between extinguishment of right and barring of remedy. Private international law—Applicable law—Action against Commonwealth—Injuries suffered in Victorian waters and on high seas—Proceedings commenced in Sydney Registry of High Court and remitted to Federal Court—Procedural and substantive law to be applied—"Picking up" of State limitation statutes. Constitution of the Commonwealth, ss 51(xxxi), 75, 78. Safety, Rehabilitation and Compensation Act 1988 (Cth), s 44(1). Judiciary Act 1903 (Cth), ss 44(2A), 56, 64, 79, 80. Limitation Act 1969 (NSW), ss 14(1), 58(2), 60F, 60G, 60I, 60K, 61, 63, 78. Choice of Law (Limitation Periods) Act 1993 (NSW), s 5. Limitation of Actions Act 1958 (Vic), s 5(1A).

Orders

Order:
Appeals dismissed with costs.

Decision

BRENNAN CJ.

The examination of the cases and the literature undertaken by Gummow and Kirby JJ lead their Honours to the statement of several propositions that result in the dismissal of these appeals. I am in agreement with those propositions and with the result but I would add some brief observations stimulated by a reading of their Honours' reasons.

Where a State statute of limitations bars the remedy but does not extinguish the right of action, the prescribed limitations apply to any suit to which the Commonwealth is a party in a court exercising its federal jurisdiction in that State either by operation of s 64 or by operation of s 79 of the Judiciary Act 1903 (Cth). As at present advised, I would not ascribe any operation to s 64 in respect of a State statute of limitations which extinguishes the right when it bars the remedy. The reasons for doubting whether s 64 has any operation in that context can be gleaned from my judgment in The Commonwealth v Evans Deakin Industries Ltd[1] but the question is of no present significance.
Once it is understood that the acquisition of property which s 44 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) ("the Comcare Act") purported to effect was the extinguishment of the causes of action which existed when that provision came into effect on 1 December 1988, the invalidity of s 44 of the Comcare Act in its purported application to those causes of action is established. Then, as neither s 64 nor s 79 of the Judiciary Act had any operation upon the respondents' causes of action before proceedings were commenced on 20 June 1994, the question is simply whether the respondents' causes of action were statute barred on 20 June 1994.

Although s 79 of the Judiciary Act picked up and applied the Limitation Act 1969 (NSW) as amended by the Limitation (Amendment) Act 1990 (NSW) to the respondents' suits against the Commonwealth on their commencement, the periods of limitation fixed "by or under" the New South Wales statute[2] have not been finally determined. In Mewett's case, the Commonwealth has not pleaded a limitation under the Limitation of Actions Act 1958 (Vic) and, for the reasons given by Dawson J, that Act is immaterial to the result of these appeals.

I should add that, in my opinion, s 80 of the Judiciary Act is immaterial, for the common law is expressed to apply only "[s]o far as the laws of the Commonwealth are not applicable". The "laws of the Commonwealth" are the statute laws of the Commonwealth including s 79. Section 79 picks up the State's laws relating to procedure, evidence and the competency of witnesses, whether those laws be statutory or common law. So the common law relating to procedure, evidence and the competency of witnesses is picked up by s 79 as modified by local statutory laws relating to those subjects. Section 80, on the other hand, picks up the general common law in the circumstances which it states. It would attribute a supererogatory operation to s 80 if it picked up the common law relating to procedure, evidence and the competency of witnesses that is picked up by s 79. The common law is uniform throughout the States and Territories of Australia as the language of s 80 recognises. It speaks not of the common law of the Commonwealth, nor even of the common law of Australia, but of the common law in Australia. The common law in Australia includes the rules to be found in McKain v R W Miller & Co (SA) Pty Ltd[3]. Those rules are postulated on the footing that, by reason of the legislative competence of each State or Territory, Australia consists of different law areas. For that reason, when s 79 picks up State laws relating to procedure, it treats a court exercising federal jurisdiction as though it were a court of the State in which the court is sitting. It is in that sense that the section speaks of the exercise of "federal jurisdiction in that State or Territory". So treated, the court will apply the law of the relevant State or Territory including, subject to local statute, the common law.

I would therefore dismiss the appeals.

DAWSON J.

On 20 June 1994, three former members of the Royal Australian Navy commenced separate proceedings against the Commonwealth in the Sydney office of the registry of this Court. In the first proceeding, Robert John Mewett alleges that he suffered acute psychological injury resulting in post traumatic stress disorder in August 1979 when the ship on which he was serving, HMAS "Kembla", was swamped by waves as it proceeded out of Port Phillip Bay in Victorian waters. In the second and third proceedings, Michael John Rock and Mark John Brandon each alleges that on or about 22 October 1985 he was exposed to gases and vapours whilst serving on HMAS "Stalwart", which at the time was proceeding on the high seas between Sydney and Surabaya. Each of them (who are respondents to these appeals) alleges that, as a result of these events, he has sustained injuries and disabilities and suffered loss and damage, and each seeks damages from the Commonwealth in tort for breach of duty and in contract for breach of an implied term of his contract of employment.

Each proceeding was remitted by consent to the Federal Court pursuant to s 44(2A) of the Judiciary Act 1903 (Cth) ("the Judiciary Act"). The Commonwealth filed defences which contended that each proceeding was barred by relevant statutes of limitation and also by s 44 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) ("the Comcare Act")[4]. The substantive provisions of the Comcare Act (including s 44) commenced on 1 December 1988 and introduced a new workers' compensation scheme for persons employed by the Commonwealth or one of its agencies. Section 44(1) relevantly provides that:

"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) the loss of, or damage to, property used by an employee resulting from such an injury;

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

Each respondent filed a notice of motion seeking to extend time under the relevant limitation statute in which to bring his proceedings. However, the Commonwealth filed notices of motion seeking to have each proceeding struck out. The Commonwealth contended that s 44 of the Comcare Act extinguished any causes of action that any of the respondents may have had and that their claims were, as a result, clearly untenable. The Commonwealth also contended that the Federal Court had no jurisdiction to entertain any of the applications for extensions of time by reason of the operation of s 44.

Foster J at first instance rejected the Commonwealth's claims and dismissed each of its notices of motion[5]. The Commonwealth was granted leave to appeal to the Full Federal Court and, having regard to the fact that the Commonwealth desired to obtain a final, as opposed to a preliminary, determination of the validity of s 44 of the Comcare Act in the present context, Foster J set aside that question, pursuant to s 25(6) of the Federal Court of Australia Act 1976 (Cth), as one requiring determination. The Full Court dismissed the appeals and answered the question reserved by saying that s 44 was invalid in its application to each proceeding[6]. It is from that decision, pursuant to a grant of special leave, that the Commonwealth appeals to this Court in each proceeding. Although in disposing of the appeals it will be necessary to consider the effect of the relevant limitation statutes, the respondents' applications for extensions of time are not as yet in issue. If the appeals to this Court are dismissed, those applications will then proceed to be heard in the Federal Court.

The respondents have at all stages disputed the suggestion that s 44 is fatal to their proceedings by relying on the decision of this Court in Georgiadis v Australian and Overseas Telecommunications Corporation[7]. In that case it was held that s 44 of the Comcare Act was invalid in its application to a claim which had arisen before the commencement of s 44 and which had been instituted before the expiry of the relevant limitation period, since it purported to effect an acquisition of property otherwise than on just terms in contravention of s 51(xxxi) of the Constitution.

The Commonwealth, however, challenges the correctness of Georgiadis and submits in this Court that it should be reopened and overruled. It contends that the rights which the respondents claim against the Commonwealth arise under a Commonwealth statute, namely, the Judiciary Act, and that those rights are inherently susceptible of modification or extinguishment without such modification or extinguishment amounting to an acquisition of property within the meaning of s 51(xxxi) of the Constitution.

The respondents, on the other hand, submit that the Commonwealth is rendered liable in tort and contract by s 75(iii) of the Constitution and not pursuant to the provisions of the Judiciary Act. If that contention is rejected, they say that, in any event, their rights against the Commonwealth have their origin in the common law. Thus the respondents contend that their rights are not inherently susceptible to modification by Commonwealth statute and that in purporting to extinguish them, s 44 of the Comcare Act constitutes an acquisition of property otherwise than upon just terms. Accordingly, they submit that Georgiadis was correctly decided but that even if it was not, it should not now be reopened.

If the authority of Georgiadis is affirmed in these proceedings, the Commonwealth submits that this case is distinguishable from Georgiadis in that each respondent's claim is statute-barred. That is said to be the result of the operation of certain limitation statutes picked up by s 79 of the Judiciary Act.

The respondents deny that s 79 of the Judiciary Act has that operation. In any event, and assuming that their submission that s 75(iii) of the Constitution is the source of the Commonwealth's liability is unsuccessful, the respondents submit that the expiration of the limitation period does not extinguish the underlying cause of action or change its legal character. The cause of action retains, upon that argument, its character as property and the reasoning in Georgiadis applies to prevent s 44 of the Comcare Act from extinguishing that property otherwise than upon just terms.

Those submissions give rise to three broad issues: the source of Commonwealth liability in contract and tort, the authority of Georgiadis, and the effect of the relevant limitation statutes. It is convenient to deal with them in order.

The source of Commonwealth liability in contract and tort

Section 75 of the Constitution confers original jurisdiction upon the High Court in a number of matters. Paragraph (iii) provides that the Court has original jurisdiction in all matters in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party. "Matters" is a word of wide connotation[8] and there can be no doubt that the respondents' claims constitute matters within the description contained in s 75(iii). They are matters in which the Commonwealth is a party and this Court therefore has original jurisdiction to hear the respondents' claims. But it is one thing to say there is jurisdiction; it is quite another thing to say that by conferring jurisdiction s 75(iii) removes the immunity of the Crown from suit in contract and tort. In The Commonwealth v New South Wales[9], Isaacs, Rich and Starke JJ, in a joint judgment, took the view that s 75(iii) did remove Crown immunity, but that view has been doubted or disregarded in subsequent cases[10]. The better view is that s 75(iii) confers jurisdiction on this Court to entertain claims against the Commonwealth in contract or in tort but does not itself remove the immunity of the Crown from such suits or confer upon a litigant the right to proceed against the Crown in contract or in tort. Any such right must be conferred by statute; if and when it is, the High Court may not only entertain proceedings under s 75(iii) but may enforce the right. It is to be noted that s 75(iii) speaks of parties, not remedies[11]. In that respect it may be contrasted with s 75(v) which confers original jurisdiction on the High Court in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. The contrast further suggests that s 75(iii) is confined in its operation to conferring jurisdiction to entertain proceedings.

Not only does that seem to be the correct construction of s 75(iii) but it is a construction which is suggested by the presence of s 78 in the Constitution. Section 78 empowers the Parliament of the Commonwealth to confer rights to proceed against the Commonwealth or a State in respect of matters within the limits of the judicial power. That section appears to assume Crown immunity from suit in contract and tort and to confer power on the Parliament to remove it should it wish to do so. That was certainly the view taken at the Convention debates[12]. A contrary view was taken in The Commonwealth v New South Wales, but as Dixon J pointed out in Werrin v The Commonwealth[13] the joint judgment in the former case "regards sec 78 as not being supplementary to sec 75 but as enabling the Parliament in other matters within judicial power, ie, in matters within sec 76, to do the same as sec 75 does by its own force and also to give rights of suit in Federal courts other than the High Court". Upon that view, s 78 would seem to be largely unnecessary. If by conferring jurisdiction s 75(iii) confers a right to proceed against the Crown, there is no reason why s 76, in providing for the matters in which original jurisdiction may be conferred upon the Court, does not confer power on the Parliament to do likewise in respect of matters in which such jurisdiction is conferred. That would confine the power of Parliament under s 78 to giving rights to proceed against the Commonwealth or a State in courts other than the High Court which exercise federal jurisdiction. Simply as a matter of construction I think it is difficult to accept that s 78 was intended to have such a limited effect.

