writing in 1939, h. v. evatt (at the time a justice of the high court) discussed "d'emden v pedder" and the other implied immunity of instrumentalities cases and suggested that the high court in the engineers' case may have taken too drastic an approach to "d'emden". the court in the engineers' case did not overturn the result of "d'emden" since they would have arrived at the same result based on an application of section 109 of the australian constitution, which deals with inconsistency between state and federal legislation by specifying that the federal legislation will prevail. evatt argued that the court had introduced a notion of supremacy which led to them misinterpreting the decision in "d'emden", saying that griffith cj "regarded the rule... as one of mutual non-interference, and certainly not as perpetrating the absurdity of 'mutual supremacy'", that being the epithet with which the court in the engineers' case had rejected any place for a doctrine of mutual immunity of instrumentalities. however, evatt did concede that the engineers' case showed that if any principle of immunity were to be revived, it "must have a far narrower operation in australia than was first supposed by griffith cj"; indeed, it has been said that the principle as laid down in "d'emden" was of even broader application than that set out by chief justice marshall in "mcculloch v maryland".