Melbourne University Law Review
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Melbourne University Law Review |
|
In 1865 a rebellion broke out in the British colony of Jamaica which the Governor, Eyre, brutally put down. One Phillips, claiming to have been wrongfully detained and flogged, brought an action in England against Eyre for assault and false imprisonment. An Act[1] passed by the Jamaican legislature following the suppression of the rebellion provided indemnity to Eyre (and others) for all acts done to end the rebellion and declared those acts to have been lawful. Eyre asserted this Act of indemnity as his defence. The Exchequer Chamber upheld the defence, and in a judgment delivered by Willes J the famous two-limbed rule in Phillips v Eyre was formulated:
As a general rule, in order to found a suit in England for a wrong alleged to have been committed abroad, two conditions must be fulfilled. First, the wrong must be of such a character that it would have been actionable if committed in England ... Secondly, the act must not have been justifiable by the law of the place where it was done.[2]
The legacy of this 19th century rule extended into 20th century Australia.[3] Although in terms limited to suits brought in England, the extension of the rule into the law elsewhere necessitated that it be generalised, and, in simplified form, it required that the defendant’s acts must be ‘actionable’ by the law of the forum[4] and ‘not justifiable’ by the law of the place where the wrong was committed.[5] Although in terms limited to foreign[6] torts, the rule was readily accepted into Australian law for applicability to intranational torts.[7] In a celebrated statement Windeyer J described the component law areas of Australia in this fashion: ‘The States are separate countries in private international law, and are to be so regarded in relation to one another.’[8] In Breavington v Godleman,[9] in an action brought in Victoria for a tort committed in the Northern Territory, a majority of the High Court[10] held that the governing law should be the law of the Northern Territory. For a time following, this 1988 decision was heralded as killing off the rule in Phillips v Eyre for intranational torts in favour of a lex loci delicti choice of law rule.[11] But the heralds were wrong. In 1991 a majority of the High Court in McKain,[12] fastening upon the absence of uniformity of reasoning in the majority judgments in Breavington,[13] reasserted the rule in Phillips v Eyre, but in a reformulated version, as applicable to govern rights and liabilities in regard to intranational torts:
A plaintiff may sue in the forum to enforce a liability in respect of a wrong occurring outside the territory of the forum if — 1. the claim arises out of circumstances of such a character that, if they had occurred within the territory of the forum, a cause of action would have arisen entitling the plaintiff to enforce against the defendant a civil liability of the kind which the plaintiff claims to enforce; and 2. by the law of the place in which the wrong occurred, the circumstances of the occurrence gave rise to a civil liability of the kind which the plaintiff claims to enforce.[14]
The same majority repeated this view of the law two years later.[15] The High Court declined opportunities to reconsider it in at least two cases over the ensuing years.[16] This background, together with the departure from the rule in Phillips v Eyre in both the United Kingdom[17] and Canada,[18] set the stage for Pfeiffer and, finally, the killing off of this ‘Ned Kelly’[19] of Australian conflict of laws.
The applicant–defendant John Pfeiffer Pty Ltd (‘John Pfeiffer’) had its principal business office located in the Australian Capital Territory. The respondent–plaintiff, Rogerson, a resident of the ACT,[20] was employed by John Pfeiffer as a carpenter to work on building projects. While carrying out his employment duties at a location in New South Wales, Rogerson suffered personal injuries. He sued John Pfeiffer in the Supreme Court of the ACT, framing his action in tort. We therefore have a situation where the claim is being heard and determined in a jurisdiction (the ACT) different from the place where the facts giving rise to the claim took place (NSW). In keeping with the conventional conflict of laws terminology, the forum was situated in one law area and the place of the tort in another. Because, relevantly, different laws applied in each jurisdiction, the need arose to determine which law would apply to govern Rogerson’s right to receive compensation for his injuries and John Pfeiffer’s corresponding liability to pay for them.
The relevant difference in laws arose because the Workers Compensation Act 1987 (NSW) contained provisions which restricted in a number of ways a court’s capacity to award damages in respect of workplace injuries.[21] There were no similar legislative restrictions in place in the ACT. Assuming liability on the part of John Pfeiffer,[22] the parties were agreed that, if ACT law applied, damages would be assessed in accordance with common law principles in the sum of $30 000. But, if NSW law governed the assessment of damages, the application of the legislative restrictions would result in a lesser amount being awarded.
To provide some particularity, the legislative restrictions included, in respect of damages for non-economic loss, the establishment of a formula for calculating such damages, the setting of a maximum or ‘statutory cap’ on the amount of such damages, and the setting of a minimum or ‘statutory floor’ below which no such damages would be awarded.[23] In respect of damages for economic loss, the legislation imposed a condition, the suffering of serious injury or death, on the award of such damages.[24] Restrictions of a similar nature in other NSW legislation[25] had been considered some years earlier by the High Court in the Stevens case.[26] The relevant issue in Stevens was whether restrictions of this type ought to be characterised as, on the one hand, substantive or, on the other hand, procedural in nature. It is well established in conflict of laws that a court applies its own procedural laws to cases being litigated before it and ignores the procedural laws of other jurisdictions.[27] It was held in Stevens, by majority, that the NSW legislative restrictions at issue in that case were properly characterised as procedural.[28] Because the forum for the plaintiff’s litigation had been the District Court of Queensland, it was further held in Stevens that the NSW legislative restrictions had no application to the determination of the plaintiff’s damages in that case.
In Pfeiffer the Master of the ACT Supreme Court,[29] the Full Court of the ACT Supreme Court[30] and a five-judge bench of the Full Court of the Federal Court of Australia[31] were all of the view that the Stevens holding bound them to rule that the legislative restrictions contained in the Workers Compensation Act 1987 (NSW) were procedural laws of NSW and therefore not to be taken into account by the ACT Supreme Court in assessing Rogerson’s damages. John Pfeiffer, in what was ‘as plain as a pikestaff’[32] a direct challenge to Stevens, sought from the High Court special leave to appeal.[33] This application, when first brought on for hearing in the ordinary way,[34] was adjourned at the instance of the usual small panel of Justices so that it could be heard by an enlarged bench. The application for special leave was then fully argued over two days[35] before the seven Justices of the High Court. The Attorneys-General of the Commonwealth and all the States and Territories intervened and made submissions. The High Court granted special leave to appeal in a unanimous decision, and then allowed the appeal. The legislative restrictions contained in the Workers Compensation Act 1987 (NSW) were held to be part of the substantive law of NSW. The substantive law of NSW, as the place of the accident, was held to be the sole law governing the rights and liabilities in tort of Rogerson and John Pfeiffer.[36] The matter was remitted to the Master of the ACT Supreme Court for the assessment of damages pursuant to the requirements of the Workers Compensation Act 1987 (NSW).
Three judgments were delivered in the High Court. The discussion which follows concentrates on the joint judgment of Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ,[37] with references to the judgments of Kirby J[38] and Callinan J[39] as are appropriate in the context of the discussion.
Although strictly speaking unnecessary to the resolution of the appeal,[40] it will be for its revamping of the Australian common law rule on choice of law in tort that the Pfeiffer case will be remembered. Accordingly, this note is primarily directed to that aspect of the case, and the bulk of analysis and discussion relates to it. The important caveat is that only the situation of an ‘intranational tort’[41] is authoritatively addressed by the case. The joint judgment at its very outset, in a one-paragraph section headed ‘The issue’, states this directly:
[The issue is whether] the court should reformulate the principles that govern how a claim in tort, brought in the courts of one Australian jurisdiction ... should be determined when some (or, in this case, all) of the relevant facts occurred in another Australian jurisdiction ...[42]
This is almost immediately followed by an express statement that issues which might arise in an international context are put ‘entirely to one side’.[43]
In Pfeiffer the High Court overturned pre-existing understandings of the common law choice of law rule to be applied in intranational tort cases. The common law is developed to the point where it can now be stated with certainty that the law of the place of commission of the tort is the law to be applied by Australian courts to determine all questions of substance in a proceeding arising from an intranational tort.[44] To quote directly from the joint judgment, ‘the lex loci delicti is the governing law with respect to torts committed in Australia but which have an interstate element’.[45] We have now a single, uniform rule for intranational torts, to be applied in cases of both federal and non-federal jurisdiction.
Several strands of reasoning coalesce in the joint judgment to produce this development of common law.
The judicial power of the Commonwealth is vested in the High Court of Australia, such other federal courts as Parliament creates, and such other courts as Parliament invests with federal jurisdiction.[46] A court exercising the judicial power of the Commonwealth exercises ‘federal jurisdiction’: ‘[A]ll that is meant by saying that a court has federal jurisdiction in a particular matter is that the court’s authority to adjudicate upon the matter is a part of the judicial power of the federation.’[47] The Federal Court of Australia[48] and the Family Court of Australia[49] exercise federal jurisdiction as creations of the Parliament. However, the Australian Constitution envisaged and indeed intended[50] ‘other’, that is, State, courts being invested with federal jurisdiction, this economical device[51] allowing for the efficient use of judicial resources.[52]
The intention was carried into effect by s 39 of the Judiciary Act 1903 (Cth).[53] Relevantly, State courts were deprived of State jurisdiction, but invested with federal jurisdiction, over matters between residents of different States.[54] It takes little reflection to realise that these will be not uncommon situations giving rise to intranational torts. As remarked upon in Pfeiffer, the increased mobility of persons, goods and services within Australia, facilitated by modern technological developments in travel and communications, was bound to increase substantially the number of torts having a connection with more than one law area of Australia.[55] The joint judgment notes that instances of federal jurisdiction ‘are being heard in increasing numbers not only in the federal courts but in the courts of the States’.[56]
The logical outcome is that, when a matter is decided in the exercise of federal jurisdiction, the court deciding the matter does so as part of an ‘integrated judicial system’:
[W]hen matters fall for determination in the exercise of the judicial power of the Commonwealth, they fall for determination by courts in an integrated Australian legal system, comprised of federal courts created by the Parliament and State courts invested with federal jurisdiction, with [the High] Court at its apex.[57]
Accordingly, the court exercises a jurisdiction which extends throughout Australia. While this is plain in regard to the High Court and other federal courts, it is true also of State courts when exercising federal jurisdiction. The ‘autochthonous expedient’[58] to the creation of an American-style network of federal courts, that is, the investing of State courts with federal jurisdiction, ought not to mask the national character of that jurisdiction.[59] In this way, ‘State Supreme Courts have a role and existence that transcends their status as courts of the States.’[60] It follows that the relevant law area for a State court when exercising federal jurisdiction is Australia rather than the particular State.[61]
Taking all this into account, it is fair to say that, when an intranational tort case is litigated in a court exercising federal jurisdiction, the law area and the judicial system are for these purposes national in character and scope. It would be incongruous for the outcome to depend upon the particular venue of the court. Gaudron J pointed this out in Mewett.[62] Yet, continued applicability of the rule in Phillips v Eyre, or more precisely its McKain reformulation, leaves such a result very open indeed. This is because the court exercising federal jurisdiction will ‘pick up’ that rule[63] and, applying the first limb, take into account the law of the State or Territory in which the court is sitting. Quite apart from the potential for attempted manipulation,[64] the joint judgment in Pfeiffer rightly perceived that it would be ‘odd or unusual’[65] for ‘the existence, extent and enforceability of the rights and obligations of the parties [to be] affected significantly by where the court [exercising federal jurisdiction] sits’.[66]
All of this favours a solution whereby the rule picked up by force of the Judiciary Act 1903 (Cth) is one which is not forum-biased, that is, which does not direct attention to the law of the place where the court happens to be sitting. This would dispense with any dispositive influence of the lex fori. It remains to note that the issues in Pfeiffer arose in federal jurisdiction because, at the hearing before the Master, a question arose under the Australian Constitution.[67]
Within the field of conflict of laws, a sense of Australian nationhood came somewhat belatedly to the Australian judiciary. The view that choice of law within the Australian federation might not necessarily be equivalent to choice of law between independent sovereign states in the international sense was not without recognition in the first half of the 20th century.[68] However, the prevailing view in 1964 was, as we have already seen, to regard the Australian States as ‘separate countries’ in relation to one another.[69] A majority of the High Court adhered to this vision of Australia even into the final decade of the 20th century:
To describe the States, as Windeyer J once described them, as ‘separate countries in private international law’ may sound anachronistic. Yet it is of the nature of the federation created by the Constitution that the States be distinct law areas whose laws may govern any subject matter subject to constitutional restrictions and qualifications. The laws of the States, though recognized throughout Australia, are therefore capable of creating disparities in the legal consequences attached in the respective States to the same set of facts ... That may or may not be thought to be desirable, but it is the hallmark of a federation as distinct from a union.[70]
But a strong view to the contrary appeared in Australia’s bicentennial year of 1988. This was perhaps most powerfully and eloquently developed by Deane J in Breavington.[71] Oft quoted is this passage from Mason CJ’s judgment:
Australia is one country and one nation. When an Australian resident travels from one State or Territory to another State or Territory he does not enter a foreign jurisdiction. He is conscious that he is moving from one legal regime to another in the same country and that there may be differences between the two which will impinge in some way on his rights, duties and liabilities so that his rights, duties and liabilities will vary from place to place within Australia.[72]
With this ‘perception of a fundamental constitutional truth, namely, the essential unity of Australia’,[73] attention turned to the possibility that the Australian Constitution might have a role to play in resolving choice of law issues which were confined to the intranational sphere.