The immunities which the Crown enjoys from suit in contract and tort rest, however imperfectly and in different ways, upon the propositions that the sovereign cannot be sued in its own courts and that the sovereign can do no wrong. But it is apparent that those propositions have no application to situations in which the observance of constitutional boundaries is ultimately to be maintained by this Court. As Dixon J said in Bank of NSW v The Commonwealth[14], the Constitution treats the Commonwealth and States as organisations or institutions of government which, though not formally juristic persons, are conceived as politically organised bodies having mutual legal relations and amenable to the jurisdiction of courts "upon which the responsibility of enforcing the Constitution rests". Thus, where the principle in Marbury v Madison[15] is invoked to ensure that the constitutional allocation of powers is observed by the legislature or the executive, or where proceedings are brought under s 75(v) of the Constitution to prevent officers of the Commonwealth exceeding federal powers, or where rights or obligations conferred or imposed by the Constitution itself[16] might be the subject of proceedings in federal jurisdiction, the Commonwealth, and where relevant the States, do not enjoy immunity from suit. As McHugh J said in Mutual Pools & Staff Pty Ltd v The Commonwealth[17], "it would not be open to the federal Parliament to bar the right to proceed against the Commonwealth in respect of the scope of its constitutional powers". But the immunity of the Crown from suit in contract and tort raises no question involving the principle in Marbury v Madison or any of the other situations in which suits may be brought against the Commonwealth or the States in federal jurisdiction for constitutional purposes.

The executive power of the Commonwealth is vested in the Crown under s 61 of the Constitution and the Crown in that capacity carries with it the privileges and immunities attaching to it at common law, subject to modification by valid legislation[18]. It is true that s 75 of the Constitution speaks not of the Crown but of the Commonwealth and of the States, but this was no doubt necessary in order to distinguish between them as separate polities under the Crown. The now familiar expressions "Crown in right of the Commonwealth" and "Crown in right of a State" seem to have their origin[19] later in the judgment of Griffith CJ in The Municipal Council of Sydney v The Commonwealth[20] where he said:

"It is manifest from the whole scope of the Constitution that, just as the Commonwealth and State are regarded as distinct and separate sovereign bodies, with sovereign powers limited only by the ambit of their authority under the Constitution, so the Crown, as representing those several bodies, is to be regarded not as one, but as several juristic persons, to use a phrase which well expresses the idea. No better illustration can be given than is afforded by the lands now sought to be rated, which, having originally been 'property of the State,' ie, lands of the Crown in New South Wales, have become 'vested in the Commonwealth,' ie, vested in the Crown in right of the Commonwealth."

The use of the term "the Commonwealth" in s 75 and elsewhere throughout the Constitution neither diminishes nor denies the centrality of the Crown in the Constitution. That centrality was recognised by Dixon J in Federal Commissioner of Taxation v Official Liquidator of E O Farley Ltd[21] where he said that the Crown "is as much the central element in the Constitution of the Commonwealth as in a unitary constitution". The term "the Commonwealth" is used loosely in the Constitution and it takes its meaning from its context[22]. To speak of the Commonwealth committing a tort or breaching a contract is to speak of a wrong committed by executive act. To sue the Commonwealth for such a wrong is to sue it in its executive capacity, that is to say, as the Crown in which the executive power of the Commonwealth is vested by s 61 of the Constitution. Statutory provision to sue the Commonwealth may be made under s 78, but in the absence of such provision, the Crown enjoys immunity from suit in contract and in tort.

A suit in contract or tort between the Crown in right of the Commonwealth and the Crown in right of a State, or between the Crown in right of one State and the Crown in right of another, may be thought to raise a peculiar problem of its own[23]. But the obvious answer to that problem is that Crown immunity simply has no application in such a situation, its basis being, at least in part, an attribution of a certain position to the Crown in relation to its subjects[24]. But however that question is approached, the joint judgment in The Commonwealth v New South Wales went much further. In Werrin v The Commonwealth[25], Dixon J pointed out that the view expressed in the joint judgment was not necessary for the actual decision in that case and that were it not for that view he would have[26]:

"felt little or no hesitation in saying that the Federal Parliament had complete authority over all ordinary causes of action against the Commonwealth and over the remedies for enforcing them. I should have thought that the right of the subject to recover from the Crown in right of the Commonwealth, whether in contract or in tort, is the creature of the law which the Federal Parliament controls."

Before the decision in The Commonwealth v New South Wales it does not seem to have been doubted that the source of the liability of the Commonwealth in contract and in tort was statutory rather than constitutional[27]. In Werrin v The Commonwealth[28] Rich J, who was a party to the joint judgment in The Commonwealth v New South Wales, denied that that case "was intended to mean that sec 75 of the Constitution produced the effect of establishing as constitutional rights incapable of legislative control causes of action to which subjects might become entitled under the general law against either Commonwealth or State". Yet as Dixon J pointed out[29], the joint judgment would appear to have just that effect (or at least the effect of placing Commonwealth liability in contract and tort beyond the reach of qualification, limitation or extinguishment by Commonwealth legislation) and, in fact, contemplates that result explicitly.

Upon the authorities up to and including Werrin v The Commonwealth, Jordan CJ in the Supreme Court of New South Wales was able to say in Washington v The Commonwealth of Australia[30] that s 75(iii) is concerned:

"with the jurisdiction of a Court and not with the rights or liabilities of persons who may be litigants in the Court. It says, in effect, that if any person desires to litigate a legal claim which he may conceive himself to have against the Commonwealth or the Commonwealth to litigate a legal claim which it may conceive itself to have against any person, he or it may do so by means of an original proceeding in the High Court; but it neither invests them with substantive rights nor subjects them to substantive liabilities".

Subsequent judgments in this Court have confirmed that view. In Asiatic Steam Navigation Co Ltd v The Commonwealth[31], Fullagar J expressed a preference for a statutory rather than a constitutional basis for the right to bring an action against the Commonwealth in contract or in tort, as did Windeyer J in Suehle v The Commonwealth[32]. Jacobs J took the same view in Maguire v Simpson[33], a view which is implicit in other judgments in that case. In The Commonwealth v Evans Deakin Industries Ltd[34] the majority said that "[t]here can be no doubt that the Commonwealth Parliament has full power to make laws governing the liability of the Commonwealth", whilst Brennan J expressly rejected the view that "s 75(iii) operates without the assistance of any law made pursuant to s 78 to impose substantive liability on and to authorise proceedings against the Commonwealth in this Court"[35]. Toohey J in Breavington v Godleman[36] spoke of "the Commonwealth's common law immunity", and in both Mutual Pools & Staff Pty Ltd v The Commonwealth[37] and Georgiadis[38], McHugh J was of the opinion that the immunity of the Crown in right of the Commonwealth in contract and tort was unaffected by s 75(iii) of the Constitution. His Honour was in dissent in Georgiadis, but the majority assumed[39], without deciding, the correctness of the view which he took and determined the case on that assumption.

The settled view, and in my view the correct one, is that s 75(iii) does no more than confer original jurisdiction on the High Court in matters in which the Commonwealth is a party. It does not operate to modify or remove Crown immunity from suit[40].

It is necessary then to turn to certain provisions of the Judiciary Act enacted pursuant to s 78 of the Constitution. Section 56(1) of the Judiciary Act provides:

"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."

Section 64 provides:

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

In Baume v The Commonwealth[41] this Court long ago held that by enacting s 56 (which was in different terms but not materially so) and s 64 of the Judiciary Act, Parliament had exercised its power under s 78 of the Constitution to abolish Crown immunity from suit in tort. In that case the Court did not distinguish between s 56 and s 64, but in Sargood Bros v The Commonwealth[42], Higgins J thought that ultimately it was the words of s 64 which had that effect and the same view has been taken in later judgments[43]. On the other hand, in James v The Commonwealth[44] Dixon J attributed primary significance to s 56 and subsequent judgments have adopted that approach[45]. However, in Pitcher v Federal Capital Commission[46] this Court treated Baume v The Commonwealth as authoritative and rested Commonwealth liability upon both s 56 and s 64. There is support for that approach in the cases[47]. More recently, the question was effectively reserved in Breavington v Godleman[48]and Georgiadis[49], except by Toohey J who expressed a preference in both cases for the view that s 56 is the operative section.
Whilst it does not matter in this case and probably does not matter at all[50], I think that the preferable view and the view that accords most with the trend of recent authority, particularly Maguire v Simpson[51] and The Commonwealth v Evans Deakin Industries Ltd[52], is that s 64 is the provision which removes Crown immunity from suit and allows a citizen to proceed against the Commonwealth (or a State, for that matter) within federal jurisdiction. It is now settled that s 64 extends beyond matters of mere procedure to matters of substance. As was said in The Commonwealth v Evans Deakin Industries Ltd[53] of the decision in Maguire v Simpson:

"That case establishes that in every suit to which the Commonwealth is a party s 64 requires the rights of the parties to be ascertained, as nearly as possible, by the same rules of law, substantive and procedural, statutory and otherwise, as would apply if the Commonwealth were a subject instead of being the Crown. That result seems entirely just; the Commonwealth acquires no special privilege except where it is not possible to give it the same rights and subject it to the same liabilities as an ordinary subject."

If the same rules of law, substantive and procedural, statutory and otherwise, are to apply as they would if the Commonwealth were a subject instead of being the Crown, that must mean that, by power of s 64, the Commonwealth no longer has any immunity from suit in contract or tort in any suit to which it is a party in federal jurisdiction.

It follows that each respondent's right to proceed against the Commonwealth arises from s 64, a provision contained in a Commonwealth statute which is inherently susceptible to alteration even to the extent of removing that right. The question which arises is whether s 44 of the Comcare Act, which provides that an action for damages for injury sustained by an employee does not lie in the circumstances specified, amounts to no more than an alteration of the right conferred by s 64 with the consequence that it does not constitute an acquisition of property within the meaning of s 51(xxxi) of the Constitution.

Georgiadis

In Georgiadis[54] it was held by a majority[55] that in its application to an employee's cause of action which was not statute-barred before the action was commenced, s 44 was invalid because it effected an acquisition of property, namely, the employee's right to bring an action for damages, otherwise than on just terms as required by s 51(xxxi) of the Constitution.

Notwithstanding that I was in dissent in Georgiadis, I can discern no sufficient reason for leave to be given to reopen that decision. Georgiadis is one of four decisions handed down on the same day which together represent a principled statement of the effect of s 51(xxxi) of the Constitution[56]. The majority in Georgiadis reached a clear conclusion upon a confined issue by the application of accepted principle. The difference between the majority and the minority went not so much to principle as to its application in the particular circumstances, the majority preferring a broader approach than the minority in determining what amounts to an acquisition of property within the meaning of s 51(xxxi). Although I reserved my position on s 51(xxxi) in Victoria v The Commonwealth[57], I would now accept the decision in Georgiadis and proceed on the footing that it is authority for what it decided.

The view taken by the majority in Georgiadis was that the extinguishing of the cause of action in question was at least the equivalent of an acquisition of it by the Commonwealth. Mason CJ, Deane and Gaudron JJ held that this was so because it conferred a distinct financial benefit on the Commonwealth and that, in their view, amounted to an acquisition of property within the meaning of s 51(xxxi)[58]. Brennan J held that there was an acquisition of property since, by extinguishing the cause of action, the Commonwealth acquired a release from liability in damages to the employee. That release was in his view the correlative of the employee's claim[59].

