Alternative Law Journal
Ever thought of suing a foreign defendant in an Australian court for acts committed in a foreign country? The good (or bad-depending on your perspective) news is that you can. Seems strange? Actually there is a surprisingly large amount of this sort of litigation going on.
A case in point is Dow Jones v Gutnick, which was heard by the High Court in March this year. In that case Joseph Gutnick brought an action for defamation against Dow Jones for an article published on the Internet through a webserver in New Jersey.
Dow Jones sought to have the action struck out but was unsuccessful at first instance before Hedigan J, who held that the defamation had occurred at the place where Mr Gutnick had read the publication and that this was the State of Victoria. The matter went on appeal to the High Court.
While a decision in that case is still pending, the focus of this column is on another case decided by the High Court of Australia around the same time, namely Regie National des Usines Renault SA v Zhang (Zhang).
In this case the plaintiff, Mr Zhang, was injured in a motor vehicle accident in New Caledonia, an overseas territory of France. The plaintiff, resident in Australia before and after the accident, sued the Renault motor company, which did not maintain an office or employ any people within Australia, for the negligent design and manufacture of the vehicle. The plain tiff sued for ongoing injury, loss and damage.
Service was effected on the foreign defendant pursuant to Rule lA of Part 10 of the Rules of the Supreme Court of New South Wales. These rules allow, in part, for service outside the jurisdiction 'where the proceedings, wholly or partly, are founded on, or are for the recovery of damages in respect of, dam age suffered in the State caused by a tortious act or omission wherever occurring'.
The joint judgment by Gleeson CJ, Gaudron, HcHugh, Gummow and Hayne JJ focused on two central questions:
(a) is there jurisdiction?
(b) what is the applicable law?
The jurisdiction of an Australian court can typically be established either by service of originating process on a defendant within the territorial jurisdiction of the court, or the service of such process on a defendant outside the territorial jurisdiction of the court under the 'long arm' provisions of the Rules, as in the present case.
Such an exercise of jurisdiction can be challenged, under the doctrine of forum non-conveniens, on the basis that the court is literally not the most convenient forum to hear the case.
The test in this regard has been that propounded by Deane J in Oceanic Sun v Fay and adopted by the High Court of Australia in Voth v Manildra Flour Mills. The test is that the court will only decline jurisdiction if the court can be shown to be a 'clearly inappropriate forum'. The Majority in Zhang endorsed this test, although as discussed below, with dissent from Kirby and Callinan JJ.
As discussed in the joint judgment in Zhang, the test of the clearly inappropriate forum will require establishing either that the continuation of proceedings would be oppressive, in the sense of 'seriously and unfairly burdensome, prejudicial or damaging', or vexatious, in the sense of 'productive of serious and unjustified trouble and harassment'.
In this regard, courts will examine 'connecting factors' linking the proceedings to the jurisdiction, as well as whether there is 'a legitimate personal or juridical advantage' in hearing the proceedings within the particular forum. Relevant factors in Zhang were the presence of relevant witnesses within Australia and that the relevant experts could be expected to travel.
Also notable in this regard is the willingness of courts to consider the ability of defendants to access legal advisers as a relevant factor in such determinations. Indeed, in the United Kingdom decision of Lubbe v Cape, the ability of the plaintiff to access legal assistance within the United Kingdom (but not South Africa) was a decisive factor in the decision by the House of Lords to consider the matter.
In relation to the applicable law, the court extended its decision in Pfeiffer v Rogerson, that the lex loci delicti (the law of the place where the wrong occurred) should be applied to all questions of substance in proceedings arising for an intranational tort, to international torts. That is, for all torts committed outside of jurisdiction, whether in another Australian jurisdiction or in a jurisdiction external to Australia, the law that will apply is the law of the place where the wrong occurred. In the present instance as the tort occurred within an overseas territory of France, the law to be applied was held to be that of France.
It is significant that in adopting the lex loci delicti rule, the High Court decided against a more flexible choice of law rule, such as those featured in the United States. Within United States tort law, only 10 states still apply the lex loci delicti rule. The bulk of the remaining states apply more flexible rules that provide a choice of jurisdictions where the lex loci delicti rule would cause injustice. The most common of these represent an application of the principles stated in the United States' Restatement (Second) of Conflict of Laws (applied in some 22 states for torts conflicts). Under these principles, courts look to a range of factors, such as the relevant policies of the states concerned and the justified expectations of the parties, in deciding what law will apply to the tort in question.