The focus of this attention was s 118 of the Australian Constitution: ‘Full faith and credit shall be given, throughout the Commonwealth to the laws, the public Acts and records, and the judicial proceedings of every State.’
Divergent views emerged as to whether s 118 should be regarded as ‘the solvent of interstate conflicts’.[74] On one view, in the words of Dawson J in Breavington,
the requirement that full faith and credit be given to the laws of a State, statutory or otherwise, throughout the Commonwealth, affords no assistance where there is a choice to be made between conflicting laws. Once the choice is made, then full faith and credit must be given to the law chosen but the requirement of full faith and credit does nothing to effect a choice.[75]
On this view, s 118 could operate to prevent an Australian court, on public policy grounds,[76] from refusing to apply or to give effect to the statutory law of another Australian State. This limited view of s 118 found expression in the High Court well prior to 1988.[77] That s 118 did indeed operate (at least) to that extent was endorsed by the High Court in Breavington[78] and again in McKain.[79]
A second view gave to s 118 a considerably more substantive effect — one which mandated a change to the common law choice of law rule in tort so far as it concerned intranational torts. The argument, as developed by Wilson and Gaudron JJ in Breavington,[80] went somewhat as follows. At Federation the Australian Constitution, by ss 106, 107 and 108, continued the Constitutions, powers and laws of the States, subject to the Australian Constitution. Section 118, being absolute in terms, thereby prevailed over State laws and law-making powers such that it could be a source of displacement of the law of the forum State, where necessary, to ensure that ‘one set of facts [did not give] rise to one legal consequence by operation of one State law and another legal consequence by operation of another State law’.[81] The only means to achieve that end was for any Australian court faced with this situation always to apply the law of the place where the events occurred, in order to determine the legal consequences of the tortious conduct. This, it can be seen, would produce a rule that the lex loci delicti governed in the case of intranational torts. The rule would be produced by s 118, not by ‘immediate operation’,[82] but consequentially and indirectly[83] by ‘dictat[ing] a consequence to which State choice of law rules must conform’.[84]
These opposing views expressed in Breavington have been subjected to much analysis and discussion,[85] and it is unnecessary here to go over that old ground. As a matter of authority, resolution[86] came via the judgment of Mason CJ and the joint judgment of Brennan, Dawson, Toohey and McHugh JJ in McKain.[87] Section 118 had no substantive effect (beyond the limited negative one mentioned above)[88] in determining the applicable law to govern the rights and liabilities of parties in intranational tort litigation. The debate did not disappear, however. In McKain Deane and Gaudron JJ maintained the views each had expressed in Breavington.[89] But significantly, even following McKain, both their Honours in Stevens continued to assert those views,[90] citing their obligations as High Court Justices to adhere, even in the face of contrary majority pronouncements of the Court, to their own understandings of the requirements of the Constitution on matters of fundamental constitutional importance.[91] In Thompson v Hill Kirby ACJ indicated strongly his preference for the ‘compelling dissenting opinions’[92] in the High Court on the s 118 issue. As late as 1996 the Chief Justice of the Supreme Court of Western Australia felt able to refer to the ‘lingering uncertainties’[93] concerning the issue. Hope had been expressed that the High Court would effect a reconsideration.[94]
It appeared that Pfeiffer would provide the realisation of that hope. Such an indication was given at the initial special leave application,[95] and the joint judgment informs us that the parties had indicated before the Master of the ACT Supreme Court that the case ‘was in the nature of a test case to determine whether s 118 of the Constitution require[d] that the law to be applied in the assessment of ... damages [was] that of New South Wales rather than that of the Australian Capital Territory’.[96] However, the High Court in the end opted not to take this test. Indeed, what were relatively clear waters may have been muddied. The joint judgment states that it ‘may well be’[97] that s 118 operates to deny State courts the power to call upon public policy as a basis for refusing to apply the statute law of another State,[98] and further suggests that s 118 might be directed more towards acknowledging State territorial competence over what goes on within its own borders.[99] Perhaps one must be careful not to read too much into this, especially in light of the remarks made subsequently outside the constitutional context:
[C]onsistent with federation, why should questions of public policy ... arise in considering whether a rule enacted by the statute of another integer of the federation should be given effect? How can the courts of one State or Territory say of the laws of another State or Territory in the same federal nation that those laws violate fundamental principles of justice or the like?[100]
Still, with all the debate concerning what, if any, substantive operation exists for s 118, it is odd that the judges seem to go out of their way to create further uncertainty concerning this provision.
Instead of s 118, the Court looked at a different constitutional door, one opened wide in Lange v Australian Broadcasting Corporation:
Of necessity, the common law must conform with the Constitution. The development of the common law in Australia cannot run counter to constitutional imperatives. The common law and the requirements of the Constitution cannot be at odds.[101]
If the common law, as understood, is found not to conform with a constitutional requirement (which can be express or implied), then to that extent the common law will be developed to ensure that it does so conform.[102] Perhaps the leading example of an implied constitutional requirement is the implied protection of freedom of political discourse or communication.[103] As is well known, this caused the High Court in Lange unanimously to develop the common law of defamation to create an extended form of qualified privilege which could serve as a defence to defamation in respect of disseminations to a large audience[104] of ‘information, opinions and arguments concerning government and political matters that affect the people of Australia’.[105]
Did the High Court in Pfeiffer go through this constitutional door? This is not as clear as one might think on an initial reading. On the one hand, the joint judgment, immediately following a reference to the development of the common law in Lange, states: ‘So, too, the common law with respect to the choice of law rule for tort should be developed to take into account various matters arising from the Australian constitutional text and structure.’[106] Reference is then made to five matters:[107] the existence and scope of federal jurisdiction; the position of the High Court as ultimate court of appeal; the impact of ss 117[108] and 118 of the Australian Constitution in regard to a public policy exception to choice of law in tort;[109] the predominant territorial concern of State and Territory statutes; and the nature of the federal compact. The joint judgment then proclaims that these matters ‘require that a somewhat different approach now be adopted with respect to Australian torts which involve an interstate element.’[110] All of this is suggestive of a constitutional imperative derived from its text and structure with which the common law choice of law rule must conform, such that if the McKain reformulation of the rule in Phillips v Eyre did not conform a different rule would need to be developed. The joint judgment expressly states that the five matters listed above ‘favour the adoption of a single choice of law rule consistently in both federal and non-federal jurisdiction in all courts in Australia’.[111]
Note, however, the change of language from the mandatory ‘require’ to the persuasive ‘favour’. More significantly, there is this statement in the joint judgment:
The matters we have mentioned as arising from the constitutional text and structure may amount collectively to a particular constitutional imperative which dictates the common law choice of law rule which we favour. It may be that those matters operate constitutionally to entrench that rule, or aspects of it concerning such matters as a ‘public policy exception’.[112]
The clear import is that the joint judgment steps back from the Lange constitutional door. That this is so appears confirmed by the fact that the joint judgment does not undertake the process followed by the Court in Lange as a precursor to concluding that there existed a lack of conformity between the Constitution and the common law of defamation as it had been understood, requiring consequent development of the common law. In the context of Lange, those questions were:
First, does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect? Second, if the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government ...[113]
The Court in Lange made it plain that ‘law’ included the common law.[114] Adapting the process to choice of law in the case of intranational torts, we find not only, as noted above, that the joint judgment fails to find a constitutional requirement which is ‘burdened’ by the rule in Phillips v Eyre, but also that the second question is not explored to determine whether there is some legitimate end to be served by a rule which gives both the lex fori and the lex loci delicti influence in the determination of the rights and liabilities of the parties. At least, there is no exploration of this issue in the context of a constitutional analysis of the problem.[115]
In the result, the conclusion is that the joint judgment refrains from providing a constitutional solution. There is no holding that the Australian Constitution mandates, either by s 118 or as a matter of implication from the constitutional text and structure, that the common law choice of law rule for intranational torts must be developed and adapted to achieve conformity. Undoubtedly, this reticence is derived from a recognition that a constitutional imperative would of necessity abrogate legislative power to amend any such common law choice of law rule.[116] It would ‘[define] an area of immunity which [could not] be infringed by a law of the Commonwealth, a law of a State or a law of [a Territory]’.[117]
Nevertheless, the High Court in Pfeiffer did develop the common law in a substantial way. This is notwithstanding, on the one hand, this common law rule’s long history going back to 1870[118] and its acceptance as part of Australian law for the better part of half a century[119] and, on the other hand, its reaffirmation in the High Court less than 10 years previously.[120] Of course, it is well known that the rule in Phillips v Eyre as reformulated by the High Court in McKain had attracted scorching criticism. Both Kirby J[121] and Callinan J[122] referred to the critiques in their reasons, but in what appears, with respect, to be an interesting exercise in ‘judicial comity’[123] the joint judgment eschews any such reference. Rather, their Honours content themselves with the observations that McKain and Stevens predated Lange and, therefore, the arguments based on Lange had not been put in those cases;[124] that in neither McKain nor Stevens had it been a live issue whether the law of the forum had a role to play in the liability of the defendants;[125] and that neither Koop v Bebb nor McKain nor Stevens had been matters in federal jurisdiction.[126] Their Honours further observed that little attention had been given in any of the major High Court authorities to the significance of applicable law in matters involving federal jurisdiction.[127]
In regard to the first, although the observation is clearly correct, one might query its significance in light of the discussion above to the effect that, ultimately, the joint judgment did not hold, in the circumstances as a matter of constitutional law, that Lange required common law development to occur. As for the third, while substantially correct,[128] especially in the aspect that federal jurisdiction had not received much attention in the past, on its face this point bolsters only the argument that federal jurisdiction matters ought to be determined without any significant influence being given to the law of the component part of the Australian federation which happens to supply the venue for the litigation.
It is the second observation which bears closer examination, not least because it is relied upon to assist the majority in the crossover from federal jurisdiction to non-federal jurisdiction matters and the consequent development of a single rule to apply to all intranational torts. The point which the joint judgment seeks to make, to use McKain as the example, is that choice of law was not a live issue in that case. The plaintiff had been injured in South Australia and had initiated proceedings in New South Wales. The defendant argued that, because the limitation period under South Australian law had expired, there was an unanswerable defence to the plaintiff’s claim.[129] There had been no suggestion that South Australian law, as the lex loci delicti, did not apply, and no question arose as to whether the law of New South Wales, as lex fori, did or did not apply. The only question was, in accordance with accepted understandings of the applicability of substantive and procedural laws, whether the South Australian limitation law was substantive in nature, in which case it would apply to bar the plaintiff’s claim, or whether it was procedural in nature, in which case it would be ignored by the forum court. The reformulation of the rule in Phillips v Eyre, according to this argument, was non-binding obiter. Indeed, it was said that the decision by five Justices of the Court in Breavington[130] to apply only the lex loci delicti on the facts of that case had authoritatively decided the choice of law question.
It is true that this was the view asserted by the three dissenting judges in McKain.[131] It can also be conceded that the finding that the South Australian limitation law was procedural and thus inapplicable in a New South Wales court meant that the defendant’s argument could be disposed of against it. But it is equally true that the judgment of Brennan, Dawson, Toohey and McHugh JJ treated the question of the applicable common law rule as an integral part of its reasoning. The majority declared at the outset:
To answer the question whether the plaintiff’s action in the Supreme Court of New South Wales is barred by a South Australian Act, it is necessary to consider three issues: 1. What is the system of law by reference to which the Supreme Court of New South Wales is to determine the question? 2. What is the content of the applicable law? 3. What effect does the applicable law attribute to the South Australian statute of limitations?[132]
It was in answering this second ‘necessary’ question that the majority reformulated the rule in Phillips v Eyre to produce what became the familiar McKain version.
Furthermore, even Deane J in dissent gave the question authoritative status. Although stating that the central issue was whether the South Australian limitation law was substantive or procedural,[133] his Honour remarked that the common law had adopted a conventional position on that issue when it arose in a choice of law context. The rejection of the view that the rule in Phillips v Eyre applied in intranational torts, however, opened the way for a reconsideration of the substance–procedure question regarding limitation laws and intranational torts.[134] The latter issue could be considered divorced from the choice of law field. This was consistent with established learning that the answer to any substance–procedure question might vary with the purpose for which that question was being asked.[135] In this way, it can be seen that Deane J also, although in a different fashion from the majority judges, saw an intimate and necessary connection between the choice of law issue and the resolution of the question which arose in McKain. It was, therefore, a live issue in McKain. Consequently, and with respect, the McKain reformulation of the rule in Phillips v Eyre is not as easy to dismiss as the joint judgment in Pfeiffer would have it believed.