All judgments in Georgiadis proceeded on the footing that the liability of the Commonwealth in tort arose, not from the Constitution, but by force of the provisions of the Judiciary Act. McHugh J, however, took that reasoning one step further. He held that the employee's right to bring his action was wholly dependent upon the provisions of the Judiciary Act and therefore was inherently liable to be revoked by legislation enacted under a power other than s 51(xxxi)[60]. For that reason, in his view, there was no acquisition of property in the extinguishment of the employee's cause of action.

In the event of Georgiadis being reopened, the Commonwealth invited the Court in this case to adopt the approach of McHugh J in Georgiadis. I have already indicated that I do not think that Georgiadis should be reopened but, in any event, the reasoning of the majority in that case in answer to McHugh J's approach is, I think, convincing. Mason CJ, Deane and Gaudron JJ did not deny that a right which was merely statutory might be inherently susceptible of modification or extinguishment so that, to use the words of Dixon CJ in Burton v Honan[61], "the whole matter lies outside the power given by s 51(xxxi)". They said[62]:

"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".

But Mason CJ, Deane and Gaudron JJ drew a distinction between a right to proceed and the underlying cause of action. They took the view[63] that in the case before them the effect of s 44, if valid, was to extinguish a vested cause of action that arose under the general law. That was so, in their view, even if the right to proceed against the Commonwealth which the employee enjoyed was properly identified as a statutory right. Likewise, Brennan J said[64]:

"Assuming, without deciding, that the Commonwealth's liability in tort is dependent on laws of the Commonwealth, that liability is not the creature of statute. The liability is created by the common law and, provided the corresponding common law cause of action is vested, the person in whom it is vested is entitled to the protection of s 51(xxxi)."

The majority, when they spoke of the Judiciary Act conferring a right to proceed against the Commonwealth, were making the point that the Judiciary Act waives the immunity of the Crown in contract and tort, that immunity being the only thing preventing such proceedings being pursued. But that is not to say that the cause of action that is then pursued is a statutory one. Unlike some statutory regimes, the Judiciary Act does not create any causes of action. The underlying causes of action which may be pursued because of the provisions of the Judiciary Act are the creatures of the general law of contract and tort and cannot be equated with causes of action that are created and conditioned by statute.

It follows, in my view, that, unless the Commonwealth makes good its contention that each respondent's cause of action does not constitute property within the meaning of s 51(xxxi) because it is statute-barred, s 44 is invalid in its purported extinguishment of those causes of action by reason of the failure to provide just terms.

The statutes of limitation

Maguire v Simpson[65] establishes that s 64 of the Judiciary Act makes applicable a relevant statute of limitations in proceedings to which the Commonwealth is a party. As Gibbs J put it[66], the words of s 64:

"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."

Whilst s 64 requires the rights of the parties in proceedings to which that section applies to be determined by treating them as nearly as possible on the same footing, the body of law by which those rights fall to be ascertained is unspecified. Sections 79 and 80 of the Judiciary Act are intended to remedy that deficiency. Section 79 provides:

"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."

Section 80 provides:

"So far as the laws of the Commonwealth are not applicable or so far as their provisions are insufficient to carry them into effect, or to provide adequate remedies or punishment, the common law in Australia as modified by the Constitution and by the statute law in force in the State or Territory in which the Court in which the jurisdiction is exercised is held shall, so far as it is applicable and not inconsistent with the Constitution and the laws of the Commonwealth, govern all Courts exercising federal jurisdiction in the exercise of their jurisdiction in civil and criminal matters."

Each of the proceedings before the Court was commenced in its original jurisdiction under s 75(iii) of the Constitution and involves the exercise of federal jurisdiction[67]. Sections 79 and 80 of the Judiciary Act apply in proceedings in this Court[68]. The effect of those two sections is to apply to each proceeding the whole body of law in the relevant State, except to the extent to which it is inconsistent with Commonwealth laws. There is no inconsistency in these cases, there being no Commonwealth statute of limitations. It was held in Georgiadis that s 44 is not such a law.

Whilst it can sometimes be a difficult question to determine in which State or Territory federal jurisdiction is being exercised[69], the answer in these cases is clear. It is common ground that the proceedings commenced by Rock and Brandon are to be determined as though the events of which they complain occurred in New South Wales. The proceeding commenced by Mewett is to be dealt with on the footing that the events occurred in Victoria. But what is important for present purposes is that each proceeding was commenced by a writ accompanied by a statement of claim filed in the Sydney office of the High Court registry and upon remitter to the Federal Court was heard and determined in Sydney. Thus the law to be applied in the Federal Court was the law of New South Wales.

In the proceedings commenced by Rock and Brandon the statute of limitations which is picked up by s 79 of the Judiciary Act is the Limitation Act 1969 (NSW) ("the New South Wales Act"). Section 14(1) of the New South Wales Act fixes a limitation period of six years for causes of action in contract and tort. The period runs from the date of accrual of the cause of action. Section 44 of the Comcare Act came into force on 1 December 1988. Since Rock and Brandon's injuries were allegedly sustained on 22 October 1985, at the time s 44 came into force the six year limitation period applying to them was still running and would run until 22 October 1991. Applying Georgiadis, s 44 did not when it first came into force validly extinguish their causes of action. But upon the assumption that s 44 might have a subsequent valid operation, it is necessary to consider whether it validly applied when the relevant period of limitation expired, neither Rock nor Brandon having commenced an action by that time.

Section 14(1) of the New South Wales Act is couched in terms which, read alone, would result in its being regarded as procedural only and as not extinguishing the cause of action to which it applies, that is to say, as going to the remedy and not the right. However, s 63(1) provides:

"Subject to subsection (2), 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 63(2) provides that there shall be no extinguishment where an action is commenced before the expiration of a limitation period fixed by or under the New South Wales Act.

It is also necessary to refer to s 78 of the New South Wales Act which was inserted by s 3 of the Limitation (Amendment) Act 1993 (NSW). Section 78 provides that a limitation law, which is defined to include a law barring a right of action as well as a law excluding liability, is to be regarded as part of the substantive law of the State. That section cannot, however, change the effect of a limitation law. That is to say, if the law merely bars the remedy and does not extinguish the right, a statute-barred cause of action continues to exist even though the law is regarded as part of the substantive law. The intention behind s 78 appears to be that a limitation law of New South Wales which under the rules of private international law might otherwise not be applied in another place because it is procedural, should now be regarded as part of the substantive law and be applied in that other place.

In McKain v R W Miller & Co (SA) Pty Ltd[70] s 63 of the New South Wales Act was given as an example of a provision which was substantive rather than procedural in its operation because it extinguished liability. However, the observation in McKain did not extend to a consideration of the circumstances in which s 63 has that effect. In that regard, other provisions of the New South Wales Act are relevant.

Section 58(2) (which applies only to causes of action that accrued before 1 September 1990) enables a court to extend the limitation period in circumstances where "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". In addition, subdiv 3 of div 3 of Pt 3 ("subdiv 3") of the New South Wales Act, which commences with s 60F, provides a procedure for a further discretionary extension of limitation periods where the plaintiff was unaware of the fact, nature, extent or cause of injury, disease or impairment at the relevant time. Section 60G confers a power, to be exercised on conditions laid down by s 60I, to extend time, but s 60G is expressed to apply only to a cause of action that accrues on or after 1 September 1990. However, under the provisions of Sched 5 to the New South Wales Act, the benefit of s 60G is extended in certain specified circumstances to a cause of action that accrued before 1 September 1990[71].

It is unnecessary to trace the requirements of Sched 5 in detail. It is sufficient to say that Rock and Brandon seek an extension of time under subdiv 3 and Sched 5 and accept that, in order to be successful in those applications, each must satisfy the court that, at the expiration of the relevant limitation period, he did not know that he had suffered personal injury or was unaware of the nature or extent of the personal injury suffered or was unaware of the connection between the personal injury and the Commonwealth's act or omission[72]. Each of them must also establish that his application for extension was made within three years of the time when he first became aware of all three of these matters[73] and the court must be satisfied that it is just and reasonable that the limitation period be extended[74].

Section 60M(1) provides that applications and orders may be made pursuant to subdiv 3 as if s 63 had never been in force and s 61 provides that where, after the expiration of a limitation period, the limitation period is extended, the prior expiration of the limitation period has no effect for the purposes of the New South Wales Act. Finally, s 68A provides that where a party to proceedings fails to plead that a right or title has been extinguished by the expiry of a limitation period, that party "shall not have the benefit in those proceedings of any such extinction of that right or title".

As I have said, I think it is clear that s 14(1) of the New South Wales Act standing alone merely bars the remedy; it does not extinguish the underlying cause of action[75]. Thus s 14(1) does not of itself prevent a statute-barred cause of action from continuing in existence. Of course, the value of the property comprising the cause of action would be affected by the fact that the action was statute-barred and would further be affected by such factors as the likelihood of the limitation defence being pleaded or the likelihood of the limitation period being extended. But in the context of a law such as s 44, those matters would go only to the question of what would constitute just terms. The cause of action remains of a proprietary character and has sufficient substance to answer the description of property in s 51(xxxi) of the Constitution.

But as we have seen, s 14(1) does not stand alone. Section 63(1) provides that "on the expiration of a limitation period fixed by or under this Act" (my emphasis) the cause of action is extinguished. It is clear that when s 63(1) takes effect it has a substantive rather than a procedural operation; it extinguishes the right rather than bars the remedy. But the question which arises is when s 63(1) takes effect. The limitation period fixed by s 14(1) is fixed by the New South Wales Act. But under the New South Wales Act that period may be extended. And where it is extended after the expiration of the limitation period, the prior expiration of the limitation period has no effect, under s 61, for the purposes of the New South Wales Act. When the statutory scheme is examined as a whole, it is apparent that, whilst a period of limitation for a cause of action may be extended under the New South Wales Act, the cause of action is not extinguished by s 63(1) because there is no expiration of a limitation period fixed under the New South Wales Act. Such a limitation period remains to be determined by way of an application for extension of time. The cause of action continues in the meantime, statute-barred under s 14(1) but not extinguished under s 63(1). The cause of action remains, therefore, sufficiently proprietary in character to be counted among the "innominate and anomalous interests"[76] to which s 51(xxxi) has been held to extend its protection.
This is to express a view contrary to that expressed by Hope JA in Commonwealth of Australia v Dixon[77]:

"Anomalous though it may be, it is apparent that where the limitation period is extended by order made after the expiration of the limitation period the earlier extinguishment of the right is annulled, and the right is to be treated as though it had never been extinguished at some earlier point of time."

But any anomaly disappears once it is appreciated that s 63(1) itself conditions its operation upon the expiration, not only of a limitation period fixed by, but also of a limitation period fixed under, the New South Wales Act. Where an extension of time is refused, the expiration of a limitation period fixed by the New South Wales Act will engage s 63(1). But until that time or until circumstances otherwise preclude an application for extension of time being made, s 63(1) does not take effect.

Thus, s 63(1) does not extinguish the causes of action which Rock and Brandon seek to pursue. Their applications for extensions of time under subdiv 3 have yet to be determined. Their causes of action, albeit statute-barred, continue in existence and are vested in them. Section 44 of the Comcare Act, in seeking to extinguish them, fails to provide just terms and is invalid.

As in the case of Rock and Brandon, Mewett's claims fall to be determined in the exercise of federal jurisdiction in New South Wales. Thus ss 79 and 80 of the Judiciary Act pick up the law in force in New South Wales and apply it to those claims. Clearly, s 14(1) of the New South Wales Act applies. The causes of action claimed by Mewett arose out of events which occurred in August 1979 so that at the time s 44 of the Comcare Act came into force on 1 December 1988 those causes of action were statute-barred under s 14(1). But Mewett also claims to be entitled to an extension of time under subdiv 3 and it must follow, as it did in the cases of Rock and Brandon, that his causes of action are not extinguished and remain property for the purposes of s 51(xxxi) of the Constitution.