As in Pfeiffer, the Court in Zhang also rejected the application of the double actionability rule, which required plaintiffs to establish both that a wrong is actionable under the law of the foreign jurisdiction as well as actionable under the law of the jurisdiction in which the case is being heard. The High Court in Zhang decided that as foreign causes of action can already be rejected as being contrary to the public policy of a forum, there is no need for the double actionability rule. In this regard, the joint judgement states that:
[w]hatever may have been said in favour of such a requirement in England a century and a half ago, it cannot be supported today as anything more than an arbitrary rule. The 'experience' of the law, identified by Holmes, has developed. Public policy reservations of their nature cannot be contained closed categories; rather, the modem tendency is to frame them with closer attention to the respective govern mental interests involved.
Justice Kirby dissented on the 'clearly inappropriate forum' test. He criticised the retention of the word 'clearly' within the test, noting its absence from the relevant legislative provision. Justice Kirby also indicated a preference for a test less burdensome on defendants, namely that set out in the House of Lords decision in Spiliada v Cansulex. According to Spiliada, a court should search for the '... forum, having competent jurisdiction, which is the appropriate forum for the trial of the action, ie in which the case may be tried more suitably for the interests of all the parties and the ends of justice'.
Like Kirby J, Callinan J indicated a preference for a test less burdensome on defendants. In particular, Callinan J objected to the test of vexatiousness or oppression. Indeed, Callinan J went on to state that even if the test was one of oppression, it would be oppressive 'for the respondent to be permitted to import his cause of action into, and to pursue it in New South Wales where the appel lants have no presence, with which they have no other relevant connexion, and where the respondent was not injured'.
Zhang is clear authority for the application of the lex loci delicti rule with regard to foreign torts. The conservative approach contrasts with that in the United States, where rules have been developed to provide more flexibility to avoid arbitrary results.
Notable also in Zhang are the comments of Kirby and Callinan JJ as to the difficulties defendants face in meeting the 'clearly inappropriate test' as established in Voth. Also notable are the issues left undecided by the case, including whether the law of the forum or the lex loci delicti will govern questions as to the quantum of damages or the avail ability of limitation periods. • SB
Further to the last edition of this column (p.193), the Independent Commission Against Corruption (ICAC) has issued a much wider ranging report on corruption in universities. Entitled 'Degrees of Risk: A corruption risk profile of the NSW university sector', the report exposes numerous examples of failures of university governance and systems.
While the report exposes some interesting cases (such as the two academics at one university awarding themselves a degree, without actually doing the course) ICAC has barely scratched the surface. It should start its investigations at the top: an examination of university governance would provide a bounty of practices that show that serious problems are not related to a few rogue staff.
The issue of the report was followed by a public seminar for university representatives, which was addressed not only by ICAC representatives, but by the NSW Ombudsman and the NSW Auditor-General. The Auditor-General's main concern appears to be that the culture of academic freedom may have led to inappropriate devolution of powers and a lack of internal controls.
ICAC will need to get a few scalps from the vice, deputy and pro-vice chancellor level so university staff will have cause to take seriously its call for a culture of public duty to be accepted within universities. After all, university staff not only face their own management resisting the notion of public duty, but a federal government driven by the idea that universities should operate like any other player in the market: soap powder, petrol, education, aren't they all the same?
I hope ICAC is open to suggestions for matters to investigate this columnist certainly has a few. • PW
The NSW government has introduced the Civil Liability Amendment (Personal Responsibility) Bill2002 (NSW), to further 'reform' tort law (see this column, last issue, p.193). Readers will note that the phrase 'personal responsibility' is used ironically: it appears that the legislative intention is to remove such responsibility from tortfeasors.
The Bill attempts to address such issues as foreseeability, professional peer standards, public authority liability, recreational activities, 'good Samaritans', volunteers, nervous shock, and self-defence actions, among other things. It is to apply in both tort and contract.
The Bill is one more brick in the wall being built against the courts. It controls what the courts are allowed to look at in certain types of claims. Some creative statutory interpretation may be required.
It continues the Australia-wide push for reform in an area of law where there has simply been no evidence of any sort that there is a real 'crisis'. Rather, insurance companies made decisions to lower premiums for marketing purposes, and these turned out to have been ill-judged.
