Gardner v Wallace M33/1995 [1995] HCATrans 377 (31 October 1995)

TRANSCRIPT

OF PROCEEDINGS

AUSCRIPT

Victoria

Level 7

451 Little Bourke St

Melbourne VIC 3000

GPO Box 1114J

Melbourne VIC 3001

Phone [phone]

Fax [phone]

O/N 5809

IN THE HIGH COURT OF AUSTRALIA

MELBOURNE OFFICE OF THE REGISTRY

No M33 of 1995

BETWEEN: C. GARDNER

Plaintiff

and

R. WALLACE

Defendant

DAWSON J (in Chambers)

AT MELBOURNE, FRIDAY THE 10TH DAY OF NOVEMBER 1995

Continued from 31.10.95

HIS HONOUR: Mr McGarvie, from what you told me on the last occasion we were here, the County Court proceedings in this matter are still on foot, are they not?

MR McGARVIE: They are.

HIS HONOUR: And service was effected under the provisions of the Service and Execution of Process Act?

MR McGARVIE: In Australia.

HIS HONOUR: Yes, within Australia.

MR McGARVIE: Yes.

HIS HONOUR: And under that act. Which one, the 1901 one or the 1992 one which is the new one?

MR McGARVIE: Look, I cannot answer that.

HIS HONOUR: But it was one or the other anyway?

MR McGARVIE: One or the other, yes.

HIS HONOUR: And you depose that the present residence of the defendant is in New Zealand?

MR McGARVIE: That is right.

HIS HONOUR: And that is the position as you know it now?

MR McGARVIE: Yes.

HIS HONOUR: And in the County Court action, I understand there are now pleadings in the County Court which is a revelation to me, although I understand it has been so for some time. But in the County Court action, a limitation defence has been raised, has it?

MR McGARVIE: It has.

HIS HONOUR: Based on the Choice of Law (Limitations Periods) Act?

MR McGARVIE: Yes.

HIS HONOUR: Yes, I see. And, as I understand what you explained to me, the purpose of the commencement of this action in this Court is to found an application for remitter subsequently to Queensland?

MR McGARVIE: Yes, or Victoria, but probably Queensland.

HIS HONOUR: Yes. Well, I can understand that because in reliance on Fielding v Doran you would say then that there is no limitation period applicable in Queensland?

MR McGARVIE: Yes.

HIS HONOUR: And that the Choice of Law (Limitation Periods) Act would not apply.

MR McGARVIE: Yes.

HIS HONOUR: Yes, thank you very much. This is an application under Order 10 of the High Court Rules for leave to serve a writ of summons or notice of the writ outside the Commonwealth. The plaintiff alleges that on or about 9 December 1990 he suffered injury when he stepped into a gap or channel while jogging along the footpath area in The Esplanade at Surfers Paradise in Queensland. He alleges that the defendant was performing construction work in the area at the time and negligently left the gap or channel in the footpath. He claims damages for the injuries which he suffered.

The plaintiff's solicitor deposes to his belief that the plaintiff has a good cause of action for damages against the defendant. (See Order 10 Rule 3(1)(a)). He also deposes that the defendant currently resides at 19 Collingwood Road, Waiuka, South Auckland, New Zealand. (See Order 10 Rule 3(1)(b)). Previously, it would seem, the defendant was resident in Queensland.

The plaintiff, who resides in Victoria, has issued proceedings in the County Court of Victoria claiming damages for the same injuries against the defendant and the Gold Coast City Council. I am informed by the plaintiff's solicitor that those proceedings are still on foot and that service has been effected within Australia upon both defendants, apparently under the provisions of the Service and Execution of Process Act 1992 (Commonwealth).

The writ which the plaintiff seeks leave to serve upon the defendant in New Zealand was issued in this Court upon the basis that the matter is one between residents in different States, and that for this reason this Court has original jurisdiction under Section 75(iv) of the Constitution. The only evidence is that the defendant is now resident in New Zealand and it would seem from this that the plaintiff may be unable to make good his claim that this Court has original jurisdiction. But there are other difficulties in the way of the application.

The plaintiff has been met with a defence in the County Court proceedings that the action is statute-barred. The period of limitation under section 5(1) of the Limitation of Actions Act 1958 (Victoria) is six years from the date on which the plaintiff's cause of action arose, so that the period under that provision has not expired. However, under section 5 of the Choice of Law (Limitation Periods) Act 1993 (Victoria):

If the substantive law of another place being another State, a Territory or New Zealand is to govern a claim before a court of this State, a limitation law of that place is to be regarded as part of that substantive law and applied accordingly by the court.