It is necessary, however, to deal separately with Mewett's claim in tort. The law of New South Wales to be applied in Mewett's case includes the rules of private international law. McKain[78] confirms that under those rules the claim is maintainable according to the law of New South Wales as the lex causae, provided that the two conditions laid down in that case are met. The second of those conditions is that the events in question, which it is agreed are to be regarded as having occurred in Victoria, must give rise in Victoria to a civil liability of the kind which Mewett seeks to enforce in New South Wales.

In considering the question whether the second condition is met, a court in New South Wales would not take into account a Victorian statute of limitation which was merely procedural. However, s 5 of the Choice of Law (Limitation Periods) Act 1993 (NSW) relevantly provides that if the substantive law of another State is to govern a claim before a court of New South Wales, a limitation law of that other State is to be regarded as part of that substantive law and applied accordingly by the Court. In Gardner v Wallace[79], I observed of the Victorian equivalent of s 5[80] that it may be based upon a misconception of the decision in McKain. The only way in which that section may be given force is to regard it as having application in considering whether the second condition laid down by McKain is met. That is how I construed the Victorian equivalent of s 5 in Gardner v Wallace and I adopt the same construction of s 5 here. That is to regard the substantive law of Victoria as governing the question whether the relevant events gave rise to civil liability in Victoria and to regard any Victorian statute of limitation as part of that substantive law. As with s 78 of the New South Wales Act, to regard a statute of limitation as part of the substantive law is not to change its effect in accordance with its terms.

In Victoria, s 5(1A) of the Limitation of Actions Act 1958 (Vic) ("the Victorian Act") deals specifically with claims in tort which include a claim for damages in respect of personal injuries consisting of disease or disorder and provides that a limitation period of six years applies and begins to run from the date upon which the plaintiff 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 other person. As a result of transitional provisions of the legislation which introduced s 5(1A) in 1983 and amended it in 1989, that provision applies to causes of action arising after 11 May 1977[81]. It is necessary in Victoria to plead the Victorian Act in order to rely on it, but the Commonwealth, apparently under the misunderstanding that only the New South Wales Act was relevant, has not pleaded the Victorian Act. No doubt it may apply to amend the pleadings, but in their present state it is clear that the Commonwealth is precluded from alleging that Mewett's claim is statute-barred in Victoria.

In any event, Mewett's case is that he first became aware of his deterioration in health, and of the fact that it was caused by the events of 1979, in or about August 1990. Thus it may well be that the limitation period prescribed by s 5(1A) of the Victorian Act had not expired at the commencement of his action on 20 June 1994.

But even assuming the application of the Victorian Act, that Act would not destroy the character of Mewett's cause of action as property for the purposes of s 51(xxxi). Section 5(1A), like s 14(1) of the New South Wales Act, does not extinguish the cause of action; it merely bars the remedy (and there is no section which is the equivalent of s 63(1) of the New South Wales Act in the Victorian Act). Thus Mewett's cause of action continues to exist as property vested in him even though it is statute-barred.

The possibility of limitation periods being pleaded and not being extended by the Court, which is the most that the Commonwealth can ultimately point to, goes only to the value of the respondents' causes of action. Accordingly, s 51(xxxi), as construed and applied in Georgiadis, invalidates s 44 of the Comcare Act in its application to those causes of action. It follows that the Full Court was right to dismiss the appeal from Foster J and correctly answered the question which his Honour set aside for that Court's consideration. I would therefore dismiss the appeals to this Court.

TOOHEY J.

The circumstances giving rise to these appeals appear in other judgments. There is no need to repeat them in any detail.

In my view each of these appeals should be dismissed. I reach this conclusion largely for the reasons which Dawson J has expressed in his judgment. However in one aspect of the first appeal I approach the matter somewhat differently, while reaching the same conclusion as to the disposition of the appeal. I shall try to make my position clear without referring in detail to his Honour's reasons.

Like Dawson J, I was in dissent in Georgiadis v Australian and Overseas Telecommunications Corporation[82]. Like his Honour, and for the same reasons, I see no sufficient justification to reopen that decision. Georgiadis therefore should stand for what it decided, namely, that in its application to an employee whose cause of action against the Commonwealth was not statute-barred before the action was commenced, s 44 of the Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth)[83] was invalid on the ground that it effected an acquisition of property other than on just terms. The effect of s 44, it was said in Georgiadis, was that it "operated once and for all as a final measure terminating those causes of action"[84]. In the three appeals presently before the Court, the Full Court of the Federal Court held that s 44 was invalid in its application to the actions brought by the respondents against the Commonwealth[85].

In challenging Georgiadis, the Commonwealth submitted that the rights claimed by each of the respondents arose by virtue of the Judiciary Act 1903 (Cth). It followed, according to the submission, that those rights could be modified or extinguished without any acquisition of property in the terms of s 51(xxxi) of the Constitution. The argument of the respondents was that the liability of the Commonwealth to be sued in tort has its source in the Constitution rather than in the Judiciary Act. On that approach, the right of action against the Commonwealth which each of the respondents has or had arose because the Constitution removed such immunity from suit as the Crown previously possessed. Arguments can be mounted in support of either of these views, but I agree with the conclusion of Dawson J that s 75(iii) of the Constitution confers original jurisdiction on the High Court in claims against the Commonwealth in contract or tort but does not itself remove the immunity of the Crown from such claims. Although it has been suggested that the majority judgments in Georgiadis are consistent with the proposition that the cause of action in tort was actionable by virtue of the combined operation of the common law and the Constitution, those judgments do not assert such a combined operation. Rather, they tend to assume that the liability of the Commonwealth arose by force of the Judiciary Act[86].

Although the Judiciary Act removed the immunity from suit hitherto enjoyed by the Crown, it did not create causes of action. They must be found in the general law of contract and tort. In Georgiadis Mason CJ, Deane and Gaudron JJ said[87]:

"the effect of s 44, if valid, is to extinguish a vested cause of action that arose under the general law".

There is debate as to whether the removal of Crown immunity is the product of s 56 or s 64 of the Judiciary Act. In Breavington v Godleman[88], for the reasons there expressed, I posited the source in s 56. Dawson J prefers s 64 as the section which removes immunity. As no resolution of these views is required to dispose of these appeals, it is unnecessary to pursue this matter.

Against this background, in particular the authority of Georgiadis, I turn to the claims of the respondents. Mr Mewett suffered personal injury on 31 August 1979 while serving on HMAS Kembla, at a time when the vessel was proceeding out of Port Phillip Bay in Victoria. The other respondents, Messrs Rock and Brandon, suffered personal injury on 22 October 1985 while serving on HMAS Stalwart, at a time when the vessel was on the high seas off the coast of Queensland.

Each respondent commenced action against the Commonwealth on 20 June 1994; each action was commenced in the Sydney Registry of the High Court. Whether it is s 56 or s 64 of the Judiciary Act which removes Crown immunity, it is the latter section which renders applicable a relevant statute of limitations where the Commonwealth is a defendant in proceedings[89]. The Commonwealth argued that each claim is barred by s 44 of the Comcare Act which commenced on 1 December 1988, that is, before the proceedings were commenced in each case. On the authority of Georgiadis, s 44 could not have that effect if the cause of action was not otherwise statute-barred at the time proceedings were commenced.

At the hearing of the appeals it was said to be common ground that, in the case of Messrs Rock and Brandon, s 79 of the Judiciary Act applied the relevant law of New South Wales[90]. This was because the action, having been commenced in the Sydney Registry, was remitted to the Federal Court for determination pursuant to s 44(2A) of the Judiciary Act and upon remitter was heard and determined in Sydney. While a State limitation law does not of its own force operate on an action against the Commonwealth, "s 64 of the Judiciary Act incorporates by reference the provisions of the Limitation Act"[91]. Sections 64 and 79 of the Judiciary Act in combination "pick up" a State limitation statute which "becomes, for this purpose, surrogate Commonwealth law"[92].

Section 14(1) of the Limitation Act 1969 (NSW) ("the New South Wales Act") specifies a relevant limitation period of six years, after which the cause of action "is not maintainable". By s 63(1), "on the expiration of a limitation period fixed by or under this Act ... the right and title of the person formerly having the cause of action ... is ... extinguished". In consequence each cause of action ceased to be maintainable six years after the cause of action accrued.

In the case of Messrs Rock and Brandon, the limitation period had not expired at the time s 44 came into force. On the authority of Georgiadis, s 44 could not at that point in time affect their causes of action. To do so would effect an acquisition of property on other than just terms. Does this exhaust the operation of s 44? The Commonwealth says "no"; its submission is that s 44 "speaks continuously in the present and has an ambulatory operation". Accordingly, on the expiration of the limitation period on 22 October 1991 the section applied but there was no longer property on which it could operate and there was therefore no requirement of just terms. But this cannot be so. From the language of s 44, it is apparent that it purports to extinguish those causes of action which existed on 1 December 1988 and in respect of which proceedings had not been commenced. That is not the full extent of its operation because it applies whether the injury said to give rise to the liability of the Commonwealth occurred before or after the commencement of the section. But in respect of a cause of action existing on 1 December 1988, the section purports to extinguish that cause of action once and for all. In the case of Messrs Rock and Brandon, that effected an acquisition of property on other than just terms. Hence the section is invalid in its application to those causes of action. The fact that the limitation period later operated on the causes of action and that Messrs Rock and Brandon each seeks an extension of time does not alter the position.

As to Mr Mewett, the parties have proceeded on the footing that the New South Wales Act applies, even though the events constituting the tort and breach of contract on which the plaintiff relies occurred in Victoria.

Mr Mewett's situation gives rise to different considerations. The limitation period prescribed by s 14(1) of the New South Wales Act had expired before s 44 of the Comcare Act came into operation. In terms of that provision, therefore, his cause of action was "not maintainable". More than that however, by force of s 63(1) his right and title to damages was "extinguished". The argument of the Commonwealth was that, any cause of action having been extinguished, there was no property that could be acquired when s 44 came into operation and hence no question could arise as to just terms. The position is complicated however by the existence of provisions for the extension of limitation periods.

By way of introduction to those provisions, s 63(2) provides that there is no extinguishment where an action is commenced before the expiration of a limitation period "fixed by or under" the New South Wales Act. One provision for a limitation period is to be found in s 18A of the New South Wales Act. But that section does not apply to a cause of action accruing before 1 September 1990. Mr Mewett's cause of action accrued in 1979; the section therefore has no application. Section 58(2), which applies to causes of action that accrued before 1 September 1990 and therefore applies in Mr Mewett's case, relevantly reads:

" 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."

By a combination of provisions an extension of time may be granted even where the cause of action accrued after 1 September 1990. It is unnecessary to detail the scheme of the Act; it was considered by this Court, though in a different context, in Dedousis v Water Board[93]. The provision for extension in s 58(2) is relevant in considering whether, at the time s 44 of the Comcare Act came into operation, Mr Mewett's cause of action had in truth been extinguished.

Section 14(1) of the New South Wales Act, in providing that after the expiration of the limitation period an action is not maintainable, is a bar to proceedings but it does not extinguish the cause of action[94]. But what of s 63 and its declaration that the right and title of the person having the cause of action is "extinguished"? That occurs "on the expiration of a limitation period fixed by or under this Act". The limitation period in s 14(1) is fixed by the New South Wales Act. While it may be true to say that the limitation period may be extended under the Act, that does not seem to me to carry the matter any further. The operation of s 63(1) is such that a cause of action fixed by the Act has expired. What may be said to have been done under the Act is, in that regard, irrelevant. Section 63(1) looks to two situations and if one of those situations exists, as it does here (fixed by the Act), the sub-section operates. If s 63(1) is to have no operation in the case of Mr Mewett, it must be because on the granting of an extension of time, the limitation period can no longer be said to have expired.