Citizens are now being asked to subsidise these poor business judgments without the slightest justification for the special protection to the industry. Politicians and the media have been happy to oblige by increasing the clam our, usually prompted by a jury, not a judge-made award to a person seen as undeserving. (We now have the 'undeserving injured' to accompany the 'un deserving poor' and the 'undeserving unemployed'). It is as if no one has actually read a High Court decision on torts in say the last decade.
Insurance company boards must be laughing over their port and cigars at the ease with which they have pulled off such a policy result. The Bill will no doubt be passed 'on the voices' -we have an election soon in NSW, so rigor ous scrutiny is not an option. • PW
A battle royale (or curial) has erupted in Queensland's magistracy, centred on Chief Magistrate, Di Fingleton. Hostilities surfaced when Magistrate Sheryl Cornack commenced court action alleging Ms Pingleton denied her natural justice, threatened her judicial independence and misused a power of reprimand. This came on top of accusations of bullying by Magistrate Anne Thacker. Magistrate Basil Gribbin has since alleged that Ms Pingleton sought to suborn him in his support of Ms Thacker, in a way that might involve an attempt to pervert the course of justice.
Ms Pingleton flatly contests Mr Gribbin's interpretation of their dealings. As reported in the press, Mr Gribbin claims these include accusing him of disloyalty, disruptiveness and asking him to 'show cause why [he] should remain in the position [of regional co-ordinating Magistrate]'. Ms Pingleton also 'vehemently denies' the bullying accusations. But at last count no fewer than five magistrates had filed affidavits believed to be critical of Ms Pingleton-and Ms Thacker alleges others would assist but cite fears of repercussions from the Chief Magistrate. This rich plot is feeding three separate inquiries.
Most serious is a Crime and Misconduct Commission (CMC) investigation - under retired Justice Bill Pincus QC -into Mr Gribbin's accusations. Second is Ms Cornack's Supreme Court action. The third was a consideration of Ms Thacker's complaints by the 'Queensland Judicial Committee'- a committee of senior judges established by 1999 amendments to the Stipendiary Magistrates Act 1991 (Qld). That Committee has just issued a report finding that Ms Thacker was unfairly treated when the Chief Magistrate transferred her to Townsville against her wishes without canvassing all other options. The report also criticised the Chief's ban on magistrates discussing possible transfers amongst themselves.
A touch of farce has been provided with a string of legal figures recusing themselves from involvement in aspects of the imbroglio. These include the Chief Justice Paul de Jersey, and the head of the CMC, Brendan Butler SC. The beaks' union (the Magistrate's Association) is providing funding to Ms Cornack's case, and the government is presently funding Ms Pingleton's defences.
Ms Pingleton's remarkable career includes stints on the staff of federal and state ALP ministers, as Co-ordinator of Caxton Legal Service and Ipswich Legal Service, and as a
Policy Adviser on both Women's and Consumer Affairs. Labor Attor ney-General Matt Foley, whose term saw a significant rise in female judicial representation, appointed her Magis trate in late 1995. But it was her ascen sion to first Senior Magistrate (1998) and then Chief Magistrate (1999) that caused consternation, if not jealousy, in some quarters.
Ms Pingleton is a survivor of an alcoholic, verbally abusive father, who himself suffered a neglected childhood.
'Swimming Upstream', a film based on the family's story (the Pingleton children were champion swimmers) and starring Geoffrey Rush and Judy Davis, is due for release shortly. If nothing else, the controversy should guarantee box-office interest in Queensland and the wider legal community.
Even if Ms Pingleton can survive these ordeals, poisonous relations amongst the bench will have become stretched to breaking point, and confidence in the magistracy seriously harmed, by the public nature of the brawl. Alongside the personal aspects of the conflict lie deeper questions about the disciplinary powers vested in the Chief Magistrate's office and personnel management in the judiciary generally. • GO
Asylum seekers occupy the difficult position of 'personae non gratae' in Australian society. Asylum seekers are not afforded the usual rights and privileges that attach even to many non-citizens. Thus, asylum seekers living in the community are not allowed to work and are not entitled to receive federal government support and assistance such as Medicare, social security and access to language programs. For asylum seekers in detention, the provision of basic services is the responsibility of the Federal Department of lmmigration and Multicultural and Indigenous Affairs (DIMIA), which has contracted this responsibility to a private company (Australasian Correctional Management Pty Ltd).