That Act extends to a cause of action that arose before the commencement of the legislation where proceedings had not at that time been instituted - see Choice of Law (Limitation Periods) Act 1993 (Victoria) section 4 - and so extends to the proceedings in the County Court.

The defence that the action in the County Court is statute-barred is apparently based upon the application of section 5 of the Choice of Law (Limitation Periods) Act and assumes that the substantive law of Queensland will govern the claim. The result, it is said, is that the limitation period provided for actions for damages for negligence in Queensland which, under section 11 of the Limitation of Actions Act 1974 (Queensland), is three years from the date on which the cause of action arose, will apply. The plaintiff, in order to escape that consequence, seeks to bring an action in this Court upon the basis that he will subsequently succeed in an application under section 44 of the Judiciary Act 1901 (Commonwealth) to have the action remitted to Queensland. It is said, in reliance upon Pedersen v Young [1964] HCA 28; (1964) 110 CLR 162 and Fielding v Doran (1984) 50 ALJR 511; 60 ALR 342, that upon a remitter to Queensland, the Queensland Limitation of Actions Act would not apply because upon its proper construction it is applicable only to actions brought in Queensland.

The effect of section 5 of the Choice of Law (Limitation Periods) Act is not entirely clear. Its wording may be based upon the misconception that in McKain v R.W. Miller & Co (SA) Pty Limited [1991] HCA 56; (1994) 174 CLR 1 this Court decided that in an action in one State in respect of a tort committed in another State, the substantive law to be applied is that of the State where the tort was committed, that is to say, the lex loci delicti. McKain v R.W. Miller & Co (SA) Pty Limited did not decide that. It decided that, provided two conditions were met, an action could be maintained in a State other than that in which the tort occurred and that the law, procedural and substantive, to be applied in resolving the action was the law of the State in which the action was heard, that is to say, the law of the forum. The two conditions, which originated in Phillips v Eyre but were expressed more narrowly than in that case, were:

1. The nature of the wrong must be such that, if it had occurred within that State, there would have been a cause of action entitling the plaintiff to enforce against the defendant a civil liability of the kind which the plaintiff claims to enforce.

2. By the law of the State 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.

Were those two conditions to be met in the plaintiff's action in the County Court of Victoria, and it seems that they would be met, the law to be applied in determining his claim would be the law of Victoria. Of course, that law would include section 5 of the Choice of Law (Limitation Periods) Act, but under that section the question would arise whether the substantive law of another State, namely, Queensland would govern the claim before the court so as to import the limitation period under section 11 of the Queensland Limitation of Actions Act. The more natural conclusion is that the law which would govern the claim would be the law which determined the rights and liabilities of the party, which would be the law of Victoria. It is for that reason that I have suggested that those responsible for the drafting of section 5 may have misconceived the effect of the decision in McKain v R.W. Miller & Co (SA) Pty limited. See also Commonwealth v Mewett (1994) 125 ALR 391 at 410-411 and Dawson v Baker (1994) 120 ACTR 11 at 21 where the same misconception appears to have been entertained.

Such a misconception may have been assisted by the concession in argument in that case that "the substantive law of the place of the wrong is 'imported into the forum'", a concession which was erroneous if it meant any more than that the substantive law of the place of the wrong is imported for the purpose of determining whether the second condition for the assumption of jurisdiction is satisfied.

However, to the extent that the substantive law of Queensland must govern the answer to the second condition laid down in McKain v R.W. Miller & Co (SA) Pty Limited, it may be said to govern the claim in the County Court of Victoria in the sense that if the condition is not met, the action is not maintainable in that court. Whilst that is, perhaps, not the most natural construction of the section, it is a construction which it is capable of bearing and it conveys the meaning which I think it ought to be given.

If it is not given that meaning, the section is robbed of the effect it was intended to have and, at least in action in tort, it is robbed of any practical effect at all. In McKain v R.W. Miller & Co (SA) Pty Limited it was held by the majority that the court in New South Wales, where the action was brought, ought to consider the law of South Australia, where the alleged wrong occurred, not for the purpose of applying it as the law governing the rights and liabilities of the parties in the action, but to determine whether the second condition laid down was met, so as to enable the action to be maintained in New South Wales. That is to say, for the action to be maintainable in New South Wales, the New South Wales Court was required to conclude that, by the law of South Australia, the nature of the alleged wrong was such that it gave rise there to a civil liability of the kind which the plaintiff claimed to enforce in New South Wales. It was for this reason that section 36(1) of the Limitation of Actions Act 1936 (SA) was relevant. Had it not been merely procedural, its effect would have been to extinguish any cause of action in South Australia and the second condition would not have been met. But, as was said by the majority in McKain v R.W. Miller & Co (SA) Pty Limited:

Being procedural, section 36(1) has no effect on the action brought by the plaintiff in the Supreme Court of New South Wales to enforce the cause of action existing under the common law applicable in that State.