Section 58(2) speaks of the limitation period being "extended so that it expires at the end of one year after" the date mentioned in par (a). But the right and title of the person having the cause of action has been extinguished. In Commonwealth of Australia v Dixon[95] Hope JA, speaking of the New South Wales Act as it then stood, said:

"Anomalous though it may be, it is apparent that where the limitation period is extended by order made after the expiration of the limitation period the earlier extinguishment of the right is annulled, and the right is to be treated as though it had never been extinguished at some earlier point of time."

It is at this point that I take a different approach to Dawson J. In my view, at least as a matter of language, one cannot escape the conclusion that there is an anomaly in s 58(2). The ordinary meaning of extinguish is to "put out, quench ... put a total end to, blot out of existence"[96]. It does not resolve the anomaly to point to the words "under this Act" in s 63(1). In my view it is better to recognise the anomaly in the language employed and to conclude, as did Hope JA, that "the earlier extinguishment of the right is annulled, and the right is to be treated as though it had never been extinguished at some earlier point of time".

The consequence is that until the extension of time contemplated by the New South Wales Act has been refused, it is not possible to say with any certainty that the cause of action has been extinguished. In the language of Hope JA, the earlier "extinguishment" may be annulled. Mr Mewett is seeking an extension of time for the bringing of an action against the Commonwealth. Until that application has been dealt with one cannot say, in relation to s 44 of the Comcare Act, that he had no cause of action immediately prior to that section coming into existence.
In relation to Mr Mewett's claim in tort, questions arise as to the Choice of Law (Limitation Periods) Act 1993 (NSW) and the Limitation of Actions Act 1958 (Vic). I have read what Dawson J has said about those statutes but, as the Commonwealth has not pleaded the Victorian legislation, it is unnecessary for me to say anything on that question.

I would dismiss each appeal.

GAUDRON J.

These appeals were heard together. They raise the question whether s 44(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) ("the Comcare Act") is applicable to actions commenced by the respondents seeking damages in consequence of injuries sustained by them while employed by the Commonwealth as seamen.

The respondent to the first appeal, Mr Mewett, claims to have suffered injury in August 1979 on board HMAS "Kembla". At the time, the ship was proceeding out of Port Phillip Bay, Victoria. He claims that his injury was the result of the Commonwealth's failure to discharge a contractual duty of care, or, in the alternative, a duty of care arising under the general law. The respondents to the second and third appeals, respectively, Messrs Rock and Brandon, claim to have been injured on or about 22 October 1985 on board HMAS "Stalwart". That ship was then some hundreds of kilometres off the Queensland coast and proceeding from Sydney to Surabaya, Indonesia. They also claim that their injuries were the result of the Commonwealth's breach of a contractual duty of care, or, in the alternative, a duty of care arising under the general law.

The respondents each commenced proceedings against the Commonwealth in the Sydney office of the Registry of this Court on 20 June 1994. On the same day, an order was made by consent in each matter, remitting it to the Federal Court of Australia pursuant to s 44(2A) of the Judiciary Act 1903 (Cth) ("the Judiciary Act"). Each respondent applied to the Federal Court under ss 60F and 60G and Sched 5 of the Limitation Act 1969 (NSW) ("the NSW Limitation Act") for an extension of the limitation period applicable to his action[97]. The Commonwealth filed defences pleading that the actions were barred and extinguished by the NSW Limitation Actand, in the alternative, that they were barred by s 44 of the Comcare Act[98]. In their replies, the respondents denied that their actions were either barred or extinguished by the NSW Limitation Act and also denied that s 44 of the Comcare Act had any application.

In each case, the application for extension of time under the NSW Limitation Act was made on the basis of the late discovery of the nature of the medical condition suffered and its causal connection with the events in respect of which the action was brought. In Mr Mewett's case, it was claimed that he first became aware of these matters in or about August 1990; in Mr Rock's case, in July 1992. Mr Brandon claims to have become aware of different matters in October 1989 and in May 1994[99]. The applications for extension of time were met by applications from the Commonwealth to have the actions struck out as a result of s 44(1) of the Comcare Act[100].
Section 44 of the Comcare Act, which commenced on 1 December 1988, provides:

" (1) Subject to section 45, 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) the loss of, or damage to, property used by an employee resulting from such an injury;

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 45 is not relevant to these appeals.

The respondents' actions were not commenced before 1 December 1988, and fall squarely within the terms of s 44(1) of the Comcare Act. However, it was held by this Court in Georgiadis v Australian and Overseas Telecommunications Corporation that because, in respect of actions which are not statute-barred, that sub-section purports to effect an acquisition of property contrary to the Constitution's requirement of "just terms"[101], it is invalid in its application to those actions[102]. The question whether it validly applies to actions that are statute-barred was left open in that case. The Commonwealth's strike out applications were made on the basis that the respondents' actions were statute-barred when commenced in 1994, and, on the further basis that s 44(1) validly applies to actions which are statute-barred.

The strike out applications were determined against the Commonwealth by Foster J sitting in Sydney[103]. The Commonwealth then sought to have the question whether s 44(1) is invalid in its application to the respondents' actions determined conclusively by a Full Court, not merely the question raised by its strike out applications, namely, whether that was arguably so[104]. Accordingly, Foster J reserved the former question for determination by a Full Court of the Federal Court and, at the same time, granted leave to the Commonwealth to appeal from his decision dismissing its strike out applications. The matter then came before a Full Court sitting in Sydney (Spender, Cooper and Lindgren JJ). The question reserved by Foster J was answered "Yes" and the appeals brought by the Commonwealth dismissed[105]. The Commonwealth now appeals to this Court.

In addition to the argument advanced by it in the Federal Court, the Commonwealth now argues that Georgiadis was wrongly decided and should be reconsidered. It is, however, convenient to first consider the Commonwealth's contention that the respondents' actions were statute-barred when instituted and are barred by s 44(1) of the Comcare Act. Its argument to that effect has several steps, each of which must be considered in some detail.

The first step in the Commonwealth's contention is to argue that, there being no applicable Commonwealth statute, the Judiciary Act operates to "pick up" State limitation laws and apply them to the respondents' actions. It was common ground in the Federal Court that the NSW Limitation Act is applicable to the actions brought by Messrs Rock and Brandon. Notwithstanding his application for an extension of time under the NSW Limitation Act, Mr Mewett disputed that it applied to his action and it was held by the Full Court that, in his case, the Limitation of Actions Act 1958 (Vic) ("the Victorian Limitation Act") applies. That is the position for which the Commonwealth now contends. The respondents now argue that no limitation provision is "picked up" by the Judiciary Act and, thus, none is applicable.

There are several different approaches which may be said to lead to the conclusion that the Judiciary Act "picks up" State limitation laws and applies them to actions commenced in this Court, in the Federal Court and in State courts exercising federal jurisdiction. It will later be necessary to outline those different approaches. For the moment, it is sufficient to note that they each involve s 64 of the Judiciary Act which relevantly provides that, in a suit to which the Commonwealth is a party, "the rights of parties shall as nearly as possible be the same ... as in a suit between subject and subject." It is not in doubt that if some other provision of the Judiciary Act "picks up" a State limitation provision, s 64 requires that it be applied in proceedings to which the Commonwealth is a party[106].

One possible way in which a State limitation law is "picked up" in an action against the Commonwealth is by the combined operation of ss 56 and 64 of the Judiciary Act. Another is by the combined operation of ss 56, 64 and 79. In broad outline, the first approach treats s 56, which applies to claims against the Commonwealth in contract and tort, as requiring application of the substantive and limitation laws of the State or Territory in which the claim arose. That was the approach adopted by the Full Court in reaching its decision that the Victorian Limitation Act is "picked up" and made applicable to the action brought by Mr Mewett[107].

The second approach involving s 56 treats it as "picking up" the substantive law of the State or Territory in which the claim arose and treats s 79 as "picking up" the limitation law of the State or Territory in which jurisdiction is exercised. However, the States and Territories have each enacted uniform legislation ("choice of limitation law legislation") directing that, if the substantive law of another State or Territory or of New Zealand is to govern a claim, the limitation law of that State or Territory or of New Zealand, if that be the case, is to be regarded as part of that substantive law and so applied[108]. Thus, s 79 is treated as "picking up" the relevant choice of limitation law legislation and, through it, the limitation law of the State or Territory in which the claim arose.

The third and more usual route by which it is said that a State limitation provision is "picked up" by the Judiciary Act involves the combined operation of ss 64 and 79. The latter section provides:

" 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."

Again in broad outline, the approach based on ss 64 and 79 of the Judiciary Act treats s 79 as picking up all relevant laws of the State or Territory in which jurisdiction is exercised, including its limitation and choice of law rules. If there is no occasion to resort to its choice of law rules, so much of its law as is necessary to determine the matter in issue is applied, including its limitation law. Seemingly, it was on this basis, coupled with the view that jurisdiction was being exercised in New South Wales, that it was accepted that, if a limitation law applies in the cases of Messrs Rock and Brandon, it is the NSW Limitation Act.

If, on the approach based on ss 64 and 79 of the Judiciary Act, it is necessary to apply the choice of law rules of the State or Territory in which jurisdiction is exercised and they direct the application of the substantive law of another jurisdiction, the latter law is then applied. And if that is the law of another State or Territory or of New Zealand, its limitation law is applied by reason of the relevant choice of limitation law legislation. The Commonwealth argues that on that approach, too, the Victorian Limitation Act applies to Mr Mewett. However, it is difficult to see what part the substantive law of Victoria has to play in the determination of his claim. Rather, so far as his claim is based in tort it would seem that it should be determined by the common law of Australia, and not simply the common law of Victoria[109]. And so far as it is based on a contract with the Commonwealth, it would seem that, unless the contract expressly or impliedly provides otherwise, it should be resolved by the application of the Australian law of contract, rather than that of a particular State or Territory.

The fourth approach involves s 80 of the Judiciary Act. Since its amendment in 1988, s 80 provides:

" So far as the laws of the Commonwealth are not applicable or so far as their provisions are insufficient to carry them into effect, or to provide adequate remedies or punishment, the common law in Australia as modified by the Constitution and by the statute law in force in the State or Territory in which the Court in which the jurisdiction is exercised is held shall, so far as it is applicable and not inconsistent with the Constitution and the laws of the Commonwealth, govern all Courts exercising federal jurisdiction in the exercise of their jurisdiction in civil and criminal matters."

Prior to its amendment in 1988, s 80 referred not to "the common law in Australia" but to "the common law of England". For reasons which will be elaborated in due course, the choice of law rules developed by the common law of England to determine the legal consequences of events occurring in one independent nation state and litigated in another are, in my view, wholly inappropriate for the resolution of legal controversies with respect to events occurring in Australia and involving the exercise of federal jurisdiction. Rather, it is time, in my view, to recognise an Australian common law and to recognise that in some circumstances, including those involved in Mr Mewett's case, it directs the application of the body of law which operates in the State or Territory in which the events in question occurred, including the limitation laws of that State or Territory.

If choice of law rules for matters involving the exercise of federal jurisdiction are recognised as part of the common law in Australia, their application is directed by s 80. And as s 80 is one of "the laws of the Commonwealth" to which s 79 is expressly subjected, there is then no need to resort to s 79 to "pick up" State or Territory choice of law rules. Rather, s 79 will operate to "pick up" State or Territory laws only to the extent that the statute law of the Commonwealth and the common law in Australia need to be supplemented to enable the matter in issue to be determined. Before further elaborating the approach based on s 80, however, it is convenient to state my reasons for rejecting the approaches based on s 56.