Encouragingly, the Victorian government has recently recognised this particular vulnerability of asylum seekers, and taken steps to ensure that some of the basic economic and social needs of asylum seekers are met.
The Victorian government has sup ported the opening of the first Asylum Seeker Welcome Centre in Melbourne. The Centre will initially be funded by community groups, but the Victorian government will also provide $1 mil lion in funding to be used for three com munity-building initiatives to address specific needs of ethnic communities, including asylum seekers.
Further, the Victorian government has come to an agreement with DIMIA for child asylum seekers in Victorian immigration detention centres to attend local government schools. Under the agreement, all school age children living at the Maribyrnong detention centre will be able to leave the detention centre to attend school and receive the same education that local children receive. Asylum seeker children will also receive assistance for uniforms and other school needs from the State Schools Relief Fund.
The Human Rights Commissioner, Dr Sev Ozdowski, welcomed the agreement and congratulated the Victorian Department of Education and Training. However, Dr Ozdowski pointed out that many children in the other detention centres around the country do not have this opportunity, and he urged the federal government to ensure the same opportunities were available to all children in detention as a matter of urgency.
In its submission to the HREOC National Inquiry into Children in Immigration Detention, DIMIA states that:
the Department aims to provide education services which are generally com parable with that provided in the community. The provision of education in an immigration detention environment, however, must take account of a range of issues not present in the general community ... It is usually not practicable, therefore, to stream detainee children into full Australia-based curricula.
The right to education is a fundamental right of all children, enshrined in the Convention on the Rights of the Child, to which Australia is a State Party. Article 28 provides that State Parties shall make primary education compulsory and available free to all, and make forms of secondary education available and accessible to every child. When these rights are taken together with the over-riding principles of the Convention -namely the best interests of the child (Article 3) and non-discrimination on the grounds of status (amongst other things) (Article 2) there is a compelling argument that the federal government is required to provide education to all children, citizens or non-citizens, to an equal standard
In addition, Article 22 of the Refugee Convention, to which Australia is also a State Party, requires that a child refugee should receive the same treatment as nationals in primary education, and treatment at least as favourable as non-refugee aliens in secondary education.
Neither Convention recognises 'impracticality' as an excuse for providing some children with a significantly poorer standard of education than others.
The difficulty is that although children have these rights under the Conventions, they are unable to enforce them in Australia until they are implemented into Australian domestic law. These Conventions have not been implemented into Australian law. Further, because of the restrictions on judicial review of the conduct of their detainers and the decisions of DIMIA, refugee children have few avenues of recourse to enforce rights contained in domestic legislation or rights recognised in international law. This is a shameful position for Australia, particularly as this country espouses liberal democratic values and a commitment to universal human rights principles.
Lucy McKernan is a lawyer at Aliens Arthur Robinson.
As reported in the last edition of this column, the Victorian Scrutiny of Acts and Regulations Committee recently (conducted a review into the Vagrancy Act 1966 (Vic). That Committee has now published its Final Report, which was tabled in Parliament on 4 September2002.
The Final Report recommends that the Vagrancy Act should be repealed in its entirety, but that certain offences that are not otherwise covered by specific legislation or by broader generic provisions of the Crimes Act 1958 (Vic) be retained by re-enactment under the Summary Offences Act 1966 (Vic).
The following offences under the Vagrancy Act were contentious and attracted a diversity of responses from groups such as Victoria Police, the Police Association, Victoria Legal Aid, the Criminal Bar Association, the Homeless Persons' Legal Clinic and Hanover Welfare Services:
• consorting: s.6(l)(a)-(c);
• begging: s.6(l)(d); and
• loitering: s.7(l)(t).
Groups such as the Homeless Per sons' Legal Clinic and Hanover Welfare Services submitted that these offences have a disproportionate impact on people who are homeless or at risk of ,homelessness and recommended that they be repealed. Such groups further recommended that legal, social and economic responses to con sorting, begging and loitering be used to address the causes underlying these behaviours rather than the law being used to punish the manifestations of poverty.
The Committee's Final Report makes the following findings and recommendations.
The Committee considered that the offence of consorting may be inconsistent with fundamental human rights principles and may unfairly discriminate against already marginalised people. It was concerned that the consorting provisions may be arbitrarily or discriminatorily used to 'move on' certain individuals and groups. The Final Report recommends that the offence of consorting be repealed.