Section 5 of the Choice of Law (Limitation Periods) Act was clearly intended to reverse the effect of this part of the decision in McKain v R.W. Miller & Co (SA) Pty Limited so that a limitation period in a State other than Victoria in which a tort occurs will have application in Victoria when it is sought to maintain an action in Victoria in respect of that tort. (See Second Reading Speech (Hansard) 21 October 1993 at 1253). It is a measure which is intended to reduce forum shopping and, being capable of bearing the meaning it was intended to have, it should be given that meaning.

For these reasons, I think that the plaintiff is correct in apprehending that the defence in the County Court based upon the Choice of Law (Limitation Periods) Act is likely to succeed. However, I am unable to accept his contention that an action commenced in this Court would be remitted to Queensland so as to avoid, if Pedersen v Young and Fielding v Doran be correct, the application of the Queensland limitation period. If the action commenced in this Court were to proceed in the original jurisdiction in Victoria, Victorian law would apply, including the Choice of Law (Limitation Periods) Act and the action would be statute-barred by reason of the application of the Queensland Limitation of Actions Act. In these circumstances, I do not think that an order remitting the action to a Court in Queensland ought to be made. To make such an order would be to deprive the defendant of a defence under the Choice of Law (Limitation Periods) Act and thus to alter in a significant way the law applicable in the resolution of the matter.

Whilst various views have been expressed in the cases as to the part which the balance of convenience should play in deciding applications for remitter (see Robinson v Shirley [1982] HCA 1; (1982) 39 ALR 252, Pozniak v Smith [1935] ArgusLawRp 35; (1982) 41 ALR 353, State Bank of New South Wales v Commonwealth Savings Bank [1984] HCA 41; (1984) 53 ALR 625) it seems to me that where the plaintiff has, as in this case, commenced an action in Victoria, he can scarcely be heard to say that the balance of convenience lies elsewhere. Nor does it seem to me, for the same reason, that observations which have been made (see Robinson v Shirley [1982] HCA 1; (1982) 39 ALR 252 at 255, Pozniak v Smith [1935] ArgusLawRp 35; (1982) 41 ALR 353 at 362-363) that in cases of doubt, remitter should be to the State in which the tort was committed, have the strength which they would otherwise have. The exercise in which the plaintiff seeks to engage is frankly an exercise in forum shopping and in those circumstances the applicable principle is, I think, otherwise.

As Brennan J observed in Robinson v Shirley at 255, the power to remit "is intended to facilitate the course of litigation rather than to enhance or diminish a plaintiff's rights or correspondingly alter a defendant's obligations". And as Gibbs CJ said in the State Bank case, at 630:

The purpose of a remitter under section 44 is simply to relieve this court of the necessity to hear cases that might more conveniently be heard elsewhere, particularly where the litigation involves the trial of issues of fact. The court should not, by making a remitter, alter the rights of the parties. When this court is called on to decide to which of two courts a remitter should be made, if the law to be applied in one of the competing jurisdiction is the same as, and that in the other is materially different from, that which would be applied if the matter remained in this court, the remitter should be made to the court in which the law to be applied is the same as that applicable in this court.

For these reasons, I do not think that an order remitting the action to a court in Queensland would, in this case, be made, leaving the plaintiff to discontinue his action in Victoria or to pursue it to a fruitless conclusion. If an order for remitter were to be made it would be made to a court in Victoria and so gain the plaintiff nothing.

Under Order 10 Rule 3, leave to serve the writ or notice of the writ is not to be granted unless it is sufficiently made to appear that the cause is a "proper one" for service outside the Commonwealth. The rule confers a discretion which is to be exercised with caution (see The Supreme Court Practice 1991 (UK), Vol 1 at 87; The "Nimrod" (1973) 2 Lloyd's Rep 91). Putting to one side the difficulty that the defendant may no longer be a resident of Queensland, it seems to me that, having regard to the existing action in Victoria, and what I regard as the inevitable fate of the cause in this Court, even if the defendant is served with the writ, that cause is not a proper one for service outside the Commonwealth. The application is accordingly refused.

Those somewhat lengthy reasons for that conclusion indicate the difficulties which almost inevitably arise in cases of this sort, but you have done as much as you can on behalf of your client, Mr McGarvie.

MR McGARVIE: If your Honour pleases.

AT 9.48 AM THE MATTER WAS ADJOURNED

INDEFINITELY