As already indicated, s 56 of the Judiciary Act is concerned with claims against the Commonwealth in contract and tort. Section 56(1) provides that, in such cases, a suit may be brought in this Court, in a court of the State or Territory in which the claim arose, or, if it did not arise in a State or Territory, in any court of competent jurisdiction of any State or Territory. It does not, in terms, purport to do anything more than expose the Commonwealth to suit and dictate the court in which proceedings are to be instituted. However, in Suehle v The Commonwealth it was said by Windeyer J that s 56 impliedly directs that an action against the Commonwealth "is to be tried according to the lex loci delicti; and when the action is brought in this Court that becomes the lex fori."[110] In Mr Mewett's case, the Full Court treated his Honour's observation as relating both to the substantive law and the limitation law of the State or Territory in which the claim arose.

Were s 56 concerned solely with actions in tort, it might be possible to treat s 56 as having the effect ascribed to it by Windeyer J. However, it also applies to actions in contract which, by the general law, are governed by the proper law of the contract in question, not the law of the place of its breach. It is impossible to read s 56 as altering that situation. Moreover, s 56 leaves it to the common law or, perhaps, to s 79 of the Judiciary Act to determine the law to be applied in actions that do not arise in a State or Territory. These considerations present real obstacles in the path of an implication that s 56 directs the law to be applied in an action arising out of events in a State or Territory. And that is so even if the implication is confined to actions in tort.

No State law can now be identified as having barred Mr Mewett's cause of action in or before 1988. The application of any one of a number of State and Territory laws awaited the enlivening of the judicial power of the Commonwealth by the institution of an action in this Court or in another of the courts invested by the Parliament with the necessary federal jurisdiction. The differential operation of s 79 of the Judiciary Act, in combination with s 64, upon State law meant that it could not be known before commencement of an action what the rights of the parties would be after that commencement[235]. Indeed, on one view, this knowledge may have awaited not the commencement of the action in this Court on 20 June 1994 but the subsequent filing of the Defence in the Federal Court by which the Commonwealth set up the NSW Act in bar of the action against it. In the event, nothing turns for the outcome of the Mewett appeal in this Court upon the apparent picking up of the Victorian Act, consistently with Musgrave v The Commonwealth[236], as well as the NSW Act.

With respect to the actions by Messrs Rock and Brandon, the sequence of events is such that on no basis might it be held that before 1 December 1988 they had been barred or extinguished by statute. On the footing that they then had the presently subsisting causes of action against the Commonwealth in contract and tort, s 44 was ineffective to extinguish them. Does any different conclusion follow from the circumstance that, at some time thereafter, namely on 22 October 1991, their actions would have become barred or extinguished if the situation had been governed solely by a State limitation law? It does not.

Georgiadis is authority for the proposition that, in respect of then subsisting causes of action where a suit had not been instituted, and in its terms, s 44 "operated once and for all as a final measure terminating those causes of action"[237] and "extinguished" those causes of action[238]. The result was to attract the constitutional guarantee.

As we have indicated, the Commonwealth sought to avoid this conclusion. It did so by directing attention to the provisions in ss 60G, 60[Iota] and Sched 5 of the NSW Act for extension of certain limitation periods. These additions to the NSW Act were first made by the 1990 Act, which commenced on 1 September 1990. At that stage, on the present hypothesis, the actions of Messrs Rock and Brandon were not barred or extinguished by the NSW Act. That did not occur until 22 October 1991. However, the Commonwealth submits that s 44 of the Comcare Act so operated as to extinguish any right or entitlement of Messrs Rock and Brandon to obtain thereafter any extension of the limitation period. The result is said to be that their applications under the 1990 Act which are presently pending before the Federal Court are incompetent for want of subject-matter.
To that submission there are several answers. First, ss 60G, 60[Iota] and Sched 5 were picked up as provisions of a surrogate Commonwealth law only when they became binding upon a court which was exercising federal jurisdiction in New South Wales. They had no such operation when s 44 of the Comcare Act came into force on 1 December 1988. Indeed, they were not then part of New South Wales law. Secondly, an application for an order that the limitation period for a cause of action be extended does not answer the description in s 44(1) itself as "an action or other proceeding for damages ... against the Commonwealth". Such an order is not made as of right nor does it produce a judgment debt. In the Full Court, Cooper J said[239]:

"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."

We agree.

Conclusions

The result is that Foster J and the Full Court were correct in their view that the strike-out applications by the Commonwealth should be dismissed. The pending applications for extension of time should now proceed for disposition by the Federal Court.

Section 44 of the Comcare Act spoke on 1 December 1988 and purported to extinguish what on the pleadings by Messrs Mewett, Rock and Brandon were then subsisting causes of action against the Commonwealth for damages in contract and tort. Section 44 was relevantly invalid. It follows that the Full Court correctly answered the question reserved to it by Foster J and that the appeals against the relevant orders also should be dismissed.
The Commonwealth should pay the costs of the respondents in this Court.