When all is said and done, it can be seen that the joint judgment chooses to make federal jurisdiction the convenient linchpin for reforming the common law generally. Their Honours, with justification, could see no reason for different approaches to be taken depending upon whether a matter arose in federal or non-federal jurisdiction:
Ordinarily, the question whether a matter falls within federal jurisdiction will depend on the identity of the parties or their State of residence, not the events which are said to give rise to tortious liability. For example, the rights of a plaintiff who is struck by a motor vehicle should not differ according to whether it was driven by an employee of the Commonwealth or by a private individual. So, too, they should not differ according to whether it was driven by a person resident in the same State or by a person resident in a different State.[136]
The rights and liabilities of the parties should not depend on fortuitous matters such as these — nor, it might be added, upon the ‘bootstrap’ convenience of federal jurisdiction which presented in Pfeiffer itself. One will recall that federal jurisdiction was attracted only, we are told, because a question arising under the Australian Constitution arose before the Master of the ACT Supreme Court.[137] The joint judgment informs us that before the Master ‘the case was in the nature of a test case’[138] to determine the applicability of s 118 of the Constitution. It does not seem that the Master was presented with much of a test. There is little in his decision to indicate the nature or strength of arguments, if any, put to him on this point. What little he said on the topic seemed to be nothing more than a brief recounting of the fact that it had in the past been argued that s 118 precluded the application of the rule in Phillips v Eyre to intranational torts, and that that argument had not found sufficient favour.[139] There is nothing of a constitutional nature raised in either the appeal to the Full Court of the ACT Supreme Court[140] or the further appeal to the Federal Court of Australia.[141] For rights and liabilities of the parties to depend on so flimsy an edifice would be an affront to justice and common sense.
Having examined the route followed by the joint judgment, it remains to say something about the destination reached. The substantive rights and liabilities of the parties to an alleged intranational tort are to be governed by the lex loci delicti — the law of the place where the alleged tort occurred.[142] In ruling this way, their Honours opted for the territorial solution, for a fixed rather than flexible connecting factor and to a universal solution which admits of no exception. Three reasons of a positive nature are put forward for this stance.
It is said that application of the lex loci delicti gives effect to the reasonable expectations of the parties.[143] Their Honours state:
The chief theoretical consideration in favour of applying the law of the place of commission of the tort to decide the substantive rights of the parties (at least in intranational torts) is that reliance on the legal order in force in the law area in which people act or are exposed to risk of injury gives rise to expectations that should be protected.[144]
La Forest J in the Supreme Court of Canada, writing the lead judgment in Tolofson (a case much relied upon in Pfeiffer), made much the same point.[145] Although the joint judgment in Pfeiffer does not cite it,[146] the flavour of this message is encapsulated in remarks of Mason CJ in Breavington.[147] Having declared Australia to be ‘one country and one nation’, the former Chief Justice referred to the Australian resident who travels from one State or Territory to another:
He is conscious that he is moving from one legal regime to another in the same country and that there may be differences between the two which will impinge in some way on his rights, duties and liabilities so that his rights, duties and liabilities will vary from place to place within Australia. It may come as no surprise to him to find that the local law governed his rights and liabilities in respect of any wrong he did or any wrong he suffered in a State or Territory. He might be surprised if it were otherwise.[148]
With all due respect, this is just assumption and speculation, and people’s intuitions about human behaviour can easily differ.[149] In any event, what hypothetical members of the public might think could be quite wrong. Writing editorially, Justice Young of the NSW Supreme Court related his ‘summer holiday on the Gold Coast’ anecdote:
[A] New South Wales policeman told me that it amuses him when he is chasing an offending motorist in the far north of the State that the motorist speeds up and crosses the State border and thinks himself safe, but sees the policeman cross the border and continue the pursuit. The American comics which doubtless were instrumental in forming the motorist’s view of the law did not mention that in Northern New South Wales and Southern Queensland, police are sworn in as Special Constables of the adjoining State.[150]
With respect to the material question of choice of law, I would hazard a guess that Mason CJ’s travelling Australian resident, whatever ‘he’ might think about local laws, would be very surprised to discover that a court of one Australian State or Territory would even conceive of applying the law of some other State or Territory. My experience in teaching conflict of laws shows that even law students take some time to wrap their minds around this notion, so I think I am on safe ground in making my assumption. But my point is that the exercise is fruitless. With respect, La Forest J had it right earlier in his judgment when he observed in respect of the choice of law rules that had developed over the 20th century:
At ... times, they seem to be based on the expectations of the parties, a somewhat fictional concept ... The truth is that a system of law built on what a particular court considers to be the expectations of the parties ... without engaging in further probing about what it means by this, does not bear the hallmarks of a rational system of law.[151]
The second justification asserted for a lex loci delicti rule is that it reflects the fact that intranational torts are committed within a federation.[152] Account is taken of this fact by recognising the predominant territorial concern of State and Territory legislation:
[I]n a federal system, a choice of law rule which proceeds on the footing that the predominant concern of State and Territory legislatures is with acts, matters and things in their respective law areas strikes a balance between the interests of those several legislatures whose laws may be involved in a particular dispute.[153]
This notion resonates with that put forward by Deane J in Breavington.[154] But Deane J did not insist that this inevitably required the application of the lex loci delicti. Rather, his Honour recognised that in some circumstances the court would be searching for the State or Territory with the ‘predominant territorial nexus’.[155] The predominant territorial legislative competence of a State or Territory over conduct within it was qualified by the recognition that there might exist ‘some overriding territorial nexus’[156] with another State or Territory.
Legislation restricting awards of common law damages, of the sort at issue in Pfeiffer and in Stevens,[157] calls into question a lex loci delicti rule grounded in territorial concerns. Such legislation is unlike, say, no-fault accident compensation schemes of the type arising in the facts of Breavington[158] and Tolofson,[159] which can be seen as manifestations of a legislative policy that, within the territory, negligence is to be rejected in favour of need as the basis for compensation for personal injuries suffered as a result of activity within the territory. It is also unlike the ‘gratuitous passenger’ legislation,[160] also arising in Tolofson,[161] which lays down a standard of conduct to be observed and where the law area has a legitimate interest in seeing its standards observed.[162] In contrast, legislation restricting damages is aimed at protecting the interests of the compulsory insurer or similar body which is charged with actually paying out to the injured person. This is to ensure not only that these bodies remain solvent and able to meet the cost of claims, but also that they may use their funds to provide social benefits to the community.[163] In these circumstances, it is by no means obvious why any other body or insurer should get the benefit of such protective legislation simply because a motor vehicle registered and/or insured in another State or Territory is driven negligently while in the State of South Australia and personal injuries result. Judicial puzzlement of a similar nature has been expressed in reference to NSW legislation. As part of a strategy to make funds available to more severely injured persons, this legislation had been enacted to make the scheme operating under it affordable. The means of doing so was to impose the burden of affordability on those who suffer relatively minor injuries:
How that objective applies to a single vehicle accident in which a person not resident in New South Wales was injured by an out of State registered vehicle insured by an out of State insurer may seem to be a difficult question to answer, but I assume, as the parties have done, that such an insurer may in New South Wales, had action been brought there, claim the benefit of the limited payout intended for insurers registered under the Act in respect of New South Wales registered vehicles.[164]
The third basis put forward in favour of an inflexible lex loci delicti rule for intranational torts is that such a rule provides the important practical advantages of certainty and predictability.[165] There are two aspects to this claim.
One is that any alternative rule would be inappropriate. Reference is made in the joint judgment to the American experience with a ‘proper law of the tort’ theory or ‘governmental interest analysis’ or any of a number of other approaches or variations which are used by the courts[166] or written about in the rich literature on the subject.[167] Their Honours recoil at the ‘very great uncertainty’[168] which results.
But the opposite of ‘certainty and predictability’ does not have to be ‘very great uncertainty’. Nor does ‘flexibility’ have to be synonymous with ‘very great uncertainty’. English law lived with a measure of flexibility built in to the common law for decades[169] and has now entrenched that flexibility[170] in statute.[171] Prior to that occurring, the Privy Council, while rejecting a proper law of the tort approach as introducing too much (compare with ‘very great’) uncertainty, still saw the benefits of not moving to the other extreme:
Their Lordships ... recognise the conflict which exists between, on the one hand, the desirability of a rule which is certain and clear on the basis of which people can act and lawyers advise, and, on the other, the desirability of the courts having the power to avoid injustice by introducing an element of flexibility into the rule. They do not consider that the rejection of the doctrine of the proper law of the tort ... is inconsistent with a measure of flexibility being introduced into the rules.[172]
Lest it be thought that this overlooks the federal nature of Australia, it is noted that the ALRC, being well conscious of the advantages of certainty and predictability[173] and of the different international and intranational contexts, nevertheless recommended displacement of the lex loci delicti if a heavy onus could be discharged to demonstrate that there was a ‘substantially greater connection’ with a place other than where the tort occurred.[174] The ALRC further recommended that, in the intranational tort situation, the purpose and object of legislation should be taken into account in this process.[175] The ALRC noted the overwhelming support for a rule which, through a ‘heavy loading’ in its favour, provided the benefits of certainty and predictability, but left room for departure where there were ‘strong and compelling reasons’ for doing so.[176] Others have taken the same view more recently.[177]
The joint judgment, in criticising a proper law of the tort approach which permits courts to choose a governing law based on analysis of significant connections, quotes approvingly the remarks of Kahn-Freund:
There is no ultimate distinction between a connecting factor which is ‘significant’ and one which is ‘accidental’. This is a matter of impression, of feelings, one might almost say an aesthetic matter which defies rational argument for or against. A discussion of the virtues of connecting factors such as ‘place of act’, ‘place of injury’, ‘common domicil or residence or nationality of parties’, etc, is possible, but not in terms of deductive reasoning. There are only two methods of argument open to those who participate in such debates: one is the argument of tradition, the other is the argument of expediency.[178]
But, six years later, the same eminent author’s tune had changed:
The softening of connecting factors started in the law of contract, but in our time it spread far beyond it ... The mobility of persons, above all the evolution of transport, and the creation of new media of communication have made it impracticable to use the locus delicti as a universally applicable connecting factor to determine the law governing delictual liability. In many, indeed in most, cases it will still be something to fall back upon in order to find the law governing the issue of liability ... But it is now recognised in most countries that the place where the accident happens may be as co-incidental as the locus contractus, and that it may be as necessary to resort to a ‘proper law of the tort’ as it is to resort to a ‘proper law of the contract’ ... This ‘loosening’ of the lex delicti, this substitution of the social for the geographical environment is one of the most important ... aspects of the ‘softening of connecting factors’ in our time.[179]
The 12th edition of Dicey and Morris on the Conflict of Laws made a telling point:
It is true that a flexible rule offers less certainty than a mechanical one. It is also true that predictability of result is desirable in tort cases as in others because it facilitates the lawyer’s task of advising his client and negotiating a settlement. Yet surely it is not such an important factor in the law of torts as it is in the law of contract and the law of property, where people are likely to plan transactions in reliance on the application of a particular legal system. In the non-intentional torts at any rate, liability is unexpected, and people rarely give advance thought to the consequences of their actions. Motor car accidents are rarely planned.[180]
Yet now, following Pfeiffer, there will be more flexibility in choice of law in contract than in tort. Not only is there the ‘soft’ connecting factor of proper law of the contract, often requiring a weighing up by the court of relevant contacts,[181] there is also the fact that, even where the parties have themselves taken the opportunity afforded to them to express an intention as to what law should govern the contract,[182] the supposed certainty intended to be achieved by that is subject to a measure of flexibility. The court can, indeed must, depart from the selected law where the parties’ selection is not bona fide or is contrary to forum public policy or infringes a mandatory rule of the forum.[183]
That this should now be the case is quite odd. There is a certain irony when one considers from this perspective the High Court’s recent judgment in Astley v Austrust Ltd.[184] When discussing policy underlying the question whether, in the case of contributory negligence, the familiar legislation requiring a court to apportion damages in a just and equitable manner according to the parties’ respective degrees of responsibility[185] should be interpreted to extend from actions in negligence to actions for breach of contract, the majority of the Court[186] was transfixed by the certainty supposed to be requisite in contract law: ‘Commercial people in particular prefer the certainty of fixed rules to the vagueness of concepts such as “just and equitable”.’[187] One shudders that the formalism inherent in Astley, which has meant that the rights and liabilities of parties can be dramatically different solely as a consequence of whether a case is pleaded in contract or tort,[188] has now been incorporated into conflict of laws. Here, it is salient to note that Rogerson could well have framed his case against John Pfeiffer as one for breach of contract of employment,[189] and, almost certainly, the governing law of that contract would have been the law of the ACT rather than New South Wales. The shudder mentioned above becomes a quake if the combination of Astley and Pfeiffer foreshadows a return to the lex locus contractus or some other fixed connecting factor for purposes of choice of law in contract.