The Committee acknowledged forceful arguments that begging is a complex social and economic problem and that the criminal law may not be the appropriate means to deal with it. The Committee also referred to anecdotal evidence and studies demonstrating that begging is generally a manifestation of chronic poverty and is closely linked with long-term unemployment, homelessness, mental illness and substance addictions.
The Committee found, however, that relatively little research has been conducted into the specific issue of begging in Victoria. The Final Report therefore recommends that a reference for a comprehensive investigation into the causes of begging and the links between begging, homelessness, poverty, drugs and crime be given to the appropriate parliamentary committee, with a view to formulating a just and comprehensive solution. The Final Report recommends that the offence of begging be retained through re-enactment in the Summary Offences Act, pending the outcome of such investigations.
It appears from the Final Report that the Committee was significantly influenced by the uncorroborated evidence of its Chairman, the Hon Chris Strong MLC. The Chairman gave evidence to the effect that, in the United Kingdom, there is a significant correlation between begging and crime and argued that the incarceration of beggars is likely to lead to a reduction in other crimes: 'cleaning these people off the streets has had quite a dramatic effect on all their other crime stats'.
The Committee countenanced that the offence of loitering may be open to misuse, may be used disproportionately against the homeless, and may be incompatible with fundamental human rights principles. In light of this, the Final Report recommends that the offence of 'loitering with intent' be re-enacted in the Summary Offences Act to require, in addition to loitering, the performance of an act with the intent to commit an indictable offence.
The government is in the process of preparing a response to the Commit tee's Final Report. • PL
A report produced by the Homeless Persons' Legal Clinic has found that discrimination against people who are homeless, unemployed or social security recipients is widespread in Victoria. The report, titled 'Promoting Equality: Homeless Persons and Discrimination', states that such discriminatory treatment has a damaging and costly impact on the individuals concerned and the community as a whole.
The report is endorsed by an alliance of individuals and organisations including the Law Institute of Victoria, the Victorian Bar Council, the Council to Homeless Persons, the Federation of Community Legal Centres, Anglicare, St Vincent de Paul Society, Salvation Army Adult Services, Liberty Victoria, the Victorian Council of Social Services, Felicity Hampel SC, Chris Maxwell QC, the Reverend Tim Costello, the Reverend Ray Cleary, Alexandra Richards QC and Julian Burnside QC.
Discrimination against the homeless, the unemployed and social security recipients is currently lawful in Victoria.
This is inconsistent with international human rights law, anti-discrimination developments overseas, progressive public policy and the Victorian Government's stated law reform objectives.
The report recommends that the Equal Opportunity Act be amended to prohibit discrimination on the basis of social status, including status as a homeless person, an unemployed per son or a social security recipient. The report argues that the homeless, the job less and social security recipients should enjoy the same freedom from unwarranted discrimination as people with homes, jobs and means. They should be afforded equality before and under the law. Reform is imperative to protect some of the most marginalised and vulnerable members of our com munity from unfair, unjust or less favourable treatment. • PL
On 28 August 2002, the Law Reform Commission of Western Australia launched its Aboriginal Customary Laws reference. The reference asks the Commission to examine Aboriginal customary laws, principles and prac tices in the criminal (including domestic violence) arena, as well as the civil arena in the areas of personal property, inheritance, contractual arrangements, torts and domestic relations. The reference is intended to advise government on whether the Western Australian legal system should recognise the existence of Aboriginal Customary Law and take it into account in its application of Western Australian law as well as in the processes and procedures of courts and government agencies.
From the outset, the project has had a strong Aboriginal voice. Mick Dodson and Beth Woods have been appointed as Special Commissioners. Further, an Aboriginal Reference Council with members drawn from different regions of Western Australia has been appointed to advise the project team on cultural protocols and other matters. The project will begin shortly, with pre-consultation visits to suburban, regional and remote Aboriginal communities to provide information about the project and seek permission to talk to members of communities and record cultural information. A special archiving system will be set up to ensure that Aboriginal people do not lose control or ownership of their information and to further ensure that access to the information is limited along cultural lines. The project is expected to take up to three years to complete and will build significantly on the ALRC's Report 31, 'The Recognition of Aboriginal Customary Laws', completed in 1986. • TH
DownUnderAllOver was compiled by Alt.LJ committee members Stephen Bouwhuis, Tatum Hands, Philip Lynch, Graeme Orr and Peter Wilmshurst together with invited writers listed under their items above.