FOOTNOTES:
[1] (1986) 161 CLR 254.
[2] See the Limitation Act 1969 (NSW), s 63.
[3] (1991) 174 CLR 1.
[4] The defence also referred to s 45 of the Comcare Act but that section is no longer relied upon.
[5] Foster J's reasons for judgment in Mewett's proceedings are reported: see Commonwealth v Mewett (1994) 126 ALR 391.
[6] See Commonwealth v Mewett (1995) 59 FCR 391; 140 ALR 99.
[7] (1994) 179 CLR 297.
[8] See The State of South Australia v The State of Victoria (1911) 12 CLR 667 at 675, 708.
[9] (1923) 32 CLR 200.
[10] See Mutual Pools & Staff Pty Ltd v The Commonwealth (1994) 179 CLR 155 at 217 per McHugh J.
[11] See Mutual Pools & Staff Pty Ltd v The Commonwealth (1994) 179 CLR 155 at 216 per McHugh J.
[12] See Official Record of the Debates of the Australasian Federal Convention, (Melbourne) 1 March 1898, vol V at 1653-1679; Mutual Pools & Staff Pty Ltd v The Commonwealth (1994) 179 CLR 155 at 215; Commissioner for Railways (Qld) v Peters (1991) 24 NSWLR 407 at 433, 443.
[13] (1938) 59 CLR 150 at 165.
[14] (1948) 76 CLR 1 at 363.
[15] 5 US 137 (1803).
[16] See, for example, ss 84, 89(iii) and 93(ii).
[17] (1994) 179 CLR 155 at 217.
[18] See Federal Commissioner of Taxation v Official Liquidator of E O Farley Ltd (1940) 63 CLR 278 at 304.
[19] See Cuppaidge, "The Divisibility of the Crown", (1954) 27 Australian Law Journal 594 at 595.
[20] (1904) 1 CLR 208 at 231.
[21] (1940) 63 CLR 278 at 304.
[22] See Lumb, "'The Commonwealth of Australia' - Constitutional Implications", (1979) 10 Federal Law Review 287; Sawer, Australian Federalism in the Courts, (1967) at 123-124.
[23] See The State of South Australia v The State of Victoria (1911) 12 CLR 667; The Commonwealth v New South Wales (1923) 32 CLR 200; South Australia v The Commonwealth (1962) 108 CLR 130 at 139-140.
[24] cf The Commonwealth v Cigamatic Pty Ltd (In Liquidation) (1962) 108 CLR 372 at 378.
[25] (1938) 59 CLR 150.
[26] (1938) 59 CLR 150 at 167.
[27] See The Commonwealth v Baume (1905) 2 CLR 405; Baume v The Commonwealth (1906) 4 CLR 97; The Commonwealth v Miller (1910) 10 CLR 742; Sargood Bros v The Commonwealth (1910) 11 CLR 258.
[28] (1938) 59 CLR 150 at 161.
[29] (1938) 59 CLR 150 at 166. See also Musgrave v The Commonwealth (1937) 57 CLR 514 at 546.
[30] (1939) 39 SR (NSW) 133 at 140.
[31] (1956) 96 CLR 397 at 422-423.
[32] (1967) 116 CLR 353 at 355.
[33] (1977) 139 CLR 362 at 404.
[34] (1986) 161 CLR 254 at 263.
[35] (1986) 161 CLR 254 at 269-270.
[36] (1988) 169 CLR 41 at 169.
[37] (1994) 179 CLR 155 at 217.
[38] (1994) 179 CLR 297 at 325-326; see also at 318 per Toohey J.
[39] (1994) 179 CLR 297 at 306 per Mason CJ, Deane and Gaudron JJ, 312 per Brennan J.
[40] See Cowen and Zines, Federal Jurisdiction in Australia, 2nd ed (1978) at 38.
[41] (1906) 4 CLR 97.
[42] (1910) 11 CLR 258 at 309-310.
[43] See Moore v The Commonwealth (1958) 99 CLR 177 at 182-183; Maguire v Simpson (1977) 139 CLR 362 (especially at 381, 404-405); Groves v The Commonwealth (1982) 150 CLR 113 at 119.
[44] (1939) 62 CLR 339 at 359.
[45] See Washington v The Commonwealth of Australia (1939) 39 SR (NSW) 133 at 142; Shaw Savill and Albion Co Ltd v The Commonwealth (1940) 66 CLR 344 at 357-358; Asiatic Steam Navigation Co Ltd v The Commonwealth (1956) 96 CLR 397 at 424; Suehle v The Commonwealth (1967) 116 CLR 353 at 355; Downs v Williams (1971) 126 CLR 61 at 82 (and see the discussion by Gibbs J at 98-102); Breavington v Godleman (1988) 169 CLR 41 at 169; Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297 at 318.
[46] (1928) 41 CLR 385 at 392-393, 395.
[47] See Shaw Savill and Albion Co Ltd v The Commonwealth (1940) 66 CLR 344 at 352-353; Asiatic Steam Navigation Co Ltd v The Commonwealth (1956) 96 CLR 397 at 419-420; Parker v The Commonwealth (1965) 112 CLR 295 at 300; Groves v The Commonwealth (1982) 150 CLR 113 at 121.
[48] (1988) 169 CLR 41 at 68-69 per Mason CJ, 117-118 per Brennan J, 151-152 per Dawson J.
[49] (1994) 179 CLR 297 at 306 per Mason CJ, Deane and Gaudron JJ, 312 per Brennan J.
[50] See Johnstone v The Commonwealth (1979) 143 CLR 398 at 401 per Gibbs J.
[51] (1977) 139 CLR 362.
[52] (1986) 161 CLR 254. See Breavington v Godleman (1988) 169 CLR 41 at 101-102 per Wilson and Gaudron JJ, 152 per Dawson J.
[53] (1986) 161 CLR 254 at 262-263.
[54] (1994) 179 CLR 297.
[55] Mason CJ, Brennan, Deane and Gaudron JJ; Dawson, Toohey and McHugh JJ dissenting.
[56] See Mutual Pools & Staff Pty Ltd v The Commonwealth (1994) 179 CLR 155; Health Insurance Commission v Peverill (1994) 179 CLR 226; Re Director of Public Prosecutions; Ex parte Lawler (1994) 179 CLR 270.
[57] (1996) 70 ALJR 680 at 740; 138 ALR 129 at 216.
[58] (1994) 179 CLR 297 at 306.
[59] (1994) 179 CLR 297 at 311-312.
[60] (1994) 179 CLR 297 at 325-326.
[61] (1952) 86 CLR 169 at 180.
[62] (1994) 179 CLR 297 at 305-306.
[63] (1994) 179 CLR 297 at 306.
[64] (1994) 179 CLR 297 at 312.
[65] (1977) 139 CLR 362.
[66] (1977) 139 CLR 362 at 376-377.
[67] See Acts Interpretation Act 1901 (Cth), s 26(c).
[68] See Cohen v Cohen (1929) 42 CLR 91 at 99; Musgrave v The Commonwealth (1937) 57 CLR 514 at 531-532, 547; Bainbridge-Hawker v The Minister of State for Trade and Customs (1958) 99 CLR 521 at 537; Pedersen v Young (1964) 110 CLR 162 at 165, 167-168, 169, 171; Parker v The Commonwealth (1965) 112 CLR 295 at 306; John Robertson & Co Ltd v Ferguson Transformers Pty Ltd (1973) 129 CLR 65 at 89, 93-94.
[69] See Parker v The Commonwealth (1965) 112 CLR 295 at 306 per Windeyer J.
[70] (1991) 174 CLR 1 at 42.
[71] See Dedousis v Water Board (1994) 181 CLR 171.
[72] See s 60I(1)(a).
[73] See s 60I(1)(b).
[74] See s 60G(2).
[75] See Maxwell v Murphy (1957) 96 CLR 261 at 269; Australian Iron & Steel Ltd v Hoogland (1962) 108 CLR 471 at 476; Pedersen v Young (1964) 110 CLR 162 at 166, 169; Maguire v Simpson (1977) 139 CLR 362 at 376-377, 392, 399; The Commonwealth v Verwayen (1990) 170 CLR 394 at 473, 497-498; McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 at 19, 41-44.
[76] See Bank of NSW v The Commonwealth (1948) 76 CLR 1 at 349 per Dixon J.
[77] (1988) 13 NSWLR 601 at 610.
[78] (1991) 174 CLR 1.
[79] (1995) 184 CLR 95 at 98.
[80] See Choice of Law (Limitation Periods) Act 1993 (Vic), s 5.
[81] See Limitation of Actions (Personal Injury Claims) Act 1983 (Vic), ss 3 and 11; Limitation of Actions (Amendment) Act 1989 (Vic), s 3; Limitation of Actions Act 1958 (Vic), s 5(1B).
[82] (1994) 179 CLR 297.
[83] Now the Safety, Rehabilitation and Compensation Act 1988 (Cth) ("the Comcare Act").
[84] (1994) 179 CLR 297 at 307.
[85] Commonwealth v Mewett (1995) 59 FCR 391; 140 ALR 99.
[86] (1994) 179 CLR 297 at 306, 312.
[87] (1994) 179 CLR 297 at 306.
[88] (1988) 169 CLR 41 at 167-169.
[89] Maguire v Simpson (1977) 139 CLR 362.
[90] There is a discussion of the applicable law by Cooper J in Commonwealth v Mewett (1995) 59 FCR 391 at 401-402; 140 ALR 99 at 107-108.
[91] Maguire v Simpson (1977) 139 CLR 362 at 408.
[92] Maguire v Simpson (1977) 139 CLR 362 at 408.
[93] (1994) 181 CLR 171.
[94] The Commonwealth v Verwayen (1990) 170 CLR 394 at 473, 497-498.
[95] (1988) 13 NSWLR 601 at 610.
[96] The Shorter Oxford English Dictionary, vol 1 at 711.
[97] Notices of motion were apparently filed on 31 August 1993 on behalf of Messrs Mewett and Rock, and on 24 June 1994 on behalf of Mr Brandon. But cf (1995) 59 FCR 391 at 405, 412 per Lindgren J.
[98] The Commonwealth's pleading is expressed in terms of ss 44 and 45 of the Comcare Act. The Commonwealth no longer relies on s 45 and it is, thus, convenient to proceed simply by reference to s 44.
[99] These are the dates which appear in Mr Brandon's affidavit. However, his reply states that the relevant date is October 1990.
[100] The Commonwealth also sought to have the notices of motion seeking extensions of time struck out on the ground that as a result of s 44(1), the court had no jurisdiction to entertain them.
[101] Constitution, s 51(xxxi).
[102] (1994) 179 CLR 297. Note the Comcare Act was then entitled the Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth).
[103] The reasons for judgment in respect of Mr Mewett's case have been reported: see Commonwealth of Australia v Mewett (1994) 126 ALR 391. Foster J dismissed the Commonwealth's notices of motion in the cases of Messrs Rock and Brandon for "reasons substantially similar" to those given in Mr Mewett's case.
[104] As to the issue raised on a strike out application, see Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91-92; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128-130.
[105] Commonwealth of Australia v Mewett (1995) 59 FCR 391.
[106] See Maguire v Simpson (1977) 139 CLR 362.
[107] (1995) 59 FCR 391 at 396-397 per Cooper J, 416-417 per Lindgren J.
[108] See Limitation Act 1969 (NSW), s 78 and Choice of Law (Limitation Periods) Act 1993 (NSW); Choice of Law (Limitation Periods) Act 1993 (Vic); Limitation of Actions Act 1936 (SA), s 38A; Limitation of Actions Act 1974 (Q), s 43A and Choice of Law (Limitation Periods) Act 1996 (Q); Choice of Law (Limitation Periods) Act 1994 (WA); Limitation Act 1974 (Tas), ss 32A-32D; Choice of Law (Limitation Periods) Act 1994 (NT); Limitation Act 1985 (ACT), ss 55-57. See also Gardner v Wallace (1995) 184 CLR 95.
[109] cf the approach in the Full Court, the parties apparently eschewing the view that there was a common law of Australia applicable to actions in contract and tort in favour of the view that each State and Territory has its own common law: see (1995) 59 FCR 391 at 397, 401-402 per Cooper J, 417-418 per Lindgren J.
[110] (1967) 116 CLR 353 at 355-356. See also Washington v The Commonwealth (1939) 39 SR (NSW) 133 at 143.
[111] (1988) 169 CLR 41 at 68-69, 105-106, 118, 139-140, 152-153, 169.
[112] See Deputy Federal Commissioner of Taxation v Brown (1958) 100 CLR 32 at 39 per Dixon CJ; Pedersen v Young (1964) 110 CLR 162 at 169-170 per Windeyer J; Pozniak v Smith (1982) 151 CLR 38 at 48 per Mason J; Breavington v Godleman (1988) 169 CLR 41 at 87-88 per Wilson and Gaudron JJ and the cases there cited. See also Gardner v Wallace (1995) 184 CLR 95 at 100.
[113] Note, however, that it has been held that Scotland and England are separate countries for the purposes of choice of law rules: see, for example, M'Elroy v M'Allister [1949] SC 110.
[114] Pedersen v Young (1964) 110 CLR 162 at 170 per Windeyer J, applied in McKain v RW Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 at 36 per Brennan, Dawson, Toohey and McHugh JJ.
[115] Breavington v Godleman (1988) 169 CLR 41 at 84-85. See also Varawa v Howard Smith Co Ltd (1911) 13 CLR 35 at 69; Chaff and Hay Acquisition Committee v JA Hemphill and Sons Pty Ltd (1947) 74 CLR 375 at 396; Koop v Bebb (1951) 84 CLR 629 at 641-644; Laurie v Carroll (1958) 98 CLR 310 at 331; Anderson v Eric Anderson Radio & TV Pty Ltd (1965) 114 CLR 20 at 23, 27-28, 34-35, 40.
[116] See Breavington v Godleman (1988) 169 CLR 41 at 77-79 per Mason CJ, 85 per Wilson and Gaudron JJ, 125 per Deane J; McKain v RW Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 at 36 per Brennan, Dawson, Toohey and McHugh JJ, 47 per Deane J; Stevens v Head (1993) 176 CLR 433 at 442 per Mason CJ.
[117] Breavington v Godleman (1988) 169 CLR 41 at 88 per Wilson and Gaudron JJ. See also Tolofson v Jensen [1994] 3 SCR 1022 at 1063-1064; (1994) 120 DLR (4th) 289 at 314-315.
[118] See as to the integrated legal system, Kable v Director of Public Prosecutions (NSW) (1996) 70 ALJR 814; 138 ALR 577.
[119] See Kruger v The Commonwealth unreported, High Court of Australia, 31 July 1997 at 123, 125-126 per Gaudron J.
[120] Thompson v The Queen (1989) 169 CLR 1 at 35 per Deane J, citing Breavington v Godleman (1988) 169 CLR 41 at 97-99 per Wilson and Gaudron JJ.
[121] (1988) 169 CLR 41.
[122] (1991) 174 CLR 1.
[123] Thompson v The Queen (1989)169 CLR 1 at 34 per Deane J.
[124] (1991) 174 CLR 1.
[125] (1870) LR 6 QB 1. See McKain v RW Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 at 38-40 per Brennan, Dawson, Toohey and McHugh JJ. Note that in relation to domestic torts, the double actionability test has been rejected by the Supreme Court of Canada in favour of a strict application of the lex loci delicti: see Tolofson v Jensen [1994] 3 SCR 1022; (1994) 120 DLR (4th) 289.
[126] (1991) 174 CLR 1 at 35.
[127] Thompson v The Queen (1989)169 CLR 1 at 35 per Deane J.
[128] (1989)169 CLR 1 at 35.
[129] Thompson v The Queen (1989)169 CLR 1 at 35 per Deane J.
[130] See Kable v Director of Public Prosecutions(NSW) (1996) 70 ALJR 814 at 845; 138 ALR 577 at 619-620 per McHugh J; Lange v Australian Broadcasting Corporation unreported, High Court of Australia, 8 July 1997 at 17-18, 19.
[131] (1937) 57 CLR 514 at 547-548. See also at 550-551 per Evatt and McTiernan JJ.
[132] Unreported, High Court of Australia, 31 July 1997 at 122-128.
[133] Section 5 provides: " If the substantive law of a place, being another State, a Territory or New Zealand, is to govern a claim before a court of the State, a limitation law of that place is to be regarded as part of that substantive law and applied accordingly by the court."
[134] As to the operation of ss 60F, 60G and Sched 5 to the Act, see Dedousis v Water Board (1994) 181 CLR 171.
[135] As to the matters of which a court must be satisfied, see s 60I(1).
[136] Section 61 refers to "a limitation period to which this Division applies". The Division in question, Div 3 of Pt 3, applies to personal injury cases.
[137] (1994) 179 CLR 297.
[138] Mason CJ, Brennan, Deane and Gaudron JJ; Dawson, Toohey and McHugh JJ dissenting.
[139] The short title of this Act was previously the Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth). The change was made by s 4 of the Commonwealth Employees' Rehabilitation and Compensation Amendment Act 1992 (Cth) effective on 24 December 1992.
[140] See Georgiadis (1994) 179 CLR 297 at 306 per Mason CJ, Deane and Gaudron JJ, at 326 per McHugh J.
[141] (1994) 179 CLR 297 at 306 per Mason CJ, Deane and Gaudron JJ, at 312 per Brennan J.
[142] The other three decisions were Mutual Pools & Staff Pty Ltd v The Commonwealth (1994) 179 CLR 155; Health Insurance Commission v Peverill (1994) 179 CLR 226; Re Director of Public Prosecutions; Ex parte Lawler (1994) 179 CLR 270.
[143] Commonwealth of Australia v Dixon (1988) 13 NSWLR 601 at 610.
[144] Commonwealth v Mewett (1995) 59 FCR 391; 140 ALR 99.
[145] The proceedings before Foster J concerning Mr Mewett are reported: Commonwealth v Mewett (1994) 126 ALR 391.
[146] The short title of this Act was previously the Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth). The change was made by s 4 of the Commonwealth Employees' Rehabilitation and Compensation Amendment Act 1992 (Cth) effective on 24 December 1992.
[147] (1994) 179 CLR 297.
[148] Mason CJ, Brennan, Deane and Gaudron JJ; Dawson, Toohey and McHugh JJ dissenting.
[149] (1994) 179 CLR 297 at 300.
[150] The Commonwealth v Verwayen (1990) 170 CLR 394 at 473-474.
[151] Australian Iron & Steel Ltd v Hoogland (1962) 108 CLR 471 at 488-489; Pedersen v Young (1964) 110 CLR 162 at 169; The Commonwealth v Verwayen (1990) 170 CLR 394 at 497-498; McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 at 43.
[152] See The Commonwealth v Verwayen (1990) 170 CLR 394 at 482-486; Roebuck v Mungovin [1994] 2 AC 224 at 234-236.