There is, as noted, a second aspect to the claim of important practical advantages of certainty and predictability. That is the assumption that a move to an inflexible rule of lex loci delicti will provide such certainty, or at least sufficient certainty to overcome the arguments for flexibility to meet the exigencies of fairness. One may concede that there will be increased certainty now where it is clear that a tort only has been committed and that it has been committed entirely within the territory of a single geographical law area within Australia. But much uncertainty remains. Some acknowledgment of that is made in the joint judgment,[190] and Kirby J provides a fuller cataloguing.[191] But, simply to illustrate the point, it is sufficient to expand upon just one of these.
By definition, a rule requiring reference to the lex loci delicti compels the court to localise the place of the tort. This can be notoriously difficult, not least because the accepted test is one of open texture, namely, the place where ‘the act on the part of the defendant ... gives the plaintiff his cause of complaint’ occurs.[192] The mechanism to be followed in applying this test is usually that identified by the Privy Council in Distillers Co (Biochemicals) Ltd v Thompson: ‘The right approach is, when the tort is complete, to look back over the series of events constituting it and ask the question, where in substance did this cause of action arise?’[193] Is the ‘substance’ of a cause of action the manufacture of a product whose ingestion causes injury or the failure to warn that the product can be dangerous?[194] If a failure to warn, or adequately to warn, does that failure occur where the warning might have been given or where it might have been read by the user?[195] It has been said on high authority that, in the case of an omission as the source of alleged negligence, ‘[i]t makes no sense to speak of the place of an omission’,[196] so the court is required to look to the place where acts of the defendant (assuming there are any) cause the omission to assume significance,[197] which adds another level of complexity to the inquiry. Further, in some cases (but not in others) an omission (for example, to make a statement directing attention to some matter) is effectively the same as a positive statement as to that matter.[198] A negligent act may genuinely cross time or space from commencement to completion,[199] or the alleged wrong may consist of a series of such acts.[200]
It is important to note that I am not using the esoteric to overstate the nature of the problem. The issue of localising the tort can arise within the realm of the ordinary and the mundane. In Porter v Bonojero Pty Ltd[201] the plaintiff, a Victorian resident, was employed as a truck driver. The truck was very old and in a poor state of repair. The plaintiff’s route took him between locations in Victoria, sometimes on rough and bumpy dirt tracks. But the truck had originally been provided to the plaintiff from, and was regularly serviced at, the defendant’s premises in South Australia, to which the plaintiff drove and where he regularly made complaints about the truck’s defects, which were ignored (or at least not remedied). One such defect was said to be in the seat of the truck, exposing the plaintiff to excessive pressures on his spine and aggravating a lower back problem. Another was a missing top step to the cabin, and that caused the plaintiff to fall and injure himself while getting out of the truck in Victoria. Eames J concluded, especially once the plaintiff confined his claim to the failure of the employer to supply safe plant and equipment (that is, a truck without the seat and step defects), that the torts occurred in Victoria, where the plaintiff did most of his driving for work.[202] But the answer was regarded as ‘not free from doubt’[203] and was heavily influenced by a pleading amendment which attempted to limit the plaintiff’s claim to the driving done in Victoria.
This case and others demonstrate that, at the very least, there can be much scope for uncertainty and lack of predictability, even with a lex loci delicti rule.[204] Resourceful plaintiffs’ and defendants’ counsel have much opportunity to make a real issue of location of tort in all but the clearest of cases. In such circumstances, it is hardly satisfying to be told merely that the issue of location of the tort can raise ‘thorny issues’[205] or that it presents a ‘tricky’[206] problem.
What is surely predictable is that, in cases of this kind, flexibility will find its way into the decision-making process, but at the stage of localising the place of the tort. One can see in Porter v Bonojero Pty Ltd[207] an example of the place of the tort being the place where an omission (the failure to provide a safe truck) assumed significance.[208] But suppose instead that a specific repair job carried out at the employer’s premises in South Australia had been botched and was determined to be the cause of an injury suffered in Victoria. Does the fact that a specific negligent act can be pointed to as occurring in South Australia change the place of the tort? Would it matter if there were no employer–employee relationship importing a duty of care in the workplace and if rather the situation was one of a motorist crashing in Victoria because of negligent repairs carried out by a mechanic in South Australia? Judges will have choices to make in these situations which are not necessarily going to be predictable to the parties and their insurers. And these choices will be based on factors that are clearly arbitrary and fortuitous and may have little to do with the significant connections which the parties have to one law area or another and which more properly ought to guide the resolution of the flexibility in determining applicable law.
The Pfeiffer case is significant in other respects worthy of mention here. In terms of authoritative significance, the most important of these concerns the dichotomy between substantive laws and procedural laws.
Much theory underlies the idea that rights and liabilities which have their sources in the law of one law area can be recognised and enforced in another forum. The joint judgment briefly alludes to two of these, the vested rights theory and the local law theory, early in the judgment.[209] However, it is generally accepted that there is no particular reason why a forum court should adopt or apply the procedures and related rules used in other courts,[210] many of which, if non-Australian, will be both difficult to prove and unfamiliar to Australian judges and will serve little purpose in the forum. In consequence, the conflict of laws makes a distinction between substantive questions and laws, on the one hand, and procedural questions and laws, on the other. The significance of the distinction is that a forum court must always (subject to statute) determine procedural questions according to its own law and apply its own procedural rules. The procedures and associated rules of another law area are ignored. Pfeiffer confirms this as the basic position:
[L]itigants who resort to a court to obtain relief must take the court as they find it. A plaintiff cannot ask that a tribunal which does not exist in the forum (but does in the place where a wrong was committed) should be established to deal, in the forum, with the claim that the plaintiff makes. Similarly, the plaintiff cannot ask that the courts of the forum adopt procedures or give remedies of a kind which their constituting statutes do not contemplate any more than the plaintiff can ask that the court apply any adjectival law other than the laws of the forum.[211]
While this position seems unassailable, it rests on the assumption that ‘procedure’ denotes a very narrow and closely defined concept. To the extent that the notion of ‘procedure’ is allowed to broaden to include matters which, in Callinan J’s words, ‘will have the most profound of impacts upon the rights of the parties’,[212] the rule that procedure is exclusively for the forum starts to increase the role of forum law in the resolution of the litigation. With that come all the concerns of forum-shopping, diversity of outcome and so on — the same concerns which, properly, plagued the two-limbed rule in Phillips v Eyre. Yet, Australian common law did encompass such a broad notion of ‘procedure’. McKain[213] held that conventional limitation laws, that is, those which were interpreted as merely barring a remedy rather than extinguishing a right of action,[214] were procedural. Stevens[215] held that laws which affected quantification, as opposed to the existence, of one or more heads of damages were procedural.
While uniform legislative reform, following upon law reform recommendations,[216] had effectively reversed the impact of McKain in this regard in relation to the limitation laws of the law areas in Australia and New Zealand,[217] for the High Court not to act in Pfeiffer would have undermined what the Court (or at least all but Callinan J) intended to accomplish by its replacement of the rule in Phillips v Eyre with a lex loci delicti rule. Accordingly, procedural rules are now relegated to ‘rules which are directed to governing or regulating the mode or conduct of court proceedings’.[218] By contrast, substantive rules are concerned with ‘matters that affect the existence, extent or enforceability of the rights or duties of the parties to an action’.[219] With this approach, Australian law on the drawing of the line between the substantive and the procedural has effectively shifted from a terminological orientation to a functional and consequentialist one.[220] A ‘guiding principle’[221] is to ask what the purpose of the disputed law is and what effect its application will have on rights and obligations of both parties.
It then follows, as the High Court proceeded to hold, that limitation laws and laws imposing restrictions on damages are now to be regarded as substantive laws.[222] The former will always affect whether a plaintiff recovers and, therefore, are directed to and have an effect upon the enforceability of rights and obligations.[223] The latter, by affecting how much a plaintiff recovers, alter the rights of the plaintiff and the obligations of the defendant.[224] What used to be a very controversial part of the conflict of laws is now both settled and sensible.[225]
This is not to say, however, that this part of the law will henceforth be completely uncontroversial. As noted in the joint judgment, ‘further elucidation in subsequent decisions’[226] may be necessary. In the right circumstances, the application of even what would seem at first sight to be a rule directed at the regulation of the court process may prevent rights from being enforced.[227] Certainly, when rights are intimately associated with special tribunals, procedures or remedies, they will not, on account of the substance–procedure distinction, be enforceable in another forum which does not have those tribunals, procedures or remedies.[228] As the joint judgment noted, ‘litigants who resort to a court to obtain relief must take the court as they find it.’[229]
Within the field of conflict of laws, there is no consensus on what to call the geographical unit whose laws may be applicable in the resolution of litigation. ‘Jurisdiction’ is often employed — Callinan J uses it at one point in his judgment in Pfeiffer[230] — but as a definitive term it suffers from its other usages derived from its meaning as the authority of a court to decide.[231] The search for an alternative has produced several terms of art, including ‘state’,[232] ‘country’[233] and ‘legal unit’.[234] Dicey himself preferred the term ‘law district’.[235] Nygh uses the term ‘law area’ and defines it to mean ‘a territory which has a unitary system of law.’[236] The numerous references by all the High Court Justices (except Callinan J) in Pfeiffer strongly suggest that ‘law area’ is now to be regarded as the preferred Australian usage.[237]
Almost since Willes J first laid down the rule in Phillips v Eyre,[238] controversy has raged over its true nature. Was it a choice of law rule, directing the forum court as to the law to apply to govern the rights and liabilities of the parties? Or did it go to, as it was sometimes said, jurisdiction or, more appropriately, justiciability, in the sense of laying down conditions to the plaintiff being able to maintain the action in the forum court? If the latter, that still left the question of what substantive law the forum court should apply to the case. All of this is masterfully reviewed and analysed in a recent article by Davies,[239] and there is no reason to detail it again here, not least because, with the discarding of the rule in Phillips v Eyre, it really does not matter much anymore. At least it does not matter in the intranational tort situation. Nevertheless, it is clear from Pfeiffer that the High Court has opted for the ‘justiciability’ classification, although the Court prefers that the language of ‘double actionability’[240] be used to describe the nature of the rule in Phillips v Eyre.
Accordingly, what Pfeiffer concludes is that, for intranational torts, the governing law is the lex loci delicti and the rule in Phillips v Eyre, as modified in McKain, does not survive as a separate double actionability rule. It does not survive in cases of federal jurisdiction because there is only one relevant law area — Australia — not two, so there can be no scope for a rule of double actionability.[241] It does not survive in cases of non-federal jurisdiction because, to the extent that actionability would depend upon whether there was civil liability by the lex loci delicti, that question is rendered superfluous by the selection of the lex loci delicti as governing law — and because, to the extent that actionability would depend upon whether the forum would recognise a cause of action had the events in question occurred within its territory, such an inquiry is inimical to the Australian federation. This is because there is no proper basis upon which the courts of one State or Territory could claim that a cause of action recognised in a constituent part of the federation so violated fundamental public policy or principles of justice in the forum that it should not be entertained.[242]
As noted above, the High Court was careful to limit expressly its analysis and decision in Pfeiffer to intranational torts.[243] Nevertheless, some brief remarks ought to be addressed to the international context.
The most obvious question is whether the lex loci delicti will eventually be adopted as the choice of law rule for international torts. For the six judges who held that the lex loci delicti should be adopted for intranational torts, the reality and nature of Australian federation was central to that decision. It was recognised that a rule developed in the context of international torts was ‘insufficiently attentive’[244] to the quite different intranational landscape. Accordingly, an acceptable juristic basis could be, and was, asserted for a change in the common law which resulted in an abandonment of the rule in Phillips v Eyre in respect of intranational torts.
For the same to occur for international torts would require much more. The High Court would have to conclude that the two-limbed rule was, if not inherently flawed,[245] at least no longer suitable for current times and conditions. Those conditions would have to include the new rule established for intranational torts. The wisdom of having two sets of rules would be quite dubious. One commentator refers to the difficulties that would arise in litigation having both interstate and international aspects,[246] and also makes the telling point that ‘it may not be desirable to saddle Australia with two different choice of law systems, one for domestic and one for international consumption, when judges find it difficult enough to cope with just one.’[247]
Further, in light of the public policy basis given by the Court for the second limb of that rule, it is difficult to see why it should be retained. This is because general principles of conflict of laws dealing with exclusion of foreign law already provide a basis for an Australian court to refuse to apply the law of another law area (for example, the lex loci delicti) on grounds that to do so would violate fundamental forum public policy or principles of justice.[248] Notwithstanding these arguments, for the High Court to discard the two-limbed rule it would have to conclude that this part of the common law had not slipped into the category where reform ought only to emanate from the legislative domain.[249]
For the present, one must assume that the old rule remains for international torts litigated in Australia. Some question may exist as to whether that rule is the one formulated in Phillips v Eyre[250] itself or the modified McKain[251] version. Except for the fact that the events in question occurred in an intranational context, there is nothing in either the majority’s language or reasoning leading to the McKain reformulation, or in its source found in Brennan J’s judgment in Breavington,[252] to suggest that the reformulation was intended to be limited to intranational torts. But a footnote in a 1997 High Court case states that the Phillips v Eyre test ‘has been modified in the case of acts done within Australia’.[253] Without adverting to the controversy (if any), it was the McKain version which was recently applied to litigation in Australia for a tort committed in New Zealand.[254]
In either event it remains open whether the two-limbed rule will be applied flexibly or will be subject to a flexible exception as developed at English common law.[255] The High Court has consistently left this question open (although always in the context of saying that the need for certainty and predictability makes it inappropriate for intranational torts), and did so again in Pfeiffer.[256]
To the extent that anything in this field can be considered certain, two things about the international tort context seem relatively so, assuming the current retention of a two-limbed rule. First, as discussed above, that rule will be seen in terms of double actionability, not choice of law. Second, the new approach to substance and procedure will apply. In particular, limitation laws and laws imposing restrictions on damages will be regarded as substantive laws. In much the same way as was discussed by Dawson J in Gardner v Wallace,[257] any such laws of the foreign law area where the tort occurred will be ‘imported into the forum’[258] for the purpose of determining whether the second condition to maintaining the action in the forum is met. To the extent that these foreign laws eliminate or restrict the rights which the plaintiff would have had by the law of the forum, the plaintiff’s claim will be eliminated or restricted accordingly, and the practical effect will be the same as under a lex loci delicti choice of law rule.