[153] Minister of State for the Army v Dalziel (1944) 68 CLR 261 at 290.
[154] Mills v Fowkes (1839) 5 Bing (NC) 455 [132 ER 1174].
[155] Higgins v Scott (1831) 2 B & Ad 413 [109 ER 1196].
[156] Dingle v Coppen; Coppen v Dingle [1899] 1 Ch 726 at 746; In re Lloyd; Lloyd v Lloyd [1903] 1 Ch 385 at 402. Other examples of results which flow from the circumstance that the remedy rather than the right is barred are given in par 24 of the Law Revision Committee, Fifth Interim Report (Statutes of Limitation), (1936), Cmd 5334 and in Derham, Set-off, 2nd ed (1996) at 64-65, 439-440, 505-507.
[157] Section 56 states: "(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.
(2) For the purposes of paragraphs (b) and (c) of the last preceding subsection:
(a) any court exercising jurisdiction at any place in the capital city of a State, or in the principal or only city or town of a Territory, that would be competent to hear the suit if the Commonwealth were, or had at any time been, resident in that city or town, or in a particular area in that city or town, is a court of competent jurisdiction; and
(b) any other court is not a court of competent jurisdiction if its competence to hear the suit would depend upon the place where the Commonwealth resides or carries on business or at any time resided or carried on business."
[158] Section 44(2A) states: "Where a matter in which 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."
[159] The construction and operation of the 1990 Act was considered by this Court in Dedousis v Water Board (1994) 181 CLR 171 and Harris v Commercial Minerals Ltd (1996) 186 CLR 1. The NSW Act has been further amended since the 1990 Act, but nothing turns upon these changes for the present appeals.
[160] (1995) 59 FCR 391 at 408-412; 140 ALR 99 at 114-117.
[161] (1995) 59 FCR 391 at 412-413; 140 ALR 99 at 118.
[162] (1965) 112 CLR 295 at 305-307.
[163] (1991) 174 CLR 1. The action in that case was brought in the Supreme Court of New South Wales between interstate parties but because one of them was a corporation the action was not between residents of different States within the meaning of s 75(iv) of the Constitution. The result was that the Supreme Court, at least until the raising of constitutional issues, was not exercising federal jurisdiction.
[164] The Amendment Act was repealed by s 3(1) of the Statute Law Revision Act 1995 (Vic). However, the repeal does not affect in any way the operation of the amendments made to the Victorian Act by the Amendment Act: Interpretation of Legislation Act 1984 (Vic), s 15(1).
[165] Story, Commentaries on the Constitution of the United States, (1833), vol 1, par 207.
[166] Northern Suburbs General Cemetery Reserve Trust v The Commonwealth (1993) 176 CLR 555 at 572-573, 580-581, 591, 597-599.
[167] Dyson v Attorney-General [1911] 1 KB 410 at 415-416, 419, 421-422; Holdsworth, "The History of Remedies Against the Crown", (1922) 38 Law Quarterly Review 141 (Pt 1), 280 (Pt 2) at 280-283. The equity jurisdiction of the Exchequer was transferred to Chancery by the Court of Chancery Act 1841, 5 Vic c 5: Bryson, The Equity Side of the Exchequer, (1976) at 160-166.
[168] Spence, The Equitable Jurisdiction of the Court of Chancery, (1849), vol 2 at 32-33; R v Mayor, etc, of Blenheim (1907) 28 NZLR 249 at 256; Attorney-General v Nissan [1970] AC 179 at 223; Registrar of the Accident Compensation Tribunal v Federal Commissioner of Taxation (1993) 178 CLR 145 at 162-164, 180.
[169] Lewin, A Practical Treatise on The Law of Trusts, 6th ed (1875) at 29; cf Casberd v The Attorney-General (1819) 6 Price 411 at 463 [146 ER 850 at 868].
[170] Holdsworth, A History of English Law, 3rd ed (1944), vol 9 at 40-42.
[171] These are collected in Robertson, The Law and Practice of Civil Proceedings By and Against the Crown and Departments of the Government, (1908) at 337-340.
[172] (1886) 11 App Cas 607.
[173] 39 Vict c 27.
[174] (1886) 11 App Cas 607 at 613.
[175] (1865) 6 B & S 257 at 295-296 [122 ER 1191 at 1205].
[176] (1865) 6 B & S 257 at 297 [122 ER 1191 at 1205-1206].
[177] Robertson, The Law and Practice of Civil Proceedings By and Against the Crown and Departments of the Government, (1908) at 351.
[178] (1966) 117 CLR 118 at 149.
[179] Holdsworth, "The History of Remedies Against the Crown", (1922) 38 Law Quarterly Review 141 (Pt 1) at 151-156, 280 (Pt 2) at 294.
[180] Ehrlich, "Proceedings Against the Crown (1216-1377)", in Vinogradoff (ed), Oxford Studies in Social and Legal History, (1974), vol 6 at 42-44, 127-131.
[181] Bracton on the Laws and Customs of England, Folio 107a-107b, translated, with revisions and notes, by Thorne, (1968), vol 2 at 305-306.
[182] A v Hayden (1984) 156 CLR 532 at 580-581.
[183] Chitty, A Treatise on the Law of the Prerogatives of the Crown, (1820) at 4 (footnotes omitted); see also Repatriation Commission v Kirkland (1923) 32 CLR 1 at 11-12.
[184] British Medical Association v Greater Glasgow Health Board [1989] AC 1211 at 1225. It appears that interdict in that situation is no longer available for reasons we outline below.
[185] 20 & 21 Vict, c 44.
[186] Maguire v Simpson (1977) 139 CLR 362 at 371-373. See Finn, "Claims Against the Government Legislation", in Finn (ed), Essays on Law and Government, vol 2, The Citizen and the State in the Courts, (1996), 25 at 26-32.
[187] (1887) 12 App Cas 643.
[188] Maguire v Simpson (1977) 139 CLR 362 at 371.
[189] See Finn, Law and Government in Colonial Australia, (1987) at 141-142.
[190] Provision for the form of judgment or decree was made by ss 9 and 10 of The Petitions of Right Act 1860 (UK).
[191] Harrison Moore, "The Crown as Corporation", (1904) 20 Law Quarterly Review 351 at 352-353.
[192] Fencott v Muller (1983) 152 CLR 570 at 603.
[193] Bank of NSW v The Commonwealth (1948) 76 CLR 1 at 363; Deputy Commissioner of Taxation v State Bank (NSW) (1992) 174 CLR 219 at 230-231; State Authorities Superannuation Board v Commissioner of State Taxation (WA) (1996) 71 ALJR 56 at 67-68; 140 ALR 129 at 145-146.
[194] (1979) 143 CLR 398 at 406.
[195] 5 US 137 (1803).
[196] Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 262.
[197] The State of South Australia v The State of Victoria (1911) 12 CLR 667 (trespass to land); The Commonwealth v New South Wales (1923) 32 CLR 200 (collision between vessels).
[198] South Australia v The Commonwealth (1962) 108 CLR 130 at 139, 148.
[199] State of Tasmania v The Commonwealth of Australia and State of Victoria (1904) 1 CLR 329 at 340.
[200] See Flint v The Commonwealth (1932) 47 CLR 274; McDonald v Victoria (1937) 58 CLR 146.
[201] (1923) 32 CLR 200 at 212.
[202] (1923) 32 CLR 200 at 213.
[203] [1994] 1 AC 377. See Wade, "Injunctive Relief against the Crown and Ministers", (1991) 107 Law Quarterly Review 4.
[204] [1994] 1 AC 377 at 422.
[205] McDonald v Secretary of State for Scotland 1994 SLT 692. See Edwards, "Interdict and the Crown in Scotland", (1995) 111 Law Quarterly Review 34.
[206] For example, James v Cowan (1932) 47 CLR 386; James v The Commonwealth (1936) 55 CLR 1; McClintock v The Commonwealth (1947) 75 CLR 1; Burton v Honan (1952) 86 CLR 169; Poulton v The Commonwealth (1953) 89 CLR 540.
[207] (1923) 32 CLR 200.
[208] (1923) 32 CLR 200 at 210-214.
[209] (1923) 32 CLR 200 at 211.
[210] Heimann v The Commonwealth (1935) 54 CLR 126 at 129-130; see also Musgrave v The Commonwealth (1937) 57 CLR 514 at 550; South Australia v The Commonwealth (1962) 108 CLR 130 at 148.
[211] New South Wales v Bardolph (1934) 52 CLR 455 at 459.
[212] (1937) 57 CLR 514 at 546.
[213] Werrin v The Commonwealth (1938) 59 CLR 150 at 167.
[214] Werrin v The Commonwealth (1938) 59 CLR 150 at 167.
[215] Maxwell v Murphy (1957) 96 CLR 261 at 286.
[216] (1938) 59 CLR 150.
[217] (1938) 59 CLR 150 at 167-168. See also Dixon J's remarks in Bank of NSW v The Commonwealth (1948) 76 CLR 1 at 367; and those of Murphy J in Johnstone v The Commonwealth (1979) 143 CLR 398 at 405-406.
[218] (1887) 12 App Cas 643.
[219] (1938) 59 CLR 150 at 167.
[220] (1938) 59 CLR 150 at 168.
[221] (1994) 179 CLR 297 at 312.
[222] cf Breavington v Godleman (1988) 169 CLR 41 at 152, 169; see also at 101-102.
[223] Breavington v Godleman (1988) 169 CLR 41 at 118; cf Shaw Savill and Albion Co Ltd v The Commonwealth (1940) 66 CLR 344 at 357-358; Suehle v The Commonwealth (1967) 116 CLR 353 at 355.
[224] Breavington v Godleman (1988) 169 CLR 41 at 68-69, 105-106, 118, 139-140, 152-153, 169.
[225] (1932) 46 CLR 155 at 176-177.
[226] (1994) 179 CLR 297 at 306 per Mason CJ, Deane and Gaudron JJ, 312 per Brennan J.
[227] Maguire v Simpson (1977) 139 CLR 362 at 376-377.
[228] Georgiadis (1994) 179 CLR 297 at 307, 310.
[229] John Robertson & Co Ltd v Ferguson Transformers Pty Ltd (1973) 129 CLR 65 at 79, 84, 87, 93.
[230] Maguire v Simpson (1977) 139 CLR 362 at 408.
[231] Musgrave v The Commonwealth (1937) 57 CLR 514.
[232] cf Crouch v Commissioner for Railways (Q) (1985) 159 CLR 22 at 26; The Commonwealth v Evans Deakin Industries Ltd (1986) 161 CLR 254 at 263, 268-269.
[233] (1977) 139 CLR 362 at 376.
[234] cf Dao v Australian Postal Commission (1987) 162 CLR 317 at 331-332; Deputy Commissioner of Taxation v Moorebank Pty Ltd (1988) 165 CLR 55 at 63-64.
[235] cf The Commonwealth v Evans Deakin Industries Ltd (1986) 161 CLR 254 at 266.
[236] (1937) 57 CLR 514.
[237] Georgiadis (1994) 179 CLR 297 at 307.
[238] Georgiadis (1994) 179 CLR 297 at 310.
[239] (1995) 59 FCR 391 at 403; 140 ALR 99 at 109.