The outcome of Pfeiffer can be seen as a triumph for Gaudron J. Stances which her Honour adopted years ago and has since maintained on choice of law for intranational torts — the need for an inflexible rule, the significance of federal jurisdiction, and the appropriate characterisation of limitation laws and laws imposing restrictions on the quantification of damages — are now part of Australian law. The one position not yet accepted, at least on the analysis put forward in this note, is for a solution which is mandated by the Australian Constitution. Even on that theme, it might still be said, in the words of Kirby J, that Pfeiffer develops the common law ‘in a way harmonious to the text and character of the Constitution and the institutions which it establishes and recognises.’[259] And it was Gaudron J’s compelling legal analysis in Mewett[260] of the relevance of federal jurisdiction, and the way in which that required the rule in Phillips v Eyre to be discarded at least for cases of that type, which can be seen to have had formative influence in guiding those judges who participated in the joint judgment in Pfeiffer to find a way around the barriers presented by McKain[261] and Stevens.[262]
Nevertheless, remembering that Gaudron and McHugh JJ were on opposite sides in McKain and Stevens, there is a tone of judicial accommodation in the Pfeiffer joint judgment to which both now lend their names. In contrast to her Honour’s earlier contributions in this area, not to mention those of Mason CJ, Wilson and Deane JJ, this judgment is devoid of any soul. No doubt, there will be those who find this a good thing. But, for all the judgment’s technical acuity, it fails to convey the sense of nationhood which properly lies at the core of a conclusion that Australian intranational choice of law solutions ought not to be dictated by rules developed in the international context. It is somewhat of a pity that, in spite of the influence which the Supreme Court of Canada’s decision in Tolofson had on the joint judgment, the insight of La Forest J — ‘[t]he niceties of the technical mechanisms by which judges arrive at decisions are far less important than the underlying policy considerations that give them life’[263] — has not been captured in it. For that, one is directed to the judgment of Kirby J,[264] whose analysis is driven by the view that the initial acceptance into Australian law of the rule in Phillips v Eyre amounted to ‘constitutional error’,[265] was ‘fundamentally mistaken’,[266] and failed to take into account that ‘[t]he moving force is not ... international comity but national integrity.’[267]
As to the substance of the decision, in particular the High Court’s unwillingness to allow for any measure of flexibility in the determination of the governing law for intranational torts, this note has essentially put the view that it is disappointing that the Court in Pfeiffer set itself up as a vanguard against what it must have seen as sentimental thinking directed toward individual justice getting the better of rationality and principle.[268] To take the facts of Pfeiffer itself, leaving aside the place of this accident, every significant contact was with the Australian Capital Territory.[269] John Pfeiffer was incorporated in the ACT and had its principal business premises located there. Rogerson was resident there. The employment relationship between the two was centred in the ACT, and the ACT almost certainly would have supplied the governing law of the contract of employment. It would seem likely that directions to Rogerson from his employer as to his place of work on any particular day would have emanated from the ACT. One day, he might be directed to work, as in this case, in NSW; on another, he might be directed to work in the ACT itself; it is not inconceivable that, on other days, he could be sent to Victoria. Yet, his rights in tort against his employer will always, under the inflexible rule adopted by the High Court, vary for no reason other than which such direction was issued on a particular day. To say that things would be different had he exercised his rights in contract rather than in tort seems hardly an example of modern enlightened thinking.
To conclude, the decision in Pfeiffer must certainly be welcomed as an advance on the previous state of the law. It finally brings choice of law in (intranational) tort from, literally, the 19th century world of Phillips v Eyre into the 20th century. Unfortunately, it is now the 21st century. One hopes that it will not again take the entirety of a century for this to be recognised in Australian law.
GARY DAVIS[*]
[*] [2000] HCA 36; (2000) 172 ALR 625 (‘Pfeiffer’).
[1] Reproduced in Phillips v Eyre (1870) 6 LR QB 1, 3–5.
[2] Ibid 28–9.
[3] Koop v Bebb [1951] HCA 77; (1951) 84 CLR 629; Anderson v Eric Anderson Radio & TV Pty Ltd [1965] HCA 61; (1965) 114 CLR 20 (‘Anderson’); McKain v R W Miller & Co (SA) Pty Ltd [1991] HCA 56; (1991) 174 CLR 1 (‘McKain’); Stevens v Head [1993] HCA 19; (1993) 176 CLR 433 (‘Stevens’); and numerous cases below the High Court level.
[4] The lex fori, in the Latin so favoured in the lexicon of conflict of laws; the ‘forum’ refers to the jurisdiction, or ‘law area’, in which proceedings are brought.
[5] The lex loci delicti.
[6] This is implicit from the use of the word ‘abroad’.
[7] Koop v Bebb [1951] HCA 77; (1951) 84 CLR 629; Anderson [1965] HCA 61; (1965) 114 CLR 20.
[8] Pedersen v Young [1964] HCA 28; (1964) 110 CLR 162, 170.
[9] [1988] HCA 40; (1988) 169 CLR 41 (‘Breavington’).
[10] Mason CJ, Wilson, Deane and Gaudron JJ; Brennan, Dawson and Toohey JJ dissenting.
[11] See Michael Pryles, ‘The Law Applicable to Interstate Torts: Farewell to Phillips v Eyre?’ (1989) 63 Australian Law Journal 158; Adrian Briggs, ‘Tort in the Conflict of Laws’ (1989) 105 Law Quarterly Review 359.
[12] [1991] HCA 56; (1991) 174 CLR 1 (Brennan, Dawson, Toohey and McHugh JJ; Mason CJ, Deane and Gaudron JJ dissenting).
[13] [1988] HCA 40; (1988) 169 CLR 41. Wilson, Gaudron and Deane JJ asserted a constitutional foundation underlying their view, a foundation which Mason CJ (and the dissenting judges) rejected, the Chief Justice supporting his decision as within the ordinary development of the common law.
[14] McKain [1991] HCA 56; (1991) 174 CLR 1, 39. This formulation had originally been put forward by Brennan J (dissenting) in Breavington [1988] HCA 40; (1988) 169 CLR 41, 110–11.
[15] Stevens [1993] HCA 19; (1993) 176 CLR 433, 453.
[16] Nalpantidis v Stark [1996] SASC 5461; (1995) 65 SASR 454 (special leave to appeal was refused: Transcript of Proceedings, Nalpantidis v Stark (High Court of Australia, Dawson, Gaudron and Kirby JJ, commencing 14 August 1996) <http://www.austlii.edu.au/au/other/hca/transcripts/1996/A15/1
.html>). All websites cited in this article are correct as at 31 December 2000. Copies of all Internet sources are on file with the author. See also Rahim v Crawther (1996) 25 MVR 190 (special leave to appeal was refused: Transcript of Proceedings, Crawther v Rahim (High Court of Australia, Brennan CJ, Toohey and Hayne JJ, commencing 8 December 1997) <http://www.austlii.edu.au/au/other/hca/transcripts/1996/P65/1.html> ).
[17] Private International Law (Miscellaneous Provisions) Act 1995 (UK) c 42, pt III.
[18] Tolofson v Jensen [1994] 3 SCR 1022, 1049–51; 120 DLR (4th) 289, 305 (La Forest J) (‘Tolofson’).
[19] ‘Like Ned Kelly, the rule in Phillips v Eyre is both venerable and notorious. Despite many attempts to kill it off and despite innumerable criticisms of its every aspect, it continues to survive’: Martin Davies, ‘Exactly What Is the Australian Choice of Law Rule in Torts Cases?’ (1996) 70 Australian Law Journal 711, 719.
[20] Pfeiffer [2000] HCA 36; (2000) 172 ALR 625, 667.
[21] See Workers Compensation Act 1987 (NSW) ss 151F–H. The full text of these provisions is included in Callinan J’s judgment: Pfeiffer [2000] HCA 36; (2000) 172 ALR 625, 669–70.
[22] Something which the Master of the ACT Supreme Court found at first instance to exist, in that John Pfeiffer had failed to provide a safe system of work: Rogerson v John Pfeiffer Pty Ltd [1997] ACTSC 26 (Unreported, Connolly M, 24 April 1997) <http://www.austlii.edu.au/au/
cases/act/ACTSC/1997/26.html>. See also Pfeiffer [2000] HCA 36; (2000) 172 ALR 625, 629.
[23] See Workers Compensation Act 1987 (NSW) s 151G.
[24] See Workers Compensation Act 1987 (NSW) s 151H.
[25] Motor Accidents Act 1988 (NSW) pt VI.
[26] [1993] HCA 19; (1993) 176 CLR 433.
[27] ‘Traditionally, a distinction has been drawn between substantive law (the subject of the conflict of law rules) and procedural law which is governed by the lex fori alone’: McKain [1991] HCA 56; (1991) 174 CLR 1, 40 (Brennan, Dawson, Toohey and McHugh JJ).
[28] [1993] HCA 19; (1993) 176 CLR 433, 460 (Brennan, Dawson, Toohey and McHugh JJ; Mason CJ, Deane and Gaudron JJ dissenting).
[29] Rogerson v John Pfeiffer Pty Ltd [1997] ACTSC 26 (Unreported, Connolly M, 24 April 1997) <http://www.austlii.edu.au/au/cases/act/ACTSC/1997/26.html> . See also Pfeiffer [2000] HCA 36; (2000) 172 ALR 625, 629.
[30] John Pfeiffer Pty Ltd v Rogerson (1997) 142 FLR 183.
[31] John Pfeiffer Pty Ltd v Rogerson [1998] FCA 815 (Unreported, O’Connor, Higgins, Cooper, Finn and Merkel JJ, 9 July 1998) <http://www.austlii.edu.au/au/cases/cth/federal_ct/1998/815
.html>.
[32] Transcript of Proceedings, John Pfeiffer Pty Ltd v Rogerson (High Court of Australia, Gummow, Kirby and Hayne JJ, commencing 1 December 1999) <http://www.austlii.edu.au/au/other/hca/
transcripts/1999/C14/1.html> (Gummow J).
[33] This explains why John Pfeiffer is described as the applicant–defendant.
[34] Transcript of Proceedings, John Pfeiffer Pty Ltd v Rogerson (High Court of Australia, Gummow, Kirby and Hayne JJ, commencing 16 April 1999) <http://www.austlii.edu.au/au/other/hca/
transcripts/1998/C14/1.html>.
[35] 1–2 December 1999.
[36] On this point, Callinan J dissented.
[37] Pfeiffer [2000] HCA 36; (2000) 172 ALR 625, 627–52.
[38] Ibid 652–68.
[39] Ibid 668–78.
[40] See the judgment of Callinan J, ibid, especially at 677.
[41] The expression is used in the joint judgment (eg, ibid 647) as a convenient short form for the more specific ‘Australian torts involving an interstate element’: at 638. Cf Kirby J at 666 (‘interjurisdictional civil wrongs (torts) in Australia’).
[42] Ibid 627.
[43] Ibid; see further at 651, where the holding of the case is expressly limited to the ‘intranational tort’ context; see also at 666 (Kirby J). It is now expected that the issues in the international context will be addressed in the near future, following the High Court’s grant of special leave to appeal from the NSW Court of Appeal’s decision in Zhang v Regie Nationale des Usines Renault SA [2000] NSWCA 188 (Unreported, Beazley, Stein and Giles JJA, 27 July 2000) <http://www.austlii.edu.au/au/cases/nsw/NSWCA/2000/188.html> : see Transcript of Proceedings, Regie Nationale des Usines Renault SA v Zhang (High Court of Australia, Gaudron and Kirby JJ, commencing 15 December 2000) <http://www.austlii.edu.au/au/other/hca/transcripts/
2000/S192/2.html>).
[44] Pfeiffer [2000] HCA 36; (2000) 172 ALR 625, 651.
[45] Ibid 648; see also at 667 (Kirby J). As intimated in above n 36, Callinan J, at 677, dissented from this aspect of the decision, his Honour finding it sufficient to dispose of the appeal in John Pfeiffer’s favour through the characterisation of the legislative restrictions as substantive law and seeing no need to formulate a new choice of law rule for intranational torts.
[46] Australian Constitution s 71 (commencing Ch III ‘The Judicature’).
[47] Anderson [1965] HCA 61; (1965) 114 CLR 20, 30 (Kitto J). See also James Crawford, Australian Courts of Law (3rd ed, 1993) 37: ‘[F]ederal jurisdiction is the power to decide a case, given to a court by or pursuant to Chapter III of the Constitution’.
[48] Federal Court of Australia Act 1976 (Cth) s 5.
[49] Family Law Act 1975 (Cth) s 21.
[50] Zelman Cowen and Leslie Zines, Federal Jurisdiction in Australia (2nd ed, 1978) 3.
[51] Ibid 175.
[52] Crawford, above n 47, 38. Contrast the position in the United States of America, where suspicion of central authority led to a rigid demarcation between federal jurisdiction in federal courts and State jurisdiction in State courts: Cowen and Zines, above n 50, 2.
[53] See generally Cowen and Zines, above n 50, 4–12 and also (for a much fuller examination of the complexities) 199–214 and 224–8.
[54] See Australian Constitution s 75(iv). This is the so-called ‘federal diversity jurisdiction’. Other examples include proceedings against the Commonwealth and proceedings by a resident of one State against another State: see Australian Constitution s 75(iii) and (iv), respectively. All three situations are specifically referred to in the joint judgment: Pfeiffer [2000] HCA 36; (2000) 172 ALR 625, 631.
[55] Pfeiffer [2000] HCA 36; (2000) 172 ALR 625, 658 (Kirby J).
[56] Ibid 636.
[57] Commonwealth v Mewett (1997) 191 CLR 471, 524 (Gaudron J) (‘Mewett’), referring to Kable v DPP (NSW) [1996] HCA 24; (1996) 189 CLR 51. See also Pfeiffer [2000] HCA 36; (2000) 172 ALR 625, 636 (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).
[58] R v Kirby; Ex parte Boilermakers’ Society of Australia [1956] HCA 10; (1956) 94 CLR 254, 268 (Dixon CJ, McTiernan, Fullagar and Kitto JJ).
[59] Pfeiffer [2000] HCA 36; (2000) 172 ALR 625, 640 (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ); Mewett (1997) 191 CLR 471, 525 (Gaudron J); Breavington [1988] HCA 40; (1988) 169 CLR 41, 87 (Wilson and Gaudron JJ).
[60] Graham Nicholson, ‘The Concept of “One Australia” in Constitutional Law and the Place of Territories’ (1997) 25 Federal Law Review 281, 285, citing Kable v DPP (NSW) [1996] HCA 24; (1996) 189 CLR 51, 114 (McHugh J).
[61] Pfeiffer [2000] HCA 36; (2000) 172 ALR 625, 627–8, 637, 648.
[62] (1997) 191 CLR 471, 524.
[63] Section 79 of the Judiciary Act 1903 (Cth) requires a court exercising federal jurisdiction, unless the Australian Constitution or Commonwealth law otherwise provides, to apply the laws of the State or Territory in which the court is, in that matter, exercising its jurisdiction (ie, is sitting), and s 80, in general, directs a court exercising federal jurisdiction to apply the ‘common law in Australia as modified ... by the statute law in force in the State or Territory in which the Court is [sitting]’. It is established that the choice of law rules operating in that venue are comprehended by these directions: Pfeiffer [2000] HCA 36; (2000) 172 ALR 625, 640–1, citing Musgrave v Commonwealth [1936] HCA 80; (1937) 57 CLR 514 and Pedersen v Young [1964] HCA 28; (1964) 110 CLR 162, 169–70 (Windeyer J).
[64] See, eg, Pedersen v Young [1964] HCA 28; (1964) 110 CLR 162; Gardner v Wallace [1995] HCA 61; (1995) 184 CLR 95.
[65] [2000] HCA 36; (2000) 172 ALR 625, 642. It is interesting to note that the rhetoric to which Gaudron J has subscribed to describe this situation has softened over time — from ‘manifestly absurd’ in Breavington [1988] HCA 40; (1988) 169 CLR 41, 88 (Wilson and Gaudron JJ) and ‘worse than absurd’ in Stevens [1993] HCA 19; (1993) 176 CLR 433, 466 (Gaudron J) to ‘incongruous’ in Mewett (1997) 191 CLR 471, 524 (Gaudron J) to ‘odd or unusual’ in Pfeiffer [2000] HCA 36; (2000) 172 ALR 625, 642 (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).
[66] [2000] HCA 36; (2000) 172 ALR 625, 642. See further Cameron Moore, ‘Our Fragmented Federation: Forum Bias and Forum Shopping in Australia’ [1994] FedLawRw 6; (1994) 22 Federal Law Review 171, 182–3.
[67] (2000) 172 ALR 625, 631. See Australian Constitution s 76(i). The Court’s almost casual acceptance that the issues arose in federal jurisdiction before the Master of the ACT Supreme Court comes as a surprise; without getting into the exceedingly complex details, some considerable doubt might be said to have attended the question of Territory courts and federal jurisdiction. Cowen and Zines, above n 50, 166, relying upon cases such as Spratt v Hermes [1965] HCA 66; (1965) 114 CLR 226 and Capital TV & Appliances Pty Ltd v Falconer [1971] HCA 10; (1971) 125 CLR 591, thought it was clear that Territory courts were neither federal courts nor courts exercising federal jurisdiction. There seems nothing in Northern Territory v GPAO (1999) 196 CLR 553 which compels, as a matter of authority, a different view. However, in Re Governor, Goulburn Correctional Centre, Goulburn; Ex parte Eastman (1999) 165 ALR 171 four judges expressed the view that federal jurisdiction may be exercised by Territory courts, although only one (Kirby J, whose opinion in any event was a dissenting one) in a manner which was integral to the reasoning as to the case’s disposition: at 181 (Gaudron J), 187–8 (Gummow and Hayne JJ), 207 (Kirby J). This seems to have been sufficient for the joint judgment, although it makes no reference to the authorities on this point: contrast Kirby J in Pfeiffer [2000] HCA 36; (2000) 172 ALR 625, 668.
[68] See Brian Opeskin, ‘Constitutional Dimensions of Choice of Law in Australia’ (1992) 3 Public Law Review 152, 153, quoting this passage from Walton v Walton [1948] VicLawRp 67; [1948] VLR 487, 489 (Barry J):
[I]n the Australian community, where social ideas and customs are substantially the same throughout the continent, and where there is a common nationality and a common language, the same significance or importance cannot be ascribed to a person’s conduct in moving from one State to another as when the question arises in connection with the action of a person moving to a community where, by reason of a difference of language and national traditions, institutions and usages, he takes on the character of a foreigner.
Mason CJ quotes the same passage in Breavington [1988] HCA 40; (1988) 169 CLR 41, 78–9.
[69] Pedersen v Young [1964] HCA 28; (1964) 110 CLR 162, 170 (Windeyer J).
[70] McKain [1991] HCA 56; (1991) 174 CLR 1, 36 (Brennan, Dawson, Toohey and McHugh JJ) (citation omitted). See also Breavington [1988] HCA 40; (1988) 169 CLR 41, 107 (Brennan J): ‘Prior to federation, the legal systems of the Australian colonies were independent one of another. The preservation of the Constitutions of the several States ... ensured that, inter se, the mutual independence of the States was maintained ...’ See also Callinan J’s ‘States’ rights’ sentiments inherent in Pfeiffer [2000] HCA 36; (2000) 172 ALR 625, 677.
[71] [1988] HCA 40; (1988) 169 CLR 41, 121–4.
[72] Ibid 78. His Honour reiterated this view in Stevens [1993] HCA 19; (1993) 176 CLR 433, 442.
[73] Stevens [1993] HCA 19; (1993) 176 CLR 433, 461 (Deane J).
[74] Breavington [1988] HCA 40; (1988) 169 CLR 41, 83 (Mason CJ).
[75] Ibid 150.
[76] It is a principle of conflict of laws that, regardless of the operation of choice of law rules, the forum court remains free to hold that application of a foreign law would infringe a deep-rooted or fundamental public policy of the forum and for that reason ought to be excluded from application in the courts of the forum: see generally Peter Nygh, Conflict of Laws in Australia (6th ed, 1995) 281–5; Edward Sykes and Michael Pryles, Australian Private International Law (3rd ed, 1991) 289–94; P Carter, ‘The Rôle of Public Policy in English Private International Law’ (1993) 42 International and Comparative Law Quarterly 1. Judicially, there are extensive discussions of this principle to be found in Boardwalk Regency Corp v Maalouf (1992) 88 DLR (4th) 612 and in Kuwait Airways Corp v Iraqi Airways Co [1999] CLC 31, aff’d on appeal in Kuwait Airways Corp v Iraqi Airways Co [2000] EWCA 84 (Unreported, Henry, Brooke and Rix LJJ, 10 November 2000) <http://www.bailii.org/ew/cases/EWCA/2000/84.html> (see especially [267]–[323], [363]–[372], [380]–[382]).
[77] Merwin Pastoral Co Pty Ltd v Moolpa Pastoral Co Pty Ltd [1933] HCA 31; (1933) 48 CLR 565, 577 (Rich and Dixon JJ), 587–8 (Evatt J).
[78] [1988] HCA 40; (1988) 169 CLR 41, 81 (Mason CJ), 96–7 (Wilson and Gaudron JJ), 116 (Brennan J), 133–4 (Deane J), 150 (Dawson J).
[79] [1991] HCA 56; (1991) 174 CLR 1, 36–7 (Brennan, Dawson, Toohey and McHugh JJ). Cf Pfeiffer [2000] HCA 36; (2000) 172 ALR 625, 677 (Callinan J).
[80] [1988] HCA 40; (1988) 169 CLR 41, 97–9.
[81] Ibid 98. In this, s 118 was analogous to s 109, which precluded different legal consequences arising on the one set of facts because of the application of State law, on the one hand, and Commonwealth law, on the other: Breavington [1988] HCA 40; (1988) 169 CLR 41, 97.
[82] Breavington [1988] HCA 40; (1988) 169 CLR 41, 95.
[83] Ibid 96.
[84] Ibid 99. Deane J also was convinced that there was a constitutional solution to the problem of intranational torts. His Honour’s analysis, much more elaborate than that of Wilson and Gaudron JJ, detected in s 118, as part of the grand structure of the Australian Constitution and the ‘unitary national legal system’ and ‘new national law’ (at 124) thereby created, a means of reconciling competition between State laws by, generally, confining the operation of a State law to what happens within or with sufficient connection to its territory. On this approach, forum law would, generally, be inapplicable to deal with the substantive consequences of events such as, relevantly, tortious conduct occurring outside the territory of the forum: at 134–5. Put another way, full faith and credit requires, again relevantly, the forum court to recognise the ‘prima facie paramount (as between the States) competence of each State Parliament to make laws for its territory’ and to give effect to State laws made within that legislative competence: at 136.
[85] Eg Peter Nygh, ‘Full Faith and Credit: A Constitutional Rule for Conflict Resolution’ [1991] SydLawRw 27; (1991) 13 Sydney Law Review 415; Opeskin, above n 68; Georgina Whitelaw, ‘Interstate Conflicts of Laws and Section 118’ (1994) 5 Public Law Review 238; Justice William Gummow, ‘Full Faith and Credit in Three Federations’ (1995) 46 South Carolina Law Review 979.
[86] In Breavington [1988] HCA 40; (1988) 169 CLR 41, 83 Mason CJ rejected the view that s 118 could be ‘the source of a solution to inter-jurisdictional conflicts of law problems within Australia’. Brennan J was in accord: at 117. On a head count, their Honours lined up with Dawson J (see text accompanying above n 75) and against Wilson, Gaudron and Deane JJ. The issue was left unresolved by Breavington through Toohey J’s expressly leaving the question open because, in his Honour’s opinion, s 118 was not directly relevant to the resolution of the appeal: at 164.
[87] [1991] HCA 56; (1991) 174 CLR 1, 30–1, 36–7, respectively.
[89] [1991] HCA 56; (1991) 174 CLR 1, 45–6 (Deane J), 55 (Gaudron J).
[90] [1993] HCA 19; (1993) 176 CLR 433, 462 (Deane J), 464–5 (Gaudron J).
[91] Ibid 461–2 (Deane J), 464–5 (Gaudron J). See especially the authorities cited by her Honour at 465, fn 27.
[92] (1995) 38 NSWLR 714, 717. See also Chisholm v Pasminco Metals-BHAS Pty Ltd (Unreported, NSWCA, Kirby ACJ, Sheller and Powell JJA, 24 July 1995) <http://www.austlii.edu.au/au/
cases/nsw/supreme_ct/unrep48.html> [4] (Kirby ACJ).
[93] Rahim v Crawther (1996) 25 MVR 190, 193 (Malcolm CJ, Steytler and Parker JJ concurring).
[94] Thompson v Hill (1995) 38 NSWLR 714, 718 (Kirby P).
[95] Transcript of Proceedings, John Pfeiffer Pty Ltd v Rogerson (High Court of Australia, Gummow, Kirby and Hayne JJ, commencing 1 December 1999) <http://www.austlii.edu.au/au/other/hca/
transcripts/1999/C14/1.html>.
[96] Pfeiffer [2000] HCA 36; (2000) 172 ALR 625, 628 (citation omitted).
[97] Ibid 642 (emphasis added).
[98] Ibid. See text accompanying above nn 76–79. Cf Kirby J at 662.
[99] Ibid 643, resonating with Deane J’s vision expressed in Breavington [1988] HCA 40; (1988) 169 CLR 41 (see above n 84).
[100] Pfeiffer [2000] HCA 36; (2000) 172 ALR 625, 649. But contra Whitelaw, above n 85, 240.
[101] [1997] HCA 25; (1997) 189 CLR 520, 566 (citation omitted) (‘Lange’). See also Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104, 126 (Mason CJ, Toohey and Gaudron JJ): ‘If the Constitution, expressly or by implication, is at variance with a doctrine of the common law, the latter must yield to the former.’
[102] See Michael Tilbury, ‘Uniformity, the Constitution and Australian Defamation Law at the Turn of the Century’ in Nicholas Mullany and Allen Linden (eds), Torts Tomorrow: A Tribute to John Fleming (1998) 244, 262. Cf the treatment of non-conforming statutes, which are declared invalid.
[103] Nationwide News Pty Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1; Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106.
[104] Previously, qualified privilege at common law protected disseminations to very limited numbers of recipients and was only exceptionally available as a defence in the case of mass communications: see Lange [1997] HCA 25; (1997) 189 CLR 520, 572.
[105] Ibid 571.
[106] Pfeiffer [2000] HCA 36; (2000) 172 ALR 625, 643.
[107] Ibid 644.
[108] Section 117 of the Australian Constitution prohibits a State from legislating in a way which discriminates against a resident of another State. In the intranational tort context, it was employed in Goryl v Greyhound Australia Pty Ltd [1994] HCA 18; (1994) 179 CLR 463 to invalidate Queensland legislation to the extent that the legislation disfavoured non-Queensland residents in the calculation of personal injury damages arising out of a motor vehicle accident. See further Martin Davies, ‘The Constitutional Validity of Residence Requirements in No-Fault Transport Accident Compensation Schemes’ (1994) 2 Torts Law Journal 275.
[109] See text accompanying above nn 75–79.
[110] Pfeiffer [2000] HCA 36; (2000) 172 ALR 625, 644 (emphasis added).
[111] Ibid (emphasis added).
[112] Ibid (emphasis added).
[113] [1997] HCA 25; (1997) 189 CLR 520, 567 (citation omitted).
[114] Ibid 568.
[115] The joint judgment, for other purposes, subsequently examines whether the forum might have a legitimate interest in refusing to entertain an action sustainable under the law of another State or Territory, being one in which the relevant events occurred: Pfeiffer [2000] HCA 36; (2000) 172 ALR 625, 650.
[116] Ibid 644; see also 662 (Kirby J).
[117] Lange [1997] HCA 25; (1997) 189 CLR 520, 566.
[118] Phillips v Eyre (1870) 6 LR QB 1.
[119] Koop v Bebb [1951] HCA 77; (1951) 84 CLR 629; Anderson [1965] HCA 61; (1965) 114 CLR 20.
[120] McKain [1991] HCA 56; (1991) 174 CLR 1; Stevens [1993] HCA 19; (1993) 176 CLR 433.
[121] Pfeiffer [2000] HCA 36; (2000) 172 ALR 625, 653 (see the articles set out in fn 119 of the judgment).
[122] Ibid 672 (see the references set out in fnn 250–6).
[123] Of the five judges who joined together in Pfeiffer, Gaudron and McHugh JJ were on opposite sides in McKain and Stevens, and it is at least interesting to note that Hayne QC had appeared as a lead counsel in Breavington [1988] HCA 40; (1988) 169 CLR 41.
[124] Pfeiffer [2000] HCA 36; (2000) 172 ALR 625, 644.
[125] Ibid 636, 639, 642.
[126] Ibid 636.
[127] Ibid 642.
[128] Note that McKain actually did become a federal jurisdiction matter when it was removed into the High Court pursuant to s 40(1) of the Judiciary Act 1903 (Cth): see below n 129. The joint judgment in Pfeiffer acknowledges this parenthetically: Pfeiffer [2000] HCA 36; (2000) 172 ALR 625, 635. But, interestingly, the acknowledgment did not appear (although it does now) in the electronic text of the judgment as originally released: John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36 (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ, 21 June 2000) <http://law.agps.gov.au/html/highct/0/2000/rtf/2000062136.rtf> [33].
[129] It had been ordered in the NSW Supreme Court that this question be tried separately, and the question was then removed into the High Court.
[130] [1988] HCA 40; (1988) 169 CLR 41.
[131] [1991] HCA 56; (1991) 174 CLR 1, 14–15, 18 (Mason CJ), 45–6 (Deane J), 54 (Gaudron J).
[132] Ibid 33 (emphasis added).
[133] Ibid 46.
[134] Ibid 47, 51.
[135] ‘[T]he line may be drawn in different places for different purposes; and in each case what is required is an analysis of the specific questions calling for decision, their legal background and the factual context’: Pollock v Commisssioner of Taxation (1991) 32 FCR 40, 60 (Gummow J), citing In the Estate of Fuld (deceased); Hartley v Fuld [No 3] [1968] P 675, 695. See also Lawrence Collins et al (eds), Dicey and Morris on the Conflict of Laws (13th ed, 2000) vol 1, 157–8.
[136] Pfeiffer [2000] HCA 36; (2000) 172 ALR 625, 642.
[137] Pfeiffer [2000] HCA 36; (2000) 172 ALR 625, 631. See also above n 67.
[138] Ibid 628.
[139] Rogerson v John Pfeiffer Pty Ltd [1997] ACTSC 26 (Unreported, Connolly M, 24 April 1997) <http://www.austlii.edu.au/au/cases/act/ACTSC/1997/26.html> .
[140] John Pfeiffer Pty Ltd v Rogerson (1997) 142 FLR 183.
[141] John Pfeiffer Pty Ltd v Rogerson [1998] FCA 815 (Unreported, O’Connor, Higgins, Cooper, Finn and Merkel JJ, 9 July 1998) <http://www.austlii.edu.au/au/cases/cth/federal_ct/1998/815
.html> at 30 November 2000 (copy on file with author).
[142] Pfeiffer [2000] HCA 36; (2000) 172 ALR 625, 648.
[143] Ibid.
[144] Ibid 645.
[145] [1994] 3 SCR 1022, 1049–51; 120 DLR (4th) 289, 305.
[146] But see Pfeiffer [2000] HCA 36; (2000) 172 ALR 625, 656 (Kirby J).
[147] [1988] HCA 40; (1988) 169 CLR 41.
[148] Ibid 78.
[149] See the discussion in Janey Greene, ‘Choice of Law in Tort — The Song That Never Ends’ (1998) 26 Federal Law Review 349, 364–5. See also Friedrich Juenger, ‘Tort Choice of Law in a Federal System’ [1997] SydLawRw 27; (1997) 19 Sydney Law Review 529, 540.
[150] Justice Peter Young, ‘State Borders’ (1998) 72 Australian Law Journal 178, 179.
[151] Tolofson [1994] 3 SCR 1022, 1046–7; 120 DLR (4th) 289, 302. See also, in a different context, for a sceptical view of reliance upon assumptions concerning what people may think as a basis for legal principle, Elizabeth Handsley, ‘Public Confidence in the Judiciary: A Red Herring for the Separation of Judicial Power’ [1998] SydLawRw 9; (1998) 20 Sydney Law Review 183, 196–7; Elizabeth Handsley, ‘Do Hard Laws Make Bad Cases? — The High Court’s Decision in Kable v Director of Public Prosecutions (NSW)’ [1997] FedLawRw 5; (1997) 25 Federal Law Review 171, 176–7.
[152] Pfeiffer [2000] HCA 36; (2000) 172 ALR 625, 648 (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).
[153] Ibid 645. See also Tolofson [1994] 3 SCR 1022, 1047, 1050–2; 120 DLR (4th) 289, 303, 305–6 (La Forest J). It is of interest that La Forest J in Tolofson developed this point in regard to the Canadian provinces by drawing from the ‘territorial limits of law under the international legal order’ (at 1047; 303), whereas Kirby J, although reaching the same destination, opined that ‘to derive a choice of law rule for ... a federation from principles expounded with respect to proceedings involving the law of foreign nations is fundamentally mistaken’: Pfeiffer [2000] HCA 36; (2000) 172 ALR 625, 657.
[154] [1988] HCA 40; (1988) 169 CLR 41, 129, 134–7. See above n 84.
[155] Breavington [1988] HCA 40; (1988) 169 CLR 41, 129.
[156] Ibid 137.
[157] [1993] HCA 19; (1993) 176 CLR 433.
[158] [1988] HCA 40; (1988) 169 CLR 41.
[159] [1994] 3 SCR 1022; 120 DLR (4th) 289.
[160] The defendant is not liable in tort to his or her gratuitous passenger unless guilty of wilful or wanton misconduct.
[161] [1994] 3 SCR 1022; 120 DLR (4th) 289. Tolofson actually involved two separate appeals heard together: in Tolofson v Jensen action was initiated in British Columbia in respect of a motor vehicle accident which occurred in Saskatchewan, where a gratuitous passenger statute was in force; in Lucas v Gagnon action was initiated in Ontario in respect of a motor vehicle accident which occurred in Quebec, where a no-fault compensation scheme operated.
[162] See Collins et al, Dicey and Morris (13th ed), above n 135, vol 2, 1554–5; Australian Law Reform Commission (‘ALRC’), Choice of Law, Report No 58 (1992) 47–8.
[163] See Michael Brooks, ‘Weighing Up CTP: The MAC View — Factors Influencing Compulsory Third Party Insurance’ (1999) 21(1) Law Society of South Australia Bulletin 16 (the author was the Insurance and Policy Manager of the Motor Accident Commission, which is the South Australian compulsory third-party insurer for motor vehicle accidents).
[164] Bartlett v Bartlett [1999] ACTSC 45 (Unreported, Higgins J, 13 May 1999) <http://www.
austlii.edu.au/au/cases/act/ACTSC/1999/45.html> [69] (Higgins J).
[165] Pfeiffer [2000] HCA 36; (2000) 172 ALR 625, 647 (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ). See also McKain [1991] HCA 56; (1991) 174 CLR 1, 38–9 (Brennan, Dawson, Toohey and McHugh JJ); Tolofson [1994] 3 SCR 1022, 1061–2; 120 DLR (4th) 289, 313–14 (La Forest J); but see further 1078; 326 (Major J, Sopinka J concurring).
[166] See the chart produced by Symeon Symeonides, ‘Choice of Law in the American Courts in 1997’ (1998) 46 American Journal of Comparative Law 233, 266, a situation which was said to be still current in the United States at the time of the following year’s survey: see Symeon Symeonides, ‘Choice of Law in the American Courts in 1998: Twelfth Annual Survey’ (1999) 47 American Journal of Comparative Law 327, 329.
[167] For a recent extensive review and analysis, see William Tetley, ‘A Canadian Looks at American Conflict of Law Theory and Practice, Especially in the Light of the American Legal and Social Systems (Corrective vs Distributive Justice)’ (1999) 38 Columbia Journal of Transnational Law 299.
[168] Pfeiffer [2000] HCA 36; (2000) 172 ALR 625, 646.
[169] Boys v Chaplin [1971] AC 356 (‘flexible exception’ to the rule in Phillips v Eyre permits departure where ‘clear and satisfying grounds’ exist: at 391–2).
[170] But now as an exception to, or more properly a means to displace, a lex loci delicti rule which has replaced the rule in Phillips v Eyre (except in defamation claims).
[171] Private International Law (Miscellaneous Provisions) Act 1995 (UK) c 42, pt III, especially s 12.
[172] Red Sea Insurance Co Ltd v Bouygues SA [1995] 1 AC 190, 206.
[173] ALRC, above n 162, 46–7.
[174] Ibid 50, 61.
[175] Ibid 62. This is particularly relevant to what is said above concerning underlying the policy of particular legislation: see text accompanying above nn 157–164.
[177] Eg Greene, above n 149, 367–9.
[178] Pfeiffer [2000] HCA 36; (2000) 172 ALR 625, 646, citing Otto Kahn-Freund, ‘Delictual Liability and the Conflict of Laws’ (1968) 124 Recueil des cours 1, 36.
[179] Otto Kahn-Freund, ‘General Problems of Private International Law’ (1974) 143 Recueil des cours 139, 410–11 (citations omitted).
[180] Lawrence Collins et al (eds), Dicey and Morris on the Conflict of Laws (12th ed, 1993) vol 2, 1501–2 (citation omitted).
[181] Bonython v Commonwealth [1951] AC 201.
[182] Akai Pty Ltd v People’s Insurance Co Ltd (1996) 188 CLR 418 (‘Akai’).
[183] Ibid; Vita Food Products Inc v Unus Shipping Co Ltd [1939] AC 277; Golden Acres Ltd v Queensland Estates Pty Ltd [1969] Qd R 378.
[184] (1999) 161 ALR 155 (‘Astley’).
[185] Eg Wrongs Act 1936 (SA) s 27A (which was the legislation considered in Astley).
[186] Gleeson CJ, McHugh, Gummow and Hayne JJ; Callinan J dissenting.
[187] Astley (1999) 161 ALR 155, 181.
[188] Reduction, on account of contributory negligence and pursuant to apportionment legislation, of an employee’s damages for injuries suffered in the workplace as a consequence of the employer’s negligence has been commonplace. But see now Wylie v ANI Corporation Ltd [2000] QCA 314 (Unreported, McMurdo P, Thomas JA and Ambrose J, 4 August 2000) <http://www.
austlii.edu.au/au/cases/qld/QCA/2000/314.html>, where the employee was able to escape these consequences of his contributory negligence by pleading his case in contract. Note especially the remarks of McMurdo P at [31] (citations omitted):
Since Astley, where an employee suffers injury in the workplace caused by the employer’s breach of contract of employment, damages will no longer be able to be reduced because of the employee’s contributory negligence. The commendable spirit of modern workplace health and safety legislation requires that employer and employee cooperatively work together to develop and maintain a safe workplace. It is not inconsistent with that spirit to require workers to be accountable for their own negligence consistent with their tortious obligations and apportionment legislation.
Note also Thomas JA, who observed ‘vast alterations in liability for damages and economic consequences produced by Astley in a range of cases including those between employer and employee’: at [52].
[189] Indeed, once in the High Court he attempted to do just that, but was not allowed to change the nature of his case at that late stage in the proceedings: Pfeiffer [2000] HCA 36; (2000) 172 ALR 625, 628 (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ), 665 (Kirby J) and, especially, 677–8 (Callinan J).
[190] Ibid 647.
[191] Ibid 664–5.
[192] Jackson v Spittall (1870) 5 LR CP 542, 552, approved in Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538, 567 (‘Voth’).
[193] [1971] AC 458, 468.
[194] Ibid. Cf Buttigeig v Universal Terminal & Stevedoring Corp [1972] VicRp 72; [1972] VR 626. See also MacGregor v Application des Gaz [1976] Qd R 175; Jacobs v Australian Abrasives Pty Ltd [1971] TASStRp 8; [1971] Tas SR 92; D’Ath v TNT Australia Pty Ltd [1992] 1 Qd R 369.
[195] See Distillers Co (Biochemicals) Ltd v Thompson [1971] AC 458, 469.
[196] Voth [1990] HCA 55; (1990) 171 CLR 538, 567 (Mason CJ, Deane, Dawson and Gaudron JJ).
[197] Ibid.
[198] Ibid 569.
[199] Eg a negligent communication. See ibid 567–8.
[200] See James Hardie & Co Pty Ltd v Hall (1998) 43 NSWLR 554.
[201] [2000] VSC 265 (Unreported, Eames J, 27 June 2000) <http://www.austlii.edu.au/au/cases/vic/
VSC/2000/265.html>.
[202] Ibid [121]–[122].
[203] Ibid [121].
[204] See Juenger, above n 149, 540: ‘[T]he highest court’s insistence on certainty and predictability is bound to clash with the lower courts’ desire to do justice in particular cases.’
[205] Tolofson [1994] 3 SCR 1022, 1050; 120 DLR (4th) 289, 305 (La Forest J).
[206] Pfeiffer [2000] HCA 36; (2000) 172 ALR 625, 667 (Kirby J).
[207] [2000] VSC 265 (Unreported, Eames J, 27 June 2000) <http://www.austlii.edu.au/au/cases/vic/
VSC/2000/265.html>.
[208] See text accompanying above n 197.
[209] Pfeiffer [2000] HCA 36; (2000) 172 ALR 625, 637.
[210] But see s 11(1)(c) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) and corresponding State and Territory legislation.
[211] [2000] HCA 36; (2000) 172 ALR 625, 651 (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ); see also 667 (Kirby J). The same position is implicit in Callinan J’s reasons for judgment.
[212] Ibid 676.
[213] [1991] HCA 56; (1991) 174 CLR 1.
[214] Cf s 63 of the Limitation Act 1969 (NSW).
[215] [1993] HCA 19; (1993) 176 CLR 433.
[217] Choice of Law (Limitation Periods) Act 1993 (NSW) s 5; Choice of Law (Limitation Periods) Act 1996 (Qld) s 5; Limitation of Actions Act 1936 (SA) s 38A(2); Limitation Act 1974 (Tas) s 32C; Choice of Law (Limitation Periods) Act 1993 (Vic) s 5; Choice of Law (Limitation Periods) Act 1994 (WA) s 5; Limitation Act 1985 (ACT) s 56; Choice of Law (Limitation Periods) Act 1994 (NT) s 5; Limitation Act 1950 (NZ) s 28C.
[218] McKain [1991] HCA 56; (1991) 174 CLR 1, 26–7 (Mason CJ), adopted in the joint judgment in Pfeiffer [2000] HCA 36; (2000) 172 ALR 625, 651; see also 660 (Kirby J), 675–6 (Callinan J).
[219] Pfeiffer [2000] HCA 36; (2000) 172 ALR 625, 651 (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ); see also 667 (Kirby J).
[220] Ibid 659 (Kirby J).
[221] Ibid 651 (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).
[222] Ibid 651 (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ), 667 (Kirby J), 676 (Callinan J).
[223] Ibid 650 (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ). Cf Martin v Perrie (1986) 24 DLR (4th) 1, 8–9 and Yew Bon Tew v Kenderaan Bas Mara [1983] 1 AC 553, 563, where it was held that limitation laws vest a right in the defendant to be free of an enforceable claim. Both cases are discussed in Tolofson [1994] 3 SCR 1022, 1070–1; 120 DLR (4th) 289, 320 (La Forest J).
[224] Pfeiffer [2000] HCA 36; (2000) 172 ALR 625, 650 (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).
[225] Eg complex controversies of the type evident in Mason v Murray’s Charter Coaches & Travel Services Pty Ltd [1998] FCA 1430; (1998) 88 FCR 308, which concerned applications seeking extensions of limitation periods, should now be avoided.
[226] Pfeiffer [2000] HCA 36; (2000) 172 ALR 625, 651.
[227] Eg Abdullah Ali Almunajem Sons Co v Recourse Shipping Co Ltd (The ‘Reefer Creole’) [1994] 1 Lloyd’s Rep 584 (a local law prohibited service of process on Sundays; a writ was served the following day; the service was held invalid pursuant to a forum rule providing for the expiration of the validity of writs; the limitation period had expired; the plaintiffs were left out of court).
[228] Pfeiffer [2000] HCA 36; (2000) 172 ALR 625, 651. See, eg, Phrantzes v Argenti [1960] 2 QB 19 (remedy unknown to forum). For an illustration of special procedures, consider s 25(3) of the Dust Diseases Tribunal Act 1989 (NSW), which provides that certain types of evidence admitted in proceedings before the Dust Diseases Tribunal may, with the leave of the Tribunal, be received in evidence in other proceedings before the Tribunal, even if between different parties (discussed to some extent in James Hardie Industries Pty Ltd v Grigor (1998) 45 NSWLR 20, 39–40, 43 (Spigelman CJ).
[229] Pfeiffer [2000] HCA 36; (2000) 172 ALR 625, 651; see also 667 (Kirby J).
[230] Ibid 672. See also Eugene Scoles and Peter Hay, Conflict of Laws (2nd ed, 1992) 1.
[231] Eg a court’s ‘monetary jurisdiction’, the ‘territorial jurisdiction’ of a court, ‘personal jurisdiction’ over the defendant. See, eg, Pfeiffer [2000] HCA 36; (2000) 172 ALR 625, 633 (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).
[232] Sykes and Pryles, above n 76, 4; Restatement (2nd) of the Law: Conflict of Laws (1971) vol 1, §3.
[233] Collins et al, Dicey and Morris (13th ed), above n 135, 26–7.
[234] J-G Castel, Canadian Conflict of Laws (3rd ed, 1994) 2.
[235] See Collins et al, Dicey and Morris (13th ed), above n 135, 26.
[236] Nygh, Conflict of Laws in Australia, above n 76, 7. Here, Nygh draws upon a statement of Deane J in Breavington [1988] HCA 40; (1988) 169 CLR 41, 121 which defines a ‘unitary system of law’ as a system in which
the substantive rule or rules applicable to determine the lawfulness and the legal consequences or attributes of conduct, property or status at a particular time in a particular part of the national territory will be the same regardless of whereabouts in that territory questions concerning those matters or their legal consequences may arise.
A simpler phrasing might be ‘unit ... where the one system of private law prevails’ (Sykes and Pryles, above n 76, 5) or ‘territorial unit with a distinct general body of law’ (Restatement (2nd): Conflict of Laws, above n 232, §3).
[237] The term ‘law area’ is used in 11 of the numbered paragraphs in the joint judgment — eg, Pfeiffer [2000] HCA 36; (2000) 172 ALR 625, 627, 630, 631, 633 — and in twice that number of paragraphs in Kirby J’s judgment — eg, at 655, 656, 658, 660.
[238] (1870) 6 LR QB 1.
[239] Davies, ‘Exactly What Is the Australian Choice of Law Rule’, above n 19, 711.
[240] Pfeiffer [2000] HCA 36; (2000) 172 ALR 625, 632 (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).
[241] Ibid 648.
[242] Ibid 648–50.
[243] See text accompanying above nn 41–43. See further above n 43 itself in relation to the fact that issues in the international context are now likely to be addressed by the High Court in the near future.
[244] Pfeiffer [2000] HCA 36; (2000) 172 ALR 625, 660 (Kirby J).
[245] See, eg, the criticisms levelled by the ALRC in ALRC, above n 162, 42–5.
[246] Juenger, above n 149, 537.
[247] Ibid.
[248] See generally Nygh, Conflict of Laws in Australia, above n 76, 281–5; Sykes and Pryles, above n 76, 289–94. See also text accompanying above n 76.
[249] See the discussion in Pfeiffer [2000] HCA 36; (2000) 172 ALR 625, 663–4 (Kirby J). Cf pt III of the Private International Law (Miscellaneous Provisions) Act 1995 (UK) c 42.
[250] (1870) 6 LR QB 1.
[251] [1991] HCA 56; (1991) 174 CLR 1.
[252] [1988] HCA 40; (1988) 169 CLR 41.
[253] CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345, fn 39 (Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ) (emphasis added). See also, in the international context, Norbert Steinhardt & Son Ltd v Meth [1961] HCA 33; (1961) 105 CLR 440, 442–3 (Fullagar J) and Voth [1990] HCA 55; (1990) 171 CLR 538, 566, 569 (Mason CJ, Deane, Dawson and Gaudron JJ).
[254] James Hardie & Co Pty Ltd v Hall (1998) 43 NSWLR 554, 577 (Sheller JA).
[255] Boys v Chaplin [1971] AC 356; Red Sea Insurance Co Ltd v Bouygues SA [1995] 1 AC 190.
[256] ‘Whatever may be the advantages of a flexible rule or of a flexible exception to a universal rule in the case of international torts, the practical disadvantages are such that neither approach should be adopted with respect to Australian torts which involve an interstate element’: Pfeiffer [2000] HCA 36; (2000) 172 ALR 625, 647 (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).
[257] [1995] HCA 61; (1995) 184 CLR 95, 98–9.
[258] See McKain [1991] HCA 56; (1991) 174 CLR 1, 40 (Brennan, Dawson, Toohey and McHugh JJ).
[259] Pfeiffer [2000] HCA 36; (2000) 172 ALR 625, 662.
[260] (1997) 191 CLR 471.
[261] [1991] HCA 56; (1991) 174 CLR 1.
[262] [1993] HCA 19; (1993) 176 CLR 433.
[263] [1994] 3 SCR 1022, 1063; 120 DLR (4th) 289, 314.
[264] See especially Pfeiffer [2000] HCA 36; (2000) 172 ALR 625, 653–8.
[265] Ibid 656.
[266] Ibid 657.
[267] Ibid (citation omitted).
[268] Cf Chief Justice Murray Gleeson, ‘Individualised Justice — The Holy Grail’ (1995) 69 Australian Law Journal 421.
[269] For this reason, Callinan J’s characterisation of the case as ‘a clear example of forum shopping’ strikes one, with respect, as incomprehensible: Pfeiffer [2000] HCA 36; (2000) 172 ALR 625, 673.
[*] LLB (Osgoode Hall), LLM (Michigan); Associate Professor of Law, Flinders University of South Australia.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/MelbULawRw/2000/38.html